author: LEE DUGGAN, Jr., Justice (Assigned).

text:
    ANA, INC. d/b/a A-Mart, Appellant, v. Dorothy LOWRY, Appellee.
    No. 01-98-01097-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 26, 2000.

      Percy L. Isgitt, Houston, for appellant.
    Rodney Merwin, Houston, for appellee.
    Panel consists of Justices MIRABAL, TAFT, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

LEE DUGGAN, Jr., Justice (Assigned).

I.

PROCEDURAL HISTORY

This is an appeal by a convenience store owner from a judgment entered on a jury verdict finding the owner liable under re-spondeat superior for its employee’s alleged assault upon a customer. Appellant, ANA, Inc., argues, inter'alia, that it is not liable for its employee’s alleged actions because that employee was not acting within the scope of his authority and was not ANA’s vice principal. We reverse and remand.

II.

BACKGROUND

ANA, which does business as A-Mart, owns and operates a convenience store. Appellee, Dorothy Lowry, testified that on August 16, 1995, she went into A-Mart to buy a jar of mayonnaise. She commented to the employee behind the counter, Yun Byeyong, that the prices were too high. Byeyong became verbally abusive toward her, reached toward her over the counter, and then ran around the counter and reached for her. Lowry testified that, in her attempt to evade him, she ran into a potato chip rack and a burglar bar next to the front door, felt his hand on her back or shoulder, and fell on the ground outside the store. Finally, she testified that Byey-ong followed her outside and kicked her car door. ANA provided no evidence at trial, and its substantive interrogatory responses regarding its version of events on August 16 were not presented to the jury. Because Lowry was the only person to testify at trial, her version of events was all the jury had to consider.

Lowry sued ANA, alleging personal injuries resulting from Byeyong’s assault and battery, negligence, malice, and gross negligence. A jury found that: (1) Byey-ong assaulted. Lowry; (2) Byeyong proximately caused Lowry’s injuries through negligence; (3) Byeyong was acting within the scope of his employment when the incident occurred; (4) the injuries Byey-ong inflicted rose to the level of gross negligence; (5) Byeyong was a vice principal for ANA; and (6) ANA was liable for Lowry’s actual and exemplary damages.

On appeal, ANA asserts in five points of error that: (1) the jury’s finding that ANA was hable for Byeyong’s actions was “improper”; (2) there is no evidence that Byeyong was acting within the scope of his employment; (3) there is insufficient evidence that Byeyong assaulted Lowry; (4) there is no evidence or insufficient evidence that Byeyong was ANA’s vice principal; and (5) there is insufficient evidence to support the jury’s award of exemplary damages.

III.

DISCUSSION

A. Whether Byeyong acted within the scope of his employment

ANA combines consideration of its first two points of error into a single section of its brief. The first point of error asserts that the jury “improperly” found ANA liable for Byeyong’s allegedly tortious actions because Byeyong was not acting within the scope of his employment. ANA’s second point of error argues there was no evidence that Byeyong acted within the scope of his employment when he allegedly assaulted Lowry. The text of the discussion, however, addresses the “no evidence” argument without explaining how, independent of the “no evidence” argument, the jury’s finding of liability was “improper.” We will consider the two points of error together as one “no evidence” complaint.

When considering a “no evidence” challenge, we review all evidence in the light most favorable to the prevailing party, indulging every reasonable inference in its favor. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998). If there is any evidence of probative force to support the fact finder’s findings, i e., more than a mere scintilla, we overrule the point. Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex.App.—Houston [1st Dist.] 1993, writ denied).

When an employee assaults a third party, the trier of fact must “determine whether the employee ceased to act as an employee and acted instead upon his own responsibility.” Durand v. Moore, 879 S.W.2d 196, 199 (Tex.App.—Houston [14th Dist.] 1994, no writ) (citing Houston Transit Co. v. Felder; 146 Tex. 428, 208 S.W.2d 880, 882 (1948)). In Texas & Pacific Railway v. Hagenloh, the Texas Supreme Court delineated the limits of an employer’s responsibility for an employee’s assault on a third party. 151 Tex. 191, 247 S.W.2d 236, 239-41 (1952). Hagenloh noted that an employer is ordinarily not liable for an employee’s assault:

It is not ordinarily within the scope of a servant’s authority to commit an assault on a third person.... And the cases in which liability has been imposed upon the master for assault by his servant are comparatively few. Usually assault is the expression of personal animosity and is not for the purpose of carrying out the master’s business.
... [W]hen the servant turns aside, for however short a time, from the prosecution of the master’s work to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone.

Id. at 239, 241 (quotations and citations omitted).

Hagenloh also explained, however, that an assault could fall within the employee’s scope of employment when the employee’s duty necessitates the use of force in certain situations:

The nature of the employment may be such as necessarily to involve at times the use of force as where the employee s duty is to guard the employer’s property and to protect it from trespassers so that the act of using force may be in furtherance of the employer’s business, making him liable even when greater force is used than is necessary.

Id. at 239.

Several more recent decisions have further elaborated on the limits of the scope of employment for an assault. In Viking v. Circle K Convenience Stores, Inc., this Court considered a convenience store employee who, upon hearing that the plaintiff had scratched the paint on the employee’s car, left the store, retrieved a pistol, and fired at the plaintiff, who was approximately one-half block away. 742 S.W.2d 732, 733-34 (Tex.App.—Houston [1st Dist.] 1987, writ denied). The plaintiff, who was struck in the leg, sued the convenience store owner. We held that the employee’s “conduct in pursuing the [plaintiff] into the street and shooting him for scratching [the employee’s] car cannot reasonably be construed as obeying [the employer’s] instructions or as arising from his employment.” Id. at 734.

Similarly, in Kendall v. Whataburger, Inc., we found that a fast food employee’s conduct, in throwing a greasy, hot, french fry basket on the plaintiff, “could not possibly have been so connected with and immediately arising out of his job of taking food orders, and preparing and delivering food orders to customers, that his authorized employment tasks and the assault could have merged into one indivisible tort, imputable to the [employer].” 759 S.W.2d 751, 755 (Tex.App.—Houston [1st Dist.] 1988, no writ).

In both of these decisions, the employees’ actions were entirely unrelated to their respective duties. Other decisions, however, have imputed liability to the employer when the employee’s actions were more closely related to business responsibilities. In Frito-Lay, Inc. v. Ramos, for example, a snack company employee engaged in an altercation with a store owner, shoving and injuring him, as he attempted to remove his company’s merchandise rack from the store. 770 S.W.2d 887, 888 (Tex.App.—El Paso 1989), rev’d on other grounds, 784 S.W.2d 667 (Tex.1990). The El Paso court determined that the jury’s finding that the employee was acting within the course and scope of his employment was not against the great weight and preponderance of the evidence; the altercation involved the employee’s “right to certain personal property” and his conclusion that, “as a company employee, he was obligated to remove all company equipment.” Id. at 889.

In Durand v. Moore, a night club doorman had responsibilities including “checking IDs, enforcing the dress code, and coordinating the admission of customers into the club.” 879 S.W.2d 196, 198 (Tex.App.—Houston [14th Dist.] 1994, no writ). The doorman assaulted two people standing in line, but the appellate court found there was evidence showing that the employee’s “assault of [the customers] was overzealous enforcement of the criteria and procedures used to select waiting customers for admittance into the club.” Id. at 198-99. In particular, Durand noted that “there was evidence that [the doorman] had the responsibility to control the admittance of customers into the club” and that the altercation arose from the doorman’s preferential treatment of certain customers. Id. at 200. The court determined this evidence that the doorman acted within the course and scope of his employment was sufficient to overrule the night club owner’s no evidence and factual insufficiency arguments. Id. at 200-202.

As these cases indicate, an employer will be held liable for its employee’s assault on a third party only if that assault stems directly from the employee’s exercise (however inappropriate or excessive) of a delegated right or duty. Thus, our case turns on whether Byeyong’s alleged actions were an overzealous misuse of his authority as an employee or were utterly unrelated to his duties.

Here, there was no testimony from Byeyong or anyone from ANA regarding Byeyong’s duties or responsibilities at the A-Mart. Lowry testified that Byeyong was alone in the store when the altercation occurred and appeared to be “managing the entire facility,” but she also stated she had never met him before the day of the altercation. She did not testify to any personal knowledge of his responsibilities for the A-Mart. Thus, other than Byeyong’s sole presence at the A-Mart when the incident occurred, there was no evidence of his responsibilities as ANA’s employee.

Our case is unlike Frito-Lay, in which the employee’s testimony established he was exercising control over company property when he got into the altercation with the store owner over that property, or Durand, in which evidence showed the doorman was in charge of admitting customers into the night club. Our case shows that Byeyong grew enraged with Lowry and chased her out of the store, but there is no evidence of Byeyong’s duties or of whether Byeyong was exercising, however inappropriately, a duty as an employee when this occurred.

The record is silent as to whether Byey-ong had the right or duty to evict customers, or to take any of his alleged actions toward Lowry.

We find there was no evidence that Byeyong was acting within the course and scope of his authority when he allegedly assaulted Lowry.

We sustain ANA’s first and second points of error.

B. Whether there was no evidence or insufficient evidence that Byeyong was ANA’s vice principal

In its fourth point of error, ANA argues there was no evidence or insufficient evidence that Byeyong was its vice principal, the only remaining basis for imputing liability to ANA. Regardless of whether an employee acts within the scope of his employment, his status as a vice principal of the company will impute liability to his employer for his actions in the workplace. GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999). Here, as an alternate ground for imposing liability, the jury found that Byeyong was a vice principal of ANA.

Vice principals represent their corporation in its corporate capacity, and include persons with the “authority to employ, direct, and discharge servants of the master, and those to whom a master has confided the management of the whole or a department or division of his business.” Id. ANA asserts that the record does not reflect whether Byeyong had the authority to hire, fire, or direct other employees, or whether he was entrusted with the management of ANA or any of its divisions.

