source: Caselaw Access Project

author: ELSA ALCALA, Justice.

license: Public Domain

text:
    Michael MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-07-00921-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 15, 2009.

      Jonathan Lewis Munier, Houston, for appellant.

      Alan Curry, Chief Prosecutor, Appellate Division, Harris County District Attorney’s Office, Houston, for appellee.
    Panel consists of Justices TAFT, KEYES and ALCALA.
   ABATEMENT ORDER

ELSA ALCALA, Justice.

Appellant, Michael Martinez, appeals from the trial court’s judgment ordering that he serve life in prison for aggravated robbery. Appellant’s court-appointed counsel, who has filed a motion to withdraw from representing appellant, has filed an Anders brief in which he states that no valid grounds for appeal exist and that appellant’s appeal is frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). Appellant filed a pro se response raising four issues. First, appellant contends he did not receive effective assistance of counsel because his attorney did not conduct meaningful voir dire, in that he failed to ask jurors if they could consider the minimum punishment in the case if he were found guilty. Second, appellant asserts the evidence is legally and factually insufficient. Third, appellant claims the State knowingly presented false testimony because the testimony by the officers did not match the version of events the prosecutor related to the jury in the opening statement. Appellant’s fourth challenge concerns the trial court’s failure to instruct the jury that extraneous offenses must be proven beyond a reasonable doubt.

The brief submitted by appellant’s court-appointed counsel states his professional opinion that there are no arguable grounds for reversal on appeal and that any appeal would, therefore, lack merit. See id., 87 S.Ct. at 1400. The State has waived its opportunity to file an appellee’s brief to reply to the arguments presented in appellant’s pro se response.

When this Court receives an An-ders brief from a defendant’s court-appointed attorney who asserts that no arguable grounds for appeal exist, we must determine that issue independently by conducting our own review of the entire record. Id., 87 S.Ct. at 1400 (emphasizing that reviewing court — and not counsel— determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991) (quoting same passage from Anders). An arguable ground for appeal is a ground that is not frivolous; it must be an argument that could “conceivably persuade the court.” See In re Schulman, 252 S.W.3d 403, 407 n. 12 (Tex.Crim.App.2008) (quoting McCoy v. Court of Appeals of Wise., Dist. I, 486 U.S. 429, 436, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440 (1988)). However, “[w]hen we identify issues that counsel on appeal should have addressed but did not, we need not be able to say with certainty that those issues have merit; we need only say that the issues warrant further development by counsel on appeal.” Wilson v. State, 40 S.W.3d 192, 200 (Tex.App.-Texarkana 2001, no pet.) (citing Wilson v. State, 976 S.W.2d 254, 257 n. 4 (Tex.App.-Waco 1998, no pet.)). In conducting our review, we consider any pro se response that the defendant files in response to his appointed counsel’s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex.Crim.App.2005).

Our role in this Anders appeal, which includes a pro se response by appellant, is limited to determining whether arguable grounds for appeal exist. Bledsoe, 178 S.W.3d at 827. If we determine that arguable grounds for appeal exist, we must abate the appeal and remand the case. If the court-appointed attorney has not been withdrawn from the case by the appellate court, the trial court must allow the court-appointed attorney to -withdraw. Id. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the defendant wishes, allow the defendant to proceed pro se. Id. We do not rule on the ultimate merits of the issues raised by appellant in his pro se response. Id. If we determine that there are arguable grounds for appeal, appellant is entitled to have new counsel address the merits of the issues raised. Id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id.

In accordance with Anders, 386 U.S. at 744-45, 87 S.Ct. at 1400, and Bledsoe, 178 S.W.3d at 826-27, we have reviewed the record, appellant’s appointed counsel’s Anders brief, and appellant’s pro se response to that brief, and we conclude that arguable grounds for appeal exist. Having reached that conclusion, we abate this appeal and remand the cause for the trial court to appoint new appellant counsel or, if appellant wishes, allow appellant to proceed pro se. We grant appellant’s appointed counsel’s motion to withdraw.

It is so ordered.

      . At trial, appellant was represented by Jim Leitner. On appeal, he is represented by Craig Bundick. At trial, the State was represented by Denise Bradley. The State did not file an appellate brief.


text:
    Michael MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-07-00921-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 17, 2009.
    Discretionary Review Refused Feb. 10, 2010.

      Jonathan Lewis Munier, Houston, TX, for Appellant.
    Alan Curry, Chief Prosecutor, Appellate Division, Harris County Dist. Attorney’s Office, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION

ELSA ALCALA, Justice.

Appellant, Michael Martinez, appeals from the trial court’s judgment ordering that he serve life in prison for aggravated robbery. See Tex. Penal Code Ann. § 29.03 (Vernon 2003). Appellant pleaded not guilty to the jury, but the jury found him guilty and determined his sentence. In three issues, appellant contends the evidence is factually insufficient; his attorney rendered ineffective assistance of counsel during the voir dire phase of trial by failing to inquire whether the jurors could consider the minimum punishment; and the trial court committed harmful error by failing to sua sponte instruct the jury on the State’s burden to prove extraneous offenses beyond a reasonable doubt in the punishment phase of trial. We conclude the evidence is factually sufficient; appellant’s attorney did not render ineffective assistance during voir dire; and the failure to include the “beyond a reasonable doubt instruction” did not egregiously harm appellant. We affirm.

Background

Steven Kwiatkowski was an undercover narcotics officer with the Houston Police Department (HPD). On December 15, 2005, he and another HPD officer, Berg, went undercover to the Montrose area of Houston to purchase narcotics. They were approached by four people in a car, one of whom was appellant. Appellant asked if the officers were looking for a party. The officers said no. The car left but quickly returned, and the occupants asked the officers if they wished to purchase marijuana. When the officers responded that they wanted cocaine, appellant said they had crack cocaine. As appellant approached the officers with Richard Garza, it appeared to the officers that Garza was carrying a “baggie of crack.” The officers asked for $20 worth of crack.

Instead of tendering the cocaine, appellant pulled out a pistol, placed it to Kwiat-kowski’s stomach, and demanded Kwiat-kowski’s money. Kwiatkowski pulled a $20 bill from his pocket and threw it to the ground. Garza, who also pulled out a gun, picked up the money and told appellant to search Kwiatkowski. Appellant found Kwiatkowski’s police identification in Kwi-atkowski’s wallet. When appellant said, “Oh, hell no,” Kwiatkowski knew appellant had figured out that Kwiatkowski was a police officer. After finding the police identification, appellant fired four shots at Kwiatkowski, hitting him three times in the abdomen and once in the leg, shattering the leg. To defend himself, Kwiatkow-ski retrieved a gun he had hidden on his body and shot at appellant, who ran away with Garza.

After appellant and Garza pulled guns on Kwiatkowski, Berg ran from the scene, until he was approached by a man holding a shotgun. Berg believed the man with the shotgun was one of the two men who had been waiting in appellant’s car. Berg took his own gun and shot at the man with the shotgun. At this point, the surveillance officers, who were the back-up officers for Kwiatkowski and Berg, approached the scene. Walker, one of the surveillance officers, shot and killed the man with the shotgun. Walker also shot another man after that man shot at Walker’s Jeep.

Derrick was an HPD officer on routine patrol when he heard over the radio that an officer was shot. Derrick found a pistol and Kwiatkowski’s wallet in a vacant field near where appellant and Garza were found hiding under a house. Appellant and Garza were found after a police dog followed a scent from the scene where the shooting occurred.

DNA analysis was performed on Kwiat-kowski’s police identification and the guns found at the scene of the shooting. Within a statistical probability, the DNA on those items matched appellant’s DNA.

During voir dire, the State asked the venire members if they could consider the maximum punishment, life in prison. The trial court also mentioned the range of punishment and asked the venire members if they could consider the entire range of punishment. Appellant’s counsel, however, did not ask any questions concerning the range of punishment during his questioning of the panel at voir dire.

After appellant was found guilty of aggravated robbery by the jury, both sides presented evidence in the sentencing phase of trial. The State presented evidence of appellant’s prior convictions, appellant’s unadjudicated extraneous offenses, as well as evidence concerning how the shooting affected Kwiatkowski. However, the jury charge in the punishment phase of trial did not include an instruction that extraneous offenses must be proven beyond a reasonable doubt before the jury could consider the evidence of the extraneous offenses.

