author: SARAH B. DUNCAN, Justice.

text:
    WELL SOLUTIONS, INC., Appellant, v. Ross STAFFORD, Jr. d/b/a/ Superior Trailer Sales, Appellee.
    No. 04-00-00001-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 29, 2000.
    Rehearing Overruled Nov. 15, 2000.

      Kenneth G. Engerrand, Michael A. Var-ner, Brown, Sims, Wise & White, P.C., Houston, for Appellant.
    Mario P. Bordini, Mata & Bordini, Inc., San Antonio, Patricia Alvarez, Alvarez & Notzon, L.L.P., Laredo, for Appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

SARAH B. DUNCAN, Justice.

Well Solutions, Inc. appeals the summary judgment against it in its suit against Ross Stafford, Jr. d/b/a Superior Trailer Sales. We reverse the trial court’s judgment and remand the cause for further proceedings.

Factual and Procedural Background

On January 20, 1997, Roland Benavides was driving a truck and towing a line heater mounted on a trailer. An accident occurred in which Roland’s passenger, his brother Raul, was killed. After the accident, the survivors and estate of Raul Be-navides filed Cause No. 16,831 in the 229th Judicial District Court of Duval County against Dawson Production Services, Inc., Well Solutions, Inc., and others. After that litigation was resolved, Roland Bena-vides and his wife Lamar sued Well Solutions, Inc. for their injuries arising out of the same accident. Well Solutions filed a third-party claim, alleging Ross Stafford, Jr. d/b/a Superior Trailer Sales manufactured the trailer involved in the accident. Superior Trailer answered and moved for summary judgment under Texas Rule of Civil Procedure 166a(c) and (i). Superior Trailer supported its motion with affidavits establishing it did not manufacture the trailer. Well Solutions responded, attaching deposition excerpts and an affidavit from Cause No. 16,831 and uncertified copies of records of the Texas Department of Public Safety and the Texas Department of Public Transportation. Superior Trader objected to this evidence, arguing it was inadmissible hearsay and incompetent. However, these objections were not ruled upon by the trial court orally at the hearing, in a written order, or in the summary judgment. The trial court granted Superi- or Trailer’s motion.

Standard of Review

We review a summary judgment de novo. Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex.App.—San Antonio 1997, writ denied). Accordingly, we will uphold a traditional summary judgment only if the summary judgment record establishes the absence of a genuine issue of material fact, and the movant is entitled to summary judgment on a ground set forth in the motion. Id. In deciding whether the summary judgment record raises a genuine issue of material fact, we view as true all evidence favorable to the respondent. Id.

Discussion

As Superior Trailer appears to concede, Well Solutions’ summary judgment evidence raises a material issue of fact as to whether Superior Trailer manufactured the trailer. For example, David Briley testified on deposition in the wrongful death case that he knew the trailer was manufactured by Superior Trailer. Thus, Superior Trailer argues we may not consider Well Solutions’ summary judgment evidence. We disagree.

Failure to Obtain Rulings

Well Solutions argues Superior Trailer waived all objections to the form of its summary judgment evidence because it failed to obtain rulings. We agree.

As a general rule, a complaint is preserved for appellate review only if the record establishes the complaint was made known to the trial court in a timely manner, and the trial court ruled on the complaint. See Tex.R.App. P. 33.1(a). Until recently, it was well settled that the trial court’s rulings on objections to summary judgment evidence were required to be express and in writing. E.g., Utilities Pipeline Co. v. American Petrofina Mktg., 760 S.W.2d 719, 722-23 (Tex.App. —Dallas 1988, no writ). Effective September 1, 1997, however, the Texas Rules of Appellate Procedure were amended to permit a trial court’s ruling to be either express or implicit. Tex.R.App. P. 33.1(a)(2)(A). A ruling is implicit if it is unexpressed but capable of being understood from something else. WebsteR’s ThiRd New International Dictionary 1135 (1981).

Superior Trailer argues the trial court implicitly granted its objections because it granted its motion for summary judgment. In support of its argument, Superior Trailer relies upon Salinas v. Rafati, 948 S.W.2d 286 (Tex.1997). We believe this reliance is misplaced. In Salinas, the trial court granted the defendants’ motion to disregard certain jury findings and did not expressly rule on the plaintiffs’ motion for Judgment on those findings. Id. at 288. Because there was no express ruling on the plaintiffs’ motion, the defendants argued the plaintiff had waived any error. Id. The supreme court disagreed, holding the order granting the defendants’ motion to disregard “automatically” denied the plaintiffs’ motion for judgment on those findings. Id. This is of course necessarily true. The trial court could not have granted the defendants’ motion to disregard without also denying the plaintiffs’ motion for judgment on those findings.

Superior Trailer also relies upon two decisions by the Fort Worth Court of Appeals—Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.App.—Fort Worth 1999, pet. denied), and Blum v. Julian, 977 S.W.2d 819, 823-24 (Tex.App.—Fort Worth 1998, no pet.). In Blum, the Fort Worth Court of Appeals extended Salinas to objections to summary judgment proof, holding the trial court implicitly overruled the plaintiffs objections to the defendant’s summary judgment proof when it granted the defendant’s motion for summary judgment. Blum, 977 S.W.2d at 823-24. Similarly, in Frazier, the court held the trial court implicitly sustained the defendant’s objections when it granted his motion for summary judgment. Frazier, 987 S.W.2d at 610. See also Harris v. Spires Council of Co-Owners, 981 S.W.2d 892, 898-99 (Tex. App.—Houston [1st Dist.] 1998, no pet.) (O’Connor, J., dissenting) (“By granting the motion for summary judgment, the trial court implicitly sustains the objections made by the movant and overrules those made by the non-movant.”). We cannot agree with this reasoning.

