author: SUE WALKER, Justice.

text:
    Chante Jawan MALLARD, Appellant, v. The STATE of Texas, State.
    No. 2-03-279-CR.
    Court of Appeals of Texas, Fort Worth.
    March 3, 2005.

      Robert Ford, Fort Worth, TX, for Appellant.
    Tim Curry, Crim. D.A., Charles M. Mal-lín, Asst. Crim. D.A. and Chief of the Appellate Division, and Tanya S. Dohoney, and Richard Alpert, and Christy Jack, and Miles Brissette, Asst. Crim. D.As., Fort Worth, TX, for Appellee.
    PANELF: GARDNER,WALKER, and McCOY, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

Appellant Chante Jawan Mallard appeals her convictions for tampering with evidence and for murder. Mallard pleaded guilty to tampering with evidence but pleaded not guilty to murder. The jury found her guilty of both offenses and assessed her punishment at ten years’ confinement for tampering with evidence and fifty years’ confinement for murder. In five points, Mallard argues that the evidence is legally and factually insufficient to sustain her conviction for murder, that the trial court erred by defining transferred intent in the jury charge, that the trial court erred by charging the jury on concurrent causation, and that the trial court erred by overruling her motion for a mistrial based on the State’s alleged comment on her post-arrest silence. We will affirm.

II. Factual Background

On October 25, 2001, in preparation for an evening at Joe’s Big Bamboo Club, Mallard and her friend Titilisee Fry had a drink and split an ecstacy pill before smoking a marijuana joint on the way to the club. Mallard socialized, danced, smoked marijuana, and drank three or more drinks before leaving the club about 2:30 a.m. Mallard attempted to drive, but Fry could tell that Mallard was intoxicated; so, Fry drove. After they arrived at Fry’s house, Mallard decided to go home. She got in her car and drove away. Mallard’s statement, which was admitted into evidence, explained the events that followed.

I drove my 1997 Chevrolet Cavalier toward home and that’s how I was on Frwy. 287.
I think when I was coming around the bend from Loop 820, before Village Creek, all of a sudden, bam, he was just there. I realized that it was a person I had hit and he had come through the right front windshield. I was scared and terrified and the car didn’t even slow down.... He was on my car and stuck through the right front windshield. I parked my car in the garage and I put the door down.... I wanted to take him to the hospital, but I was so scared....

Fry testified that Mallard called her at approximately 3:30 a.m. and whispered, “T, come pick me up.” When Fry arrived at Mallard’s house, Mallard came running out, jumped into the car, and started screaming for Fry to drive. Mallard used Fry’s cell phone to call some friends named Terrence and Vaughn. Mallard and Fry tried to track down Terrence at his apartment and at his sister’s house, but they were unsuccessful and headed back to Mallard’s house.

Mallard then told Fry that she had hit “a white guy,” that she was sorry, that she did not mean to do it, and that she had tried to get him off the car near the Martin/Village Creek area, but that he was too heavy. Mallard admitted that the man was alive when she drove into her garage; she heard him moan.

When Fry and Mallard returned to Mallard’s house, Fry went into the garage and saw the back side of a body sticking out of the car’s windshield. Fry said that she told Mallard to call 911, but Mallard never did. Later, they both left and went to Fry’s house to sleep.

The next morning, Mallard borrowed Fry’s car and cell phone and attempted to locate Vaughn. Cíete — a/k/a Vaughn— testified that Mallard met him at his grandmother’s house and that they drove to Mallard’s house. On the way, Mallard told him that “she messed up real bad.” When they arrived, she allowed him into the garage, and he saw a man hanging through the front windshield into the passenger side floorboard of the car. Cíete touched the man with a rake to see if he was alive, but the man did not move. He decided that they were not going to bury the body; instead, they were going to put it somewhere the victim’s family could find him and bury him. Cíete stated that he was not going to move the body by himself, so he called his cousin, Tyrone, to help. Cíete and Mallard borrowed a friend’s car and drove it to Mallard’s house, where Cíete shoveled the body into a blanket, tied up the blanket, put the blanket into the trunk of the car, and drove with Tyrone and Mallard to Cobb Park. Tyrone and Cíete removed the body from the trunk, laid it on the ground, and took off the blanket. After leaving the body in the park, Cíete, Tyrone, and Mallard went to a car wash and threw away the blanket.

On October 27, 2001, two older gentlemen stopped by a fire station where firefighter Todd Breedlove was getting off duty. The two men reported that there was someone who looked dead in Cobb Park. Breedlove drove to Cobb Park, saw the dead white male, and called 911. Brad Patterson with the Fort Worth Police Department arrived and completed a crime scene search. He noted that the victim’s shoes and socks were missing, which indicated to Patterson that a vehicle may have run into the victim. He also noted that there was no blood at the scene; thus, Patterson concluded that the victim had been moved to the park and placed where he could be found.

An autopsy revealed that the victim, Greg Biggs, suffered a near total amputation of his left leg and that he bled to death from this injury. The medical examiner initially classified the autopsy results as “pending” but changed the status to “could not be determined” on January 7, 2002 when information concerning the victim’s death failed to surface. After police obtained information from one of Fry’s friends and arrested Mallard in March 2002, however, the medical examiner ruled Mr. Biggs’s death a homicide based on the new information.

III. Sufficiency of the Evidence

In her first and second points, Mallard argues that the evidence is legally and factually insufficient to sustain her conviction for felony murder. See Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2003). The felony murder indictment alleges,

Chante Jawan Mallard hereinafter called Defendant, in the County of Tar-rant and State aforesaid, on or about the 26th day of October 2001, did then and there intentionally or knowingly commit or attempt to commit a felony, to-wit: failure to stop and render aid as proscribed in Texas Transportation Code § 550.021 which [is] captioned “accident involving personal injury or death,” and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, she committed or attempted to commit an act clearly dangerous to human life, to-wit: transported Greg Biggs to her home when he was seriously injured and lodged in her car, or lodged in the windshield of her car, and she secreted him in her garage which prevented him from receiving medical care, which caused the death of Greg Biggs.

Mallard argues that the State failed to prove that she committed an act dangerous to human life; she claims that at most the State proved an omission and that an individual’s failure to act cannot constitute felony murder. The State maintains that the evidence affirmatively demonstrates that Mallard did commit an act clearly dangerous to human life and that her act caused Mr. Biggs’s death; the act of driving Mr. Biggs, bleeding and injured, to her house and hiding him in her garage caused his death. See Tex. Penal Code Ann. § 19.02(b)(3) (providing that a person commits the offense of murder if she commits a felony and in furtherance of the commission or in immediate flight from the commission of the offense, she commits an act clearly dangerous to human life that causes death).

A. Legal Sufficiency Standard of Review

In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004).

This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Ceim. PROC. Ann. art. 38.04 (Vernon 1979); Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App.2000). Thus, when performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). We must resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

B. Factual Sufficiency Standard of Review

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. “This standard acknowledges that evidence of guilt can ‘preponderate’ in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt.” Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id. In performing a factual sufficiency review, we are to give deference to the fact finder’s determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder’s. Zuniga, 144 S.W.3d at 482.

A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant’s complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).

