author: PAUL W. GREEN, Justice.

text:
    Misael RODRIGUEZ and Sandra Rodriguez Blandon, Appellants, v. Daniel J.T. SCIANO and Tinsman & Houser, Inc., Appellees.
    No. 04-99-00137-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 23, 2000.
    Anita J. Anderson, Law Offices of Anita J. Anderson, San Antonio, for appellant.

      George H. Spencer, Jr., Clemens & Spencer, P.C., San Antonio, for appellee.
    Sitting: TOM RICKHOFF, Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by:

PAUL W. GREEN, Justice.

This is a legal malpractice case arising out of an underlying personal injury claim. Appellants, Misael Rodriguez and Sandra Rodriguez Blandón, appeal the grant of summary judgment in favor of their former attorneys, appellees, Daniel Sciano and Tinsman & Houser, Inc. Rodriguez and Blandón challenge the trial court’s determination that (1) there is no evidence of negligence or negligent entrustment against the defendants in the underlying personal injury claim, (2) the “business use” exclusion negated certain liability insurance potentially applicable to the underlying personal injury claim, and (3) there is no evidence of a potentially collectible judgment in the underlying personal injury claim. We affirm the trial court’s judgment.

Background

Appellants Rodriguez and Blandón, and their ten year-old son, were among six passengers in a Dodge Caravan involved in a one-car accident while returning to San Antonio from a business trip to Las Vegas, Nevada. The Dodge Caravan was rented from Advantage Rental Car by Barbara Rhodes. Rodriguez and Blandón, Barbara and Reginald Rhodes, and Steve Wilson intended to share expenses for the trip. At the time of the accident, Steve jVilson was driving. Wilson testified the accident occurred shortly after daybreak when the morning sun obscured his vision, causing him to run off the road. He could not rule out the possibility that he had dozed momentarily.

Rodriguez and Blandón hired Daniel Sciano and Tinsman & Houser, Inc. to bring claims against Barbara Rhodes, the Estate of Reginald Rhodes, and Steve Wilson, as well as claims against any other responsible party. Sciano and Tinsman & Houser made demands for applicable insurance coverage on Advantage Rental Car, USAA (the Rhodes’ carrier), and Wilson’s carrier. Wilson’s insurance coverage had lapsed; Advantage denied any coverage; and USAA denied all coverages, except medical pay benefits. Although Sci-ano and Tinsman & Houser filed suit on behalf of Rodriguez and Blandón against Steve Wilson, they failed to file suit against Barbara Rhodes and the Estate of Reginald Rhodes within the applicable statute of limitations.

Standard of Review

We review a summary judgment de novo. To prevail on summary judgment, the movant must show there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548-49 (Tex.1985). We review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Weiss v: Mechanical Associated Services, Inc., 989 S.W.2d 120, 124 (Tex.App.-San Antonio 1999, pet. denied). When a defendant moves for summary judgment, it must negate at least one element of the plaintiffs cause of action or conclusively establish an affirmative defense. See Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975).

In a standard summary judgment under Tex.R. Civ. P. 166a, once the movant has established a right to summary judgment, the burden shifts to the non-movant to present issues which preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 430 (Tex.App.—San Antonio 1993, writ denied). On the other hand, Tex.R. Civ. P. 166a(i) invokes a no-evidence standard. Weiss, 989 S.W.2d at 123. When a party moves for summary judgment alleging the nonmov-ant lacks evidence to carry its burden of proof, the nonmovant must produce some evidence raising a genuine issue of material fact. Tex.R. Civ. P. 166a(i); Weiss, 989 S.W.2d at 123. The non-movant need not “marshal its proof;” rather it “need only point out evidence that raises a fact issue on the challenged elements.” Tex.R. Civ. P. 166a(i) cmt.; Weiss, 989 S.W.2d at 123.

A no-evidence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant’s claim on which the non-movant would have the burden of proof at trial. See Tex.R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998). Here, the trial court granted summary judgment on all grounds presented in the motion; therefore, we may affirm on any ground presented in the motion which negates an element of the claim. See State Farm, Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993) (permitting summary judgment to be affirmed if any theory is meritorious).

Legal Malpractice

In order to prevail on a legal malpractice claim which arises from the alleged mishandling of an underlying claim or litigation, the plaintiff has the burden to show that “but for” the attorney’s negligence, he or she would be entitled to judgment, and show what amount would have been collectible had the judgment been recovered. See Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex.App.-San Antonio 1998, pet denied), quoting Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex.1989). This “suit within a suit” requirement is necessarily a component of the plaintiffs burden on cause in fact. Ballesteros, 985 S.W.2d at 489. In this case, Rodriguez and Blandón must show that “but for” the negligence of Sciano and Tinsman & Houser, they would have been able to obtain a collectible judgment against Barbara and Reginald Rhodes.

Negligence and Negligent Entrustment

In their first issue, Rodriguez and Blan-dón argue the trial court erred in determining there was no evidence of negligence against Barbara and Reginald Rhodes for persuading the group to return to San Antonio immediately after the business meeting and seminar rather than staying overnight to leave Monday morning. In issue two, Rodriguez and Blandón claim the trial court erred in finding no evidence of negligent entrustment against Reginald Rhodes for entrusting the vehicle to Steve Wilson.

The record establishes that the business meeting and seminar concluded about mid-afternoon on Sunday. The following Monday was a Memorial Day holiday. Rodriguez and Blandón suggested the group stay over and leave the following morning. Barbara and Reginald Rhodes wanted to leave immediately. Testimony is conflicting as to what preference Steve Wilson voiced, but the group decided to leave and Steve Wilson volunteered to be the first driver. They stopped for fried chicken about 4:00 p.m. before leaving Las Vegas and Wilson drove about an hour before requesting that someone relieve him. Rodriguez and Reginald Rhodes then took turns driving. Sometime after midnight early Monday morning, Wilson took over from Rhodes. Wilson testified he felt “Fine ... No fatigue at all.” He also testified he had been able to sleep at least a few hours during the night, although he was not certain how much.