Lowry referred to Byeyong several times as a manager without objection from ANA’s counsel. Nevertheless, her testimony was equivocal and indicated she did not have personal knowledge of Byey-ong’s actual job title or responsibilities — “I guess [Byeyong] was the attendant of the store, the manager, I guess.” Lowry stated under cross-examination that she had assumed Byeyong was the owner of the A-Mart but could have been mistaken about that assertion. She also conceded that she had never seen Byeyong before she walked into the A-Mart on the day of the altercation. Other than these statements, which indicated that Lowry did not actually know what Byeyong’s job position was with ANA, the only evidence offered of his position was Lowry’s testimony that Byeyong was the only employee in the convenience store at the time of the alleged events.

In Hammerly Oaks, Inc. v. Edwards, an injured resident of an apartment complex argued that a particular leasing agent was a vice principal of the complex based on the fact that the leasing agent was alone in the complex’s leasing office. 958 S.W.2d 387, 392 (Tex.1997). The Texas Supreme Court rejected this argument, noting that “[t]he fact that [the leasing agent] was alone in the office ... falls far short of a showing that [she] had the authority to hire and fire employees or that she presided over the management of a department of Hammerly Oaks.” Id.

Like Hammerly Oaks, we conclude the mere fact that Byeyong was alone in the convenience store is not enough to show he was entrusted with the authority to hire or fire other employees or to preside over the management of a department or division of ANA. We find there was no evidence that Byeyong was ANA’s vice principal.

We sustain ANA’s fourth point of error.

Because ANA’s first, second, and fourth points of error are dispositive, we do not consider ANA’s remaining points of error challenging the sufficiency of the evidence that Byeyong assaulted Lowry and the sufficiency of the evidence supporting the jury’s award of exemplary damages.

When reversing the judgment of a trial court, we are restricted to “rendering] such judgment or decree as the court below should have rendered.... ” TEX.R.APP.P. 81(c). When, as here, the appellant in a jury trial raises a “no evidence” challenge for the first time in a motion for new trial, without objecting to jury submissions or without moving for directed verdict, for judgment notwithstanding the verdict, or to disregard jury findings, the only predicate laid by the appellant is for the granting of a new trial. See Horrocks v. Texas Dep’t of Transp., 852 S.W.2d 498, 499 (Tex.1993). Therefore, we may sustain the “no evidence” point, but must remand for a new trial rather than render judgment. Id.

We reverse the trial court’s judgment and remand to the trial court for further proceedings in accordance with this opinion.

      . ANA attempted to introduce the testimony of a last minute witness, Gerald Bernard Campbell, who allegedly witnessed a different version of events. After a voir dire of Campbell outside the presence of the jury, however, the trial court excluded Campbell as a witness because he was not listed as a witness 30 or more days before trial and ANA's attorney did not show good cause for listing him late. The court also excluded Byeyong and a police officer as witnesses for the same reason. Thus, the only person’s testimony to reach the jury was Lowry’s. ANA does not challenge these evidentiary rulings in its appeal.

      . In response to an interrogatory, ANA listed the following responsibilities of the manager of the convenience store: “Manager; work cash register, daily sales reports, grocery orders and other inventory orders, set employees’ duties, handle customer and employee complaints and problems.” Byeyong was listed in another interrogatory response as a "clerk,” with no duties described after his title. ANA’s counsel offered these particular responses to the jury without objection from opposing counsel. Nevertheless, a party’s own interrogatory responses may not be used in its favor in a no evidence challenge, even when opposing counsel fails to object. See TEX.R.CIV.P. 197.3; Garcia v. National Eligibility Express, Inc., 4 S.W.3d 887, 890-91 (Tex.App.—Houston [1st Dist.] 1999, no pet.). Thus, we cannot consider these responses in addressing ANA’s no evidence argument.

      . As discussed in the previous footnote, ANA also offered to the jury interrogatory responses listing Byeyong as a clerk and another employee as the manager of the A-Mart. Although opposing counsel failed to object to these responses, we cannot consider them in performing this no evidence review. See TEX.R.CIV.P. 197.3; Garcia, 4 S.W.3d at 890-91.


source: Caselaw Access Project

author: BEA ANN SMITH, Justice.

license: Public Domain

text:
    Johnny RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 03-99-00591-CR.
    Court of Appeals of Texas, Austin.
    Nov. 2, 2000.
    Rehearing Overruled Dec. 14, 2000.

      Frank B. Suhr Jr., New Braunfels, for Appellant.
    Ellen M. Salyers, Crim. Dist. Atty., New Braunfels, for Appellee.
    Before Chief Justice ABOUSSIE, Justices KIDD and B.A. SMITH.
   BEA ANN SMITH, Justice.

A jury found appellant Johnny Rodriguez guilty of delivering cocaine to a minor. See Tex. Health & Safety Code Ann. § 481.122 (West Supp.2000). The jury assessed punishment, enhanced by a previous felony conviction, at imprisonment for sixty years and a $10,000 fíne. We will modify the judgment of conviction to delete the affirmative finding that Rodriguez used a deadly weapon in the commission of the offense and affirm the judgment as modified.

Rodriguez’s daughter, K.R., testified that on September 9, 1998, when she was fourteen years old, she went to the house her father shared with his mother, K.R.’s grandmother. Rodriguez and K.R. went to his bedroom where Rodriguez produced a “twenty” of cocaine. Rodriguez placed the cocaine on the top of a speaker, chopped it with a razor blade, and divided it into lines. Then, using a rolled up dollar bill, K.R. inhaled the cocaine as Rodriguez watched.

Later that day, K.R. gave her mother, Linda Watts, four dollars to purchase gasoline. One of the bills was the one K.R. had used to inhale the cocaine. Watts noticed some white powder on the bill. When she tasted it, it made her tongue numb. Suspecting the powder was cocaine, Watts confronted K.R., who revealed what had happened. A urine specimen taken from K.R. the next day tested positive for cocaine.

Sufficiency of Evidence

Rodriguez contends the evidence is legally insufficient to support the jury’s finding that he delivered cocaine to K.R. The question presented is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155, 158-59 (Tex.Crim.App.1981).

Rodriguez first argues that K.R. was an accomplice witness, and that her testimony was not adequately corroborated. See Tex.Code Crim. Proc. Ann. art. 38.14 (West 1979) (accomplice witness rule). Rodriguez relies on the opinion in Blake v. State, 971 S.W.2d 451, 461 (Tex.Crim.App.1998), in which the juvenile exception to the accomplice witness rule was abolished.

The test for determining whether a witness is an accomplice under article 38.14 is whether the witness could be prosecuted under the same indictment by which the accused was charged. See Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App.1987); Reyna v. State, 22 S.W.3d 655, 659 (Tex.App.—Austin 2000, no pet.). It is an affirmative defense to conviction for delivering a controlled substance to a minor that the actor was younger than eighteen years of age. See Tex. Health & Safety Code Ann. § 481.122(b)(1) (West Supp.2000). Thus, while there is no longer a blanket exception to the accomplice witness rule for juveniles, K.R. could not be successfully prosecuted for the offense for which Rodriguez was indicted and therefore was not an accomplice witness.

Rodriguez further argues that the State failed to prove that he delivered the cocaine to K.R. by actual transfer, as alleged in the indictment. See Tex. Health & Safety Code Ann. § 481.002(8) (West Supp.2000) (delivery means actual or constructive transfer, or offer to sell). He refers us to the holding that “an actual transfer ... contemplates the manual transfer of property from the transferor to the transferee.” Heberling v. State, 884 S.W.2d 350, 354 (Tex.Crim.App.1992). Rodriguez construes “manual transfer” to mean that the transferor must physically hand the contraband to the transferee. In this case, the evidence shows that Rodriguez placed the cocaine on a flat surface, from which K.R. inhaled it. Thus, argues Rodriguez, the State did not prove an actual transfer.

Rodriguez misconstrues the meaning of “manual transfer,” as the opinion in Nevarez v. State, 767 S.W.2d 766 (Tex.Crim.App.1989), demonstrates. In that case, the defendant’s co-party shoved a bag of marihuana from the front of a pickup truck bed to the rear, where it was handled and examined by an undercover officer. See id. at 767. The court held that this evidence was sufficient to prove an actual transfer of the marihuana. See id. at 768. The facts in the present cause are analogous to Nevarez. Rodriguez manually placed the cocaine within K.R.’s reach. She took possession of it by inhaling it, thereby completing the delivery. The evidence is legally sufficient to prove delivery by actual transfer. Point of error three is overruled.

Rodriguez also contends the evidence is factually insufficient to prove delivery by actual transfer. The evidence regarding the nature of the delivery was uncontra-dicted, and Rodriguez’s argument in support of this contention is merely a restatement of the argument discussed in the two preceding paragraphs. A neutral review of all the evidence does not convince us that the proof of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the jury’s determination. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). Point of error four is overruled.

Extraneous Offenses

In his seventh point of error, Rodriguez contends the district court erroneously admitted extraneous offense evidence. K.R. testified that Rodriguez first gave her cocaine in January 1998, and that he subsequently gave her cocaine on twenty to thirty occasions between January and September. One of KR.’s classmates testified that she saw Rodriguez give K.R. cocaine once during the summer of that year. Rodriguez urges that this testimony had no relevance other than character conformity, that is, to prove his bad character in order to show action in conformity therewith. See Montgomery v.. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1991) (op. on reh’g); Tex.R. Evid. 404(b). He further argues that if these extraneous offenses were relevant apart from character conformity, this relevance was substantially outweighed by the danger of unfair prejudice. See Tex.R. Evid. 403.

An extraneous offense is an act of misconduct that is not shown in the charging instrument. See Rankin v. State, 953 S.W.2d 740, 741 (Tex.Crim.App.1996). The indictment in this cause alleged that appellant delivered cocaine to K.R. “on or about” September 9, 1998. When the indictment alleges that a crime occurred on or about a particular date, the State may present evidence of the offense being committed at any time prior to the filing of the indictment and within the limitations period. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997). The testimony of which Rodriguez complains was not evidence of extraneous offenses, but rather evidence of the repeated commission of the offense alleged in the indictment. Rodriguez was entitled to require the State to elect the occurrence on which it sought to rely for conviction, but in the absence of a request for an election there was no error in admitting the challenged testimony. See Worley v. State, 870 S.W.2d 620, 622-23 (Tex.App.—Houston [1st Dist.] 1994, pet. ref'd); see also Crawford v. State, 696 S.W.2d 903, 905-07 (Tex.Crim.App.1985). Point of error seven is overruled.