Granting a motion to disregard certain jury findings necessarily implies the denial of a motion for judgment on those findings. The two motions are alternatives and thus present an either-or situation. If the trial court grants the former, it must deny the latter. But rulings on a motion for summary judgment and objections to summary judgment evidence are not alternatives; nor are they concomitants. Neither implies a ruling — or any particular ruling — on the other. In short, a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not “capable of being understood” from the ruling on the motion for summary judgment. We therefore reject the reasoning in Blum and Frazier. We instead align ourselves with the Fourteenth Court of Appeals. See Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex.App.—Houston [14th Dist.] 2000, no pet. h.) (“Unlike other courts faced with similar situations, we cannot infer from the record in this case that the trial court implicitly overruled or implicitly sustained appellants’ objections.”).

Substantive v. Formal Defects

Superior Trader next argues its objections went to the substance of Well Solutions’ summary judgment proof; therefore, it may raise these objections for the first time on appeal. We again disagree.

“While the rule requires a party to object to defects in the form of an affidavit, defects in the substance of the proof are not waived despite the lack of an objection.” Timothy Patton, SummaRY Judgments in Texas § 6.09[l][b], at 86 (2d ed.1996); see Tex.R. Civ. P. 166a(f). Purely formal defects may not be raised for the first time on appeal. Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 234 (Tex.1962). The defect is purely formal if the factual statements in an affidavit are “not obviously based on hearsay.” Id.; see Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645 (Tex.1995).

As mentioned above, David Bri-ley testified that he knew that Superior Trailer manufactured the trailer. Superi- or Trailer objected to Briley’s deposition on two grounds. First, the deposition was taken in the wrongful death case and is therefore hearsay as to Superior Trader, which was not a party or in privity with any party in the wrongful death case. See Tex.R. Evid. 801(e)(3); Tex.R. Civ. PROC. 203.6(c). This is at most a defect of form. Like an affidavit, the deposition excerpt constitutes “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” Tex. Gov’t Code Ann. § 312.011(1) (Vernon 1998). Superior Trader also objected to Briley’s deposition excerpt because it does not establish the foundation for Briley’s statement. However, this, too, is a purely formal defect. See Leggat, 904 S.W.2d at 645-46.

Mother Hubbard Clause

Finally, Superior Trader argues the trial court overruled its objections to Well Solutions’ summary judgment evidence by including a Mother Hubbard clause in the summary judgment. We disagree. A Mother Hubbard clause operates on claims, not objections to summary judgment evidence. See Mafrige v. Ross, 866 S.W.2d 590, 592 n. 1 (Tex.1993).

Conclusion

By fading to obtain rulings, Superior Trader waived its objections to the form of Wed Solutions’ summary evidence. We may therefore consider the excerpt from the deposition of David Brdey, which raises a fact issue as to whether Superior Trailer manufactured the trader at issue. Accordingly, we reverse the trial court’s judgment and remand the cause for further proceedings.


source: Caselaw Access Project

author: KAREN ANGELINI, Justice. CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice,

license: Public Domain

text:
    In the Interest of S.F., a Child.
    No. 04-99-00751-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 29, 2000.

      Virginia E. Maurer, San Antonio, for Appellant.
    Kevin P. Yeary, Asst. Crim. Dist. Atty., Maureen Lianas (Ad Litem), San Antonio, Kimberly K. Kreider (Ad Litem), Law Office of Kimberly Kreider, San Antonio, for Appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

KAREN ANGELINI, Justice.

Brian Hanes appeals the termination of his parental rights to S.F. In three issues, he complains the evidence was factually insufficient to support the termination. We disagree with his assertions and affirm the trial court’s judgment.

Factual and Procedural Background

The Department of Protective and Regulatory Services first began its investigation into the well-being of Diana Fabela in April, 1998. During this investigation, Maria Fabela, Diana’s mother, gave birth to S.F. After initially naming another man as S.F.’s father, Maria identified Brian Hanes as the child’s father. It is undisputed that Hanes and Maria conceived S.F. while Hanes was in prison. Hanes signed an affidavit of paternity.

The Department eventually brought suit to terminate Maria’s parental rights to Diana. In its third amended petition, the Department added S.F. to the suit, seeking to terminate the parents’ rights to both children. In its petition, the Department alleged that Hanes engaged in conduct or knowingly placed S.F. with persons who engaged in conduct that endangered the physical or emotional well-being of the child, and that termination was in the child’s best interest. See Tex.Fam.Code Ann. §§ 161.001(1)(D), 161.001(1)(E), 161.001(2) (Vernon Supp.2000). Maria voluntarily relinquished her rights to the children, and the trial court terminated Hanes’s parental rights to S.F. on the grounds alleged. The court signed the termination decree and filed findings of fact and conclusions of law upon Hanes’s request.

