author: JAMES T. WORTHEN, Chief Justice.

text:
    Shannon CONKLIN and Texas Department of Public. Safety, Appellants, v. Janice GARRETT, Appellee.
    No. 12-04-00344-CV.
    Court of Appeals of Texas, Tyler.
    Oct. 31, 2005.

      Kamilla Stokes, for appellant.
    Timothy B. Garrigan, Stuckey <& Garri-gan, Nacogdoches, for appellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Shannon Conklin and the Texas Department of Public Safety (“DPS”) (collectively “Appellants”) appeal the trial court’s order denying their motion for summary judgment in favor of Janice Garrett. Appellants raise one issue on appeal. We affirm.

BACKGROUND

On August 16, 2002, at approximately 2:00 p.m., DPS Officer Conklin initiated a traffic stop of a maroon GMC pickup truck on northbound U.S. Highway 59. The DPS videotape showed that Conklin approached the driver of the vehicle, Mike Arthur Jones, asked him for his driver’s license, and requested that he step to the rear of the vehicle. During the ensuing conversation, Jones explained to Conklin that he was traveling from Houston, Texas to Shreveport, Louisiana to visit his mother. After explaining to Jones that he had stopped him for speeding, Conklin, noting to himself that Jones appeared nervous, requested a background check using the radio in his patrol car. While he waited for the background check to be performed, Conklin proceeded to issue Jones a written warning for the speeding offense. Conklin returned to his patrol car, where the dispatch officer reported to him that Jones had twelve prior felony convictions. Conk-lin reemerged from the car, asked Jones if he was carrying any illegal contraband, and requested from Jones permission to search his vehicle. Jones gave Conklin permission to search his vehicle. Conklin then performed a pat-down search on Jones for weapons, during which he confirmed that Jones had his keys in the front pocket of his pants. Conklin, however, did not remove the keys from Jones’s pants pocket.

Conklin proceeded to search Jones’s truck. During his search of the front and rear seating areas, Conklin remarked that he smelled both burnt and green marijuana. Jones shifted about nervously and informed Conklin that he needed to use the restroom. Conklin instructed Jones to remain at the rear of the truck and continued his search. After searching for approximately four minutes, Conklin withdrew from the vehicle with his gun drawn and ordered Jones to lie on the ground. Jones complied, but insisted repeatedly that he had done nothing wrong. Conklin responded that he could smell marijuana in the vehicle. Conklin straddled Jones and attempted to handcuff him. Jones, persisting that he had done nothing wrong, began to raise up, at which point Conklin struck Jones in the back of his head with his fist. Conklin continued in vain his attempt to handcuff Jones, who had, by then, turned over on his back. Conklin backed away and attempted to spray Jones with O.C. spray. Jones raised his hand and blocked the O.C. spray, while continuing his assertions that he had done exactly as Conklin had instructed.

Conklin returned to the passenger compartment of his patrol vehicle to call for backup, leaving Jones unrestrained. While Conklin was in the patrol car, Jones leisurely walked to his vehicle, entered through the front passenger door, and drove off at a high rate of speed. Conklin attempted to stop Jones before he drove away, but could not reach him before the vehicle was underway. As he ran along side the truck, Conklin drew his gun and shot twice at Jones’s front tire as another vehicle was passing Jones in the left lane.

Conklin rushed to the driver’s side of his patrol car, but then ran back around the front of the vehicle to the passenger side to retrieve his clipboard from the hood. Conklin returned to the driver’s seat of the patrol car and began to pursue Jones, who was by this time nowhere in sight. Conk-lin took the next exit off Highway 59 and made a fortuitous right turn on Industrial Boulevard. Jones was still nowhere in sight. Conklin accelerated along Industrial Boulevard but had not regained visual contact with Jones by the time he reached the intersection of Industrial Boulevard and North Street. At the intersection, Conklin shouted to another motorist to roll down his window and asked if he had seen which way the maroon pickup truck had turned. The motorist, who had apparently seen Jones, directed Conklin to the right, which was southbound on North Street.

Conklin accelerated southward on North Street at a high rate of speed. Prior to reaching North Loop 224, Conklin activated the siren on his patrol vehicle. Soon thereafter, Conklin regained visual contact with Jones’s vehicle, which was traveling in the right lane behind another vehicle. As Conklin closed the distance between his vehicle and Jones’s, Jones drove his truck into the left lane and accelerated. Conklin accelerated as well and continued in his pursuit of Jones. Jones disregarded stop lights and intersections, often driving down the center turn lane on North Street at high rates of speed. Conklin continued after Jones, also driving in the center turn lane and even driving briefly in the adjacent northbound lane. By this time, other law enforcement officers began to block many of the cross streets along North Street. However, no other officers joined Conklin in his high speed pursuit of Jones. As the pursuit continued, Jones and Conklin passed in close proximity to more than two hundred other motorists, more than eighty retail businesses, and Stephen F. Austin University. The chase abruptly ended at the intersection of North Street and State Highway 21 when Jones’s vehicle collided with the vehicle being driven by Garrett. Jones was subsequently apprehended after attempting to dispose of a portion of the large quantity of marijuana concealed in his truck.

Garrett sued Appellants under the Texas Tort Claims Act alleging negligence on Conklin’s part. Appellants filed a motion for summary judgment supported solely by Conklin’s affidavit and alleged that Conklin was entitled to official immunity. Garrett filed a response supported by deposition testimony from members of three separate branches of law enforcement as well as Conklin’s counseling record made after the police pursuit at issue. The trial court ultimately denied Appellants’ motion, and this appeal followed.

Official Immunity FOR Police Chase

In their sole issue, Appellants argue that the trial court erred in denying their motion for summary judgment because they presented a prima facie showing of the element of good faith, which they contend Garrett failed to controvert.

Standard of Review

In reviewing a 166a(c) motion for summary judgment, this court must apply the standards established in Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985), which are as follows:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and
8. Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor.

See id. at 548-49. For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c). A movant must either negate at least one essential element of the nonmovant’s cause of action or prove all essential elements of an affirmative defense. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); see also MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 932 (Tex.1952). The only question is whether or not an issue of material fact is presented. See Tex.R. Civ. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-79 (Tex.1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex.R. Civ. P. 166a(c).

Governing Law

A political subdivision of the State is not liable for the acts or conduct of its officers or employees unless its immunity is waived by the Texas Tort Claims Act. See City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex.1994). The Texas Tort Claims Act provides that sovereign immunity is waived when a governmental unit would, were it a private person, be hable to a claimant under Texas law for personal injury caused by a condition or use of tangible personal or real property. See Tex. Civ. Piiac. & Rem.Code Ann. § 101.021(2) (Vernon 2005).

Official immunity is a common-law defense available to governmental officials and employees sued in their individual capacity. Kassen v. Hatley, 887 S.W.2d 4, 8 (Tex.1994). Official immunity only shields a defendant from liability; it does not make a defendant immune from suit. Eastland Cty. Coop. Dispatch v. Poyner, 64 S.W.3d 182, 192 (Tex.App.-Eastland 2001, pet. denied). The elements of the defense of official immunity are as follows:

1. The defendant was a government official or employee;
2. The defendant was sued for performing a discretionary governmental act;
3. The defendant performed the act in good faith;
4. The performance of the act was within the scope of the defendant’s authority; and
5. The defendant was sued in his individual capacity.

See Harless v. Niles, 100 S.W.3d 390, 395-96 (Tex.App.-San Antonio 2002, no pet.).

Courts measure good faith in official immunity cases against a standard of “objective legal reasonableness” without regard to the official’s subjective state of mind. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997). Under this standard, an official acts in good faith if a reasonably prudent official under the same or similar circumstances could have believed that the official action was justified based on the information he possessed when the conduct occurred. Joe v. Two Thirty Nine Jt.V, 145 S.W.3d 150, 164 (Tex.2004). In police pursuit and emergency response cases, the Texas Supreme Court requires a balancing test to determine whether an officer has acted in good faith under the objective legal reasonableness standard. Chambers, 883 S.W.2d at 656. In such cases, the defendant must establish that a reasonably prudent officer under the same or similar circumstances could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public in continuing the pursuit. Id.; see also, e.g., Wadewitz, 951 S.W.2d at 466; University of Houston v. Clark, 38 S.W.3d 578, 582-84 (Tex.2000).

Summary Judgment Evidence

The specific facts related to what occurred during the traffic stop and ensuing high speed pursuit are essentially undisputed because the dashboard camera footage from Conklin’s vehicle was part of the summary judgment record. Thus, we turn our attention to the evidence related to the issue of whether Conklin conducted the pursuit in good faith.

