author: CATHERINE STONE, Chief Justice.

text:
    UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, Appellant, v. Patricia WEBBER-EELLS and William Eells, Appellees.
    No. 04-09-00812-CV.
    Court of Appeals of Texas, San Antonio.
    June 30, 2010.

      Elsa Giron Nava, Assistant Attorney General, Tort Litigation Division, Austin, TX, for Appellant.

      Kimberly S. Keller, The Keller Law Firm, Thomas A. Crosley, Crosley Law Firm, San Antonio, TX, for Appellees.
    Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice, concurring in the judgment only.
   OPINION

Opinion by:

CATHERINE STONE, Chief Justice.

Section 101.106 of the Texas Civil Practice and Remedies Code is entitled “Election of Remedies” and is applicable when an employee of a governmental unit is sued. Tex. Civ. PRAC. & Rem.Code Ann. § 101.106 (Vernon 2005). Since 2003, this statute has required a plaintiff to “decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable.” Mission Consol. Ind. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex.2008). The statute requires a plaintiff, at the time suit is filed, to make an “irrevocable election” between suing the governmental unit or the employee. Id. This irrevocable election is complicated by the fact that the plaintiff must determine both: (1) whether the employee was acting -within the scope of his or her employment; and (2) whether the lawsuit “could have been brought” against the governmental unit, which, in the medical negligence context, typically involves a determination of whether the plaintiffs injuries were caused by the use of tangible personal property. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.106(f), 101.021 (Vernon 2005). Given the plethora of opinions addressing whether a claim involves the use of tangible personal property, and given that a ease involving that issue has been pending before the Texas Supreme Court for approximately three years, it is clear that determining whether an injury resulted from the use of tangible personal property, even with existing legal precedent, is not simple or straightforward. See Franka v. Velasquez, 216 S.W.3d 409 (Tex.App.San Antonio 2006, pet. granted).

Patricia Webber-Eells and William Eells (the “Eells”) initially sued Kenneth R. Sirinek, M.D. in federal court for damages resulting from negligent medical treatment. After Sirinek filed a motion to dismiss pursuant to section 101.106(f) of the Code, the Eells filed an amended complaint conditionally substituting the University of Texas Health Science Center at San Antonio (UTHSCSA) for Sirinek. After the federal court dismissed both Siri-nek and UTHSCSA from the federal lawsuit, the Eells filed a lawsuit against UTHSCSA in state court. The trial court denied UTHSCSA’s motion to dismiss, and UTHSCSA now appeals. UTHSCSA contends the dismissal was mandatory because the Eells failed to comply with section 101.106(f) by timely filing amended pleadings in federal court that both dismissed Sirinek and named UTHSCSA as the defendant.

Background

In 2007, Patricia was admitted to a veteran’s administration hospital for surgery to remove her gall bladder. During the surgical procedure, which was performed by Sirinek, Patricia allegedly suffered an intraoperative injury resulting in a five centimeter hole in her colon which led to multiple complications.

In March 2009, the Eells filed an original complaint in federal court against Siri-nek and the United States of America alleging negligent medical treatment. On July 10, 2009, Sirinek filed a motion to dismiss pursuant to section 101.106(f) of the Code, asserting that his conduct was within the general scope of his employment by UTHSCSA and the suit could have been brought against UTHSCSA. The Eells filed a response to Sirinek’s motion, asserting that the suit could not have been brought against UTHSCSA. The Eells contended that Sirinek’s alleged negligent acts and the resulting injuries were not caused by the use of tangible personal property as required for UTHSC-SA’s immunity to be waived. Because section 101.106(f) would require the Eells to amend their pleadings by August 10, 2009, in the event the federal court ruled the suit could be brought against UTHSCSA, the Eells requested an expedited ruling from the federal court on Sirinek’s motion to dismiss.

Since the federal court did not expedite its ruling, the Eells filed an amended complaint on August 7, 2009, naming UTHSC-SA as a conditional defendant, as follows:

To the extent the Texas Tort Claims Act applies to the claims asserted against Defendant KENNETH R. SIRI-NEK, M.D., and the UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO is determined to be the appropriate Defendant for the claims asserted against Defendant KENNETH R. SIRINEK, M.D., Plaintiffs assert the following claims of negligence against Defendant UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO as set forth herein.

On September 16, 2009, UTHSCSA filed a motion to dismiss in federal court asserting: (1) the Eells’ claims were barred by the Eleventh Amendment which requires a suit against a state agency to be brought in state court; and (2) the Eells alleged a medical malpractice claim under the Texas Tort Claims Act that was required to be brought in state court.

On September 29, 2009, the federal court signed an order granting Sirinek’s motion. The federal court concluded that tangible personal property in the form of surgical instruments caused Patricia’s injuries, stating, “After all, the failures to diagnose and treat the bowel leak would not have been issues if the bowel had not first been perforated.” On October 19, 2009, the federal court signed an order, granting UTHSCSA’s motion to dismiss, concluding the Eells’ claims were barred by the Eleventh Amendment. The Eells did not appeal the federal court’s orders.

On October 19, 2009, the Eells filed the underlying lawsuit in state court. UTHSCSA filed a motion to dismiss, asserting the Eells failed to timely amend their pleadings in federal court to dismiss Sirinek as required by section 101.106(f). The Eells responded that the motion to dismiss should be denied because the Eells substantially complied with section 101.106(f) by amending their complaint to conditionally substitute UTHSCSA. The Eells also asserted that the purposes of section 101.106 would not be served by dismissing their claims. After a hearing, the trial court denied UTHSCSA’s motion, and UTHSCSA filed this appeal.

Standard of Review

The issue presented in this appeal requires this court to interpret the meaning of section 101.106(f). “The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the Legislature’s intent.” Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 438, 437 (Tex.2009). “Where text is clear, text is determinative of that intent.” Id. “This general rule applies unless enforcing the plain language of the statute as written would produce absurd results.” Id. “Therefore, our practice when construing a statute is to recognize that ‘the words [the Legislature] chooses should be the surest guide to legislative intent.’ ” Id. (quoting Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999)). Statutory waivers of immunity are narrowly interpreted because the Legislature’s intent to waive immunity must be clear and unambiguous. Mission Consol. Ind. Sch. Dist., 253 S.W.3d at 655.

Calderon and Briggs

Section 101.106(f) provides:

(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Tex. Civ. Prac. & Rem.Code Ann. § 101.106 (Vernon 2005). UTHSCSA primarily relies on two opinions to assert the trial court erred in denying its motion to dismiss. See Tex. Dept. of Agriculture v. Calderon, 221 S.W.3d 918 (Tex.App.-Corpus Christi 2007, no pet.); Huntsville Ind. Sch. Dist. v. Briggs, 262 S.W.3d 390 (Tex.App.-Waco 2008, pet. filed).

A. Calderon

In Calderon, the plaintiffs filed a lawsuit against an employee of the Texas Department of Agriculture (TDA), alleging that the employee negligently caused an automobile accident that injured the plaintiffs. 221 S.W.3d at 920. After the employee filed a motion to dismiss pursuant to section 101.106(f), the plaintiffs amended their pleadings to name both the employee and the TDA as defendants. Id. The trial court subsequently granted a second motion to dismiss filed by the employee, but denied a plea to the jurisdiction filed by the TDA. Id.

On appeal to the Corpus Christi court, the TDA contended the trial court erred in denying its plea because: (1) the TDA became immune under section 101.106(b) when the plaintiffs irrevocably elected to sue the employee instead of suing the TDA; and (2) the TDA retained its immunity under section 101.106(f) when the plaintiffs failed to dismiss the employee and substitute the TDA in response to the employee’s motion to dismiss. Id. The Corpus Christi court noted that the question presented was two-fold: (1) whether section 101.106(b) conferred immunity from suit on the TDA; and (2) what effect section 101.106(f) had in relation to section 101.106(b) under the facts of the case. Id. at 921.

The Corpus Christi court first held that the TDA became immune from suit under section 101.106(b) when the plaintiffs initially filed suit against the employee. Id. Although section 101.106(b) does not utilize the word “immunity,” the court concluded that it is an immunity statute. Id. The court reasoned that the Legislature’s use of the phrase “bars any suit” in section 101.106(b) operated as an unequivocal grant of immunity from suit to a governmental unit upon the plaintiffs filing of suit against the employee. Id. at 922.

The Corpus Christi court next considered what effect section 101.106(f) had with respect to the TDA’s immunity derived from section 101.106(b). Id. The court asserted that section 101.106(f) confers immunity on a sued employee based on the employee’s motion to dismiss if: (1) the employee’s alleged conduct occurred in the scope of her employment; and (2) suit could have been brought against the governmental unit. Id. In addition, the court noted that section 101.106(f) has a second potential effect — that of removing a governmental unit’s immunity derived from section 101.106(b) — by requiring the plaintiff to substitute the governmental unit as the defendant in place of the employee in order to maintain the lawsuit. Id. at 923. “In order for the governmental unit’s immunity under section 101.106(b) to be removed by section 101.106(f), however, the plaintiff must comply with the procedural requirements of section 101.106(f).” Id. “Thus, the plaintiff must file an amended pleading that both dismisses the employee and substitutes the governmental unit as the defendant within thirty days of the employee’s motion to dismiss.” Id. “If however, the plaintiff fails to timely file such an amended pleading, section 101.106(f) requires that the suit against the employee be dismissed by the trial court.” Id. “In that event, the governmental unit retains its immunity from suit derived from section 101.106(b), and the plaintiff loses the opportunity to name the governmental unit in place of the employee as the defendant in the lawsuit.” Id.

Under the facts presented, the Corpus Christi court reasoned that the plaintiffs had thirty days to file an amended petition from the date the employee filed her first motion to dismiss. Id. Because the plaintiffs failed to dismiss the employee but instead simply added the TDA as an additional defendant, the court held that the plaintiffs failed to comply with the procedural requirements of section 101.106(f). Id. As a result, the court held the trial court properly dismissed the employee, but improperly denied the TDA’s plea to the jurisdiction because the TDA retained its immunity under section 101.106(b). Id. at 923-24.