Rodriguez and Blandón claim it was negligent for Barbara and Reginald Rhodes to insist on leaving Sunday afternoon rather than Monday morning. Wilson, Rodriguez and Reginald Rhodes had driven in shifts straight through from San Antonio to Las Vegas and intended to do the same on the return trip. In the past, each driver stopped to eat or take a break when he felt the need, and each driver asked for someone to take over when he felt too tired. There is no evidence any of the drivers said they were too tired to begin the return trip.

Wilson testified he had stayed up late the night before and may have had some beer to drink. Wilson stated he felt fine when he got up in the morning. He was somewhat tired after driving for an hour and asked someone to take over for him. Given these facts, there was no reason for Barbara or Reginald Rhodes to anticipate that Wilson would have driven if he felt too tired. Even Rodriguez testified he did not feel he was placing his family in danger by beginning the trip home on Sunday evening. There is no evidence that Barbara or Reginald Rhodes were negligent in persuading the others to begin' the return trip to San Antonio on Sunday afternoon.

In a negligent entrustment action, the claimant must show (1) entrustment of the vehicle by its owner or custodian, (2) to an incompetent driver, (3) that the owner knew or should have known was unlicensed, incompetent or reckless, (4) that the driver was negligent on the occasion in question, and (5) the driver’s negligence proximately caused the accident. Williams v. Steves Indus., Inc., 699 S.W.2d 570, 571 (Tex.1985); Monroe v. Grider, 884 S.W.2d 811, 815 (Tex.App.-Dallas 1994, writ denied). Knowledge of the driver’s incompetency at the time of the entrustment is an essential element to establish negligence. See Monroe, 884 S.W.2d at 815, citing Briseno v. Martin, 561, 794, 796 n. 1 (Tex.1977).

Only Reginald Rhodes and Steve Wilson have knowledge of Wilson’s condition at the time Wilson began driving in the predawn hours of Monday morning. Reginald Rhodes is dead. We must presume he exercised ordinary care for his own safety. Boaz v. White’s Auto Stores, 141 Tex. 366, 172 S.W.2d 481, 483 (1943); Cudworth v. South Texas Paisano Const. Co., 705 S.W.2d 315, 317 (Tex.App.-San Antonio 1986, writ refd n.r.e.). The record must contain some evidence to overcome this presumption. Cavnar v. Quality Control Parking, Inc., 678 S.W.2d 548, 553 (Tex.App.-Houston [14th Dist.] 1984), rev’d in fart on other grounds, 696 S.W.2d 549 (Tex.1985).

Wilson testified he had been able to sleep some as the others drove and he felt fine to take over. Not one of the other occupants of the vehicle had ever seen Wilson drive incompetently. Every time Wilson drove in the past, he took a break or turned the driving over to someone else when he became tired. There is simply no evidence in the record to support the contention that Reginald Rhodes knew or should have known he was entrusting the vehicle to an incompetent or reckless driver. We overrule issues one and two.

Conclusion

We hold Rodriguez and Blandón failed to raise a question of fact on their negligence and negligent entrustment claims against Barbara and Reginald Rhodes. Because Rodriguez and Blandón failed to show they had a viable cause of action on their personal injury claims, the legal malpractice claim against Sciano and Tinsman & Houser, Inc. must fail. We affirm the trial court’s judgment.

      . Rodriguez and Blandón were husband and wife at the time the incidents which form the basis of the underlying personal injury claims occurred.

      . Barbara Rhodes and Reginald Rhodes were husband and wife. Reginald Rhodes was killed in the accident.

      . There was some allegation that Barbara Rhodes was negligent because she failed to notify the rental company other people would be driving the vehicle and the vehicle would be taken out-of-state. Rodriguez and Blan-dón admit such an allegation does not go to the cause of the accident, but only to the lack of available insurance.

      . The evidence was conflicting as to whether Wilson took over from Rhodes or from Rodriguez. For purposes of reviewing the summary judgment, we assume Rhodes was driving immediately prior to Wilson.

      . Only the men in the group drove, not Blan-dón or Barbara Rhodes.

      . We specifically disapprove Sciano and Tins-man & Houser's assertion that Reginald and Barbara Rhodes could not be held liable for negligent entrustment because they were not the owners of the vehicle. The entrustor need only have the right of control. See McCarty v. Purser, 379 S.W.2d 291, 294 (Tex.1964); Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431, 432 (Tex.App.-Texarkana 1992, no writ).

      . See Ballesteros, 985 S.W.2d at 489. Because we overrule the appellants’ issues one and two, we do not reach their remaining issues.


source: Caselaw Access Project

author: Justice MORRIS.

license: Public Domain

text:
    Franchella BOYATTIA, Appellant, v. Michael HINOJOSA and the County of Dallas, Appellees.
    No. 05-98-01012-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 24, 2000.

      Ronald D. Wren, Bedford, for appellant.
    Jana Marie Prigmore, Dist.. Attys. Office, Civil Div., Dallas, for appellee.
    Before Justices MORRIS, ROACH, and DODSON.

      . The Honorable Carlton B. Dodson, Justice, Seventh Court of Appeals, Retired, sitting by assignment.

   OPINION

Opinion By

Justice MORRIS.

In this appeal, Franchella Boyattia challenges a summary judgment in favor of Michael Hinojosa and the County of Dallas on her claims against them arising out of an automobile accident. Hinojosa and the County moved for summary judgment asserting Boyattia’s claims against the County were not actually filed within the limitations period and, further, that limitations barred her claims because she failed to use due diligence to achieve service of process. Hinojosa and the County also moved for summary judgment on the separate grounds that they were immune from liability and there was no evidence that Hinojosa’s actions proximately caused Boyattia’s damages. After examining the summary judgment evidence, we conclude the County is entitled to summary judgment on the basis of limitations. We further conclude, however, that Hinojosa failed to show his entitlement to judgment as a matter of law on the issues of limitations and immunity. We also conclude Boyattia produced some evidence from which a jury could find that Hinojosa’s actions proximately caused her damages. Accordingly, we affirm the trial court’s judgment in part, reverse it in part, and remand the cause for further proceedings.

