text:
    Arthur Garcia SANCHEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-96-00140-CR.
    Court of Appeals of Texas, San Antonio.
    Aug. 16, 2000.
    Rehearing Overruled Oct. 20, 2000.

      Mark Stevens, Stephanie L. Stevens, San Antonio, for Appellant.
    Daniel Thornberry, Asst. Crim. Dist. Atty., San Antonio, for Appellee.
    Sitting: PHIL HARDBERGER, Chief Justice CATHERINE STONE, Justice JOHN F. ONION, Jr., Justice.

      . Assigned to this case by the Chief Justice of the Supreme Court of Texas.

   OPINION ON REMAND

Opinion by: JOHN F. ONION, Jr., Justice (Assigned).

This appeal was taken from a conviction for official oppression for sexual harassment. See Tex. Pen.Code Ann. § 39.03(a)(3), (c) (Vernon 1994). The jury found appellant, Arthur Garcia Sanchez, guilty of the class A misdemeanor and assessed his punishment at confinement in the county jail for one year and a fine of $3,000. The jury, however, recommended community supervision. The imposition of the sentence was suspended. Appellant was placed on community supervision for two years subject to certain conditions.

On original submission, this Court sustained appellant’s contentions, finding that the sexual harassment provision of the statute was (1) unconstitutionally vague on its face and as applied in violation of the due process clause of the Fourteenth Amendment to the United States Constitution and (2) unconstitutionally over broad in violation of the First Amendment to the federal constitution. See Sanchez v. State, 974 S.W.2d 307 (Tex.App.-San Antonio 1998) (Sanchez I). The Court of Criminal Appeals on discretionary review found the sexual harassment statutory provision constitutional, reversed our judgment and remanded the cause for proceedings consistent with its opinion. See Sanchez v. State, 995 S.W.2d 677, 680 (Tex.Crim.App.), cert. denied, 528 U.S. 1021, 120 S.Ct. 531, 145 L.Ed.2d 411 (1999) (Sanchez II).

In construing Section 39.03(a)(3), (c) and finding it constitutional, the Court of Criminal Appeals discussed some of the essential elements of the offense, including some that were case-developed. The Court stated:

We express no opinion concerning whether some or all of the allegations in the indictment contain all of the elements required by the sexual harassment provision as we have construed it. The Court of Appeals may address such issues on remand if those issues are found to be properly before the court.

Sanchez II, 995 S.W.2d at 689-90 n. 11 (emphasis added).

On remand, in light of the procedure normally utilized, the parties were granted leave by this. Court to rebrief the case. See Theus v. State, 863 S.W.2d 489, 491 (Tex.Crim.App.1993).

POINTS OF ERROR

In his brief following remand, appellant raises six points of error. First, appellant contends that the trial court erred in overruling his motion to set aside the amended indictment because, in violation of the federal and state constitutions, and state statutory provisions, the indictment did not, inter alia, charge an offense. Second, appellant urged the trial court erred in overruling the same motion because the indictment did not specify what “rights, privileges, powers, or immunities” were at issue in the case. Third and fourth, appellant challenges the factual sufficiency of the evidence to sustain the conviction. Fifth and sixth, appellant contends that the trial court erred in admitting into evidence summaries of telephone records in violation of Rules 901 and 1006 of the Texas Rules of Evidence.

Prior to addressing appellant’s contentions, some background is necessary, including the statute, the indictment under which appellant was prosecuted, and the Sanchez II opinion. At this point in the appellate process, the instant case presents an out-of-the ordinary situation on remand. As recognized by the earlier quoted portion of the opinion in Sanchez II, there are some case-developed elements of the offense under section 39.03(a)(3), (c) as construed by the Court of Criminal Appeals that were not included in the indictment. Until the court spoke, the grand jury, the parties, and the trial court were not familiar with the construction to be placed on section 39.03(a)(3), (c).

THE STATUTE

The official oppression statute criminalizes certain acts by a public servant acting under the color of his office or employment. See Tex. Pen.Code Ann. § 39.03 (Vernon 1994). This statute provides:

(a) A public servant acting under color of his office or employment commits an offense if he:
(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;
(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or
(3) intentionally subjects another to sexual harassment.
(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.
(c) In this section, “sexual harassment” means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person’s exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly.
(d) An offense under this section is a Class A misdemeanor.

(emphasis added).

INTERPRETATION OF SECTION 39.03(a)(3), (c)

Sanchez II interpreted the language of section 39.03(a)(3), (c), determined some of the elements of the offense, and held the statute constitutional. We deem it important to examine the holding in Sanchez II.

The Court of Criminal Appeals found that the text in section 39.03(c) (defining sexual harassment) could not be interpreted in accordance with the plain meaning of its language because it was ambiguous concerning which alternative was modified by the term “unwelcome”. See Sanchez II, 995 S.W.2d at 683. The Court recognized two possible interpretations-that “unwelcome” modified only sexual advances or modified the entire statutory fist including “requests for sexual favors” and “other verbal or physical conduct' of a sexual nature.” Id. at 683-84. The Court, disavowing language in State v. Edmond, 933 S.W.2d 120, 122, 127, 128 (Tex.Crim.App.1996), stated: “And while the grammatical construction for the latter interpretation is awkward, that construction is not definitely incorrect. As the sexual harassment definitions language is ambiguous, we resort to sources outside the language of the definition.” Sanchez II, 995 S.W.2d at 684.

In doing so, the Court concluded that all alternative forms of sexual harassment under section 39.03(a)(3), (c) must involve “unwelcome” conduct. See id. at 685.

Further, the Court found that:

the statute requires intent on the part of the perpetrator that the conduct be of a sexual nature, not merely that the recipient perceive the conduct as sexual. To intentionally subject someone to a sexual advance, for example, the actor must be intending a sexual advance. To use the Court of Appeals’ examples, a wink or a smile would not fall within the statute unless the perpetrator intended the wink or smile to be a sexual advance (or a request for sexual favors, or other verbal or physical conduct of a sexual nature). Moreover, because the statute requires that the perpetrator intentionally subjects the victim to “unwelcome” sexual conduct, the perpetrator must necessarily be aware [know] that the sexual conduct is in fact unwelcome to be liable under the statute.

Sanchez II, 995 S.W.2d at 685.

The Court of Criminal Appeals further stated:

The statute requires that the perpetrator not only intentionally subject a victim to the specified unwelcome sexual conduct ... the perpetrator must also intend that submission to the conduct be made a term or condition of a person’s exercise of any right, privilege, power or immunity. In other words, the culpable mental state applies to both (a) the sexual conduct and (2) the quid pro quo.

Id. at 686.

RIGHT, PRIVILEGE, POWER,

OR IMMUNITY

For the purpose of the Sanchez II opinion, the Court of Criminal Appeals assumed but did not decide that the statutory phrase “right, privilege, power, or immunity” was so broad “that it covers anything of value to a person.” Id. at 686. Moreover, the Court recognized that the statute does not limit the quid pro quo to the recipient’s exercise or enjoyment of rights, privileges, powers, or immunities but a defendant could make “sexual advances upon the recipient submission to which could be a term or condition of a third party’s exercise or enjoyment of a right, privilege, power, or immunity.” Id.

And important to our discussion, the Sanchez II opinion later added: “As for the phrase ‘right, privilege, power, and immunity,’ we need not decide whether that phrase may in some instance deprive a person of fair notice of the conduct proscribed.” Id. at 689.

SOME ELEMENTS

The Sanchez II opinion sought to make clear some of the essential elements of the offense under section 39.03(a)(3), (c) when it stated:

Whatever the scope of “rights, privileges, powers, and immunities,” the sexual harassment provision of the official oppression statute proscribes conduct that, at least, contains the following elements:
(1) an official’s use of his official position,
(2) to intentionally engage in conduct of a sexual nature or attempt to procure sexual favors,
(3) which he knows is not welcomed by the recipient,
(4) intending submission to which to be a term or condition of the recipient’s or another person’s enjoyment of something of value to that person.

Id. at 687.

In concluding that the First Amendment was not implicated in the activity proscribed by the statute, the Court wrote:

Sexual harassment under the statute is essentially sexual extortion: an official used his official position to coerce submission to conduct of a sexual nature. And the statute criminalizes sexual harassment that is intentional. To be liable, the official must intend the sexual nature of his conduct, he must be aware that the conduct is unwelcome, and he must intend submission to the conduct to be made a term or condition of enjoying something of value to the recipient or another person-something of value that the official is in a position to withhold or provide. In other words, the official must intend to carry out sexual extortion.

Id., at 688 (emphasis added).

THE AMENDED INDICTMENT

With the Court of Criminals Appeals’ interpretation of section 39.03(a)(3), (c) as background, we return to the record.

Appellant’s original motion to quash or set aside the indictment was granted in part and denied in part. The State was given ten days to amend the indictment. The indictment, as amended, alleged in pertinent part, that on or about the:

1ST day of AUGUST, A.D., 1994, through on or about the 15TH day of FEBRUARY, A.D., 1995, ARTURO SANCHEZ, while acting under color of his office as a public servant, to wit: an officer, employee and agent of government, namely: Chairman and Board Member of the Board of Trustees of VIA METROPOLITAN TRANSIT, did intentionally subject DIANE GONZALEZ to sexual harassment, namely: unwelcome sexual advances, requests for sexual favors, and other verbal and physical conduct of a sexual nature, by stating to DIANE GONZALEZ (hereinafter referred to as “COMPLAINANT”) to the effect: that if COMPLAINANT did not have a sexual affair with him he would fire her; that to get an office, a secretary and a raise COMPLAINANT must have a sexual affair with him; that he had a sexual affair with another VIA employee and he would have a sexual affair with COMPLAINANT also; that he would have a sexual affair with COMPLAINANT; that COMPLAINANT should have a sexual affair with him because people already thought they were having a sexual affair; that COMPLAINANT must put on lipstick; that he would like COMPLAINANT to wear low-cut dresses; that he would like COMPLAINANT to wear black pantyhose and silk blouses because she looked better in them; that upon seeing a bruise on COMPLAINANT’S leg, that he asked COMPLAINANT if she was bruised from rough sex with her husband, and that he liked rough sex; and by touching DIANE GONZALEZ with his hand on her face, submission to which was explicitly and implicitly made a term and condition of DIANE GONZALEZ’ exercise and enjoyment of her rights, privileges, powers and immunities....