B. Briggs

In Briggs, the plaintiff sued an employee of Huntsville Independent School District (HISD) after his car was hit from behind by a school bus driven by the employee. 262 S.W.3d at 391. The employee filed a motion to dismiss pursuant to section 101.106(f). Id. Although the plaintiff amended his petition to add HISD as a defendant within thirty days after the employee filed the motion to dismiss, the plaintiff did not amend his petition to remove the employee as a defendant until after the thirty-day deadline. Id. HISD filed a plea to the jurisdiction, asserting immunity under section 101.106(b), which the trial court denied. Id.

The Waco court asserted, “What we need to decide in this appeal is what effect the untimely election under subsection (f) to dismiss the employee and substitute the governmental unit as a party to the suit has on the governmental unit’s immunity established by subsection (b).” Briggs, 262 S.W.3d at 393. The Waco court then discussed the decision in Calderon, agreeing with its analysis until the Calderon court determined that subsection (f) required the suit against the employee to be dismissed if the plaintiff failed to timely file an amended pleading. Id. at 394. Instead, the Waco court asserted that the employee could be dismissed only if the employee proved the two prerequisites for dismissal, i.e., conduct within the scope of employment and suit could have been brought against the governmental unit under the Texas Tort Claims Act. Id.; see also Wilkins v. McManemy, No. 14-06-00876-CV, 2009 WL 888139, at *9 (Tex.App.-Houston [14th Dist.] Mar. 31, 2009, pet. filed) (noting dismissal of employee would be proper only if the employee proved entitlement to dismissal after a hearing). The Waco court reasoned:

When a defendant employee files a motion to dismiss under subsection (f), the plaintiff has two choices. He can wait, not amend his petition, and see if the trial court agrees with the employee that the suit filed is a suit under the Texas Tort Claims Act, which meets the two prerequisites of the statute, and dismisses the suit against the defendant employee. Or, he can go ahead and timely amend his petition by both dismissing the employee and substituting the governmental unit as a party. He has 30 days from the filing of the motion to dismiss to timely amend.
There is certainly a risk with either choice. If the plaintiff waits, does not amend, and the trial court dismisses his suit against the defendant employee, he has missed his chance to sue the governmental unit, because he has opted to sue the employee first regarding the same subject matter. Whether the employee is initially sued in her individual or official capacity is irrelevant. The benefit of waiting is that if the trial court does not grant the employee’s motion to dismiss because the employee has not proved the necessary prerequisites, the employee is still a defendant in the suit. But, if the plaintiff decides to amend, and does not do so timely, regardless of whether a subsection (f) motion has been granted, he has also missed the chance to sue the governmental unit.

Briggs, 262 S.W.3d at 394-95 (citations omitted).

Discussing the facts of the case presented, the Waco court noted that the plaintiff chose to file his lawsuit against the employee. Id. at 395. Once the suit was filed, HISD became immune from suit under section 101.106(b). Id. Because the plaintiff failed to timely dismiss the employee within thirty days from the date of the employee’s motion to dismiss pursuant to section 101.106(f), HISD retained its immunity under section 101.106(b), and its plea to the jurisdiction should have been granted. Id.

Analysis

A. Substantial Compliance

The Eells counter UTHSCSA’s reliance on Calderon and Briggs by asserting that they substantially complied with section 101.106(f) when they conditionally substituted UTHSCSA in their timely amended federal complaint. In support of this position, the Eells primarily rely on three cases involving a post-suit notice requirement. In those cases, however, the courts expressly noted that compliance with the statute in question was not jurisdictional. Ballesteros v. Nueces County, 286 S.W.3d 566, 569-70 (Tex.App.-Corpus Christi 2009, pet. stricken); Dallas County v. Autry, 251 S.W.3d 155, 158 (Tex.App.-Dallas 2008, pet. denied); Dallas County v. Coskey, 247 S.W.3d 753, 755-56 (Tex.App.-Dallas 2008, pet. denied). Only after determining that the statute was not jurisdictional did the courts determine that substantial compliance with the statute was sufficient. Ballesteros, 286 S.W.3d at 570-72; Autry, 251 S.W.3d at 158; Coskey, 247 S.W.3d at 756-57.

Unlike the statute examined in the cases cited by the Eells to support their substantial compliance argument, section 101.106 involves governmental immunity and is jurisdictional. Calderon, 221 S.W.3d at 921-22 (discussing immunity under section 101.106(b)); Phillips v. Dafonte, 187 S.W.3d 669, 672-74 (Tex.App.-Houston [14th Dist.] 2006, no pet.). Although section 101.106 has procedural aspects, “[t]he procedural rights the legislature granted also have a substantive impact.” Phillips, 187 S.W.3d at 673. The plaintiffs choices and procedural actions impact the immunity of either the governmental unit or the employee of the governmental unit; therefore, section 101.106 is a jurisdictional statute involving the waiver of immunity. See State v. Lueck, 290 S.W.3d 876, 880 (Tex.2009) (noting immunity is a jurisdictional question); Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004) (noting immunity deprives a trial court of subject matter jurisdiction). As such, we must strictly construe it, and the Eells’ “conditional pleading” is not sufficient to comply with the express dictates of section 101.106(f) which requires both the dismissal of the employee and the naming of the governmental unit as the defendant. City of Houston v. Jackson, 192 S.W.3d 764, 770 (Tex.2006) (noting statutes waiving sovereign and governmental immunity should be strictly construed); City of Houston v. Hildebrandt, 265 S.W.3d 22, 26 (Tex.App.-Houston [1st Dist.] 2008, pet. denied) (same). In fact, the Eells’ conditional pleading must be likened to the alternative pleadings that the Texas Supreme Court has stated section 101.106 was intended to prevent. See Mission Consol. Ind. Sch. Dist., 253 S.W.3d at 657.

B. Absurd Result

The Eells next contend that UTHSCSA’s interpretation of the statute would lead to an absurd result. We start with the concept that sovereign immunity, unless waived, protects the State of Texas, its agencies, and its officials from lawsuits for damages, absent legislative consent to sue the State. Federal Sign v. Texas Southern Univ., 951 S.W.2d 401, 405 (Tex.1997). Even if a plaintiff asserts a claim on which the State acknowledges liability, immunity precludes a remedy until the Legislature consents to suit. Id. The judiciary has “consistently deferred to the Legislature to waive sovereign immunity from suit, because this allows the Legislature to protect its policymaking function.” Texas Nat. Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 854 (Tex.2002). “Indeed, in the Code Construction Act, the Legislature expressed its desire to maintain control over sovereign immunity’ [i]n order to preserve [its] interest in managing state fiscal matters through the appropriations process....’” Id. (quoting Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2009)). “Subjecting the government to liability may hamper governmental functions by shifting tax resources away from their intended purposes toward defending lawsuits and paying judgments.” Id. “Accordingly, the Legislature is better suited than the courts to weigh the conflicting public policies associated with waiving immunity and exposing the government to increased liability, the burden of which the general public must ultimately bear.” Id.

The Texas Tort Claims Act provides a limited waiver of immunity from certain suits against governmental entities, including suits alleging liability arising from the condition or use of tangible personal property. Mission Consol. Ind. Sch. Dist., 253 S.W.3d at 655-56. After the Texas Tort Claims Act was enacted, plaintiffs often sought to avoid its requirements and damages caps by suing the employees of the governmental entity instead of the entity. Id. at 656. “To prevent such circumvention, and to protect governmental employees, the Legislature created an election-of-remedies provision.” Id. As originally enacted, section 101.106, entitled “Employees Not Liable After Settlement or Judgment,” provided:

A judgment in an action or a settlement of a claim under this chapter bars any action involving the same subject matter by the claimant against the employee of the governmental unit whose act or omission gave rise to the claim.

Id. (citing prior version of statute). “Employees were thus afforded some protection when claims against the governmental unit were reduced to judgment or settled, but there was nothing to prevent a plaintiff from pursuing alternative theories against both the employee and the governmental unit through trial or other final resolution.” Id.

In 2003, as part of a comprehensive effort to reform the tort system, the Legislature amended section 101.106. Id. That section, entitled “Election of Remedies,” now provides:

(a) The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.
(b) The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.
(c) The settlement of a claim arising under this chapter shall immediately and forever bar the claimant from any suit or recovery from any employee of the same governmental unit regarding the same subject matter.
(d) A judgment against an employee of a governmental unit shall immediately and forever bar the party obtaining the judgment from any suit against or recovery from the governmental unit.
(e) If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.
(f) If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee’s employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee’s official capacity only. On the employee’s motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.

Tex. Civ. Prac. & Rem.Code Ann. § 101.106 (Vernon 2005). “The revision’s apparent purpose was to force a plaintiff to decide at the outset whether an employee acted independently and is thus solely liable, or acted within the general scope of his or her employment such that the governmental unit is vicariously liable, thereby reducing the resources that the government and its employees must use in defending redundant litigation and alternative theories of recovery.” Mission Consol. Ind. Sch. Dist., 253 S.W.3d at 657. “By requiring a plaintiff to make an irrevocable election at the time suit is filed between suing the governmental unit under the Tort Claims Act or proceeding against the employee alone, section 101.106 narrows the issues for trial and reduces delay and duplicative litigation costs.” Id. “Because the decision regarding whom to sue has irrevocable consequences, a plaintiff must proceed cautiously before filing suit and carefully consider whether to seek relief from the governmental unit or from the employee individually.” Id.

In amending section 101.106, the Legislature intended to reduce the delay and expense associated with allowing plaintiffs to plead alternative theories against both a governmental unit and its employee. Id. Thus, the plaintiff must make an irrevocable election at the time suit is filed. Id. If the plaintiff files suit against the governmental unit, suit against the employee regarding the same subject matter is forever barred. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(a) (Vernon 2005). If the plaintiff files suit against the employee, suit against the governmental unit regarding the same subject matter is forever barred unless the governmental unit consents. Id. at § 101.106(b).