I.

At the time of the automobile collision giving rise to this lawsuit, the County of Dallas employed Michael Hinojosa as a deputy constable. As part of his duties, Hinojosa served citations and other court documents. On March 1, 1994, Hinojosa drove a county-owned car to the 9100 block of Forest Lane in Dallas and parked it in the far right lane, next to an apartment complex. Although the complex had a parking lot, Hinojosa chose not to use it. Hinojosa left the car and walked to the complex to serve a resident with court papers. The car did not have a police “light bar” on its roof, but Hinojosa testified he turned on the car’s flashing hazard lights before he left.

When Hinojosa returned to the car, he got inside, started it, and switched off the hazard lights. Before he could take the car out of “park,” he was struck from behind by a car driven by Wondrous Wim-berly. Wimberly testified that she and Boyattia, who was a passenger in Wimberly’s car, were traveling east in the right lane of Forest Lane on their way to lunch. According to Wimberly, the car immediately in front of her unexpectedly swerved to the left at which time she saw Hinojo-sa’s car stopped in the road. She applied the brakes and tried to move out of the lane, but her efforts to avoid hitting Hino-josa’s car failed. The bumper on the passenger side of Wimberly’s car hit the back of Hinojosa’s car. Boyattia allegedly injured her knee and neck in the collision.

Boyattia sued to recover damages for her alleged injuries. The style of her original petition listed Wimberly, Hinojosa, and the County of Dallas as defendants. The petition’s opening paragraph, however, stated that Boyattia was bringing her claims against Wimberly, Hinojosa, and the City of Dallas. The petition went on to list the City of Dallas as a party and named the city attorney as the agent for service of process. The remainder of the original petition alleged and described specific claims against the County of Dallas, Wimberly, and Hinojosa. No claims were alleged specifically against the City of Dallas.

Boyattia filed her original petition on February 29, 1996, one day before the limitations period on her claims would have run. Citations on Wimberly, Hinojo-sa, and the County were issued the same day. The clerk’s office did not deliver Hinojosa’s citation to a constable for service until March 12, 1996. For reasons unexplained in the summary judgment record, the clerk did not deliver the County’s citation to a constable until May 31, three months after the citation was issued. The record does not indicate when citation on Wimberly was delivered, but does show that Wimberly was served on March 23. Hinojosa was served on March 13. The County’s citation was first served on June 3, 1996, but it was served on the Dallas city attorney.

After receiving a copy of the petition and citation, the Dallas city attorney’s office called Boyattia’s attorney to inform him that the City’s agent had been served rather than the County’s. As a result, Boyattia filed an amended petition on June 10, 1996, eliminating all references to the City and naming the Dallas County District Attorney’s office as the agent for service on the County. The district attorney’s office, however, would not accept service on behalf of the County. Upon learning this, Boyattia filed a second amended petition naming the Dallas County Judge as the agent for service. The clerk issued citation for the second amended petition on July 1, 1996 and delivered it to the constable on July 2. Service on the County was finally achieved on July 11.

In May 1997, the trial court signed an agreed order dismissing the claims against Wimberly. The County and Hinojosa moved jointly for summary judgment on Boyattia’s claims against them, arguing the claims were barred by the two year-statute of limitations. They further argued that they were entitled to the protections of sovereign and official immunity respectively. Finally, they argued there was no evidence from which a jury could conclude that Hinojosa’s negligence, if any, was a proximate cause of Boyattia’s injuries. On May 20, 1997, the trial court signed an order granting the motion without stating the grounds upon which it relied. This appeal ensued.

II.

In her appeal, Boyattia argues that none of the grounds for summary judgment asserted by the County and Hinojosa was established as a matter of law. She first challenges the assertion that her claims are barred by the statute of limitations.

It is undisputed that Boyattia filed her original petition one day before the limitations period on her claims would have run. The County argues that Boyattia’s original petition was insufficient to bring suit against it because it mistakenly named the City of Dallas in the opening paragraph as well as in the portion of the petition listing the parties and their agents for service. The County contends these mistakes are tantamount to a “misidentification” of the defendant and, therefore, the County was not actually sued when Boyattia filed her original petition.

A “misidentification” occurs when a plaintiff is mistaken with respect to which of two defendants is the correct one and the wrong party is sued. Enserch Corp. v. Parker, 794 S.W.2d 2, 5 (Tex.1990). When a plaintiff misidentifies a defendant in a petition, the limitations period is not tolled and later amendments to add the correct defendant will not relate back to the original filing. Id. In this case, however, there was no. misidentification. Boyattia was never mistaken about the identity of the party she intended to sue. In numerous paragraphs of her original petition, Boyat-tia alleged specific causes of action against the County. Boyattia made no allegations against the City of Dallas other than naming it in the petition’s opening paragraph.

The general rule is that, in the absence of special exceptions, a petition will be construed liberally in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). The petition as a whole must be considered in determining who is being sued. See Cox v. Union Oil Co., 917 S.W.2d 524, 526 (Tex.App.-Beaumont 1996, no writ). Boyattia’s petition names the County as a defendant by naming it in the style of the case and alleging causes of action against it in the body of the pleading. See Hall v. Johnson, 40 S.W. 46, 47 (Tex.Civ.App.1897, no writ) (party named only in style of case and referred to as “defendant” in body of pleading was sufficiently designated). Although the petition omits the County from the listing of parties, this omission does not change the fact that the portions of the pleading that refer specifically to the County allege causes of action against it as a party defendant. See id. Considering Boyattia’s petition as a whole, we conclude Boyattia filed her suit against the County within the limitations period.