As can be seen, the amended indictment is a one paragraph, one-count charging instrument which alleged in pre-interpre-tation statutory language (later found to be ambiguous) all three statutory alternatives found in section 89.03(c) including the broadly-based third option “and other verbal and physical conduct of a sexual nature.” The amended indictment then listed eight verbal statements and one act of physical conduct (touching complainant “with his hand on her face”) without designating whether these alleged matters fell under one statutory alternative rather than another. The indictment does not appear to allege harassment as a course of conduct, which implied repetition or conduct of a continuing nature. The nine allegations were each separated by a semicolon attempting to allege the matters in the conjunctive. The State’s theory was that each matter alone authorized a conviction for sexual harassment upon a finding of that particular matter by the jury. Each of these matters were submitted to the jury in the disjunctive supporting the State’s theory.

At the conclusion, the indictment generally alleged that submission to these nine matters was made, explicitly and implicitly, a term and condition of Diane Gonzalez’s exercise and enjoyment of “her rights, privileges, powers, or immunities.” Although nine separate offenses were alleged, the indictment made no effort to specify which right, privilege, etc., was attributable to each offense alleged. There was no allegation appellant was in position to withhold or provide any right, privilege, power or immunity.

The acts were alleged to have occurred during a six and one-half month period “on or about August 1, 1994”, “through on or about” February 15, 1995. It is not possible to tell in exactly what order the nine alleged offenses occurred.

THE INITIAL CONTENTION

In his first point of error on remand, appellant urges that the trial court erred in overruling his motion to set aside the amended indictment because, inter alia, it alleged conduct that was not criminal, it did not allege an act or omission which by law was declared to be an offense, and did not allege everything that needs to be proved. In effect, appellant complains that he was not informed of the nature and cause of the accusation against him in violation of federal and state constitutional provisions which he cited in his motion.

In his second point of error, appellant contends that the trial court overruled the same motion because the amended indictment did not specify what “rights, privileges, powers, or immunities” were at issue. This was an unanswered point of error -on original submission. We shall consider both points of error together.

The Sixth Amendment to the United States Constitution provides in part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.... ” This right is made applicable to state prosecutions by the due process clause of the Fourteenth Amendment to the federal constitution. See Pointer v. State, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Article I, section 10 of the Texas Constitution provides in part that, “[i]n all criminal prosecutions the accused ... shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof.” Tex. Const., art. I, § 10. These constitutional guarantees require that notice be given with sufficient clarity and detail to enable the defendant to anticipate the State’s evidence and prepare a proper defense to it. See Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App.-1998). Under article I, section 10, the requisite notice must come from the face of the charging instrument. See Eastep v. State, 941 S.W.2d 130, 132 (Tex.Crim.App.1997).

An indictment “is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense.” Tex. Code Crim. Proc. Ann. art. 21.01 (Vernon 1989) (emphasis added). Among the requisites of an indictment is the requirement that the “offense must be set forth in plain and intelligible words.” Tex.Code Crim. Proc. Ann. art. 21.02(7) (Vernon 1989); see also id. art. 21.11. “The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” Id. art. 21.04. Moreover, “[ejverything should be stated in an indictment which is necessary to prove.” Id. art. 21.03.

In light of the constitutional guarantees and statutory provisions, an indictment must allege, in plain and intelligible language, all the facts and circumstances necessary to establish all the material elements of the offense charged. See Garcia, 981 S.W.2d at 685; Bynum, v. State, 767 S.W.2d 769, 779 (Tex.Crim.App.1989). The pleading must state facts which if true show a violation of the law. See Posey v. State, 545 S.W.2d 162, 163 (Tex.Crim.App.1977).

As a general rule, any element of the offense that must be proved should be stated in an indictment. See Dinkins v. State, 894 S.W.2d 330, 338 (Tex.Crim.App.1995); Whitehead v. State, 745 S.W.2d 374, 376 (Tex.Crim.App.1988); 41 George E. Dix & Robert O. Dawson, Criminal Practice and Procedure, § 20.52, at 146 (Texas Practice 1995) (hereinafter Dix). Naturally, this includes a culpable mental state or states of the offense. See Thompson v. State, 697 S.W.2d 413, 415 (Tex.Crim.App.1985). If an indictment fails to allege a culpable mental state for an offense, it is defective and subject to a motion to quash. See Swope v. State, 805 S.W.2d 442, 444 (Tex.Crim.App.1991). This applies even if the element of the offense is one developed by case law and not specifically set out in the statute defining the offense. See Green v. State, 951 S.W.2d 3, 4 (Tex.Crim.App.1997); Dix, § 20.52, at 20 n.2.1 (Supp. 1999).

“Whether an element of the offense may be inferred from the language employed is not the question. In face of a proper motion to quash, the information [or indictment] must state the elements of the offense, leaving nothing to inference or intendment. See, e.g., Chance v. State, 563 S.W.2d 812, 814-15 (Tex.Crim.App.1978).” Green, 951 S.W.2d at 4. The failure to allege an element of the offense in the indictment is a defect of substance. See Tex.Code Crim. Proc. Ann. art. 27.08(1) (Vernon 1989); Tobias v. State, 884 S.W.2d 571, 578 (Tex.App.-Fort Worth 1994, pet. ref'd.) (citing Studer v. State, 799 S.W.2d 263, 268 (Tex.Crim.App.1990)).

In regard to charging instruments, fundamental protections of adequate notice and due process require careful examination and consideration from the perspective of the accused. See McManus v. State, 591 S.W.2d 505, 515 (Tex.Crim.App.1979). It is not sufficient to say that a defendant knew with what offense he was charged. The inquiry must be whether the charging instrument in writing furnished that information in plain and intelligible language. See Beck v. State, 682 S.W.2d 550, 554 (Tex.Crim.App.1985). The nature of the accusation against the defendant must come from the face of the charging instrument. See State v. Draper, 940 S.W.2d 824, 826 (Tex.App.-Austin 1997, no pet.) (citing Tex.Code Crim. Proc. Ann. arts. 21.02(7), 21.11 (Vernon 1989)).

An indictment must be fairly tested by itself as a pleading; it can neither be supported nor defeated as such by what evidence is introduced at trial. See State v. Rosenbaum, 910 S.W.2d 934, 941 (Tex.Crim.App.1994).

To avoid any confusion, it must be remembered that a defect of form or substance is waived if no motion, objection, etc., is made before the date trial commences. See Tex.Code Crim. Proc. Ann. art. 1.14(h) (Vernon Supp.2000); State v. Murk, 815 S.W.2d 556, 557 (Tex.Crim.App.1991); see also Duron v. State, 956 S.W.2d 547 (Tex.Crim.App.1997). In the instant ease there was such a motion.

STATE’S ARGUMENT

The State urges that appellant’s first point of error presents no error even if it is properly before the court. It contends that the trial court did not err in overruling the motion to set aside the amended indictment because the motion did not specify how the charging instrument was deficient and inform the trial court of the specific complaint. See Jones v. State, 672 S.W.2d 798, 799-800 (Tex.Crim.App.1984); see also Whalon v. State, 725 S.W.2d 181, 191 (Tex.Crim.App.1986).

We do not agree. The motion might not van any legal Good Housekeeping Seal of Approval but it pointed out to the trial court the difficulty appellant had with notice given by the amended document and in preparing a defense, etc. In fight of a motion to set aside the indictment, the indictment should be examined in fight of the presumption of innocence. See Coleman v. State, 643 S.W.2d 124, 125 (Tex.Crim.App.1982). Under Article I, Section 10 of the Texas Constitution, a defendant has a right to have a grand jury-pass upon the question of whether there is probable cause to believe that he committed a particular offense. See Duron v. State, 956 S.W.2d 547, 550 (Tex.Crim.App.1997). And under the same constitutional provision, he is entitled to demand the nature and cause of the accusation against him. It is not realistic, at least in the context of this case, for a presumptively innocent defendant to be required to specify in detail by written motion missing elements or what should have been pleaded by the State in the indictment returned by the grand jury. The trial court, of course, should not be “sandbagged” by a defendant or by the State. Cf. Seefurth v. State, 422 S.W.2d 931, 936 (Tex.Crim.App.1967). In the instant case, the motion in question was the second motion to quash the indictment filed and heard. Appellant was clearly seeking to ascertain the nature and the cause of the accusations against him and it is apparent from the context that the trial court and the prosecutor knew or should have known the basis of appellant’s motion. See Tex.R.App. P. 33.1(a)(1)(A); Zillender v. State, 557 S.W.2d 515, 517 (Tex.Crim.App.1977). Moreover, no waiver can be inferred or appellant faulted for failure to point out in his motion to quash the omission in the indictment of elements later developed by case law when the claim would have been novel and the claim would have been futile. Cf. Ex parte Chambers, 688 S.W.2d 483, 486 (Tex.Crim.App.1984) (Campbell, J., concurring). We reject the State’s contention.

The amended indictment did not allege the essential culpable mental state of “knowing” under section 39.03(a)(3), (c). There was r.o allegation, as required by Sanchez II, 995 S.W.2d at 687, that appellant knew any conduct of a sexual nature [in which he intentionally engaged] was not welcomed by the recipient [complainant]. It is fundamental that an indictment must allege all essential elements of the offense to be charged. See Ex parte Winton, 549 S.W.2d 751, 752 (Tex.Crim.App.1977). As noted, this rule applies even if the element is one developed by case law and not specifically set out in the statute defining the crime. See Green, 951 S.W.2d at 4. An allegation of an essential culpable mental state is an element of the offense, Winton, 549 S.W.2d at 752, and its absence, like that of other essential elements, is a defect of substance. See Studer v. State, 799 S.W.2d at 267-68; McCoy v. State, 932 S.W.2d 720, 724 (Tex.App.-Fort Worth 1996, pet. ref'd.). Whether an element of an offense may be inferred from the language employed is not the question. In the face of a motion to quash, the indictment must state the elements of the offense, leaving nothing to inference or intendment. Green, 951 S.W.2d at 4; Chance v. State, 563 S.W.2d 812, 814-15 (Tex.Crim.App.1978).