In three issues, Hanes asserts that the evidence is factually insufficient to support the trial court’s findings supporting the termination of his parental rights. We find, however, there is factually sufficient evidence to support the trial court’s subsection (1)(E) finding. Accordingly, we need not address the sufficiency of the evidence under section 161.001(1)(D) because only one finding alleged under section 161.001(1) is necessary to a judgment of termination. See In the Interest of R.D., 955 S.W.2d 364, 367 (Tex.App.—San Antonio 1997, writ denied). Hanes does not challenge the trial court’s finding that termination is in the best interest of the child.

Standard of Review

The Texas Family Code, in order to protect the relationship between a parent and child, requires a showing by clear and convincing evidence that the parent in question behaved in some manner that was detrimental to the child. Tex.Fam.Code Ann. § 161.001 (Vernon Supp.2000). This intermediate standard colors our review of the factual sufficiency of the evidence in a termination case. See In the Interest of B.T., 954 S.W.2d 44, 46 (Tex.App.—San Antonio 1997, writ denied). Applying this standard to our review of a trial judge’s findings, we ask whether sufficient evidence was presented to produce in the mind of a rational fact finder a “firm belief or conviction as to the truth of the allegations sought to be established.” See Tex. Fam Code Ann. § 101.007 (Vernon Supp. 2000); In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980).

Termination of Parental Rights Under Subsection (1)(E)

To terminate the parental relationship under section 161.001 (1)(E), the State must prove by clear and convincing evidence that the parent “engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.” See Tex.Fam.Code Ann. § 161.001(1)(E) (Vernon Supp.2000). Subsection (E) allows for termination upon a showing that the parental conduct itself caused the endangerment to the child. See In the Interest of R.D., 955 S.W.2d at 367. This endangering act need not be directed at the child, or have caused an actual injury or threat of injury to the child, but may instead be satisfied by showing the parent in question engaged in a course of conduct that endangered the child’s physical or emotional well-being. See id. at 368.

In order to terminate the relationship between Hanes and S.F., the Department had to prove that Hanes engaged in conduct which endangered S.F.’s physical or emotional well-being. See Tex.Fam.Code Ann. § 161.001(1)(E) (Vernon Supp.2000). The Department presented the testimony of two witnesses in order to satisfy its burden. The first witness to testify was Gloria Ybanez, the family worker assigned to the Fabela family. Ms. Ybanez initially testified about Hanes’s criminal history. She explained that at the time of the termination hearing, Hanes was incarcerated in Oklahoma for one of the fifteen crimes Hanes has been convicted of. Hanes’s convictions are for offenses involving drugs, forgery, and burglary. She further testified that there was a possibility that upon his release, Hanes faced parole and probation revocations in other places, such as Tarrant County, Texas and Sherman, Texas.

Ms. Ybanez additionally discussed Hanes’s discipline problems while he has been incarcerated. First, she explained that Hanes and Maria engaged in sexual intercourse on the prison grounds during a visitation, which resulted in the conception of S.F. She also testified that Hanes had been punished for being outside of the designated visitation area during visitation hours, that he was disciplined for drug possession, and that after administering a drug test, traces of marijuana were found in Hanes’s system.

Ms. Ybanez additionally opined that Hanes could not properly parent the child and that termination would be in S.F.’s best interests. Her conclusions were based in part on the fact that Hanes had not participated with the agency in developing a plan of service, had not responded to the plan of service sent to him, or corresponded with her in any way, and had no viable plan for caring for the child. Later, Ybanez stated that Hanes had signed and returned the service plan. The only requirement, however, was that Hanes sign the affidavit of paternity, which he did. She also explained that the fact that Hanes had taken no interest in S.F., had not provided any financial support for the child, or sent any birthday cards or gifts for S.F. led her to formulate her opinions. Ms. Ybanez testified that, other than suggesting his mother as a possible placement, he has done nothing for the benefit of his child.

The State’s second witness was Tina Lanpher-Pelletier, S.F.’s foster mother. Mrs. Lanpher-Pelletier’s testimony related to S.F.’s half sister, Diana’s account of what occurred on prison grounds between her mother and Hanes. Diana told Mrs. Lanpher-Pelletier that she went to a prison facility with her mother, who carried drugs in her own vagina into the prison, and then had sex with Hanes while the other prisoners stood guard around the couple. Diana would also carry drugs in her pockets into the prison. Previously, in referencing this conduct, Ms. Ybanez stated that she believed S.F. would be endangered by witnessing such inappropriate behavior at a prison facility. Mrs. Lanpher-Pelletier further testified that Diana had described to her the conditions of Hanes’s mother’s home in which she lived at one time. Diana told her that Hanes’s mother had hit her on several occasions and that Hanes’s mother engaged in inappropriate sexual activity with her own son. According to Ms. Ybanez, Hanes had suggested that S.F. be placed with his mother. And, the Department had conducted a home study and determined that Hanes’s mother’s home was not a suitable home for S.F.