The mere filing of a lawsuit, however, is not sufficient to meet the requirements of bringing suit within the limitations period. To “bring suit,” a plaintiff must both file her action and have the defendant served with process. Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex.App.-Dallas 1999, no pet. h.). When a plaintiff does not serve the defendant until after the limitations period runs, the date of service relates back to the date suit was filed only if the plaintiff exercises diligence in effecting service. Id. The duty to exercise diligence continues until service of process is achieved. Id.

Both the County and Hinojosa contend there is no record of Boyattia using diligence to achieve service on them. As movants for summary judgment, the County and Hinojosa bore the burden of negating diligence as a matter of law. See id.; Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 534 (Tex.App.-Dallas 1987, no writ). Texas courts have consistently held that lack of diligence may be shown based on unexplained lapses of time between the fifing of the suit, issuance of the citation, and service of process. Li v. University of Tex. Health Science Ctr., 984 S.W.2d 647, 652 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).

The summary judgment record in this case shows the County was not served with process until approximately four months after suit was filed. There appears to be no dispute that Boyattia requested the clerk to issue a citation for the County at the time she filed her original petition. It is also undisputed that Boyat-tia directed the County’s citation to be delivered to the constable for service at the same time. Although the County’s citation was issued on the day the petition was filed, the clerk delayed three months before delivering it to the constable for service. There is no explanation of why the delay occurred. We must decide to what extent the clerk’s unexplained three month delay impacts Boyattia’s duty to use diligence to effect service.

Under rule 99 of the Texas Rules of Civil Procedure, it is the duty of the clerk both to issue citations and deliver them as directed by the party requesting issuance. See Tex.R. Crv. P. 99(a). The clerk does not complete his duty under the rule until he delivers the citations as directed. Cf. Aguilar v. Stone, 901 S.W.2d 955, 955 (Tex.App.-Houston [1st Dist.] 1995, orig. proceeding). A party may ordinarily rely on the clerk to perform his duty within a reasonable time. See Wood v. Gulf, C. & S.F. Ry. Co., 15 Tex.Civ.App. 322, 326, 40 S.W. 24, 26 (1897, no writ). But when a party learns, or by the exercise of diligence should have learned, that the clerk has failed to fulfill his duty under rule 99, it is incumbent upon the party to ensure that the job is done. See Buie v. Couch, 126 S.W.2d 565, 566 (Tex.Civ.App.-Waco 1939, writ ref d).

Although a party may ordinarily rely on the clerk to perform his duty within a reasonable amount of time, an unexplained three-month delay is not a reasonable time for the clerk to deliver a citation as directed by a party. Therefore, we conclude Boyattia should have known the clerk was not fulfilling his duty to deliver the County’s citation within a reasonable time. Bo-yattia was thus obligated to make an effort to ensure that delivery was accomplished. See id. Yet, there is no evidence Boyattia made any attempts to ensure delivery. The summary judgment record contains a lengthy affidavit by Boyattia’s attorney in which he testifies about the diligence used to achieve service on the defendants. Although counsel gives a detailed explanation of his actions during the month after the County’s original citation was delivered and erroneously served on the city attorney, there is no mention of any action taken during the three-month period the County’s citation remained with the clerk.

We recognize that parties have limited control over the actions of a district or county clerk. Indeed, a party may be vigilant and vigorous in urging the clerk to issue and deliver a citation to no avail. Thus, when the clerk delays in issuing or delivering a citation, the passage of time alone is not itself controlling on the issue of a party’s diligence. Instead, in determining the issue of diligence, we look to whether a party’s actions manifest a “bona fide intention” to have process served. See Broom, 992 S.W.2d at 664. A party who wholly ignores her duty to have the citation served on the defendant during a lengthy period of time the citation remains with the clerk does not manifest a bona fide intention to have process served. We conclude Boyattia’s failure to act during the clerk’s three-month delay constitutes a lack of diligence as a matter of law. See Holt v. D’Hanis State Bank, 993 S.W.2d 237, 241 (Tex.App.-San Antonio 1999, no pet.) (unexplained three-month delay is lack of diligence as a matter of law). The date of service on the County does not relate, back to the date Boyattia filed her suit. See Broom, 992 S.W.2d at 664. Accordingly, summary judgment in favor of the County is proper by virtue of the application of the statute of limitations.

In contrast, Hinojosa’s argument that Boyattia failed to use diligence in obtaining service on him is not well taken. The summary judgment record shows that Hinojosa was served two weeks after suit was filed. For all but one day of that time period, the citation remained with the clerk. Two weeks is not an unreasonable amount of time to allow a clerk to perform his duties under the rule. Accordingly, there was no inaction by the clerk that Boyattia was obligated to recognize and act upon to correct. See Allen v. Masterson, 49 S.W.2d 855, 856 (Tex.Civ.App.Galveston 1932, writ refd). Because there was no delay in his service, Hinojosa is not entitled to summary judgment on the basis of the statute of limitations.

Hinojosa also moved for summary judgment on the ground that he was protected from liability under the doctrine of official immunity. To be entitled to official immunity, Hinojosa was required to show the claims against him arose out of his performance of a discretionary duty, done in good faith, and within the scope of his authority. Smith v. Davis, 999 S.W.2d 409, 413 (Tex.App.-Dallas 1999, no pet.). Hinojosa argues that the accident occurred in the course of his serving court docu-mente and the manner in which he chose to attempt service was discretionary. We do not agree with Hinojosa’s characterization of the actions that gave rise to the accident. The accident did not occur as a result of the manner in which Hinojosa chose to serve court papers. Instead, it arose out of the manner in which he chose to park his county-owned car.