Jackson v. State involved a charging instrument in an evading an arrest prosecution. [718 S.W.2d 724 (Tex.Crim.App.1986) ] Jackson held that in such prosecution it is an essential element that the accused know that the peace officer is attempting to arrest him or her, in addition to knowing that the person is a peace officer. See id. at 725. When such essential element is omitted from the charging instrument, the offense of evading arrest is not properly plead. See id. In concurring, Judge Clinton pointed out that the culpable mental state of “intentionally” does not embrace “with knowledge” that the peace officer was attempting to arrest the accused. Jackson, 718 S.W.2d at 727 (Clinton, J., concurring). “Here the latter fact is one of the ‘circumstances surrounding the conduct’ — ex'stence of which an accused must be aware. V.T.C.A. Penal Code § 6.02(b). One can not ‘intend’ circumstances suiTounding his conduct. Lugo-Lugo v. State, 650 S.W.2d 72, 87 (Tex.Crim.App.1983) (concurring opinion).” Id. (Clinton, J., concurring).

The failure to allege the culpable mental state of “knowing” was a defect of substance in the instant indictment. Its absence, standing alone, is sufficient basis for finding that the trial court erred in overruling the second motion to set aside the indictment.

Although the instant indictment alleged in general that appellant “did intentionally subject Diane Gonzalez to sexual harassment,” there was no further allegation in the nine separate offenses set forth that appellant “intended to engage in conduct of a sexual nature” or “intended” submission thereto to be a condition or term of the complainant’s enjoyment or exercise of a right, privilege, power, or immunity — the quid pro quo. These were culpable mental states — latent in the statute but expressly declared are developed by the Court of Criminal Appeals in finding the statute constitutional. See Sanchez II, 995 S.W.2d at 686.

Even if an indictment contains language describing the correct culpable mental state, such language must modify and refer to each and every element of the offense requiring such a mental state to avoid a defect in the indictment which would be subject to a motion to quash. See Diggles v. State, 641 S.W.2d 667, 669 (Tex.App.-Dallas 1982, pet. ref'd.). Sanchez II made clear that not just any conduct will do, it must be conduct of a sexual nature to trigger the provisions of section 39.03(a)(3), (c). As the court noted, a wink or a smile would not fall within the statute unless the perpetrator intended a wink or a smile to be an unwelcome sexual advance, unwelcome request for sexual favors or other unwelcome physical and verbal conduct of a sexual nature. Sanchez II, 995 S.W.2d at 685. Like the wink, many of the verbal statements and the one physical act alleged would not fall within the statute unless appellant intended such conduct to be conduct of a sexual nature and further intended at the time of the conduct to impose the quid pro quo — submission thereto to be a condition or term of the recipient’s or another person’s enjoyment or exercise of a right, privilege, power, or immunity. “In other words, the official must intend to carry out sexual extortion.” Sanchez, 995 S.W.2d at 688. These culpable mental states of “intent” are elements of the offenses charged and their absence from the indictment are defects of substance.

APPELLANT’S SECOND CONTENTION

The indictment attempted to allege nine separate offenses concluding “submission to which was explicitly and implicitly made a term and condition of Diane Gonzalez’s exercise and enjoyment of her rights, privileges, powers, and immunities” without specifying which rights, privileges, etc., were involved. The Court of Criminal Appeals concluded that the statutory phrase “right, privilege, power, or immunity” was so broad as to cover “anything of value to a person.” Sanchez II, 995 S.W.2d at 686. Later, the court declined to decide whether the phrase may in some instance deprive a person of fair notice of the conduct proscribed. See id. at 689.

In both his first and second motions to quash the indictment, Appellant expressly complained of the failure of the indictment to specify which rights, privileges, powers, or immunities were involved. Both motions were denied on this basis. The State acknowledges the omission of any specificity following the general allegation of the statutory phrase in the indictment. It points out, however, that earlier in the indictment, although not alleged as a right, privilege, power, or immunity, two of the nine separate theories alleged appellant stated (1) that he would fire the complainant if she did not have a sexual affair with him, and (2) that to get an office, a secretary, and a raise, she would have to have a sexual affair with him. The State argues that these allegations permeate the entire indictment regardless of the omission. We do not agree. The allegations were limited to two of the nine offenses alleged to have occurred sometime between August 1, 1994, through February 15, 1995. Moreover, the fair notice required was not provided because there was no allegation at all that appellant was in a position to either provide or withhold any right, privilege, power, or immunity to the complainant. To be liable under the statute, appellant must have been in such a position. See Sanchez II, 995 S.W.2d at 688.

The trial court erred in overruling the motion to set aside the indictment as complained of in the first and second points of error. We must now determine if the error was harmless.

HARMLESS ERROR ANALYSIS

An exception to the form of an indictment exists if the indictment fails to provide adequate facts to give the defendant notice of the offense with which he is charged. See Olurebi v. State, 870 S.W.2d 58, 61 (Tex.Crim.App.1994); Adams v. State, 707 S.W.2d 900, 901 (Tex.Crim.App.1986); see also Tex.Code Crim. Proc. Ann. arts. 21.02(7), 27.09(2) (Vernon 1989). Under Article 21.19 of the Texas Code of Criminal Procedure, a conviction may be affirmed despite a showing that the trial court erred in overruling a challenge to the charging instrument based on a defect of form in that instrument. See Adams, 707 S.W.2d at 901-904. “Affirmance is permissible-and mandated -if the defect did not prejudice the substantial rights of the defendant.” Dix § 21.117, at 393.

The first step ... is to decide whether the charging instrument failed to convey some requisite item of “notice.” If the sufficient notice is given, this ends our inquiry. If not, the next step is to decide whether in the context of the case, this had an impact on the defendant’s ability to prepare a defense, and, finally, how great an impact.

Adams, 707 S.W.2d at 903.

The Adams rule, however, does not apply if the defect in the indictment or information is one of substance. See Jackson v. State, 718 S.W.2d 724, 725 n. 1 (Tex.Crim.App.1986). A defect of substance in an indictment is not subject to article 21.19. Dix, § 21.117, at 394. When there is a defect in substance, there is a failure to charge a purported offense. See Jackson, 718 S.W.2d at 725 n. 1. Under such circumstances, Jackson, like the pre-Adams law, assumed that no harmless error rule applied. “Reversal was automatic.” Dix, § 21.117, at 394.

The exact relationship between the harmless error rule of Adams (to be imposed under article 21.19) and the harmless error rule of the Rules of Appellate Procedure is not altogether clear. See Dix, § 21.121 at 404. The Adams rule can be said to be statutory in nature as it is based on Article 21.19 and is not affected by the later adopted Rules of Appellate Procedure. Some appellate courts have combined Adams and former Rule 81(b)(2) (now Rule 44.2(a)-(b)) concluding beyond a reasonable doubt that a defect in form in the charging instrument made no contribution to the conviction. See Robinson v. State, 764 S.W.2d 367, 373 (Tex.App.-Dallas 1989, pet. ref'.); see also Sullivan v. State, 831 S.W.2d 533, 534 (Tex.App.Houston [14th Dist.] 1992, pet. ref'd.).

In Burleson v. State, 935 S.W.2d 526, 528-29 (Tex.App.-Waco 1996, no pet.), the conviction for possession of a firearm by a felon was reversed where the trial court erred in overruling the motion to quash the indictment that failed to allege an element of the offense — a defect of substance. There was no discussion or even mention of the applicability of any harm analysis. Burleson assumed like Jackson that no harmless error rule applied to the situation involved. Cf. Vela v. State, 776 S.W.2d 721, 724 (Tex.App.-Corpus Christi 1989, no pet.) (Adams harm analysis applied to indictment challenged for failure to allege one element of offense, a defect of substance although characterized as notice defects.).

Rule 44.2 has replaced former Rule 81(b)(2) and has been divided into parts (a) for constitutional error and (b) for other errors with different standards of review. Cain v. State has strictly limited immunity from the harmless error rule. See 947 S.W.2d 262, 264 (Tex.Crim.App.1997).

The timely objected-to indictment contained defects of substance. It lacked essential elements of the offense. Moreover, it failed to allege facts to give appellant the required notice of the offense with which he was charged. The trial court erred in overruling the challenge to the indictment. If the error here is subject to harm analysis at all, it matters not what harmless error rule is applied. See Jackson, 718 S.W.2d at 725 n. 1. Under any standard of review applied, the error would be harmful.

It is clear from the record that the omitted elements and the lack of required notice impacted appellant’s defense. Moreover, the jury panel was voir dired on the conduct alleged in the indictment, not on all the elements of the offense. Even if an indictment fails to allege all the essential elements of the offense, the State is not excused from proving all the elements of the offense. See State v. Turner, 898 S.W.2d 303, 307-08 (Tex.Crim.App.1995). The flawed indictment in effect tended to lessen the State’s burden of proof. The obligation of the trial court to charge the jury on the “law applicable to the case” requires that the jury be instructed concerning every element of the offense. See Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon Supp.2000); 42 Dix, § 36.11. In the instant case, the trial court, following normal practice, charged the jury by tracking the indictment. This time, however, a flawed indictment was tracked. This authorized the jury to convict appellant on any of the nine separate theories contained in the one-count indictment without a finding of all the essential elements required of any of the nine separate allegations of the offense. A jury charge may not authorize a conviction on less evidence than the law requires. See Polk v. State, 749 S.W.2d 813, 815-16 (Tex.Crim.App.1988); Dix, § 31.127 at 240. The instant jury charge was a product of the flawed indictment. We conclude the error was harmful under any harmless error analysis. Appellant’s first and second points of error are sustained.