Hanes asserts that this evidence was insufficient to support the “endangerment” requirement of section 161.001(1)(E). He specifically alleges that the Department must have shown “that the conditions, or conduct, posed a real threat of injury or harm not just a speculative one.” We disagree. Although imprisonment, standing alone, does not constitute “engaging] in conduct which endangers the emotional or physical well-being of the child,” it is a fact for the trial court to consider on the issue of endangerment. See Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex.1997); In the Interest of B.S.T., 977 S.W.2d 481, 485 (Tex.App.—Houston [14th Dist.] 1998, no pet.). If the evidence, including imprisonment, proves a course of conduct that has the effect of endangering the child, the requirement of 161.001(1)(E) is met. Id. The State need not show incarceration was a result of a course of conduct endangering the child; it need only show incarceration was part of a course of conduct endangering the child. Id. It is inconsequential that the parental conduct considered in a termination proceeding occurred before the child’s birth. Rather, courts look to what the parent did both before and after the child’s birth to determine whether termination is necessary. See In the Interest of Stevenson, 27 S.W.3d 195, 202-03 (Tex.App.—San Antonio 2000, no pet. h.); Avery v. State, 963 S.W.2d 550, 553 (Tex.App. —Houston [1st Dist.] 1997, no writ).

At the time of the termination hearing, Hanes was incarcerated in Oklahoma for one of the fifteen crimes he has been convicted of. The evidence showed that there is a possibility that upon his release, Hanes faces parole and probation revocations upon his release from prison and has faced multiple disciplinary actions during his incarceration. Hanes’s criminal behavior before his imprisonment and S.F.’s birth, along with his continued misbehavior during his prison stay shows Hanes has engaged in a course of conduct that would be detrimental to S.F.

We find this evidence was factually sufficient to produce in the mind of the trial judge a firm belief that by his course of conduct, Hanes’s behavior endangered S.F.’s physical or emotional well being. The evidence was accordingly sufficient to support the trial court’s termination of Hanes’s parental rights to S.F.

Findings of Fact

Hanes challenges several of the trial court’s findings of fact, asserting that they are unsupported by facts in evidence. We may review findings made by a trial judge to determine whether they are supported by factually sufficient evidence. See Lucas v. Texas Dept. of Protective and Regulatory Serv’s, 949 S.W.2d 500, 502 (Tex.App.—Waco 1997, writ denied) (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989)). However, where we have a complete transcript of the proceedings before us, we do not view the trial court’s written findings as conclusive. See id. Instead, we review the entire record and will not reverse an otherwise correct judgment simply because of an erroneous finding. See id. We must therefore affirm the judgment even if the court’s findings lack sufficient evidentiary support, if the record contains sufficient evidence to do so. See id. Although Hanes’s assertions are partially correct, the entire record supports the trial court’s judgment of termination. We therefore cannot reverse on this ground and overrule his issue. See Lucas, 949 S.W.2d at 502.

Conclusion

We find there is sufficient evidence supporting the trial court’s finding under Texas Family Code section 161.001(1)(E). We therefore overrule Hanes’s three issues and affirm the trial court’s judgment of termination.

Concurring Opinion by CATHERINE STONE, Justice.

Concurring opinion by SARAH B. DUNCAN, Justice.

CATHERINE STONE, Justice,

concurring.

As the majority states, “It is undisputed that Hanes and Maria conceived S.F. while Hanes was in prison.” Perhaps a more apt description is that it is unbelievable, unimaginable, and totally unacceptable that S.F. was conceived on prison grounds while her mother held the hand of her eight year old daughter and while other male inmates surrounded the couple and shielded them from the prison guards’ view.

Prisoners have no constitutionally protected right to conjugal visits with their spouse or partner during periods of incarceration. Stuart v. Heard, 359 F.Supp. 921, 924 (S.D.Tex.1973). Likewise, it has been established that authorities in charge of inmates can be subjected to criminal prosecution when they permit conjugal visits. See United States v. Marmolejo, 89 F.3d 1185 (5th Cir.1996), aff'd sub nom, Salinas v. United States, 522 U.S. 52, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) (holding that sheriff and deputy could be prosecuted for accepting bribes to allow conjugal visits in county jail). That Hanes was allowed the opportunity to engage in sexual relations with Maria on prison grounds is beyond comprehension. Even more unfathomable is Hanes’ conduct in appealing the termination and suggesting that S.F. can be placed with his mother — who has allegedly maintained an inappropriate sexual relationship with one of her other sons. This entire scenario gives new meaning to the term “frivolous appeal.” In my opinion, Hanes should be fined for pursuing a frivolous appeal, and the funds should be directed to the Department of Protective and Regulatory Services for S.F.’s benefit. The unfortunate truth is that paying such a fine would be the most generous gift Hanes could offer this child.

SARAH B. DUNCAN, Justice,

concurring.

I concur in the court’s judgment but not its opinion. There is factually sufficient evidence of post-birth conduct by Brian Hanes to support the trial court’s finding. See In re M.J.M.L., 31 S.W.3d 347 (Tex.App.—San Antonio 2000, n.p.h.) (Duncan, J., concurring) (concluding that pre-birth conduct may not be considered in determining the legal sufficiency of the evidence to support a finding under section 161.001(1)(E) of the Texas Family Code).


text:
    Pavline MORRILL, Individually and as Next Friend of Sondra Alyse Morrill, a Minor, Appellant, v. THIRD COAST EMERGENCY PHYSICIANS, P.A., Milton Shaw, M.D., and Sid Peterson Memorial Hospital, Appellees.
    No. 04-99-00819-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 11, 2000.
    Rehearing Overruled Nov. 15, 2000.

      John N. Mastín, San Antonio, for Appellant.
    Fred E. Davis, Davis & Davis, P.C., Austin, M. Scott Stehling, Kerrville, for Appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by:

SARAH B. DUNCAN, Justice.