This Court has held previously that the operation of a car in a nonemergency situation is a ministerial function not subject to the protections of official immunity. See Victory v. Faradineh, 993 S.W.2d 778, 780 (Tex.App.-Dallas 1999, no pet.). There is nothing in the record to indicate, and Hinojosa does not argue, that his choice to park his car in the street was due to any sort of emergency. Because the accident in this case arose out of Hinojosa’s operation of a motor vehicle in a nonemergency situation, he has not shown himself to be entitled to the protections of official immunity.

Lastly, Hinojosa moved for summary judgment on the ground that there was no evidence to show he proximately caused the accident resulting in Boyattia’s alleged injuries. A request for a “no-evidence” summary judgment is, in effect, a request for a pretrial directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). We apply the same legal sufficiency standard in reviewing no-evidence summary judgments as we apply in reviewing directed verdicts. See id. We review the evidence in the light most favorable to the respondent and disregard all contrary evidence and inferences. See id. If the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact, a no-evidence summary judgment is improper. Id.

Proximate cause consists of two elements: cause-in-fact and foreseeability. Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex.1998). Cause-in-fact requires proof that the defendant’s act or omission was a substantial factor in bringing about the injury and the injury would not have occurred but for the act or omission. See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995). An injury is foreseeable if a person of ordinary intelligence should have anticipated the danger created by his negligent act or omission. Read, 990 S.W.2d at 737. There can be more than one proximate cause of an injury, and all persons whose negligent conduct contributed to the injury are responsible for it. Coleman v. Equitable Real Estate Inv. Management, Inc., 971 S.W.2d 611, 617 (Tex.App.-Dallas 1998, pet. denied).

In this case, Boyattia presented evidence Hinojosa parked his car in such a way that it blocked the right lane of a heavily traveled street during lunchtime when there was a great deal of traffic. In his deposition, Hinojosa gave no reason why he decided to park on the street instead of in the nearby parking lot. Hino-josa turned on the car’s flashing hazard lights indicating he knew he should alert others traveling on the road to the presence of his car. Wimberly testified that as she was driving, the car immediately in front of her swerved quickly to avoid hitting Hinojosa’s car. Wimberly also attempted to avoid hitting Hinojosa’s car, but was unable to do so.

Based on this record, we conclude there is more than a scintilla of evidence to show that the manner in which Hinojosa chose to park his car was a substantial factor in bringing about Boyattia’s injuries. Furthermore, we conclude there is more than a scintilla of evidence to show not only that a person of ordinary intelligence should have anticipated the danger created by the manner in which Hinojosa parked his car, but that Hinojosa realized his car posed a hazard to others. On the summary judgment record before us, Hinojosa is not entitled to a no-evidence summary judgment on the ground of lack of evidence of proximate cause.

We affirm the trial court’s judgment with respect to the claims against Dallas County. We reverse the trial court’s judgment with respect to the claims against Michael Hinojosa and remand the cause for further proceedings.

      . Rule 99(a) states that "[u]pon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition.”


author: PER CURIAM.

text:
    In re William ROBERTS.

    No. 04-00-00129-CV.
    Court of Appeals of Texas, San Antonio.
    March 8, 2000.
    Tomas Ramirez, III, Law Office of Tomas Ramirez III, Devine, George W. Baugh, San Antonio, for appellant.
    Kristen L. Calvert, George Carroll, Susan D. Reed, Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.

      . William Roberts is a child who is the subject of a Suit Affecting the Parent-Child Relationship brought by the Texas Department of Protective and Regulatory Services.

   OPINION

PER CURIAM.

The court has considered the relator’s petition for writ of mandamus and the relator’s motion for emergency relief, and is of the opinion that relief should be denied because the trial court’s ruling on a motion to show authority can be remedied by appeal. See State Board of Insurance v. Williams, 736 S.W.2d 259, 260 (Tex.App.—Austin 1987, no writ) (denying mandamus relief because error in ruling on motion to show authority could be remedied by appeal). Accordingly, relator’s petition for writ of mandamus and request for temporary relief are denied. Relator shall pay all costs incurred in this proceeding.


author: KAREN ANGELINI, Justice.

text:
    Ricardo Dante AVILA, Appellant, v. The STATE of Texas, Appellee.
    No. 04-98-00979-CR.
    Court of Appeals of Texas, San Antonio.
    March 8, 2000.

      Christian T. Souza, Roberto R. Alonzo, Rich & Alonzo, Dallas, for appellant.
    Robert Lee Little, Asst. Dist. Atty., Eagle Pass, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

NATURE OF THE CASE

A jury found that Ricardo Dante Avila committed the offense of sexual assault and sentenced him to four years and six months confinement. He challenges his conviction in six issues. In his first two issues, Avila asserts the evidence is legally and factually insufficient to support his conviction. In his third issue, he alleges the trial court abused its discretion in admitting the results of deoxyribonucleic acid (DNA) testing. In his final three issues, Avila challenges the admission of the testimony of a victim of a separate rape. We address Avila’s issues in an order different than that presented in his brief in order to offer a more logical explanation of our disposition in this case. We reverse and remand this case to the trial court for further proceedings.

Factual BackgRound

On March 2, 1997, the complainant went to Crystal City with her older sister and a friend. After the three girls checked into a motel, the two older girls crossed the border into Mexico. The complainant remained in Crystal City and spent the evening driving around town with friends.

After dropping off her friends at approximately 2:00 a.m., the complainant saw Avila flash his headlights at her. Avila mistook the complainant for her older sister. However, once he realized who was actually driving the car, Avila waved the complainant on.

The complainant returned to her motel room and prepared herself for bed. Just before she fell asleep, she heard a honk outside. She peered around the curtain to see who it was, and realizing it was Avila, ignored him. The complainant saw him again approximately ten minutes later on the side of the motel, as if he was heading for the road. She then went to sleep.

The complainant was awakened suddenly by a slap to her face. A man had entered her room. He turned her over onto her stomach and raped her. The complainant never saw the perpetrator.

