author: DAVID WELLINGTON CHEW, Justice.

text:
    Luis E. LINAN, M.D. and Eastside Women’s Healthcare Center, P.A., Appellants, v. Corina A. ROSALES, Appellee.
    No. 08-00-00540-CV.
    Court of Appeals of Texas, El Paso.
    March 31, 2004.
    Rehearing Overruled June 2, 2004.

      Karen L. Landinger, Ray, Valdez, McChristian & Jeans, El Paso, for Appellants.
    Evelina Ortega, Caballero & Ortega, L.L.P., El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

DAVID WELLINGTON CHEW, Justice.

Appellants Luis E. Linan, M.D. and Eastside Women’s Healthcare Center appeal a jury verdict of negligence in favor of Appellee Corina A. Rosales for Dr. Linan’s alleged malpractice of failure to timely diagnose Ms. Rosales’ breast cancer which caused her to have a mastectomy rather than breast conserving therapy. On appeal, Appellants raise four issues: (1) whether the evidence is legally and factually sufficient to support the jury’s finding on breach of duty; (2) whether the evidence is legally and factually sufficient to support the jury’s finding on causation; (3) whether the evidence is legally and factually sufficient to support the jury’s finding on damages; and (4) whether the trial court erred in admitting certain medical bills. We affirm in part, reverse in part, and remand in part to reform the judgment with respect to damages for past medical expenses.

FACTUAL SUMMARY

In early February 1997, Corina Rosales detected a lump in her left breast and made an appointment at the Eastside Women’s Healthcare Center. On February 21, she was examined by Dr. Linan. Her medical history revealed that she had breast biopsies in 1978 and 1989 that involved benign cysts. Her menstrual period had started on February 5 and she had discovered the lump a little less than a week later. The medical notes and Dr. Linan’s testimony indicate that the lump was palpable, round, non-tender, and mobile mass that was about 1x2 centimeters (cm) in diameter. Dr. Linan’s notes illustrate the lump on the upper twelve o’clock position of the left breast. He subsequently noted that there were no skin changes. At trial, he testified that the lump was not visible to the eye and remembered it to be about one centimeter below the skin.

Dr. Linan testified that he told Ms. Rosales that in his opinion, the lump was likely a fibroadenoma or a benign mass. His testimony and medical notes reflect that he told her to return in two weeks for a follow-up. He explained that he did not order any diagnostic tests because at the time of his examination, the lump was not persistent, that is, it had not been present for more than one menstrual cycle. Moreover, Dr. Linan testified that had he ordered any diagnostic testing, he would not have ordered a mammogram since Ms. Rosales’ mass was already a dominant mass, but he would have ordered an ultrasound to rule out a fluid-filled cyst. He claimed that the only sure way to know that the lump was not cancerous was to do a biopsy. His medical notes suggest a discussion concerning continuing self-breast exams versus a biopsy and that Ms. Rosales declined the biopsy. Dr. Linan testified that because she was mid-cycle, the decision was made to wait and followup once she was past her next period. He also testified that normal procedure following an office visit is for the patient to take her chart and a routing slip to a window at the front office to receive a follow-up appointment.

Corina Rosales testified that she had discovered the lump during a self-breast examination and that she had had sharp pains in her nipple and had told this to Dr. Linan. She recalled that the doctor examined her breast when she was seated and when she was lying down. Dr. Linan told her that the lump felt like a cyst and that it did not feel like anything she should worry about and that he had patients who have had lumps in their breasts for years. He did say that if it bothered her, she could come back and he would have it removed. She said that although he told her to continue self-breast examinations, he did not suggest any other diagnostic procedure and he did not tell her to come back in two weeks.

Ms. Rosales’ husband, Martin Flores, testified that he was present in the examination room during Dr. Linan’s examination. He told the jury that Dr. Linan told his wife that he felt the lump, but that it did not feel bad, that it could just be a cyst, that most lumps found by women through self-examination are cysts, and that he had a lot of patients walking around with such lumps. He testified that he was surprised by the quickness of the examination and that nothing was said about another appointment or about removing the lump, although he did recall Dr. Linan saying something about “draining it.” They were not given any paperwork when they left the examination room.

Ms. Rosales testified that by April 1997, the lump seemed to have grown and moved closer to her armpit, but she did not notice any change in the skin over the lump. She made an appointment for April 23 with Dr. Luz Candelaria, by whom she had previously been treated for headaches and tension.

Dr. Candelaria testified that he examined Ms. Rosales on April 23, and that he could immediately see an overt mass in the one o’clock position on her left breast. He felt a hard mass and observed an orange peel effect on the skin where the lump protruded against the skin. He recorded on his examination notes that Ms. Rosales reported the onset of the lump two months earlier and that she had seen another doctor before seeing Dr. Candelaria. Ms. Rosales told him that the doctor had said that she should not worry because he thought that it was just a menstrual estrogen-effect-cycle-induced mass. Dr. Candelaria immediately ordered a mammogram which was scheduled for the following day, April 24.

The first mammogram suggested only that there was a 4 x 3 cm mass in the upper outer quadrant of Ms. Rosales left breast. The radiologist reported that her breasts were very dense and recommended a “coned down compression view” mammogram and an ultrasound for further evaluation. Both recommended tests were subsequently performed in succession, but it is not clear over what time frame they were performed.

The “coned down compression view” again showed an inconclusive 4 x 3 cm mass that was “amenable for ultrasound guided biopsy.” The radiologist’s recommendation was for an ultrasound to further evaluate the mass, and he suggested that an ultrasound-guided biopsy for histological evaluation was appropriate. An ultrasound was subsequently performed and the radiologist’s evaluation reported a breast mass that conformed with the mammograms, that was approximately 2 x 1.9 cm in size with irregular margins, and was suspicious for malignancy. The report also revealed a 12.8 x .5 millimeter (mm) cyst at the ten o’clock position and a 6.9 x .6 mm hypoechoic mass at the four o’clock position. The ultrasound-guided biopsy was not ordered or performed.

On May 2, 1997, Dr. Candelaria performed what he variously referred to in his testimony and medical notes as a biopsy, excision of breast mass, or lumpectomy. His testimony and surgical and pathology notes reflect that he made an elliptical incision around the mass and excised a 5 x 3.5 x 3 centimeter section of skin and underlying breast tissue. In his post-operative notes, Dr. Candelaria described the mass as “hard, circumscribed, measuring approximately 2 cm x 2⅛ cm.”

The pathology examination was performed on May 6. The entire specimen was inked to mark the margin of resection. The sectioned specimen revealed that the closest margin of resection to the tumor mass was 2 mm. The tumor was diagnosed as a moderately differentiated grade II to poorly differentiated grade III invasive ductal carcinoma that measured 1.8 x 1.5 x 1.5 cm. Microscopic examination revealed a positive margin; cancer cells extended out to the edge of the inked tissue.

Ms. Rosales was informed by Dr. Candelaria on May 7 of the positive margin pathology report and according to his notes he suggested and she agreed to have a modified radical mastectomy. At trial, he testified that he simply informed her of the options of a re-excision or a modified radical mastectomy and that Ms. Rosales wanted the whole breast removed. This surgery was performed the next day.

Corina Rosales ultimately brought suit against Dr. Linan and his employer, East-side Women’s Healthcare Center, for medical malpractice. She contends Dr. Linan breached his standard of care by minimizing her condition and failing to order appropriate diagnostic tests causing a two-month delay in diagnosis. She argues that this negligence proximately caused her condition to worsen and resulted in complete removal of her breast, and other consequential damages.

Dr. Linan and Ms. Rosales were found equally negligent by the jury. Ms. Rosales was found to have sustained damages in the amount of $261,400. The court ordered defendants to pay $160,107.48, with post-judgment interest of 10 percent and all court costs.

Standard of Review of Legal and Factual Sufficiency

Appellants’ first three issues relate to the sufficiency of evidence to support the jury’s findings of breach, causation, and the award of damages. The standard of review for each of these issues is the same.

On appellate review of a legal insufficiency point, we consider only the evidence and inferences that, when viewed in their most favorable light, tend to support the finding. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). We disregard all evidence and inferences to the contrary. Id. If there is any evidence of probative force to support the finding, it is upheld. Sherman v. First Nat’l Bank in Center, Texas, 760 S.W.2d 240, 242 (Tex.1988). Accordingly, if there is more than a scintilla of evidence, the jury’s finding will not be overturned. Id. at 242.

In reviewing factual sufficiency, we consider and weigh all of the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). A verdict is only set aside if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). A reviewing court’s opinion may not be substituted for that of the trier of fact. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998).

Medical Malpractice

A plaintiff must prove four elements in a medical malpractice cause of action in order to prevail: (1) a duty by the physician to act according to a certain standard; (2) a breach of the applicable standard of care; (3) injury or harm to the plaintiff; and (4) a causal connection between the breach of the applicable standard of care and the injury or harm. Krishnan v. Ramirez, 42 S.W.3d 205, 212 (Tex.App.-Corpus Christi 2001, pet. denied).

In a suit for medical malpractice, expert testimony is required to prove negligence unless the form or mode of treatment is a matter of common knowledge, or the matter is within the experience of a layperson. See Hood v. Phillips, 554 S.W.2d 160, 165-66 (Tex.1977); Arlington Memorial Hospital Foundation, Inc. v. Baird, 991 S.W.2d 918, 921-22 (Tex.App-Fort Worth 1999, pet. denied). In particular, expert testimony is necessary on the issues of medical negligence and causation. Arlington Memorial Hospital Foundation, Inc., 991 S.W.2d at 922.

Breach of Standard of Care

In Issue One, Appellants contend Ms. Rosales failed to prove by legally sufficient expert testimony that Dr. Linan breached the standard of medical care. In the alternative, they argue that the evidence supporting the jury’s finding of breach is so weak that the finding is clearly wrong and manifestly unjust.

The breach of the standard of care allegations had a two-fold premise. The first is that Dr. Linan failed to timely diagnosis breast cancer by failing to order any diagnostic testing at the time of his examination on February 23, 1997. The other is that he failed to instruct Ms. Rosales to return in two weeks for a follow-up evaluation giving the cancerous breast tumor two months to grow.