C. Evidence Concerning Mallard’s Commission of an Act Clearly Dangerous to Human Life

Dr. Nizam Peerwani, Tarrant County’s chief medical examiner, testified as follows:

Q. [PROSECUTOR:] Do you have an opinion as to whether or not the act of continuing to drive that motor vehicle with Mr. Biggs lodged in the windshield would have aggravated his condition?
A. [DR. PEERWANI:] Yes, sir, I do.
Q. And what is that opinion?
A. It certainly would have aggravated the condition.
Q. And why is that? How can you say that?
A. Well, he’s not anchored well. Motions of the car — acceleration, turning around corners, stopping — would shift the body and would cause more injury to his unsupported near amputated lower extremity and perhaps increase his vascular trauma and injury.
Q. Do you have an opinion as to whether or not the act of trying to pull him in or out of that windshield of that car within minutes of striking him would have aggravated him?
A. Yes, sir.
Q. And what is that opinion?
A. That would also certainly cause similar types of increase in damage to the tissues.
Q. Now, the very serious injury that you showed them a photograph of, of the left leg, are you able to tell whether any of that vascular tearing happened after impact or not? In other words, once the bone and skin are cut, can improper moving of the leg or the body cause further tearing of those veins and arteries?
A. Yes, certainly. It’s distinctly possible, sir.
Q. Do you have an opinion as to whether or not the act of driving the car in which Mr. Biggs was lodged and into a garage and closing the door of that garage was an act clearly dangerous to his life?
A. Yes, sir, in the sense that there was no help asked, certainly.
Q. Okay. In fact, do you think his odds of receiving help would have been better if he had been left along the roadway?
A. Certainly, in an enclosed garage, nobody is going to observe an injured person. Open space, there’s more chance somebody might observe a person and ask for help.
Q. Or at least some chance; is that correct?
A. Yes, sir.
Q. Do you have an opinion whether or not the act of driving Mr. Biggs to a garage while he was alive and leaving him in the garage and not giving him medical attention contributed to his cause of death?
A. Yes, sir.
Q. And what is your opinion?
A. It certainly did, sir.
Q. And the cause of death ultimately that you found in this case?
A. The cause of death medically was described as multiple traumatic injuries sustained in the auto/pedestrian collision.
Q. And the manner of death?
A. The ultimate amended manner of death was filed as homicide, sir.

Additionally, the evidence adduced at trial revealed that the initial impact from the collision did not kill Mr. Biggs or cause injuries that would inevitably cause his death. Although the defense’s expert, Dr. Vincent Di Maio, gave his opinion that Mr. Biggs was unconscious when his body broke through the windshield, Dr. Di Maio agreed that Mr. Biggs could have survived up to two hours lodged in the windshield and that he died as a result of blood loss from the failure to receive medical attention. Several people testified that Mallard told them that Mr. Biggs lived through the initial impact and was able to moan; blood spatter evidence illustrated that Mr. Biggs breathed and moved after he was lodged partially inside the vehicle. Finally, Dr. Ray Swienton, the interim chairman of emergency medicine at John Peter Smith Hospital (JPS), testified that, to date, no patient presenting to the JPS emergency room with injuries similar to Mr. Biggs’s injuries has died. Consequently, Mallard’s actions — driving to her house with Mr. Biggs lodged in the windshield of her vehicle, parking her vehicle in her garage, and shutting the garage door — ensured Mr. Biggs’s death by foreclosing any possibility that he would receive medical treatment.

Viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; see Loredo v. State, 130 S.W.3d 275, 280 (Tex.App.-Houston [14th Dist.] 2004, pet. ref'd) (holding evidence legally sufficient to support conviction for felony murder). Furthermore, viewing all the evidence in a neutral light, favoring neither party, we also conclude that the evidence supporting the verdict, taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt and that the contrary evidence is not so strong that guilt cannot be proven beyond a reasonable doubt. Dotson v. State, 146 S.W.3d 285, 295 (Tex.App.-Fort Worth 2004, pet. ref'd); see Drew v. State, 76 S.W.3d 436, 447 (Tex.App.-Houston [14th Dist.], pet. ref'd) (holding evidence factually sufficient to support conviction for felony murder), cert. denied, 537 U.S. 1047, 123 S.Ct. 601, 154 L.Ed.2d 520 (2002). Accordingly, we hold that the evidence is both legally and factually sufficient to support Mallard’s conviction for felony murder. We overrule Mallard’s first and second points.

IV. CouRt’s Charge to the Jury

In her third and fourth points, Mallard contends that the trial court erred by overruling her objection to the inclusion of the definition of transferred intent in the charge and by charging the jury on concurrent causation. The State argues that the trial court properly charged the jury and that, alternatively, any harm was not egregious.

A. Standard of Review

Appellate review of alleged error in a jury charge involves a two-step process. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App.1994). Initially, we must determine whether error occurred. If so, we must then evaluate whether sufficient harm resulted from the error to require reversal. Id. at 731-32.

Error in the charge, if timely objected to in the trial court, requires reversal if the error was “calculated to injure [the] rights of the defendant,” which means no more than that there must be some harm to the accused from the error. Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); see also Abdnor, 871 S.W.2d at 731-32; Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). In other words, a properly preserved error will call for reversal as long as the error is not harmless. Almanza, 686 S.W.2d at 171. In making this determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000).

If error exists in the charge but no objection was lodged, we must decide whether the error was so egregious and created such harm that the appellant did not have a fair and impartial trial—in short, that “egregious harm” has occurred. Almanza, 686 S.W.2d at 171; see Tex.Code Crim. Proc. Ann. art. 36.19; Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). Egregious harm is a difficult standard to prove and must be determined on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002); Hutch, 922 S.W.2d at 171.

B. Transferred Intent

The jury charge included the following abstract definition of transferred intent: “A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what she desired, contemplated, or risked is that a different offense was committed.” The charge did not include an application paragraph incorporating the transferred intent definition.

During the charge conference, Mallard objected to the inclusion of the transferred intent definition, arguing that the abstract definition of transferred intent would create confusion. On appeal, Mallard likewise argues that the trial court’s inclusion of this definition undermined the jury’s consideration of the lesser included offense of failure to stop and render aid.

The record does not demonstrate that the charge’s abstract definition of transferred intent caused the confusion that Mallard alleges. During closing arguments, the prosecutor explained to the jurors that they could reach the lesser in-eluded offense only if they unanimously found Mallard not guilty of felony murder. The plain language of the charge likewise instructed the jury to proceed to consider the lesser included offense of failure to stop and render aid only if they acquitted Mallard of murder. We assume that the jury followed the given instructions, and there is no showing that the jury did not follow them. See Luquis v. State, 72 S.W.3d 355, 366-68 (Tex.Crim.App.2002). Therefore, the trial court did not err by overruling Mallard’s objection to the submission of the abstract definition of transferred intent. See Lewis v. State, 815 S.W.2d 560, 562 (Tex.Crim.App.1991) (holding no error occurred by overruling objection and giving abstract instruction on transferred intent when the issue of transferred intent was not incorporated into the application paragraph), cert. denied, 503 U.S. 920, 112 S.Ct. 1296, 117 L.Ed.2d 519 (1992). We overrule Mallard’s third point.

C. Concurrent Causation

The jury charge in question included the following abstract definition of concurrent causation: “A person is criminally responsible if the result would not have occurred but for her act, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the act of the Defendant clearly insufficient.” The charge did not include an application paragraph incorporating the concurrent causation definition. Neither party objected. On appeal, Mallard argues that no evidence exists to support a charge on concurrent causation.

We need not determine whether the trial court erred by including the abstract definition of concurrent causation because, in any event, the inclusion of the concurrent causation instruction did not egregiously harm Mallard. Here, the abstract paragraph on causation did not apply that theory to the facts of the instant case. Neither did the application paragraph incorporate the concept of concurrent causation. The absence of an application paragraph incorporating the concept of concurrent causation means that the jury was not authorized- to convict on a theory applying concurrent causation. See Hughes v. State, 897 S.W.2d 285, 297 (Tex.Crim.App.1994) (holding no harm occurred by giving superfluous abstract instruction on causation when the issue of causation was not incorporated into the application paragraph and jury was not authorized to convict on that theory of causation), cert. denied, 514 U.S. 1112, 115 S.Ct. 1967, 131 L.Ed.2d 857 (1995); accord Garrett v. State, 642 S.W.2d 779, 781 (Tex.Crim.App.1982) (holding that although a proper charge should correctly apply transferred intent to the facts, the failure to do so does not constitute a fundamental defect requiring reversal). Accordingly, Mallard was not egregiously harmed by the inclusion of an abstract definition of concurrent causation. See Hughes, 897 S.W.2d at 297. We overrule Mallard’s fourth point.