BEYOND HARMLESS ERROR

Independent of any harmless error analysis, we are confronted with a situation where the conviction cannot stand. The indictment did not charge appellant with all the elements of the offense under section 39.03(a)(3), (c) as construed by the Court of Criminal Appeals. The jury convicted appellant only of the conduct alleged in the indictment. A conviction can never rest upon conduct which is not a criminal offense, or in whole or in part upon conduct not alleged in the indictment. See Lawton v. State, 913 S.W.2d 542, 551 (Tex.Crim.App.1995). To convict someone of a crime on the basis of conduct that does not constitute the crime offends the basic notions of justice and fair play embodied in the United States Constitution. See United States v. Briggs, 939 F.2d 222, 228 (5th Cir.1991). “It is the law of the land that no man’s life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal.” In re Oliver, 333 U.S. 257, 278, 68 S.Ct. 499, 92 L.Ed. 682 (1948). Error may be fundamental if it calls into question whether the accused had a fair trial and implicates the due course of the law provision of the Texas Constitution. See Tex. Const, art. I, § 19; Hensarling v. State, 829 S.W.2d 168, 173 (Tex.Crim.App.1992) (Maloney, J., dissenting).

It is a fundamental rule of criminal law and due process that one cannot be convicted of a crime unless it be shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. See Armstrong v. State, 958 S.W.2d 278, 280 (Tex.App.-Amarillo 1997, pet. ref'd.) (citing U.S. Const. Amend. XIV; In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)); see also Tex. Pen.Code Ann. § 2.01 (Vernon 1994); Tex.Code Crim. Proc. Ann. art. 38.03 (Vernon Supp.2000); Alvarado v. State, 912 S.W.2d 199, 206-07 (Tex.Crim.App.1995).

The constitutional deprivation, both federal and state, in the instant case is a defect affecting the framework within which the trial proceeded rather than simply an error in the trial process itself. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

Appellant is entitled to a new trial. It is not necessary that we reach appellant’s other points of error.

The judgment of conviction is reversed and the cause is remanded.

      . The indictment alleged the offense occurred between August 1, 1994 and February 15, 1995, Section 39.03 became effective September 1, 1994. Therefore, the former statute (§ 39.02) was also implicated. See Act of May 24, 1973, 63rd Leg., R.S., ch. 399, 1973 Tex. Gen. Laws 883, 953, as amended by Act of May 28, 1989, 71st Leg., R.S., ch. 1217, § 1, 1989 Tex. Gen. Laws 4934, 4935 (adding subsection 39.02(a)(3), (c)), as amended by Act of March 25, 1991, 72nd Leg., R.S., ch. 16, § 19.01(34), 1991 Tex. Gen. Laws 244, 369, as amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3674 (current version of § 39.03(a)(3), (c), to which reference will be made throughout instant opinion).

      . The instant offense was charged by an indictment. Official oppression is within the ambit of official misconduct. See Emerson v. State, 727 S.W.2d 267, 268-69 (Tex.Crim.App.1987). The offense charged is within the jurisdiction of the district court. See Tex. Const, art. V, § 8; Tex.Code Crim. Proc. Ann. art. 4.05 (Vernon Supp.2000).

      . The Court further explained in footnote 7:
      Given the structure of the statute and its apparent purposes, we find that the statute does not require the perpetrator to intend that the conduct be unwelcome. He may in fact wish that the conduct were welcomed by the recipient, but he intentionally subjects the recipient to unwelcome sexual conduct when he intends sexual conduct that he knows is unwelcome. This is so because the sexual nature of the conduct flows from the actor, but the unwelcome nature of the conduct flows from the recipient. Despite the fact that unwelcome describes a recipient’s state of mind, that statute uses "unwelcome” as an adjective to describe the nature of the conduct. Hence, the perpetrator intends conduct which is unwelcome, but he does not necessarily intend the conduct to be unwelcome.

        Sanchez II, 995 S.W.2d at 685 n. 7.

      . "Value” is not defined for the purpose of the statute or the Penal Code. "Value” has many definitions used in various legal proceedings. See Black's Law Dictionary 1551 (6th ed.1990). In its ordinary use "value” has been defined as (1) an amount considered to be a suitable equivalent for something else; a fair price or return for goods or services; (2) monetary or material worth; (3) worth in usefulness or importance to possessor; utility or merit. See American Heritage Dictionary of the English Language 1415 (1973). If possible, the Court of Criminal Appeals appears to have broadened the already broad statutory phrase "rights, privileges, powers, or immunities.”

      . See the amended indictment set forth in Sanchez I, 974 S.W.2d at 311. The initials on the amended indictment appear to be those of Jim Kopp, one of the prosecutors.

      . This allowed the State prove a date or dates other than those alleged in the indictment as long as the date is prior to the presentation of the indictment and within the statutory limitation period. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997); Howk v. State, 969 S.W.2d 46, 49 (Tex.App.-Beaumont 1998, no pet.).

      . The State takes the position that the first point of error is not properly before this Court on remand because it was not a point of error on original submission. See Rochelle v. State, 791 S.W.2d 121, 124 (Tex.Crim.App.1990); Ontiveros v. State, 890 S.W.2d 919, 931 (Tex.App.-El Paso 1994, no pet.). These cases hold that on direct appeal a point of error raised only by supplemental brief is not properly presented for review except with leave of court "as justice requires” or "in the interest of justice.” Rochelle, 791 S.W.2d at 124.
      Normally, on remand by the Court of Criminal Appeals "the jurisdiction originally granted to the [Court of Appeals] by constitutional and statutory mandate is fully restored....” Adkins v. State, 764 S.W.2d 782, 784 (Tex.Crim.App.1988); see also Garrett v. State, 749 S.W.2d 784, 786-87 (Tex.Crim.App.1986); Calhoun v. State, 951 S.W.2d 803, 806 (Tex.App.-Waco 1997, pet. ref'd.).

        The rules of appellate procedure do not specifically address procedure in the courts of appeals after remand by the Court of Criminal Appeals. See Theus v. State, 863 S.W.2d 489, 491 (Tex.Crim.App.1993). The Theus court opined that because an appellant, following remand, stands in the same position as he did when the initial appeal was filed, the appellate rules apply as though the appeal was on original submission. See id. Thus, on remand the court of appeals is required to afford an appellant an opportunity to file a brief and to inquire as to the reason a brief was not filed on remand of the case. See id.; see also Tex.R.App. P. 38.8 (formerly Rule 74(f)(2)); Reich-Bacot v. State, 952 S.W.2d 542, 543 (Tex.Crim.App.1997). Failure of the court of appeals to do so may deprive an appellant of his right to rebrief and present argument on appeal in violation of the rule. See Oliver v. State, 891 S.W.2d 651, 652 (Tex.Crim.App.1995).
      Some decisions have limited rebriefing on remand to situations where the point of error or issue was not previously briefed on original submission. See Reich-Bacot v. State, 957 S.W.2d 892, 893 n. 6 (Tex.App.-Texarkana 1997, pet. dism’d) (citing Bell v. State, 956 S.W.2d 560 (Tex.Crim.App.1997)). Other cases make clear that issues may be briefed for the first time on remand where there has been a change in the law since original submission. See Johnson v. State, 864 S.W.2d 708, 716 (Tex.App.-Dallas 1993), aff'd, 912 S.W.2d 227 (Tex.Crim.App.1995); see also State v. Hensley, 866 S.W.2d 28, 29 (Tex.Crim.App.1993).
      "A brief may be amended or supplemented whenever justice requires, on whatever reasonable terms the court may prescribe.” Tex. R.App. P. 38.7 (formerly Rule 74(o)). Appellate rules apply on remand. See Theus, 863 S.W.2d at 491.
      In light of Theus, the normal practice following remand, and the interpretation of section 39.03(a)(3), (c) in Sanchez II, this court has granted leave and given the parties an opportunity to rebrief the instant case on remand. We reject the State’s contention that the first point of error is not before this Court for review on remand.

      . See Tex. Pen.Code Ann. § 6.03(h) (Vernon 1994).

      . See, e.g., Few v. State, 588 S.W.2d 578, 585 (Tex.Crim.App.1979); Ward v. State, 520 S.W.2d 395, 397-98 (Tex.Crim.App.1975).

      . Rule 44.2(a)-(b) provides:
      (a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error that is subject to harmless error review, the court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.
      (b) Other Errors. Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. Tex.R.App. P. 44.2(a)-(b).

      . The State argues that where different theories of the offense are submitted to the jury in the disjunctive, a general verdict is sufficient if the evidence supports one of the theories. See Fuller v. State, 827 S.W.2d 919, 931 (Tex.Crim.App.1992); Kitchens v. State, 823 S.W.2d 256, 257-58 (Tex.Crim.App.1991). This is true, but in the instant case the jury was not required by the trial court’s charge to find under any of the nine separate theories all the required elements of the offense, including the culpable mental state of "knowing.”

        . Cf. Curry v. State, 975 S.W.2d 629, 630 (Tex.Crim.App.1998); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997) (holding that in the context of an insufficiency of the evidence to support a conviction claim, the evidence is no longer measured by the jury charge actually given but rather measured by the elements of the offense by a hypothetically correct jury charge).


source: Caselaw Access Project

author: FRANK G. EVANS, Justice (Assigned).

license: Public Domain

text:
    NISSAN MOTOR COMPANY, LTD. aka Nissan Motor Company, and Nissan Motor Corporation in U.S.A., Appellants, v. Marian ARMSTRONG, Appellee.
    No. 14-98-00775-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 21, 2000.
    Rehearing Overruled Dec. 7, 2000.

      P. Michael Jung, Alan Brandt Daughtry, Leslie G. Landau, Houston, for appellants.
    Donald G. Wilhelm, Grant Kaiser, Houston, for appellee.
    Panel consists of Justices SEARS, DRAUGHN and EVANS

       Senior Justices Ross A. Sears, Joe L. Draughn and Frank G. Evans sitting by assignment.

   OPINION

FRANK G. EVANS, Justice (Assigned).

Nissan Motor Company, Ltd., a/k/a Nissan Motor Company, and Nissan Motor Corporation in U.S.A. (Nissan) appeal from a judgment in favor of Marian Armstrong awarding damages for personal injuries sustained in an “unintended acceleration” or “stuck throttle” accident involving her 1986 Nissan 300ZX automobile.