There is no dispute as to Ms. Rosales’ medical condition and history when Dr. Linan examined her on February 23, 1997. She was thirty-eight years old, premeno-pausal, with small, dense breasts. In 1978 and 1979, she had breast biopsies that removed benign masses. Her menstrual period had begun on February 5 and she had discovered the lump in her left breast about a week later. She was examined by Dr. Linan two weeks after she discovered the lump. The lump was in the upper, outer area of her breast above the nipple. There were no noticeable changes or effects in the skin overlaying the lump. The lump was palpable and had a well-defined round shape; it was about 1.5 centimeters in size, not tender, and mobile.

About two and a half months later, the lump would prove to be cancerous and the pathology of the tumor is not disputed. It was an Invasive Ductal Carcinoma (IDC), an early form of breast cancer, graded as a Stage I or T1 tumor. It was less than 2 centimeters (cm) in size. The cancerous cells had penetrated the duct or lobule wall and invaded the surrounding breast tissue and there was local lymphatic involvement, but there was no evidence that it had spread beyond the breast or that there was cancerous involvement of the axial lymph nodes. It was a fast growing, but highly treatable form of breast cancer.

Ms. Rosales testified and the essence of her testimony is that Dr. Linan told her not to worry because the lump was probably a benign cyst, but she could have it removed if she wanted; that he did not offer or suggest any further diagnostic testing; and he never told her to come back in two weeks for a follow-up examination. Her husband, who was present during Dr. Linan’s examination, essentially agreed with Ms. Rosales’ testimony.

The only explicit evidence from an expert witness that supports the allegation of negligence by Dr. Linan comes from Dr. Candelaria. Dr. Candelaria testified that it was a breach of the standard of care for Dr. Linan to have not immediately ordered a mammogram. His testimony was unequivocal; whether it was reliable is another matter. He testified quite assuredly that the mammogram was “one of the newest techniques in radiology that is used to detect abnormal tissue,” and that a mammogram could distinguish between cystic masses and hard masses. He disagreed with Dr. Linan’s purported offer to order a biopsy, stating that a biopsy could be avoided by doing a mammogram or ultrasound exam first. He also testified that-it would be a breach of the standard of care to order a biopsy without knowing what the mass was.

Dr. Joel Abramowitz, a physician board certified in hemotalogy, onocology, and internal medicine also testified on behalf of Ms. Rosales. According to Dr. Abramow-itz, the diagnostic tools available to determine the malignancy or prognosis included the mammogram and ultrasound, but that ultimately, the only way to know for sure whether a mass is benign or malignant is to do a biopsy. He concluded that clinical evaluations made by Dr. Linan and Dr. Candelaria show that the tumor had grown in the two months between their respective examinations. He also noted that the pathology reports showed that the tumor was high S-Phase, meaning that the tumor was a quick growing cancer. He testified that if Ms. Rosales had the lumpectomy in February 1997, the tumor would have been smaller than it was in May 1997 and that, in general, a delay in diagnosing a malignant tumor increases the risk of the cancer spreading. He did concede that the delay between February 21 and April 23 did not materially change the ultimate prognosis. He also testified that she could have had the lumpectomy with breast conservation excision and radiation in May 1997, and that most surgeons, if the patient wanted breast conservation, would do a lumpectomy with breast conservation if the tumor was less than 3 cm. He stated that it was possible for cancer to metastasize in two months, but he also admitted that it was “very hard to know scientifically how much a delay is causing a problem or led to a proximate cause.” It appears then, with respect to the element of breach of standard of care, Dr. Abramovitz’s testimony only vaguely, and only implicitly faults Dr. Linan for the more than two month delay.

Dr. Ann Leitch, a surgical oncologist, testified that Ms. Rosales was a good candidate for breast conserving surgery because the tumor was relatively small. She discounted Dr. Candelaria’s clinical observations of orange peel skin and testified that if there had been an orange peel effect on the skin, then the cancer should have been classified as a stage IIIB cancer and it was not the standard of care to do a lumpectomy with that cancer stage. She also testified that it was not reasonable that the passage of time caused Ms. Rosales to have a mastectomy. She explained that a tumor has to be greater than 1 cm to be detected by touch and since it was found to be only 1.8 cm, the tumor had clearly not grown dramatically.

Dr. Raul Portillo, an oncologist, testified that the surgical procedure on May 2, 1997 was a diagnostic biopsy and that Ms. Rosales would have had a second procedure to do either a lumpectomy with axillary dissection of lymph nodes or a mastectomy.

While we have serious doubt as to the reliability of Dr. Candelaria’s testimony, which appears to be largely self-serving and dated, whether or not Dr. Linan breached the standard of care by failing to immediately order a mammogram need not be answered. Dr. Linan’s medical notes indicate that his orders were for Ms. Rosales to return for a follow-up examination in two weeks, at which time, he could determine whether the lump was persistent and order appropriate diagnostic tests; however, it is clear from the record that these orders were not carried out and Ms. Rosales was never given a follow-up appointment. Accordingly, while Ms. Rosales’ first premise for breach of standard of care is dubious, we do agree that the evidence is legally and factually sufficient to find the second premise of her negligence allegation. We overrule the first issue.

In their second issue, Appellants challenge the legal and factual sufficiency of the evidence to establish the causal connection between the breach of the standard of care and the injury or harm suffered by Ms. Rosales. Ms. Rosales had to establish a causal connection between her injury and the negligence of Dr. Linan based upon “reasonable medical probability,” not mere conjecture, speculation, or possibility. See, e.g., Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.1995); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex.1995); Kramer v. Lewisville Mem. Hosp., 858 S.W.2d 897, 400 (Tex.1993); Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988). This means that the ultimate standard of proof on the causation issue “is whether, by a preponderance of the evidence, the negligent act or omission is shown to be a substantial factor in bringing about the harm and without which the harm would not have occurred.” Park Place Hosp., 909 S.W.2d at 511, citing Kramer, 858 S.W.2d at 400. As both parties have framed the causation issue in this case, the issue is would there have been a better outcome had the diagnosis of Ms. Rosales’ breast cancer been accomplished two months earlier, and if so, would that better outcome have been a breast sparing lumpectomy rather than a modified radical mastectomy.

We have spent much time and careful analysis of the testimony and the voluminous medical records to assure ourselves that the jury returned a verdict that was sufficiently true in accordance with the evidence. Indeed, all the evidence and arguments about how fast or how slow the tumor grew, or whether Dr. Candelaria’s surgical adroitness was an intervening factor in causation only served to cloud our examination, and ultimately, we conclude that such evidence is irrelevant.

Dr. Linan testified and his notes reflect that on February 21, 1997, he observed no skin changes when he examined Ms. Rosales. Then about two months later, in May 1997, Dr. Candelaria testified, and as he recorded in his surgical notes, there was “very obvious prominent mass to the left breast with the skin having an orange peel appearance.” [Emphasis added]. “Peau d’orange,” as Dr. Abramowitz explained, (the appearance of an orange peel) is a clinical description where cancer cells have invaded the lymphatic vessels causing swelling or edema of the skin overlying the tumor. Then Dr. Leitch, though she disbelieved Dr. Candelaria’s diagnosis, nevertheless testified that such a breast cancer is classified as an overall Stage IIIB cancer, regardless of the tumor size. Critically, she testified that breast conserving surgery is not appropriate and is not the standard of care for Stage IIB cancer. She concluded that a mastectomy is generally the standard of care for such breast cancer.

Dr. Raul Portillo, a board certified oncologist, testified that under current surgical protocols, the procedure that Dr. Candelaria employed would be classified as a diagnostic biopsy and not breast conserving therapy. A proper breast sparing lumpectomy would be the removal of the tumor with clear margins plus an axillary dissection or removal of the lymph nodes, followed by a regime of radiation.

So while Dr. Candelaria may have thought that he was following breast conserving therapy surgical protocols, and while there is abundant evidence in the record that Ms. Rosales probably could have had breast conserving surgery, there is still legal and factual evidence that in the two months between when Ms. Rosales should have had a follow-up examination with Dr. Linan, and when she was finally seen by Dr. Candelaria, the cancer had involved the lymph vessels causing an edema on the skin. At that point, there was no better outcome — a mastectomy was the standard of care, but two months earlier, when there was no evidence of involvement of the lymphatic vessels by the cancer, breast conserving therapy could have been the outcome. Issue Two is overruled.

In Issue Three, Appellants argue that there is legally or factually insufficient evidence to support the jury’s finding on damages. The first contention is that there was no segregation of damages, specifically the medical bills, caused by Dr. Linan’s negligence from those medical costs that would have accrued irrespective of the negligence. The evidence is clear that when Ms. Rosales first saw Dr. Linan, she had a cancerous tumor. It is clear that if it had been diagnosed soon thereafter that breast conserving therapy, a lumpectomy, axillary dissection of the lymph nodes, chemotherapy, and radiation, would more than likely have been successful. So even if Ms. Rosales had gotten a timely diagnosis of breast cancer and had breast conserving therapy, she still would have had to undergo many of the medical procedures that she ultimately undertook. She would have had radiology treatments at a cost of $23,297; she would have had chemotherapy at a cost of $23, 997; she still would have had the diagnostic and pathology tests at a cost of $604; she would have had about $4,000 in hospital costs at Southwestern General; and she would still have had most of the fees that Dr. Candelaria alleged.

A plaintiff may recover only for reasonable and necessary medical expenses specifically shown to result from treatment made necessary by the negligent acts or omissions of the defendant, where such a differentiation is possible. See Texarkana Memorial Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex.1997). Consequently, we sustain the first portion of Issue Three; however, because Ms. Rosales has made an offer to remit, we will not reverse and remand for a new trial but will instead affirm and reverse and remand to reform the judgment to exclude the medical costs not caused by any of the alleged negligence, and find that Ms. Rosales is entitled to $8,283 in past medical costs, and that the damages should be reduced by $51,898.

Appellants’ second contention regarding the legal and factual insufficiency of the evidence to support the jury’s findings of damages concerns Ms. Rosales’ damages for Physical Pain and Mental Anguish, Loss of Past Earnings Capacity, Disfigurement in the Past and in the Future, and Medical Care in the Future. There was ample evidence from Ms. Rosales and several others that she had suffered physical pain and mental anguish; there was at least some evidence that she was unable to work and of lost earnings capacity; the loss of her breast is without a doubt evidence of disfigurement; and finally, it is self-evident that she will have medical costs in the future. The jury has broad discretion to assign a specific dollar amount to compensate a person for these kinds of damages. We find that the evidence supporting these elements is legally and factually sufficient to support the jury’s finding of damages and overrule Issue Three in this regard.