Enhancement of Punishment

In points of error five and six, Rodriguez contends the evidence is legally and factually insufficient to support the jury’s finding that he had been previously convicted of a felony. See Tex. Penal Code Ann. § 12.42(b) (West Supp.2000). The enhancement paragraph alleged that appellant was convicted of attempted aggravated robbery on July 26, 1976, in the Comal County district court, in cause number 7925. To prove this previous conviction, the State introduced a penitentiary packet that was linked to Rodriguez by his fingerprints. The exhibit contains a judgment reflecting that Rodriguez was convicted of the offense alleged, on the date alleged, in the court alleged, but in cause number 7625. The exhibit also contains the corresponding sentence, which bears cause number 7925. Rodriguez’s challenge to the sufficiency of the evidence is based on the discrepancy with respect to the cause number.

To be fatal, a variance between the pleading and the proof regarding a previous conviction used to enhance punishment must be both material and prejudicial to the defendant. See Hall v. State, 619 S.W.2d 156, 157 (Tex.Crim.App.1980); Plessinger v. State, 536 S.W.2d 380, 381 (Tex.Crim.App.1976). Rodriguez does not allege or show that he was misled, surprised, or unable to determine the previous conviction the State sought to prove. There is no fatal variance in this cause. See Cole v. State, 611 S.W.2d 79, 82 (Tex.Crim.App.1981) (cause number 87954 alleged, cause number 87594 proved; no fatal variance); Straughter v. State, 801 S.W.2d 607, 611 (Tex.App.—Houston [1st Dist.] 1990, no pet.) (cause number 494,316 alleged, cause number 474,316 proved; no fatal variance). Points of error five and six are overruled.

Deadly Weapon Finding

The State gave notice in the indictment that it would seek a finding that Rodriguez “used a deadly weapon, to-wit: cocaine” during the commission of the alleged offense. See Tex.Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp.2000). The deadly weapon question was submitted to the jury in a special issue, and the jury’s affirmative finding is reflected in the district court’s judgment. In points of error one and two, Rodriguez contends the evidence is legally and factually insufficient to sustain the finding that he used the cocaine as a deadly weapon during the commission of this offense.

We are cited to no opinion discussing whether, in a prosecution for delivering a controlled substance, it can be said that the substance was a deadly weapon used during the commission of the offense within the meaning of article 42.12, section 3g(a)(2). The State conceded at trial that it was “pushing the envelope” with respect to the deadly weapon finding, and asked the jury to “make a decision that then will allow higher authorities to ultimately decide the issue.” To determine whether the deadly weapon finding was appropriate, we must answer two questions: was the cocaine “used ... during the commission of a felony offense” and was the cocaine a deadly weapon.

Was the cocaine used by Rodriguez during the commission of a felony?

The only felony offense committed by Rodriguez was the delivery of cocaine to K.R., a minor. Rodriguez argues that cocaine cannot be used to deliver itself. He urges that it was necessary to show that the cocaine was used to facilitate the commission of an associated felony distinct from the delivery.

All felonies are theoretically susceptible to an affirmative finding regarding the use or exhibition of a deadly weapon. See Patterson v. State, 769 S.W.2d 988, 940 (Tex.Crim.App.1989). The phrase “ ‘used ... during the commission of a felony offense’ refers certainly to the wielding of a [weapon] with effect, but it extends as well to any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony.” Id. at 941 (quoting Patterson v. State, 728 S.W.2d 308, 315 (Tex.App.—Austin 1987), aff'd, 769 S.W.2d 938 (Tex.Crim.App.1989)). In Patterson, for example, the defendant’s possession of a firearm was found to facilitate his possession of methamphetamine, the offense for which he was convicted. See id. at 942.

Rodriguez relies on the opinions in Ex parte Petty, 833 S.W.2d 145 (Tex.Crim.App.1992), and Narron v. State, 835 S.W.2d 642, 644 (Tex.Crim.App.1992). In Petty, the defendant was convicted of unlawful possession of a firearm by a felon, and an affirmative finding was made based solely on his unlawful possession of the handgun. See Petty, 833 S.W.2d at 145. The court wrote, “[I]n order to ‘use’ a deadly weapon for affirmative finding purposes, the weapon must be utilized to achieve an intended result, namely, the commission of a felony offense separate and distinct from ‘mere’ possession.” Id. The affirmative finding was impermissible in that case “because there was no associated felony facilitated by the Applicant's possession of the deadly weapon.” Id. at 145-46. In Narron, a prosecution for possession of a prohibited weapon, the court followed Petty and deleted an affirmative finding based, as in Petty, solely on the possession of the weapon for which he was convicted. See Narron, 835 S.W.2d at 644.

In Tyra v. State, 897 S.W.2d 796, 797 (Tex.Crim.App.1995), the defendant was convicted of involuntary manslaughter arising out of his operation of a motor vehicle while intoxicated, and an affirmative finding was made that he used the vehicle as a deadly weapon during the commission of the offense. Citing Petty and Narron, the defendant argued that the affirmative finding was impermissible because his use of the vehicle was an essential element of the offense for which he was convicted; he did not use the vehicle to facilitate a separate and distinct associated felony. See id. at 798. The court rejected this argument, writing that Petty and Narron mean only that “mere possession of the weapon without putting it to any use or purpose whatsoever does not” constitute “use” of the weapon within the meaning of article 42.12, section 3g(a)(2). Id. Petty and Narron “do not stand for the proposition that the phrase ‘used or exhibited a deadly weapon during commission of a felony offense’ necessarily means ‘used or exhibited a deadly weapon during commission of an offense which does not otherwise require the use or exhibition of a deadly weapon.’ ” Id. The court added, “There is simply nothing in the phrase ‘used a deadly weapon’ to imply that it must always be used to commit an ‘associated offense.’ ” Id. The court held that the affirmative finding was proper even though involuntary manslaughter always involved the use of a deadly weapon. See id.; see also Mann v. State, 13 S.W.3d 89, 91 (Tex.App.—Austin 2000, pet. granted) (upholding finding that defendant used automobile as deadly weapon during commission of felony driving while intoxicated).

Rodriguez was not convicted of merely-possessing cocaine. He “used” the cocaine by delivering it in the same sense that the defendant in Tyra “used” his automobile during the commission of the involuntary manslaughter. In light of Tyra, we must reject Rodriguez’s argument that the delivery of a controlled substance cannot, in itself, constitute the “use” of the substance “during the commission of a felony offense” within the meaning of article 42.12, section 3g(a)(2). Whether the affirmative finding was appropriate in this cause therefore turns on whether the cocaine was shown to be a deadly weapon.

Was the cocaine a deadly weapon?

Under the penal code, there are two kinds of deadly weapons. First, there are those things that are deadly weapons by design: “a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(A) (West 1994). Second, there are those things that become deadly weapons by use: “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B). If a thing is shown to be a deadly weapon by design, it is not necessary to prove in a particular case that it was really capable of causing death or serious bodily injury in that case. See Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991). But if the State seeks to prove that a thing became a deadly weapon by the manner of its use or intended use, the evidence must establish that it was capable of causing death or serious bodily injury as used by the defendant in that case. See Holder v. State, 837 S.W.2d 802, 807 (Tex.App.—Austin 1992, pet. ref'd).

The State does not contend and made no effort to prove that the cocaine in question was a deadly weapon by design. Instead, the State sought to prove that the cocaine was a deadly weapon because it was capable of causing death or serious bodily injury in the manner of its use or intended use. There is no evidence that Rodriguez’s use of the cocaine differed from his intended use, so we will examine the record to determine if there is evidence to support a finding that the cocaine was used by Rodriguez in a manner capable of causing death or serious bodily injury.

The only evidence pertinent to the deadly weapon issue was that of Dr. Charles Smith, a family practice physician in New Braunfels. Dr. Smith testified that cocaine can have “a wide variety of effects” ranging “from mild to profound systems [sic] such as a coma, convulsions, even heart attack and death.” According to the witness, the short-term effects of cocaine use include increased heart rate, sweating, increased blood pressure, dilation of the pupils, and sometimes cardiac arrhythmia. Long-term effects can include chronic damage to the heart muscle. The doctor testified that “there’s not been a minimum safe dose established for cocaine. So any dose could be a potential time bomb.” Dr. Smith was of the opinion that “cocaine is a very lethal substance” that “has the capability to cause a myriad of effects, either short term or long term.” In the doctor’s opinion, “one may be lucky enough to survive several encounters with cocaine, [but] he or she may not survive the next one. There is just no way to know.” During cross-examination, Dr. Smith confirmed that cocaine has some legitimate medicinal uses, and acknowledged that it is possible that a single use of cocaine might not cause death or serious injury. He also said that cocaine must be ingested in order to have any effect.

Dr. Smith’s testimony does not support a finding that the cocaine in this cause was capable of causing death or serious bodily injury in the manner of its use by Rodriguez. First, Smith’s testimony was irrelevant to Rodriguez’s use of the cocaine. Rodriguez “used” the cocaine during the offense by placing it on a flat surface, chopping it with a razor blade, and arranging it into lines. Smith did not testify — and there is no other evidence — that this use of the cocaine was capable of causing serious bodily injury or death. Indeed, Smith testified that cocaine must be ingested to have a deleterious effect. There is no evidence that Rodriguez injected K.R. with cocaine or forced her to ingest it.