Because section 101.106 strongly favors the dismissal of the governmental employee, see Waxahachie Ind. Sch. Dist. v. Johnson, 181 S.W.3d 781, 785 (Tex.App.Waco 2005, pet. denied), different rules apply if the plaintiff refuses to make the irrevocable election by suing one party and instead sues both the employee and the governmental unit. In that situation, dismissal of the employee is mandatory if the governmental unit files a motion seeking the dismissal of the employee. Id. at § 101.106(e). If the employee files a motion seeking dismissal, however, the plaintiff retains control over the election of whether to pursue the claim against the employee or the governmental unit; however, the plaintiff must decide which party to continue pursuing within thirty days. See id. at § 101.106(f). If the plaintiff decides to continue the suit against the employee, the plaintiff need not take any action, and the employee’s motion can be granted only if the employee proves that his conduct was within the general scope of his employment and that the suit could have been brought against the governmental unit. Briggs, 262 S.W.3d at 394. By pursuing the claim against the employee, however, the plaintiff is forever barred from pursuing the claim against the governmental unit. Id. On the other hand, if the plaintiff decides to continue the suit against the governmental unit, the plaintiff must file amended pleadings both dismissing the employee and naming the governmental unit as the defendant within thirty days. Tex. Civ. Prac. & Rem.Code Ann. § 101.106(f) (Vernon 2005).

The Eells argue that requiring the plaintiff to make this decision before a trial court rules on the employee’s motion to dismiss leads to an absurd result because the employee has the burden of proving the two prerequisites to dismissal: (1)that the employee was within the scope of his employment; and (2) that the suit could have been brought against the governmental unit. Although we certainly understand the Eells’ frustration given the difficulties faced in determining whether a claim involves the use of tangible personal property, we cannot agree that the language of the statute leads to an absurd result. Instead, the result appears to be the result intended by the “crystal clear” and unambiguous language used by the Legislature in section 101.106(f). Villasan v. O’Rourke, 166 S.W.3d 752, 759 (Tex.App.-Beaumont 2005, pet. denied). By placing a thirty-day deadline on the ability of the plaintiff to make a decision regarding which party to pursue after an employee files a motion to dismiss, the Legislature clearly did not intend to allow a plaintiff to await a trial court’s ruling before making that decision. Although an argument could be made that allowing the plaintiff to await the trial court’s ruling would be more just, imposing the deadline does not lead to an absurd result in the overall context of the statute. Therefore, any argument regarding language that might be more just would have to be directed to the Legislature, not the judiciary.

Conclusion

While we recognize that the Legislature may be “better suited than the courts to weigh the conflicting policy issues associated with waiving immunity,” see Texas Nat. Res. Conserv. Comm’n, 74 S.W.3d at 854, this appeal illustrates the challenges faced by plaintiffs when they bring a medical negligence claim against an employee of a governmental entity. Although the statute refers to an “Election of Remedies,” plaintiffs, no doubt, believe they are left without any remedy. Constrained by the language of section 101.106, we reverse the trial court’s order and render judgment dismissing the underlying lawsuit.

STEVEN C. HILBIG, Justice, concurring in the judgment only.

      . Section 101.106(b). provides, "The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.” Tex. Civ. Prac. & Rem.Code Ann. § 101.106 (Vernon 2005).

      . In a letter of additional citations, the Eells quote the following sentence from an opinion from one of our sister courts, "The plaintiff is protected against a subsequent dismissal of the governmental employer by putting the employee to his burden of demonstrating that suit 'could have been brought under this chapter’ against the governmental employer before the employee obtains a dismissal order. See Phillips, 187 S.W.3d at 675.” Hintz v. Lally, 305 S.W.3d 761, 769 (Tex.App.-Houston [14th Dist.] 2009, pet. filed). We initially note that the quoted language is dicta since the decision in Hintz was based on section 101.106(a). Hintz, 305 S.W.3d at 768-771. In addition, the only authority cited to support the proposition that the plaintiff is "protected against a subsequent dismissal of the governmental employer” is Phillips v. Dafonte, 187 S.W.3d 669, 675 (Tex.App.-Houston [14th Dist.] 2006, no pet.). In Phillips, however, the trial court denied the employees’ motion to dismiss, and the Houston court affirmed, holding the employees did not show the lawsuit could have been brought against the governmental employer. 187 S.W.3d at 677. Because the governmental employer was never a party to the lawsuit, it is difficult to understand how the Hintz court construed the decision in Phillips as addressing the protection of the plaintiff against the dismissal of the governmental employer.


source: Caselaw Access Project

author: KAREN ANGELINI, Justice.

license: Public Domain

text:
    Philip Andrew GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 04-09-00446-CR.
    Court of Appeals of Texas, San Antonio.
    July 7, 2010.

      Jerry Phillips, Jerry Phillips Law Firm, Kerrville, TX, for Appellant.
    E. Bruce Curry, District Attorney, Kerrville, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice.
   OPINION

Opinion by:

KAREN ANGELINI, Justice.

Phillip Andrew Garcia appeals the trial court’s denial of his motion to suppress. We affirm.

BACKGROUND

Garcia was charged with possession of marijuana in a drug free zone in an amount more than two ounces but less than four ounces. At the hearing on his motion to suppress, only Mike Baker, an investigator with the Kerrville Police Department assigned to the special crimes unit, testified.

According to Investigator Baker, on October 7, 2008, at 11:30 p.m., he received a phone call from Sergeant Kenneth Cleg-horn, who informed him that Christian Gonzales had been arrested for possession of marijuana and wanted to speak to investigators. In response to the call, Investigator Baker went to the scene and interviewed Gonzales. Gonzales offered to purchase marijuana from a man known as Kermit Compton. Investigator Baker knew Gonzales and had used him before as a cooperating individual. According to Investigator Baker, Gonzales had proven to be credible and reliable in the past. Investigator Baker was also familiar with Kermit Compton; in January 2008, using Gonzales, Baker “had done a controlled delivery from Kermit Compton.”

According to Investigator Baker, Gonzales called Kermit Compton on his cell phone. After finishing the phone call, Gonzales told Investigator Baker that Compton had agreed to sell him marijuana, but first needed to get some marijuana from Jesus “Chuy” Gonzales. Investigator Baker testified that the department had “received prior information that Mr. Compton and Mr. [Jesus ‘Chuy’] Gonzales were in partnership together selling drugs.” Thus, Investigator Baker decided to attempt a “controlled delivery.”

Investigator Baker then testified that Gonzales received a phone call from Compton, who said that he had the marijuana available and wanted to meet Gonzales at Gonzales’s house. Investigator Baker testified, “[Compton] just said to meet him there at the residence. There was no actual time frame given. So we loaded up into our vehicles and we headed to the location.” While they were headed to Gonzales’s house, Gonzales received another phone call from Compton. According to Investigator Baker, Gonzales told Compton that because Gonzales was riding a bicycle, it would take him about fifteen minutes to get home. Investigator Baker testified that the officers were hoping to get to Gonzales’s home in time to set up surveillance before Compton’s arrival.

However, when Investigator Baker and Sergeant Cleghorn arrived at Gonzales’s home, they saw a white Ford pickup and a blue Chevy two-door parked on the right-hand side of the curb. So, they drove past the home. When they turned around and came back, their headlights illuminated the inside of the Chevy. Investigator Baker testified that he saw the driver, whom he did not recognize, and a passenger whom he did recognize as Kermit Compton. The driver was later identified as Appellant Garcia.

Investigator Baker testified that he radioed Investigator Dagenhart, who was with Gonzales in another vehicle, and informed him that Compton was already at the house, Investigators Baker and Dagenhart then tried to decide how they “were going to deploy the confidential informant,” Gonzales. Dagenhart was with Gonzales in another vehicle. As Investigator Baker and Sergeant Cleghorn were driving past the house, considering what to do, they saw the headlights of the Chevy turn on. The Chevy, driven by Garcia, turned into a driveway, backed up, and started to leave. According to Investigator Baker, he knew Compton was supposed to sell marijuana to Gonzales at that location, the vehicle was there, and he had seen Compton in the vehicle. So, Investigator Baker decided to stop the Chevy. The Chevy had three occupants: Compton was in the front passenger seat, Garcia was in the driver’s seat, and a male juvenile was in the back seat.

Investigator Baker testified that he made all three occupants get out of the car. Investigator Baker then conducted a pat-down search of the men, but did not find anything. According to Investigator Baker, Sergeant Cleghorn then went into the vehicle and saw a three-pound Folgers coffee can on the passenger side floorboard. Investigator Baker testified that due to their training and experience, both he and Sergeant Cleghorn knew that people who traffic narcotics like to use items like coffee and mustard to mask the odor of marijuana. Investigator Baker testified that Gonzales had ordered a half-ounce of marijuana, worth about $60, which would fit perfectly in a three-pound coffee can.

Sergeant Cleghorn opened the can, which had a plastic lid on it but did not have a seal. Sergeant Cleghorn then pushed his finger down into the coffee, felt a plastic bag, and pulled it out. The plastic bag contained marijuana. Garcia was then advised of his Miranda rights and was taken to the police station where he spoke with officers. Garcia was later indicted for possession of marijuana in a drug free zone.

After hearing Investigator Baker’s testimony and arguments of counsel, the trial court denied Garcia’s motion to suppress. In accordance with a plea-bargain agreement, Garcia then pled guilty to possession of marijuana in a drug-free zone and was placed on deferred adjudication for one year and fined $500.00. He now appeals the trial court’s denial of his motion to suppress.