In the fourth and final issue, Appellants complain generally that the trial court erred in admitting medical records for treatments not caused by Dr. Linan’s negligence. We first note that whether to admit or exclude evidence is a matter committed to the trial court’s sound discretion. Interstate Northborough Partnership v. State, 66 S.W.3d 213, 220 (Tex.2001). The foundation for this issue rests upon the Appellants’ basic premise of no showing of causation. Because we have already addressed this foundation above, it is not necessary to address it again. We overrule Issue Four.

The trial court’s judgment is reversed in part with respect to the amount of damages awarded to Ms. Rosales for past medical expenses and remanded to reformed to exclude medical costs not caused by Appellants’ negligence, and affirm the remainder of the judgment.

      . We note that the original pathology report erroneously reported in the "Diagnosis” section of the report that the size of the tumor was 5 x 3.5 x 3 centimeters, (which is the size of the complete excised specimen) when, in fact, the tumor was only 1.8 x 1.5 x 1.5 centimeters in size.


source: Caselaw Access Project

author: Justice JAMES.

license: Public Domain

text:
    Jeffrey Todd McKIDDY, Appellant, v. TRINITY LLOYD’S INSURANCE COMPANY, Appellee.
    No. 05-03-00908-CV.
    Court of Appeals of Texas, Dallas.
    April 1, 2004.
    Gergory C. McCarthy, Josh P. Norrell, Miller & McCarthy, P.C., Dallas, TX, for Appellant.
    Carlos A. Balido, Touchstone Bernays Johnston Beall & Smith, L.L.P., Dallas, TX, for Appellee.
    Before Justices JAMES, WRIGHT, and BRIDGES.
   OPINION

Opinion by

Justice JAMES.

Jeffrey Todd McKiddy appeals the trial court’s granting of summary judgment in favor of Trinity Lloyd’s Insurance Company. The court found McKiddy was not “occupying” the vehicle covered by Trinity’s insurance policy; McKiddy, therefore, was not entitled to coverage under Trinity’s policy. McKiddy contends the court erred because: (1) McKiddy was in physical contact with the covered vehicle, thus being “upon” the vehicle; (2) Trinity cannot overcome a presumption of coverage because it did not restrict the definition of “occupying”; and (3) the term “occupying” is ambiguous and should be construed in favor of McKiddy. We affirm the trial court’s judgment.

McKiddy was injured when a car driven by Joe Smith skidded off an icy road into McKiddy. McKiddy had been a passenger in a car owned by Eddie Deen and Company, Inc.; the Deen car had also skidded off the road. After the Deen car slid off the road, McKiddy and the other occupants of the Deen car exited their vehicle. While McKiddy was outside the Deen car, Smith’s car hit McKiddy, causing injury. McKiddy received coverage from Smith’s insurance up to the limits of his policy. McKiddy then sought coverage under the underinsured motorist provision of the policy covering the Deen vehicle. The policy had been issued by Trinity, and Trinity denied coverage stating McKiddy was not “occupying” the Deen vehicle.

McKiddy sought a declaratory action, seeking judgment that he was a “covered person” under the policy. He moved for a traditional summary judgment, alleging no material issue of genuine fact existed. Included in his summary judgment evidence were affidavits by McKiddy and Smith. In its response to McKiddy’s motion, Trinity objected to both affidavits as improper summary judgment evidence. Trinity also filed a no-evidence motion for summary judgment. In McKiddy’s response to Trinity’s no-evidence motion, McKiddy again relied on the affidavits and the insurance policy. The court granted Trinity’s no-evidence summary judgment motion, granted Trinity’s objections to the complained-of summary judgment evidence produced by McKiddy, and denied McKid-dy’s motion for summary judgment. The court declared McKiddy was not “occupying” the Deen vehicle and was, therefore, not entitled to coverage.

Summary Judgment Evidence

McKiddy appeals only the court’s declaration he was not occupying the vehicle; he does not appeal the court’s ruling on Trinity’s objections to McKiddy’s summary judgment evidence. Therefore, we do not review whether the trial court was correct to sustain Trinity’s objections. Instead, McKiddy claims that because he used the same evidence in his response to Trinity’s summary judgment motion without objection by Trinity, that evidence was before the court.

Once a party objects in writing to summary judgment evidence, the other party has an opportunity to amend its original evidence. See Tex.R. Civ. PROC. 166a(f). McKiddy used the evidence — without amending the evidence — again after Trinity’s objection but before the court ruled on the objection. We conclude, therefore, that McKiddy’s use of the complained-of evidence demonstrates McKiddy refused to amend his evidence after it was objected to. McKiddy presents this Court with no authority to support his implied argument that a party may circumvent an objection to summary judgment evidence merely by resubmitting the exact evidence with another motion before the court rules on the original objection. Without such authority to support this implied argument, we do not review it on appeal. See Tex.R.App. PROC. 38.1(h). Accordingly, we conclude the complained-of evidence is not before us on appeal.

“Occupying” the Deen Vehicle

We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex.App.-Dallas 2000, no pet.). Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. Id. at 833. When analyzing a no-evidence summary judgment, we consider the evidence in the light most favorable to the nonmovant. See id.

Trinity moved for summary judgment on the basis that McKiddy had not been “occupying” the Deen vehicle at the time of the accident. The court granted the summary judgment, declaring McKiddy had not been “occupying” the Deen vehicle. In each of his three issues on appeal, McKiddy argues the court erred because he was “occupying” the Deen vehicle under the definition of the policy. In his first issue, McKiddy contends that because he was in physical contact with the Deen vehicle, he was “upon” it. McKiddy relies on case law finding coverage when a person was in contact with a covered vehicle when struck by another vehicle. See Hart v. Traders & Gen. Ins. Co., 487 S.W.2d 415 (Tex.Civ.App.-Fort Worth 1972, writ ref'd n.r.e.) (leaning on the covered vehicle’s fender when struck by another vehicle). However, McKiddy does not direct this Court to any evidence (properly before us on appeal) that McKiddy was in contact with — or even next to — the Deen vehicle when Smith hit McKiddy. We resolve McKiddy’s first issue against him.

In his second issue, McKiddy contends a presumption of coverage exists because Trinity did not restrict its definition of “occupying” with respect to the terms “out” or “off.” The policy defines “occupying” as “in, upon, getting in, on, out or off.” McKiddy argues that “getting” does not modify “on,” “out,” or “off,” and therefore, McKiddy could be occupying the Deen vehicle when he was “out” of the vehicle. We disagree.

McKiddy argues no Texas court has directly construed the “getting in, on, out or off language.” However, Texas courts have considered coverage based on the “getting in, on, out or off’ policy language. When the injury occurred outside of the covered vehicle, those courts looked at whether there was a causal connection between the incident that caused the injury and the covered vehicle. See Schulz v. State Farm Mut. Auto. Ins. Co., 930 S.W.2d 872, 875 (Tex.App.-Houston [1st District.] 1996, no pet.) (finding no causal connection between the covered vehicle and being shot outside of the vehicle); Fulton v. Tex. Farm Bureau Ins. Co., 773 S.W.2d 391, 393 (Tex.App.-Dallas 1989, writ denied) (finding no causal connection between the covered vehicle and being hit by another car while walking freely about the parking lot).

We find no causal connection between McKiddy’s injuries and the covered vehicle. The only evidence showing how far McKiddy was from the covered vehicle was McKiddy’s deposition he was no more than ten feet from it. In his deposition, Smith agreed it would be difficult to say how far McKiddy had been from the Deen vehicle, that he was not prepared to estimate the distance, and that he could not “swear” where McKiddy had been. This shows Smith’s distance testimony was merely conjecture, which is incompetent summary judgment evidence. See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 437 (Tex.1997). However, McKiddy stated in his testimony he was walking toward another vehicle owned by Deen when he was struck — not walking back to the covered vehicle in which he had previously been a passenger. McKiddy produced no evidence showing how long he had been out of the covered vehicle before being struck by Smith, and McKiddy produced no evidence showing his injuries were related to any impact with the Deen vehicle. Accordingly, we conclude McKiddy failed to provide more than a scintilla of probative evidence to raise a fact issue on whether there was a causal connection between McKiddy’s injuries and the covered vehicle. See General Mills, 12 S.W.3d at 833. We resolve McKiddy’s second issue against him.

In his third issue, McKiddy argues the term “occupying” is ambiguous and must therefore be construed in favor of coverage. Contract language that can be given a certain or definite meaning is not ambiguous and should be interpreted as a matter of law. See DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex.1999). We have applied the language of “getting in, on, out or .off’ above, as have other Texas courts. See Schulz, 930 S.W.2d at 875; Fulton, 773 S.W.2d at 392-93. We conclude the language is not ambiguous. We resolve McKiddy’s third issue against him.

We affirm the judgment of the trial court.

      . The policy defines an insured as "anyone ... occupying a covered auto,” and "occupying” is defined as "in, upon, getting in, on, out or off.”

      . Trinity also objected to the copy of the insurance policy and a letter denying coverage; neither was verified. However, Trinity included a verified copy of the policy with its no-evidence summary motion. Accordingly, the policy is properly before us as summary judgment evidence.


author: DAVID WELLINGTON CHEW, Justice. ANN CRAWFORD McCLURE, Justice,

text:
    Arthur Lee SCOTT, Appellant, v. The STATE of Texas, Appellee.
    No. 08-02-00194-CR.
    Court of Appeals of Texas, El Paso.
    Aug. 5, 2004.

      M. Clara Hernandez, El Paso County Public Defender, El Paso, for Appellant.
    Jaime E. Esparza, District Atty., El Paso, for State.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

DAVID WELLINGTON CHEW, Justice.

Appellant was convicted by a jury of possession of cocaine, one gram or more but less than four grams and sentenced to 10 years’ imprisonment. Appellant brings three issues: (1) that the trial court abused its discretion by allowing hearsay testimony; (2) that the trial court abused its discretion in admitting an expert’s opinion over a hearsay objection; and (3) that the trial court erred in permitting the testimony of a witness not named on the State’s pretrial witness list. We reverse and remand.