It is helpful to distinguish Rodriguez’s conduct from that of the defendant in Davis v. State, 955 S.W.2d 340 (Tex.App.—Fort Worth 1997, pet. ref'd). The defendant in that case was an oral surgeon who, it was shown, routinely administered excessive dosages of sedatives to his patients by injection during surgical procedures. See id. at 342-46. On one such occasion, the patient died. See id. The defendant was convicted of manslaughter and the jury found that he used a deadly weapon, the sedatives, during the commission of the offense. See id. at 352. The court of appeals held that the evidence supported a finding that the defendant used the mixture of drugs during the offense in a manner capable of causing death. See id.

Unlike the defendant in Davis, Rodriguez merely made the cocaine available to K.R., albeit knowing that she would inhale the drug. The State would have this Court sustain the deadly weapon finding because Rodriguez delivered a drug to K.R. that was used by K.R. in a manner capable of causing death or serious bodily injury. The State, however, was obligated to prove that Rodriguez used the cocaine in a manner capable of causing death or serious bodily injury. Dr. Smith’s testimony does not speak to Rodriguez’s use of the cocaine in this cause.

Second, even if a finding that Rodriguez used a deadly weapon could be based on K.R.’s use of the cocaine, Dr. Smith’s testimony is insufficiently related to that use. Smith’s testimony broadly establishes that the recreational use of cocaine can result in physical reactions ranging from “mild to profound,” including death in some cases. But an alleged deadly weapon’s capability of causing serious bodily injury or death in the manner of its use must be evaluated in light of the facts that actually existed when the felony was committed. See Williams v. State, 946 S.W.2d 432, 435 (Tex.App.—Fort Worth 1997), rev’d on other grounds, 970 S.W.2d 566 (Tex.Crim.App.1998). The record before us is silent in that regard. There is no evidence as to the purity or potency of the cocaine Rodriguez delivered to K.R, or otherwise suggesting that this cocaine was likely to cause a serious, rather than a mild, physical reaction in the user. There is no evidence that the manner in which K.R. used the cocaine, inhaling it in its powder form, was more likely to result in serious injury to the user than other forms of use, such as injecting it in solution. There is no evidence that K.R. was especially susceptible to an adverse reaction from cocaine use.

To support a finding that the cocaine was a deadly weapon in the manner of its use, the State was required to demonstrate that the cocaine in this cause was capable of causing death or serious bodily injury as it was used in this cause. See Holder, 837 S.W.2d at 802. Testimony that there is an unknown possibility of a serious adverse physical effect arising out of the use of some cocaine by some persons under some circumstances does not satisfy that burden.

We hold that the evidence is legally insufficient to support the finding that the cocaine was a deadly weapon in the manner of its use by Rodriguez and sustain point of error one. We need not address the factual sufficiency challenge in point two.

The district court’s judgment is modified to delete the affirmative finding that a deadly weapon was used during the commission of the offense. See Williams, 970 S.W.2d at 566 (remedy when affirmative finding erroneously made). As modified, the judgment is affirmed.

      . K.R. testified that a “twenty” was $20 worth of cocaine, or about enough to fill a thimble.

      . Rodriguez and Watts were divorced. Both lived in New Braunfels. K.R. lived with her mother, but often visited her father.

      . Article 42.12, section 3g(a)(2) provides that an affirmative finding shall be made "when it is shown that a deadly weapon as defined in Section 1.07, Penal Code, was used ... during the commission of a felony offense ... and that the defendant used ... the deadly weapon....”

      . The State also offered the testimony of Jorge Rodriguez, an agent with the Drug Enforcement Administration. Agent Rodriguez described the process by which cocaine is extracted from coca leaves in countries such as Bolivia and Columbia. He also testified that cocaine sold on the street can be over ninety percent pure, but is often "cut” by the addition of other substances. Agent Rodriguez had no information, however, regarding the cocaine delivered to K.R. by appellant Rodriguez, and the State does not rely on his testimony on appeal.

      . Article 42.12, section 3g(a)(2) permits an affirmative finding based on another person’s use of a deadly weapon only if the defendant is convicted as a party to the offense and knew that a deadly weapon would be used. Rodriguez was not convicted as a party.


text:
    TEXAS A & M UNIVERSITY, Geochemical and Environmental Research Group, and the College of Geosciences and Maritime Studies, Appellants, v. William H. CHAMBERS, Appellee.
    No. 03-99-00851-CV.
    Court of Appeals of Texas, Austin.
    Nov. 2, 2000.
    Rehearing Overruled Dec. 14, 2000.

      Peter B. Plotts, Asst. Atty. Gen., Austin, for appellants.
    Mark W. Shomaker, West, Webb, All-britton & Gentry, P.C., College Station, for appellee.
    Before Chief Justice ABOUSSIE, Justices B.A. SMITH and PATTERSON.
   BEA ANN SMITH, Justice.

William H. (Hank) Chambers, former lab manager of the Texas A & M Geochemical and Environmental Research Group (the Research Group), sued Texas A & M University, the Research Group, and the College of Geoscience and Maritime Studies (collectively Texas A & M) under the Texas Whistleblower Act for allegedly terminating him in retaliation for a report he made to Texas A & M’s internal audit department. See Tex.Gov’t Code Ann. §§ 554.001-.010 (West 1994 & West Supp. 2000). After five days of trial, a jury returned a verdict in favor of Chambers and awarded him over $195,000 in damages. The trial court rendered judgment on the verdict.

Texas A & M now appeals from that judgment contending that the trial court erred by: (1) including the statutory presumption contained in the Whistleblower Act as an instruction in the jury charge; (2) excluding Chamber’s psychological records; (3) denying its motion to disregard the jury’s award for emotional pain; and (4) refusing to delete the award of prejudgment interest on the award of damages for future earnings and failing to calculate prejudgment interest as simple interest. We sustain Texas A & M’s first and fourth points of error, reverse the judgment of the trial court, and remand the cause for new trial. Because our resolution of Texas A & M’s first point of error renders points two and three moot, we do not consider the merits of those contentions.

FACTUAL BACKGROUND

The Research Group is a team of highly specialized scientists who assist federal agencies and private businesses by conducting various research projects on a contractual basis. In 1992, the Research Group was hired by Creosote Council II— a trade association for producers of the wood-pesticide creosote' — to analyze samples of manufactured creosote and submit its findings to the Environmental Protection Agency for product registration and licensing purposes. In order to ensure that the Creosote Council companies would be able to maintain their licenses to manufacture and sell creosote, the Research Group agreed to conduct its study in compliance with the good laboratory practice regulations of the Federal Insecticide Fungicide and Rodenticide Act (FIFRA) and certify its compliance in writing to the Creosote Council.

The Research Group began the creosote study in 1992. In the summer of 1996, the Research Group was in the last stages of performance under the contract when an executive at the Creosote Council became concerned about the scientists’ lab practices. Consequently, the Creosote Council hired Kristin Hoover, an independent auditor, to evaluate the Research Group’s work. Her findings formed the basis of this lawsuit.

Hoover’s report to the Creosote Council reflected that the Research Group had failed to comply with the good laboratory practice regulations of FIFRA in several ways during the creosote study. Hoover also found that Research Group personnel, specifically Dr. Mahlon Kennieutt, had untruthfully certified in writing to the Creosote Council that the Research Group had conducted its research in compliance with FIFRA. When Chambers discovered Hoover’s findings, he became concerned that the false acknowledgments Dr. Kenni-cutt had made to the Creosote Council amounted to illegal behavior. He reported these concerns to the Texas A & M Department of Internal Audit in August of 1996. Dr. Kennicutt was Chambers’ direct supervisor at the time.

Over the next several months, Dr. Ken-nicutt implemented several changes at the Research Group, some of which directly affected Chambers. Chambers’ signatory authority was removed from the accounts he supervised and he was required to meet weekly with Dr. Kennicutt to go over the details of his assignments even though he was in a managerial position. Chambers believes that these actions were adverse to his employment with the Research Group. He further alleges that his eventual termination in April of 1997 was a direct result of his report to Internal Audit of what he believed was illegal behavior in the creosote study.

Texas A & M, however, presented evidence at trial of ongoing concerns about Chambers’ work performance and several unsuccessful attempts to help him remedy the problems that allegedly riddled his research projects. Dr. Kennicutt testified at trial that he did not become aware of Chambers’ disclosures to Internal Audit until this litigation began and thus did not feel any personal resentment towards Chambers during the time period in question. He even requested that Chambers receive a salary raise in October of 1996. Texas A & M contends that Chambers was terminated because his job performance never improved.

DISCUSSION

Texas A & M complains in its first point of error that the trial court erred in including the statutory presumption of retaliation in its charge to the jury. The court instructed the jury as follows: “If the termination of, or adverse personnel action against, a public employee occurs within 90 days after the date on which the employee reports a violation of law, the termination or adverse personnel action is presumed, subject to rebuttal, to be because the employee made the report.” This instruction tracks the language of the Whistleblower Act. See Tex.Gov’t Code Ann. § 554.004 (West Supp.2000). Texas A & M contends that including the proof in the charge was an improper comment on the weight of the evidence that incorrectly shifted the burden of proof to the defendants.

Because a trial court has considerable discretion in framing a jury charge, Redwine v. AAA Life Insurance Co., 852 S.W.2d 10, 14 (Tex.App.—Dallas 1993, no writ), we must determine only whether the court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Texas Rule of Civil Procedure 277 authorizes the court to submit explanatory instructions and definitions that will assist the jury in answering the jury questions. Tex.R.Civ.P. 277; Redwine, 852 S.W.2d at 14; Sanders v. Davila, 593 S.W.2d 127, 129 (Tex.Civ.App.—Amarillo 1979, writ ref'd n.r.e.). “Still, an instruction must be correct to be a proper one authorized by the rule.” Sanders, 593 S.W.2d at 129.