After the man left, the complainant waited a little while and then left the motel. She went to a friend’s house and then to see her mother, who took her to the police station. After explaining to the police what happened, she went to the hospital, where a rape kit was administered.

Admissibility of the Evidence

In three issues, Avila challenges the admission of DNA and extraneous offense evidence against him. First, he complains the trial court abused its discretion in admitting the results of DNA testing because the State did not sufficiently establish a chain of custody to support that evidence. He also contends the trial judge’s admission of extraneous offense evidence to prove identity was erroneous because the extraneous offense was not substantially similar to the charged offense. Finally, Avila asserts that the extraneous offense evidence is not relevant and its probative value was substantially outweighed by the danger of unfair prejudice.

Standard of Review

The admission of evidence is a matter within the discretion of the trial court. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App.1990)(opinion on reh’g). Accordingly, the trial court’s admission of evidence is reviewed under an abuse of discretion standard. See id. at 379-80. As long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion and the trial court’s ruling will be upheld. See Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App.1996); Montgomery, 810 S.W.2d at 391. The trial judge does not abuse his discretion when he admits evidence based on the belief that a reasonable juror could find that the evidence has been authenticated or identified. See Pondexter v. State, 942 S.W.2d 577, 586 (Tex.Crim.App.1996).

DNA Evidence

Avila contends that the trial court erred in admitting the results of DNA testing into evidence. He specifically complains that the State failed to show, by establishing a proper chain of custody, that the DNA testing was based on a comparison of bodily fluids he contributed.

Texas Rule of Evidence 901 governs authentication. See Tex.R. Evid. 901. As a predicate to admissibility, Rule 901 requires a party who offers an item into evidence to establish to the trial judge’s satisfaction that the item is what the party represents it to be. See id. When the evidence being introduced does not have any unique characteristics, a chain of custody may be required to prove that the item presented in trial is the same one involved in the events at issue. See Jackson v. State, 968 S.W.2d 495, 500 (Tex.App.-Texarkana 1998, pet. refd). Likewise, to admit the results of scientific testing, a proper chain of custody must be established. See, e.g., Smith v. State, 450 S.W.2d 92, 94 (Tex.Crim.App.1970); Garner v. State, 848 S.W.2d 799, 803 (Tex.App.-Corpus Christi 1993, no writ); Moone v. State, 728 S.W.2d 928, 930 (Tex.App.-Houston [14th Dist.] 1987, no writ).

The chain of custody is conclusively established if an officer testifies that he seized the item of physical evidence, tagged it, placed an identifying mark on it, placed it in evidence storage, and retrieved the item for trial. Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App.1997). Similarly, when evidence is sent to a laboratory for analysis, to conclusively establish the chain of custody, the proponent must introduce testimony showing the laboratory handled the evidence the same way. See Medellin v. State, 617 S.W.2d 229, 232 (Tex.Crim.App. [Panel Op.] 1981). However, when the State completes the chain of custody from the initial collection of the evidence to inside the laboratory, most questions concerning care and custody, including gaps and minor theoretical breaches, go to the weight of the evidence, not its admissibility. See Medellin, 617 S.W.2d at 232; Silva v. State, 989 S.W.2d 64, 68 (Tex.App.-San Antonio 1998, pet. refd); Stone v. State, 794 S.W.2d 868, 870 (Tex.App.-El Paso 1990, no writ).

We have before us the following evidence concerning the chain of custody of the complainant’s rape kit, her panties, and Avila’s underwear:

1) the hospital in Uvalde conducted a rape kit on the complainant;
2) Avila surrendered his underwear to Officer Erasmo Ramon, who placed the underwear in the evidence room;
3) Officer Ramon transported and submitted the rape kit, the complainant’s panties, shorts, and her t-shirt, as well as Avila’s underwear to Javier Flores, a forensic analyst for the Texas Department of Public Safety laboratory.

In this regard, Avila essentially asserts that the State did not prove the initial link in the chain of custody and therefore the trial judge abused his discretion in admitting the results of the DNA analysis. However, Rule 901 only requires a showing that satisfies the trial judge' that the item in question is what the State claims. See Tex.R. Evid. 901; Garner v. State, 939 S.W.2d 802, 805 (Tex.App.-Ft. Worth 1997, pet. refd). We conclude the information elicited from the State was enough for the trial judge to have found that the items the State’s expert relied upon in drawing his conclusions about the DNA evidence were what they purported them to be. Finding no abuse of discretion, we overrule Avila’s third issue.

Extraneous Offense

Additionally, Avila complains that the admission of the testimony of a second rape victim at his trial was an abuse of discretion because it constituted inadmissible extraneous offense evidence.

Rule ¿04-(b) Relevancy

Generally, evidence of other offenses is not admissible as evidence of guilt. See Tex.R. Evid. 404. However, in Albrecht v. State, the Court of Criminal Appeals stated that “[e]vidence of other crimes committed by the accused may be admitted, ..., where such evidence is shown to be both material and relevant to a contested issue in the case.” 486 S.W.2d 97, 100 (Tex.Crim.App.1972). Therefore, evidence of an extraneous offense may be admissible to show identity when identity is an issue in the case. Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App.1996). However, to be admissible to show identity, there must be a showing that the extraneous offense committed by the accused was so nearly identical in method to the charged offense as to earmark it as the handiwork of the accused. Bishop v. State, 869 S.W.2d 342, 346 (Tex.Crim.App. 1993); Messenger v. State, 638 S.W.2d 883, 886 (Tex.Crim.App. [Panel Op.] 1982), overruled on other grounds, Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984). The characteristics must be so unusual and distinctive as to be like a signature. Bishop, 869 S.W.2d at 346; Messenger, 638 S.W.2d at 886.