Standard op Review

In reviewing a trial court’s ruling on a motion to suppress, we apply a bifurcated standard of review. Wilson v. State, 311 S.W.3d 452, 457-459 (Tex.Crim.App.2010); Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). Although we give almost total deference to the trial court’s determination of historical facts, we conduct a de novo review of the trial court’s application of the law to those facts. Wilson, 311 S.W.3d at 457-459; Carmouche, 10 S.W.3d at 327. As the sole trier of fact during a suppression hearing, the trial court may believe or disbelieve all or any part of a witness’s testimony. Wilson, 311 S.W.3d at 457-459; State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App.2000). Furthermore, we examine the evidence in the light most favorable to the trial court’s ruling. Wilson, 311 S.W.3d at 457-459; State v. Ballard, 987 S.W.2d 889, 891 (Tex.Crim.App.1999).

Discussion

In his first issue, Garcia argues that the trial court erred in overruling his hearsay objection to Investigator Baker’s testimony about Gonzales’s phone conversation with Compton. Assuming but not deciding whether the testimony at issue was hearsay, we note that a trial court is permitted to rely on hearsay testimony in determining preliminary questions concerning the admissibility of evidence. See Granados v. State, 85 S.W.3d 217, 227 (Tex.Crim.App.2002) (explaining that because suppression hearings involve the determination of preliminary questions concerning the admissibility of evidence, the language of the current rules indicates that the rules of evidence (except privileges) no longer apply to suppression hearings); see also Ford v. State, 305 S.W.3d 530, 538, 539 (Tex.Crim.App.2009) (explaining that a suppression hearing is an “informal hearing in which the trial judge, in his discretion, may use different types of information, conveyed in different ways, to resolve the contested factual or legal issues”; “[a] trial judge may use his discretion in deciding what type of information he considers appropriate and reliable in making his pre-trial ruling”; and a trial judge does “not abuse his discretion in relying upon an unsworn hearsay document”). Therefore, even if the testimony at issue was hearsay, the trial court did not abuse its discretion in relying on it.

In his second issue, Garcia argues that Baker did not have reasonable suspicion to justify detaining him, because he was merely the driver of the car in which Kermit Compton, the suspect, was a passenger. In response, the State emphasizes that Garcia would have an officer .turn a blind eye to the fact that Garcia was driving his vehicle to a location where the information received indicated a drug deal was about to occur.

Pursuant to Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer has the right to briefly detain and investigate a person when the officer has a reasonable suspicion supported by facts that the person is, has been, or will be engaged in criminal activity. See State v. Sheppard, 271 S.W.3d 281, 287 (Tex.Crim.App.2008); Woods v. State, 956 S.W.2d 33, 35 (Tex.Crim.App.1997). The reasonableness of an investigative detention turns on the totality of the circumstances in each case. Curtis v. State, 238 S.W.3d 376, 379 (Tex.Crim.App.2007).

Here, the officers knew Compton would be arriving at a specific location within approximately fifteen minutes to sell marijuana to Gonzales. When the officers arrived at that location, they saw a parked car. As they drove past, Investigator Baker recognized one of the passengers in the parked car as Compton. Considering the totality of the circumstances, the officers had reasonable suspicion to stop the vehicle and detain the occupants of the vehicle for purposes of conducting a Terry stop.

In his third issue, Garcia argues that there was no probable cause to justify the search of his vehicle. In Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543 (1925), the Supreme Court established the automobile exception to the Fourth Amendment’s warrant requirement, holding that officers, without violating the Fourth Amendment, could conduct a warrantless search of a vehicle if they had probable cause to believe the vehicle contained contraband. Probable cause requires that the facts available to the officer would “warrant a man of reasonable caution in the belief’ that certain items may be contraband or stolen property or useful as evidence of a crime. Id. at 162, 45 S.Ct. 280. That there may be an innocent explanation for the set of facts does not defeat a finding of probable cause:

[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands ... In making a determination of probable cause the relevant inquiry is not whether particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attachés to particular types of non-criminal acts.

Eisenhauer v. State, 678 S.W.2d 947, 954 (Tex.Crim.App.1984) (quoting Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)) (alteration in original), overruled on other grounds by Heitman v. State, 815 S.W.2d 681 (Tex.Crim.App.1991).

Here, the officers had probable cause to search the vehicle. Investigator Baker witnessed a known, credible informant make arrangements for a drug delivery at the informant’s home in approximately fifteen minutes. When the officers arrived at the informant’s home, Investigator Baker saw a parked vehicle and recognized Compton, the person whom the informant had called to purchase the illegal drugs, as one of the occupants of the parked car. Garcia, the driver of the parked car, then turned on the headlights and attempted to drive away, prompting the officers to stop the vehicle. Given the totality of circumstances, the officers could reasonably believe that the marijuana was located either on the person of Compton, on the person of one of the other occupants, or in the vehicle itself. Investigator Baker first conducted a pat-down search of all three occupants, but did not feel evidence of illegal drugs. He then searched the car and noticed the three-pound coffee can. See Arizona v. Gant, — U.S. -, -, 129 S.Ct. 1710, 1721, 173 L.Ed.2d 485 (2009) (reiterating that “[i]f there is probable cause to believe a vehicle contains evidence of criminal activity,” officers may without a warrant search “any area of the vehicle in which the evidence might be found”); Wyoming v. Houghton, 526 U.S. 295, 302, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (explaining that when “there is probable cause to search for contraband in a car, it is reasonable for police officers ... to examine packages and containers without a showing of individualized probable cause for each one”).

In his fourth issue, Garcia argues that the manner of the search of the coffee can was unreasonable and violated the Fourth Amendment because the officer destroyed the coffee by placing his bare finger in the coffee grounds. According to Garcia, “[e]ven if the search of [Garcia]’s car was reasonable, when the officer placed his hand into the coffee, the search became unreasonable.” Garcia argues that merely having goods “in an automobile does not give the police carte blanche to search [the goods] by probing them with their fingers. That concept itself is unreasonable.”

Without commenting on whether the coffee was, in fact, “destroyed,” we note that while the destruction of property in carrying out a search is not favored, destroying property does not necessarily violate one’s constitutional rights. Instead the standard is whether the destruction of property was reasonably necessary to effectively execute the search. See Dalia v. United States, 441 U.S. 238, 258, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979) (recognizing that “officers executing search warrants on occasion must damage property in order to perform their duty”); Tarpley v. Greene, 684 F.2d 1, 9 (D.C.Cir.1982) (“The touchstone, however, is reasonableness; destruction of property that is not reasonably necessary to effectively execute a search warrant may violate the Fourth Amendment.”). As noted, the officer had probable cause to believe that the vehicle contained marijuana, and the coffee can was the right size for the amount of marijuana ordered. Placing his finger inside an inexpensive can of coffee grounds to see whether marijuana was indeed inside the can was not unreasonable and did not violate Garcia’s constitutional rights. See United States v. Santana-Aguirre, 537 F.3d 929, 933 (8th Cir.2008) (holding that destruction of large, plain, and inexpensive candles was not unreasonable because the officer had probable cause to believe the candles contained contraband), cert. denied, - U.S. -, 129 S.Ct. 2051, 173 L.Ed.2d 1135 (2009); United States v. Alverez, 235 F.3d 1086, 1089 (8th Cir.2000) (holding that because officers had probable cause to believe the spare tire contained contraband, “they could lawfully complete a full and thorough search of the tire, including dismantling or damaging it”).

In his final issue, Garcia argues that “[b]y placing his bare hand in the coffee, the police officer destroyed consumable property” in violation of the Takings Clause of the Fifth Amendment to the Constitution. However, “[w]hen property has been seized pursuant to the criminal laws or subjected to in rem forfeiture proceedings, such deprivations are not ‘takings’ for which the owner is entitled to compensation.” Acadia Tech., Inc. v. United States, 458 F.3d 1327, 1331 (Fed.Cir.2006); see also AmeriSource Corp. v. United States, 525 F.3d 1149, 1153 (Fed.Cir.2008) (explaining that under its inherent police power, a state had the ability to seize and retain property to be used as evidence in a criminal prosecution, and property seized and retained pursuant to this police power is not taken for a public use in the context of the Takings Clause), cert. denied, — U.S. -, 129 S.Ct. 1611, 173 L.Ed.2d 993 (2009); Rhaburn v. United States, 88 Fed.Cl. 310, 313 (2009) (same). “The same rule applies even if the property is seized as evidence in a criminal investigation or as the suspected instrumentality of a crime, but is ultimately returned to the owner either because the government does not pursue forfeiture proceedings or because the owner prevails in a forfeiture action.” Acadia, 458 F.3d at 1331-32; see also AmeriSource, 525 F.3d at 1154 (holding that government’s decision to hold pharmaceutical drugs past their expiration date did not result in a compensable taking under the Constitution because “[o]nce the government has lawfully seized property to be used as evidence in a criminal prosecution, it has wide latitude to retain it so long as the investigation continues, regardless of the effect on that property”).

Conclusion

We affirm the judgment of the trial court.

      . We note that Garcia cites no legal support for this proposition. Garcia does point to the officer's testimony that he would not drink coffee that had been tainted by someone placing his finger in the coffee grounds.

      . We note that Garcia also cites Article I, section 19 of the Texas Constitution, but does not explain how the Texas Constitution provides more protection than the United States Constitution. Therefore, to the extent that the Texas Constitution might provide more protection than the United States Constitution, Garcia has inadequately briefed the issue. See Tex.R.App. P. 38.1(i).


author: REBECCA SIMMONS, Justice.

text:
    In re UNITED FIRE LLOYDS.
    No. 04-10-00094-CV.
    Court of Appeals of Texas, San Antonio.
    July 14, 2010.

      Clay E. Coalson, Donnell, Abernethy & Kieschnick, Corpus Christi, TX, Jose L.
    Gamez, Donnell, Abernethy & Kieschnick, Edinburg, TX, for Appellant.
    Ronald A. Ramos, Nadine Nieto, Law Offices of Ronald A. Ramos, P.C., Adam Poncio, Poncio Law Offices, P.C., San Antonio, TX, Bryan W. Jones, Texas Mutual Insurance Company, Austin, TX, for Ap-pellee.
    Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, MARJALYN BARNARD, Justice.
   OPINION

Opinion by:

REBECCA SIMMONS, Justice.