The jury found that Nissan was negligent and that such negligence proximately caused the accident. The jury also found a defect in the design, manufacture, and marketing of the vehicle, and that each such defect was a producing cause of the accident.

The jury further found that: (1) Nissan had negligently misrepresented to the public that the vehicle was “safe and technologically advanced” and that such negligent misrepresentation was a producing cause of the accident; (2) Nissan had fraudulently concealed or failed to disclose known material facts, which resulted in Ms. Armstrong’s injury; (3) Nissan had engaged in false, misleading or deceptive acts or practices and in unconscionable acts, which were a producing cause of Ms. Armstrong’s damages; (4) Nissan had breached its warranties to Ms. Armstrong relating to the fitness and suitability of the vehicle for its intended purposes, and (5) Nissan had knowingly engaged in such false, deceptive, and unfair conduct. The jury found no contributory negligence on the part of Ms. Armstrong.

In response to the damage issues, the jury found that Ms. Armstrong was entitled to $325,000 for past physical pain and mental anguish, loss of earning capacity, physical impairment, and medical care, $575,000 for future damages, and that Nissan was guilty of gross negligence. The parties stipulated punitive damages to be in the sum of $2,000,000, but the trial court ordered a remittitur reducing that amount by $800,000. The trial court also granted judgment n.o.v. on the issues of fraud, negligent misrepresentation, breaches of warranty and DTPA violations and entered judgment in favor of Ms. Armstrong for the total sum of $2,431,938.90.

On this appeal, Nissan asserts four major complaints: (1) that the actual damages award cannot stand because the evidence is legally and factually insufficient to prove either a design, manufacturing, or marketing defect; (2) that the punitive damages award cannot stand because the evidence does not show that Nissan’s vehicle posed an “extreme risk” or that Nissan had “subjective knowledge” of the risk; (3) that there is no legal or factual basis for the court’s negligence per se instruction, and (4) that the trial court erred in admitting evidence of other “unintended acceleration” incidents to show that Nissan’s vehicles had a history of such problems.

The Accident

Ms. Armstrong acquired her 1986 Nissan 300ZX sports car in 1992, receiving title from her parents as partial compensation for her work in the family business. Ms. Armstrong’s mother had previously driven the car for about five years, and at the time of the accident, the vehicle’s odometer registered 93,000 miles. There was testimony that because the vehicle was Ms. Armstrong’s first “new” car, she took excellent care of it. She treated the car “like a baby” and would let no one else drive it. The car was consistently garaged and all maintenance was done according to the service booklet instructions.

Ms. Armstrong testified that on October 9, 1992, the day before her accident, she had been driving on the freeway going to work. She said her car “started accelerating” and “seemed to just kind of take off faster.” She pulled to the side of the road and turned off the engine. She restarted the car and noticed no further problems at that time.

On the day of her accident, Ms. Armstrong drove her car to work and parked it in the parking lot next to the office building where she worked. She said the engine had sounded normal when she shut it off that morning and also when she started it again that afternoon. After starting the engine, she took her foot off the brake and “barely touched” the accelerator. The car began to “rev up” and accelerate backwards across the parking lot. She stepped on the brake as hard as she could, but the car continued to accelerate out of control. After the car crossed the parking lot in reverse at about 10 miles per hour, it crashed into the side of the brick office budding and stopped. Ms. Armstrong shifted the car into “drive” to pull away from the building so she could determine the extent of the damage. After taking her foot off the brake, she once again “barely touched” the accelerator pedal. This time, the car “shot forward” and again began to accelerate out of control. Although Ms. Armstrong “stood on the brake with all her might,” the car crossed the parking lot at a speed of 15-18 miles per hour and crashed into a telephone pole at the edge of the lot. The impact crushed the car’s hood in some 22 inches, broke the windshield, and disabled the engine. Ms. Armstrong suffered two broken bones in her foot and developed a nerve condition known as reflex sympathetic dystrophy. As a result of her injuries, she had to be hospitalized on a number of occasions for this condition, and was required to undergo more than 30 nerve block injections into her spine.

Post-Accident Investigation

Ms. Armstrong’s car was towed to a repair shop after the accident, where it remained for several months. During the following summer, when a family friend tried to move the repaired vehicle out of the driveway, it just “took off’ and accelerated uncontrollably. After this incident, Ms. Armstrong’s father contacted the manager of an automobile repair shop, “The Z Place,” which specialized in the repair of Nissan ZX automobiles. The shop manager told Mr. Armstrong he was familiar with the cause of the sudden acceleration problem and suggested that Mr. Armstrong look at the throttle cable and cut off the plastic dust boot so it would not get caught in the accelerator system. When Mr. Armstrong examined the throttle cable, he saw the plastic boot was hard and cracked and that it was sliding back and forth on the cable. He pulled or cut pieces of the boot off the cable and threw them away. He also saw that a “milky white colored” piece of plastic underneath the boot was frayed and he trimmed the frayed part and threw it away. He then took the car to The Z Place where it was examined by the shop manager and one of his mechanics. The shop manager told him the cause of the sudden acceleration was the throttle boot breaking away and becoming lodged in the accelerator system. He said he had seen this type of failure many times, both before and after Ms. Armstrong’s accident. The shop manager replaced the cable and boot, tested the vehicle, and said the problem was solved. He showed Mr. Armstrong several other ZX cars with similar boot failures and estimated that 40% of the Nissan ZX cars seen at his repair shop had fractured dust boots.

Similar Experiences of Other ZX Owners

Several owners of Nissan ZX automobiles testified they had experiences similar to those of Ms. Armstrong.

Gary Lysdale, a 58 year old retired airline pilot with experience as an automobile and aircraft mechanic, had owned a 1986 300ZX automobile. When he put his car in reverse, it had gone full throttle backwards out his driveway and into the street. He tried to stop the car, but could not do so. When he later looked over the control cables, he found that a small rubber boot was loose and could physically be moved up to the throttle cam, where it would stick.

Linda Faust, a 55 year old law enforcement officer who had investigated hundreds of accidents as a police officer, said she bought her new 300ZX in 1985. She had maintained the vehicle according to Nissan’s maintenance schedule, but two years later, after she had driven the car 21,000 miles, it started to “rev up”one day and created an “incredible noise.” She was unable to stop the vehicle, even by pushing both feet on the brake pedal and pulling up on the emergency brake. As the result of her accident, she sustained two ruptured discs in her neck, required an ulnar nerve transplant in her arm, and sprained both ankles. She said she had traveled from her home in California at her own expense to testify at Ms. Armstrong’s trial, because she felt “so strongly that these cars are dangerous and they need to be fixed properly.”

Martha Ham testified she was driving her Nissan 300ZX automobile with only 1,500 miles on it, when it suddenly accelerated, forcing her to “bail out” before it ran into a ditch.

Paul Roupinian, a California stockbroker, testified that he had maintained his ZX perfectly according to Nissan’s maintenance schedule. In December 1997, he started his car and backed it out of the garage. When he put his foot on the brakes, it jerked but did riot stop. He was so scared he threw it out of gear and pulled the emergency brake. After it finally stopped, he jumped out; it was “going crazy” with nobody in it: “It was going about 7000 rpms with nobody in the car.” Later the same day, the car seemed “to go crazy again” and it was doing “some weird things” where the engine was revving on its own.

In addition to the testimony of these witnesses, Ms. Armstrong offered reports of hundreds of ZX unintended acceleration and stuck throttle incidents occurring both before and after the date of the sale of her car. One report showed that as early as March 1, 1986, a 1985 Nissan ZX had crashed, burned and killed its driver. According to Nissan’s records, the car’s owner had failed to inform the driver about the problem of the throttle sticking. A month later, on April 28, 1986, one of Nissan’s dealer service directors reported two sudden accelerations on a brand new ZX automobile. According to the report, the engine started fine and idled fine, but when the driver shifted from park to drive, the engine went to “wide open throttle.” After the driver turned off the engine and started it again, it idled fine until the driver shifted into drive. Again the car went into “wide open throttle,” crashing into a parked car. Over the next ten years, Nissan recorded numerous reports of similar incidents, including its own internal technical reports which indicated the dust boot on the throttle cable would deteriorate and separate from its base, allowing it to slide forward and jam itself between the throttle cable and accelerator drum, thus preventing the throttle returning to neutral. Among these reports was a 1996 report from an independent engineering group, tending to confirm the deteriorating dust boot as being the cause of the problem. The report states that the broken plastic boot caused the accelerator to bind and that the harder it was pulled, the tighter the wedging action of the broken part became. According to the report, this was a reoccurring event.

The Expert Testimony

Ms. Armstrong called Mr. Neil Mizen as an expert witness. Mr. Mizen held a master’s degree in mechanical engineering and had experience in vehicle dynamics, design, and performance based on work at Cornell Aeronautical Laboratory. He also had experience in applying computers to control machinery, accident reconstruction, and body dynamics through his work for the insurance industry. He was a member of the American Society of Mechanical Engineers (ASME), a former member of the Society of Automotive Engineers (SAE), and had presented papers at SAE meetings. He said he had worked as a mechanical engineer and spent a significant part of his career in that specialty.

Mr. Mizen testified that he had reviewed pertinent Nissan documents, depositions, photographs, and videotapes, along with reports and tests made in other incidents, and documents submitted by Nissan to the National Highway Traffic Safety Association (NHTSA). Mr. Mizen said that in his opinion Ms. Armstrong’s accident had been caused either by a cruise control defect or a throttle cable failure. Regarding the throttle control problem, Mi*. Mizen explained that if the boot on the throttle cable became loose, it could bind at the bell crank and prevent the accelerator pedal from closing. He said Nissan had redesigned the throttle cable in 1995, shortening the boot and eliminating the underlying white lining, and this new design had solved the problem. He said the safer design cost Nissan only $10.66 per unit and that the new design had been technically feasible at the time Ms. Armstrong’s vehicle was manufactured. Mr. Mizen concluded that the 800ZX was defective in design, manufacture, and marketing, and that the vehicle was unreasonably dangerous and had caused Ms. Armstrong’s damages.