Appellants’ motion for summary judgment was supported solely by Conklin’s affidavit. In his affidavit, in addition to recounting the underlying details of the traffic stop and pursuit of Jones, Conklin stated, in pertinent part, as follows:

Under the circumstances as I then perceived them, I believed, and based upon my education, training and experience, I can state that another reasonably prudent peace officer would also have believed that the suspect was an extremely dangerous individual that posed a significant risk of harm to the public and that he needed to be immediately apprehended. The suspect was a convicted felon, on parole, and was in possession of what I believed to be a quantity of marihuana sufficient to give probable cause for a felony arrest. In addition, the suspect committed the criminal offenses of resisting arrest, assaulting a peace officer and fleeing apprehension. I exercised my discretion in utilizing my firearm in an attempt to disable the right passenger tire of the suspect’s vehicle and thus prevent him from using the vehicle as a means of escape and restricting him to a rural area and preventing him from disposing of the marijuana before he could be apprehended. I was also aware that the suspect could utilize his vehicle as a deadly weapon during his attempt to avoid apprehension. Further, I had not ascertained whether or not the suspect was in possession of deadly weapons inside the vehicle.
I believe, and a reasonably prudent trooper could have believed, that I drove with regard for the safety of all others.
The decision to make the initial traffic stop and the manner in which I conducted the traffic stop, as well as my decision to search the suspect vehicle and arrest the suspect for felony possession of marihuana, were matters within my discretion as a peace officer. Further, the decision to pursue the fleeing felony suspect and the manner in which I pursued the suspect’s vehicle were all matters that required me to utilize my discretion in the course and scope of my employment with the DPS. Further, based upon my education, training and experience, I can state that I acted in “good faith” in the manner in which I conducted the traffic stop, arrest and pursuit. I believed, and another reasonably prudent peace officer could have believed, that it was reasonable to pursue a convicted felon, on parole, that was in possession of a felony quantity of marihuana, had assaulted a peace officer while resisting arrest, was fleeing apprehension and endangering the public in the manner in which he was operating his vehicle. I believed, and another reasonably prudent peace officer could have believed that the need to immediately apprehend the suspect outweighed the risk of harm to the public of the pursuit. The suspect would have had the opportunity to dispose of the marihuana if he was not immediately apprehended. In addition, the suspect[’]s actions at the time I attempted to arrest him indicated that he would pose a serious risk to any other peace officer that came into contact with him and could likewise pose a danger to the public by attempting to carjack a member of the public in his attempt to flee. Further, I had not determined whether or not the suspect had concealed weapons in his vehicle before his escape. In addition, I kept the public safety in mind during all phases of the pursuit. I attempted to drive my own vehicle in a manner that lessened the likelihood of myself being involved in an accident. In addition, I was aware that other peace officers were attempting to close off major intersections along the route of the pursuit in order to protect the public.

In support of her response, Garrett attached a copy of Conklin’s DPS counseling record dated September 4, 2002. Conk-lin’s counseling record states, in pertinent part, as follows:

DEFICIENCIES INDICATING NEED FOR COUNSELING:
1. Trooper Conklin during a pursuit passed several vehicles in the center turn lane. At one point he drove approximately ½ mile in the center turn lane in an area with a high concentration of both vehicular and pedestrian traffic. This was an unneceesary [sic] risk to both him and others. This created an unsafe condition.
District Policy # 16 Pursuit driving should always be governed by common sense. Department Drivers have a duty to drive with due regard for the safety of all persons.
2. Trooper Conklin discharged his weapon in an effort to disable the vehicle of a fleeing suspect. Trooper Conklin did this at a time when it was unsafe for passing motorists. There was a civilian vehicle on the other side of the suspect vehicle that could have been struck by a stray round.

Garrett’s response was further supported by the deposition testimony of David Adams, a constable in Nacogdoches County. Constable Adams testified that he was also traveling northbound on North Street at the time of the Jones pursuit. Adams further testified that he did not “proceed to go 90 miles an hour as well” because it was “useless for [him] to go that fast ... considering the amount of traffic on the road” and that it would have been “dangerous also.” Adams further testified that North Street is the “main drag” in Nacogdoches and that traffic was “medium to heavy” at the time of the Jones pursuit.

Further still, Garrett’s response was supported by the deposition testimony of Sheriff Thomas Kerss. Kerss also confirmed that North Street is the main north/south street in Nacogdoches. Kerss testified that driving down the road at ninety miles per hour is not a particularly safe thing to do. Kerss farther testified that the sheriffs office’s policy with regard to high speed chases is that each pursuit has to be governed by the officer’s common sense and good judgment given the circumstances. Kerss agreed that traveling at ninety miles per hour in a heavily-traveled pedestrian area posed a high risk of danger to the public and stated that, based on the circumstances in the instant case as they were represented to him, Conklin probably should have disengaged or, at least, backed off on his speed and tried to use his radio to call in assistance to keep track of the suspect vehicle. Kerss elaborated,

[D]ue to the heavily populated area that [Conklin] was going into, the time of the day, that [the pursuit] was occurring, the likelihood ... for a negative encounter in putting our general public at risk is [going to be] somewhat increased, and 90 miles an hour is a tremendous speed to be traveling down that heavily populated area.
I can’t think of anywhere in Nacogdo-ches that has as many cross intersections .... [and][o]f course, you’ve got all those kids.

Kerss further stated that he would not have authorized any of his officers to participate in the pursuit at that time. However, Kerss testified that he would have permitted their participation had the pursuit continued back into the countryside, at which point he would have authorized his officers to get in front of Jones’s vehicle to deploy spike strips or to block traffic at upcoming intersections.

Garrett’s response was also supported by the deposition testimony of Nacogdo-ches Police Chief William Lujan. Lujan testified that chasing a suspect through downtown running through stop lights creates a dangerous situation because it could lead to innocent loss of life. Lujan further testified that he was not aware that any of his officers, at the time in question, were proceeding southbound on North Street at a high rate of speed with their sirens and beacon lights engaged. Lujan also stated that he was not aware of any facts that would make it legitimate for his officers to have been traveling at a high rate of speed headed southbound on North Street.

Risk of Harm to the Public in Continuing Pursuit versus the Need to Apprehend Immediately

On appeal, Appellants argue that Garrett, in order to defeat Conklin’s assertions of good faith, was required to provide evidence that no reasonable person in Conklin’s position, given the facts of the case, would have continued the pursuit. See Clark, 38 S.W.3d at 581 Moreover, Appellants argue that Garrett’s summary judgment evidence fails to address the “need” prong of the balancing test. However, Garrett responds that Appellants failed to demonstrate that they were entitled to judgment as a matter of law because Conklin, in his affidavit, failed to demonstrate that the necessity to apprehend immediately was weighed against the risk to the public. Because Appellants had the burden to prove that they were entitled to judgment as a matter of law, see Tex.R. Civ. P. 166a(c), we will first address Garrett’s assertion that Appellants failed to meet their burden with regard to the “good faith” element.

A conclusory statement that a reasonable officer could or could not have taken some action will neither establish good faith on summary judgment nor raise a fact issue to defeat summary judgment. Clark, 38 S.W.3d at 581 (citing Wadewitz, 951 S.W.2d at 467). Instead, testimony on good faith must discuss what a reasonable officer could have believed under the circumstances and must be substantiated with facts showing that the officer assessed both the need to apprehend the suspect and the risk of harm to the public. Id.

The risk element of good faith refers to “the countervailing public safety concerns,” or “the nature and severity of harm that the officer’s actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the officer from reaching the scene of the emergency), the likelihood that any harm would occur, and whether any risk of harm would be clear to a reasonably prudent officer.” Id.

Here, while Conklin’s affidavit offers some discussion as to what facts show that he assessed the need to apprehend Jones immediately and the risks Jones posed to the public, there is no discussion of facts showing that he assessed the risk of harm to the public in his continuing his pursuit of Jones. Conklin states, “I kept the public safety in mind during all phases of the pursuit. I attempted to drive my own vehicle in a manner that lessened the likelihood of myself being involved in an accident.” This general reference to his mindfulness of public safety and his statement that he drove to lessen the likelihood that he himself would be involved in an accident does not meet the requirement under the rule espoused in Wadewitz and Clark. Such blanket statements must be substantiated with facts showing that the officer assessed both the need to apprehend the suspect and the risk of harm to the public. Id. We conclude that Appellants failed to demonstrate that they were entitled to judgment as a matter of law. Thus, we hold that the trial court did not err in denying their motion for summary judgment. Appellants’ sole issue is overruled.

Disposition

Having overruled Appellants’ sole issue, we affirm the trial court’s order denying Appellants’ motion for summary judgment.

      . See Tex. Civ. Peac. & Rem.Code Ann. § 51.014(a)(5) (Vernon Supp.2005).

      . In his affidavit, Conklin states that he discovered the marijuana prior to his attempt to initially apprehend Jones outside the vehicle.