After appellant was sentenced, he was appointed appellate counsel who filed an Anders brief stating that no valid grounds for appeal existed and that appellant’s appeal was frivolous. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967). Appellant filed a pro se response raising four issues. Faced with the Anders brief, the State waived the opportunity to file an appellee’s brief.

In January 2009, we issued an order abating the appeal after determining that arguable grounds for appeal exist. We granted appellant’s appointed counsel’s motion to withdraw. We remanded the cause for the trial court to appoint new appellate counsel or, if appellant wished, to allow appellant to proceed pro se. We did not rule on the ultimate merits of the issues raised by appellant in his pro se response. In our order, we stated, “When we identify issues that counsel on appeal should have addressed but did not, we need not be able to say with certainty that those issues have merit; we need only say that the issues warrant further development by counsel on appeal.”

Following our abatement order, the trial court appointed new counsel who has filed a brief presenting the three issues before us in this appeal. We therefore now address the merits of the issues raised by new counsel in this appeal.

Factual Sufficiency of Evidence

In his third issue, appellant contends the evidence is factually insufficient to support the jury’s finding of guilt for aggravated robbery. Specifically, appellant asserts the evidence presented at trial does not support a finding beyond a reasonable doubt that a gunshot by appellant caused the injury of Kwiatkowski. Appellant asserts the verdict is against the great weight and preponderance of the evidence by pointing to (1) the rapidity of the events and (2) the testimony at trial, particularly that of Kwiatkowski, that does not clearly establish the number of shots fired by Garza and by appellant.

A person commits aggravated robbery when he commits robbery and he causes serious bodily injury to another or uses or exhibits a deadly weapon. Tex. Penal Code Ann. § 29.03(a)(2) (Vernon 2003). A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. Id. § 29.02(a)(2). “In the course of committing theft” means conduct that occurs in an attempt to commit theft, during the commission of theft, or in immediate flight after the commission of theft. Id. § 29.01(1). A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of the property. Id. § 31.03(a) (Vernon Supp. 2008). A firearm is considered a deadly weapon. See id. § 1.07(a)(17)(A).

When conducting a factual-sufficiency review, we view all of the evidence in a neutral light. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005); Hoang v. State, 263 S.W.3d 18, 23 (Tex. App.-Houston [1st Dist.] 2006, pet. refd). We will set aside the verdict only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson, 204 S.W.3d at 417. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict. Id. In conducting a factual-sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603-04 (Tex.Crim.App.2003).

Appellate courts should afford almost complete deference to a jury’s decision when that decision is based upon an evaluation of credibility. See Laneon v. State, 253 S.W.3d 699, 705-07 (Tex.Crim.App. 2008). The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court who relies on the cold record. Id. The jury may choose to believe some testimony and disbelieve other testimony. Id.

Appellant challenges the reliability of Kwiatkowski’s testimony by pointing to an inconsistency in Kwiatkowski’s testimony concerning the sequence of the events. Appellant also challenges the reliability of Kwiatkowski’s testimony because Kwiat-kowski acknowledged he was uncertain as to how many shots appellant fired. Kwiat-kowski testified that appellant pulled out a pistol, placed it to Kwiatkowski’s stomach, and demanded money before appellant found Kwiatkowski’s police identification. Kwiatkowski, however, also testified during cross-examination that appellant pulled out his pistol and pointed it at Kwiatkow-ski after Officer Berg attempted to hand Garza a $20 bill.

While Kwiatkowski’s testimony is conflicting as to when appellant pulled out his pistol, when viewed in a neutral light, the evidence shows that appellant pulled out his pistol either before he demanded money from Kwiatkowski or before he took Kwiatkowski’s wallet. Regardless of when appellant pulled out his pistol, the undisputed evidence shows that appellant, in the course of committing theft of Kwiatkow-ski’s property, exhibited a firearm, which is all that is required to establish the offense of aggravated robbery. See Tex. Pen.Code Ann. §§ 1.07(a)(17)(A), 29.02-.03. Furthermore, other evidence supports Kwiatkowski’s testimony concerning the events that occurred. Officer Derrick found a pistol and Kwiatkowski’s wallet in a vacant field near where appellant was arrested. Appellant did not present evidence at trial about the events giving rise to his conviction.

Appellant’s challenge to the factual sufficiency of the evidence is based on the credibility of witnesses and the weight to give their testimony, issues on which we must defer to the jury. See Laneon, 253 S.W.3d at 705. When viewed in a neutral light, the evidence tending to prove that appellant is guilty of aggravated robbery is not so weak as to render the jury’s verdict clearly wrong or manifestly unjust. See Johnson, 23 S.W.3d at 11. Furthermore, when viewed in a neutral light, the verdict is not against the great weight and preponderance of the evidence that appellant committed the offense of aggravated robbery. Id.

We overrule appellant’s third issue.

Ineffective Assistance of Counsel During Voir Dire

In his first issue, appellant contends his trial counsel was ineffective because his attorney did not conduct meaningful voir dire, in that he failed to ask jurors if they could consider the minimum punishment if appellant were found guilty.

To prevail on a claim of ineffective assistance of counsel, the defendant must show that trial counsel’s performance was deficient and a reasonable probability exists that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984). The first prong of the Strickland test requires the defendant to show that counsel’s performance fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999). We look to the totality of the representation and to the circumstances of the case, not to isolated errors. Robertson v. State, 187 S.W.Sd 475, 483-84 (Tex.Crim.App.2006). Thus, the defendant must prove objectively, by a preponderance of the evidence, that trial counsel’s representation as a whole fell below professional standards. Id.; Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Crim.App.2002). The second prong requires that the defendant show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068; Thompson, 9 S.W.3d at 812. Because the reviewing court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. We review voir dire by appellant’s trial counsel in its entirety in ruling on appellant’s claim of ineffective assistance of counsel. See Robertson, 187 S.W.3d at 483-84; Granados v. State, 85 S.W.3d 217, 231 (Tex.Crim.App.2002); Rische v. State, 834 S.W.2d 942 (TexApp.-Houston [1st Dist.] 1992, pet. ref'd).

We cannot conclude that appellant has shown that counsel’s performance fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812. As the record is silent on trial counsel’s reasoning or strategy in refraining from discussing or questioning about the jury’s consideration of the minimum punishment, we presume that his action was strategic. See Thompson, 9 S.W.3d at 814; Apolinar v. State, 106 S.W.3d 407, 416 (Tex.App.-Houston [1st Dist.] 2003), aff'd 155 S.W.3d 184 (Tex.Crim.App.2005). This is not one of those rare cases where no attorney would have engaged in the conduct. Cf. Miles v. State, 644 S.W.2d 23, 24 (Tex.App.-El Paso 1982, no pet.) (holding that counsel rendered ineffective assistance by, among other actions, “not ask[ing] the jury a single question on voir dire”). The record shows the topic of the range of punishment was extensively covered during voir dire. Although the defense attorney did not personally voir dire about the range of punishment, the trial court and the prosecutor both questioned the jury about the full range of punishment. In discussing the punishment range with the venire members, the court stated

All I want to know is this, a commitment from each of you that you can consider the full range of punishment; the low end, the medium and the high end, depending on the facts and circumstances that you hear today. Can you tell us that you will keep an open mind and wait but consider the full range of punishment?

Furthermore, the record shows that the State discussed the punishment range with the prospective jury, stating that “juries in Texas ought to be able to consider the full range of punishment, all the way from five years in prison to 99 years or life in prison.” Because both the trial court and the State discussed the entire range of punishment with the jury prior to the voir dire examination by appellant’s trial counsel, counsel could have reasonably determined further inquiry into the punishment range was unnecessary. Cf. Hines v. State, 144 S.W.3d 90, 97-9 (Tex.App.-Fort Worth 2004, no pet.) (holding that counsel did not render ineffective assistance by only asking venire members whether they could “be fair to both sides” after State’s voir dire discussion of full range of punishment). Moreover, the record shows appellant’s trial counsel asked the venire during voir dire about their feelings about self-defense, police officers, the crime lab in Houston, the presumption of innocence, and other issues related to the case.

We hold appellant has not established the first prong of the Strickland test because appellant has not shown that counsel’s performance fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812. Because appellant has not established the first prong of the Strickland test, we need not address the second prong of the test. Id.; Strickland, 466 U.S. at 687,104 S.Ct. at 2064.