Y. Motion for Mistrial

In her fifth point, Mallard asserts that the trial court erred by overruling her request for a mistrial after the State allegedly commented on her post-arrest silence during the punishment phase of trial. The State responds that the objection was untimely. Mallard testified during the punishment phase. During the State’s cross-examination, the following exchange took place:

[PROSECUTOR:] Ms. Mallard, I’m going to ask you some questions about your testimony. We haven’t talked before, right?
[MALLARD:] No, sir.
[PROSECUTOR:] May I approach, Your Honor?
THE COURT: You may.
[DEFENSE COUNSEL:] Your Honor — objection, Your Honor. May we approach?
(At the bench, on the record:)
[DEFENSE COUNSEL:] That is a comment on the failure — that is a comment on her ability to assert the Fifth Amendment. That’s absolutely error. I do not want to call the jury’s attention to it and focus on it, but I want a mistrial, and I want it right now.
THE COURT: Denied.
[DEFENSE COUNSEL:] Your Honor, I want for the record ... exactly what he said. He said, ‘You and I have not talked before,” and that is clearly a comment on her assertion of the Fifth Amendment right. Clearly.
[PROSECUTOR:] Your Honor, we just ask for a[n] instruction to disregard if he believes that’s what I was referring to. That wasn’t my intent.
(Open court:)
THE COURT: All right. Jury will disregard the last question.
You may continue.
[DEFENSE COUNSEL:] Your Honor, I renew my request for a mistrial.
THE COURT: Denied.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R.App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004).

Here, Mallard responded to the prosecutor’s initial question, the prosecutor asked for permission to approach Mallard to show her an exhibit, the trial court granted the prosecutor permission to approach Mallard, and then defense counsel objected to the question. Consequently, the objection was untimely. See Lagrone v. State, 942 S.W.2d 602, 618 (Tex.Crim.App.) (stating that if defendant fails to object until after an objectionable question has been asked and answered, his objection is untimely), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997). Because the objection was untimely, Mallard forfeited this point. See Mendez, 138 S.W.3d at 342 (holding that appellant forfeited his right to present claim on appeal by failing to present timely objection to the trial court). Therefore, we overrule Mallard’s fifth point.

VI. Conclusion

Having overruled each of Mallard’s points, we affirm the trial court’s judgment.

      . Mallard’s appellate points challenge only her murder conviction, not her conviction for tampering with evidence.

      . Both women are certified nurse’s assistants.

      . Titilisee Fry goes by "T."

      . Vaughn's real name is Cíete Denal Jackson.

      . Mallard does not challenge the sufficiency of the evidence to support the failure-to-stop- and-render-aid element of the felony murder charge. Consequently, we will not analyze the sufficiency of that aspect of the evidence.

      . The State proved that Mr. Biggs was not suffering from any life-threatening illness at the time of his death.

      . Mallard’s actions related to the unchallenged failure-to-stop-and-render-aid felony murder element included her failure to stop and call for help at one of the nine pay phones between the accident site and her home and her failure to drive 6.1 miles to JPS or 0.7 miles to the nearest fire station to obtain medical assistance.

      . The State provides a well-reasoned analysis of why inclusion of the concurrent causation definition in the charge was not erroneous. We decline, however, to undertake an error analysis in this instance because, as discussed above, no egregious harm resulted from the unobjected-to alleged error. Accord Tong v. State, 25 S.W.3d 707, 718 (Tex.Crim.App.2000) (op. on reh’g) (stating that "this Court has occasionally analyzed voir dire issues solely on the basis of harm, skipping the preliminary question of error"), cert. denied, 532 U.S. 1053, 121 S.Ct. 2196, 149 L.Ed.2d 1027 (2001).


source: Caselaw Access Project

author: BOB McCOY, Justice.

license: Public Domain

text:
    Samuel Richard GIBBINS, Individually and d/b/a Delanya’s Smoke Pit, Appellant, v. Gregory S. BERLIN and Robert M. Merz, Individually and d/b/a Fair Game Vending, Appellees.
    No. 2-04-163-CV.
    Court of Appeals of Texas, Fort Worth.
    March 31, 2005.

      Gardner, Aldrich & Murphy and John F. Murphy, Fort Worth, for Appellant.
    Stephens & Anderson, L.L.P., Seth M. Anderson, and Matthew D. Stayton, Fort Worth, for Appellees.
    PANELA: CAYCE, C.J.; LIVINGSTON and McCOY, JJ.
   OPINION

BOB McCOY, Justice.

I. Introduction

This is an appeal by Samuel Richard Gibbins (“Gibbins”), individually and d/b/a Delanya’s Smoke Pit, from a judgment in favor of Gregory S. Berlin (“Berlin”) and Robert M. Merz (“Merz”), individually and d/b/a Fair Game Vending, following a jury trial, wherein Gibbins asserts error by the trial court in two points: (1) inclusion in the charge of the court of an improper instruction on self-defense or alternatively, the refusal by the trial court to include a question on the issue of self-defense, and (2) the absence of legally and factually sufficient evidence of past and future physical pain and mental anguish to support a judgment for Berlin and Merz.

II. Background

A. Round One — The Fight

This is the case of the double knock-out. On the evening of August 10, 2001, Berlin and Merz visited the Smoke Pit, a restaurant and bar on the east side of Fort Worth. The purpose of their visit was to inspect a jukebox that belonged to their business, Fair Game Vending, and that had been installed at the Smoke Pit for the previous five years. They had each consumed four or five beers before getting to the restaurant but denied that they were intoxicated. Upon arrival, they discovered that their jukebox was unplugged and turned to the wall because Gibbins, the Smoke Pit’s new owner, had purchased his own jukebox. A disagreement ensued over the jukebox situation, and Berlin and Merz were asked by Gibbins to take their jukebox and .leave., The attempted jukebox removal killed the sound from Gib-bins’s new jukebox, resulting in Gibbins telling them to leave and come back the next day. Fisticuffs ensued, with Gibbins being the last man standing. Gibbins and three eye witnesses testified that Berlin and Merz started the altercation when Berlin shoved Gibbins, but Berlin and Merz claimed Gibbins “sucker punched” them without warning. The fight consisted of two punches. Gibbins, a former golden glove fighter, hit Berlin once and broke his jaw, and then hit Merz and broke his jaw. They were both down and out.

B. Round Two — The Damages

As a result of the melee, Berlin suffered a broken jaw occasioned by swelling and bleeding. His facial injuries necessitated the insertion of a metal plate, and his mouth was wired shut for several weeks. He also received a fractured collarbone, damage to his shoulder, and lacerations to his face when he hit the floor. He testified that he had continued to have pain in his collarbone and shoulder, numbness in his jaw, and had suffered disfigurement to his face. Merz fared little better. He likewise had a metal plate inserted in his jaw, his mouth was wired shut, and he was required to have oral surgery. Merz testified that he continued to have pain and sensitivity in his jaw, and his face was disfigured.