      . North Street is also known, as Business 59 and runs through a relatively heavily-traveled section of Nacogdoches, Texas. The record reflects that it is the main north/south artery through Nacogdoches.

      . In his affidavit, Conklin states that his beacon lights were activated to make the initial stop and remained on during the entire chase.

      . There are references in the record to speeds of approximately ninety miles per hour. We find no specific evidence of record that Conk-lin reached the speed of ninety miles per hour. All that is apparent from Conklin's testimony and the video evidence is that the pursuit was conducted at a very high rate of speed, which varied throughout the pursuit.

      . Highway 21 is also known as Main Street.

      . The record reflects that Conklin was not made aware that Jones was on parole at the time he initiated the pursuit.

      . The summary judgment record does not indicate whether Jones was ultimately convicted for any of these offenses.

      . The record reflects that Conklin performed a pat-down search of Jones as well as a search of both the front and rear seating compartment of his truck, but did not discover any weapons during these searches.

      . It was represented to Kerss that the officer had fired shots at a suspect who was trying to "get the hell out of Dodge” and had caught up with the suspect by the time he got to WalMart, on North Street.


source: Caselaw Access Project

author: STEVE McKEITHEN, Chief Justice.

license: Public Domain

text:
    Richard MARTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 09-05-104 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 29, 2005.
    Decided Nov. 2, 2005.
    Discretionary Review Granted March 1, 2006.
    Bill Burnett, Coldspring, for appellant.
    Mark E. Price,Crim. Dist. Atty., Brian M. Bartko, Asst. Crim. Dist. Atty., Coldspring, for state.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

A jury convicted Richard Martin of the felony offense of Driving While Intoxicated (“DWI”) with an alleged offense date of April 18, 2003. See Tex. Pen.Code Ann. §§ 49.04(a), 49.09(b)(2) (Vernon 2003 and Supp.2005). Alleged along with the primary offense were two previous DWI convictions by Martin: one conviction in October of 1996, out of Harris County, Texas, and the other in July of 2000, also out of Harris County, Texas. These prior convictions enhanced Martin’s potential punishment to that of a third degree felony. See Tex. Pen.Code Ann. § 49.09(b)(2), (c)(1)(A) (Vernon Supp.2005). The jury assessed Martin’s punishment at confinement in the Texas Department of Criminal Justice — Correctional Institutions Division for a term of three years, but assessed no fine. The jury also recommended that the imposition of Martin’s confinement be suspended and that Martin be placed on community supervision. Punishment was so assessed by the trial court with the court suspending imposition of confinement for a period of three years, and adding the additional statutorily mandated 10-day confinement in the county-jail facility. See Tex.Code CRim. Proc. Ann. art. 42.12, § 13(a)(1) (Vernon Supp.2005).

Martin presents us with two appellate issues, viz:

1. The trial court committed error by failing to properly charge the jury at guilt/innocence on the applicable law in violation of Tex.Code Crim. Proc. Ann., art. 36.14 (Vernon 2001) as the jury charge failed to charge the jury that any person who is intoxicated while driving or operating a motor vehicle in a public place, and who has previously been convicted two times or more of being intoxicated while operating or driving a motor vehicle in a public place shall be guilty of a felony.
2. The trial court committed error by failing to apply the law to the facts in the jury charge at the guilt/innocence phase of trial in violation of Tex.Code Crim. Proc. Ann., art. 36.14 (Vernon 2001), regarding the necessity to find Appellant guilty of the two prior driving while intoxicated convictions in order to convict him of felony driving while intoxicated.

The record reflects that on the morning of trial, Martin entered into a stipulation of evidence admitting to his convictions in the two prior DWI offenses out of Harris County as alleged in the indictment. By this stipulation to the prior convictions, appellant apparently intended to eliminate the State’s need to offer any evidence to meet the jurisdictional requirement. The law on the issue, however, is to the contrary, as was recognized by the trial court. See Tamez v. State, 11 S.W.3d 198, 201-03 (Tex.Crim.App.2000) (when prior convictions used to elevate misdemeanor to felony, said convictions must be pleaded in indictment for trial court to gain jurisdiction; jurisdiction vests when State’s pleadings containing the requisite number of prior convictions are submitted to trial court). At any rate, Martin’s stipulation was not introduced into evidence during the guilt/innocence phase of the trial nor was the jury informed of its existence. The jury was, however, made aware of the two prior convictions at the time of the State’s reading of the indictment at the start of the- trial. See Tex.Code CRIM. PROC. Ann. art. 36.01(a)(1) (Vernon Supp. 2005). The trial court’s written instructions to the jury made no mention of Martin’s stipulation nor did the instructions incorporate the two prior convictions into either the abstract definition portion or the application paragraph. The verdict form does indicate that the jury found Martin “guilty of the felony offense of driving while intoxicated as charged in the indictment.”

Since Martin submits one argument and one set of authorities for both appellate issues, we will address both issues together. At the outset, we note that the crux of Martin’s complaint is jury-charge error, not lack of legally sufficient evidence to sustain his conviction. Martin correctly acknowledges the recent case, Bryant v. State, No. PD-672-04, 2005 WL 765840, at *3-4, — S.W.3d-,-(Tex.Crim.App. April 6, 2005), which held that Bryant was barred from raising legal insufficiency of evidence that he committed felony DWI when the State tendered no evidence of the two prior jurisdictional DWI’s to the jury. In essence, the Court’s holding in Bryant was not that the stipulation in itself provided legally sufficient evidence of the two prior DWI’s, but that, because Bryant formally stipulated to his two previous DWI convictions, he was absolutely precluded from raising an insufficient evidence issue on appeal as to the facts stipulated. Id. at *4, — S.W.3d at -. As such, the Court of Criminal Appeals found it to be “inappropriate” to reach the merits of whether legally sufficient evidence existed to sustain Bryant’s felony DWI conviction. Id. Bryant, therefore, bars Martin from raising an issue on legal insufficiency to sustain his conviction.

In Bryant, jury-charge error was neither raised nor mentioned. Martin’s issues, on the other hand, do focus on the alleged deficiencies in the trial court’s written jury instructions. Martin contends the instructions “improperly stated the law regarding the proof required to convict for felony driving while intoxicated,” and that the application paragraph failed to require the jury “to find that Appellant had previously been convicted of two prior DWI offenses in order to find him guilty of the felony offense of driving while intoxicated.” Martin also correctly recognizes that if error is found in the written instructions to the jury, any harm must be “egregious” for the error to be reversible as Martin failed to make an objection to the instructions on the same basis he is now raising on appeal. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g). The State is incorrect in urging that Bryant “is directly on point to the instant case[,]” and is also incorrect in contending that the deficiencies Martin raises regarding the jury instructions were the result of Martin’s own requested omissions. The record indicates that following a number of requested grounds for directed verdict of acquittal, Martin then raised two objections to the proposed jury instructions, neither of which involved the stipulation or the prior convictions. Therefore, as any alleged jury-charge error was not procured by Martin, he is not subject to the procedural default consequences discussed in Prystash v. State, 8 S.W.3d 522, 532 (Tex.Crim.App.1999).

In Bryant, the Court likened Bryant’s stipulation of his two prior DWI convictions to “a kind of judicial admission,” which is distinguishable from an evidentia-ry admission. Bryant, 2005 WL 765840, at *2, — S.W.3d at-. Relying on recognized treatises on the law of evidence, the Court then clarified this distinction, noting that “judicial admissions” are not evidence at all, but, when present in the form of either concessions in pleadings or stipulations by a party or counsel, have the effect of withdrawing a fact from issue and dispensing wholly with the need for proof of the fact. Id. Indeed, citing to Wigmore, the Bryant Court recognized that a party’s stipulation to the truth of some alleged fact has the effect of a “confessory pleading,” in that the fact is thereafter to be taken for granted, removing from the opposing party the burden of producing evidence to prove it, and barring the stipulating party from attempting to disprove it. Id. at *3, — S.W.3d at-. Thus, when Martin’s stipulation was executed and accepted by the State and the trial court, the burden to produce evidence of Martin’s two previous DWI convictions was removed. For all practical matters, the State’s burden of production was reduced to that of simply proving the elements of the underlying April 18, 2003, DWI.