We overrule appellant’s first issue.

Failure to Instruct on Burden of Proof in Punishment Phase

In his second issue, appellant contends the trial court committed harmful error in the sentencing phase of trial by failing to sua sponte instruct the jury that it could not consider evidence of an extraneous offense unless it first determined that the commission of the extraneous offense was proven beyond a reasonable doubt.

A. Standard of Review for Charge Error

In determining whether there is reversible error in the jury charge, we first decide whether error exists, and if error exists, then we determine whether the defendant was harmed. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App.1994). The appellate court must apply the egregious harm standard to review an erroneous jury charge when the defendant’s counsel failed to object to the charge, as in this case. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). If appellant’s counsel did not make a proper objection at trial, appellant “will obtain a reversal only if the error was so egregiously harmful that he has not had a fair and impartial trial.” Id.

B. Extraneous Offense Burden of Proof Charge Is Required

The Texas Code of Criminal Procedure provides that “evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including ... any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has been charged with or finally convicted of the crime or act.” Tex. Code CRIM. PROC. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008). Whether or not the defendant requests the instruction, the trial court must instruct the jury in the punishment phase of trial that extraneous offenses must be proven beyond a reasonable doubt. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000). The trial court is required to give the instruction to the jury as the law of the ease. Id. Therefore, appellant’s failure to object to the jury charge at trial does not waive error; rather, the court’s failure to give the instruction is subject to the egregious harm analysis. Id.; Graves v. State, 176 S.W.3d 422, 435 (Tex.App.-Houston [1st Dist] 2004, pet. struck).

C. Error Analysis

In the punishment phase of trial, the State introduced appellant’s prior convictions as a juvenile and as an adult, as well as testimony about unadjudicated offenses committed by appellant. Appellant did not refute the punishment evidence; the sole challenge was the observation that the unadjudicated extraneous misconduct had not resulted in convictions.

The State introduced a judgment sentencing appellant to the custody of the Texas Youth Commission (TYC) for engaging in delinquent conduct. The delinquent conduct occurred August 16, 2000, when appellant, as a juvenile, committed the offense of fleeing from a police officer on two occasions. In explaining the continuum of sanctions that result in a juvenile being sent to the TYC, a Harris county prosecutor testified that appellant was initially sent to the custody of his parents after his first arrest for evading arrest, but appellant’s custody level was raised after his later arrest for evading arrest. A Harris county juvenile probation officer testified that, while in the custody of the Burnett Bayland Reception Center, appellant was placed on probation for evading arrest, but that probation was revoked when the trial court sentenced appellant to TYC for the later offense of evading arrest.

The State introduced the judgments for appellant’s convictions after he became an adult, which were convictions for carrying a weapon on August 24, 2003 and for unauthorized use of a motor vehicle on November 7, 2003. The State also introduced testimonial evidence describing the facts underlying the convictions. Concerning the carrying a weapon conviction, the State limited the description of appellant’s misconduct on that day to that offense only. In describing the circumstances underlying the unauthorized use conviction, however, the State described not only the unauthorized use circumstances, but also additional misconduct by appellant. Officer Fibich explained that when he attempted to stop the car appellant was driving at four in the morning, appellant and his passenger fled running from their car when their car stopped. Officer Fibich chased them and they were arrested after a search that lasted over an hour. Officer Fibich found a loaded .22 caliber handgun between the center console and the passenger compartment of the car appellant had driven. Officer Fibich testified that appellant was charged with carrying a weapon, evading arrest, and unauthorized use of a motor vehicle, but, at trial, the State introduced the conviction for the unauthorized use only. The record before us does not show the dispositions of the carrying a weapon and evading arrest charges.

The State introduced testimonial evidence describing facts of an August 2005 assault by appellant on Lucy DeJesus, the mother of his child. DeJesus testified that in the presence of her young daughter, appellant became upset with DeJesus and choked DeJesus until she passed out. The responding police officer saw red marks on Dejesus’s neck. DeJesus testified that she was assaulted by appellant more than ten times during the course of their relationship. DeJesus also denied receiving any financial support from appellant to care for their daughter.

The trial court did not err by failing to include a burden of proof instruction for the evidence concerning the offenses that resulted in the prior convictions. Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App.2004) (“While the prior convictions must be properly proved, to require that prior convictions be re-proved beyond a reasonable doubt would be an absurd result, as the very fact of conviction is evidence that the burden of proving guilt beyond a reasonable doubt has already been met in a prior proceeding.”)- The trial court did err, however, in failing to include a burden of proof instruction concerning the unadjudicated offenses introduced in the punishment phase of trial, which include evidence that appellant assaulted DeJesus in August 2005, appellant committed other assaults on DeJesus, and appellant drove a stolen car on the night Kwiatkowski was shot. Appellant was entitled to an instruction that the unadjudi-cated extraneous offenses must be proven beyond a reasonable doubt before the jury can consider them. Huizar, 12 S.W.Bd at 484. We hold the trial court’s charge was erroneous by failing to include the burden of proof instructions for unadjudicated extraneous offenses admitted in the punishment phase of trial. Id.

D. Harm Analysis

Having determined that the trial court erred by failing to charge the jury as required, we examine the record to determine whether appellant was egregiously harmed. Almanza, 686 S.W.2d at 171. Any harm that is inflicted by the erroneous charge must be “assayed in light of (1) the entire jury charge, (2) the state of the evidence, (3) the argument of counsel and (4) any other relevant information revealed by the record of the trial as a whole.” Id.; Ngo v. State, 175 S.W.3d 738, 750 n. 48 (Tex.Crim.App.2005). Jury charge error is egregiously harmful if “it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.” Stuhler v. State, 218 S.W.3d 706, 719 (Tex.Crim.App.2007) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996)). We engage in this assessment to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Furthermore, egregious harm is a difficult standard to meet and must be determined on a case-by-case basis. See Hutch, 922 S.W.2d at 171.

1. The Entirety of the Charge

Although the trial court failed to instruct the jury to not consider the extraneous evidence unless it was proven beyond a reasonable doubt, the charge in the sentencing phase of the trial generally told the jury that the State had the burden of proof throughout the trial. The trial court’s charge to the jury stated, “The burden of proof in all criminal cases rests upon the State throughout the trial and never shifts to the defendant.” However, the general charge did not specifically address the burden of proof for unadjudicat-ed extraneous offenses. We conclude that the general charge instructing the jury that the State has the burden of proof throughout the trial is a circumstance that weighs neither for or against a finding of egregious harm.

2. The Evidence

In examining whether egregious harm occurred from the failure to include the burden of proof instruction for unadjudi-cated extraneous offenses admitted in the punishment phase of trial, we consider whether the evidence was clear, strong, direct and unimpeached. See Zarco v. State, 210 S.W.3d 816, 824-25 (Tex.App.Houston [14th Dist.] 2006, no pet.) (concluding that “clear, direct, and unim-peached testimony” during guilt-innocence phase of trial contributed to finding that defendant was not egregiously harmed by lack of sentencing phase instruction regarding burden of proof for extraneous offenses).

Appellant did not present any evidence challenging the State’s version of the unadjudicated offenses. The unadjudicat-ed offenses were that appellant assaulted DeJesus numerous times, appellant used a stolen ear the night Kwiatkowski was shot, and appellant illegally carried a weapon and evaded arrest in November 2003. The only point made by appellant’s attorney was that these unadjudicated offenses did not result in convictions.

Although the jury charge did not include the instruction that the State had to prove the unadjudicated offenses beyond a reasonable doubt before the jury could consider them, the jury likely believed beyond a reasonable doubt the evidence concerning the unadjudicated offenses because the evidence showing that the unadjudicated extraneous offenses occurred was clear, strong, direct and unimpeached. See id. The inclusion of the jury charge, therefore, would not have made a difference in how the jury considered the evidence. See id.

In examining whether egregious harm occurred from the failure to include the burden of proof instruction for unadjudi-cated extraneous offenses admitted in the punishment phase of trial, we also compare the evidence related to the unadjudicated extraneous offenses with the other guilt and punishment evidence in the case. See Escovedo v. State, 902 S.W.2d 109, 115 (Tex.App.-Houston [1st Dist.] 1995, pet. refd) (finding no indication that jury would have “disregarded or discounted the extraneous offense[s] and assessed a lighter sentence with a burden of proof instruction”); Yates v. State, 917 S.W.2d 915, 923 (Tex.App.-Corpus Christi 1996, pet. refd) (holding that if only one extraneous offense is contested, failure to give burden of proof instruction does not create egregious harm when numerous other extraneous offenses are included in testimony).