On appeal, Nissan contends that Mr. Mizen was not properly qualified as an expert witness and that his opinions were “based on nothing” and therefore were unreliable. Nissan argues that Mizen was not an automotive engineer, had never designed any car part, and had no background in injury causation. Pointing to Mizen’s admission that he had not performed any tests of the throttle cable components, Nissan complains that Mizen’s testimony does not rise to the level of admissible expert testimony required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557-59 (Tex.1995). In essence, Nissan argues that Mizen’s education and training as a mechanical engineer did not equip him to render an expert opinion about the cause of the sticking throttle on Ms. Armstrong’s automobile. In support of this argument, Nissan relies on Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 721-22 (Tex.1998)(“Not every mechanical engineer is qualified to testify as an expert in every products liability case.”).

We disagree with Nissan’s argument. The trial court determined that Mizen was qualified to testify as an expert, and we cannot overturn the trial court’s ruling absent a clear abuse of discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex.1996). Qualification of an expert witness is strictly within a trial court’s discretion, and the court’s ruling will not be set aside unless the court acted without reference to any guiding rules or principles. See United Blood Services v. Longoria, 938 S.W.2d 29, 30 (Tex.1997).

Tex.R. Evid. Rule 702 permits the testimony of a witness qualified as an expert by knowledge, skill, experience, training or education to testify on scientific, technical or other specialized subjects if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue. The party offering an expert’s testimony has the burden of showing that the witness possesses such “special knowledge as to the very matter on which he proposes to give an opinion.” Broders, 924 S.W.2d at 154.

A witnesses’ qualifications as an expert must be judged by the facts of the particular case. See Gammill, 972 S.W.2d at 722. In some instances, the nature of the design or manufacturing defect may be so complex as to require the expert analysis of a person highly skilled and experienced in that specific automotive component; in other instances, the area of expertise may be relatively simple and straightforward. See id. at 726 (recognizing that in non-scientific cases, it is impossible to set out specific criteria for evaluating the reliability of an expert witness). Indeed, experience alone can provide a sufficient basis for an expert’s testimony in some cases. Id.

Here, the evidence shows that Mizen had a masters degree in mechanical engineering, worked for many years as a mechanical engineer, and had experience in vehicle dynamics, design and performance. The alleged defect about which he rendered an opinion relates to a relatively simple automotive component, the throttle control cable, which did not require an explanation from a “rocket scientist” for the jury to understand. Indeed, almost any qualified mechanical expert could show the jury how the cable worked and how a loose dust boot might stick on the throttle cable and prevent the accelerator mechanism from closing. See Gammill, 972 S.W.2d at 727; see also The Kroger Co. v. Betancourt, 996 S.W.2d 353 (Tex.App.—Houston [14 th Dist.] 1999, rev. denied). As a result, we find the trial court did not err in its evaluation of the methods, conclusions, and principles relied upon by Mizen in reaching his opinion and in concluding that Mizen’s opinion met the fundamental requirements of reliability and relevance of Rule 702. See Gammill at 726. As distinguished from Gammill, the record in this case does not demonstrate an “analytical gap” between Mizen’s expert analysis and the data he relied upon in making that analysis. Thus, the trial court did not abuse its discretion in holding that Mizen was qualified to testify as an expert witness. See Gammill at 727; General Electric Co. v. Joiner, 522 U.S. 136, 118 S.Ct. 512,139 L.Ed.2d 508 (1997).

We further conclude that Nissan has failed to demonstrate, even assuming erroneous admission of Mizen’s testimony, that such error probably resulted in an improper judgment. To obtain reversal of a judgment based on error in the admission of testimony, a party must show that the trial court’s ruling probably caused the rendition of an improper judgment. Tex. R.App. P. 44.1; Southland Lloyd’s Insurance Co. v. Tomberlain, 919 S.W.2d 822, 827 (Tex.App.-Texarkana 1996, writ denied); see also Church & Dwight Co., Inc. v. Huey, 961 S.W.2d 560, 570 (Tex.App.—San Antonio 1997, rev. denied). Here, the jury could have decided, based on the entire record and aside from Mizen’s testimony, that the throttle cable system on Nissan’s ZX series was defective and that such defect was the cause of Ms. Armstrong’s injury. See The Kroger Co. v. Betancourt, 996 S.W.2d at 363. We conclude from the entire record that no reversible error has been shown.

Time of Defect

Nissan contends, in effect, that the throttle cable’s deterioration after six years and 93,000 miles of driving does not constitute any evidence of a design defect existing at the time the vehicle was purchased. Citing authorities from other jurisdictions, Nissan argues that a manufacturer has no duty to design products with component parts that will never wear out, citing Kuiper v. Goodyear Tire & Rubber Co., 207 Mont. 37, 673 P.2d 1208, 1222 (1983).

We overrule Nissan’s contention. Under Texas law, the age and condition of the throttle components were simply relevant factors to be considered by the trier of facts. See Sharp v. Chrysler Corp., 432 S.W.2d 131, 136 (Tex.Civ.App.Houston [14 ⅛ Dist.] 1968, writ ref'd n.r.e.); USX Corp. v. Salinas, 818 S.W.2d 473 (Tex.App.—San Antonio 1991, writ denied). If a manufacturer places into the channels of trade a product so fragile that its anticipated use is likely to create a dangerous condition, it has distributed a defective product. Sharp, 432 S.W.2d at 136. Here, the jury was asked whether the 1986 300ZX vehicle had a design defect at the time it left Nissan’s possession. The charge defined the term “design defect” as a condition that rendered the product unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use. The jury could reasonable have inferred from the evidence, including the testimony of Nissan’s own manager of engineering analysis and Nissan’s own internal reports, that the design defect existed at the time of the Armstrong sale.

Causal Connection

Nissan next argues that Ms. Armstrong failed to meet her burden of establishing a causal connection between the allegedly defective condition and her injuries or damages. In making this argument, Nissan contends that Mizen’s expert testimony showed only that the loose throttle boot “could have” caused the throttle to remain open, not that it probably did so. Thus, Nissan argues, the defective condition itself is not evidence that the condition caused the accident, citing Houghton v. Port Terminal R.R. Association, 999 S.W.2d 39, 50-51 (Tex.App.—Houston [14th Dist.] 1999, no pet.).

Nissan’s proposition ignores the evidence presented. The evidence showed that Ms. Armstrong’s accident occurred as the result of one of two possible causes: (1) her inadvertent use of the gas pedal instead of the brake pedal, or (2) a malfunction in the car’s accelerator system caused by a defective cruise control or a defective throttle control component. Under the second possibility, Nissan would be hable as the designer and manufacturer of the vehicle.

It has long been the law in this state that if an injury results from one of two causes, or from causes combined, and if such cause would not have existed except for the defendant’s negligence, the defendant will be hable unless there has been some failure on the part of the plaintiff to exercise due care. City of Galveston v. Posnainsky, 62 Tex. 118 (1884); Sharp v. Chrysler Corp., 432 S.W.2d at 185 (plaintiff is not required to exclude “an appreciable chance” that the event might have occurred in some other way—a causal connection may be inferred from a “balance of probabilities.”). Here, the jury found no negligence on the part of Ms. Armstrong, and this finding left only Nissan as the potential cause of the accident. See Bell Aerospace Corp. v. Anderson, 478 S.W.2d 191 (Tex.Civ.App.—El Paso 1972, writ ref'd n.r.e.).

Nissan also criticizes the legal sufficiency of the evidence to support Mizen’s expert testimony about the probable cause of the unintended acceleration. Nissan argues, among other things, that Mizen’s “stuck-throttle” theory required proof that Ms. Armstrong did something more than just “barely” press her foot on the accelerator and that his theory assumed a racing engine, while Ms. Armstrong said her engine had idled normally before the accident. In effect, Nissan argues that Mizen’s expert testimony was based on assumed facts that are materially at variance with the evidence presented at trial. We overrule these arguments, concluding that they simply bear on the weight to be accorded Mizen’s testimony.

Finally, Nissan argues that the hearsay reports of other incidents of unintended acceleration, even if admissible, prove nothing. None of these 750 reports, says Nissan, shows that the unintended acceleration was due to a faulty boot or liner, and that only a handful suggest any such cause at all. Further, all reports relate to incidents that occurred after Ms. Armstrong’s accident.

We disagree with Nissan’s analysis of this circumstantial proof. As discussed below, we consider the evidence to be admissible and entitled to such weight as the jury might accord it. Although most of the incident reports did not attribute a technical cause for the unintended acceleration, the sheer number and nature of reported incidents raise an inference that the unintended acceleration or stuck throttle was caused by something other than driver error. In making a “balance of probabilities” determination, the jury was entitled to consider the reported incidents as some proof, albeit circumstantial, that Ms. Armstrong’s vehicle accelerated rapidly without her foot depressing the accelerator pedal.

We conclude there is both legally and factually sufficient evidence to support the jury’s findings on liability and that Nissan has failed to demonstrate that the jury’s findings are so against the great weight and preponderance of the evidence as to require a reversal and remand of this case.

Punitive Damages

At trial, a Nissan official admitted that Nissan had incident reports in its internal files showing that the throttle boots on its 300ZX cars could fail, become dislodged, and cause unintended acceleration or stuck throttles in those vehicles. Nissan also admitted that, despite this knowledge, it had issued no warnings or instructions for the mandatory replacement of the throttle cable components, nor did it advise its authorized service facilities to examine throttle cables for specific signs of failure. In short, Nissan did nothing to inform its dealers and service facilities about the potential causes of sudden acceleration or stuck throttles.

In 1987, the National Highway Traffic Safety Administration (NHTSA) started an informal investigation of the large number of complaints it had received of unintended acceleration of ZX automobiles. In response, Nissan voluntarily recalled the 1979-1987 models to install a “shift interlock system,” which required drivers to place their foot on the brake before shifting out of park into reverse or drive. This, however, did not alleviate all reports of throttle cable problems on ZX automobiles, and Nissan continued to receive complaints about sudden acceleration and stuck throttle incidents, accidents, and injuries relating to those vehicles.