Code of Criminal Procedure articles 36.14, “Charge of Court,” and 36.19, “Review of Charge on Appeal,” govern submission of jury instructions and determination of “error” in the charge. See Tex. Code CRim. PROC. Ann. art. 36.14 (Vernon Supp.2005); Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 1981); Huizar v. State, 12 S.W.3d 479, 483 (Tex.Crim.App.2000). Article 36.14 provides in part that the trial court shall include in the jury charge “the law applicable to the case.” See art. 36.14. In the instant case, because of Martin’s pretrial stipulation to his two prior Harris County DWI convictions, the fact of these prior convictions was withdrawn from any issue in the case and wholly dispensed with the need for proof of those convictions by the State to the jury. See Bryant, 2005 WL 765840, at *2, — S.W.3d at-. As such, Martin’s prior convictions were no longer “the law applicable to the case” for purposes of complying with articles 36.14 and 36.19. It was therefore unnecessary for the trial court to include in the jury’s instructions any issue regarding the stipulated prior convictions. See Huizar, 12 S.W.3d at 483; see also Hammock v. State, 46 S.W.3d 889, 895 (Tex.Crim.App.2001) (because the evidence in question was admitted to the jury for all purposes, a limit-mg instruction on the evidence was not “law applicable to the case,” and the trial court was not required to include a limiting instruction in the charge to the jury). We, therefore, find no error in the trial court’s written instructions to the jury. Martin’s appellate issues are overruled and the trial court’s judgment is affirmed.

AFFIRMED.


text:
    CARLSON MANUFACTURING, INC., Appellant, v. Charles Shane SMITH, Appellee.
    No. 09-05-170 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 1, 2005.
    Decided Nov. 3, 2005.

      Nathan M. Brandimarte, Jonathan G. Brush, Orgain, Bell & Tucker, LLP, Beaumont, for appellant.

      Edward D. Fisher, Provost Umphrey Law Firm, LLP, Beaumont, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

This is an interlocutory appeal from the denial of a special appearance. See Tex. Civ. PRAc. & Rem.Code Ann. § 51.014(a)(7) (Vernon Supp.2005). Allegedly injured in a fall when the seat broke on his tree-mounted deer stand, Charles Shane Smith filed a products liability action against a number of defendants alleged to have placed the deer stand into the stream of commerce. Buckfinder Hunting Products, Inc. (“Buckfinder”) submitted to the jurisdiction of the trial court, but Carlson Manufacturing, Inc. (“Carlson”) filed a special appearance. See Tex.R. Civ. P. 120a. Smith contended Carlson is subject to personal jurisdiction in Texas courts because Buckfinder conducted business in Texas and the two corporations maintain a single business enterprise. Smith also argued to the trial court that Buckfinder is an alter ego of Carlson. On appeal, we must resolve whether the trial court erred: (1) in imputing another corporation’s contacts to the appellant; and (2) by denying a special appearance filed by a corporation that conducts no business in Texas and did not manufacture, market, or sell the product at issue in the litigation. We find the evidence does not support the imputation of Buckfinder’s activities in the forum state to Carlson; therefore, we reverse the trial court’s order and render judgment dismissing the claims against the appellant.

A Texas court may exercise personal jurisdiction over a nonresident defendant to the extent authorized by state and federal due process standards and the long-arm statute. Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). Our long-arm statute allows Texas courts to exercise jurisdiction over foreign defendants who are “doing business” within the state. See Tex. Civ. Peac. & Rem.Code Ann. § 17.042 (Vernon 1997). Due process requires that the nonresident defendant have purposefully established minimum contacts with Texas, and the exercise of personal jurisdiction over the nonresident defendant must not violate traditional notions of fair play and substantial justice. Guardian Royal, 815 S.W.2d at 230-31. Purposely established minimum contacts may support the exercise of specific jurisdiction (where the defendant’s liability arises from an activity conducted in Texas) or general jurisdiction (where the nonresident maintains continuous and systematic contacts with the forum state). BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795-96 (Tex.2002).

An analysis of specific jurisdiction focuses on the relationship between the defendant, the forum, and the litigation, and requires a substantial connection between the plaintiffs cause of action and the transaction the defendant purposefully consummated in the state. Guardian Royal, 815 S.W.2d at 228, 230. The more demanding general jurisdiction analysis “requires a showing of substantial activities in the forum state.” Id. at 228. The defendant must intentionally avail itself of the privilege of conducting activities within the forum state. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The defendant’s activities may consist of direct acts within Texas or conduct outside the state, but must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). A defendant cannot “be haled into a Texas court for the unilateral acts of a third party.” American Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex.2002), cert. denied, 537 U.S. 1191, 123 S.Ct. 1271, 154 L.Ed.2d 1025 (2003). Attenuated contacts will not justify the exercise of long-arm jurisdiction. Id.

Upon filing its special appearance, Carlson assumed the burden to negate all bases of personal jurisdiction alleged by the plaintiff. See id.; Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). An affidavit from Carlson chief executive officer Warren Carlson states that Carlson is a Minnesota corporation that is not registered to do business in Texas, maintains no office in Texas, and neither commits any acts within the state nor consummates any transactions here. Carlson operates a machine shop in Minnesota and has never manufactured, distributed or sold tree stands used by hunters, including the stand used by Smith. Conceding that it is possible that a Carlson employee might on occasion machine a part that would be incorporated into products sold and marketed by Buck-finder, Warren Carlson stated that he had personally examined the stand involved in this case and “did not identify any part of the chair that was made, in whole or in part,” by Carlson. According to Warren Carlson, “[t]he tree stand and its associated parts were not manufactured or sold” by the appellant, and the product “was not designed, manufactured, marketed, assembled, distributed, sold, installed, supplied or maintained” by Carlson. Carlson received no consideration from the purchase of the stand by Smith or by co-defendant Precision Archery. Thus,- Carlson contends, its independent contacts with Texas do not support the exercise of either specific or general jurisdiction.

Smith does not contest the lack of direct contacts between Carlson and Texas, and relies solely on Buckfinder’s contacts with Texas in this transaction to establish in personam jurisdiction over Carlson. Other than the product at issue in this case, there is no evidence of any activity by Buckfinder that is connected to the State of Texas. Smith contends Carlson and Buckfinder operate a single business enterprise. Before the trial court, he also claimed Buckfinder is the alter ego of Carlson.

According to Warren Carlson, Carlson owns no shares of Buckfinder or Buckfin-der Industrial Development, Inc. (“Buck-finder Industrial”), two separate and distinct corporations chartered by the State of Minnesota. Warren Carlson is the president of all three corporations. Carlson was incorporated many years before the 1999 incorporation of Buckfinder and Buckfinder Industrial and their resources are not integrated with one another. Buckfinder and Buckfinder Industrial operate as separate corporations capitalized as required by Minnesota law, and file separate tax returns from Carlson. The appellant has separate bank accounts. Carlson maintains separate payroll employees from Buckfinder, as well as separate accounting records and records of meetings of its shareholders and board of directors. Subsequent to the filing of the suit, no funds have been transferred to or paid to Carlson by Buckfinder.

To controvert Warren Carlson’s affidavit, Smith relies on excerpts from Warren Carlson’s deposition. That deposition testimony established that Buckfinder leases office space in Minnesota from Carlson but maintains its own employee and a separate shipping and receiving department, that Buckfinder owes Carlson rent but has paid neither rent nor utilities, and that Warren Carlson does not have a personal office within Buckfinder’s leased space but has an office in Carlson’s building. Warren Carlson admitted Carlson occasionally made loans to Buckfinder that were documented but were never paid off. He also admitted that Buckfinder used Carlson’s “fixturing” to manufacture a part used in Buckfinder’s deer stands. Smith argues this evidence is sufficient for the trial court to find that the corporations operate a single business enterprise, and contends that the operation of a single business enterprise will support the exercise of jurisdiction in this case.

In BMC Software, the court considered the application of the alter ego doctrine in the context of long-arm jurisdiction. “To ‘fuse’ the' parent company and its subsidiary for jurisdictional, purposes, the plaintiffs must prove the parent controls the internal business operations and affairs of the subsidiary.” BMC Software, 83 S.W.3d at 799. “But the degree of control the parent exercises must be greater than that normally associated with common ownership and directorship; the evidence must show that the two entities cease to be separate so that the corporate fiction should be disregarded to prevent fraud or injustice.” Id. Because Texas law presumes that two separate corporations are distinct entities, the courts will not disregard the separate legal identities of corporations unless that relationship is used to defeat public convenience, to justify wrongs such as violation of the antitrust laws, to protect fraud, or to defend crime. Id. at 798. In BMC Software, the court found no evidence to support the trial court’s alter ego finding, where the corporations not only shared officers, but also incorporated the other corporation’s financial performance in SEC filings, offered a stock option plan to the subsidiary’s employees, and had the same letterhead. Id. at 799-800. The trial court could not infer control from testimony that the parent company from time to time had employees in the offices of a variety of its subsidiaries. Id. at 800.

Buckfinder is not a subsidiary of Carlson, and there is no evidence that Carlson controls Buckfinder’s operations. Although the appellee presented some evidence that Buckfinder has a parasitic existence upon Carlson, there is no evidence that their arrangement is illegal or that the companies failed to observe corporate formalities. We conclude the trial court could not apply an alter ego theory to assume jurisdiction over Carlson based upon Buckfinder’s acts in the State of Texas.