In light of the evidence of appellant’s guilt for aggravated robbery in this case, which involves the serious injury to a police officer, the death of appellant’s co-actor, appellant’s long criminal history, and appellant’s numerous encounters with the police, the evidence concerning the unadjudicated offenses does not make the case for punishment clearly more persuasive. Compare Allen v. State, 253 S.W.3d 260, 267-68 (Tex.Crim.App.2008) (finding no egregious harm when case for punishment was not made clearly more persuasive by error) with Ellison v. State, 97 S.W.3d 698, 701 (Tex.App.-Texarkana 2003, no pet.) (holding that appellant was egregiously harmed because sentence could have been substantially affected by evidence that he committed hate crimes). There is no indication that jury would have disregarded or discounted the unadjudicat-ed extraneous offenses and assessed a lighter sentence had a burden of proof instruction been included in the jury charge. See Escovedo, 902 S.W.2d at 115. We conclude that evidence presented by the State of extraneous offenses, in light of appellant’s entire criminal record and the jury’s acceptance of the State’s version of events in its finding appellant guilty of aggravated robbery, weighs against a finding of egregious harm. See Zarco, 210 S.W.3d at 824-25.

3. Arguments of Counsel

Although the State referred to appellant’s unadjudicated extraneous offenses in its closing arguments to the jury, the offenses were included as part of a general theme of appellant’s character in the State’s argument that appellant has “no respect for anyone or anything but himself.” The State used the extraneous offenses to create a pattern of appellant “getting progressively more and more violent,” “evading yet again, running from the police,” and “committing crime after crime after crime.” The State asked for a sentence of life in prison for appellant, in order to “protect [the jury] and all of us from him.” The State, however, did not rely solely on the extraneous offense evidence to argue for a life sentence. Instead, the State also emphasized the violent nature of the offense, the fact that the complainant was a police officer, and the fact that appellant’s action of pulling a gun “put [the] chain of events into motion” that resulted in injury to Kwiatkowski.

Appellant’s counsel argued that while appellant “deserved to be punished,” the jury should “[l]ook at the facts of this case, look at everything in [appellant’s] life,” to determine what sentence is “fair” before giving appellant a life sentence. Appellant’s counsel’s sole challenge to the existence of the unadjudicated offenses was that the conduct did not result in criminal arrests or convictions.

We conclude that the arguments of counsel, in light of appellant’s entire criminal record, the jury’s acceptance of the State’s version of events in its finding appellant guilty of aggravated robbery, and the failure by appellant to mount any serious challenge to the existence of the unad-judicated extraneous offenses, weighs against a finding of egregious harm.

4. Other Relevant Information

In addressing other relevant information, we may consider the severity of the punishment assessed, which may indicate egregious harm in some situations. See Bolden v. State, 73 S.W.3d 428, 432 (Tex.App.-Houston [1st Dist.] 2002, pet. refd). In this case, appellant received a life sentence, the maximum allowed. However, a maximum punishment alone does not indicate egregious harm. See Huizar, 12 S.W.3d at 484. There is no egregious harm if the jury would still have assessed a life sentence, even if properly instructed to consider only extraneous offenses if they first found that appellant had committed those offenses beyond a reasonable doubt. See Allen, 253 S.W.3d at 267-68.

The record, exclusive of the unadjudicat-ed acts of misconduct by appellant presented at the punishment phase of the trial, suggests the jury would have assessed the same sentence. See id. According to the record, appellant pulled out a pistol, placed it to Kwiatkowski’s stomach, and demanded his money. After realizing that Kwiatkowski was a police officer, appellant fired four shots at Kwiatkowski, hitting him three times in the abdomen and once in the leg, causing his leg to shatter. Furthermore, appellant has a lengthy criminal record, including pleas of guilty to two evading arrests committed as a juvenile, juvenile probation that was revoked to confinement in the TYC, a conviction as an adult for carrying a weapon, and a conviction as an adult for the felony of unauthorized use of a motor vehicle. Thus, even if the jury had been properly instructed, it would likely have reached the same result due to the serious injuries to Kwiatkowski and the many prior convictions. See id.

We conclude that the life sentence given by the jury, in light of appellant’s criminal record and the circumstances of the shooting, weigh against a finding of egregious harm.

E. No Finding of Egregious Harm

In determining whether appellant was egregiously harmed, the harm which we must consider is the impact of the omission of a reasonable doubt instruction concerning the unadjudieated offenses. See Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002). Based on our review of the record and the Almanza factors, we cannot conclude that appellant was denied a fair and impartial trial in the jury’s determination assessing a life sentence because the State presented uncontested evidence of appellant’s many prior convictions spanning a number of years of appellant’s life; the State presented largely uncontested evidence of appellant’s unadjudicated extraneous offenses challenged only by the fact that the offenses did not result in arrests or convictions; and the offense for which appellant was convicted was a violent crime to a police officer in an event that caused another person’s death. I'd.; see Almanza, 686 S.W.2d at 178; Yates, 917 S.W.2d at 923 (holding that, although some harm may have resulted from error, it was not egregious harm because State presented overwhelming and uncontested evidence of many other violent acts for jury to consider that justified life sentence and because there was no evidence that extraneous offenses made case for punishment more persuasive).

We hold that the omission of the required jury instruction did not egregiously harm appellant. We overrule appellant’s second issue.

Conclusion

We affirm the judgment of the trial court.

      . In his appellate brief, appellant does not complain that the trial court erred by failing to give a burden of proof instruction for the unadjudicated extraneous offense evidence that appellant illegally carried a weapon and evaded arrest in November 2003. We include this offense in the harm analysis because it is the appellate court's duty to assess non-constitutional harm after a review of the record as a whole. Schütz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App.2001).


author: TERRY JENNINGS, Justice.

text:
    UNION CARBIDE CORPORATION and Hexion Specialty Chemicals, Inc., Appellants, v. Oliver D. SMITH and Peggy Ann Bowen Smith, Appellees.
    No. 01-08-00641-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 1, 2009.
    Reconsideration En Banc Overruled April 19, 2010.

      Karlene Dunn Poll, Baker Botts, L.L.P., Sean Higgins, Wilson, Elser, Moskowitz, Edelman, & Dicker, LLP, Walter Gaylord Lynch, Houston, TX, for Appellant.
    Denyse R. Clancy, Baron & Buce, PC, Dallas, TX, Jed John Borghei, Beverly Hills, CA, for Appellee.
    Panel consists of Justices JENNINGS, ALCALA, and HIGLEY.
   OPINION

TERRY JENNINGS, Justice.

Appellants, Union Carbide Corporation and Hexion Speciality Chemicals, Inc. (“Hexion”), challenge the trial court’s judgment entered in favor of appellees, Oliver D. Smith and Peggy Ann Bowen Smith, after a jury trial, in the Smiths’ suit against Union Carbide and Hexion arising from Oliver’s exposure to asbestos and subsequent development of mesotheli-oma. In its first issue, Union Carbide contends that there is no evidence that it controlled the details of Oliver’s work, which is necessary to establish liability against Union Carbide, as a premises owner, for the injuries of Oliver, an employee of an independent contractor working on Union Carbide’s premises. In its second issue, Union Carbide contends that the evidence is legally and factually insufficient to establish that asbestos exposure at its Texas City plant proximately caused Oliver’s mesothelioma. Specifically, Union Carbide contends that the Smiths presented “no scientifically reliable evidence of the approximate dose of asbestos” to which Oliver was exposed at Union Carbide’s facility, no evidence as to what portion of Oliver’s total asbestos exposure occurred while he worked at Union Carbide, and no evidence that the dose of asbestos to which Oliver was exposed at Union Carbide constituted a substantial factor in causing his mesothelioma.