Two El Paso police officers, on bike patrol in South El Paso, were waved down by a pedestrian, who told them that the Appellant had just tried to sell him some drugs. The Appellant was on the sidewalk nearby and walking towards the police officers. When asked if he possessed any drugs, the Appellant replied, “I have some stuff on me, but I’m not telling you where.” Several baggies of cocaine were found in Appellant’s wallet.

Standard of Review

The trial court has broad discretion in determining the admissibility of evidence, and its ruling will not be reversed on appeal absent a clear abuse of discretion. Allridge v. State, 850 S.W.2d 471, 492 (Tex.Crim.App.1991); Arzaga v. State, 86 S.W.3d 767, 774 (Tex.App.-El Paso 2002, no pet.). As long as the trial court’s ruling was at least within the zone of reasonable disagreement, we will not intercede. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991); Arzaga, 86 S.W.3d at 774.

In Issue Two, Appellant argues that the testimony of a state chemist was inadmissible hearsay because his testimony was merely the regurgitation of a drug analysis report that was prepared by another state chemist. Specifically, the Appellant complains that the chemist who testified was not the chemist who analyzed the evidence. The witness was a state chemist who was qualified as an expert and testified that the drug analysis report reflected that the substance seized from Appellant weighed about 2.08 grams and contained cocaine.

The State argues that an expert chemist may render an expert opinion based upon another chemist’s test. See Martinez v. State, 22 S.W.3d 504 (Tex.Crim.App.2000). In Martinez, which overruled this Court’s decision, the Court essentially expands the breadth of the Aguilar exception to the hearsay rule by eliminating the requirement that the testifying witness be the supervisor of the analyst who actually prepared the lab report. See Aguilar v. State, 887 S.W.2d 27, 30 (Tex.Crim.App.1994).

In Martinez, the expert testified at trial as to his present opinion of the test results. Id. at 508. While the expert relied on another analyst’s report to form the opinion he testified to, as in Aguilar, the report itself was never offered into evidence. Martinez, 22 S.W.3d at 508. The underlying data and facts were never elicited before the jury. The Court concluded that where an expert is testifying as to his present expert opinion, that testimony was not hearsay. Id. Therefore, there was no need to consider whether it fell within an exception to the hearsay rule. Id.

The State ignores, however, that the expert in this case was not asked for an opinion. At trial, the prosecutor asked the chemist “[Wjhat does that report indicate as to the weight of the cocaine submitted for analysis?” Appellant properly objected to the question but his objection was overruled. The answer was “2.08 grams.” That was hearsay if it was offered to prove the weight. These facts fall within the circumstances noted by Judge Womack in his concurring opinion which was joined by two other judges:

The appellant objected to a question other than the one asking for the witness’s opinion. She objected to the question, What was the weight of the substance.’ The answer was hearsay if it was offered to prove weight. I see no other reason for its offer, and the offer was not limited by the State. It is not within the hearsay exception for public records and reports. There was no effort to qualify it as a record of regularly recorded activity. It may have been a type of evidence that an expert could reasonably rely on. But, as the Court points out, there are limits on introducing the inadmissible bases of the admissible opinion. If the State had responded to the hearsay objection by asking for the evidence of weight -to be admitted for the limited purpose of showing the basis for the opinion that the substance was. cocaine, that might have made it admissible. But the State didn’t, and the burden to request admission for a specific, limited purpose is on the proponent of the evidence. So it was error to overrule the hearsay objection to the question about the weight.

Martinez, 22 S.W.3d at 509 (Womack, J. concurring).

It was error for the trial court to overrule the Appellant’s hearsay objection to the question about the weight in this case. We now turn to the harm analysis. Error in the admission of evidence is subject to a harm analysis under Rule 44.2(b) of the Rules of Appellate Procedure. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). The erroneous admission of evidence is nonconstitutional error. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). Nonconstitutional error “that does not affect substantial rights must be disregarded.” Tex.R.App.P.44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury’s verdict. See King, 953 S.W.2d at 271. A criminal conviction should not be overturned for nonconstitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. We will not overturn a criminal conviction for nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect. Muhammad v. State, 46 S.W.3d 493, 509 (Tex.App.-El Paso 2001, no pet.).

Appellant was indicted for possession of cocaine over one gram and under four grams, a third degree felony. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(c)(Vernon 2003). The Legislature has established an increasing penalty ladder based on the amount of the illicit drug possessed by a defendant. The greater the amount, the greater the punishment. Melton v. State, 85 S.W.3d 442, 445 (Tex.App.-Austin 2002). Excluding the erroneously admitted evidence from consideration, there is no evidence of the amount of cocaine that Appellant possessed. And because there is a lower step or offense — possession of less than one gram, the evidence that Appellant is guilty of possession of cocaine greater than one gram and less than four grams is not overwhelming. See Sanford v. State, 21 S.W.3d 337, 347 (Tex.App.-El Paso 2000, no pet.). We sustain Issue Two.

Because we have sustained one of Appellant’s issues, we decline to address his other issues. We reverse and remand for a new trial.

CRAWFORD, Judge, concurring.

ANN CRAWFORD McCLURE, Justice,

concurring.

The majority opinion sustains Appellant’s argument that a portion of an expert witness’s testimony constituted inadmissible hearsay where he directly testified as to the contents of a written report of the chemist who actually tested the contraband submitted to the lab. I concur with this conclusion but write separately to state my disagreement with the majority’s interpretation of Martinez and Aguilar.

John Janczak, a drug analyst employed by the Texas Department of Public Safety Crime Lab in El Paso, qualified as an expert witness in the field of drug analysis. The following exchange occurred between the prosecutor and Janczak:

The State: Mr. Janczak, what does that report indicate as to the weight of the cocaine submitted for analysis?
Defense: I’m going to object at this time. It’s asking the witness to testify off a police report that is hearsay, sir, under Cole.[ ]
The Court: Overruled.
Defense: Thank you, sir.
Mr. Janczak: 2.08 grams.
The State: And what does that report indicate as to the exact composition of that material?
Defense: Sir, at this time we need to once again object to it as being inadmissible hearsay, and this is opinion testimony as to Mr. Janczak. He didn’t actually do any of the testing. How does he know a typographical error was not done when that sheet was prepared, sir?
The Court: Overruled.
Defense: Thank you, sir.
Mr. Janczak: It contains cocaine.

Mr. Janczak was not asked to state his expert opinion regarding the nature of the substance or its weight; rather, he was directly asked what the laboratory report stated. Thus, his testimony amounts to an out-of-court statement offered for the truth of the matter asserted and falls outside of Aguilar or Martinez. While I concur with the majority opinion’s holding, I do not entirely agree with its interpretation of Martinez and Aguilar.

In Martinez, the expert witness utilized a written lab report to form his expert opinion that the substance was .34 grams of cocaine. Martinez, 22 S.W.3d at 507. The Court of Criminal Appeals, relying on its decision in Aguilar, held that the present opinion of a testifying witness does not constitute hearsay because it is not, and can never be, a statement “other than one made by the declarant while testifying at the trial.” Martinez, 22 S.W.3d at 508, citing Aguilar, 887 S.W.2d at 29 (quoting former TEX.R.CRIM.EVID. 801(d)). Despite the plain holding of Martinez and Aguilar that the hearsay rule is not implicated by an expert witness testifying to his present opinion, the majority opinion makes a puzzling reference to “the Aguilar exception to the hearsay rule.... ” Majority opinion at 314. The Court' of Criminal Appeals took issue with a similar statement in Martinez:

In its opinion reversing Martinez’s conviction, the court of appeals found that ‘the State necessarily failed to establish its right to rely on the hearsay exception carved out by Aguilar.[] But [the expert witness] testified as to his present expert opinion, so his testimony was not hearsay at all. There was no need to consider whether it fell within an exception to the hearsay rule.

Martinez, 22 S.W.3d at 508. [Emphasis added].

Not only is it erroneous to refer to the “Aguilar exception to the hearsay rule” when the hearsay rule was not implicated in either case, it is misleading to the bench and bar. With these comments, I concur with the majority opinion.

      . Appellant apparently based his objection on Cole v. State, 839 S.W.2d 798 (Tex.Crim.App.1990).

      . Martinez v. State, 993 S.W.2d 751, 759 (Tex.App.-El Paso 1999), reversed, 22 S.W.3d 504 (Tex.Crim.App.2000).


author: RICHARD BARAJAS, Chief Justice.

text:
    The STATE of Texas, Appellant, v. Jesus Enrique MARTINEZ, Appellee.
    No. 08-02-00248-CR.
    Court of Appeals of Texas, El Paso.
    Aug. 11, 2004.
    Rehearing Overruled Oct. 27, 2004.

      Karen L. Landinger, Ray, Valdez, McChristian & Jeans, El Paso, for Appellant.
    Ruben P. Morales, El Paso, for Appel-lee.

      Before Panel No. 2, BARAJAS, C.J., McCLURE, and CHEW, JJ. .
   OPINION

RICHARD BARAJAS, Chief Justice.

This is a State’s appeal from the order of the trial court granting Appellee Jesus Enrique Martinez’s motion to suppress evidence. We affirm in part and reverse in part.

I. SUMMARY OF THE EVIDENCE

Officer Michael Macias of the El Paso Police Department testified that on April 15, 2001 at approximately 5 p.m., he arrived at the scene of an accident. He observed that a single-vehicle accident had occurred on a street median. There was extensive damage to the vehicle. There were two people in the vehicle — Martinez was in the driver’s seat. Officer Macias testified that he believed he was told that the other occupant was deceased and That she was Martinez’s mother. Martinez was extracted from the vehicle and placed on a stretcher in an ambulance. While he was being attended to by the emergency medical personnel, Officer Macias interviewed Martinez. He stated that he lost control of the vehicle while driving home from Easter church services and lunch. Officer Macias testified that Martinez’s eyes were glassy looking and bloodshot. He smelled an odor of alcohol about Martinez’s person. Officer Macias asked Martinez if he had been drinking and he responded affirmatively. When the officer asked how much he had to drink, Martinez stated that HE would not answer any more questions. Officer Macias arrested Martinez and read the Miranda warnings. He arrested Martinez for DWI because there was insufficient information to indicate that it was an intoxication manslaughter case. The officer rode with Martinez to the hospital. He was uncooperative and refused to speak.