On February 8, 2010, relator United Fire Lloyds filed a petition for writ of mandamus, seeking to compel the trial court to (1) vacate the October 7, 2009 Order Granting Plaintiffs Motion for a Bifurcated Trial, (2) vacate the October 13, 2009 Order Denying Defendant United Fire Lloyd’s Motion to Sever and Abate Plaintiffs Extra-Contractual Claims, and (3) grant United Fire’s Motion to Sever and Abate Plaintiffs Extra-Contractual Claims. We conditionally grant mandamus relief.

BACKGROUND

The underlying suit arose from a motor vehicle accident involving Juan Garcia and Ramon Valverde. Garcia filed suit against United Fire for underinsured motorist (“UIM”) benefits under his employer’s insurance policy. The original petition only alleged a claim for UIM benefits, but- subsequently filed petitions added extra-contractual (bad faith) claims. The Fourth Amended Petition alleged the following bad faith claims in violation of the Texas Insurance Code: (1) failing to commence an investigation of Garcia’s claim and failing to request from the claimant all items, statements, and forms in order to properly evaluate Garcia’s claim in violation of section 542.055; and (2) engaging in unfair settlement practices in violation of section 541.060.

United Fire contends it made a settlement offer in the amount of $100,000 during mediation. However, no settlement agreement was ever reached. Later, United Fire filed a motion to sever and abate Garcia’s UIM claim from the bad faith claims. As the basis for the motion, United Fire asserted a severance was necessary because the introduction of the settlement offer, the policy limits, and the facts concerning United Fire’s handling of the claim, as they relate to the bad faith claims, would prejudice United Fire in the trial of the UIM claim, and would confuse, complicate, and considerably lengthen the trial. Garcia then filed a motion for a bifurcated trial as an alternative to the severance and abatement. As authority for his motion, Garcia relied on this court’s opinion in In re Travelers Lloyds of Tex. Ins. Co., in which we concluded the trial court did not abuse its discretion in bifurcating over severing the contractual claims from the bad faith claims. See 273 S.W.3d 368, 373-75 (Tex.App.-San Antonio 2008, orig. proceeding). Garcia contended a severance would be judicially wasteful, would unduly prejudice him, and the disposition of the trial on the UIM claim would not eliminate the trial on the bad faith claims. In response to the motion for a bifurcated trial, United Fire asserted that a UIM claim is different from other types of contractual insurance claims because there is no contractual duty to pay benefits until the insured obtains a judgment establishing liability and the underinsured status of the other motorist. Therefore, United Fire claimed no bad faith claims had yet accrued, and the trial on the UIM claim would control the outcome of the bad faith claims.' After a hearing, the trial court granted Garcia’s motion for a bifurcated trial and denied United Fire Lloyd’s -motion to sever and abate. This petition for writ of mandamus ensued.

ANALYSIS

I. Standard of Review

Mandamus will issue only.to correct a clear abuse of discretion for which the relator has no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839—40 (Tex.1992) (orig. proceeding). “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts,” and “a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion” Walker, 827 S.W.2d at 840. “To satisfy the clear abuse of discretion standard, the relator must show ‘that the trial court could reasonably have reached only one decision.’ ” Liberty Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex.1996) (quoting Walker, 827 S.W.2d at 840). However, this court will not issue a writ of mandamus if there is a clear and adequate remedy at law. See Walker, 827 S.W.2d at 840. Since mandamus is intended as an extraordinary remedy, such interference is justified only when parties stand to lose their substantial rights. Id. at 842.

II. Severance or Bifurcation?

Severance and bifurcation are distinct trial procedures. Hall v. City of Austin, 450 S.W.2d 836, 837-38 (Tex.1970). A severance divides the lawsuit into two or more separate and independent causes. Id. However, the bifurcation of a trial leaves the lawsuit intact but enables the court to hear and determine one or more issues without trying all controverted issues at the same time. Id. Claims are properly severable if (1) the controversy involves more than one cause of action, (2) the severed claim is one that would be the proper subject of a lawsuit if independently asserted, and (3) the severed claim is not so interwoven with the remaining action that they involve the same facts and issues. Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex.1990). “The controlling reasons for a severance are to do justice, avoid prejudice, and further convenience.” Id.

Contractual claims based on an insurance policy and bad faith claims are by their nature independent. Akin, 927 S.W.2d at 629. “But, in most circumstances, an insured may not prevail on a bad faith claim without first showing that the insurer breached the contract.” Id. In Akin, the Texas Supreme Court concluded that a severance may be necessary in some bad faith cases. Id. at 630. For instance, when evidence is admissible only with regard to the bad faith claim and would prejudice the insurer to such an extent that a fair trial on the contract claim would become unlikely. Id.

Following Akin, numerous intermediate courts of appeals have considered whether it is an abuse of discretion for a trial court to refuse to order a severance of contractual claims from bad faith claims when a settlement offer has been made. See, e.g., In re Miller, 202 S.W.3d 922, 925-26 (Tex.App.-Tyler 2006, orig. proceeding [mand. denied]); In re Allstate Tex. Lloyds, No. 14-05-00762-CV, 2005 WL 2277134, at * 4 (Tex.App.-Houston [14th Dist] Sept. 2, 2005, orig. proceeding) (mem. op.); In re Allstate Indem. Co., 05-03-01496-CV, 2003 WL 22456345, at *1 (Tex.App.-Dallas Oct. 30, 2003, orig. proceeding) (mem. op.); In re Trinity Universal Ins. Co., 64 S.W.3d 463, 468 (Tex.App.-Amarillo 2001, orig. proceeding [mand. denied]). Eventually, parties began seeking bifurcation of the contractual claims from the bad faith claims as an alternative to severance. See In re Travelers, 273 S.W.3d at 373-75; In re Allstate Tex. Lloyds, 202 S.W.3d 895, 900 (Tex.App.-Corpus Christi 2006, orig. proceeding [mand. denied]) (concluding plaintiffs failed to meet their burden that they would be prejudiced by the bifurcation of contractual claims under a homeowner’s insurance policy and bad faith claims instead of severing and abating the claims). But we are only aware of a few cases in the context of a UIM claim that have considered whether severance and abatement is necessary over bifurcation. See In re Allstate Prop. and Cas. Ins. Co., No. 02-07-00141-CV, 2007 WL 1574964, at *1 (Tex.App.-Fort Worth May 30, 2007, orig. proceeding) (mem. op.) (holding it was an abuse of discretion to bifurcate instead of severing and abating the UIM claim from the bad faith claims); In re Allstate County Mut. Ins. Co., 209 S.W.3d 742, 746-47 (Tex.App.-Tyler 2006, orig. proceeding) (concluding it was an abuse of discretion to bifurcate instead of severing the UIM claim from the bad faith claims). However, these cases fail to discuss the necessity of severance and abatement rather than bifurcation in the context of a UIM claim.

In a UIM case, “[t]he UIM insurer is obligated to pay damages which the insured is ‘legally entitled to recover’ from the underinsured motorist.” Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex.2006) (citing Tex. Ins. Code art. 5.06-1(5)). In Brainard, the Texas Supreme Court expounded on the uniqueness of a UIM case as follows:

The UIM contract is unique because, according to its terms, benefits are conditioned upon the insured’s legal entitlement to receive damages from a third party. Unlike many first-party insurance contracts, in which the policy alone dictates coverage, UIM insurance utilizes tort law to determine coverage. Consequently, the insurer’s contractual obligation to pay benefits does not arise until liability and damages are determined.

See Brainard, 216 S.W.3d at 818 (citing Henson v. S. Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 654 (Tex.2000)). Therefore, “the UIM insurer is under no contractual duty to pay benefits until the insured obtains a judgment establishing the liability and underinsured status of the other motorist.... Neither requesting UIM benefits nor filing suit against the insurer triggers a contractual duty to pay.” Id.

Therefore, in order for Garcia to recover under his UIM claim, he must prove not only that the purported underin-sured motorist negligently caused the accident that resulted in the covered damages, but also that all applicable policy provisions have been satisfied. See Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291-92 (Tex.2001); Wellisch v. United Servs. Auto. Ass’n, 75 S.W.3d 53, 57 (Tex.App.-San Antonio 2002, pet. denied) (holding that because an insurer is not obligated to pay UIM benefits until the insured becomes legally entitled to those benefits, an insurer has the right to withhold payment of UIM benefits until the insured’s legal entitlement is established). As a result, United Fire contends the trial court abused its discretion in bifurcating rather than severing and abating because it is disputed whether there is a covered loss. United Fire argues it should not be required to prepare for a trial on bad faith claims when it has no contractual duty to pay the UIM claim until Garcia obtains a judgment establishing the underinsured motorist’s liability and underinsured status.

Garcia responds that it is not disputed that he has a covered loss and the bad faith claims will not be mooted by a trial on the UIM claim; therefore, this court should hold the trial court did not abuse its discretion in bifurcating the trial rather than severing and abating. Garcia relies primarily on In re Travelers to support his argument. See 273 S.W.3d at 373-75. However, we do not find In re Travelers controlling because it was not a UIM case. Id. In re Travelers involved a suit filed by homeowners against their homeowners’ insurance carrier for breach of contract and bad faith for mishandling their claim. Id. at 370. This court concluded that “[ble-cause the trial of the [plaintiffs’] extra-contractual claims is unaffected by the outcome of their contractual claim, a single bifurcated trial preceded by unified discovery and pretrial proceedings promotes judicial economy better than severance and abatement.” Id. at 374. As a result, this court determined the trial court did not abuse its discretion in bifurcating the case because “[u]nder these circumstances, the primary justification for abatement of the extra-contractual claims — avoiding the effort and expense of conducting discovery on claims that may be rendered moot in a previous trial — is non-existent because the disposition of the contractual claim will not moot the extra-contractual claims.” Id.