Pavline Morrill, individually and as next friend of her daughter, Sondra Alyse Mor-rill, appeals the trial court’s judgment dismissing her medical malpractice action against Third Coast Emergency Physicians, Dr. Milton Shaw, and Sid Peterson Memorial Hospital. The issue is whether Morrill’s expert report is sufficient to satisfy the requirements of the Texas Medical Malpractice Liability Act. We hold the report is sufficient as to Dr. Shaw only. We therefore reverse the trial court’s judgment dismissing Morrill's claims against Dr. Shaw and remand these claims for further proceedings. In all other respects, the trial court’s judgment is affirmed.

Factual and Procedural Background

Morrill alleges Sondra was negligently diagnosed and treated by Shaw at the Hospital’s emergency room, which was staffed by Third Coast pursuant to a contract with the Hospital. Within one hundred and eighty days of filing suit, Morrill served the defendants’ attorneys with a copy of a report by Donald J. Gordon, Ph.D., M.D. According to this report, Dr. Gordon is a licensed physician who has practiced in Bexar County and specialized in emergency medicine for the past twenty years; he has supervised the emergency medicine education of medical students and emergency medical technicians for the past twenty years in South Texas; and he has served as the EMS medical director for the last thirteen years.

Dr. Gordon’s report also states that, as a result of his training, reading, and medical practice, he has knowledge of the proper care and emergency treatment of patients of all ages presenting to an emergency room with acute infectious illnesses. He also has knowledge of accepted standards of care for the emergency diagnosis, emergency care, and emergency treatment of bacterial meningitis, the condition affecting Sondra on the date in question. Dr. Gordon goes on to state his “preliminary opinion”:

Dr. Milton Shaw, M.D., caused injury to Sandra [sic] Alyse Morrill by not immediately recognizing the likely medically [sic] probability of bacterial meningitis, by not diagnosing bacterial meningitis, by not ordering blood and spinal fluid cultures, by not immediately beginning a course of antibiotic therapy, by not admitting Sandra [sic] Morrill to the hospital, and by not arranging for appropriate care of Sandra [sic] Morrill. Pending a review of other pertinent documentation in this case, I am unable to ascertain at this time whether I will have additional opinions regarding the medical negligence of Dr. Milton Shaw in this case. At this time, I am convinced that the delay in care of Sandra [sic] Morrill caused by those actions or omissions delayed her treatment resulted in injury to her.

Following this preliminary opinion, Dr. Gordon’s report reviewed the medical records with which he had been provided. Dr. Gordon was particularly critical of Dr. Shaw for sending one tube of spinal tap fluid for CIE tests, rather than cultures. According to Dr. Gordon, CIE tests:

are notoriously less reliable for diagnosis than are cultures. Directogen (CIE) tests have some measure of value only when positive and are used to assist in choosing an appropriate antibiotic until the cultures come back. Sandra’s [sic] CSF was negative by bacterial CIE analysis. Unfortunately, false negatives and positives are common with these tests which explain why they are of little value for screening for bacterial meningitis. Also, commonly, tube # 4 or 2 are sent for gram stain. This was apparently not done in this case but Dr. Shaw’s note states that, “Cultures are pending at this time.” There are no laboratory reports in the records which I reviewed to indicate that cultures were requested or completed on Sandra [sic] Morrill’s CSF.

Dr. Gordon’s report concludes:

SUMMARY:
I am familiar with some of the facts and situations giving rise to this claim. As a result of this, it is my preliminary belief that serious breaches of the standards of care involving appropriate examination, documentation, laboratory testing, diagnosis, treatment involving the care of Sandra [sic] Morrill on July 29, 1997 by Dr. Milton Shaw, M.D., and that she was severely harmed and suffered serious injury as a direct result.
Additionally, it is my belief that Dr. Milton Shaw, MD, placed persons who had close contact with Sandra [sic] Mor-rill in jeopardy due to his failure to perform cultures and his failure to admit Sandra [sic] Morrill to the hospital with a clinical diagnosis of bacterial meningitis. His reliance on CIE tests was clearly below the standard of care both for the patient and for the public health. It is my firm belief that in this case, his management was medically negligent and certainly not in keeping with the standard of care for this patient.

After receiving Gordon’s report, the defendants moved to dismiss Morrill’s action because Gordon was not a qualified expert, and his report failed to comply with the requirements of section 13.01(d) and (r) of article 4590i. After a hearing, the trial court dismissed Morrill’s action with prejudice.

Standard of Review

We review the trial court’s dismissal order under an abuse of discretion standard. Wood v. Tice, 988 S.W.2d 829, 830 (Tex.App.—San Antonio 1999, pet. denied). Under this standard, a reviewing court may not disturb the trial court’s resolution of factual issues, even if the reviewing court would have decided the issue differently, unless the resolution is shown to be arbitrary and unreasonable. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992). A trial court’s resolution of a factual issue is arbitrary and unreasonable if the relator establishes that the trial court could reasonably have reached only one decision. Id. at 840. However, “[a] trial court has no ‘discretion’ in determining what the law is or applying the law to facts.” Id. Thus, the failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.