At the hospital, Martinez refused to answer the questions of the medical staff about the accident while Officer Macias was in the treatment area. He refused medical treatment. However, as time passed, Martinez asked Officer Macias about his mother’s condition. The officer advised Martinez about a blood test and read a form called the “DIC 24” that he obtained from the blood specimen kit. Officer Macias testified that Martinez gave verbal and written consent to have a blood specimen drawn. A nurse drew the blood and the specimen was sent to police headquarters. The witness stated that Martinez volunteered the statement that he had been an alcoholic since the age of thirty-seven when his father died. Officer Macias told Martinez that he would also be given the opportunity to submit to a breath test at the police station. Martinez stated that he would fail that test because he had a lot of vodka drinks the night before.

Officer John Pennington, an officer with the El Paso Police Department, testified that he assisted in the investigation of the accident. Officer Pennington testified that he read DIC forms 23, 24, and 25 to Martinez at police headquarters after the blood specimen was taken and he refused to sign the forms, although he initially testified that he read the forms to Martinez before the blood sample was taken and he refused to sign the forms.

In further testimony, Officer Macias testified that he read a DIC form to Martinez prior to taking the blood specimen but he could not say what was stated on the form that he used. He could not produce the form. Officer Macias stated that he thought that the form he read to Martinez was less detailed than the DIC 24 that was read to him at the police station after the blood sample was taken. The witness gave some indication that the form did not inform Martinez of the consequences of refusing the test.

The State argued to the court that Martinez had consented to the blood test. The court ruled that there was no evidence before it that Martinez signed a statement consenting to the blood test and he suppressed the blood test evidence. Subsequently, on April 29, 2002, the State filed a document entitled “State’s Motion to ReOpen/Reconsider.” In this document, the State maintained that the documents that were purportedly read to Martinez to obtain his consent for the blood test could not be located and the officers could not remember what admonishments were contained on the form. The State conceded that there was no evidence before the court that Martinez was admonished of the warnings contained in forms DIC 23, 24, and 25 prior to the blood specimen being taken. The State argued in its motion that the blood test results were still admissible as there was no need to present proof that any admonishments were read to an accused with regard to voluntarily taken tests.

On May 29, 2002, the court issued an order holding that any statements obtained from Martinez after his arrest were obtained in violation of his rights. The court ruled that Martinez did not voluntarily consent to the blood test. Also, the court held that there was.no deemed consent to the taking of a blood specimen under “Article 6701 1 — 5, § 1 (Vernons) [sic].” Further, the court ruled that the officers failed to give Martinez the required statutory warnings under “Article 1-5, § 2 (Vernons) [sic].” Accordingly, the order stated that the blood seized from Martinez and the blood alcohol concentration analysis was suppressed as the blood was taken in violation of Martinez’s rights.

II. DISCUSSION

In a motion to suppress hearing, the trial court is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness’s testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). A trial court’s ruling on a suppression motion lies within the sound discretion of that court. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). We review a trial court’s ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial court’s determination of historical facts, but review the application of the law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App.2002); see also Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997)(we review mixed questions of law and fact de novo if the resolution of the ultimate questions does not turn on an evaluation of credibility and demeanor).

In Issue No. One, the State maintains that consent is irrelevant to the determination of the admissibility of a blood sample. Specifically, the State urges that regardless of any lack of consent, there is no constitutional impediment to the taking of a blood specimen. Martinez argues that the State has waived this contention on appeal. We agree. Where the State is the party appealing, the basic principle of appellate jurisprudence that points not argued at trial are deemed to be waived applies equally to the State and the defense. State v. Mercado, 972 S.W.2d 75, 78 (Tex.Crim.App.1998). During the suppression hearing, the only argument urged by the State to the trial court was that Martinez actually consented to the blood test. As the contention that consent was not relevant was not raised below, it is not preserved for appeal.

The State also asserts that consent is irrelevant to a determination of the admissibility of a blood sample because Tex. Transp. Code Ann. § 724.012(b)(3) (Vernon Supp.2004) requires that a blood or breath specimen be taken if the officer reasonably believes that as a direct result of the accident, any individual has died or will die. Again, this contention was not raised below and is waived. Mercado, 972 S.W.2d at 78.

The State argued at the suppression hearing that Martinez actually consented to the blood sample. The State maintains that the evidence is uncontroverted that Martinez consented to providing his blood sample given Officer Macias’ testimony that he consented orally and in writing. The State urges that the arrest was lawful and absent any additional factors, his being in custody was not sufficient to render his consent involuntary. Martinez counters that the court was free to disbelieve the officer and urges several factors weighing in favor of the court’s ruling. First, while Officer Macias testified that Martinez signed a written consent form, this form was never produced in court. In fact, the State acknowledged that no form could be found wherein Martinez consented to the blood test. The State further acknowledged that the officer could not recall what admonishments were contained on the form and that there was no evidence presented at the suppression hearing that Martinez was properly warned. Accordingly, it was within the court’s purview to question that Martinez gave voluntary oral consent for the taking of the blood specimen. Apparently, Martinez refused to take a breath test when Officer Macias mentioned it at the hospital. He also refused Officer Pennington’s request at the police station. Martinez asserts that the court could have questioned whether he voluntarily consented to the taking of the blood specimen given his refusal to consent to take a breath test before and after the taking of the blood. Further, Martinez reasons that Officer Pennington’s confusion about whether Martinez refused to sign the forms prior to the taking of the blood specimen could have caused the court to question the officer’s credibility. We agree with Martinez that there is evidence in the record to indicate the court did not abuse its discretion in finding that the consent was involuntary. Further, there was sufficient evidence aside from the failure to give the appropriate warnings to indicate the consent was not voluntary.

The State also contends that Martinez impliedly consented to the blood test pursuant to Tex. Transp. Code Ann. § 724.011 (Vernon 1999). Again, this contention was not raised below and is waived. Mercado, 972 S.W.2d at 78. Issue No. One is overruled.

In Issue No. Two, the State cites to authority stated in its motion to reopen the hearing stating that although the State must show the warnings were given before introducing evidence of a defendant’s refusal to submit to a breath test, proof of those warnings is not required as a predicate to the introduction of voluntarily taken breath tests. Hogue v. State, 752 S.W.2d 585, 589-90 (Tex.App.-Tyler 1987 pet. ref'd); See Landgraff v. State, 740 S.W.2d 577, 579 (Tex.App.-Houston [1st Dist.] 1987 pet. ref'd). However, these cases pertain when the consent was voluntarily given. As this was not so in the present case, the cited authority is inapplicable. Issue No. Two is overruled.

In Issue No. Three, the State argues that it was uncontroverted that Martinez initiated a conversation with the officers following his assertion of his Fifth Amendment rights. Consequently, the court erred in suppressing statements made following his lawful arrest. In its findings, the court ruled that all statements made by Martinez after his arrest were inadmissible. This involves two statements: (1) Martinez’s statement that he is an alcoholic; and, (2) his statement that he would fail a breath test in that he had been drinking a lot of vodka. The only evidence at the hearing indicated that the first statement was volunteered by Martinez and the second statement was made in response to a request for a breath test.

After arrest an accused may validly waive his rights to remain silent by initiating conversation with the police authorities. Etheridge v. State, 903 S.W.2d 1, 19 (Tex.Crim.App.1994). Also, a request for a blood sample does not constitute interrogation under the Fifth Amendment. Jones v. State, 7 S.W.3d 172, 175 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd). The only evidence before the court was that these statements were not the product of a custodial interrogation. Accordingly, the trial court erred in suppression of the two statements. Issue No. Three is sustained.

Having overruled Appellant’s Issues No. One and Two, but further having sustained Issue No. Three, we affirm m part and reverse in part. The ease is remanded to the trial court for proceedings not inconsistent with this opinion.

      . Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 4, 1983 Tex. Gen. Laws 1568, 1577, amended by Act of April 21, 1993, 73rd Leg., R.S., ch. 82, § 1, 1993 Tex. Gen. Laws 168, 168, amended by Act of May 29, 1993, 73rd Leg. R.S., ch. 900, § 1.09, Tex. Gen. Laws 3586, 3702, repealed by Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025, 1870 (current version at Tex. Transp. Code Ann. § 724.011 (Vernon 1999)). This article provides that any person who operates a motor vehicle on the public highways is deemed to have consented to the taking of a blood or breath test to determine the alcohol concentration in the person’s body.

      . Section 2 of former Article 67011-5 of the revised civil statutes is the predecessor to Section 724.015 of the Transportation Code. See Act of June 6, 1983, 68th Leg., R.S., ch. 303, § 4, 1983 Tex. Gen. Laws 1568, 1577, amended by Act of June 19, 1993, 73rd Leg., R.S., ch. 886, § 9, 1993 Tex. Gen. Laws 3523, repealed by Act of May 23, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1819-22 (current version at Tex. Transp. Code Ann. § 724.015 (Vernon Supp.2004)). This article provides that before an officer requests a person submit to the taking of a specimen, the officer must inform the person orally and in writing that: (1) refusal to submit a specimen may be admissible in evidence; (2) refusal to submit a specimen will result in the person’s driver’s license being suspended; (3) if the person consents to the taking of a specimen and testing shows the person had an alcohol concentration of a level specified under Chapter 49 of the penal code, then the person’s license will be suspended; (4) if the person is under age twenty-one and consents to the taking of a specimen and testing shows the person had any alcohol in his system, then the person's license will be suspended; (5) if the person does not have a license, then the department of public safety will not issue him a license during the period his license would have been suspended; and (6) instructions for obtaining a hearing on the suspension of the license. Tex. Transp. Code Ann. § 724.015 (Vernon Supp.2004).

      . In its order, the court ruled that the arrest was lawful.

      . This section provides in relevant part:
      (a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to -submit to the taking of one or more specimens of the person's breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.

      . We find that this contention was not waived by the State as it was raised before the court prior to the court’s ruling.


author: KAREN ANGELINI, Justice.

text:
    THE CITY OF SAN ANTONIO, Appellant, v. Charles POLLOCK and Tracy Pollock, Individually and as Next Friends of Sarah Jane Pollock, Appellees.
    No. 04-03-00403-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 18, 2004.
    Rehearing Overruled Nov. 16, 2004.