This court’s determination that bifurcation is an appropriate alternative to severance is not applicable to the present case because a UIM claim that involves a dispute as to whether there is a covered loss is distinguishable from a homeowners’ insurance claim where the existence of a covered loss is not disputed. Unlike the situation presented in In re Travelers, United Fire disputes whether Garcia has a covered loss. As a result, a determination of Garcia’s UIM claim may negate his bad faith claims. See Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922 (Tex.2005) (recognizing bad faith claims are generally negated by a lack of coverage under the insurance policy); Akin, 927 S.W.2d at 630-31 (recognizing that judgment for the insurer on the coverage claim prohibits recovery premised only on the bad faith denial of a claim, but does not necessarily bar all claims for bad faith); In re Miller, 202 S.W.3d at 925 (concluding that bad faith claims are negated by á lack of coverage under the insurance policy).

As a result of the foregoing, we are constrained by the clear holding in Brainard, and hold that United Fire is under no contractual duty to pay UIM benefits until Garcia establishes the liability and underinsured status of the other motorist. See Brainard, 216 S.W.3d at 818. Therefore, United Fire should not be required to put forth the effort and expense of conducting discovery, preparing for a trial, and conducting voir dire on bad faith claims that could be rendered moot by the portion of the trial relating to UDVI benefits. To require such would not do justice, avoid prejudice, and further convenience. See Guar. Fed. Sav. Bank, 793 S.W.2d at 658. Under these circumstances, we conclude the trial court abused its discretion in bifurcating the case instead of severing and abating the UDVI claim from the bad faith claims.

We further conclude United Fire does not have an adequate remedy by appeal because if mandamus is not granted it stands to lose substantial rights by being required to prepare for claims that may be rendered moot and may have not even yet accrued. See U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 675 (Tex.App.-Houston [1st Dist.] 1993, orig. proceeding); In re Trinity Universal Ins. Co., 64 S.W.3d 463, 468 (Tex.App.-Amarillo 2001, orig. proceeding [mand. denied]).

Finally, we address Garcia’s contention that United Fire waived any complaint as to the wording or form of the order. Typically in a mandamus situation, a party preserves its complaint by requesting an order and the trial court either grants or does not grant the request to enter an order. See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex.1990). It is unclear what Garcia contends United Fire waived since United Fire’s complaint is that the trial court improperly granted a bifurcated trial over severing and abating the UIM claim from the bad faith claims. United Fire does not appear to complain about the form or contents of the bifurcation order. Therefore, we do not find United Fire waived any complaints.

CONCLUSION

We conclude the trial court abused its discretion in granting Juan Garcia’s motion for a bifurcated trial and denying United Fire’s motion to sever and abate. Accordingly, we conditionally grant the writ of mandamus. The trial court is ordered to (1)vacate the October 7, 2009 Order Granting Plaintiffs Motion for a Bifurcated Trial, (2) vacate the October 18, 2009 Order Denying Defendant United Fire Lloyd’s Motion to Sever and Abate Plaintiffs Extra-Contractual Claims, and (3) grant United Fire’s Motion to Sever and Abate Plaintiffs Extra-Contractual Claims. The writ will issue only if the trial court fails to comply within fourteen days.

      . The live petition is the Fifth Amended Petition. However, it was filed after the trial court granted the motion to bifurcate. In considering whether the trial court abused its discretion in denying United Fire's motion to sever and abate, we limit our review to the record that was before the trial court at the time the "decision was made.” In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex.1998).

      . Specifically, Garcia contends United Fire engaged in unfair settlement practices by: (1) failing to attempt in good faith to effectuate a prompt, fair, and equitable settlement of Garcia's claim after liability had become reasonably clear, (2) refusing, failing or unreasonably delaying a settlement offer on the basis that other coverage may be available, and (3) delaying or refusing settlement of a claim solely because there is other insurance of a different kind available to satisfy part of the loss.

      . We acknowledge Brainard involved a different issue than the case at hand: a determination as to when presentment of a contract claim was made in order to determine whether a party was entitled to attorney’s fees in accordance with Chapter 38 of the Texas Civil Practice and Remedies Code. Id.

      . We note that in Garcia’s Sur-Reply he provides, "The truth of the matter is the primary claims will be decided and then, if warranted, extra-contracial [sic] claims will be determined in the bifurcated portion of the trial.” However, later Garcia again contends that the extra-contractual claims will not be rendered moot by judgment in the first phase of the trial due to bifurcation.


author: KAREN ANGELINI, Justice. STEVEN C. HILBIG,

text:
    Victorino Camargo GUTIERREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-09-00237-CR.
    Court of Appeals of Texas, San Antonio.
    July 14, 2010.

      From the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 920451, Brenda Chapman, Judge Presiding.

    Angela J. Moore, Chief Public Defender, San Antonio, TX, for Appellant.
    Susan D. Reed, District Attorney, Bexar County, San Antonio, TX, for Appellee.

      Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, STEVEN C. HILBIG, Justice.

      . Former judge, sitting by assignment

   OPINION

Opinion by:

KAREN ANGELINI, Justice.

Victorino Camargo Gutierrez was convicted of driving while intoxicated and was sentenced to four months in jail and a $1,500.00 fíne. Gutierrez appeals the judgment, arguing the trial court erred by (1) failing to grant his motion to suppress; (2) admitting testimony concerning the speed of his vehicle; (3) failing to make findings of facts and conclusions of law regarding the motion to suppress; (4) failing to include an article 38.28 instruction in the jury charge, and (5) failing to order a presentence report. Because we hold that the trial court committed harmful error in failing to order a presentence report, we reverse the trial court’s judgment as to punishment and remand the cause for a new punishment hearing. In all other respects, we affirm.

Background

Gutierrez was stopped by San Antonio Police Department Officer Curtis Lewis in the early morning hours on March 31, 2005. Officer Lewis subsequently arrested Gutierrez for driving while intoxicated, and the State filed formal charges. Before trial, Gutierrez filed a motion to suppress, asserting his detention and arrest were unlawful. On July 18, 2007, a hearing was held on the motion before the Honorable Olin Strauss, a senior judge sitting by assignment. Judge Strauss denied the motion, and a week later, Gutierrez filed a request for finding of facts and conclusion of law. However, at the time the case was called for trial on March 31, 2009, no findings of fact had been filed.

At trial, Officer Lewis testified he was on patrol on March 31, 2005, in a vehicle equipped with a radar unit. He testified that when he came on duty, he performed a “self-test” on the radar unit. According to Officer Lewis, at about 2:00 a.m., he saw a car approaching him from the opposite direction' that appeared to be traveling faster than the posted speed limit of forty miles per hour. Officer Lewis used the radar unit to confirm that the vehicle’s speed was fifty-three miles per hour. After the car passed him, Officer Lewis turned his vehicle around, caught up to .the car, and drove behind it. Officer Lewis testified that after watching the vehicle drift back and forth across the lane markers several times, he decided to initiate a traffic stop. But, when Officer Lewis turned on his emergency lights, the other driver’s response was to increase his speed. Officer Lewis then activated his siren, and the car pulled over and stopped.

Officer Lewis identified Gutierrez as the driver of the car. He told the jury that Gutierrez had difficulty getting his driver’s license out of his wallet, and had a moderate odor of alcohol, slurred speech, and red bloodshot eyes. According to Officer Lewis, Gutierrez’s clothes were also somewhat disorderly. During his conversation with Officer Lewis, Gutierrez admitted to having consumed eight beers. Officer Lewis then administered several field sobriety tests to Gutierrez, including a horizontal gaze nystagmus test, a “walk and turn” test, and a balance test. Officer Lewis testified that Gutierrez exhibited several signs of intoxication during these tests; thus, he arrested Gutierrez for driving while intoxicated.

At the conclusion of the State’s evidence, Gutierrez moved for a directed verdict and asked the trial court to suppress the evidence derived from the traffic stop:

Defense: And based on those things, Judge, the State has failed in [its] case and we would ask the Court to grant our motion [for directed verdict]. And if the Court does not, we could ask the Court to rule that the State did not have reasonable suspicion for the stop; then the stop being illegal, then no evidence that was obtained afterwards can be used by the State. And we respectfully request the Court to grant our motions.

The trial court denied both motions, stating:

Court: Motion for instructed verdict is denied. And I find that there is some testimony in evidence in the record to support the reasonable suspicion for the stop, so the motion to suppress is denied as well.

At the close of the evidence, Gutierrez requested the jury be instructed in the charge that pursuant to article 38.23 of the Texas Code of Criminal Procedure, it must disregard illegally obtained evidence. The trial court denied the request, and the jury returned a guilty verdict.

Before the punishment phase of the trial began, Gutierrez asked the court to order a presentence report. The trial judge, a former judge sitting by assignment, stated she wanted to hear testimony before deciding if a presentence report was necessary. The punishment hearing was scheduled for the following day. The next day, Gutierrez announced he was not ready to proceed and renewed his request for a presen-tenee report:

Defense: We’re not ready, Judge. As I had indicated to you yesterday, I had requested a presentence report.
Court: I understand, but I want to go ahead and take the evidence today while I’m here—
Defense: Okay.
Court: — because I’m not sure when I’ll be back. So let’s take the evidence and determine whether or not I still think we still need a PSI.
Defense: All right.

Gutierrez testified about his family history, his finances, and his health. He also answered questions posed by the court and was cross-examined by the State as to several prior convictions for driving while intoxicated. The trial court asked both sides for their recommendations as to the proper sentence, and both recommended probation. The trial court then took a short break and imposed the sentence. Gutierrez did not make a further request for a presentenee report or move for a continuance before the pronouncement of sentence.