C. Round Three — The Litigation

Berlin and Merz sued Gibbins for assault, claiming they had not laid a glove on him, and Gibbins counterclaimed against Berlin and Merz for trespassing and assault. The case went to trial before a jury in November 2003, with Berlin and Merz still asserting assault and alleging conversion of them business equipment and personal property. By the time of the charge conference, Gibbins had abandoned his counterclaim for assault and instead was requesting a question on self-defense, that is, legal justification for the alleged assault, or alternatively an instruction on self-defense. The trial court ultimately asked the jury if Gibbins assaulted Berlin, and if he assaulted Merz, to which the jury answered both in the affirmative. A conditional damage question followed, wherein Berlin was awarded $100,000 for past physical pain and mental anguish, $250,000 for future pain and mental anguish, $25,000 for disfigurement in the past, and $50,000 for impairment in the past. Correspondingly, Merz was awarded $100,000 for past physical pain and mental anguish, $100,000 for future pain and mental anguish, $25,000 for disfigurement in the past, and $50,000 for impairment in the past. Following the verdict, Gibbins filed a motion for judgment not withstanding the verdict, or alternatively for remittitur, and objections to the proposed judgment of Berlin and Merz. In response, Berlin and Merz remitted a portion of their total verdict, resulting in an award of $212,500 to Berlin and $137,500 to Merz, exclusive of interest. Motions for new trial were denied, followed by this appeal.

III. Charge of the Court

In his first point, Gibbins asserts error on the part of the trial court (1) by failing to give a question on self-defense and (2) by improperly wording the instruction on self-defense contained in the paragraph defining assault.

A. The Standard of Review

Error in a jury charge is reversible if it probably caused the rendition of an improper judgment. Tex.R.App. P. 44.1(a); In re D.I.B., 988 S.W.2d 753, 756 (Tex.1999). To preserve a complaint premised on the jury charge for appellate review, a party must point out distinctly the objectionable matter and the grounds for the objection. Tex.R. Civ. P. 274. The test for preservation of a jury charge complaint is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. Tex.R.App. P. 33.1(a); see State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex.1992) (op. on reh’g). The court must review the entire record to determine whether the instruction amounted to reversible error. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001); Urista v. Bed, Bath & Beyond, Inc., 132 S.W.3d 517, 521 (Tex.App.-Houston [1st Dist.] 2004, pet. filed). An incorrect instruction is especially likely to cause reversible error when the evidence is conflicting and the issues hotly contested. Quantum Chem. Corp., 47 S.W.3d at 480; Urista, 132 S.W.3d at 521.

We review a trial court’s decision to submit an instruction for an abuse of discretion. Goose Creek Consol. Indep. Sch. Dist. v. Jarrar’s Plumbing, Inc., 74 S.W.3d 486, 499 (Tex.App.-Texarkana 2002, pet. denied). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action. Rather, the question is whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

B. Charge of the Court

In its charge to the jury, the trial court asked in question la, “Did Samuel Richard Gibbins commit an assault against Gregory S. Berlin?” The same question was asked as to Robert Merz in question lb. In the paragraph preceding that question, the court defined assault and instructed the jury on self-defense as follows:

A person commits an assault if he (1) intentionally, knowingly, or recklessly causes bodily injury to another; (2) intentionally or knowingly threatens another with imminent bodily injury; or (3) intentionally or knowingly causes physical contact with another when he or she knows or should reasonably believe that the other will regard the contact as offensive or provocative. A person is justified in using force against another when and to the degree the person reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force. A person has the right of self-defense against multiple assailants if, viewed from the person’s standpoint, the person believed he was in danger of an unlawful attack or a threatened attack at the hand of more than one assailant.

The definition of assault is the same, whether in a civil or criminal trial. Rogers v. Peeler, 146 S.W.3d 765, 769 (Tex.App.-Texarkana 2004, no pet.) (citing Forbes v. Lanzl, 9 S.W.3d 895, 900 (Tex.App.-Austin 2000, pet. denied)). A person commits assault under the Penal Code if the person intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen.Code Ann. § 22.01 (Vernon Supp. 2004-2005).

Similarly, with the exception of the rule of evidence that gives a person accused of a crime the benefit of a reasonable doubt, the law of self-defense is the same in both civil and criminal cases. Forbes, 9 S.W.3d at 900; Foster v. H.E. Butt Grocery Co., 548 S.W.2d 769, 771 (Tex.Civ.App.-San Antonio 1977, writ ref'd n.r.e.). Under section 9.31 of the Penal Code, a person is justified in using force against another when, and to the degree, such person reasonably believes the force is immediately necessary to protect himself or herself against the other’s use or attempted use of unlawful force. Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003). Whereas we recognize that in criminal law, self-defense is a justification and not an affirmative defense, in civil law it is a plea in confession and avoidance. That is, it is an affirmative defense. Dotson v. State, 146 S.W.3d 285, 292 (Tex.App.-Fort Worth 2004, no pet.); Price v. Short, 931 S.W.2d 677, 687 (Tex.App.-Dallas 1996, no writ).

We agree that the instruction is erroneous for two reasons. First, as worded, it fails to instruct the jury that they are to answer questions la and lb “no” if they believe an assault was committed but that it was committed in self-defense or was justified. Even if the jury believed an assault occurred and it was occasioned by self-defense or was justified as they were instructed on those issues in this charge by the court, they were asked in question one to answer only whether an assault occurred without reference- to self-defense or justification. Second, we believe the better practice and the appropriate method for handling self-defense in a civil assault case is to ask the jury a question concerning self-defense as opposed to including it in an instruction because (1) self-defense is a plea in confession and avoidance, that is, it is an affirmative defense that normally calls for a question to the jury as opposed to an inferential rebuttal, which is normally addressed by way of instruction in the court’s charge; (2) case law supports giving of separate questions on assault and self-defense, Norris v. Branham, 557 S.W.2d 816, 817 (Tex.App.-El Paso 1977, writ ref'd n.r.e.); and (3) it is basically a way of asking the jury if the actions were legally justified or excused, and justification/excuse is normally given as a question. See Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 101.21, 106.3 (2003). “The plea of self-defense then is one of justification. It is based on a different set of facts from those establishing assault. As an affirmative defense it is considered as acknowledging the existence of prima facie liability but asserting a proposition which, if established, avoids such liability.” Norris, 557 S.W.2d at 818.

However, Berlin and Merz assert that the affirmative defense of self-defense was not pleaded prior to trial, and even if tried by consent, no trial amendment was requested. As such, they assert no question was required to be given to the jury because jury questions must be supported by pleading. We agree. It is undisputed that Gibbins requested a question on self-defense: “Did Samuel Richard Gibbins act in self-defense at the time ... ?” It is also undisputed that Gibbins never pleaded self-defense, which is an affirmative defense. In re J.M., 25 S.W.3d 364, 365 (Tex.App.-Fort Worth 2000, no pet.) (citing Price v. Short, 931 S.W.2d 677, 686 (Tex.App.-Dallas 1996, no writ)). Rule 278, Texas Rules of Civil Procedure, entitled Submission of Questions, Definitions, and Instructions, states in its first sentence that “[t]he court shall submit the questions, instructions, and definitions in the form provided by Rule 277, which are raised by the written pleadings and the evidence.” Tex.R. Civ. P. 278 (emphasis supplied). While Gibbins submitted the proposed question to the trial court on the issue of self-defense, which was rejected by the trial court and the instruction given, a trial court may refuse a tendered question for two reasons: (1) there is no evidence to justify the submission or (2) the issue is not pleaded. Rivera v. Herndon Marine Prods., Inc., 895 S.W.2d 430, 433 (Tex.App.-Corpus Christi 1995, writ denied) (citing Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex.1992)). This standard is equally applicable to offensive and defensive issues. Tanenbaum Textile Co. v. Sidran, 423 S.W.2d 635, 638 (Tex.Civ.App.-Dallas 1967, writ ref'd n.r.e.). Further, it is well settled that affirmative defenses must be pleaded pursuant to Rule 94 of Texas Rules of Civil Procedure. This is also true in cases in which issues are tried by consent. McFadden v. Hale, 615 S.W.2d 345, 348 (Tex.Civ.App.-Waco 1981, no writ).