      Sharon E. Callaway, Nissa M. Sanders, Crofts & Callaway, P.C., Amy M. Eu-banks, Donald S. Bayne, Asst. City Atty’s, San Antonio, for appellant.
    Cathy J. Sheehan, Laura A. Cavaretta, Plunkett & Gibson, Inc., Sylvan S. Lang, Jr., Lang & Kustoff, L.L.P., Jennifer B. Rosenblatt, Rosenblatt Law Firm, Susan G. Gray, Law Office of Susan G. Gray, San Antonio, for appellees.
    Timothy Patton, Timothy Patton, P.C., San Antonio, for other.
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

This case is before us on Appellant’s motion for rehearing. We deny Appellant’s motion; however, we withdraw our opinion and judgment of May 12, 2004, and substitute this opinion and judgment in its stead.

In 1992, Charles and Tracy Pollock moved into a home at 10811 Mount Mesabi. The backyard of the home abutts the West Avenue Landfill Project, a landfill owned and operated by the City of San Antonio. In the fall of 1993, Tracy became pregnant, and on June 24, 1994, Sarah Pollock was born. In January of 1998, Sarah was diagnosed with acute lympho-cytic leukemia.

According to the Pollocks, while Tracy was pregnant with Sarah, benzene from the landfill leaked into their home and backyard. This exposure to benzene, they contend, caused Sarah’s leukemia.

The Pollocks sued the City of San Antonio for negligence, nuisance, and trespass. The jury found for the Pollocks on negligence and nuisance. Additionally, the jury found that the City had acted with malice. The jury awarded $7 million in personal injury damages to Sarah. The jury also awarded $6,111,000 for past and future medical care, $10,000 for loss of use and enjoyment of property, $19,000 for difference in market value, and $10 million in exemplary damages to the Pollocks. The trial court rendered judgment in conformity with the verdict, with the exception of reducing the $6 million award of future medical care to $500,000. The City brings the following issues on appeal:

(1)Is the City immune from the Pollocks’ nuisance claim? Specifically, did the plaintiffs bring a nuisance action under article I, section 17, of the Texas Constitution? Is there legally sufficient evidence that the City committed non-negligent acts?
(2) Are personal injury damages recoverable in a nuisance action under article I, section 17, of the Texas Constitution?
(3) Does the “community damage rule” bar the' Pollocks’ recovery of property damages?
(4) Is there legally sufficient evidence of causation? Specifically, does the evidence establish cause-in-fact? Does the scientific evidence meet the reliability requirements of Texas law as outlined in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997)? Alternatively, is recovery barred because there is no jury finding of causation?
(5) Did the Pollocks waive their negligence claim by failing to submit it as a premises defect claim? Does the Pollocks’ negligence claim fall within the limited waiver of immunity provided by the Texas Tort Claims Act (“TTCA”)? Alternatively, are the Pollocks’ damages under the TTCA limited to $250,000?
(6) Are the Pollocks entitled to exemplary damages? Alternatively, should their exemplary damages be reduced?

We reverse that portion of the trial court’s judgment awarding exemplary damages and render judgment that the Pollocks take nothing with respect to exemplary damages. We affirm the remainder of the judgment.

Immunity FROM Nuisance

The jury found the City liable for nuisance. On appeal, the City contends that it is immune from the Pollocks’ nuisance claim because (1) the claim was not brought as a takings claim; and (2) there is no evidence that the City committed non-negligent acts. We disagree.

1. Nuisance under the Texas Constitution

The Texas Constitution provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made ...” Tex. Const, art. I, § 17. This provision waives governmental immunity for the taking, damaging, or destruction of property for public use. Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex.1980).

A party is entitled to compensation when his property has been damaged, as fully as if his property had been actually taken or destroyed. Id. at 790. Not all damages, however, are compensable. Id. The Constitution limits compensation to damages “for or applied to public use.” Id. Courts have narrowed that phrase to mean damages incident to the construction and operation of a public work. Id.

Courts also permit recovery of damages upon proof of a nuisance. Id. at 791. To come within the article I, section 17, exception to governmental immunity, however, a party must bring her nuisance suit “in the nature of a takings claim.” Foster v. Denton Indep. Sch. Dist., 73 S.W.3d 454, 460 (Tex.App.-Fort Worth 2002, no pet.); see also Golden Harvest Co. v. City of Dallas, 942 S.W.2d 682, 688 (Tex.App.-Tyler 1997, pet. denied) (“A party must bring suit on a constitutional taking cause of action pursuant to Article I, Section 17 of the Texas Constitution ... ”).

The City alleges that the Pollocks’ nuisance claim does not come within the constitutional waiver of immunity because it was not brought as a takings claim. The elements of a takings claim are: (1) that the governmental unit intentionally performed certain acts, (2) that the acts resulted in a taking or damaging of the property; and (3) that the taking was for public use. Loyd v. ECO Resources, Inc., 956 S.W.2d 110, 128 (Tex.App.-Houston [14th Dist.] 1997, no pet.) Here, the Pollocks pled that the City “created and maintained a continuing nuisance”, by permitting “toxic chemicals and substances to accumulate and to escape the confines and boundaries of the West Avenue Landfill.” The Pollocks further pled that the City’s nuisance “was both public and private” and that as a result of the nuisance, the Pollocks suffered “loss of the enjoyment and use” and “diminishment of the value” of their property. These allegations show that the Pollocks brought their nuisance suit “in the nature of a takings claim.” Foster, 73 S.W.3d at 460. Accordingly, we overrule this issue on appeal.

2. Evidence of Non-Negligence

In order to fall within the waiver of immunity provided by article I, section 17, of the Texas Constitution, a nuisance claim must be based on non-negligent acts. City of Tyler v. Likes, 962 S.W.2d 489, 503-04 (Tex.1997); see also Tex. Highway Dep’t v. Weber, 147 Tex. 628, 630, 219 S.W.2d 70, 71 (1949) (providing that if damage is clearly attributable to negligent acts of governmental unit, there is no liability under rationale that damaging from unintended and negligent acts results in no benefit to public). “[N]on-negligence means beyond negligence, as in gross negligence or an intentional act.” Tarrant County v. English, 989 S.W.2d 368, 374 (Tex.App.-Fort Worth 1998, pet. denied) (internal quotations omitted). Additionally, to maintain a cause of action for nuisance, a plaintiff must be able to show the alleged nuisance is inherent in the condition or thing itself, beyond that arising from alleged improper or negligent use. See Loyd, 956 S.W.2d at 133; Schneider v. City of Cuero, 749 S.W.2d 614, 617 (Tex.App.-Corpus Christi 1988, writ denied).

The City argues that there is no evidence that the migration of benzene and other toxic gases is inherent in the operation of landfills. We disagree. At trial, experts testified that migration of landfill gas containing benzene and other toxins is inherent in the operation of landfills. Les Montgomery, the City’s expert, testified by deposition that “benzene is a normal constituent in a municipal landfill,” and that landfill gas migrating outside of a landfill and going up into people’s homes is “a consideration for municipal landfills.” Additionally, Daniel Kraft, the Pollocks’ expert, in describing the systems that monitor gas migration from landfills, explained that “we already know that the landfill — the landfill contains methane gas; so, the purpose of the probe being installed outside the waste is to monitor migration from the waste beyond the limits of the waste — or outside the landfill, if you will.” Because there is evidence that the migration of benzene and other toxic gases is inherent in the operation of landfills, we overrule this argument on appeal.

The City also contends that there is no evidence that the City committed non-negligent, i.e., grossly negligent or intentional, acts. Again, we disagree. Here, there is evidence of an intentional failure to act. See Bible Baptist Church v. City of Cleburne, 848 S.W.2d 826, 830 (Tex.App.-Waco 1993, writ denied) (holding that summary judgment improper where fact questions existed about whether city failed to correct cause of sewer backup). Stacy Shipley, who was in charge of monitoring and maintaining the landfill from 1992 to 1996, testified that despite her recommendation in February 1994 that test probes should have been installed in “backyards along the perimeter of the landfill to verify that the methane is not migrating,” the City failed to install those test probes. Additionally, despite reports in 1994 that “the design of the [methane] system in place is no longer meeting the needs to insure compliance and safety,” the City failed to install a new system until 1997. Further, Shipley testified that despite a recommendation from the TNRCC that the City test at ten feet below the soil, the City never tested below two to three feet. In fact, even though gas had been detected at the Pollock residence, the City failed to further test the Pollock residence. Also, despite the City’s knowledge that methane gas was migrating into the neighborhood, the City represented to the First Federal Savings Bank that “no environmental concerns exist.” Moreover, when Charles Pollock inquired about the landfill before buying his home, the City told him, “It’s just methane,” and, “It’s no health hazard,” despite a memo of a City employee in 1983 reporting that “any level of benzene [is] excessive. Benzene is a suspected carcinogen. All wells exceed acceptable levels for benzene.” Because there is evidence that the City knew of the gas migration problem and intentionally failed to act, we hold that there is legally sufficient evidence that the City acted with non-negligence.

The City also argues that there is no evidence of non-negligence “during the relevant time of Sarah’s gestation period.” The City fails, however, to tell us why this is necessary. As such, it has failed to properly brief this argument. Tex.R.App. P. 38.1(h). Even so, the argument is without merit. In order to prove causation, it is necessary that the nuisance have existed during Sarah’s pregnancy, not the acts which caused the nuisance.

Personal Injury Damages under Article I, Section 17

The jury awarded Sarah $7 million in personal injury damages. The jury also awarded the Pollocks $6,111,000 for past and future medical care. The trial court rendered judgment on the verdict, with the exception of reducing the $6 million award of future medical care to $500,000. On appeal, the City argues that an article I, section 17, nuisance claim does not entitle a party to personal injury damages. According to the City, article I, section 17, waives immunity only for damage to property. We disagree.