On appeal, Smith primarily relies upon the trial court’s implied finding that Carlson and Buckfinder comprise a single business entity. Although the Supreme Court has thus far reserved ruling on the issue, several intermediate appellate courts, this Court included, have recognized a concept of “single business enterprise” in one context or another. Southern Union Co. v. City of Edinburg, 129 S.W.3d 74, 85-90 (Tex.2003); National Plan Adm’rs, Inc. v. National Health Ins. Co., 150 S.W.3d 718, 744 (TexApp.-Austin 2004, pet. filed) (recognizing doctrine as a valid equitable means of piercing the corporate veil to impose liability); Bridgestone Corp. v. Lopez, 131 S.W.3d 670, 686-87 (TexApp.-Corpus Christi 2004, pet. granted, judgm’t vacated w.r.m.) (finding exercise of jurisdiction comported with due process where two corporations operated as a single business enterprise); El Puerto de Liverpool, S.A. de C.V. v. Servi Mundo Llantero, S.A. de C.V., 82 S.W.3d 622, 636-37 (Tex.App.-Corpus Christi 2002, pet. dism’d w.o.j.) (affirming denial of special appearance where companies shared common employees, used a centralized accounting system, and performed services for each other); North Am. Van Lines, Inc. v. Emmons, 50 S.W.3d 103, 119-21 (Tex.App.-Beaumont 2001, pet. denied) (recognizing equitable doctrine may apply under exceptional circumstances.). But see SSP Partners v. Gladstrong Invs. (USA) Corp., 169 S.W.3d 27, 44 (Tex.App.Corpus Christi 2005, pet. filed)(declining to extend the doctrine to a party’s vicarious liability for the wrongful acts of a non-party). Factors to be considered in determining whether separate corporations should be treated as one enterprise include: (1) common employees; (2) common offices; (3) centralized accounting; (4) payment of wages by one corporation to another corporation’s employees; (5) common business name; (6) services rendered by the employees of one corporation on behalf of another corporation; (7) undocumented transfers of funds between corporations; and (8) unclear allocation of profits and losses between corporations. Paramount Petroleum Corp. v. Taylor Rental Ctr., 712 S.W.2d 534, 536 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.). Buckfinder maintained its offices in Carlson’s building, but there is no evidence of common employees, centralized accounting, payment of wages, use of a common business name, using the services of the other corporation’s employees, undocumented transfers of funds, or allocation of profit and loss. As we have already noted, however, Buckfinder did owe rent to Carlson that it did not pay, and Buckfinder did use Carlson’s equipment to manufacture its products. However, the purpose of the single business enterprise theory, like the alter ego theory and other doctrines designed to pierce the corporate veil, is to prevent an inequitable result. See Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex.1986). Among the reasons recognized in the past for disregarding the corporate fiction are: (1) when it is used as a means of perpetrating fraud; (2) where a corporation is organized and operated as a mere tool or business conduit of another corporation; (3) where it is used to evade an existing legal obligation; (4) where it is employed to achieve or perpetrate a monopoly; (5) where it is used to circumvent a statute; and (6) where the corporate fiction is relied upon as a protection of crime or to justify wrong. Id. at 272. None of these factors is present here. The appellee argues that Buckfin-der is a mere tool or conduit of Carlson, but there is no evidence that any of the benefits of Buckfinder conducting business in the State of Texas — or anywhere — inured to Carlson.

Because this case involves a special appearance where the defendant must purposefully avail itself of the benefits of the forum state and constitutional principles of fair play and substantial justice are at issue, our review must focus upon the defendant’s actions and expectations. While the corporations may have conducted business that would benefit their common president, the interactions between the corporations do not provide a basis for disregarding their separate nature. It is not reasonable for Carlson to expect to be called into a Texas court to defend a product liability suit on one of Buckfinder’s products.

We conclude Carlson Manufacturing, Inc. did not purposefully establish sufficient minimum contacts with Texas to support exercising jurisdiction over it. Therefore, the trial court erred in denying the special appearance. The appellant’s issues are sustained. We reverse the trial court’s order and render judgment dismissing the claims of Charles Shane Smith against Carlson Manufacturing, Inc.

REVERSED AND RENDERED.

      . The plaintiff’s claims against, Buckfinder were severed from this suit after Buckfinder Hunting Products, Inc. and Buckfinder Industrial Development, Inc., filed for bankruptcy protection. References in this opinion to "Carlson” are to the appellant, a corporation, and not to Warren Carlson, a non-party witness.

      . Castleberry has been largely superceded by subsequent statutory amendments. See Tex Bus. Org.Code Ann. § 21.223 (Vernon Supp. 2005) (effective January 1, 2006).

      . Our ruling is limited to the issue of in personam jurisdiction over the appellant. We express no opinion on any liability issues in this case.


author: DAVID PURYEAR, Justice.

text:
    CITY OF SAN ANGELO FIRE DEPARTMENT and Kelly Hood, Appellants, v. Sheila HUDSON, Appellee.
    No. 03-04-00179-CV.
    Court of Appeals of Texas, Austin.
    Nov. 3, 2005.

      Linda L. Sjogren, Asst. Atty. Gen., San Angelo, for appellants.
    Heather Clement Tessmer, Law Office of Heather Clement Tessmer, San Angelo, for appellee.
    Before Justices KIDD, PATTERSON and PURYEAR.
   OPINION

DAVID PURYEAR, Justice.

Appellants City of San Angelo Fire Department and Kelly Hood are defending a lawsuit brought by Sheila Hudson alleging personal injury and property damage caused by the operation or use of a motor vehicle by a governmental entity or employee under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (West 2005). Appellants assert that, because the City and Hood enjoyed sovereign immunity and official immunity, the trial court erred in denying their motions for summary judgment. We will reverse the order of the trial court and render judgment dismissing Hudson’s claims.

BACKGROUND

On August 20, 2002, Hood, a City of San Angelo fire fighter, drove a pumper truck in response to a dispatch report of a strong odor of something burning in a daycare facility with occupants still inside the building. Because he was only a few blocks from the daycare facility and because the other two dispatched engines were coming from a greater distance, Hood- anticipated being the first pumper truck on the scene and being responsible for evaluating the scene, evacuating the occupants, and making the initial attack on the fire. Hood contends he proceeded south in the outside lane of Abe Street below the speed limit of 35 miles per hour, with emergency lights and sirens activated and blowing the air horn. He avers that he slowed as he approached the intersection of Abe and Beauregard, looked both ways, observed traffic stopped in all directions, and, believing all east and west traffic was yielding, entered the intersection against the light at around 10 miles per hour.

Hudson entered the intersection at a speed of 25 miles per hour after observing that her light was green. In the intersection, the pumper truck collided with Hudson’s vehicle, which then spun around and collided with another vehicle, causing damage to the front and side panels of Hudson’s, vehicle and to the left and front of the pumper truck’s bumper. While the firefighters from Hood’s vehicle administered first aid to Hudson, other fire trucks proceeded to the scene of the reported fire.

DISCUSSION

Appellants moved for summary judgment, but the district denied appellants’ motion. Interlocutory orders, like the order denying summary judgment in this case, typically are not immediately appealable. Gross v. Innes, 988 S.W.2d 727, 729 (Tex.1998). But section 51.014(a) of the civil practice and remedies code allows for interlocutory appeals in certain cases. Tex. Civ. Prac. & Rem.Code § 51.014(a) (West 1997 & Supp.2004-05); Gross; 988 S.W.2d at 729. Specifically, section 51.014(a)(5) provides for interlocutory appeal from an order that denies a motion for summary judgment that is based on an assertion of immunity by a-governmental actor. Tex. Civ. Prac. & Rem.Code § 51.014(a)(5). In their motion for summary judgment, appellants asserted that the claims against Hood were barred because Hood had official immunity-

When reviewing the denial of a summary judgment, we apply the same standard used in reviewing the grant of a summary judgment. El Paso County v. Ontiveros, 86 S.W.3d 711, 714-15 (Tex.App.-El Paso 2001, no pet.). In a traditional summary judgment motion, the movant has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336, 344 (Tex.2005). We take as true evidence favorable to the non-movant and resolve all doubts in its favor. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex.1996); Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). The movant is entitled to summary judgment if the evidence disproves, as a matter of law, at least one element of each of the plaintiffs causes of action or conclusively establishes each element of an affirmative defense. Friendswood, 926 S.W.2d at 282. To establish an affirmative defense, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996).