A presumption “may not properly be the subject of an instruction to the jury.” Armstrong v. West Tex. Rig Co., 339 S.W.2d 69, 74 (Tex.Civ.App.—El Paso 1960, writ ref'd n.r.e.); see also Glover v. Henry, 749 S.W.2d 502, 504 (Tex.App.—Eastland 1988, no writ); Sanders, 593 S.W.2d at 130. Its inclusion is improper because the sole effect of a presumption is to fix the burden of producing evidence. United Founders Life Ins. Co. v. Carey, 347 S.W.2d 295, 307 (Tex.Civ.App.—Austin 1961), rev’d on other grounds, 363 S.W.2d 236 (Tex.1962); Armstrong, 339 S.W.2d at 74. A presumption is nothing more than a rule for the guidance of the trial judge in locating the burden of production at a particular time. United Founders, 347 S.W.2d at 307; Armstrong, 339 S.W.2d at 74. In whistleblower cases, the statutory presumption of retaliation reheves the plaintiff of the initial burden to prove that he was terminated for reporting allegedly illegal activities. Schindley v. Northeast Tex. Cmty. Coll., 13 S.W.3d 62, 67 (Tex.App.—Texarkana 2000, pet. denied). This rule of procedure aids the plaintiff because the evidence necessary to establish the plaintiffs case is often exclusively within the possession of the defendant. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 358 (Tex.1971). The purpose of the presumption is to “smoke out” the defendant and compel her to disclose the facts within her knowledge. Id. When, however, the defendant discloses the facts in her possession and such evidence is sufficient to support a finding of non-retaliation, the case proceeds as if no presumption ever existed. See id.; Texas Natural Res. Conservation Comm’n v. McDill, 914 S.W.2d 718, 724 (Tex.App.—Austin 1996, no writ); Garza v. City of Mission, 684 S.W.2d 148, 152 (Tex.App.—Corpus Christi 1984, writ dism’d w.o.j.). “[T]here is no presumption aiding the plaintiff after the presumption is rebutted by positive evidence to the contrary.” Robertson, 468 S.W.2d at 358.

In the instant case, Texas A & M presented ample testimony and documents to rebut the presumption that its motive for firing Chambers was based on Chambers’ report to Internal Audit. Dr. Kennicutt testified that he was unaware of Chambers’ report to Internal Audit about the creosote matter. He and the Resource Group’s chief financial officer, Jeannie Baggett, testified that they were having difficulty getting Chambers to meet deadlines and provide complete and accurate information when they requested it. Bag-gett finally made an official complaint to the Research Group’s general director. Memos were produced that reflected Dr. Kennicutt’s concerns about Chambers’ work performance throughout the fall of 1996 and spring of 1997; other documents corroborated the testimony that Dr. Ken-nicutt requested a raise for Chambers during this time period.

The evidence produced by Texas A & M at trial rebutted the presumption that Chambers was fired for reporting the creosote problems to Internal Audit. Chambers argues in his brief, however, that there is no quantitative measure in Texas for determining whether this rebutting evidence was sufficient to overcome the statutory presumption and that we must defer to the trial court’s decision to allow the presumption to remain active in the case. This contention is inconsistent with Texas case law.

Texas courts agree that a presumption is rebutted when “positive evidence to the contrary” is introduced. See id.; Southland Life Ins. Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 858 (1942). The supreme court explained: “[A] presumption is an artificial thing, a mere house of cards, which one moment stands with sufficient force to determine an issue, but at the next, by reason of the slightest rebutting evidence, topples utterly out of consideration of the trier of facts.” Combined Am. Ins. Co. v. Blanton, 163 Tex. 225, 353 S.W.2d 847, 849 (1962). In Texas Natural Resource Conservation Commission v. McDill, we held that the Commission rebutted the presumption of retaliation when it introduced evidence at trial “suggesting no connection between McDiü’s report and his discharge....” McDill, 914 S.W.2d at 724. That evidence included testimony from the plaintiffs co-workers and supervisors and various documents relating to complaints made in relation to the plaintiffs conduct at work. Similarly, in Garza v. City of Mission, the court of appeals held that the defendant introduced sufficient evidence to rebut the presumption of retaliation when the plaintiffs supervisors testified that they had no knowledge of the plaintiffs whistleblowing before his termination. Garza, 684 S.W.2d at 152-53. The evidence produced by Texas A & M strongly parallels the evidence held sufficient to rebut the presumption of retaliation in those two cases. Because Texas A & M produced evidence to rebut the presumption of the Whistleblower Act, the presumption should have disappeared entirely. See McDill, 914 S.W.2d at 724. Instead of vanishing, however, the statutory presumption appeared verbatim in the jury charge.

Including a presumption in the jury charge which has been rebutted by controverting facts is an improper comment on the weight of the evidence. Glover, 749 S.W.2d at 504-05. At oral argument, Chambers conceded that it was error to submit the presumption of retaliation to the jury. He maintains, however, that its submission did not amount to reversible error.

Reversal is required if an improper comment on the weight of the evidence was calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.App.P. 44.1(a)(1); Redwine, 852 S.W.2d at 14. The inclusion of the rebuttable presumption of retaliation in the charge placed a heavier burden of proof on Texas A & M than was required by law. See Graves v. Komet, 982 S.W.2d 551, 554-55 (Tex.App.—San Antonio 1998, no pet.). “An instruction that misstates the law cannot be expected to produce a correct verdict.” Sanders, 593 S.W.2d at 130. The evidence in this case was vigorously disputed, and the jury might well have found in favor of either of the parties absent the presumption instruction. A superfluous instruction is more likely to improperly influence a jury in a close case. Reinhart v. Young, 906 S.W.2d 471, 473 (Tex.1995). Instructing the jury to presume that Texas A & M unlawfully retaliated against Chambers could have persuaded the jury to find in favor of Chambers. We must, therefore, reverse. See Redwine, 852 S.W.2d at 14. Because our resolution of Texas A & M’s first point of error results in reversal, points of error two and three need not be considered.

CONCLUSION

We hold that including the presumption in the jury charge was error that probably caused the rendition of an improper judgment. It was also error to award prejudgment interest on future earnings damages and to compound such interest annually. We need not decide the other two issues complained of on appeal. We reverse the trial court’s judgment and remand this cause to the trial court for a new trial.

      . To preserve a complaint for appellate review, a party must make a timely objection to the trial court and state specific grounds for the desired ruling if the specific grounds are not apparent from the context. Redwine v. AAA Life Ins. Co., 852 S.W.2d 10, 13 (Tex.App.—Dallas 1993, no writ). It is insufficient to object to a jury charge by stating only that the instruction constitutes a comment on the weight of the evidence. Id. Texas A & M, however, objected to the inclusion of the presumption in the jury charge by stating that it would improperly shift the burden of proof to Texas A & M because the presumption should have dropped out of the case. This objection was specific enough to preserve Texas A & M's complaint for appellate review. See id.

      . The jury awarded Chambers damages for past lost wages and benefits, future lost wages and benefits, and emotional pain. The trial court rendered judgment accordingly, adding prejudgment interest on the entire award at the rate of ten percent per annum. Texas A & M filed a motion to modify, requesting that the court exclude Chambers’ lost future earnings from the prejudgment interest calculation and asking the court to eliminate the annual compounding. The trial court overruled this motion by operation of law. See Tex.RXiv.P. 329b(b). The parties agree that the trial court erred in failing to modify the judgment to exclude prejudgment interest on the jury’s award of future lost earnings and to recalculate prejudgment interest as simple interest instead of compound interest.
      We note that the supreme court addressed this issue in Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex.1998). In that case, the court held that prejudgment interest on damage awards is to be calculated as simple interest. Id. at 532. In addition, in a case such as this, prejudgment interest should not be calculated on a damage award for future lost wages and benefits. See Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 554 (Tex.1985). Prejudgment interest is awarded to compensate the injured party for the lost use of money; that justification does not apply to money which has yet to be earned. See id. at 554-55.


author: MARGARET GARNER MIRABAL, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Thomas Junior RANDLE, Appellee.
    No. 01-99-00776-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 2, 2000.
    Louis Arthur Beaty, Austin, Michael P. Fleming, Leslie Ruthe Johnson, Houston, for Appellant.
    John Zavitsanos, Houston, for Appellee.
    Panel consists of Justices MIRABAL, TAFT, and DUGGAN.

       The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION

MARGARET GARNER MIRABAL, Justice.

The Texas Department of Public Safety (DPS) appeals the trial court’s determination that Thomas Junior Randle is eligible for a concealed handgun license under the “Concealed Handgun Act.” Tex.Gov’t Code Ann. §§ 411.171-411.208 (Vernon 1998 & Supp.2000). We reverse.

Case Background

The facts are undisputed. On May 20, 1992, Randle pled guilty to the offense of tampering with manufacturer’s identification, which was then classified as a felony. The trial court accepted the plea, deferred an adjudication of guilt, and placed Randle on probation (now community supervision) for three years, plus a $500 fine, pursuant to article 42.12, section 5a, of the Code of Criminal Procedure. In 1994, after Ran-dle successfully completed a portion of his probation, the trial court allowed Randle to withdraw his plea, and dismissed the charges against him.

A few years later, Randle applied for a concealed handgun license with the DPS. When Randle applied, the offense of tampering with manufacturer’s identification had been reclassified from a felony to a Class A misdemeanor. On January 16, 1998, the DPS denied Randle’s application because of his “felony conviction.” Randle appealed the DPS’s ruling to the justice court, which ruled in favor of the DPS.. Randle then appealed to county court and filed a motion for summary judgment. The county court granted Randle’s motion for summary judgment and ordered the DPS to issue Randle a license.

The DPS now appeals the county court’s ruling, raising three issues: (1) whether this Court has subject matter jurisdiction over this appeal; (2) whether Randle’s offense is a “felony” that disqualifies him from receiving a license; and (3) whether a dismissal of a charge pursuant to a successfully completed deferred adjudication is a “conviction” that disqualifies Randle from receiving a license.

Jurisdiction

The DPS first addresses the concern of whether this Court has jurisdiction over this appeal. The Texas Supreme Court recently put this issue to rest, after the parties filed their briefs, holding that we do have jurisdiction over appeals from denials of concealed handgun licenses. See Tune v. Texas Dep’t of Pub. Safety, 23 S.W.3d 358, 361-62 (Tex.2000); Texas Dep’t of Pub. Safety v. Biggert, 27 S.W.3d 182, 184 (Tex.App.—Houston [1st Dist.] 2000, no pet.).