In its first issue, Hexion contends that the evidence conclusively establishes Hex-ion’s affirmative defense that the Smiths’ claims are barred under the exclusive remedy provision of the Texas Workers’ Compensation Act. In its second issue, Hexion contends that the evidence is legally insufficient to establish that its negligence proximately caused Oliver’s meso-thelioma. Hexion specifically contends that the Smiths presented no evidence “quantifying the approximate dose of asbestos, if any, that [Oliver] received during his employment by Hexion,” of the “threshold below which [Oliver’s] disease would not have occurred,” or that Hexion’s negligence caused Oliver’s mesothelioma “or at least caused him to receive a dose” sufficient to cause mesothelioma. In its third issue, Hexion contends that the evidence is legally insufficient to establish that it was foreseeable to Hexion that Oliver would develop mesothelioma from his asbestos exposure. In its fourth issue, Hexion contends that the evidence is legally insufficient to support the jury’s finding of gross negligence and the imposition of exemplary damages. In its fifth issue, Hexion contends that the trial court erred in allowing the Smiths’ counsel to raise the issue of Hexion’s gross negligence for the first time in her rebuttal argument and thus depriving Hexion of the opportunity to respond to the issue in its closing argument.

We reverse the trial court’s judgment and render a take nothing judgment in favor of Union Carbide and Hexion.

Background

In 2005, Oliver was diagnosed with mesothelioma, a cancer of the lining of his lungs caused by his exposure to asbestos during his employment as a pipefitter and general laborer for numerous employers at numerous work sites throughout his career. The Smiths sued numerous defendants, including Union Carbide, the owner of one of the premises at which Oliver worked as an independent contractor, and Hexion, a successor-in-interest to Smith-Douglas, one of Oliver’s former employers. The case proceeded to trial against Union Carbide and Hexion, and the jury found that the negligence of Union Carbide and Hexion, among others, caused Oliver’s mesothelioma. The jury further found Union Carbide 2% responsible and Hexion 50% responsible for Oliver’s mesothelioma. Finally, the jury found that Hexion was grossly negligent. Pursuant to the jury’s verdict, the trial court entered judgment in favor of the Smiths and against Union Carbide and Hexion and awarded the Smiths damages in the amount of approximately $150,000 against Union Carbide and $4 million against Hexion.

Control

In its first issue, Union Carbide argues that the trial court erred in denying its motion for judgment notwithstanding the verdict because the Smiths presented no evidence that Union Carbide controlled the details of Oliver’s work, which must be shown to establish its liability as a premises owner for the injuries of Oliver, an employee of an independent contractor employer working on Union Carbide’s premises. See Tex. Civ. Prac. & Rem.Code Ann. § 95.003 (Vernon Supp. 2008). Union Carbide asserts that, under Chapter 95, and pursuant to the trial court’s jury charge, the Smiths had to prove that it retained or exercised control over Oliver’s work. Union Carbide further asserts that evidence showing that it provided its contractors with some limited supplies and specifications does not demonstrate that it retained or exercised control over the manner in which Oliver performed his work.

A judgment notwithstanding the verdict is proper when a directed verdict would have been proper. Tex.R.Civ. P. 301; Fort Bend Comity Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991). We review both the denial of a motion notwithstanding the verdict and a challenge to the legal sufficiency of the evidence as “no evidence” points of error. Steinberg v. Comm’n for Lawyer Discipline, 180 S.W.3d 352, 355 (Tex.App.-Dallas 2005, no pet.). We will sustain a legal sufficiency or “no-evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005). In conducting a legal sufficiency review, a court must consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. Id. at 822. If the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. Id. However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. Id. A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement. Id.

The Smiths brought their claims against Union Carbide under Chapter 95 of the Texas Civil Practice and Remedies Code, and neither party disputes its applicability on appeal. Section 95.003 of this chapter, entitled “Liability for Acts of Independent Contractors,” provides,

A property owner is not liable for personal injury, death, or property damage to a contractor, subcontractor, or an employee of a contractor or subcontractor who constructs, repairs, renovates, or modifies an improvement to real property, including personal injury, death, or property damage arising from the failure to provide a safe workplace unless:
(1) the property owner exercises or retains some control over the manner in which the work is performed, other than the right to order the work to start or stop or to inspect progress or receive reports; and
(2) the property owner had actual knowledge of the danger or condition resulting in the personal injury, death, or property damage and failed to adequately warn.

Tex. Civ. Prac. & Rem.Code Ann. § 95.003 (Vernon Supp. 2008).

The requisite control can be contractual or actual. Vanderbeek v. San Jacinto Methodist Hosp., 246 S.W.3d 346, 352 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (citing Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex.2002)). Because the Smiths do not cite any evidence showing that Union Carbide exercised or retained control contractually, we focus on actual control. See id. In order to have actual control, a property owner “must have the right to control the means, methods, or details of the independent contractor’s work to the extent that the independent contractor is not entirely free to do the ivork his oum way,” and the “right to control the work must extend to the ‘operative detail’ of the contractor’s work.” Ellwood Texas Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex.App.-Houston [14th Dist.] 2007, pet. denied) (emphasis added) (citing Chi Energy Inc. v. Urias, 156 S.W.3d 873, 879 (Tex.App.-El Paso 2005, pet. denied)); see also Arsement v. Spinnaker Exploration Co., 400 F.3d 238, 249 (5th Cir.2005) (“The requisite control factor is narrowly construed: the owner must control the “mode or method” of the contractor’s work.”). Actual control is not established by evidence showing that the property owner maintained general “control of the facilities.” Vanderbeek, 246 S.W.3d at 352. Moreover, “merely exercising or retaining a general right to recommend a safe manner for the independent contractor’s employees to perform their work is not enough to subject a premises owner to liability.” Dow Chem. Co., 89 S.W.3d at 607 (emphasis added) (citing Restatement (Second) of Torts § 414 cmt. c (1965)). Finally, the actual control “must relate to the injury the negligence causes.” Dow Chem. Co., 89 S.W.3d at 607.

As noted above, in evaluating actual control, Texas courts have generally focused on determining whether the property owner retained or exercised actual control over the manner in which the plaintiff-independent contractor or subcontractor performed his job. See id.; see also Phillips v. Dow Chem. Co., 186 S.W.3d 121, 136 (Tex.App.-Houston [1st Dist.] 2005, no pet.). In accord with the majority of the Texas courts on this subject, here, the trial court submitted a question to the jury, which neither party challenged, asking the jury to determine whether “Union Carbide exercise[d] or retained] some control over the manner in which [Oliver’s] work at Union Carbide’s premises was performed, other than the right to order the work to start or stop or to inspect progress or receive reports.” An affirmative finding by the jury to this question was a predicate to Union Carbide’s liability in this case.

In support of their argument that Union Carbide retained or exercised actual control over the manner in which Oliver’s work was performed, the Smiths assert that there is evidence that Union Carbide employees “actively poisoned” Oliver’s “breathing zone” while he was working on the Union Carbide premises, “thus ensuring that he could not perform his job in a safe manner.” The Smiths argue that Union Carbide was “in direct control over the activity that harmed” Oliver because “Union Carbide employees working with asbestos pipe insulation in [Oliver’s] vicinity created clouds of asbestos dust to which he was exposed.” The Smiths argue, thus, that, by “actively creating a dangerous condition,” Union Carbide had a duty to warn or protect Oliver.

The Smiths also assert that Union Carbide controlled Oliver’s work by providing Oliver with asbestos gaskets and requiring that he use these gaskets in the course of performing repair and new construction work on Union Carbide premises. The Smiths further assert that Union Carbide retained active control over asbestos-related safety information at the plant. Finally, the Smiths argue that Union Carbide controlled the manner in which Oliver and his employing-contractor performed their work because Union Carbide required, through specifications, that asbestos insulation be applied to the pipes that Oliver and his employing-contractor were constructing.

We first note that there is no evidence to support the Smiths’ assertion that Union Carbide directly employed the insulators whose work created clouds of airborne asbestos dust in Oliver’s vicinity. When asked whether these insulators were Union Carbide employees or contractors applying insulation in his vicinity, Oliver answered, “either one or both.” When asked who tore off the old insulation while he worked at Union Carbide, Oliver stated, “The old insulation that was left would have been either by Carbide or their contractors ... I don’t know for sure which one it was. It was one or the other.” Thus, to the extent that any such evidence is relevant to the issue concerning the manner in which Oliver’s work was performed, there is no evidence that Union Carbide directly employed insulators or controlled other employees who exposed Oliver to asbestos during the course of tearing out or applying asbestos insulation.