Applicable Law

Section 13.01(d) of article 4590i provides:

(d) Not later than the later of the 180th day after the date on which a health care liability claim is filed or the last day of any extended period established under Subsection (f) or (h) of this section, the claimant shall, for each physician or health care provider against whom a claim is asserted:
(1) furnish to counsel for each physician or health care provider one or more expert reports, with a curriculum vitae of each expert listed in the report; or
(2) voluntarily nonsuit the action against the physician or health care provider.

Tex.Rev.Civ.StatAnn. art. 4590i, § 13.01(d) (Vernon Supp.1999). “ ‘Expert report’ means a written report by an expert that provides a fair summary of the expert’s opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed.” Id. § 13.01(r)(6). “A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent a good faith effort to comply with the definition of an expert report in Subsection (r)(6) of this section.” Id. § 13.01(i). If a claimant fails to file the required expert report timely, the trial court may grant an extension:

Notwithstanding any other provision of this section, if a claimant has failed to comply with a deadline established by Subsection (d) of this section and after hearing the court finds that the failure of the claimant or the claimant’s attorney was not intentional or the result of conscious indifference but was the result of an accident or mistake, the court shall grant a grace period of 30 days to permit the claimant to comply with that subsection. A motion by a claimant for relief under this subsection shall be considered timely if it is filed before any hearing on a motion by a defendant under Subsection (e) of this section.

Id. § 13.01(g).

Gordon’s Qualifications

Morrill contends the trial court erred in dismissing her claims on the ground that Gordon did not possess the requisite expertise to render an expert report, if it did so. We agree. Dr. Gordon meets the definition of an “expert” for purpose of section 13.01. See id. §§ 13.01(r)(5)(A) and (B), 14.01.

Adequacy of Gordon’s Report

Morrill argues the trial court erred in dismissing her claims on the ground that Gordon’s report fails to comply with sections 13.01(d) and 13.01(r)(6). We agree in part.

Dr. Shaw

In his motion to dismiss, Dr. Shaw argued Dr. Gordon’s report fails to set forth the applicable standard of care or to allege how Dr. Shaw breached the applicable standard of care. We disagree. Throughout his report, Dr. Gordon states what should have been done in terms of examination, documentation, testing, diagnosis and treatment and points out how Dr. Shaw’s actions fell short. Further, Dr. Gordon’s report specifically states Dr. Shaw’s “reliance on CIE tests was clearly below the standard of care both for the patient and for the public health.” Dr. Shaw also contends Dr. Gordon’s report fails to establish causation. We again disagree. Dr. Gordon’s report specifically states “the delay in care of Sandra [sic] Morrill caused by [the acts and omissions noted in his report] resulted in injury to her.” We therefore reverse the trial court’s judgment insofar as it dismisses Morrill’s claims against Dr. Shaw and remand these claims for further proceedings.

Third Coast and The Hospital

Morrill also argues Gordon’s report details the deviations from the standard of care by Third Coast and the Hospital. We disagree. Nowhere in the report does Gordon state the standard of care applicable to these health care providers or allege a breach of the standard. See id. § 13.01(r)(6); see also Wood v. Tice, 988 S.W.2d 829, 831 (Tex.App.—San Antonio 1999, pet. denied) (“The report must specifically refer to the defendant and discuss how that defendant breached the applicable standard of care.”) (citing Horsley-Layman v. Angeles, 968 S.W.2d 533, 535 (Tex.App.—Texarkana 1998, no pet.)).

30-Day Grace Period

Morrill contends the trial court erred in denying her the thirty-day grace period permitted by section 13.01(g). She contends she complied with the statute by filing a motion before the dismissal hearing. However, no such motion is contained in the record. We therefore overrule Morrill’s second point of error. See Tex.Rev.Civ.StatAnn. art. 4590i, § 13.01(g).

Constitutionality of Expert Report Requirement

Finally, Morrill argues the requirement that she file an expert report violates her state and federal constitutional rights. However, Morrill did not raise her constitutional claims in the trial court, and they are waived. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993). We therefore overrule Morrill’s third point of error.

Conclusion

Morrill failed to file an expert report addressing her claims against Third Coast Emergency Physicians and Sid Peterson Memorial Hospital. We therefore affirm the trial court’s judgment insofar as it dismisses Morrill’s claims against these defendants. However, Morrill’s expert report sufficiently describes and supports her claims against Dr. Milton Shaw. We therefore reverse the trial court’s judgment dismissing Morrill’s claims against Dr. Shaw and remand these claims for further proceedings.


author: ALMA. L. LÓPEZ, Justice.

text:
    Juan GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 04-99-00620-CR.
    Court of Appeals of Texas, San Antonio.
    Oct. 11, 2000.

      Jose Luis Ramos, Jose Luis Ramos Law Office, Rio Grande City, for Appellant.
    Heriberto Silva, Dist. Atty., San Diego, Hilda Gonzalez, Asst. Dist. Atty., Rio Grande City, for Appellee.

      Sitting: PHIL HARDBERGER, Chief Justice, ALMA L. LÓPEZ, Justice, PAUL W. GREEN, Justice.
   OPINION

Opinion by:

ALMA. L. LÓPEZ, Justice.

A jury found the appellant, Juan Garcia, guilty of committing the offense of engaging in organized criminal activity, and assessed punishment at five years confinement. On appeal, Garcia complains that the trial court erred in denying his motion to quash the indictment and by submitting a defective charge to the jury. Because we find harmful error in the jury charge, we reverse the judgment of the trial court and remand this cause to the trial court for a new trial.