Felony

In issue two, the DPS asserts Ran-dle is ineligible for a concealed handgun license because he was convicted of a felony .

The Concealed Handgun Act provides that Randle is completely ineligible for a license if he has been “convicted of a felony.” See Tex.Gov’t Code Ann. § 411.172(a)(3) (Vernon Supp.2000). If, however, Randle was convicted of a Class A misdemeanor, then he may qualify for a license after waiting five years. See id., § 411.172(a)(8). As explained above, Ran-dle’s offense was classified as a felony when he pled guilty, but it was classified as a Class A misdemeanor when he applied for a license.

This issue was recently addressed by the Fourteenth Court of Appeals, and we agree with its reasoning. See Texas Dep’t of Pub. Safety v. Kreipe, 29 S.W.3d 334, 337 (Tex.App.—Houston [14th Dist.] 2000, n.p.h.) (designated for publication). We must enforce the plain meaning of an unambiguous statute. Tune, 23 S.W.3d at 363. If a statute is clear and unambiguous, we need not resort to extrinsic aid to construe it. Id. Ran-dle’s offense was a felony when he committed it and when he pled guilty; thus, it was a “felony” within the meaning of the Concealed Handgun Act. See Kreipe, at 336-337.

We sustain issue two.

Conviction

In its third issue, the DPS asserts Randle was convicted of a felony. Ran-dle, on the other hand, asserts he was not convicted because his charges and guilty plea were dismissed pursuant to the deferred adjudication statute.

Again, Randle’s position is contrary to the express language of the Concealed Handgun Act, which defines “convicted” as:

[A]n adjudication of guilt or an order of deferred adjudication entered against a person by a court of competent jurisdiction whether or not the imposition of the sentence is subsequently probated and the person is discharged from community supervision. The term does not include an adjudication of guilt or an order of deferred adjudication that has been subsequently:
(A) expunged; or
(B) pardoned under the authority of a state or federal official.

Tex.Gov’t Code Ann. § 411.171(4) (Vernon Supp.2000) (emphasis added). Based on the plain language of the statute, Randle was “convicted” for purposes of the Concealed Handgun Act. Id.; see also Texas Dep’t of Pub. Safety v. McLendon, 43 Tex.Sup.Ct. J. 1219, 2000 WL 1335871, — S.W.3d - (Sept. 14, 2000) (per curiam); Tune, 23 S.W.3d at 363; Kreipe, at 337-338. Accordingly, we sustain issue three.

All pending motions are denied as moot.

We reverse the trial court’s judgment and render judgment for the DPS that Randle is not eligible for a concealed handgun license.

      . The offense was reclassified from a felony to a class A misdemeanor, effective September 1, 1994. See Act of June 19, 1993, 73rd Leg., R.S., ch. 900, art. 1, § 1.01, sec. 31.11, 1993 Tex .Gen.Laws 3586, 3640-41, 3705, 3766.


author: MURRY B. COHEN, Justice. WILSON, Justice,

text:
    Lennie DAVIS, Appellant, v. MEDICAL EVALUATION SPECIALISTS, INC.; Fred L. DeFrancesco, M.D.; John K. Dozier, M.D., P.A.; Connecticut Indemnity Company; and E.B.I. Companies, Inc., Appellees.
    No. 01-99-00980-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 2, 2000.
    Rehearing Overruled Nov. 2, 2000.

      Michael Kerensky, Houston, for Appellant.
    John M. Skrhak, Dallas, Teresa Irene Ford, The Woodlands, for Appellees.
    Panel consists of Justices COHEN, WILSON, and PRICE.

       The Honorable Frank Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.

   OPINION ON REHEARING

MURRY B. COHEN, Justice.

Appellees Connecticut Indemnity Company (CIC) and E.B.I. Companies, Inc. (EBI) have moved for rehearing to the panel and en banc. The remaining appel-lees have moved for en-banc rehearing only. The panel grants CIC and EBI’s motion for panel rehearing. A majority of the justices of this Court have voted to deny both en-banc rehearing motions. Our opinion issued September 7, 2000 is withdrawn, and this opinion is issued in its stead.

Appellant appeals a take-nothing summary judgment rendered against her. We affirm the judgment in part, reverse it in part, and remand the cause.

Facts

Appellant was hurt at work and filed a workers’ compensation claim. Once she reached her “maximum medical improvement,” her treating physician, Dr. John Bergeron, examined her and assessed a permanent impairment rating of 17%. The workers’ compensation carrier, Connecticut Insurance Company (CIC), then requested a medical examination by the physician of its choice, Dr. Fred DeFran-cesco, who performs these examinations at Medical Evaluation Specialists’s (MES) facilities. See 28 Tex.Admin.Code § 69.15 (2000). MES is a company that markets a group of independent contractor doctors to insurance companies for the purpose of performing medical examinations requested under the Texas Workers’ Compensation Act (TWCA).

After examining appellant, Dr. DeFran-cesco gave her a 0% impairment rating. The Texas Workers’ Compensation Commission (TWCC) then randomly selected a “designated doctor” to evaluate appellant. See Tex.Lab.Code Ann. § 401.011(15) (Vernon Supp .2000). The doctor randomly selected was another MES contractor, Dr. John Dozier. He examined appellant and also gave her a 0% impairment rating. As a result of the two opinions from MES-affiliated physicians, the insurance carrier stopped paying benefits to appellant.

Appellant then filed this suit, alleging that local plaintiffs attorneys had detected a bias against claimants by doctors affiliated with MES. For example, appellant’s pleadings alleged that when MES physi-dans were involved, the reports all read the same and almost always found 0% impairment. Appellant thus alleged that MES and its physicians were not participating in good faith in evaluating workers’ compensation claims. Appellant contends that MES was subverting the TWCA by recruiting physicians who would ignore the American Medical Association (AMA) guidelines and knowingly assign false and fraudulent impairment ratings that would attract insurance company business.

Appellant protested the use of the two MES physicians. The TWCC ruled that Dr. Dozier’s association with Dr. DeFran-cesco through MES “may reasonably be perceived as having the potential to influence the conduct and decision of Dr. Dozier as a designated doctor.” The TWCC then designated another doctor, one independent of MES, to evaluate appellant. The new designated doctor examined appellant and assigned an impairment rating of 21% under the AMA guides. Sometime after Dr. Dozier was disqualified and before appellant filed suit, CIC paid to appellant all money that had been previously denied.

MES and Drs. DeFrancesco and Dozier moved for a rule 166a(c) summary judgment, claiming absolute derived judicial immunity and qualified “good faith” immunity. The other defendants, CIC and EBI, also sought summary judgment, but their motion is not in the record. The trial court granted all motions without specifying grounds.

Analysis

A. Summary Judgment for MES, Dr. DeFrancesco, and Dr. Dozier

In point of error one, appellant contends it was error for the trial court to grant the 166a(e) summary judgment motions of MES and Dr. DeFrancesco and of Dr. Dozier based upon either absolute derived judicial immunity or qualified “good faith” immunity.

These appellees rely heavily on Delcourt v. Silverman, which held that a party has absolute derived judicial immunity when acting as part of the judicial system or as an “arm of the court.” See 919 S.W.2d 777, 786 (TexApp.—Houston [14th Dist.] 1996, writ denied). They contend that because TWCC is part of the judicial system, they have immunity based on their functions under the TWCA.

We agree that TWCC is a quasi-judicial body. See Washburn v. Associated Indem. Corp., 721 S.W.2d 928, 932 (Tex.App.—Dallas 1986), writ ref'd n.r.e., 735 S.W.2d 243 (Tex.1987). In Delcourt, the court adopted the “functional approach” to determine whether a court-appointed psychiatrist and an attorney ad litem had absolute derived judicial immunity. The court considered several factors: (1) whether the defendant’s acts were intimately associated with the judicial process; (2) whether the defendant’s acts were “functions to which the reasons for absolute immunity apply with full force”; and (3) whether the defendant was acting as an integral part of the judicial system or as an “arm of the court.” 919 S.W.2d at 782, 786.

MES, Dr. DeFraneesco, and Dr. Dozier contend that Delcourt controls this case because both doctors acted pursuant to the TWCA and on behalf of the TWCC, either generally (Dr. DeFraneesco) or specifically (Dr. Dozier), when they examined appellant. Further, these appellees contend that their conduct is activity that the rule of absolute derived judicial immunity was intended to protect.

Dr. DeFraneesco contends he examined appellant pursuant to the TWCA and on behalf of the TWCC, then submitted the written reports to the TWCC. He also contends that his actions were performed in an official capacity and within the statutory authority provided an independent medical examiner and that the examination was performed in good faith.

Applying the Delcourt “functional approach” test first to Dr. DeFraneesco, we observe that he was not selected by the TWCC, a government agency. He was selected by CIC, a private corporation. See 28 TexAdmin.Code § 69.15 (2000). Consequently, the reasons for applying absolute derived judicial immunity set forth in Delcourt do not apply to Dr. DeFran-cesco, even if his report was to be used in a TWCC proceeding. Therefore, we hold that Dr. DeFraneesco was not entitled to absolute derived judicial immunity.

In contrast, Dr. Dozier was designated by the TWCC pursuant to the TWCA. His claim of immunity is governed by the following statutes:

A person who performs services for the commission as a designated doctor, an independent medical examiner, a doctor performing a medical case review, or a member of a peer review panel has the same immunity from liability as a commission member under section 402.010.

Tex.Lab.Code Ann. § 413.054(a) (Vernon 1996) (emphasis added). But unlike the judicial officers in Delcourt, a TWCC member is not entitled to absolute immunity:

A member of the commission is not liable in a civil action for an act performed in good faith in the execution of duties as a commissioner.

Tex.Lab.Code Ann. § 402.010 (Vernon 1996) (emphasis added). Thus, Dr. Dozier is not entitled to absolute derived judicial immunity. That would give him more immunity than the commissioners who appointed him. Dr. Dozier, like TWCC members, has immunity only for acts performed in good faith. The DelcouH opinion is distinguishable because the extent of immunity there was a matter of common law, to be decided by the courts. See id., 919 S.W.2d at 781. Because the extent of Dr. Dozier’s immunity in this case is governed and limited by statute, DelcouH does riot control the present case.