In sum, the evidence showed that Nissan had within its possession and knowledge numerous documented reports of incidents of unintended acceleration and stuck throttles caused by throttle cable boot failure and that Nissan never advised NHTSA or its own customers about these potential safety issues. Indeed, the evidence is undisputed that despite receiving continuing reports of unintended acceleration or stuck throttles due to throttle failure, which resulted in 79 accidents, 38 injuries, and 3 fatalities, Nissan took no action to warn its customers or its dealers about safety concerns relating to these vehicles. Based on this evidence, the jury could reasonably have concluded that Nissan, despite knowledge of a defect, had failed to take any action or sufficient action to correct the problem or to warn its customers or the public about the danger. See Transportation Insurance Co. v. Moriel 879 S.W.2d 10 (Tex.1994).

We find there is legally and factually sufficient evidence to support the jury’s finding that Nissan was guilty of gross negligence, having evidenced such “an entire want of care as to establish that the act or omission in question was the result of actual conscious indifference to the rights, welfare, or safety of the persons affected by it.” Contrary to Nissan’s argument, evidence of other incidents, both pre-sale and post-sale, were relevant and admissible to establish a pattern of conduct on the part of Nissan in dealing with the defective throttle cable problems, and to establish Nissan’s knowledge and conscious indifference to the problem “after all the facts were known.” See, e.g., Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909, 912 (Tex.App.—Houston [1st Dist.] 1988, writ denied).

We also disagree with Nissan’s position that NHTSA’s finding of “no safety related defect” in its report precluded a jury finding of gross negligence. It is undisputed that Nissan did not advise NHTSA of the dust boot and throttle cable problem, and the jury was not bound by NHTSA’s determination based solely on the information given to it by Nissan.

Negligence Per Se Instruction

In connection with the negligence issue, the trial court instructed the jury that Nissan had the duty to warn the federal government and Nissan’s customers when it learns its vehicle contains a defect and decides in good faith that the defect is related to motor safety. See 49 U.S.C. § 30118(c)(1). Nissan, contending that it had no common law post-sale duty to warn, argues that (1) the instruction violates Texas law because the federal statute forming the basis for such instruction does not impose a duty that is sufficiently clear and absolute, and (2) there is no evidence Nissan learned of the defect before the date of Ms. Armstrong’s sale and no post-sale duty to warn exists at common law, citing Perry v. S.N., 973 S.W.2d 301, 305-309 (Tex.1998).

It is not imperative that we decide this issue because of our holding that the evidence supports the jury’s findings on the products liability issues. We note, however, that the Fifth Circuit Court of Appeals, in construing the predecessor statute to 49 U.S.C. § 30118, held that the statute was sufficiently clear to warrant the giving of a negligence per se instruction. Lowe v. General Motors Corp., 624 F.2d 1373 (5th Cir.1980) (applying Alabama law).

Evidence of Other Incidents

Nissan contends the trial court erred in allowing Ms. Armstrong to “create an appearance of defect with a mountain of unproved unintended acceleration incidents” and that the prejudice resulting from this evidence was overwhelming. In essence, Nissan argues: “An incident of unintended acceleration without evidence of its cause is not evidence of a defect, particularly where the recognized most-eommon cause is pedal error.”

We agree with Nissan’s argument that the admission of such a high volume of other unintended acceleration incidents was prejudicial to its claims asserted at trial. However, we disagree with Nissan’s arguments that the trial court abused its discretion in deciding to admit the evidence.

First, in products liability cases, evidence of other accidents involving the same product is admissible if such accidents occurred under reasonably similar, but not necessarily identical, circumstances to those surrounding the litigated event. See Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 341 (Tex.1998). In applying this rule, courts have noted that the “requisite degree of similarity is plainly not very high.” See McInnes v. Yamaha Motor Corp., U.S.A., 659 S.W.2d 704, 709 (Tex.App.—Corpus Christi 1983), aff'd, 673 S.W.2d 185 (Tex.1984), cert. denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985). For instance, in Magic Chef, Inc. v. Sibley, 546 S.W.2d 851, 855 (Tex.Civ.App.—San Antonio 1977, ref'd n.r.e.), the only significant shared characteristics justifying admissibility were the brand of gas range and the inadvertence of ignition.

Nor is it a controlling issue for admissibility that the other accident reports were based on allegations or claims, without proof as to causation. See McEwen v. Wal-Mart Stores, Inc., 975 S.W.2d 25 (Tex.App.—San Antonio 1998, review denied). The fact that causation in the other complaints has not been proven with absolute certainty goes to their weight, not their admissibility.

Second, the evidence was admissible to counter Nissan’s claim that the cause of Ms. Armstrong’s accident was her own driver error. The jury could reasonably have concluded from this “mountain” of related incidents that it was more probable than not the unintended acceleration had been caused by some mechanical malfunction, not by some error on the part of the driver. Third, the record reflects that Nissan itself offered evidence of other incidents of unintended acceleration due to throttle failure in ZX cars. The trial court could have decided that Nissan failed to preserve its objections to this type of evidence and that the evidence was simply cumulative of other evidence received without objection. Moreover, we note that Nissan’s objections on appeal to some of the “other incident” evidence do not comport with the objections asserted by Nissan at trial.

Fourth, we conclude that the evidence of similar incidents was admissible to show Nissan’s knowledge of the dangerous condition in its vehicles. See General Motors Corp. v. Sanchez, 997 S.W.2d 584, 596 (Tex.1999). Although Nissan tried unsuccessfully to limit the purpose of this evidence, we conclude that the trial court did not abuse its discretion in allowing the evidence without limiting instructions. Accordingly, we overrule Nissan’s complaints regarding the admissibility of such evidence.

Trial Court Remittitur

Ms. Armstrong complains that the trial court erred in ordering a remittitur in the amount of $800,000 out of the stipulated damage award of $2,000,000. She argues that by making this stipulation, Nissan waived its right to have the jury find the amount of exemplary damages and agreed that the correct amount of such damages would not be the subject of appeal. She further argues, in effect, that the court approved this stipulation and was bound by it as having support in the evidence. See Larson v. Cactus Utility Co., 730 S.W.2d 640, 641 (Tex.1987)(trial court may order a remittitur only on insufficiency of evidence, not on an abuse of discretion standard).

A trial court has the constitutional duty to independently scrutinize punitive damage awards for excessiveness. BMW of North America v. Gore, 517 U.S. 559, 574, 116 .S.Ct. 1589, 184 L.Ed.2d 809 (1996); Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1082, 113 L.Ed.2d 1 (1991); see also Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981). Accordingly, the trial court is not bound to accept a stipulation of evidence as conclusive in determining whether a remittitur is appropriate under all the circumstances of a given case. We accordingly overrule Ms. Armstrong’s complaint.

Fraud, Misrepresentation and DTPA Claims

Ms. Armstrong also contends the trial court erred in granting Nissan’s motion for judgment notwithstanding the verdict on the jury’s findings of fraud, misrepresentation, and violations of the Deceptive Trade Practices Act. She argues that Nissan committed fraud by concealing and fading to disclose material facts regarding the ZX automobile and its propensity for sudden and unintended acceleration; that Nissan misrepresented its product in public advertisements, which she relied on to her detriment, and that Nissan knowingly violated the DTPA and engaged in unconscionable acts for which she was entitled to retribution as a consumer.

We need not decide these issues because of our holding affirming the judgment on the products liability issues. The award of actual and exemplary damages provides full and adequate compensation to Ms. Armstrong for the injuries and damages suffered in the accident.

The judgment is affirmed.


author: Opinion by CATHERINE STONE, Justice.

text:
    Robert EDWARDS and Diana Edwards, Appellants, v. Al SILVA and Labatt Institutional Supply Co. d/b/a Labatt Food Service, Appellees.
    No. 04-99-00471-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 29, 2000.

      Stephen F. White, White & Davis, P.C., San Antonio, for Appellant.
    Annalyn G. Smith, Bracewell & Patterson, L.L.P., Nissa M. Sanders, Wallace B. Jefferson, Crofts, Callaway & Jefferson, P.C., San Antonio, for Appellee.
    Sitting: CATHERINE STONE, Justice, PAUL W. GREEN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by CATHERINE STONE, Justice.

This case arises from a one-car accident that Robert Edwards, a former employee of Labatt Institutional Supply Co. d/b/a Labatt Food Service (“Labatt”), was involved in on his way home from work after an evening of drinking with his then supervisor, the general manager of Labatt, A1 Silva. Edwards and his wife, Diana Edwards (the “Edwards”), sued Silva and Labatt, alleging that they were negligent in: (1) furnishing Edwards alcoholic beverages; (2) placing him in danger and failing to take reasonable precautions to insure his safety; (3) failing to make alternative arrangements for him to get home; (4) failing to implement reasonable practices and procedures involving the use of alcoholic beverages; and (5) failing to properly supervise Edwards. Silva and Labatt moved for summary judgment on the basis that: (1) neither party owed a duty to protect Edwards from harming himself; (2) Edwards’ intoxication is a complete defense to his claims; and (3) Silva cannot be held individually liable because he owed Edwards no duty independent of Labatt’s duty. The trial court granted a general summary judgment in favor of Silva and Labatt. We will affirm the trial court’s judgment.

Facts

On the evening of April 16, 1997, Silva asked Edwards to join him for after-work drinks. Edwards accepted Silva’s invitation, explaining that “when A1 says to meet, you go.” Edwards had previously declined similar invitations extended by Silva. The men drove in Silva’s car to a nearby Holiday Inn where, over the course of four hours, they ate nachos and consumed approximately eight beers each, which were purchased on a company credit card. Although Edwards felt compelled to join Silva, Edwards concedes that he felt no obligation to drink alcohol and that he chose to consume the amount of alcohol he did. According to Silva, while they ate and drank, the men talked about “past work experiences, college, and [their] families.” Labatt’s work was not discussed.

Silva later returned Edwards to his vehicle on Labatt’s premises. Edwards appeared sober to Silva, who then left the premises. After Silva’s departure, Edwards began roughhousing with several coworkers who attempted to prevent him from driving home in his apparent intoxicated state. Edwards ultimately secured his car keys and drove off. On his way home, Edwards was seriously injured in a one-car accident.