Gibbins responds that Rule 67, Texas Rules of Civil Procedure, entitled Amendments to Conform to Issues Tried Without Objection, says that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they have been raised in the pleadings ... provided that written pleadings, before the time of submission, shall be necessary to the submission of questions, as is provided in Rules 277 and 279.” Tex.R. Civ. P. 67 (emphasis supplied). However, Rule 279 is inapplicable to the question before the court, and Rule 277 no longer contains the language that Rule 67 implies is there concerning the submission of questions to the jury. Prior to 1988, Rule 277 stated in part, “In all jury cases the court may submit said cause upon special issues without request of either party, and upon request of either party, shall submit the cause upon special issues controlling the disposition of the case that are raised by the written pleadings and evidence in the case.” 661-662 S.W.2d (Tex.Cases) LXXVI, (1984, superseded 1988) (emphasis supplied).

Gibbins asserts that the 1988 amendment eliminated the written pleading provision of Rule 277, and while the language was incorporated into Rule 278, Rule 67 does not refer to Rule 278. Therefore, he argues that the written pleading requirement for submission of issues tried by consent has been eliminated and that because all cases cited by Berlin and Merz standing for that proposition were decided before the 1988 amendment took place, they are inapplicable. We disagree with this position. First, Rule 278 plainly says that the questions, instructions, and definitions submitted by the court must be raised by the written pleadings and the evidence. Tex.R. Civ. P. 278 (emphasis supplied). Were this phrase “written pleadings or the evidence,” it would support Gibbins’s argument, but it does not. Second, Rule 67 retains the language that issues not raised by the pleadings but that are tried by consent “shall not affect the result of the trial of these issues ... provided that written pleadings, before the time of submission, shall be necessary.” Tex.R. Civ. P. 67 (emphasis supplied). Third, the general commentary to that rule states that “by the time of submission any issues that are submitted must be based upon written pleading. Where this has not been before done submission, it is, of course, accomplished by amendment at the time of submission.” Tex.R. Civ. P. 67. cmt. Fourth, it is clear that the intent of the rules, as articulated in Rule 278, was to continue the requirement that issues submitted to the jury must be based upon the evidence and based on the written pleadings. Fifth, case law since 1988 supports this position. For example, the El Paso Court of Appeals has held that

while a general denial puts into issue all matters pled by the adverse party ... it does not raise a defensive issue of excused performance such as that offered by Appellants in this case. Tex.R. Civ. P. 278. As Rule 278 ... makes abundantly clear ... a party is not entitled to the submission of a question which was at best raised only by general denial but not by affirmative pleadings, even though the issue might be tried by consent.

Anderson v. Vinson Exp., Inc., 832 S.W.2d 657, 666 (Tex.App.-El Paso 1992, no writ) (emphasis supplied); see also Texas Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760, 777 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (affirmative defense of statutory exemption from registration required by written pleading by Rule 278 before being submitted to the jury).

While acknowledging that this specific question concerning the omission of language from Rule 277 by the 1988 amendment may not have been raised in previous cases, this court holds that in cases tried by express or implied consent, a trial amendment containing affirmative defenses requested to be submitted to the jury is required to be filed prior to submission of the defensive issues to the jury. As no such trial amendment was requested, Gibbins’s first point is overruled.

IV. Physical Pain and Mental Anguish

In his second point, Gibbins asserts that the evidence of past physical pain and mental anguish and future physical pain and mental anguish was legally and factually insufficient to justify the awards to Berlin and Merz.

A. Standard of Review

In determining a “no evidence” issue, we are to consider only the evidence and inferences that tend to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont’l Coffee, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

A “no evidence” issue may be sustained only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999).

To withstand a “no evidence” challenge, circumstantial evidence still must consist of more than a scintilla. Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex.1995). A jury may not reasonably infer an ultimate fact from meager circumstantial evidence that could give rise to any number of inferences, none more probable than another. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997).

An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all the evidence in the case in making this determination, not just the evidence that supports the finding. Mar. Overseas Carp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998). Generally, we do not have to detail supporting evidence when upholding the factual sufficiency of the evidence underlying the trial court’s judgment. Ellis County State Bank v. Keever, 888 S.W.2d 790, 794 (Tex.1994).

If the award is challenged as being excessive because there is factually insufficient evidence to support it, we should consider all the evidence that bears on that category of damages, even if the evidence also relates to another category of damages. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 773 (Tex.2003). When conducting a factual sufficiency review, a court of appeals must not merely substitute its judgment for that of the trier of fact. Id. at 761. The trier of fact is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Id.

A jury is in the best position to see, hear, and evaluate the evidence and should be awarded great discretion in its determinations. Dawson v. Briggs, 107 S.W.3d 739, 751 (Tex.App.-Fort Worth 2003, no pet.). This is particularly true in damage awards for pain and suffering because there are no objective measures analyzing damages of this sort, and for that reason it is best left to the province of the jury. Id.; see Hicks v. Ricardo, 834 S.W.2d 587, 591 (Tex.App.-Houston [1st Dist.] 1992, no writ). As this court noted in Dawson, “once the existence of some pain and suffering has been established, there is no objective way to measure the adequacy of the amount awarded as compensation, which is generally left to the discretion of the fact finder.” Dawson, 107 S.W.3d at 751. While it is true that the mere fact of the existence of an injury does not prove compensable pain and suffering, Biggs v. GSC Enterprises, Inc., 8 S.W.3d 765, 769 (Tex.App.-Fort Worth 1999, no pet.), it is also true that the evidence of continuing pain can support an award of future physical pain and mental anguish, Dawson, 107 S.W.3d at 752; Rosenboom Machine & Tool, Inc. v. Macharla, 995 S.W.2d 817, 829 (Tex.App.-Houston [1st Dist.] 1999, pet. denied); Durham Transp., Inc. v. Valero, 897 S.W.2d 404, 414-15 (Tex.App.-Corpus Christi 1995, writ denied);, and conversely, evidence of continually objective physical injuries precludes a take nothing verdict for future physical pain and mental anguish, Hicks, 834 S.W.2d at 591.

B. The Evidence

The evidence of past and future physical pain and mental anguish for Berlin is not extensive. Berlin testifies as follows:

Q. Did you have damage to your right shoulder?
A. My shoulder was even more painful than my jaw. It was the clavicle or collar bone [that] was fractured and was dislocated. They had to put it back in.
Q. Where was your jaw broken?
A. It was broken here, (indicating). That’s where they put the plate. And also up here (indicating), I think they call it the condyle by your ear. One time, after they cut the wires, it failed again, and then they had. to tie it back up because it was broke in here (indicating).
Q. Do you still have shoulder pain?
A. I do. In fact, one of the things I enjoy most in life is golf, and some days, you know, my backswing just kind of, to a small degree, the bones slip past each other, something kind of ratchets out of place, and it seems like it comes with [the] humidity.
Q. And do you have loss of feeling in your jaw?
A. I’ve got — the best I can describe it, it’s like a semicircle starting about here (indicating) coming down to my chin, yeah, over here (indicating). And it’s like I saw the dentist earlier today. You know, it’s like it’s still in Novocaine a little bit. I guess it’s nerve damage.
Q. Did you lose any teeth?
A. Yeah, as a matter of fact.... So that nerve — that nerve died and gave me a lot of problem....
Q. And when did you make the decision to go to the hospital?
A. As soon as I got home and looked in the mirror. I couldn’t believe what I saw. I was shaken up and in some pain, mostly my shoulder, but I just could [not] believe what I saw in the mirror.

He also testified that the emergency room doctors wrestled and pushed his shoulder back in place, that the shoulder remained in a sling for over a month and he took pain medication for the pain, that excessive bleeding from his jaw forced, him to sleep with his mouth open, and that he suffered mentally from looking at the damage to his face.