Second, although there is some evidence that Union Carbide supplied and specified the use of some asbestos-containing products on its premises, including gaskets and insulation, and although there is even evidence that Union Carbide supplied Oliver with asbestos-gaskets that he used in the course of some of his work at Union Carbide, there is no evidence that Union Carbide exercised or retained any control over the manner in which Oliver’s work was performed, which is what was required by the predicate jury question to impose liability upon Union Carbide and is expressly required by Chapter 95. See Tex. Civ. Prac. & Rem.Code Ann. § 95.003. In fact, Oliver himself testified that no one from Union Carbide ever told him how to do his job, and he agreed that he received all of his work instructions from his contractor employer. Oliver’s exposure to asbestos at Union Carbide did not occur as a result of the mere provision of asbestos-containing gaskets. Rather, Oliver’s exposure occurred, in part, as a result of the manner in which he ground the gaskets, and the fact that he did so without breathing protection or the employ of other safety measures. There is simply no evidence that Union Carbide controlled the manner in which Oliver performed this work. Moreover, although Jim Rapp, a Union Carbide employee, agreed that contractors in general did not have discretion to deviate from Union Carbide specifications, Rapp further stated that Union Carbide did not instruct its contractors on how to do their jobs, noting that they were “craftspeople, and they knew what they were doing.” Rapp stated that Union Carbide was not in control of the details of any contract insulator’s work. We conclude that the fact that Union Carbide provided certain specifications and materials for the projects to be completed on its premises does not constitute evidence that Union Carbide retained or exercised any control over the manner in which Oliver performed his work. See Koch Refining Co. v. Chapa, 11 S.W.3d 153, 156 (Tex.1999) (“Every premises owner must have some latitude to tell its independent contractors what to do, in general terms, and may do so without becoming subject to liability.”).

Finally, the Smiths refer us to Rapp’s testimony that Union Carbide supplied the contractor or employee insulators over whom he had supervision with information about the hazards of asbestos at safety meetings. The Smiths also cite excerpts from Union Carbide’s manual for contractors, which provides that safety meetings would be conducted when warranted and that the contractor’s supervisors would be required to attend such meetings. However, this evidence is not sufficient to impose liability upon Union Carbide. See Bright, 89 S.W.3d at 608 (holding that presence of property owner’s safety employee and implementation of safe-work permit system insufficient to establish actual control); Ellwood Texas Forge Corp., 214 S.W.3d at 702 (stating that “a premises owner, by requiring an independent contractor to follow its safety rules and regulations, does not owe the independent contractor’s employee a duty to ensure that the employee does nothing unsafe,” and that “the premises owner assumes only a narrow duty to ensure that its rules or requirements do not unreasonably increase the probability and severity of injury”).

We hold that the Smiths presented legally insufficient evidence to support the jury’s finding that Union Carbide exercised or retained some control over the manner in which Oliver’s work at Union Carbide’s premises was performed, other than the right to order the work to start or stop or to inspect progress or receive reports. Accordingly, we further hold that the trial court erred in denying Union Carbide’s motion for judgment notwithstanding the verdict.

We sustain Union Carbide’s first issue. Having sustained Union Carbide’s first issue, we need not consider Union Carbide’s second issue, in which it contends that the evidence is legally insufficient to support the jury’s negligence finding against Union Carbide.

Workers’ Compensation

In its first issue, Hexion argues that the trial court erred in denying its motion for judgment notwithstanding the verdict because the evidence conclusively established Hexion’s affirmative defense that the Smiths’ claims are barred under the exclusive remedy provision of the Texas Workers’ Compensation Act. See Tex. Lab.Code Ann. 408.001-408.222 (Vernon 2006 & Supp. 2008).

The Smiths sued Hexion both in its capacity as a direct employer of Oliver and in its capacity as the “successor-in-interest to the liabilities of Smith-Douglas Company, Inc.,” Oliver’s former employer. In their petition, the Smiths alleged that Oliver , was employed by Hexion at its Texas City facility as a pipefitter from approximately 1957 to 1968. During this time, Oliver was continually exposed to asbestos and Hex-ion, as Oliver’s employer, breached its duty to provide Oliver a safe work environment. The Smiths further alleged that Oliver’s mesothelioma was caused by his employment with Hexion “and/or its predecessors-in-interest” Smith-Douglas. The Smiths’ allegations against Hexion, in its capacity as his direct employer and in its capacity as successor-in-interest to Smith-Douglas, his former employer, were identical. Moreover, because the Smiths alleged that Oliver was exposed to asbestos during his entire time at Hexion’s facility, they did not make any specific allegation as to Oliver’s exposure only during his employment at the Hexion facility as a direct employee for Hexion or during Oliver’s employment at the facility for Smith-Douglas. At trial, the Smiths also presented evidence that Oliver was exposed to asbestos during his entire employment at Hexion’s facility both initially as an employee of Smith-Douglas and subsequently as a direct employee of Hexion.

The parties agree that, from 1957 until 1964, Oliver worked at Hexion’s facility as an employee of Smith-Douglas and that, on December 30, 1964, Hexion, then known as the Borden Company, acquired Smith-Douglas through a merger, making Hexion the successor-in-interest to the assets and liabilities of Smith-Douglas. Oliver continued to work at Hexion’s facility until 1968, which, after the merger, was operated as the Smith-Douglas division of Hexion. It is undisputed that after the merger, Hexion provided workers’ compensation insurance to its employees at the facility, including Smith, and that this coverage remained in place for the duration of Oliver’s employment with Hexion. The policies provided workers’ compensation coverage for injuries “by disease caused or aggravated by exposure of which the last day of the last exposure, in the employment of the insured, to conditions causing the disease occurs during the policy period.” Thus, it is undisputed on appeal that Oliver was covered'by workers’ compensation insurance while employed by Hexion after the merger and that this workers’ compensation coverage applied to his mesothelioma.

Prior to trial, Hexion sought summary judgment on all of the Smiths’ claims on the ground that the claims are barred by the exclusive remedy provision of the Texas Workers’ Compensation Act (the “Act”). The trial court granted Hexion summary judgment in part “as to claims relating to the period on or after January 1, 1965,” the date of the merger. However, the trial court denied Hexion’s summary judgment motion as to the Smiths’ claims against Hexion “related to the period before January 1, 1965,” the period before the merger in which Oliver was employed by Smith-Douglas. Thus, the effect of the trial court’s summary judgment ruling was that the Smiths were barred from pursuing their claims against Hexion, in its capacity as Oliver’s direct employer, arising from Oliver’s exposure to asbestos at Hex-ion post-merger. However, the Smiths were allowed to pursue their claims against Hexion in its capacity as successor-in-interest to Smith-Douglas arising from Oliver’s exposure to asbestos at Hexion’s facility pre-merger.

During trial, Hexion sought a directed verdict on the Smiths’ claims against it in its capacity as the successor-in-interest to Smith-Douglas, again citing the exclusive remedy provision of the Act. Hexion noted that the Act treats occupational diseases as a single injury arising when the employee knows or should know that he has an occupational disease and that the relevant policies provided coverage for Oliver’s mesothelioma. Hexion asserted that the “exclusive remedy provision” of the Act should not be disregarded “merely because Hexion acquired Smith-Douglas and merged it into Hexion.” The Smiths responded that the bar under the Act does not apply to their claims made against Hexion in its capacity as successor-in-interest to Smith-Douglas. The trial court denied Hexion’s motion for directed verdict. Hexion subsequently filed its motion for judgment notwithstanding the verdict, which the trial court also denied.

The exclusive remedy provision of the Act provides,

(a) Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

Tex. Lab.Code Ann. § 408.001 (Vernon 2006); see also id. § 406.031(a) (Vernon 2006) (providing that insurance carrier is liable for employee’s injury without regard to fault or negligence if at time of injury employee is subject to subtitle and injury arises out of and in course and scope of employment); id. § 406.031(b) (providing that if injury is occupational disease, employer “in whose employ the employee was last injuriously exposed to the hazards of the disease is considered to be the employer of the employee under this subtitle”); id. § 408.007 (providing that “date of injury” for occupational disease is date on which employee knew or should have known that disease may be related to employment).