Motion to Quash Indictment

In his first issue, Garcia complains that the trial court erred in denying his motion to quash the indictment. Specifically, Garcia contends that the indictment was defective because it failed to allege that Garcia engaged in criminal activity by unlawfully possessing a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception as required by section 71.02(a)(5) of the Texas Penal Code.

Section 71.02(a)(5) of the Texas Penal Code defines “engaged in criminal activity” and provides:

(a) A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, he commits or conspires to commit one or more of the following:
5) unlawful manufacture, delivery, dispensation, or distribution of a controlled substance or dangerous drug, or unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception.

See Tex.Pen.Code Ann. § 71.02(a)(5) (Vernon Supp.2000) (emphasis added). “Combination” means three or more persons who collaborate in carrying on criminal activities. See id. § 71.01(a). “Conspires to commit” means that a person agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense and that person and one or more of them perform an overt act in pursuance of the agreement. See id. § 71.01(b). An agreement constituting conspiring to commit may be inferred from the acts of the parties. See id.

Garcia’s indictment for the offense of engaging in criminal activity declares:

... JUAN GARCIA, defendant, on or about 24th day of July, 1998, and before the presentment of this indictment, in Starr County, Texas, did then and there intentionally and knowingly possess a usable quantity of marijuana in an amount of two thousand (2000) pounds or less but more than fifty (50) pounds, and the defendant did then and there commit the offense with the intent to establish[ed], maintain, and participate in a combination and in the profits of a combination who collaborated in carrying on said criminal activity....

Garcia argues that section 71.02(a)(5) requires the State to prove that unlawful possession of a controlled substance be “through forgery, fraud, misrepresentation, or deception,” and that this statement should have been included in the indictment. See Nichols v. State, 653 S.W.2d 768, 771-72 (Tex.Crim.App.1981) (holding that a plain reading of the statute proscribing engaging in organized criminal activity limits the phrase “through forgery, fraud, misrepresentation, or deception” to unlawful possession); Utsey v. State, 921 S.W.2d 451, 457 (Tex.App.—Texarkana 1996, pet. ref'd) (noting that the phrase “through forgery, fraud, misrepresentation, or deception” applies to unlawful possession of a controlled substance or dangerous drug). In his motion to quash the indictment, Garcia did not specifically make this argument, but only generally contended that the indictment failed to state an offense against the laws of the State of Texas.

Instead of failing to state an offense, however, the indictment fails to allege every element of the charged offense. An instrument is an indictment if it is presented by a grand jury and if it purports to allege the commission of an offense, even though it omits allegations of a required element. See State v. Oliver, 808 S.W.2d 492, 493 (Tex.Crim.App.1991) (en banc); Studer v. State, 799 S.W.2d 263, 271-72 (Tex.Crim.App.1990) (en banc). The indictment need not allege every element of the offense charged to invoke the jurisdiction of the trial court. See State v. Murk, 815 S.W.2d 556, 558 (Tex.Crim.App.1991). An indictment failing to allege an element of the offense charged is flawed by a defect of substance. See Rodriguez v. State, 799 S.W.2d 301, 302 (Tex.Crim.App.1990) (en banc). Because such substantive defects in an indictment are no longer considered to be fundamental in nature, the indictment is sufficient in the absence of a pretrial objection to invoke the trial court’s jurisdiction. See id. Here, the instrument was an indictment despite the defect because it was returned by a grand jury and charged Garcia with engaging in criminal activity.

If a defendant does not object to a defect, error, or irregularity of form or substance in an indictment before the date on which the trial on the merits commences, he waives the right to object to the defect on appeal. See Tex.Code Crim. ProcANn. art. 1.14(b) (Vernon Supp.2000); Duron v. State, 915 S.W.2d 920, 921 (Tex.App.—Houston [1st Dist.] 1996), aff'd, 956 S.W.2d 547 (Tex.Crim.App.1997). Article 1.14 of the Code of Criminal Procedure requires a defendant to object, not merely file a motion to preserve error. See Mills v. State, 941 S.W.2d 204, 208 (Tex.App.—Corpus Christi 1996, pet. ref'd). The simple filing of a motion is not sufficient to bring a matter to the trial court’s attention. See Reyes v. State, 849 S.W.2d 812, 815 (Tex.Crim.App.1993) (motion for new trial must be presented); DeBlanc v. State, 799 S.W.2d 701, 709 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2912, 115 L.Ed.2d 1075 (1991) (written objections to charge must be brought to trial court’s attention); Mills, 941 S.W.2d at 208 (motion to quash must be presented before announcement of ready); Chunn v. State, 821 S.W.2d 718, 720 (Tex.App.—Houston [1st Dist.] 1991, pet. ref'd) (motion to quash must be presented before date on which trial begins). To preserve error, a defendant must present the motion before the day of trial for it to be considered timely under article 1.14(b). See Mills, 941 S.W.2d at 208.