STANDARD OP REVIEW

Summary judgment is proper for a defendant only if the defendant establishes that no genuine issue of material fact exists as to one or more essential elements of the plaintiffs claim and that it is entitled to judgment as a matter of law. Tex. R.CrvP. 166a(e); Nixon v. Mr. Property Management Co. Inc., 690 S.W.2d 546, 548 (Tex.1985). When, as in the instant case, the summary judgment does not specify the ground relied upon for its ruling, the summary judgment must be affirmed if one of the theories advanced is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993)

Duty

It is well settled that the threshold inquiry in a negligence claim is whether a duty is owed to the plaintiff by the defendant. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987); Abalos v. Oil Dev. Co., 544 S.W.2d 627, 631 (Tex.1976). The Edwards’ theory of liability rests upon the argument that Silva and Labatt owed a duty to Edwards to keep him from harming himself because Edwards became intoxicated under Silva’s control.

As a general rule, a person is under no duty to control the conduct of another. Otis Eng’g v. Clark, 668 S.W.2d 307, 309 (Tex.1983). Exceptions to this general rule are limited to situations where a special relationship exists between the actor and the third party. Kehler v. Eudaly, 933 S.W.2d 321, 329 (Tex.App.—Fort Worth 1996, writ denied). One such special relationship is the employer-employee relationship. Otis Eng’g, 668 S.W.2d at 309; Kehler, 933 S.W.2d at 329. In the context of that relationship, the Supreme Court has determined that an employer has a duty to prevent the employee from causing an unreasonable risk of harm to others, where, because of an employee’s incapacity, an employer exercises control over the employee. Otis Eng’g, 668 S.W.2d at 311; Kehler, 933 S.W.2d at 330.

In Otis, an employee with a known alcohol problem was ordered to leave work after his supervisor learned he was in an extreme state of intoxication. Otis Eng’g, 668 S.W.2d at 308. On his way home, the employee struck another vehicle, fatally injuring its passengers. Id. In recognizing a duty owed by the employer to unknown third parties, the Supreme Court reasoned that once the employer undertook the affirmative act of sending the employee home with knowledge of his intoxication, the employer assumed a duty to proceed with reasonable care to prevent the employee from causing an unreasonable risk of harm to others.' Id. at 311. This duty attaches in the context of the employer-employee relationship only when the employer performs some affirmative act of control over an incapacitated employee. Otis Eng’g, 668 S.W.2d at 311; see e.g., DeLuna v. Guynes Printing Co. of Texas, 884 S.W.2d 206, 210 (Tex.App.—El Paso 1994, writ denied) (upholding summary judgment in favor of employer where employer took no affirmative steps to control behavior of employee who was drinking alcohol in parking lot on or adjacent to employer’s premises); J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 639 (Tex.App.—San Antonio 1993, no writ) (finding that employer not responsible to third parties for accident caused by exhausted employee where plaintiffs failed to produce evidence of employer’s affirmative action to control employee or place employee on public highway in exhausted state); Pinkham v. Apple Computer, Inc., 699 S.W.2d 387, 390 (Tex.App.—Fort Worth 1985, writ ref'd n.r.e.) (affirming summary judgment in favor of employer because record contained no summary judgment evidence that employer exercised control over employee who became intoxicated at company party).

Acknowledging that the rule in Otis does not expressly apply to the intoxicated employee, the Edwards nevertheless argue that such a duty should be recognized because injuries to the intoxicated employee are just as foreseeable as injuries to third parties. In response, Silva and La-batt contend that this court should not extend Otis beyond the narrow scope intended by the Supreme Court, and that, in any event, such an argument ignores the employee’s own role in placing himself in danger from actions he himself could have prevented. Silva and Labatt remind this court that an extension of Otis would be at odds with the long-standing rule that individuals are responsible for their own actions:

As the common law has long recognized, the imbiber maintains the ultimate power and thus the obligation to control his own behavior: to decide to drink or not to drink, to drive or not to drive. We therefore conclude that the common law’s focus should remain on the drinker as the person primarily responsible for his own behavior and best able to avoid the foreseeable risks of that behavior.

Graff v. Beard, 858 S.W.2d 918, 921-22 (Tex.1993) (rejecting theory of social host liability).

At least three appellate courts have addressed the issue which is now before this court. The Fort Worth Court of Appeals expressly rejected an argument similar to the one advanced by the Edwards in the instant case, noting that Otis only created a duty owed by an employer to innocent third parties who are injured by the acts of an intoxicated employee. See Verdeur v. King Hospitality Corp., 872 S.W.2d 300, 302 (Tex.App.—Fort Worth 1994, writ denied) (emphasis in original). The Texarkana Court of Appeals implicitly determined, in an admittedly factually distinguishable case, that an employer could be liable to the intoxicated employee under Otis in same manner as it is liable to innocent third parties. See Spruiell v. Schlumberger, 809 S.W.2d 935, 940 (Tex.App.—Texarkana 1991, no writ) (implicitly extending rule in Otis to include risk of harm to intoxicated employee where employer, after providing alcohol at company-sponsored chili cook-off, forced intoxicated employee to leave premises). The Amarillo Court of Appeals ree-ognized the Spruiell court’s extension of Otis to the intoxicated employee, but nevertheless determined that such an extension did not benefit the employee in that case because the employee failed to establish the element of control. See Whitney Corp. v. George Distributors, 950 S.W.2d 82, 89 (Tex.App.—Amarillo 1997, writ denied). Assuming, without deciding, that Otis extends to the incapacitated employee who injuries himself, the Edwards would still be denied recovery in the instant case because there is no evidence of the requisite affirmative act of control. That is, viewing the evidence in the fight most favorable to the Edwards, there is no evidence that because of Edwards’ intoxication Silva exercised control over Edwards.

The Edwards contend that the issue of control is established by the following facts: Silva invited Edwards to discuss business — a meeting he felt compelled to attend. Silva purchased approximately eight beers for Edwards on the company credit card allegedly “to insure that Edwards became quite intoxicated,” and then continued to exercise control over Edwards by depositing him at his vehicle on company property in violation of company policy. According to the Edwards, “one can draw a straight, unbroken fine from Silva’s initial request that Edwards join him for drinks to the accident.” They conclude, therefore, that Silva and Labatt are responsible for Edwards’ accident. We disagree.

The record demonstrates that, despite Edwards’ proclaimed feeling of obligation to join Silva at the bar, Edwards acted on a social invitation to meet with his boss. The undisputed summary judgment evidence suggests that the men socialized for several hours over many rounds of drinks. Silva’s uncontroverted testimony was that the men discussed various topics including family, school experiences, and past work experiences. There is no evidence that Labatt business was discussed. In short, there is no evidence that the meeting was for business purposes.

Next, there is no evidence that Silva coerced or forced Edwards to drink. In fact, the record plainly shows that Edwards drank voluntarily and felt no obligation to drink alcohol. He acknowledged that he could have “nursed one beer the entire evening, but he chose otherwise.” Moreover, the Edwards’ reliance on the fact that Silva paid for the drinks on the company credit card is no more availing to their argument of control because the type of “control” contemplated by Otis involves an individual acting affirmatively in response to another’s incapacity. Cf. Otis Eng’g, 668 S.W.2d at 311 (ordering drunk employee to leave company premises); Spruiell, 809 S.W.2d at 940 (escorting intoxicated employee to vehicle and forcing him to leave company party). Here, the act of payment was not a course of action taken in response to Edwards’ intoxication.

The Edwards further assert that Silva’s act of depositing Edwards at his truck in the company parking lot was a form of control sufficient to impose a duty. The Edwards assert that at the moment Silva deposited Edwards at his truck, Silva breached his duty to Edwards because Silva could have taken Edwards home, called a cab, or ordered Edwards to stay at work until his wife retrieved him. We disagree. The Otis court made clear that the duty imposed on the employer was not due to the employer’s inactivity, but rather it was due to the employer’s affirmative course of action. Otis Eng’g, 668 S.W.2d at 309-10. Here, the record contains no evidence that Silva did anything other than return Edwards to his vehicle.

Finally, the Edwards contend that a question of fact regarding Silva’s knowledge of the extent of Edwards’ intoxication precludes summary judgment. We again disagree. Under Otis, even if Silva knew Edwards was drunk, which he denies, a duty would not attach under these circumstances because there was no affirmative action taken by Silva in response to Edwards’ intoxication. See id. at 309 (stating that duty not imposed because of employer’s knowledge of intoxication but rather because employer acted affirmatively); see also Greater Houston Transp. Co., 801 S.W.2d at 525 (Otis duty premised on issue of control rather than duty to prevent intoxicated individuals from driving).

In the absence of an affirmative act of control on the part of Silva in response to Edwards’ intoxication, Labatt, and therefore Silva, had no duty to Edwards to keep him from harming himself. Accordingly, the judgment of the trial court is affirmed.

      . In their original petition and on appeal, the Edwards characterize Silva and Edwards’ meeting as a business meeting. Such a characterization is not supported by any competent summary judgment evidence. With respect to this issue, the record contains only evidence from Silva’s deposition and affidavit wherein he describes the meeting as a social get-together during which work topics were not discussed.

      . The Supreme Court has declined to apply Otis to a relationship other than that of employer-employee. See Van Horn v. Chambers, 970 S.W.2d 542, 546 (Tex.), cert. denied, 525 U.S. 1019, 119 S.Ct. 546, 142 L.Ed.2d 454 (1998).

      . At the summary judgment stage, the Edwards proceeded under the theory that Silva was acting in his capacity as a corporate officer at all times. For the first time on appeal they assert that a fact issue regarding the capacity in which Silva was acting exists, thereby precluding summary judgment. Because the Edwards failed to raise this issue in the trial court, it has not been preserved for appellate review. See Morriss v. Enron Oil & Gas Co., 948 S.W.2d 858, 867 (Tex.App.—San Antonio 1997, no writ) (non-movant’s failure to raise issue of fact that would defeat summary judgment constitutes waiver of complaint on appeal).
      In his capacity as a corporate officer, Silva had no duty separate and apart from Labatl’s duty. See Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex.1996).