Here, identity is clearly at issue because the complainant never saw the man who raped her. She therefore was unable to provide a positive identification of who committed the offense. In this regard, the State offered evidence of an extraneous offense to prove Avila committed the offense. The State argued during a hearing on Avila’s motion in limine to exclude the evidence that the extraneous rape was extremely similar to the offense charged and was therefore relevant to prove identity. Specifically, the State explained that both rapes “occurred] in the dark, at night. In both instances, the victim was asleep; both occurred here in the city limits of Crystal City; both instances the perpetrator entered the room without the consent of the victim. In both instances the perpetrator turned the victims over. In both instances the sexual act was essentially in the same type of position.” The trial court admitted the testimony of P.M., the victim of the extraneous rape, based on the State’s representations of the high degree of similarity between the two rapes.

During the State’s case-in-chief, P.M. testified that in the early morning hours of May 23, 1997, she was raped. She explained that as she was sleeping, she felt a man, whom she believed to be her husband, begin to kiss her. The man then turned her over, and the two had sexual intercourse. P.M. stayed in bed until after the man left and after a few minutes, thought it was strange that her husband had not said goodbye. P.M. got out of bed and went to the front door, which was slightly ajar. She looked through the door and realized that her husband’s truck wasn’t there. She then paged her husband, thinking he was nearby. When he called back, however, P.M. discovered her husband was in another town.

Numerous cases have involved claims that an extraneous offense and the charged offense were not substantially similar enough to warrant the admission into evidence of an extraneous offense. For example, in Walker v. State, the court found the two offenses at issue to be sufficiently similar. 588 S.W.2d 920, 924 (Tex.Crim.App.1979). The offenses both occurred at night, in the same area, within a period of one month. The perpetrator was alone, carried a small gun, and tied up the victims in a similar manner. Additionally, in both cases a robbery preceded the rape, and all coins but pennies were stolen from the victims. Id.; Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App.1996). Likewise, in Clarke v. State, the Fort Worth court of appeals found that evidence of an extraneous sexual assault was sufficiently similar to the offense charged where in both offenses the victims were attacked at home during the night. 785 S.W.2d 860, 867 (Tex.App.-Ft. Worth 1990), aff’d, 811 S.W.2d 99 (Tex.Crim.App.1991). The assailant used duct tape to blindfold both victims and bind their hands and feet. Id. The perpetrator’s face was covered during both attacks, and he forced each victim to engage in sexual intercourse several times. Id. He further either washed the victim’s vagina after the attack or made the victim wash her vagina before he left. Id. The assailant also used a knife in the attack and asked each victim whether she had a gun in the house. Id.

By contrast, in Ford v. State, the Court of Criminal Appeals found that the two offenses at issue were not sufficiently similar to warrant admission into evidence of the extraneous offense. 484 S.W.2d 727, 730 (Tex.Crim.App.1972). The perpetrator of each robbery was a tall black man who wore a purple shirt and used a small pistol. /«¡.The robberies however, were separated by almost two months in time, and the first robbery was committed by four men, whereas the second was committed by only one who entered on the pretext of seeking work. Id.

In reaching its conclusion, the court recognized that:

“there will always be similarities in the commission of the same type of crime. That is, any case of robbery by firearms is quite likely to have been committed in much the same way as any other. What must be shown to make the evidence of the extraneous crime admissible is something that sets it apart from its class or type of crime in general, and marks it distinctively in the same manner as the principal crime.”

Id. (emphasis added).

Unlike in Walker and in Clarke, where the assailant either took all coins except pennies from his victim, or forced the victims to wash themselves after the offense, there is nothing in this case that would act as the “signature” of the perpetrator and affirmatively link the charged offense to the extraneous offense. Although the two offenses share some similarities, we find those similarities are not substantial enough to warrant the admissibility of the extraneous conduct testimony. Both rapes occurred within the city limits of Crystal City during the early morning hours while both victims were sleeping. In each ease, the assailant entered the premises without the consent of the victim and raped each victim in a common sexual position. None of these similarities would mark both offenses as the “handiwork of the accused.” Instead, the similarities are “more in the nature of the similarities common to the type of crime itself, [rape], rather than similarities peculiar to both offenses” involved here. Ford, 484 S.W.2d at 730. We find the trial court erred in admitting the evidence.

Harm Analysis

Upon reaching the conclusion that the trial court erroneously admitted the extraneous offense evidence, we must determine whether such error was harmless. The erroneous admission of an extraneous offense does not constitute constitutional error. See Phelps v. State, 999 S.W.2d 512, 520 (Tex.App.-Eastland 1999, pet. filed); Garza v. State, 963 S.W.2d 926, 929 (Tex.App.-San Antonio 1998, no pet.). Therefore, we apply Texas Rule of Appellate Procedure 44.2(b). Rule 44.2(b) provides that any error, other than constitutional error, “that does not affect substantial rights must be disregarded.” In other words, we disregard the erroneous admission of evidence if it did not adversely affect the jury’s verdict, or had only a slight effect on the jury’s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997); Garza, 963 S.W.2d at 929.

Clearly, the introduction of P.M.’s rape to prove Avila committed the charged offense would adversely affect the jury’s verdict. Given the lack of unique similarities between the two offenses, we do not find that the extraneous offense was relevant to the issue of identity. See Tex.R. Evid. 404(b); Bishop, 869 S.W.2d at 346; Collazo v. State, 623 S.W.2d 647, 647 (Tex.Crim.App. [Panel Op.] 1981). Because the offense was irrelevant to identity, it carried little probative value and would tend to impress upon the jury the notion that Avila acted in conformity with his character, an impression the law seeks to avoid. See Tex.R. Evid. 402; Cobb v. State, 503 S.W.2d 249, 250 (Tex.Crim.App.1973). We find the introduction of the extraneous offense was harmful and sustain Avila’s fourth, fifth and sixth issues.