Findings of.Fact and Conclusions of Law

Gutierrez contends the trial court erred in failing to make findings of fact and conclusions of law relating to the denial of the motion to suppress. See State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App.2006) (holding trial judge must make findings of fact and conclusions of law regarding ruling on motion to suppress when requested). Although Gutierrez filed a request for findings after the pretrial hearing, he did not request any findings of fact and conclusions of law after the court ruled on the motion during trial.

A motion to suppress is nothing more that a specialized form of an objection. Mayfield v. State, 800 S.W.2d 932, 935 (Tex.App.-San Antonio 1990, no pet.). If a trial court rules on a motion to suppress at a pretrial hearing, the court may reconsider the ruling at trial. Montalvo v. State, 846 S.W.2d 133, 138 (Tex.App.-Austin 1993, no pet.). Here, the operative ruling for purposes of appeal is the court’s denial of the motion to suppress during trial. Gutierrez cross-examined Officer Lewis extensively at trial regarding the testing and accuracy of the radar unit, his ability to determine the actual speed of Gutierrez’s vehicle, the movement of the vehicle over the marked lane dividers, and whether such movement constituted a traffic offense. This questioning, and Gutierrez’s express request for a ruling on the motion to suppress during trial, affirmatively demonstrate Gutierrez fully intended to relitigate the suppression issue at trial. Therefore, the ruling on the motion to suppress during trial, and not the pretrial ruling, controlled the admission of the contested evidence. The pretrial ruling on the motion to suppress thus became irrelevant, as would be any findings made to explain that ruling. Because Gutierrez did not ask for findings of fact and conclusions of law from the trial court after its ruling during trial, the court was under no obligation to provide them. We overrule the point of error regarding the failure to make findings of fact and conclusions of law.

Motion to Suppress

Gutierrez asserts Officer Lewis had neither reasonable suspicion for the stop nor probable cause for a warrantless arrest. We review the trial court’s ruling on a motion to suppress under an abuse of discretion standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006). We view the record in the light most favorable to the trial court’s ruling and will reverse only if the ruling is outside the zone of reasonable disagreement. Id. We give almost total deference to the trial court’s determination of historical facts, especially those based on an evaluation of the witnesses’ credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We review de novo the trial court’s application of the law of search and seizure to the facts. Wiede v. State, 214 S.W.3d 17, 25 (Tex.Crim.App.2007). When the trial court has not made findings of fact, we imply findings that support the court’s ruling, so long as the findings are supported by the record. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.2000). We will sustain the trial court’s ruling “if it is reasonably supported by the record and is correct on any theory of law applicable to the case.” Dixon, 206 S.W.3d at 590.

An officer must possess reasonable suspicion to initiate an investigative stop. Davis v. State, 947 S.W.2d 240, 244-45 (Tex.Crim.App.1997). “Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably conclude that a particular person actually is, has been, or soon will be engaged in criminal activity.” Ford v. State, 158 S.W.3d 488, 492 (Tex.Crim.App.2005). “Under this standard, the articulable facts on which the officer relied need only support a reasonable belief that activity out of the ordinary is occurring or has occurred, that the detainee is connected to the unusual activity, and that the unusual activity is related to crime.” State v. Garcia, 25 S.W.3d 908, 912 (Tex.App.-Houston [14th Dist.] 2000, no pet.). In determining whether there was reasonable suspicion for the stop, we consider the totality of the circumstances. Ford, 158 S.W.3d at 492-93.

“ ‘Probable cause’ for a war-rantless arrest exists if, at the moment the arrest is made, the facts and circumstances within the arresting officer’s knowledge and of which he has reasonably trustworthy information are sufficient to warrant a prudent man in believing that the person arrested had committed or was committing an offense.” Amador v. State, 275 S.W.3d 872, 878 (Tex.Crim.App.2009) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). When analyzing whether facts are sufficient to equal probable cause, we should use a “commonsense” approach and view the facts “as understood by those versed in the field of law enforcement.” Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

Gutierrez argues that there was no reasonable suspicion for the traffic stop because his weaving slightly across his lane did not constitute a traffic offense and the officer testified he had not checked the radar unit to determine its accuracy. Officer Lewis testified his radar unit indicated Gutierrez was operating his vehicle at fifty-three miles per hour in an area posted at forty miles per hour. The officer had performed a “self-test” on the radar equipment, and he testified the test indicated the equipment was operating correctly. Gutierrez challenges the State’s reliance on the radar reading because on voir dire examination Officer Lewis stated he had been trained to use a tuning fork to determine the accuracy of a radar unit, and the officer admitted he did not use a tuning fork on the radar unit. However, San Antonio Police Department Officer Michael Moore, who testified he was familiar with the type of radar equipment used by Officer Lewis, told the jury that using the “self-test” function on the unit is the proper method to determine the radar equipment was operating properly. Moreover, the radar reading merely confirmed Officer Lewis’s initial observation that Gutierrez appeared to be traveling faster than the posted speed limit. This evidence is sufficient to support a finding that Officer Lewis had reasonable suspicion that Gutierrez was speeding.

In a separate point of error, Gutierrez asserts the trial court erred in permitting Officer Lewis to testify that the speed of his vehicle was fifty-three miles per hour, contending “the trial court simply took the officer’s unschooled word as to how the buttons on the radar unit worked.” However, Gutierrez did not object at trial to the reliability of the radar technology for measuring speed, or to either Officer Lewis’s or Officer Moore’s qualifications to testify about the unit. The evidence before the trial court was sufficient to support a finding of reasonable belief that Gutierrez was speeding. Further, the radar reading was only one part of the totality of the circumstances giving Officer Lewis reasonable suspicion that Gutierrez was committing a crime. The officer saw Gutierrez weave across and outside his lane several times, and observed Gutierrez increase his speed after the officer activated his emergency lights. Officer Lewis was required to use his siren to get Gutierrez to stop, which the officer testified he rarely needs to do. The trial court’s finding of reasonable suspicion based on the totality of the circumstances, even when disregarding the testimony that the radar unit indicated Gutierrez was driving fifty-three miles per hour, is not outside the zone of reasonable disagreement.

Gutierrez also argues that there was no probable cause to support his war-rantless arrest. We again disagree. Officer Lewis’s observations of Gutierrez, including the results of the field sobriety tests, and Gutierrez’s admission he had consumed eight beers, gave the officer probable cause to arrest Gutierrez for driving while intoxicated. The trial court did not abuse its discretion by denying the motion to suppress.

ARTICLE 38.23 Jury Instruction

Gutierrez complains the trial court erred by not including in the jury charge an instruction under article 38.23 of the Texas Code of Criminal Procedure, which provides in part:

Article 38.23 Evidence not to be used
(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Tex.Code Crim. Proc. Ann. art. 38.28(a) (Vernon 2005). Gutierrez requested an instruction that would have allowed the jury to consider whether he was driving in excess of the posted speed limit or failed to maintain a single lane, and to disregard any evidence relating to the stop if the jury found Gutierrez did not commit, or had a reasonable doubt about whether he committed, the two traffic offenses. The trial court denied the requested instruction.

The trial court is. required to submit a charge under article 38.28 only when there are disputed issues of fact material to a claim of illegal conduct. Madden v. State, 242 S.W.3d 504, 509-10 (Tex.Crim.App.2007). To' be entitled to the instruction, a defendant must show: (1) the evidence raises an issue of fact; (2) there is evidence that affirmatively contests that fact; and (3) the contested fact is material to the issue of the legality of the challenged conduct. Id. at 510.

Although Gutierrez vigorously cross-examined Officer Lewis on whether the radar equipment was capable of accurately measuring the speed of his vehicle, Officer Lewis never wavered in his assertion that Gutierrez’s vehicle appeared to be traveling above the posted speed limit when he first noticed the vehicle and that Gutierrez increased his speed after the officer activated his emergency lights. There was no affirmative testimony from any source that Gutierrez was not speeding. Because the evidence did not raise a fact issue' on whether there was reasonable suspicion that Gutierrez was speeding, Gutierrez failed to show he was entitled to the requested instruction. The point of error is overruled.

Presentence Report

Gutierrez next argues that, despite his request, the trial court erred in failing to order a presentence investigation report before imposing sentence. Article 42.12, section 9, of the Texas Code of Criminal Procedure requires the court to order such a report in most cases, but excepts misdemeanor offenses if the defendant does not request a report and the judge agrees, or if “the judge finds that there is sufficient information in the record to permit the meaningful exercise of sentencing discretion and the judge explains this finding on the record.” Tex.Code Crim. Proc. Ann. art. 42.12, § 9(a), (b) (Vernon Supp.2009). In this case, the court not only failed to order a presentence investigation report as requested, but it also failed to make a finding on the record that no presentence investigation report was necessary or explain why it was not necessary. Accordingly, the trial court erred by not ordering a presentence. investigation report.

Because the error relates to a statutory requirement, it is non-constitutional error, and we will reverse the judgment only if the error affected Gutierrez’s “substantial rights.” See Whitelaw v. State, 29 S.W.3d 129, 134 (Tex.Crim.App.2000); Tex.R.App. P. 44.2(b). An error does not affect a person’s substantial rights if, after reviewing the record as a whole, we determine the error had no or but a slight effect upon the outcome. See Burns v. State, 298 S.W.3d 697, 703 (Tex.App.-San Antonio 2009, pet. ref'd).