Texas law provides that damages for personal injuries may be recovered in a nuisance action. City of Uvalde v. Crow, 713 S.W.2d 154, 158-59 (Tex.App.-Texarkana 1986, writ refused n.r.e.) (citing Vann v. Bowie Sewerage Co., 127 Tex. 97, 101, 90 S.W.2d 561, 563 (1936)); see also City of Fort Worth v. Crawford, 74 Tex. 404, 408, 12 S.W. 52, 54 (1889) (“And when a municipal corporation has ample power to remove a nuisance that is injurious to health, endangers the safety or impairs the convenience of its citizens, or when in the prosecution of a public work it creates a nuisance, (or permits it to remain,) it is hable for all the injuries that result from a failure on its part to properly exercise the power possessed by it, and for the injuries resulting from its unlawful acts.”); see also Town of Jacksonville v. McCracken, 232 S.W. 294, 294-96 (Tex.App.1921) (affirming an award of $100 for medicine and medical services and $3,000 for wrongful death where the contents of a City-operated septic tank “meandered through [plaintiffs’] premises and to within 75 feet of their residence”). Accordingly, we overrule this issue on appeal.

Community Damage Rule

The jury awarded the Pollocks $10,000 for loss of use and enjoyment of property and $19,000 for difference in market value. On appeal, the City argues that the Pollocks do not meet the “community damage rule” and therefore are not entitled to recover these damages.

Texas law allows recovery under article I, section 17, only if the injury is not one suffered by the community in general. Felts v. Harris County, 915 S.W.2d 482, 484 (Tex.1996). “[IJnjuries to property received or sustained in common with the community in which the property is situated, and resulting from the operation of a public work, are community in nature,” and “give rise to no compensation.” Id. at 485.

Here, however, the Pollocks pled and provided evidence that the migration of benzene and other toxic gases from the landfill damaged their property in particular. For example, there was evidence that such migration caused subsidence in the Pollocks’ backyard.

If ... a public work is constructed which inflicts an injury peculiar to certain property not suffered in common with other property in the community or section, then such property is “damaged” within the meaning of the Constitution, and the law will not permit the infliction of such injury without the allowance of just compensation....

State v. Schmidt, 867 S.W.2d 769, 780 (Tex.1993); cf. Felts, 915 S.W.2d at 486 (“In this case, the record does not indicate that the Feltses’ damages would be different in Mnd from that of any of their neighbors.”). This is not a case of “diminution to property values caused by diversion of traffic, inconvenience of access, impaired visibility of ground level buildings, [or] disruption by construction activities from the conversion of a roadway ...” Wilkinson v. Dallas/Fort Worth Int’l Airport Bd., 54 S.W.3d 1, 14 (Tex.App.-Dallas 2001, pet. denied). To the contrary, the Pollocks pled and proved an injury to their property that is “special ... in nature.” See id. at 13. Accordingly, we overrule this issue on appeal.

Causation

At trial, the jury found that the City’s activities were a nuisance and caused the Pollock’s damages. On appeal, the City argues that there is legally insufficient evidence of causation, for three reasons: (1) the jury was allowed to stack inference upon inference in order to find that benzene caused Sarah’s leukemia; (2) the evidence does not meet the reliability requirements of Texas law as outlined in Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997); and (3) there is no jury finding of causation.

First, the City argues that there is legally insufficient evidence of causation because the jury was allowed to stack inference upon inference to find that benzene caused Sarah’s leukemia. An appellant attacking the legal sufficiency of an adverse finding on which he did not have the burden of proof must demonstrate that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). The reviewing court must consider all evidence in a light most favorable to the party in whose favor the verdict has been rendered and indulge every reasonable inference from the evidence in such party’s favor. Harbin v. Seale, 461 S.W.2d 591, 592 (Tex.1970). If more than a scintilla of evidence exists to support the finding, the no-evidence challenge fails. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998).

Here, the record reflects that benzene migrated from the landfill onto the Pollocks’ property while Tracy was pregnant with Sarah. In 1983, benzene was detected in a test well that was 50 feet from the Pollocks’ backyard. In 1990, there were gas concentrations of 14% and 30% found at the Edwards well just 20 feet outside the Pollocks’ property fine. On January 30, 1998, there was benzene detected at a gas monitoring probe 30 feet from the Pollocks’ backyard. Additionally, there were substantial levels of methane at probes near the Pollocks’ home in 1998, 1999, and 2000.

Dan Kraft, an expert hired by the Pollocks, used the gas sample from 1998 to create a methane-to-benzene ratio estimating the amount of benzene in and around the Pollocks’ home when Tracy was pregnant with Sarah. This ratio, according to Kraft, shows that the Pollocks were chronically exposed to a benzene concentration of 40 to 160 parts per billion or higher. Les Montgomery, the City’s expert, also did a methane-to-benzene ratio. Using a water sample from 13 years earlier, Montgomery estimated that the amount of benzene in and around the Pollocks’ home when Tracy was pregnant with Sarah was 146 parts per billion. He also agreed that data from the well 30 feet from the Pollocks’ backyard was a sufficient monitoring point for the area.

The record also reflects that Tracy Pollock was exposed to benzene in her home while she was pregnant. Tracy testified that she continually smelled odors in her downstairs bathroom and kitchen, and that, at some point, the odor was so strong in her downstairs bathroom that she had to close the door so it didn’t escape into the rest of the home. Kraft testified that he believed those odors to be landfill gas and that this gas was of the same concentration and had the same chemical makeup as the gas that was measured near the Pollock’s home. In other words, according to Kraft, the landfill gas escaping into the Pollocks’ home contained 40 to 160 parts per billion or higher of benzene.

The record also reflects that the level of benzene to which Tracy was exposed was harmful. Dr. Patel, a pediatric hematologist and oncologist and Sarah’s doctor, testified that exposure to benzene at the range of 146 to 160 parts per billion can cause acute lymphocytic leukemia.

Dr. Patel also testified that, in his opinion, exposure to benzene caused Sarah’s leukemia. At the time Sarah was diagnosed with acute lymphocytic leukemia, her chromosomes were abnormal. She had trisomies, or extra chromosomes, as well as chromosomes in which part of the chromosome was not present or had tran-slocated to another chromosome. According to Dr. Patel, this pattern of trisomies indicates that Sarah’s leukemia was caused by significant exposure to benzene through her mother during pregnancy and the first eight weeks of pregnancy. If Sarah’s leukemia were caused by a non-exposure factor, he testified, Sarah wouldn’t have had the particular type of chromosomal marking that she had.

Because there is legally sufficient evidence showing that benzene from the landfill caused Sarah’s leukemia, we overrule this issue on appeal.

Second, the City argues that there is legally insufficient evidence of causation because the evidence does not meet the Havner requirement of “more than a doubling of the risk” for “scientifically reliable epidemiological studies.” See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 718 (Tex.1997).

The City failed, however, to preserve this argument for appeal. Texas law provides:

To preserve a complaint that scientific evidence is unreliable and thus, no evidence, a party must object to the evidence before trial or when the evidence is offered. Without requiring a timely objection to the reliability of the scientific evidence, the offering party is not given an opportunity to cure any defect that may exist, and will be subject to trial and appeal by ambush.

Reviewing courts may not exclude expert scientific evidence after trial to render a judgment against the offering party because that party relied on the fact that the evidence was admitted. To hold otherwise is simply “unfair.” As the [Murrelet v.] Babbitt [83 F.3d 1060, 1067, (1996)] court explained: [Permitting [a party] to challenge on appeal the reliability of [the opposing party’s] scientific evidence under Daubert, [v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]in the guise of an insufficiency-of-the-evidence argument, would give [appellant] an unfair advantage. [Appellant] would be ‘free to gamble on a favorable judgment before the trial court, knowing that [it could] seek reversal on appeal [despite its] failure to [object at trial].’ Thus, to prevent trial or appeal by ambush, we hold that the complaining party must object to the reliability of scientific evidence before trial or when the evidence is offered.

Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409-10 (Tex.1998) (citations omitted).

Despite this authority, the City insists that it can bring such a complaint on appeal regardless of whether an objection was made before or during trial because such a complaint is a legal sufficiency issue. See Havner, 953 S.W.2d at 712 (“If for some reason such testimony were admitted in a trial without objection, would a reviewing court be obliged to accept it as some evidence? The answer is no.”); see also id. at 714 (“Under that circumstance [where a flaw in the expert’s reasoning from the data may render reliance on a study unreasonable and render the inferences drawn therefrom dubious], the expert’s scientific testimony is unreliable and, legally, no evidence.”). As quoted above, however, the Texas Supreme Court has explicitly rejected this argument. See Ellis, 971 S.W.2d at 409-10. Accordingly, we hold the City waived its reliability argument by failing to complain at trial. Because we hold that the City waived its reliability argument, we need not address the City’s complaint that the Pollocks’ scientific evidence is unreliable.

Third, the City argues that recovery is barred because there is no jury finding of causation. Here, however, the City failed to object to the omission of this element from the jury charge. When a party fails to object to the omission of an element from the jury charge, the appellate court will deem a finding in support of the judgment if some evidence supports the finding. Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990); see also Tex.R.Civ. P. 279. Here, as discussed above, there is some evidence of causation. Accordingly, we overrule this issue on appeal.

Negligence

The City makes three arguments with respect to negligence. First, the City argues that the Pollocks cannot recover on their negligence claim because the evidence supports submission of a premises defect claim only. Second, the City contends that the Pollocks’ negligence claim falls outside the TTCA’s limited waiver of immunity because the Pollocks “failed to show that Sarah’s injuries were caused by the condition or use of tangible personal property.” Third, the City argues that the Pollocks’ damages under the TTCA are limited to $250,000. Here, however, the Pollocks elected to recover under nuisance, not negligence. Because we are affirming that portion of the judgment awarding the Pollocks actual damages for nuisance, we need not address the arguments regarding negligence.

ExemplaRY Damages

The jury awarded the Pollocks $10 million in exemplary damages. On appeal, the City argues that the Pollocks are barred from recovering exemplary damages because (1) the TTCA retains sovereign immunity for exemplary damages in section 101.024; (2) there is no waiver of sovereign immunity for exemplary damages under article I, section 17; (3) the common law will not support recovery of exemplary damages under City of Gladewater v. Pike; and (4) there is legally insufficient evidence of malice.

First, the City argues that section 101.024 of the TTCA retains sovereign immunity for exemplary damages. As discussed above, however, the trial court awarded damages to the Pollocks on nuisance, not negligence. Accordingly, the TTCA does not apply.