As to Merz the following evidence was introduced, also solely in the form of Merz’s own testimony:

Q. Do you remember getting punched?
A. I just remember the dazed — dazed feeling, but it happened so quick, I don’t know.
Q. And what part of your face did you get struck on?
A. I don’t know if I got hit once or twice, but my jaw was broke. There’s a plate here (indicating), and there was also a fracture up here (indicating) on the other side of my face. That’s where all the swelling was.
Q. Do you have a metal plate in your jaw?
A. Yes.
Q. And that’s going to be there forever?
A. Yes, I believe so.
Q. Do you have continued numbness in your jaw?
A. Yeah, like Greg said, I have pretty much the same as he has all the way from — it’s mainly the bottom lip down through [here] (indicating) and up to here, it feels as though it’s novocaine. It comes and goes. It’s not constant, but the sensitivity comes and goes.
Q. Have you felt personally conscience [sic] or conscientious about your outward appearance? Does it bother you?
A. Well, every day I feel the numbness and, yeah, yeah, yes.

He also testified that he required oral surgery for his jaw and that his mouth was wired shut for four weeks, that he continues to have problems with routine daily issues like eating, that he is concerned about his resulting appearance in which one side of his face is raised over the other and a “sloppy” smile.

Based on the foregoing, the jury awarded to Berlin and Merz $100,000 each for past physical pain and mental anguish and $250,000 and $100,000 respectively to Berlin and Merz for future physical pain and mental anguish. No expert testimony or documentary evidence such as medical records was introduced relevant to these issues.

C. The Application

Reviewing the evidence and bearing in mind our standard of review for legal sufficiency and that anything more than a scintilla of evidence is legally sufficient to support the findings, we conclude that the evidence is legally sufficient to support the jury’s award for past and future physical pain and mental anguish as to both Berlin and Merz. Reviewing the evidence and bearing in mind our standard of review for factual sufficiency, and that a court of appeals must not merely substitute its judgment for that of the trier of fact, we conclude that the evidence is also factually sufficient to support the award of damages after remittitur to Berlin and Merz. The jury determined that Gibbins won the fight but lost the purse. Gibbins’s second point is overruled.

Y. Conclusion — Review of the Justices’ Cards

Berlin and Merz win by a unanimous decision. The judgment of the trial court is affirmed.

      . Subsequently, the total awards for all elements of damages were reduced to $212,500 and $137,500 for Berlin and Merz, respectively, through remittitur.


author: TERRIE LIVINGSTON, Justice.

text:
    Fredrick E. McCLURE, Appellant, v. James Richard DENHAM, Individually, d/b/a Denham Builders and d/b/a DWM Developments, Garrett Denham, Individually and d/b/a DWM Developments, Brian Martin, Individually and d/b/a DWM Developments, and Eric (Ric) Walters, Individually and d/b/a DWM Developments, Appellees.
    No. 2-04-170-CV.
    Court of Appeals of Texas, Fort Worth.
    March 31, 2005.

      Curtis L. Marsh, Dallas, for Appellant.
    Locke, Liddell & Sapp,. L.L.P., John H. McElhaney and Thomas F. Loose, Dallas, for Appellees.
    PANEL B: LIVINGSTON, GARDNER, and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

I. Introduction

Appellant Fredrick E. McClure appeals from the trial court’s grant of summary judgment in favor of appellees James Richard Denham, individually, d/b/a Den-ham Builders and d/b/a DWM Developments, Garrett Denham, individually and d/b/a DWM Developments, Brian Martin, individually and d/b/a DWM Developments, and Eric (Ric) Walters, individually and d/b/a DWM Developments (the Denhams). In two issues, appellant complains that (1) the trial court erred in granting the Denhams’ motion for summary judgment, and (2) the trial court erred in overruling appellant’s motion for reconsideration and his motion for leave to file supplemental summary judgment evidence. We affirm the trial court’s judgment.

II. Background

The Denhams owned a tract of land in Lewisville on which they were constructing an office building. Acting as the general contractor, the Denhams hired subcontractors to perform some of the work on the building. The Denhams retained Global Erectors, Inc. (Global) to erect the wall panels and roof for the building. On September 26, 2001, Eddie Clinebell, an employee of Global, was using a crane to lift decking material to the top of the building. Appellant, another employee of Global, was positioned on a joist approximately thirty feet off the ground, where he was assisting Clinebell with landing the decking material.

According to appellant, while he was sitting on the joist and wearing a safety harness, which was attached by a rope to the building, he saw a load coming toward him. He had to disconnect the rope and move to avoid being crushed by the load. The load did not have a tag line, which is used to guide the load. The load knocked appellant off the joist, and he fell to the ground below, suffering extensive injuries.

Appellant sued the Denhams under various negligence theories. Appellant argued, among other things, that the Den-hams were negligent by failing to institute adequate safety measures, including providing safety lines to which he could attach his safety harness. Appellant also argued that the Denhams violated various statutes, rules, and regulations and that therefore their actions constituted negligence per se. Further, appellant contended that the Denhams were negligent in hiring, retaining, and supervising Global.

On August 1, 2003, the Denhams filed a motion for summary judgment, arguing both traditional and no-evidence grounds. See Tex. R. Civ. P. 166a(c),(I). The trial court set the motion for hearing on September 25, 2003. On September 25, 2003, the day of the hearing, the trial court took the Denhams’ motion under advisement without hearing oral argument. Later, in December, the parties requested a continuance in order to mediate the case. The mediation was not successful, and on January 29, 2004, appellant filed a motion for leave to supplement the summary judgment record. Specifically, appellant wanted to introduce an affidavit from Randall Glenn, one of Global’s employees, in which Glenn states that he overheard one of the Denhams telling Clinebell not to use safety lines. On February 2, 2004, the trial court, without ruling on appellant’s motion to supplement, telephoned appellant to advise him that it was granting the Denhams’ motion for summary judgment. Appellant filed a motion for reconsideration, and on April 30, 2004, the trial court overruled both of appellant’s motions and entered a final judgment granting the Denhams’ motion for summary judgment.

III. Motion for Reconsideration and Motion for Leave to File Supplemental Evidence

We will first address appellant’s second issue because it affects our determination of whether the trial court’s grant of summary judgment in favor of the Den-hams was proper. In the first part of his second issue, appellant questions whether the trial court erred in overruling his motion for reconsideration, but he cites no authority and does not address the issue in the argument portion of his brief. Therefore, appellant has waived this portion of his issue, and we will not address it. See Tex.R.App. P. 38.1(h); Shelton v. Sargent, 144 S.W.3d 113, 119 (Tex.App.Fort Worth 2004, pet. denied) (holding point may be waived because of inadequate briefing).

Appellant also contends that the trial court erred in overruling his motion for leave to supplement the summary judgment record with Glenn’s affidavit. In a summary judgment proceeding, the non-moving party may file and serve opposing affidavits or other written responses no later than seven days prior to the scheduled date of the hearing. Tex.R. Civ. P. 166a(e). Only with the trial court’s permission may the nonmoving party file summary judgment evidence past the seven-day deadline. See id. We review a trial court’s ruling on a motion for leave to file a late summary judgment response for an abuse of discretion. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex.2002); Mowbray v. Avery, 76 S.W.3d 663, 688 (Tex.App.Corpus Christi 2002, pet. denied); Barrera v. Sanchez, 679 S.W.2d 704, 705 (Tex.App.San Antonio 1984, no wilt).

Here, appellant obtained the Randall Glenn affidavit in November 2003. However, appellant did not request leave to file the affidavit until January 29, 2004, which was well past the September 25, 2003 hearing date. In his motion for leave, appellant stated that he located Randall Glenn in November 2003, after he had filed his response. But appellant offered no further explanation as to why he was unable to obtain the affidavit until then or file it until January 2004. Thus, he did not show that his failure to timely produce the affidavit was not intentional or the result of conscious indifference, but was the result of an accident or mistake. See Carpenter, 98 S.W.3d at 688. Accordingly, we hold that the trial court did not abuse its discretion in overruling appellant’s motion for leave to file supplemental evidence. We overrule appellant’s second issue.