Here, both the Smiths and Hexion agree that Oliver’s mesothelioma qualifies as a work-related injury. Also, the Smiths have not challenged the trial court’s summary judgment ruling barring them from pursing their claims against Hexion related to Oliver’s asbestos-exposure at Hex-ion’s facility following the merger on the basis of the exclusive remedy provision of the Act. Rather, the sole dispute presented in this appeal in regard to the workers’ compensation issue is whether the exclusive remedy provision of the Act applies to the Smiths’ claims made against Hexion in its capacity as successor-in-interest to Smith-Douglas that are related to Oliver’s exposure at Smith-Douglas prior to the merger.

Although this specific issue is one of first impression, our sister court has considered a closely related matter. See Davis v. Sinclair Refining Co., 704 S.W.2d 413, 414 (Tex.App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.). There, Davis, the plaintiff, sought to recover damages beyond what he had received under the existing workers’ compensation laws for injuries that he had sustained while working at an Arco refinery. Id. In 1965, Sinclair Refining owned the refinery and, during its ownership, it had negligently installed a connection to a pump. Id. In 1968 and 1969, Sinclair Refining merged with Sinclair Oil, which then merged with Arco. Id. After these mergers, Davis, who had been hired by Arco to work at the refinery, was instructed to make repairs to a leak in the pump. Id. During his repairs, the faulty connection on the pump gave way and Davis was burned. Id. Davis received workers’ compensation from Arco’s insurance carrier, but he also filed a separate lawsuit against both Sinclair and Arco for Sinclair’s negligence in installing the connection. Id. Sinclair and Arco sought summary judgment on the ground that Davis had elected his remedy and accepted his benefits under the Act. Id.

In an effort to avoid the exclusive remedy provision of the Act, Davis, citing another provision which allowed an injured employee to sue a third party tortfeasor whose negligence caused his injuries, argued that he should be allowed to sue Arco because Arco, through the mergers, had “assumed, by contract and operation of law, the obligations and liabilities of a third party tortfeasor, Sinclair Refining.” Id. In order to answer the issue, the court examined the history and purpose of the Act. Id. at 415. The court first noted that the Act was “intended to and [did] provide an exclusive system governing compensation to employees for injuries arising from their employment.” Id. Also, “[i]n taking away from the subscribing employer certain defenses and relieving the employee of the burden of proving negligence, it was provided that these benefits are made available in derogation of the employee’s rights at common law.” Id. The court further noted that the system is “voluntary and elective upon the decision of both the employer and employee” and “when the two [had] elected to participate under the Act, they [had] voluntarily agreed that the rights and remedies otherwise existing under the common law shall not be operative.” Id. The court held that because Davis had elected his remedy against his employer, Arco, he should not then be allowed to attempt to distinguish his employee status and sue Arco again by “invoking the third party tortfeasor exception to the Act.” Id. at 416. The court concluded, “The Act is very clear; once the employee elects to accept benefits from the employer under the Act, he has no further cause of action against the employer.” Id.

In holding that Davis’s claims were barred by the exclusive remedy provision of the Act, the court rejected Davis’s argument that he had retained his claims against Arco “because Arco assumed the liabilities of Sinclair Refining under the merger laws of the Texas Business Corporation Act.” Id. at 415 (citing Tex. Bus. Corp. Act Ann. art. 5.06 (Vernon Supp. 2008) (providing that “separate existence of every domestic corporation that is a party to the merger, except any surviving or new domestic corporation, shall cease” and that “all liabilities and obligations” of merged corporation “shall be allocated” to surviving or new corporation)). The court emphasized that “the corporate merger statutes were not intended to be used to circumvent the clear public policy” of the Act. Id.

Here, similar to Davis, the Smiths do not seek to impose liability upon Hexion for Hexion’s individual negligence post-merger in its capacity as Oliver’s direct employer. Those claims were resolved by the unchallenged summary judgment ruling which was based upon the exclusive remedy provision of the Act. Rather, the Smiths seek to impose liability upon Hex-ion for the negligence of Smith-Douglas, Hexion’s predecessor and Oliver’s former employer, which occurred prior to the merger. We recognize the obvious factual distinctions from Davis, i.e., that, unlike Oliver, Davis was never an employee of the predecessor corporation (Sinclair) that committed the negligence for which he sought to hold his employer (Arco) liable. This factual distinction makes stronger the argument for the application of the exclusive remedy provision of the Act in this case. Here, during Oliver’s tenure as a worker at the Hexion facility, he worked first as an employee of Smith-Douglas and then, post-merger, as a direct employee of Hexion at the Smith-Douglas division. At the time of the merger, Hexion purchased workers’ compensation insurance. The insurance, by its plain terms, applies coverage for Oliver’s occupational disease, and even the Smiths do not challenge the applicability of the insurance policy, at least as to Oliver’s mesothelioma arising from his asbestos-exposure that occurred post-merger. Accordingly, we hold that Oliver’s claims against Hexion, his employer, arising from his abestos-exposure while working at the Hexion facility as an employee of Smith-Douglas, are barred by the exclusive remedy provision of the Act.

We decline the Smiths’ request to apply, on the facts presented, the “dual-persona” doctrine as a means to avoid the exclusive remedy provision of the Act. See Davis, 704 S.W.2d at 414 (explaining that “dual persona” doctrine is “a concept based upon the surviving corporation’s responsibilities under the statutory merger scheme as separate from its role as corporate employer under the workers’ compensation laws”). The “dual-persona” doctrine has never been adopted by a Texas court as a means for imposing liability on a subscribing employer and avoiding the exclusive remedy provision of the Act. In fact, in Davis, although the court devoted its most substantial discussion to the scope of the dual-capacity doctrine, and provided only passing reference to the dual-persona doctrine, the underlying facts addressed by the court in that case actually more closely implicated the dual-persona doctrine, which the court impliedly rejected. See Davis, 704 S.W.2d at 414-15.

Even if we were inclined to apply a limited dual-persona doctrine, we note that courts in other jurisdictions have applied this doctrine on facts more akin to those presented in Davis than those presented in the instant case. See Percy v. Falcon Fabricators, Inc., 584 So.2d 17, 18 n. 3 (Fla. 3d DCA 1991) (describing “dual persona” as “focus[ing] not on whether the employer was acting in his capacity as provider of services on the job site or manufacturer of equipment used on the job site, but on the corporate merger by which the successor corporation, which coincidentally is also the employer, assumed the debts and liabilities of the entity that manufactured the product ”) (emphasis added); Kimzey v. Interpace Corp., Inc., 10 Kan.App.2d 165, 694 P.2d 907, 912 (1985) (applying dual-persona doctrine and noting that “[pjlaintiff s action is essentially an attempt to recover from a third-party manufacturer of a defective machine through a suit against its successor corporation.”); Billy v. Consol. Mach. Tool Corp., 51 N.Y.2d 152, 162, 432 N.Y.S.2d 879, 412 N.E.2d 934 (N.Y.1980) (applying dual-persona doctrine and noting that “[ijnasmuch as plaintiffs action represents essentially an attempt to recover from third-party manufacturers through a suit against their corporate successor, plaintiff should be permitted to maintain the action, notwithstanding that the successor corporation is also an employer which would otherwise be immune from suit”).

Moreover, we cannot agree with the Smiths that section 417.004 of the Act, entitled “Employer Liability to Third Party,” somehow evidences a legislative intent to adopt the dual-persona doctrine. Section 417.004 provides,

In an action for damages brought by an injured employee, a legal beneficiary, or an insurance carrier against a third party liable to pay damages for the injury or death under this chapter that results in a judgment against the third party or a settlement by the third party, the employer is not liable to the third party for reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability.

Tex. Lab.Code Ann. § 417.004 (Vernon 2006). By its plain terms, section 417.004 protects a workers’ compensation subscriber from liability to a third-party who is liable to pay damages for the injury or death “under this chapter that results in a judgment against the third party or a settlement by the third party” in the absence of a “written agreement with a third party to assume liability.” See id.