The statutory presentence report is prepared by a supervision officer and is required to include the circumstances of the offense, the amount of restitution due any victim, the defendant’s criminal and social history, and a “proposed client supervision plan describing programs and sanctions that the community supervision and corrections department would provide the defendant if the judge suspended the imposition of the sentence or granted deferred adjudication.” Tex.Code Crim. Proc. Ann. art. 42.12, § 9(a) (Vernon Supp. 2009). Here, the trial judge was aware of the circumstances surrounding the offense because she presided over the jury trial. The trial judge was also aware of Gutierrez’s criminal and social history because Gutierrez testified at the punishment hearing. Because there is no victim, restitution is not a factor in this case. However, because there was no presentence investigation report, the trial judge was not provided with the required “proposed client supervision plan.” Without a “proposed client supervision plan” outlining the programs and sanctions available through the community supervision and corrections department to Gutierrez, the trial judge did not have before her all the information required by statute for her consideration before imposing sentence. If the judge believed there was “sufficient information in the record to permit the meaningful exercise of sentencing discretion,” see Tex. Code Crim. Proc. Ann. art. 42.12, § 9(a), (b) (Vernon Supp.2009), she could forego ordering a presentence investigative report; however, if she did so, the statute required her to explain this finding on the record. Because the statute requires the trial court to explain the finding on the record and the trial court did not, we cannot simply presume the trial judge knew what programs and sanctions would be made available to Gutierrez if she gave him community supervision. Nor can we presume the lack of such information did not affect the outcome. Therefore, we find the error harmful, and reverse and remand for a new sentencing hearing.

Conclusion

The trial court’s judgment is reversed as to punishment, and the cause is remanded to the trial court for a new punishment hearing. In all other aspects the judgment is affirmed.

Dissenting opinion by: STEVEN C. HILBIG, Justice.

STEVEN C. HILBIG,

Justice, dissenting.

I agree with the majority’s analysis and resolution of all issues except for the majority’s conclusion that the trial court’s error in failing to order a presentence investigation affected appellant’s substantial rights. I believe that under the facts of this case, the error did not affect his substantial rights.

A non-constitutional error does not affect a defendant’s substantial rights if, after examining the entire record, a reviewing court “has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict.” Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.2004). In conducting a harm analysis, we are to consider the “character of the error and its relationship to other evidence.” Schutz v. State, 63 S.W.3d 442, 444 (Tex.Crim.App.2001).

The majority concludes Gutierrez was harmed because the trial judge failed to comply with the Texas Code of Criminal Procedure by either having a presentence report prepared or explaining on the record why she had sufficient information to permit the “meaningful exercise of sentencing discretion.” Tex.Code Crim. Proc. Ann. art. 42.12 § 9 (Vernon Supp.2009). The majority acknowledges the trial judge had sufficient information about the circumstances of the offense and Gutierrez’s criminal and social history, but concludes the trial court erred because it did not have before it a “proposed client supervision plan describing programs and sanctions that the community supervision and corrections department would provide the defendant if the judge suspended the imposition of the sentence or granted deferred adjudication.” See id. § 9(a). Without further analysis or explanation, the majority simply holds it cannot not either presume the judge had knowledge of such programs and sanctions or that Gutierrez was not harmed by such lack of knowledge. This is the point where I diverge from the majority’s analysis.

Gutierrez would be harmed if the trial judge’s lack of knowledge of programs and sanctions available under a sentence of community supervision caused the trial judge to not grant Gutierrez probation. Stated another way, the majority’s holding necessarily implies that the judge’s lack of knowledge of such programs and sanctions had a substantial and injurious effect upon his sentence. However, this presumes the trial judge would have considered probation a viable sentencing option. This was hardly likely based on the evidence in the record. There was evidence at the punishment hearing that Gutierrez had three pri- or convictions for driving while intoxicated. Despite trial testimony that he had consumed eight beers the night of his arrest, Gutierrez testified during the punishment hearing that he was not intoxicated that night and he disagreed with the jury’s verdict because he was “not drunk.” It is highly unlikely a judge would sentence an unremorseful, fourth-time DWI offender to probation, regardless of any available program or sanction.

And this court can certainly take judicial notice of the trial judge’s experience. An appellate court may take judicial notice of a fact without a request from the parties. See Tex.R. Evid. 201; Zarychta v. State, 44 S.W.3d 155, 165 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd), cert. denied, 535 U.S. 1105, 122 S.Ct. 2312, 152 L.Ed.2d 1066 (2002). Judge Chapman served for eight years as the judge of a county court-at-law in Comal County, stepping down from that bench in 2006. Since that time she has served as a visiting judge in Bexar County on several occasions. A simple search of our court records indicates that this court has handled at least five criminal matters where Judge Chapman served as a visiting judge in the county courts-at-law in Bexar County. From her service as a judge, it is reasonable to infer that Judge Chapman has knowledge of the programs and sanctions available to DWI offenders in conjunction with a sentence of community supervision. See VanNortrick v. State, 227 S.W.3d 706, 709-10 (Tex.Crim.App.2007) (discussing appropriate inferences reviewing court may draw from record when conducting a harm analysis).

Based on the record as a whole, I would hold that the trial court’s failure to have the presentence report and its “proposed client supervision plan” did not affect Gutierrez’s sentence and therefore did not affect his substantial rights. Accordingly, I would affirm the judgment of the trial court.


author: MARIALYN BARNARD, Justice.

text:
    Ruben MORENO, Appellant, v. The STATE of Texas, Appellee.
    No. 04-10-00007-CR.
    Court of Appeals of Texas, San Antonio.
    July 21, 2010.
    Ruben Moreno, Raymondville, TX, pro se.
    Larry Dean Bloomquist, First Assistant County Attorney, Seguin, TX, for Appel-lee.
    Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by:

MARIALYN BARNARD, Justice.

In 2002, appellant Ruben Moreno pleaded nolo contendere to the offense of delivery of marijuana pursuant to a plea bargain agreement. Pursuant to the plea agreement, the trial court sentenced him to ten years confinement, but in lieu of confinement, placed appellant on community supervision for a term of ten years. In 2009, the State filed its third motion to revoke appellant’s community supervision. The State ultimately alleged appellant violated seven conditions of probation. In response, appellant signed a “Stipulation and Judicial Confession” in which he pled true to violating six of the seven conditions asserted in the State’s motion to revoke. In addition to pleading true to numerous probation violations, appellant also waived numerous rights, including his right to appeal.

The trial court revoked appellant’s probation, and sentenced him to ten years confinement in the Texas Department of Criminal Justice-Institutional Division. The trial court completed a certification of the defendant’s right to appeal pursuant to rule 25.2(d). See Tex.R.App. P. 25.2(d). In that certification, the trial court stated appellant had waived his right to appeal. It appeared the waiver was invalid because according to the record before this court, it was not made pursuant to an agreement on sentencing, or made post-sentencing. Compare Blanco v. State, 18 S.W.3d 218, 220 (Tex.Crim.App.2000) with Ex parte Thomas, 545 S.W.2d 469, 470 (Tex.Crim.App.1977). Accordingly, we ordered the trial court to amend its certification. See Tex.R.App. P. 25.2(f).

When the trial court filed its amended certification, the trial court also included a statement that appellant orally waived his right to appeal “at the conclusion of the revocation hearing and sentencing.” According to the trial court, the waiver was made in open court, under oath, and with counsel present. Subsequently, the State filed a motion asking this court to (1) reconsider our order requiring the trial court to amend the certification, and (2) strike the amended certification. The State also filed a motion to dismiss the appeal based on appellant’s waiver. Given the information provided this court in the trial court’s amended certification regarding appellant’s oral waiver, we granted the State’s motion to reconsider and motion to strike and ordered our February 10, 2010 order withdrawn and the trial court’s amended certification stricken. We further ordered appellant to show cause why this appeal should not be dismissed based on the waiver of appeal. We stated that if appellant did not show cause why this appeal should not be dismissed, we would dismiss the appeal. Appellant did not file a response to our show cause order.

In Monreal v. State, the court of criminal appeals held that “[a] valid waiver of appeal, whether negotiated or non-negotiated, will prevent a defendant from appealing without the consent of the trial court.” 99 S.W.3d 615, 622 (Tex.Crim.App.2003). However, the court of criminal appeals has also held that pre-sentencing waivers of the right to appeal are not “valid” because they cannot, as a matter of law, be made knowingly, voluntarily, and intelligently. Thomas, 545 S.W.2d at 470. In Blanco, the court distinguished Thomas. Blanco, 18 S.W.3d at 220. In Blanco, after a jury convicted the defendant but before sentencing, the defendant and the State entered into an agreement by which the State promised to recommend a sixteen-year sentence. Id. In exchange, the defendant promised not to appeal his conviction. Id. The court of criminal appeals held the defendant in Blanco waived his right to appeal despite the fact it was made pre-sentencing because unlike the defendant in Thomas, the defendant in Blanco bargained for a sentencing recommendation in exchange for his waiver of the right to appeal, which was honored by the trial court. Id. Thus, pursuant to the court’s holdings in Monreal, Thomas, and Blanco, a waiver of the right to appeal is valid, i.e., knowingly, voluntarily, and intelligently made, when the waiver is made subject to a bargained for sentencing recommendation, which is subsequently followed by the trial court, or when the waiver is made post-sentencing. A waiver is valid under those circumstances because in both instances the defendant, at the time of the waiver, knows the likely consequences of the waiver. See Tufele v. State, 130 S.W.3d 267, 270 (Tex.App.-Houston [14th Dist.] 2004, no pet.). In this case, as noted above, the trial court has advised this court in writing that appellant made an oral waiver of his right to appeal after the trial court imposed a ten year sentence. Because the waiver was made after sentencing, appellant, like the defendant in Monreal, knew the consequences of the waiver. This rendered his waiver valid, i.e., it was knowingly, voluntarily, and intelligently made. The fact that the waiver was oral rather than written is of no consequence. See Delatorre v. State, 957 S.W.2d 145, 149 (Tex.App.-Austin 1997, pet. ref'd) (holding written or oral waiver prevents defendant from appealing as long as waiver was made knowingly, intelligently, and with certainty as to what punishment would be assessed).

Based on the foregoing, we hold appellant has waived his right to appeal. Accordingly, we grant the State’s motion to dismiss the appeal and the appeal is dismissed.

      . No reporter’s record has been filed in this case. Thus, when we ordered the trial court to amend its certification, we where unaware of any oral waiver of the right to appeal.