Legal and Factual Sufficiency

In addition, Avila complains that the evidence is both legally and factually insufficient to sustain his conviction. Specifically he argues there is no evidence that proves he is the person who committed the offense. A challenge to the sufficiency of the evidence must be addressed before disposing of a case even though a reversal of the case might be based on other grounds. Hooker v. State, 621 S.W.2d 597, 598 (Tex.Crim.App.1980); Rodriguez v. State, 697 S.W.2d 463, 465 (Tex.App.-San Antonio 1985, no writ). Therefore, we will address Avila’s sufficiency claims, despite the fact we have already sustained a separate issue.

Standard of Review

In analyzing the legal sufficiency of the evidence, we review only the evidence that supports the verdict to determine whether a rational trier of fact could have found beyond a reasonable doubt all the elements of the offense charged. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Barnes v. State, 876 S.W.2d 316, 322 (Tex.Crim.App.1994); Leal v. State, 975 S.W.2d 636, 638-39 (Tex.App.-San Antonio 1998, pet. refd). In conducting such an examination, we consider admissible and inadmissible evidence. See Gardner v. State, 699 S.W.2d 831, 835 (Tex.Crim.App.1985). Under the legal sufficiency standard, the jury is the exclusive judge of the credibility of a witness, and the weight to be given his or her testimony. See McFarland v. State, 928 S.W.2d 482, 496 (Tex.Crim.App.1996); Arriaga v. State, 2 S.W.3d 508, 510 (Tex.App.-San Antonio 1999, pet. refd). Accordingly,-the jury may choose to either believe some, all or none of the testimony or any other evidence presented. See id.

In reviewing a challenge to the factual sufficiency of the evidence, we consider all of the evidence without substituting our judgment for that of the trier of fact. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996); De Los Santos v. State, 918 S.W.2d 565, 569 (Tex.App.-San Antonio 1996, no pet.). We may set aside the judgment only where “the verdict is against the great weight of the evidence presented at trial so as to be clearly wrong and unjust ...” Clewis, 922 S.W.2d at 135; see Arriaga, 2 S.W.3d at 510.

Discussion

Avila asserts that the evidence is both legally and factually insufficient to support his conviction. Specifically, he contends that evidence of his “mere presence” is not enough to prove identity. Avila suggests that because the State’s DNA evidence was never affirmatively linked to him, and because the extraneous conduct evidence is not sufficiently similar to the present offense to be admissible, his conviction cannot be sustained.

In conducting a sufficiency of the evidence review, we examine all of the evidence, both admissible and inadmissible, that supports the verdict. See Gardner, 699 S.W.2d at 835. Therefore, whether the DNA and extraneous conduct evidence was properly admitted is inconsequential to this discussion. The State elicited testimony from both the victim, as well as Jose Padrón, the motel attendant, which placed Avila in the motel parking lot before the rape occurred. Furthermore, the DNA evidence suggests that the genetic markers attributed to Avila occur in one in every ninety-six Hispanics in the United States.

The State additionally introduced evidence of another rape as extraneous conduct evidence of Avila’s guilt. The DNA evidence drawn from the second rape investigation contains the same genetic markers as the first, and in neither case can Avila be excluded from being a potential contributor of that genetic material. This evidence, viewed in a light most favorable to the jury verdict, allows us to conclude that a jury could have found beyond a reasonable doubt that Avila committed the charged offense.

Avila also challenges the factual sufficiency of the evidence against him. However, because our disposition of a prior issue requires this case to be remanded to the trial court, we need not address his contention. See Howley v. State, 943 S.W.2d 152, 155 (Tex.App.-Houston [1st Dist.] 1997, no writ).

Conclusion

Because we find the trial judge erroneously admitted harmful extraneous offense evidence, we reverse Avila’s conviction and remand the cause to the trial court for further proceedings.


text:
    James Callus HICKS, Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00409-CR.
    Court of Appeals of Texas, San Antonio.
    March 8, 2000.

      James Callus Hicks, Yon Ormy, pro se.
    Ralph J. Bernsen, Sr., County Attorney, Hondo, for appellee.
    Sitting: TOM RICKHOFF, Justice, ALMA L. LÓPEZ, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by:

PAUL W. GREEN, Justice.

James Callus Hicks was convicted by a jury in the justice court of driving without a license. He appealed to the county court, where a trial de novo was conducted. Following a jury trial, he was convicted again and ordered to pay a $200.00 fine. He appeals his conviction from the county court. We affirm.

Hicks maintains that the licensing requirement of section 521.021 of the Texas Transportation Code must be read to require a license only for those persons (1) operating a school bus, or (2) operating a motor vehicle while in use as a public carrier, or (3) operating a motor vehicle while in use as a common carrier. Hicks argues the complaint charging him with an offense is void because it fails to specify which of the above three offenses he is accused of violating and because it fails to negate exceptions to these offenses.

It is well established the State of Texas can and does require a valid driver’s license for all persons operating motor vehicles on the roads of the State. See Taylor v. State, 151 Tex.Crim. 568, 209 S.W.2d 191, 192 (1948) (right to drive is a privilege, not a right, and is governed by rules and regulations); Coyle v. State, 775 S.W.2d 843, 846 (Tex.App.-Dallas 1989, no pet.). The complaint clearly charges Hicks with operating a motor vehicle without a driver’s license, conduct prohibited by section 521.021 of the Texas Transportation Code. It is not necessary for the complaint to include any allegations regarding school buses or public or common carriers. Further, since no exceptions are contained within section 521.021, the complaint was not required to negate any exceptions. See Bragg v. State, 740 S.W.2d 574, 576 (Tex.App.-Houston [1st Dist.] 1987, pet. refd) (“If exceptions to a penal statute are placed in a separate section or article from the one defining the offense, or are not a necessary part of the definition or description of the offense, it is not necessary to negate such exceptions in the charging instrument.”). Accordingly, the judgment of the trial court is affirmed.

      . Hicks bases his argument on an incorrect and out-of-context reading of "the enacting clause of Chapter 173, Acts of the 47th Legislature, Regular Session, 1941.”