IV. Summary Judgment

In appellant’s first issue, he argues that the trial court erred in granting the Den-hams’ motion for summary judgment. When a party moves for summary judgment under both rules 166a(c) and 166a(I), we first review the trial court’s judgment under the no-evidence standard of rule 166a(I). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004).

A. Rule 166a(I) Standard of Review

Under rule 166a(I), after an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the non-movant’s claim or defense. Tex.R. Civ. P. 166a(I). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(I) & cmt.; S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). If the nonmovant fails to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether the movant’s summary judgment proof satisfies the less stringent rule 166a(c) burden. Ford Motor Co., 135 S.W.3d at 600.

We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004); Johnson, 73 S.W.3d at 197; Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied).

Appellant’s causes of action fall under two theories. Under Count I, appellant asserted claims of negligence, negligence per se, and gross negligence. Under Count II, appellant asserted that the Den-hams were negligent and grossly negligent in hiring, retaining, and supervising appellant’s employer, Global. The Denhams asserted that they were entitled to summary judgment generally because they owed no legal duty under any of appellant’s theories of negligence and because none of their acts or omissions created a foreseeable or proximate cause of appellant’s injuries.

B. Count I Negligence Claims

1. Negligence

The three essential elements of a negligence cause of action are (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages proximately caused by that breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). As a general rule, a premises owner does not owe a duty to an independent contractor’s employee to ensure that the employee safely performs his work. See Koch Ref. Co. v. Chapa, 11 S.W.3d 153, 155 (Tex.1999). But if the premises owner “retains some control over the independent contractor’s work, it must exercise that control with reasonable care.” Id. Thus, “[a] premises owner can be liable ... if it either contractually retains or actually exercises control over the independent contractor’s work.” Id. A duty of care will arise only when such control is retained or actually exercised over the means, methods, or details of the independent contractor’s work. See Elliott-Williams, Co. v. Diaz, 9 S.W.3d 801, 804 (Tex.1999). Further, the control must relate to the activity that actually caused the injury. Coastal Mame Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex.1999).

No Contractually Retained Control

Appellant argues that the Den-hams, the owners, retained the right to control safety at the job site. According to appellant, Global, the independent contractor, purported to exclude its responsibility for fall protection for its workers in the Global-Denham contract. Appellant contends that the contract specifically excluded Global’s responsibility for safety cables so that the Denhams were obligated to provide them. However, Harry J. Con-kle, Jr., Global’s owner, testified in his deposition that this exclusion did not pertain to Global’s employees. Rather, Con-kle explained that the exclusion meant that Global was not responsible for providing safety cables for other subcontractors on the job site, not that it would not provide safety cables for its own employees, like appellant. Appellant offers no evidence to contradict this interpretation of the contract.

Appellant also points to a contract between the Denhams and a roofer to support his argument that the Denhams retained the right to control safety at the job site. But the contract between the Den-hams and the roofer does not mention Global or its employees. See Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.2002). Further, appellant points to no provision in the Global-Denham contract that gives the Denhams the right to control Global’s work. Therefore, we conclude that appellant failed to produce more than a scintilla of evidence that Global contractually assigned the right to control the means, methods, or details of its work, particularly the implementation of fall-protection systems, to the Denhams.

Actual Control

Appellant contends that even if the Den-hams did not contractually retain the right of control over the operative details of Global’s work, they actually exercised such control. Specifically, appellant argues, among other things, that (1) the Denhams were present at the job site all day, every day, that construction was under progress, (2) the Denhams had the overall responsibility for the planning, quality, and completion of the project, (3) the Denhams determined the subcontractors’ schedules and had the right to require that they meet all contract specifications, (4) the Denhams held weekly safety meetings at the job site, which all subcontractors and their employees were required to attend, (5) the Denhams made an effort to ensure that the subcontractors performed their work safely, and (6) the Denhams retained the right to cause a subcontractor to stop performing work that the Denhams thought was unsafe.

However, every premises owner must have some latitude to tell its independent contractors what to do, in general terms, without being subject to liability. Koch Ref. Co., 11 S.W.3d at 156. The Denhams are not subject to liability merely because they were present at the job site, exercised general supervisory authority over the scheduling and results of the subcontractors’ work, and made an effort to ensure that the subcontractors performed their work safely. See id. In addition, although there is evidence that the Denhams held mandatory weekly safety meetings, appellant offers no evidence that during these meetings, the Denhams instructed Global or its employees regarding the installation of decking material or the use of fall-protection systems. Cf. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex.2001) (holding that the general contractor retained control when it directed an employee to ensure that the subcontractor properly utilized fall-protection equipment and when it expressly approved of fall-protection systems used by the subcontractor).

Further, while the Denhams retained the right to stop performance of work they considered unsafe, this does not mean they retained the right to control the means, methods, or details of Global’s work. In Koch Refining Co., the Texas Supreme Court held that a duty of care does not arise merely from

a general right to order the work stopped or resumed, to inspect its progress or receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to the methods of his work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

11 S.W.3d at 155 (quoting Restatement (Second) of Tokts § 414 cmt. c (1965)).

Moreover, appellant has not shown that the Denhams exercised control over the actual activity that resulted in his injury. See Lawrence, 988 S.W.2d at 226. That is, appellant presents no evidence that the Denhams controlled the manner in which Global hoisted and landed the decking material on the building. See Koch Ref. Co., 11 S.W.3d at 156 (holding that the independent contractor’s employee did not present any evidence that the premises owner instructed the employee in lifting a pipe, which led to the employee’s injury). More specifically, appellant presents no evidence that the Denhams controlled Global’s use of fall-protection systems, including the use of safety cables. See Harrison, 70 S.W.3d at 782.

Here, there is no evidence that the Den-hams approved of Global’s use of specific fall-protection measures or made an effort to ensure that Global properly used its fall-protection equipment. Therefore, we conclude that appellant failed to present more than a scintilla of evidence that the Den-hams controlled the means, methods, or details of Global’s work such that a duty of care arose to ensure that Global’s employees performed their work in a safe manner.

2. Negligence Per Se

Next, appellant contends that regardless of whether the Denhams retained or actually exercised control over the pertinent aspects of Global’s work, Occupational Safety and Health Administration (OSHA) regulations impose a nondelegable duty on the Denhams to provide for safety at the work site and a violation of the regulations constitutes a breach of the duty. Appellant cites 29 C.F.R. § 1926.16(a) (2000), which provides,

The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually. Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first-aid or toilet facilities, thus relieving the subcontractors from the actual, but not any legal, responsibility (or, as the case may be, relieving the other subcontractors from this responsibility). In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract.

Id. Further, appellant cites a directive issued by OSHA regarding its multi employer citation policy, which provides that an employer who has general supervisory authority over the worksite, including the power to correct safety and health violations or require others to correct them, must exercise reasonable care to prevent and detect violations on the site. OSHA, U.S. Dep’t of LaboR, DiRective Number CPL 2-0.124 (Dec. 10,1999).

But according to section 653(b)(4) of the OSHA statute,

Nothing in this chapter shall be construed ... to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment.

29 U.S.C.A. § 653(b)(4) (West 1999).

Additionally, the Fifth Circuit Court of Appeals has held that regulations promulgated under the OSHA statute neither create an implied cause of action nor establish negligence per se. Melerine v. Avondale Shipyards, Inc., 659 F.2d 706, 707 (5th Cir.1981). Moreover, Texas courts have held that the common law duties imposed by state law are not expanded by OSHA regulations. See e.g., Richard v. Cornerstone Constrs., Inc., 921 S.W.2d 465, 468 (Tex.App.Houston [1st Dist.] 1996, writ denied) (op. on reh’g).