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive and direct, otherwise credible and free from contradiction, and could have been readily controverted. Tex.R. Civ. P. 166a(c). If the defendant establishes a right to summary judgment, the burden shifts to the plaintiff to present evidence raising a material fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

On appeal, appellants raise four issues. However, because we find issues two and three dispositive of the appeal, we do not reach appellants’ first and fourth issues. In their second issue, appellants assert that the district court should have granted the City’s traditional motion for summary judgment. Appellants contend they conclusively proved that Hood did not violate any applicable law, and, therefore, the City’s immunity from suit was not waived. In their third issue, appellants argue that the trial court erred in denying Hood’s traditional motion for summary judgment based on official immunity because he conclusively established that he acted in good faith in the performance of discretionary duties within the scope of his employment.

Sovereign Immunity not Waived

In their second issue, appellants assert the City’s sovereign immunity was not waived. A governmental unit is immune from suit and liability unless the state consents. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). Governmental immunity from suit defeats a court’s subject-matter jurisdiction. Id. Whether a trial court has subject-matter jurisdiction is a question of law we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

“In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity.” Whitley, 104 S.W.3d at 542 (emphasis added). The Tort Claims. Act waives sovereign immunity for damage and injury caused by the wrongful act or omission or negligence of an employee operating or using a motor vehicle within the scope of his employment. Tex. Civ. Prac. & Rem.Code Ann. § 101.021. This waiver does not apply where the claim arises from the action of an employee responding to an emergency call in compliance with applicable laws and ordinances. Id. § 101.055(2).

The underlying policy of the emergency response exception is to balance the safety of the public with the need for prompt response from emergency personnel. City of Amarillo v. Martin, 971 S.W.2d 426, 429 (Tex.1998). Imposing liability for a mere failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks. Id. at 430 (quoting Saarinen v. Kerr, 84 N.Y.2d 494, 620 N.Y.S.2d 297, 644 N.E.2d 988, 992 (1994)). This would also allow for judicial second guessing of the split-second and time-pressured decisions emergency personnel are forced to make. See id. (quoting Saarinen, 620 N.Y.S.2d 297, 644 N.E.2d at 992).

The legislature has placed a higher burden upon civilian drivers than upon emergency-vehicle drivers; this burden is justified because emergency-vehicle operators face more exigent circumstances than civilian drivers and because civilian drivers have the advantage of being able to prevent collisions with emergency vehicles due to the emergency vehicles use of sirens and lights and due to the conspicuous coloring of emergency vehicles. Id. at 431-32. Emergency responders are entitled to presume other drivers will respect emergency priorities. Id. at 432. '

To establish the affirmative defense under section 101.055(2) for the purposes of summary judgment, appellants must prove Hood was responding to an emergency call and acted in compliance with the laws applicable to the emergency situation. See Durham v. Bowie County, 135 S.W.3d 294, 298 (Tex.App.-Texarkana 2004, pet. denied); see also City of Galveston v. Whitman, 919 S.W.2d 929, 931 (Tex.App.-Houston [14th Dist.] 1996, writ denied) (section 101.055(2) requires government to demonstrate compliance with laws and ordinances to prevent waiver of immunity).

The transportation code provides that, in operating an authorized emergency vehicle, a state employee may proceed past a red light after slowing as necessary for safe operation if that operator is responding to but not returning from a fire alarm. Tex. Transp. Code Ann. §§ 546.001, .002 (West 1999 & Supp.2004-05). Moreover, the operator must use, at his discretion and in compliance with local government or department policy, appropriate audible or visual signals. Id. § 546.003 (West 1999). The transportation code does not relieve emergency-vehicle operators from the duty to exercise appropriate regard for the safety of all persons or from the consequences of reckless disregard for others’ safety. Id. § 546.005 (West 1999). The action of an emergency-vehicle operator constitutes a reckless disregard for the safety of others when the operator knows or should have known that the action in question posed a high risk of serious injury to others. Smith v. Jando, 126 S.W.3d 543, 545 (Tex.App.-San Antonio 2003, no pet.).

Similarly, the San Angelo Code of Ordinances permits a driver of an authorized emergency vehicle responding to an emergency call or responding to but not returning from a fire alarm to proceed past a red light or stop signal if the driver uses audible signals while in motion as may be reasonably necessary and if the vehicle is equipped with at least one red lighted lamp normally visible from 500 feet, but “only after slowing down as may be necessary for safe operations.” San Angelo, Tex., 1959 Code of Ordinances, Sec. 10-3-2 § 10.102(g)(2)(B), (3) (1959). The San Angelo code does not relieve the driver from the duty to drive with due regard for the safety of all persons or protect the driver from the consequences of his reckless disregard for the safety of others. Id. § 10.102(g)(4).

The uncontroverted evidence establishes that Hood was responding to an emergency call, and, therefore, appellants have satisfied the first requirement for the claimed affirmative defense. We now turn to whether appellants have conclusively established that Hood’s response complied with the applicable laws and ordinances.

In his affidavit, Hood stated that he was driving below the speed limit, that he significantly slowed as he was reaching the intersection, that he looked in both directions and observed that traffic had yielded to him before going through the intersection, and that his speed when going through the intersection, was, at maximum, ten miles per hour. Further, Hood stated that, because the traffic had yielded to him, he concluded it was best to move slowly through the intersection rather than coming to a complete stop because he would lose precious time as the truck takes a great deal of time to accelerate after stopping completely. Hood also stated in a deposition that he had his foot on the brake when proceeding through the intersection and applied his brake harder when he observed Hudson’s car heading towards the intersection.

In addition, Hood stated that the siren and lights were activated and that another firefighter was sounding the air horn as the truck approached the intersection. Although Hudson asserts she did not see or hear the truck, witnesses and the police report indicate that the lights, sirens, and air horn were used. One driver stated in an affidavit that, after hearing the fire truck, he stopped prior to entering the intersection and observed that traffic had stopped to yield to the fire truck. The witness also stated that the fire truck did not appear to be speeding.

We hold that appellants have conclusively demonstrated that Hood complied with the applicable statutes and ordinances as a matter of law. See Smith 126 S.W.3d at 545-46 (holding ambulance driver not reckless as matter of law under emergency response exception after demonstrating that he responded to emergency situation, that he activated ambulance’s lights and siren, that he slowed when approaching intersection and observed drivers yielding to ambulance, and that he proceeded through intersection without coming to complete stop). Accordingly, the burden shifts to Hudson to raise a genuine issue of material fact regarding Hood’s compliance with the applicable statutes and ordinances. See id.

Although admitting in her deposition that she did not know whether the fire truck slowed because she did not see it, Hudson points to two witness affidavits as proof that Hood failed to follow applicable laws and ordinances and that he acted in conscious indifference or reckless disregard for the safety of others. Hudson also alleges that the damage to her vehicle and to the fire truck suggest Hood was speeding when he entered the intersection.

The affidavit of John David Brunson, a witness to the accident, indicates that the fire truck “entered the intersection from the outside lane without stopping” and that “I [Brunson] did not hear the fire truck put on its brakes.” The affidavit of April Harrington, another witness, stated that three other emergency vehicles had gone through the intersection five minutes before Hood drove through the intersection so “I [Harrington] don’t understand why this fire truck had to rush[,]” that “the fire truck slammed into the red car full force,” and that “the fire truck did not use its brakes at all when entering the intersection.”

Neither affidavit raises a fact issue that Hood did not slow as necessary before proceeding through an intersection with a red light or acted with reckless disregard for the safety of others. Brunson’s observations — that Hood “entered the intersection ... without stopping” and that Brun-son “did not hear” brakes being applied— are not evidence of reckless disregard for the safety of others, nor are they evidence Hood did not slow as necessary for safe operation. That an automobile enters an intersection without stopping could be as true of an automobile traveling at one mile per hour as one traveling at sixty miles per hour. Merely stating the truck entered the intersection without stopping is not evidence of recklessness or conscious indifference without an indication of other observations describing the circumstances or conditions that made the action reckless or consciously indifferent. Similarly, the fact that Brunson did not hear the truck brake does not address whether the driver slowed as necessary or acted with reckless disregard for the safety of others. That one does not “hear” brakes does not establish that slowing did not occur prior to Hood entering the intersection.

Harrington’s conclusory observation that the large pumper truck “slammed” into Hudson’s car “full force” does not provide evidence raising a fact issue about Hood’s regard for the safety of others or whether he slowed as necessary. The statement does not describe the conditions under which the collision occurred and does not describe the speed of either vehicle. Similarly, Harrington’s statement that she did not understand why the fire truck needed to rush because she had seen other emergency vehicles pass through the intersection does not indicate whether Hood slowed as necessary or acted with disregard for the safety of others. Hood was responding to an emergency, believed his vehicle would be the first to arrive due to its proximity to the emergency, and was unaware that other emergency vehicles had responded to the situation. Hood demonstrated that, under the circumstances as he understood them to be, there was a need to proceed through the intersection without stopping.