MES also claims absolute derived judicial immunity, based on DelcouH. MES contends its acts furthered the purposes of the governmental entity, TWCC, which directed Dr. DeFrancesco’s actions in the first place. Thus, MES reasons, absolute derived judicial immunity extends to MES because it applies to Dr. DeFraneesco. We reject this argument, having held above that Dr. DeFraneesco has no absolute derived judicial immunity.

Nor is MES entitled in its own right to derived judicial immunity. MES does not conduct medical examinations. MES is a general business corporation that recruits doctors and provides administrative services. The act of promoting these doctors to insurance companies is routine commercial activity. MES was not acting as an arm of the court, and it is not a “person” doing any acts listed in section 413.054(a).

MES, Dr. DeFraneesco, and Dr. Dozier submitted summary judgment proof stating that their evaluations of appellant were reasonable and made in good faith. Appellant responded with the affidavit of her treating physician, Dr. Ber-geron, stating:

My name is John Bergeron, I am of legal age and I am otherwise fully able to make this affidavit. All statements in this affidavit are true and correct and are based upon my personal knowledge. I am a treating physician of Lenny Davis. Attached to this affidavit is a copy of my current curriculum vitae. I am familiar with her condition, history and the results of her diagnostic tests. I have treated her for her on-the-job injury that occurred on February 30, 1996. I have evaluated her impairment as a result of that on-the-job injury in accordance with the “Guides to the Evaluation of Permanent Impairment,” third edition, second printing, dated February, 1989, published by the American Medical Association. I am familiar with the requirements of the “Guides to the Evaluation of Permanent Impairment,” third edition, second printing, dated February, 1989, published by the American Medical Association and have evaluated many patients pursuant to this publication in accordance with the Texas Workers’ Compensation Act. Based upon my evaluation of Lennie Davis under the “Guides to the Evaluation of Permanent Impairment,” third edition, second printing, dated February, 1989, published by the American Medical Association, I found a permanent impairment rating of seventeen (17%).
I have attached to this affidavit my report stating the basis for this impairment rating.
I have reviewed the impairment ratings given to Lennie Davis by Dr. DeFran-cesco and Dr. Dozier. In my opinion, the zero (0%) percent impairment ratings for Lennie Davis are without any reasonable basis and demonstrate a lack of good faith on the part of these doctors. The only explanation for Dr. De-Francesco’s and Dr. Dozier’s conclusion that Lennie Davis has an impairment, rating of zero (0%) percent under the “Guides to the Evaluation of Permanent Impairment,” third edition, second printing, dated February, 1989, published by the American Medical Association is a bad faith intent on the part of these physicians to wrongfully deny Lennie Davis her rightful workers’ compensation benefits.

This affidavit created a fact issue as to whether Dr. DeFrancesco and Dr. Dozier acted in bad faith when they assessed appellant a 0% permanent impairment rating. Therefore, the trial court erred in granting summary judgment for MES, Dr. DeFrancesco, and Dr. Dozier.

MES, Dr. DeFrancesco, and Dr. Dozier contend that if any doctor, including themselves, testified their acts were reasonable, then any contrary summary judgment evidence would be irrelevant because their testimony would trump all others and entitle them to judgment as a matter of law. Citing Putthoff v. Ancrum, 934 S.W.2d 164, 166-67 (Tex.App.—Fort Worth 1996, writ denied), they contend that once they swear to their own good faith, “There can be no competent evidence that can work to defeat the granting of immunity.” This is not and cannot be the law.

In Putthoff, the plaintiffs alleged that a negligent autopsy prevented them from proving their daughter was murdered. The defendant pathologists claimed qualified judicial immunity, and their motion for summary judgment was denied. An interlocutory appeal followed, and the court declared:

In City of Lancaster v. Chambers, 883 S.W.2d 650, 656 (Tex.1994), the supreme court adopted a good faith test consisting of “objective legal reasonableness.” This standard applies in all qualified or official immunity cases. Murillo v. Garza, 881 S.W.2d 199, 202 (Tex.App.—San Antonio 1994, no writ). The element of good faith is satisfied when it is shown that a reasonably prudent person in the same or similar circumstances would have taken the same actions. City of Houston v. Newsom, 858 S.W.2d 14, 18 (Tex.App.—Houston [14th Dist.] 1993, no writ). To controvert summary judgment proof on good faith, the plaintiff must do more than show a reasonably prudent person would not have taken the same action; “the plaintiff must show that ‘no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.’ ” City of Lancaster, 883 S.W.2d at 657 (emphasis added).

Putthoff, 934 S.W.2d at 172. Putthojf does not state that there can be no controverting of a defendant’s evidence of good faith. It states the opposite. The Putthojf plaintiffs did not lose because the defendants’ affidavits were unassailable. They lost because their own controverting affidavit was inadequate. All it stated was that the defendant doctors were negligent; it wholly failed to say that they acted in bad faith. See id. at 173.

The plaintiff must produce evidence that “no reasonable person in the defendant’s position could have thought the facts were such that they justified the defendant’s acts.” Id. at 172. Appellant did that with the affidavit of Dr. Bergeron. Once a plaintiff does that, she has raised a fact issue on whether the defendant’s conduct was objectively unreasonable, no matter how reasonable the defendants or their experts believe it to be.

The appellees also rely on City of Lancaster v. Chambers, in which the Court stated that it was raising the standard of proof necessary for a plaintiff to defeat a motion for summary judgment based on a claim of official immunity. 883 S.W.2d 650, 656 (Tex.1994). The Court did not, however, state any absolute right of entitlement to resolution of the official immunity defense at the summary judgment stage. Id. at 657. It stated the opposite. After stating how “... to controvert the [defendant’s] summary judgment proof on good faith ...,” the justices declared, “We do concede that the test we create today is somewhat less likely to be resolved at the summary judgment stage than is the federal test.” Id. Finally, nothing in City of Lancaster abrogates the standard and well known rules governing summary judgment review.

Thus, we must accept as true all evidence favorable to the non-movant and must apply all inferences and resolve all doubts in her favor. Nixon v. Mr. Prop. Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). “We must also bear in mind that it is not [plaintiffs’] burden to disprove good faith, but merely to raise a fact issue.” Murillo v. Garza, 904 S.W.2d 688, 692 (Tex.App.—San Antonio 1995, writ denied).

The three appellees claim that Dr. Ber-geron’s affidavit was conclusory and unsupported by any medical or other objective data. We disagree.

In holding that a plaintiffs affidavit raised a fact issue defeating an immunity claim, the Murillo court stated that “[t]he controverting affidavit must demonstrate the qualification of the affiant to state [his] conclusion and some basis upon which the conclusion is reached.” Murillo, 904 S.W.2d at 692. “It is not sufficient to simply file a conclusory statement echoing the language of the supreme court test.” Id. This is not the case with Dr. Berger-on’s affidavit. It states both his qualifications to state his conclusion and the basis for his conclusion — his own examination of appellant, as well as his consideration of Dr. DeFrancesco’s and Dr. Dozier’s impairment ratings. Dr. Bergeron had personal knowledge because he was appellant’s treating physician. He had requisite expertise and had evaluated many patients under the TWCA and, specifically, under the mandated requirements of the AMA guides. Dr. Bergeron attached to his affidavit his report stating the basis for the impairment rating he assigned to appellant. He then stated his opinion that there was no basis except bad faith for finding a 0% impairment. As required by the summary judgment standard of review, we take all these statements and all reasonable inferences arising from them as true, we view them in the light most favorable to appellant, and we resolve all doubts in appellant’s favor. Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex.1999). Two reasonable inferences to be drawn are that (1) no doctor acting in good faith could have failed to see the symptoms Dr. Bergeron saw and (2) having seen them, no doctor acting in good faith could have concluded that a person in that condition had no disability whatsoever. Applying that standard of review, we hold that Dr. Berger-on’s affidavit raised a fact issue.

We sustain the first point of error.

B. SUMMARY JUDGMENT FOR CIC AND EBI

In the second point of error, appellant contends the trial court erred by granting summary judgment in favor of CIC and EBI.

CIC and EBI’s summary judgment motion is not part of the appellate record. Appellant filed her brief, but never mentioned the missing motion. CIC and EBI then raised this deficiency in their brief, but appellant did not respond or move to supplement the record. Finally, when this deficiency was again noted during oral argument in June, appellant told the Court she would supplement the record with the missing motion, but never did.

Accordingly, we overrule the second point of error and affirm the summary judgment rendered in favor of CIC and EBI. See Atchison v. Weingarten Realty Mgt. Co., 916 S.W.2d 74, 76-77 (Tex.App.—Houston [1st Dist.] 1996, no writ) (overruling points of error attacking summary judgment, when summary judgment motion was not included as separate item in appellate record and when appellee objected to the omission). Cf. Pierson v. SMS Fin’l II, L.L.C., 959 S.W.2d 343, 348 (Tex.App.—Texarkana 1998, no pet.) (presuming summary-judgment response not requested or included in clerk’s record supported the trial judge’s granting of summary judgment).

We affirm that portion of the summary judgment rendered in favor of CIC and EBI. We reverse that portion of the summary judgment rendered in favor of MES, Dr. DeFrancesco, and Dr. Dozier and remand the cause.

The panel voted to grant appellees CIC and EBI’s motion for panel rehearing.

Justice WILSON, dissenting on rehearing.

A majority of the justices voted to deny CIC and EBI’s motion for en-banc rehearing.

A majority of the justices voted to deny appellees MES, Dr. DeFrancesco, and Dr. Dozier’s motion for en-banc rehearing.

Justice TAFT notes his dissent from the denial of MES’s, Dr. DeFrancesco’s, and Dr. Dozier’s motion for rehearing en banc, and he would join Justice WILSON’S dissent.