Furthermore, the case cited by appellant does not support his argument that OSHA regulations imposed a nondelegable duty of care on the Denhams to provide for safety at the worksite. In Lawson-Avila Construction., Inc. v. Stoutamire, the San Antonio Court of Appeals held that a general contractor owed a duty of care to an independent contractor’s employees because of the right of control the general contractor retained over the manner in which the independent contractor performed its work. 791 S.W.2d 584, 591 (Tex.App.San Antonio 1990, writ denied). The court did not base its analysis on OSHA regulations but on common law principles as outlined by the Texas Supreme Court. Id. at 588-89; see Redinger v. Living, 689 S.W.2d 415, 417-18 (Tex.1985).

Our review of the summary judgment record shows that appellant failed to produce more than a scintilla of evidence that the Denhams controlled the manner, methods, or operative details of Global’s work. In particular, appellant did not show that the Denhams retained or exercised control over whether fall-protection systems were put into place. See Lawrence, 988 S.W.2d at 226. Therefore, appellant failed to establish that the Denhams owed him a duty of care to ensure that he and Global safely performed their work. Because there is no evidence the Denhams owed appellant any duty, the trial court did not err in granting the Denhams’ summary judgment on appellant’s negligence, negligence per se, and gross negligence claims. We overrule appellant’s first issue, subparagraph (A) (Count I).

C. Count II Negligent Hiring, Retention, and Supervision Claims

Appellant argues that summary-judgment on his negligent hiring claim is also improper because the evidence raises a fact issue regarding whether the Den-hams owed him a duty of reasonable care in the hiring, retention, and supervision of Global and whether they breached that duty. This issue is a question of law: whether appellant, as an employee of an independent contractor, can bring a negligent hiring claim against the person who hired the contractor?

An employer who hires an independent contractor may be held responsible for his acts if the employer “knew or should have known that the contractor was incompetent and a third person is injured because of such incompetency.” Tex. Am. Bank v. Boggess, 673 S.W.2d 398, 400 (Tex.App.Fort Worth 1984, writ dism’d by agr.). In other words, an employer has a duty to use ordinary care in employing an independent contractor. Ross v. Tex. One P’ship, 796 S.W.2d 206, 216 (Tex.App.Dallas 1990), writ denied, 806 S.W.2d 222 (Tex.1991). Courts have held that an employee of an independent contractor, however, cannot be considered a third party to whom such a duty is owed. See e.g., Hagins v. E-Z Mart Stores, Inc., 128 S.W.3d 383, 393 (Tex.App.Texarkana 2004, no pet.); Rogers v. Pro-Tec Installations, Inc., No. 05-96-00049-CV, 1997 WL 412090, at *9 (Tex.App.Dallas July 24, 1997, no writ) (not designated for publication).

Although appellant cites two cases for the proposition that an employee of an independent contractor can assert a negligent hiring claim against the person who retained the independent contractor, both cases are distinguishable. In Wasson v. Stracener, Wasson was hired as a welder’s helper for Vernon Freeman, whom Stacener had hired as a welder. 786 S.W.2d 414, 415 (Tex.App.Texarkana 1990, writ denied). According to custom, a welder usually selects his own helper. Id. However, Stracener paid Wasson’s wages and carried workers’ compensation insurance for Wasson. Id.

Wasson sued Stracener after he was injured in a car accident while riding with Freeman. Id. at 415-16. Stracener filed a motion for summary judgment, contending that Wasson’s suit was banned by the Workers’ Compensation Act (WCA), under which an employee of a subscriber waives his right to recover damages for injuries incurred in the course and scope of employment. Id. at 417-19; see also Act of March 28, 1917, 35th Leg., R.S., ch. 103, § 3a, 1917 Tex. Gen. Laws 269, 270-71, repealed 1989 (current version at Tex. Lab. Code Ann. § 46.034(a) (Vernon 1996)) (version of Worker’s Compensation Act in effect when Wasson decided). Thus, Stra-cener contended that, at the time of the accident, Wasson was an employee of Stra-cener acting within the course and scope of employment for Stracener rather than an employee of Freeman, the independent contractor. Wasson, 786 S.W.2d at 416-17. The trial court granted Stracener’s motion. Id. at 416.

The Texarkana Court of Appeals held that the summary judgment proof did not show Wasson was acting in the course and scope of his employment at the time of his injury; thus his negligence claim against Stracener was not barred by the WCA. Id. at 419. The court then held that summary judgment was not proper regarding Was-son’s negligence claim against Stracener because a fact issue existed as to whether Freeman was an independent contractor or an employee acting within the scope of employment. Id, at 420-21. The court further held that even if Freeman were found to be an independent contractor rather than an employee, which would bar Wassson’s negligence claim, he could still bring a negligent hiring claim against Stracener. Id. at 422. The court reversed the trial court’s grant of summary judgment in favor of Stracener. Id.

Thus, the issue in Wasson was not whether Wasson, as an employee of Freeman, could recover for negligent hiring from Stracener. The issue was whether Wasson was acting within the course and scope of his employment for Stracener, the general contractor. The court in that case determined that the summary judgment proof showed that Wasson was not acting as anyone’s employee at the time of the accident. In this case, however, there is no dispute that appellant was Global’s employee acting in the course and scope of his employment for Global at the time of his injury. Therefore, Wasson is not applicable to this case.

In Pollard v. Missouri Pacific Railroad Co., Pollard sued Missouri Pacific Railroad Company (MOPAC) after he was injured while he was an employee of Balch, an independent contractor retained by MO-PAC. 759 S.W.2d 670, 670 (Tex.1988) (op. on reh’g). The Texas Supreme Court held that the court of appeals applied the wrong standard in upholding the trial court’s grant of summary judgment in favor of MOPAC. Id. The court held that the evidence showed that MOPAC retained the right of control over Balch’s work, thereby giving rise to a duty of care. Id. In remanding the case to the trial court, the court noted that Pollard had also asserted a negligent hiring claim, which was not controverted by MOPAC’s motion for summary judgment or addressed by the court of appeals. Id.

Thus, Pollard did not directly address the issue of whether an employee of an independent contractor can bring a negligent hiring claim against the person who hires the independent contractor. Rather, the court, after holding that MOPAC’s contractual retention of control over Pollard’s employer gave rise to a duty of care, noted that Pollard’s negligent hiring claim presented another fact issue because the claim had not been addressed by the court of appeals or controverted by MOPAC’s summary judgment motion.

We will join our sister courts in Dallas and Texarkana in holding that appellant, as an employee of an independent contractor, could not bring a negligent hiring claim against the Denhams, the persons who hired the independent contractor. See Hagins, 128 S.W.3d at 393; Rogers, No. 05-96-00049-CV, 1997 WL 412090, at *9. Therefore, the trial court did not err in granting the Denhams’ motion for summary judgment on appellant’s negligent hiring claims. We overrule the remainder of appellant’s first issue, subparagraph (B) (Count II).

Y. Conclusion

Having overruled both of appellant’s issues on appeal, we affirm the trial court’s judgment.

      . The trial court can decide the motion for summary judgment on submission, without an appearance by the attorneys before the court. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex.1998). Regardless, the hearing date determines the time for response to the motion. Id.

      . Because we may consider only evidence that was before the trial court, we will not review the Randall Glenn affidavit in determining the propriety of the summary judgment. See Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex.App.Corpus Christi 1988, no writ); compare with Stephens v. Dolcefino, 126 S.W.3d 120, 126 n. 6 (Tex.App.Houston [1st Dist.] 2003, pet. filed) (op. on reh'g) (holding that even if the supplemental petition were untimely, the court would presume that the trial judge considered it when there is no evidence in the record to the contrary).

      . Because a premises owner owes the same duty as a general contractor to an independent contractor’s employee, cases considering the duties of each are used interchangeably. Id. at 157 n. 1.