Finally, given the apparent substantial difference in weight between the truck and Hudson’s car, Hudson’s evidence of damage to the fire truck and to her car, without more, is not enough to overcome the evidence Hood offered to prove he complied with the applicable statutes and ordinances. There is no evidence or expert testimony estimating the speed of the vehicles prior to the collision based on the amount of damage each vehicle sustained.

The summary judgment evidence conclusively establishes that Hudson’s claim arises from Hood’s response to an emergency call and that Hood’s action was in compliance with the laws and ordinances applicable to the emergency action. See Tex. Civ. Prac. & Rem.Code Ann. § 101.055(2). Consequently, the waiver of sovereign immunity does not apply. Accordingly, we sustain appellants’ second issue and will reverse the summary judgment and render judgment dismissing Hudson’s suit against the City for lack of subject-matter jurisdiction.

Official Immunity

Appellants argue in their third issue that the trial court erred in denying Hood’s motion for summary judgment based upon official immunity, claiming that he produced competent summary judgment evidence establishing that he acted in good faith in the performance of his discretionary duties 'within the scope of his authority and that Hudson failed to establish that no reasonable person in Hood’s position could have thought that the facts justified his action. Hudson responds that Hood is not entitled to official immunity because he was not performing discretionary duties and because he was not acting in good faith.

Official immunity is an affirmative defense that shields public employees from personal liability in a suit arising from an employee’s good faith performance of discretionary duties performed within the scope of his authority. See University of Houston v. Clark, 38 S.W.3d 578, 580 (Tex.2000); Wadewitz v. Montgomery, 951 S.W.2d 464, 465-66 (Tex.1997); City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994). As Hudson does not argue that Hood was not acting within the scope of his authority, we now determine whether Hood was performing discretionary duties in good faith.

Discretionary Duties

Hood argues that he conclusively proved he was performing a discretionary act in responding to the report of the fire. Actions that involve personal deliberation, decision, and judgment are discretionary; actions that require obedience to orders or the performance of a duty to which the actor had no choice are ministerial. Chambers, 883 S.W.2d at 654; see also Eakle v. Texas Dep’t of Human Servs., 815 S.W.2d 869, 873 (Tex.App.-Austin 1991, writ denied) (discretion means “power to chose among alternatives within legal bounds”). Chambers held that police officers engaging in a high-speed chase was a discretionary act because they had to elect whether to undertake pursuit, choose a route, choose speed and following distance, and decide whether to call for backup. Chambers, 883 S.W.2d at 655. The Fourteenth District Court of Appeals has held that “operation of an emergency vehicle in an emergency situation is a discretionary duty.” City of Houston v. Flaniken, 108 S.W.3d 555, 557 (Tex.App.-Houston [14th Dist.] 2003, no writ). Flaniken cited another Houston case, Rivas v. City of Houston, 17 S.W.3d 23, 29 (Tex.App.-Houston [14th Dist.] 2000, writ denied), which held that a paramedic’s or emergency medical technician’s decisions concerning how to transport a person to a medical facility is discretionary despite arguments that the driver was merely driving when the accident occurred and was required to use lights and a siren. Id.

Here, Hudson argues that Hood was not performing a discretionary function in responding to the call because he did not choose whether to respond to the call, because lights and sirens were mandatory, and because he knew the quickest way to the scene and was therefore the lead vehicle. Although we recognize that driving a fire truck in an emergency situation presents different challenges than engaging in high-speed pursuit or transporting a combative patient to medical care, we do not believe that the distinction is dispositive on the issue of whether Hood could have been performing discretionary acts in this case. Rather, we must determine whether Hood’s actions involved personal deliberation, decision, and judgment. Chambers, 883 S.W.2d at 654.

Hood presented uncontroverted evidence that he was responding to an emergency call and that he believed he would be the first pumper truck to arrive. Hood averred that he led the other fire truck because he knew the location and potential route best and that he determined the best and quickest route. Hood’s affidavit indicated that he decided to travel well below the speed limit, although he did not have a duty to do so, after having evaluated the traffic concentration and chosen to drive in the westernmost lane in order to best reach the scene of the fire. Hood gave his reasons for deciding to proceed through the red light and for the speed at which he chose to enter the intersection and outlined his decisionmaking process: “I determined that the extremely urgent need to get to the scene as quickly as possible, significantly outweighed the risk that another vehicle would not hear or see the emergency signals or see that all other traffic was stopped.” He stated that he believed most other emergency vehicle operators would have made the same decision. Hood’s expert, Fire Chief AJexander Rodriguez, agreed in his affidavit that Hood’s perceptions and beliefs were reasonable and that he appropriately weighed his alternatives and balanced needs and risks.

The evidence demonstrates that Hood’s actions involved personal deliberation, decisions, and judgment. The affidavits evaluate a string of choices and the wisdom of Hood’s judgments, not whether he was correctly performing a ministerial duty about which he had no choice. See Chambers, 883 S.W.2d at 654. Hudson did not offer evidence that Hood was merely performing a ministerial duty. We therefore hold that Hood conclusively proved he was performing a discretionary function at the time of the accident.

Good Faith

Hood argues that he also conclusively proved that he acted in good faith for purposes of establishing official immunity. A city employee acts in good faith if a reasonably prudent employee could have believed that his acts were justified. Chambers, 883 S.W.2d at 656. To prevail on the good faith element of official immunity, the government must show how a reasonably prudent employee, based on the employee’s perception of the facts at the time of the event, could have assessed the need to which the employee responds and the risks of the actions taken and believed that the need outweighed the risk involved. See Wadewitz, 951 S.W.2d at 467; Chambers, 883 S.W.2d at 656. Expert testimony regarding good faith will support summary judgment only if it is not conclusory; it is clear, positive, direct, otherwise credible, and free from contradictions and inconsistencies; and it could have been readily controverted. Wadewitz, 951 S.W.2d at 466. It must address whether a reasonably prudent employee could have believed under the circumstances that the need outweighed the risk of the actions taken and must substantiate its conclusions with reference to the need and risk involved. See id. at 467 (citing Chambers, 883 S.W.2d at 656-57).

The “need” prong of this test refers to the urgency of the circumstances. Id. Hood avers that, because he reasonably anticipated being the first truck on the scene and because his information from dispatch was that a structure fire occurred at a women’s and children’s home or daycare facility and that an unknown number of children and adults were still in the building, he believed it was extremely urgent that he reach the scene as quickly as possible and that his immediate presence was necessary to prevent injury or death. Hood repeated these concerns about the level of need in discussing his decision-making process regarding entering the intersection against the light without stopping and opined that most other emergency vehicle drivers would agree that the urgent need to arrive and evacuate children from a fire at a day care center outweighed the risk involved. Hood’s expert, Rodriguez, agreed. Rodriguez reviewed the information Hood had at the time, including the lack of information on how many children needed to be evacuated and Hood’s position as lead vehicle, and opined that Hood “properly and reasonably assessed the urgent need to immediately reach a reported structure fire where children were present in order to prevent injury or loss of life, [and] that he weighed the alternatives available, whether to stop ... and lose ... time in re-accelerating or ... proceed through the intersection.” Hudson cites evidence that Hood could have missed her car had he arrived a few seconds later and that another fire truck and two ambulances were already at the scene to show that the need was not great. However, she does not contradict Hood’s and Rodriguez’s affidavits indicating that a reasonable officer or employee could have believed the need was compelling under the circumstances.

The “risk” prong of the good faith test refers to any countervailing public safety concerns such as the nature and severity of the harm that could occur, including injuries to bystanders or an accident preventing him from reaching the emergency and whether any risk of harm would be clear to a reasonably prudent employee. Id. In Wadewitz, the summary judgment evidence was insufficient to establish good faith because it failed to address the degree, likelihood, and obviousness of the risks Wadewitz created. Id. Hudson argues that in this case Hood’s expert makes only conclusory statements and fails to assess the degree, likelihood, or obviousness of the risks Hood’s actions created.

We disagree with Hudson’s assertions. Hood’s affidavit lists and analyzes the actual risks he considered and weighed against the perceived need. These included awareness that the light remained red as he approached the intersection; that there was congested traffic along his route; that a vehicle might not yield or might not note the emergency lights, siren, and air horn; and that a collision might prevent him from timely reaching the scene. His affidavit shows that he considered the risks, looked for traffic that might pose a danger, and weighed the risks and need before proceeding through the light. Rodriguez’s affidavit discusses the circumstances as Hood perceived them and concludes that Hood believed that the risk was minimal because he had seen traffic stopped in all directions and because he had slowed to further reduce the risk of serious injury. Given these factors involving the likelihood and severity of the risk, Rodriguez goes on to opine that Hood balanced the need against the risk and to explain the basis for this opinion: “because he observed and perceived that traffic had stopped in both directions and further because he felt his low speed would minimize the risk” and severity of a collision. Because Hood and his expert took both sides of the Chambers good faith balancing test into account, we hold that the requisite basis existed for concluding that a reasonable fire truck driver in Hood’s position could have believed that his actions were justified. See Hale v. Pena, 991 S.W.2d 942, 946 (Tex.App.-Fort Worth 1999, no pet.) (affidavits must take both need and risk factors into account in order to show basis for concluding officer acted in good faith).