Finally, contrary to the Smiths’ argument otherwise, the Texas Supreme Court did not effectively adopt the dual-persona doctrine in Enserch Corp. v. Parker, 794 S.W.2d 2 (Tex.1990) and Dorchester Gas Corp. v. American Petrofina, Inc., 710 S.W.2d 541 (Tex.1986). In Enserch Corp., the supreme court considered the “enforceability of an indemnity agreement” entered into between a pipeline owner and operator, Enserch, and a contractor-employer, Christie, which provided that Christie assumed all liability for any claims arising out of the performance of the contract and that Christie would indemnify Enserch in respect of any such matters. 794 S.W.2d at 4, 6-7. Two Christie employees were subsequently killed in performing the work specified in the contract, and the workers brought suit against En-serch, who then sought indemnity from Christie based upon their indemnity agreement. Id. at 4. The court considered a predecessor version of section 417.004, which prohibited “indemnity in the workers’ compensation context unless one party expressly agrees to indemnify the other in writing.” Id. at 7. The court, in examining the indemnity language, concluded that the contractor-employer had “expressly assumed liability for injuries to its own employees” in the indemnity agreement with the pipeline owner and, thus, the pipeline owner’s indemnity claim was not barred by the Act. Id. at 8. Enserch Corp. did not involve an employee’s ability to sue its own subscribing employer under the dual-persona doctrine.

In Dorchester Gas Corp., Fina sold a refinery to Dorchester, a Dorchester employee was subsequently injured and collected workers’ compensation benefits, and the worker and carrier then sued Fina. 710 S.W.2d at 541-42. Fina settled the suit and then filed suit against Dorchester seeking indemnity for the settlement payment based upon the indemnity clause in the purchase and sale agreement. Id. at 542. The court held that the indemnity clause did not reflect that the parties had clearly and unequivocally intended for Dorchester to indemnify Fina against all injury or damages, whether or not they were based upon Fina’s negligence or due to Fina’s supplying of a defective product. Id. at 543-44. The court did not consider the exclusivity provision of the Act or the dual-persona doctrine in its opinion.

In sum, having concluded that there is no authority in Texas for applying the dual-persona doctrine under these circumstances, and having rejected the Smiths’ arguments that this doctrine has been effectively adopted by the Texas Supreme Court, we decline to apply it here as a means to impose liability upon Hexion in contravention of the exclusive remedy provision of the Act. Accordingly, we hold that the trial court erred in denying Hex-ion’s motion for judgment notwithstanding the verdict.

We sustain Hexion’s first issue. Having held that the Smiths’ claims against Hex-ion are barred by the exclusive remedy provision of the Act, we need not consider Hexion’s remaining issues.

Conclusion

We reverse the trial court’s judgment and render a take nothing judgment in favor of Union Carbide and Hexion.

      . Hexion was formerly known as Borden Chemicals, Inc., Borden, Inc., and The Borden Company.

      . Oliver D. Smith died as a result of the disease following the trial court proceedings.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 95.003 (Vernon Supp. 2008).

      . See Tex. Lab.Code Ann. §§ 408.001-408.222 (Vernon 2006 & Supp. 2008).

      . Chapter 95 applies only to a claim “(1) against a property owner, contractor, or subcontractor for personal injury, death, or property damage to an owner, a contractor, or a subcontractor or an employee of a contractor or subcontractor; and (2) that arises from the condition or use of an improvement to real property where the contractor or subcontractor constructs, repairs, renovates, or modifies the improvement.” See Tex. Civ. Prac. & Rem. Code Ann. § 95.002 (Vernon Supp. 2008); see also id. § 95.001(1), (3) (Vernon Supp. 2008) (defining "Claim” as "a claim for damages caused by negligence, including a counterclaim, cross-claim, or third party claim” and "Property owner" as "a person or entity that owns real property primarily used for commercial or business purposes”).
      We note that our sister court has recently issued a plurality opinion questioning the broad application of Chapter 95 by Texas courts. See Hernandez v. Brinker Int’l, Inc., 285 S.W.3d 152 (Tex.App.-Houston [14th Dist.] 2009, no pet.). However, the Smiths’ case against Union Carbide was tried under Chapter 95, the unchallenged jury charge predicated Union Carbide’s liability based upon the requisite findings under Chapter 95, and the parties on appeal agree that Chapter 95 was properly applied. The sole issue presented by the parties in this appeal in regard to Chapter 95 is whether there is sufficient evidence to support the jury’s finding that Union Carbide controlled the details of Oliver’s work and, thus, whether Union Carbide is liable to the Smiths for causing Oliver's mesothelioma.

      . Union Carbide does not challenge the sufficiency of the evidence to support a finding that, as the property owner, it had actual knowledge of the danger or condition resulting in Oliver’s mesothelioma and failed to adequately warn. See Tex. Civ. Prac. Rem.Code Ann. § 95.003(2) (Vernon Supp. 2008). Accordingly, our focus is on the control issue in section 95.003(1). See id. § 95.003(1).

      . Here, the jury was asked in the charge to determine whether "Union Carbide exercise[d] or retain[ed] some control over the manner in which [Oliver’s] work at Union Carbide’s premises was performed,_” (Emphasis added). Because the Smiths did not challenge this jury question at trial or on appeal, we may not consider whether the question properly focused solely on whether Union Carbide controlled the manner of Oliver's work, as opposed to the work being performed by the other contractors or employees on Union Carbide's premises. We note that the question as phrased many not be appropriate in all cases brought under Chapter 95. For example, here, the Smiths argued at trial that Oliver was exposed to asbestos at Union Carbide both directly in the course of work he performed and as a bystander to the work performed by other Union Carbide employees or contractors. Under these facts, the submission of a question that focuses solely on the property owner’s control over the plaintiff-contractor's work omits any inquiry into whether the property owner exercised control over the other injury-causing work being performed by other non-plaintiff contractors or employees. Section 95.003, by its plain terms, does not appear to have such a limited focus, at least in all cases. Instead, section 95.003 refers to whether the property owner exercised or retained control over the manner in which “the work” is performed. Tex. Civ. Prac. & Rem.Code Ann. § 95.003(1). In cases where the plaintiff-independent contractor alleges that the owner’s direct employees or third-party contractors performed the injury-causing work, "the work” contemplated by Chapter 95 potentially includes reference to the injury-causing work performed by the property owner’s employees or third parties. The relevant Texas Pattern Jury Charge supports the idea that a jury question, under facts similar to those presented here, might appropriately be more broadly focused on the injury-causing work rather than limited solely to the work performed by the plaintiff-independent contractor. Specifically, in a Chapter 95 case, a jury might be appropriately asked whether the property owner exercised or retained some control over "the manner” in which "the injury-causing” or "the defect-producing" work was performed, other than the right to order the work to start or stop or to inspect the progress or receive reports. See State bar of Tex., Texas Pattern Jury Charges-Malpractice, Premises & Products PJC 66.14 (2008). The comments to this pattern jury charge further state that "[tjerms describing the particular work alleged to have caused the injury or produced the defect should be substituted” for the above quoted phrases in the charge and that ”[i]f it is agreed that the case involves only one condition,” it is recommended "that the particular condition ... be substituted for the phrase the condition." See State bar of Tex., Texas Pattern Jury Charges-Malpractice, Premises & Products PJC 66.14 cmts. (2008). Nevertheless, absent any challenge to this question at trial and on appeal, we focus on the sufficiency of the evidence to support the jury's finding that Union Carbide exercised or retained control over the manner in which Oliver's work was performed.

      . The trial court’s granting of summary judgment in favor of Hexion "as to claims relating to the period on or after January 1, 1965” applied to all of the Smiths’ claims against Hexion, in its individual capacity, including the Smiths’ gross negligence claims.

      . Although Davis cited a section from the predecessor version of the Act, the current Act continues to authorize an employee to seek damages from a third-party tortfeasor. See Tex. Lab.Code Ann. § 417.001(a) (Vernon 2006) ("An employee or legal beneficiary may seek damages from a third party who is or becomes liable to pay damages for an injury or death that is compensable under this subtitle and may also pursue a claim for workers' compensation benefits under this subtitle.").

      . We note that although Hexion argues in its briefing against the application of the “dual-capacity" doctrine, the Smiths do not suggest that Hexion should be held liable under this doctrine. In fact, the Smiths recognize that Texas courts have rejected the dual-capacity doctrine. See Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 20 n. 4 (Tex.2000) (explaining that, under "dual capacity” doctrine, "an employer normally shielded from liability by the workers’ compensation exclusive-remedy principle may become liable in tort to an employee if it occupies, in addition to its capacity as an employer, a second capacity that confers on it obligations independent of those imposed on it as an employer”; noting that Texas courts of appeals have “uniformly rejected” dual-capacity doctrine); Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101, 108 (Tex.App.-Dallas 1992, writ denied) (stating that “Texas law currently mandates against the judicial adoption of this [dual-capacity] doctrine”).