WILSON, Justice,

dissenting on motion for rehearing.

I respectfully dissent. I would grant the motion for rehearing of Medical Evaluation Specialists, Inc. (MES), Fred L. De-Francesco, M.D., and John K. Dozier, M.D., P.A. and affirm the trial court’s summary judgment.

In their motion for rehearing, MES, Dr. DeFrancesco, and Dr. Dozier express concern that, “In reaching its holding, this Court considered both evidence not properly before the Court and mere allegations contained in Appellant’s various pleadings.” The new opinion of the majority will heighten those concerns.

It is axiomatic that pleadings and allegations are not evidence to be considered when evaluating the affidavit of Dr. Ber-geron, yet the new majority opinion adds even more nonmaterial “facts” and ruminations to the mix as if to bolster its conclusion. In its new footnote 2, we learn that appellees paid Davis over $40,000 and that this may imply “a desire to avoid further investigation by her [Davis] into MES’s practices.” Although consideration of this information is rejected by the majority, when the majority spends time in gross speculation on motives, it is difficult to avoid the thought that Dr. Bergeron’s affidavit is being viewed through the prism of Davis’ allegations.

We need not decide whether a difference in professional opinion can, in itself, ever raise an issue of fact relative to good faith. But this litigation is not a criminal case in which a mental state can be inferred from an act itself. I would hold here there is nothing inherent in a finding of an impairment rating of 0% that raises a material fact on the issue of good faith. The case is about the mental state of Dr. Dozier and Dr. DeFrancesco during the process by which they reached their conclusion. The evidence offered by Dr. Bergeron states that he is “familiar with her [Davis’] condition, history and the results of her diagnostic tests.” If Dr. Bergeron’s opinion is based on a history and results of tests, how can he possibly know the mental state of the other doctors without knowing what history and tests they considered?

Finally, the majority adds new material relative to the reasonable inferences to be drawn from Dr. Bergeron’s affidavit. To my knowledge, we have no evidence about any of Davis’ “symptoms,” much less any evidence that Dr. Bergeron observed symptoms and that any reasonable doctor would necessarily have had to observe such alleged symptoms. I would respectfully suggest that the statements are not inferences, but premises independently constructed without any evidence.

I agree with the majority’s holding that statute, not Delcowrt, has governed and limited the extent of official immunity in this case. Furthermore, I agree that City of Lancaster guides our decision. City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex.1994). We recognize that the supreme court in City of Lancaster stated that it was raising the standard of proof necessary to defeat a claim of official immunity.

I dissent because I believe Davis, by using Dr. Bergeron’s affidavit, failed to controvert adequately MES’, Dr. Dozier’s, and Dr. DeFrancesco’s good-faith claim using the test set out in City of Lancaster. Id. at 655-57. A material difference exists between merely stating someone acted in bad faith and offering proof to show that he acted in bad faith. Therefore, MES, Dr. Dozier, and Dr. DeFrancesco were entitled to a summary judgment based on their official-immunity defense.

No dispute exists about whether MES, Dr. Dozier, and Dr. DeFrancesco presented sufficient summary judgment proof that their evaluations of Davis were reasonable and made in good faith, thus entitling them to official immunity. The difference in opinion occurs when we attempt to determine whether Davis’ controverting affidavit of Dr. Bergeron is sufficient to raise a fact issue regarding the good-faith element of the official-immunity defense.

When reviewing the controverting proof, it should be kept in mind that it is not enough for a plaintiff to prove by summary judgment evidence merely that some other doctor would not have found a permanent disability rating of 0% (a subjective standard); instead, a plaintiff is required to establish that no reasonable doctor would have found a permanent disability rating of 0% (an objective standard). See City of Lancaster, 883 S.W.2d at 657; Murillo v. Garza, 904 S.W.2d 688, 690 (Tex.App.—San Antonio 1995, writ denied). The controverting affidavit must demonstrate the qualification of the affiant to state that conclusion and some basis on which the affiant reaches the conclusion. See Murillo, 904 S.W.2d at 692.

Dr. Bergeron’s affidavit is the only evidence presented by Davis to controvert MES’, Dr. Dozier’s, and Dr. DeFrancesco’s summary judgment evidence of good faith. The affidavit establishes that Dr. Bergeron treated Davis for her on-the-job injury, he was aware of her condition and history, and he conducted an evaluation of her permanent impairment according to American Medical Association (“AMA”) guidelines. Attached to the affidavit is the report generated by Dr. Bergeron from the evaluation. His findings show a 17% permanent impairment rating. The affidavit clearly reflects that Dr. Bergeron was competent and capable in conducting the evaluation of Davis according to the Texas Workers’ Compensation Act.

Dr. Bergeron makes the blanket statement that “[t]he only explanation for Dr. DeFrancesco’s and Dr. Dozier’s conclusion that Lennie Davis has an impairment rating of zero percent ... is a bad faith intent on the part of these physicians to wrongfully deny Lennie Davis her rightful worker’s compensation benefits.” Dr. Berger-on offers no valid basis or rationale for his statement. He does indicate that he has reviewed the impairment ratings or conclusions given by Dr. Dozier and Dr. DeFran-cesco, but he does not discuss how or why these findings were a result of bad faith, rather than negligence, or even faulty diagnostic testing. The record is void of evidence that they did not follow the AMA guidelines or that they intentionally ignored or misread diagnostic tests. Dr. Bergeron does not even claim to have reviewed the actual reports or any background tests or examinations generated by Dr. Dozier and Dr. DeFrancesco that may or may not support the 0% impairment rating. The only basis for Dr. Bergeron’s opinion that Dr. Dozier and Dr. DeFran-cesco acted in bad faith is that they found a 0% impairment rating. The affidavit does not identify a basis for Dr. Berger-on’s conclusion other than the difference in the impairment rating. Dr. Bergeron’s affidavit merely assumes that Dr. Dozier and Dr. DeFrancesco reviewed the same raw data as he did. This is a fatal assumption to the affidavit’s materiality on good faith.

The statements in Dr. Bergeron’s affidavit are conclusory in nature. It is well settled that conclusory statements unsupported by facts in an affidavit are insufficient to raise a genuine issue of fact to prevent the rendition of summary judgment. See Texas Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex.1994) (per curiam); Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex.1984). Filing a con-clusory statement echoing the language of the supreme court test is not sufficient. A valid basis must exist for statements made in the affidavit. See Murillo, 904 S.W.2d at 692; Mercer, 676 S.W.2d at 583. There is no valid basis in the record for Dr. Bergeron’s opinion that Dr. Dozier and Dr. DeFrancesco had a bad faith intent.

The majority relies heavily on Murillo, 904 S.W.2d 688. Even Murillo states that just because the controverting affidavit in that case was sufficient “does not mean that every controverting affidavit in every official immunity case will be found sufficient to overcome the defendant’s showing of good faith.” Id. at 692.

Heikkila v. Harris County addresses the exact issue that Murillo foresaw. Heikkila, 973 S.W.2d 333 (TexApp.—Tyler 1998, pet. denied). In Heikkila, the trial court rendered summary judgment for the defendant Harris County on the grounds that the county retained sovereign immunity because the medical examiner was entitled to official immunity. Id. at 334. The Tyler Court of Appeals affirmed the judgment and held that the plaintiffs’ summary judgment response did not contain sufficient proof that “no reasonable person in the defendant’s position could have thought the facts were such that they justified defendant’s acts.” Id. at 336 (following analysis presented in City of Lancaster, 883 S.W.2d at 655-57); see also City of Lancaster, 883 S.W.2d at 657 (quoting Post v. City of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir.1993)). The plaintiffs’ proof of bad faith was that the doctor negligently disregarded evidence. Heikkila, 973 S.W.2d at 336. The court held that negligence was not proof of bad faith and, accordingly, affirmed the trial court’s rendition of summary judgment. Id. Similarly, Dr. Bergeron’s affidavit does not identify any intentional behavior indicative of bad faith other than a 0% impairment rating. Bad faith cannot rest in the 0% impairment rating, but in the process, if it exists, by which the doctors reached the 0% impairment rating.

In reviewing Davis’ controverting affidavit in light of the City of Lancaster standard, I would hold that Dr. Bergeron’s affidavit controverting MES’, Dr. Dozier’s, and Dr. DeFraneesco’s good-faith claim was conclusory and did not raise a material fact issue. In my opinion, the trial court did not err in granting MES’, Dr. Dozier’s, and Dr. DeFrancesco’s motion for summary judgment. I would overrule Davis’ first point of error and affirm the judgment.

      .No summary judgment evidence supports these allegations, and none supports other pleaded allegations that the MES physicians were not even examining some patients, they were not examining others in conformity with American Medical Association guides, and MES was resisting requests that its examinations be monitored by the treating physician, as is allowed under the TWCA guidelines. We agree with the dissent that pleadings are not summary judgment evidence. We describe the pleadings only to establish the context of the lawsuit.

      . At oral argument, it was stated that CIC paid appellant more than $40,000 sometime after Dr. Dozier was disqualified, but before the designated doctor who was not affiliated with MES examined appellant. Such payment to appellant might imply a desire to avoid further investigation by her into MES's practices. No summary judgment evidence clearly establishes that sequence of events, however. Therefore, we decline to draw this inference.

      . EBI employees acted on behalf of CIC concerning appellant's claim.

      . Appellant also provided a “Supplemental Affidavit of Dr. John Bergeron.” This affidavit was filed after the trial court granted summary judgment to MES, Dr. DeFrancesco, and Dr. Dozier on May 15, 1999. On June 4, 1999, the trial court denied the appellant's motion for rehearing. Thus, we will not consider the supplemental affidavit because appellate review of a summary judgment is limited to the record that was before the trial court judge when he granted the judgment. Waddy v. City of Houston, 834 S.W.2d 97, 101 (Tex.App.—Houston [1st Dist.] 1992, writ denied). Documents added later are not considered. Reeves v. Houston Lighting & Power Co., 4 S.W.3d 374, 378 (Tex.App.—Houston [1st Dist.] 1999, pet. denied).