The City next argues that the Pollocks are barred from recovering exemplary damages because there is no waiver of sovereign immunity for exemplary damages under article I, section 17, of the Texas Constitution. Texas law provides:

The term “adequate compensation” does not encompass exemplary damages since such damages are punitive in nature and have nothing to do with compensating a party for his losses. There is no statutory authority for exemplary damages in cases brought for damage to property under Article 1, sec; 17. Appellees have cited no Texas cases, and we have found none, in which exemplary damages have been allowed to stand against a city in a situation where private property was damaged or taken for public use.... We hold that as a matter of law, a property owner is not entitled to recover exemplary damages in an inverse condemnation case brought under Article 1, sec. 17 of the Texas Constitution for the taking or damaging of property for public use.

City of Odessa v. Bell, 787 S.W.2d 525, 528-29 (Tex.App.-El Paso 1990, writ denied).

The Pollocks respond that they are entitled to exemplary damages under the authority of City of Gladewater v. Pike, 727 S.W.2d 514 (Tex.1987) and City of San Antonio v. Rodriguez, 856 S.W.2d 552 (Tex.App.-San Antonio 1993, writ denied). See Pike, 727 S.W.2d at 524 (“[I]f the proper facts exist, a jury should be able to consider awarding punitive damages against a municipality.”); Rodriguez, 856 S.W.2d at 560 (upholding an award of exemplary damages against a municipality where a jury found “intentional, willful, wanton, or grossly negligent acts so as to indicate maliciousness or evil intent”). Both Pike and Rodriguez, however, included negligence actions brought under a prior version of the TTCA. As the Bell court explains:

[Pike ] merely held that in a case of negligent performance of a proprietary function, which at that time was not covered by the Tort Claims Act, exemplary damages could be awarded under certain very egregious circumstances. As suggested above, with the repeal of Section 101.058, it is doubtful that the holding in Pike as it might apply to the possibility of exemplary damages in negligence cases is still valid.

Bell, 787 S.W.2d at 528. Thus, neither Pike nor Rodriguez provides authority for upholding an award of exemplary damages against a municipality for a constitutional takings claim.

We follow the El Paso court in Bell and hold that a property owner is not entitled to recover exemplary damages in an inverse condemnation case brought under article I, section 17, of the Texas Constitution. Id. at 528-29. Accordingly, we reverse that portion of the trial court’s judgment awarding exemplary damages and render judgment that the Pollocks take nothing with respect to exemplary damages.

Remaining Issues

Finally, the City argues that even if Pike applies, the Pollocks cannot recover because they do not have a finding of “intentional, willful, or grossly negligent conduct which shows an entire want of care.” See Pike, 727 S.W.2d at 522. Additionally, the City argues that there is legally insufficient evidence of malice. Alternatively, the City argues that the Pollocks’ award of exemplary damages should be reduced because: (1) exemplary damages are capped under section 41.008(b) of the Texas Civil Practices and Remedies Code; and (2) the award is excessive under the due process clause of the Fourteenth Amendment. Because we hold that the Pollocks are not entitled to exemplary damages for a nuisance claim under article I, section 17, we need not address these issues.

Conclusion

We reverse that portion of the trial court’s judgment awarding exemplary damages and render judgment that the Pollocks take nothing with respect to exemplary damages. We affirm the remainder of the judgment.

      . We note that the parties brief the issue of whether the City waived the defense of immunity from liability by failing to plead it in accordance with Texas Rule of Civil Procedure 94. Related to that argument is an argument the City raises in its reply brief: namely, that the trial court erred in refusing to allow the City to amend its pleadings post-verdict to raise the defense of immunity from liability. Because, however, we hold that the City is not immune from the Pollocks' nuisance claim, we need not address these arguments.

      . But see Ellis, 971 S.W.2d at 417-18 (Hecht, J., dissenting) ("As early as 1912, and as recently as last year, this Court has held that a party may complain after verdict and on appeal that evidence admitted without objection is neither legally nor factually sufficient to support the verdict. The Court ignores a solid line of cases establishing this principle with respect to all kinds of evidence, including scientific testimony.... Even if evidence is admitted without objection, it may be insufficient to support a judgment. This Court held eighty-six years ago that 'incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the record without objection.” ") (citations omitted).


text:
    Jaime GARCIA and Blanca Garcia, Appellants, v. Jose Luis RODRIGUEZ, Appellee.
    No. 08-02-00379-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 26, 2004.

      Sergio Gonzalez, El Paso, for Appellant.
    Woodrow Wilson Bean III, El Paso, for Appellee.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

DAVID WELLINGTON CHEW, Justice.

This case arises from a post-answer default judgment against Appellant Jaime Garcia in a suit to quiet title for property located in El Paso County, Texas. On appeal, Appellants Jaime Garcia and Blanca Garcia raise two issues, in which they argue that: (1) the trial court erred in vacating its order granting their motion for new trial because the record reflects they were not given proper notice of the original hearing in this case; and (2) the trial court did not have plenary power to reconsider and re-enter judgment under Rule 329b of the Texas Rules of Civil Procedure. We vacate the trial court’s order and remand this cause to the trial court for further proceedings consistent with this opinion.

On October 17, 2001, Mr. Rodriguez filed a petition to quiet title against several defendants, including Jaime Garcia. The trial court entered a default judgment against Mr. Garcia on April 22, 2002, when he failed to appear for trial. Appellants, represented by counsel, filed a motion for new trial on May 10, 2002 alleging that their failure to appear was the result of accident or mistake, and they asserted the existence of a meritorious defense. On July 1, 2002, the trial court signed an order granting the motion for new trial and setting the case for trial on August 1, 2002. The Appellants and their attorney failed to appear on August 1, 2002, when the trial court called the ease for trial. Consequently, in an order dated August 9, 2002, the trial court set aside its prior order granting the motion for new trial and reinstated the prior default judgment of April 22, 2002. The Appellants filed a notice of appeal on August 23, 2002.

Plenary Power

In Issue Two, Appellants contend the trial court had lost plenary power to vacate its order granting their motion for new trial and reinstating the original default judgment. We agree.

A trial court may only vacate or “ungrant” an order granting a new trial within the plenary power period. Porter v. Vick, 888 S.W.2d 789, 789-90 (Tex.1994)(orig.proceeding); Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 826 (1961). Any order vacating an order granting a new trial which was signed outside the court’s period of plenary power over the original judgment is void. Porter, 888 S.W.2d at 789. Rule 329b of the Texas Rules of Civil Procedure provides in pertinent part:

In the event an original or amended motion for new trial or a motion to modify, correct or reform a judgment is not determined by written order signed within seventy-five days after the judgment was signed, it shall be considered overruled by operation of law on expiration of that period.

Tex.R.Civ.P. 329b(c).

Texas courts have held that the trial court has plenary power to vacate or “un-grant” an order granting a motion for new trial until its plenary power period over the original judgment expires under Rule 329b, that is, for seventy-five days after the date the judgment is signed. See In re Luster, 77 S.W.3d 331, 334-35 (Tex.App.Houston [14th Dist.] 2002, orig. proceeding); Health Care Centers of Texas, Inc. v. Nolen, 62 S.W.3d 813, 816 (Tex.App.-Waco 2001, no pet.); In re Steiger, 55 S.W.3d 168, 170-71 (Tex.App.-Corpus Christi 2001, orig. proceeding); Ferguson v. Globe-Texas Co., 35 S.W.3d 688, 690 (Tex.App.Amarillo 2000, pet. denied); Hunter v. O’Neill, 854 S.W.2d 704, 705 (Tex.App.Dallas 1993, no writ). In In re Steiger, the Court reasoned that under the plain meaning of Rule 329b, the trial court is granted authority for only seventy-five days and there is no provision in the rule that extends the trial court’s authority over a motion granting a new trial when the seventy-five-day period has elapsed unlike Rule 329b(e) which extends the court’s plenary power for an additional thirty days when the motion for new trial is denied. See In re Steiger, 55 S.W.3d at 171; see also In re Luster, 77 S.W.3d at 334-35 n. 1.

In this case, the default judgment was signed April 22, 2002. On July 1, 2002, the trial court granted Appellants’ motion for new trial. On August 9, 2002, the trial court signed an order in which it set aside the order granting a new trial and reinstated the prior default judgment. One hundred and nine days had elapsed since the original default judgment was signed, therefore the trial court did not have authority to vacate its motion for new trial nor authority to reinstate the April 22, 2002 judgment. See In re Luster, 77 S.W.3d at 335; Nolen, 62 S.W.3d at 816. We conclude the trial court’s order setting aside its motion for new trial and reinstating the original default judgment, signed August 9, 2002, is void. We sustain Issue Two. Since this issue is dispositive, we do not reach the merits of Appellants’ first issue.

For the reasons stated above, we vacate the trial court’s August 9, 2002 final order and remand this case to the trial court for further proceedings consistent with this opinion.

      . In Mr. Rodriguez’s response brief, he objects to Ms. Garcia being named as a party to this appeal and contends she lacks standing to prosecute this appeal. Mr. Rodriguez asserts that she was never truly a party to the underlying lawsuit because she was never named as a defendant, had no default judgment entered against her, and did not intervene in the trial court proceedings below. However, Mr. Rodriguez concedes that Ms. Garcia's name was included in the caption of the trial court’s order granting a new trial, the order vacating that prior order and reinstating the default judgment, and the notice of appeal. Generally, only parties of record have standing to appeal. See Continental Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex.1987). However, in this case Ms. Garcia was named as a party to the trial court’s final order is this cause. On its face, the trial court’s order makes a disposition affecting Ms. Garcia. Standing pertains to a person’s justiciable interest in a suit. Roman Forest Pub. Util. Dist. No. 4 v. McCorkle, 999 S.W.2d 931, 932 (Tex.App.Beaumont 1999, pet. denied). To the extent, the trial court’s order purports to affect Ms. Garcia by enforcing a default judgment against her, we find she has standing to complain of that order on appeal.

      . Apparently, Appellants' counsel failed to appear because he was ill with a bout of food poisoning. Counsel’s law partner appeared to inform the court of counsel’s illness and apologized for not being able to appear on behalf of his partner's clients. At a later hearing, Appellants’ counsel explained that his clients did not appear because they were called and told not to go to court.

      . Even assuming that Rule 329b(e) applied to extend the trial court's plenary power period an additional thirty days, this would have no effect in this case because the court's order was signed over 105 days after the original default judgment was signed. See Tex. R.Civ.P. 329b(e).