Hudson argues that the unreasonableness of Hood’s actions is demonstrated by Hood’s admission that he knew there were risks because the intersection was busy, that there is a constant concern that drivers might not hear or see his lights and sirens, and that traffic could not have been stopped as Hood believed because he, in fact, collided with Hudson’s car as it proceeded through the intersection. We do not agree that the evaluation of risks in Hood’s affidavit indicates that his action was necessarily unreasonable or that Hood’s inaccurate perception necessarily renders it unreasonable for him to have believed that all traffic was stopped based upon his knowledge at the time. If this were so, any admission that a risk existed would defeat the element of good faith, and any collision would be adequate evidence that a reasonable employee would have assessed the risk differently, thereby, vitiating the doctrine of official immunity in most or all cases. Official immunity is designed to encourage emergency personnel to take reasonably calculated risks when they have properly considered need and risk, not to punish them for having done so.

Given the evidence of need and risk, we hold that appellants have established that a reasonably prudent employee under the same or similar circumstances would have believed that proceeding through the intersection despite the red light was justified and that Hood acted in good faith. Wo- dewitz, 951 S.W.2d at 467; Chambers, 883 S.W.2d at 656-57; see Hale, 991 S.W.2d at 946 (summary judgment evidence must establish that reasonably prudent officer would have taken same act to prove good faith). Having held that appellants conclusively established that Hood was performing discretionary acts in good faith within the scope of his employment, we hold that he was entitled to summary judgment on the affirmative defense of official immunity. See Clark, 38 S.W.3d at 580 (describing affirmative defense); Friendswood Dev. Co., 926 S.W.2d at 282 (entitlement to summary judgment).

Accordingly, we reverse the order of the district court denying summary judgment to Hood on the affirmative defense of official immunity and render judgment granting Hood’s motion.

CONCLUSION

Having determined that sovereign immunity shields the City of San Angelo from suit, we dismiss Hudson’s claims against it for want of jurisdiction. Having determined that official immunity shields Hood from Hudson’s claims against him, we reverse the order of the district court and render judgment granting summary judgment in his favor.

Justice KIDD Not Participating.

      . We will refer to the appellants collectively as "appellants” or individually as "the City” or "Hood.”

      . Hudson's affidavit also asserts that she was following another car into the intersection.

      . In their first issue, appellants argue that the trial court erred in denying City's no-evidence motion for summary judgment. They contend that, because Hudson did not produce more than a scintilla of evidence to establish the vital fact that Hood violated an applicable state or local emergency response law or acted with conscious indifference or reckless disregard, the City’s immunity from suit was not waived and that the court, therefore, did not have subject-matter jurisdiction. In their final issue, appellants assert that the City’s plea to the jurisdiction regarding Hudson’s claim of failure to train or improper training should be granted because the claim does not arise from the operation of a motor vehicle or from the use of tangible or personal property and, therefore, the City’s sovereign immunity was not waived.

      . Section 101.055 also states that sovereign immunity is not waived if, in the absence of laws or ordinances governing emergency action, the action is not taken with conscious indifference or reckless disregard for the safety of others. Tex. Civ. Prac. & Rem.Code Ann. § 101.055(2) (West 2005). Because in this case the City of San Angelo Code of Ordinances and the Texas Transportation Code both govern the operation of emergency vehicles in situations like the one present in this case, the conscious indifference or reckless disregard provision of the civil practice and remedies code does not apply. See id.

      . Hudson also argues that the affidavits indicate that she did not stop or alter her lane of travel as she entered the intersection. This evidence, which may show that Hudson did not realize Hood was entering the intersection against the light, is irrelevant to our determination of whether there is a fact issue regarding whether Hood slowed as necessary for safe operation before proceeding through a red light.

      . Appellants request that we reverse the trial court’s order declining to strike that portion of Harrington’s affidavit containing the statement that the fire truck did not brake at all because it was conclusory and did not provide any underlying facts to support the question. See Tex.R. Civ. P. 166a(f) (to be competent summary judgment evidence, affidavits must be made on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that affiant is competent to testify to matters stated therein). Because the affidavit does not indicate how Harrington made the assessment that the fire truck did not use its brakes at all when entering the intersection, we agree that the conclu-sory statement is not competent summary judgment evidence and strike it. See Ryland

        Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984).

      . Our sister court would end the inquiry upon deciding that the governmental entity enjoyed sovereign immunity. Smith v. Janda, 126 S.W.3d 543, 546 (Tex.App.-San Antonio 2003, no pet.) In making this determination, the court in Janda cited to former section 101.106 of the civil practice and remedies code, which applies to this case because it was filed in 2002. Id.; see also Harris County v. Sykes, 136 S.W.3d 635, 640 n. 3 (Tex.2004) (101.106 amended in 2003 and amended version applies to actions filed after September 1, 2003). Former section 101.106 provided:
      A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.
      Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3305 (amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 11.03, sec. 101.106, 2003 Tex. Gen. Laws 885, 886).
      The supreme court has construed former section 101.106 as barring a claim against an employee of a governmental unit when judgment is rendered regarding the employer, regardless of whether the judgment was for or against the employer. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.1997); Newman v. Obersteller, 960 S.W.2d 621, 622 (Tex.1997). However, because this issue was not raised on appeal or in the appellants' summary judgment motion, we will address both sovereign immunity and official immunity as raised in the parties' briefs. Cf. Bossley, 968 S.W.2d at 343; Newman, 960 S.W.2d at 622 (in both cases, immunity from suit under section 101.106 raised in summary judgment).

      . Although two other engines were dispatched to the scene, Rodriguez opined that it was reasonable for Hood to believe he would arrive first because the other two were coming from a fire station farther away than Hood’s.

      . Hudson’s theory appears to be that, had Hood come to a complete stop, he would have entered the intersection a few seconds later and necessarily missed her car.

      . In fact, Hood indicated in his affidavit that he was able to prevent worse harm because his low speed enabled him to brake quickly upon seeing Hudson enter the intersection and that he believed he had almost come to a stop by the time he struck her car.

      . Hudson argues that, because of similarities in facts such as the type of accident, positioning and damages to the vehicles, and perceptions of the officer, the fact that the officer in Hale was not entitled to summary judgment on official immunity makes summary judgment similarly inappropriate in this case. See Hale v. Pena, 991 S.W.2d 942, 945-46 (Tex.App.-Fort Worth 1999, no pet.). Although Hale was factually similar, the opinion makes it clear that the Hale defendant was not entitled to summary judgment because the affidavits offered to show good faith did not analyze risk as required by Chambers. See id. at 946. Unlike Hood, "Officer Hale had no knowledge of the underlying facts about the emergency alarm, the seriousness of the crime, or whether his immediate presence was necessary, even though it was a 'priority one’ dispatch.” Id.


author: BARAJAS, Chief Justice.

text:
    WALGREEN, CO., d/b/a Walgreens, an Illinois Corporation, Appellant, v. Cynthia REZA, Appellee.
    No. 08-05-00313-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 3, 2005.
    Karen L. Landinger, Ray, Valdez, McChristian & Jeans, P.C., El Paso, for Appellant.
    James K. Read, El Paso, for Appellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

BARAJAS, Chief Justice.

Pending before the Court is a joint motion to dismiss this appeal pursuant to Tex. R. App. P. 42.1(a)(2). Texas Rule of Appellate Procedure 42.1(a)(2) states:

(a) On Motion or By Agreement. The appellate court may dispose of an appeal as follows:
(2) By Agreement. In accordance with an agreement signed by the parties or their attorneys and filed with the clerk, the court may:
(A) render judgment effectuating the parties’ agreements;
(B) set aside the trial court’s judgment without regard to the merits and remand the case to the trial court for rendition of judgment in accordance, with the agreements; or
(C) abate the appeal and permit proceedings in the trial court to effectuate the agreement.

Tex. R. App. P. 42.1(a)(2).

The motion does not specify what subsection of Rule 42.1(a)(2) they wish this Court to follow. Thus, based on the substance of the motion, we dismiss the appeal pursuant to Rule 42.1(a)(2)(A). The parties have complied with the requirements of Rule 42.1(a)(2)(A). Attached to the motion is a copy of the Settlement Agreement and Release in Full of All Claims signed by the Appellee, as well as an Order of Dismissal signed by the trial court dismissing this case with prejudice. The Court has considered this cause on the joint motion and concludes the motion should be granted and the appeal should be dismissed. We therefore dismiss the appeal.