In the instant case, Garcia filed his motion to quash the indictment on Monday, May 17,1999, and the trial began on Tuesday, May 18, 1999. The objections regarding the defective indictment, however, were not presented to the trial court until June 24, 1999, at the hearing on the motion for new trial. The trial court denied the motion for new trial on July 12, 1999. Garcia failed to present his motion to quash the indictment to the trial court before the date of trial. Under these circumstances, we conclude that Garcia failed to timely object to any defects in the indictment. See Tex.Code Crim.Proc.Ann. art. 1.14(b) (Vernon Supp.2000); see also Mills, 941 S.W.2d at 209. Because Garcia failed to timely object to any defects in the indictment, the error is waived. See Tex R.App.P. 33.1. Accordingly, we overrule this issue.

Jury Charge

In his second issue, Garcia complains that the trial court erred by submitting a jury charge that was fundamentally defective because it omitted an essential element of the offense. When reviewing charge error, we must first determine whether error actually exists in the charge. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984); Irizarry v. State, 916 S.W.2d 612, 614 (Tex.App.—San Antonio 1996, pet. ref'd). In determining whether charge error exists, we must view the charge as a whole rather than isolated statements or parts of the charge standing alone. See Holley v. State, 766 S.W.2d 254, 256 (Tex.Crim.App.1989); Washington v. State, 930 S.W.2d 695, 698 (Tex. App.—El Paso 1996, no pet.). Then we must determine whether sufficient harm resulted from the error to require reversal. See Almanza, 686 S.W.2d at 171; Irizarry, 916 S.W.2d at 614.

The application paragraph of the jury charge reads as follows:

Now, therefore, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of July, 1998, in Starr County, Texas, the defendant, Juan Garcia, with the intent to establish, maintain, or participate in a combination or in the profits of a combination, knowingly possessed a usable quantity of marihuana in an amount of two thousand (2000) pounds or less but more than fifty (50) pounds, then you will find the defendant guilty of Engaging in Organized Criminal Activity, as charged in the indictment;
Unless you find and believe beyond a reasonable doubt that the defendant is guilty, then you will find the defendant not guilty of Engaging in Organized Criminal Activity.

Garcia argues that the court failed to instruct the jury that in order to find the defendant guilty of engaging in organized criminal activity, the jury had to find and believe beyond a reasonable doubt that the defendant engaged in organized criminal activity by the unlawful possession of a controlled substance through forgery, fraud, misrepresentation, or deception. See TexPen.Code Ann. § 71.02(a)(5) (Vernon Supp.2000) (emphasis added).

Because error in the indictment was waived, we need to determine if the jury charge, which followed the language in the defective indictment, includes error. Previously, the Court of Criminal Appeals addressed how a reviewing court should review the sufficiency of the evidence when a case is tried on a defective indictment to which no objection is raised. See Fisher v. State, 887 S.W.2d 49, 55-58 (Tex.Crim.App.1994), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997); Mills, 941 S.W.2d at 210. The Court instructed that the reviewing court must ascertain from the indictment what penal provision the indictment is based upon. See Fisher, 887 S.W.2d at 55. At a minimum, the indictment must be sufficient to give notice of what offense the State is alleging so that the controlling penal provision can be identified. See id. Then, the reviewing court must compare that penal provision with the jury instruction. See id. The instruction should allege all of the elements of the offense as set forth in the controlling penal provision (including all of the elements alleged in the indictment, and any omitted element in accordance with the controlling penal provision). See id. Otherwise, the Court concluded, the charge would unconstitutionally broaden the basis upon which the State could obtain a conviction. See id. at 57. Because a charge which omits part of what must be proved also broadens the basis for obtaining a conviction, we apply this test to determine whether an error occurred.

The controlling penal provision, section 71.02(a)(5), provides the elements of engaging in organized criminal activity: 1) a person; 2) with intent to establish, maintain, or participate in a combination; 3) commits or conspires to commit; 4) a listed offense, here unlawful possession of a controlled substance or dangerous drug through forgery, fraud, misrepresentation, or deception. See Tex.Pen.Code Ann. § 71.02(a)(5); Mast v. State, 8 S.W.3d 366, 869 (Tex.App.—El Paso 1999, no pet.); see also Nichols, 653 S.W.2d at 771-72.

The State claims that the statute requires no more than proof of the existence of a combination, and that Garcia either committed one of the enumerated offenses in order to facilitate the combination, or that he conspired with at least one other to commit such an offense and he and at least one other performed an overt act pursuant to the conspiracy, with intent to facilitate the combination. See Fee v. State, 841 S.W.2d 392, 395 (Tex.Crim.App.1992). Although the jury charge properly set forth the allegations of a combination, the charge fails to allege all of the elements of the offense as set forth in the controlling penal provision. Because the instruction fails to set out the listed offense of unlawful possession of a controlled substance “through forgery, fraud, misrepresentation, or deception,” the charge contains error. We next determine whether sufficient harm resulted from the error to require reversal. See Almanza, 686 S.W.2d at 171.

The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected. See Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App.1994). Because Garcia made a timely objection at trial, we will search only for some harm. See id. “Some harm” means that an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. See Abdnor, 871 S.W.2d at 732; Almanza, 686 S.W.2d at 171.

We find that the defective instruction harmed Garcia because the charge inaccurately set forth the State’s burden of proof. Although the State met its burden of proving beyond a reasonable doubt that Garcia engaged in organized criminal activity with unlawful possession of marijuana, the State failed to prove that Garcia engaged in organized criminal activity with unlawful possession of a marijuana “through forgery, fraud, misrepresentation, or deception.” By failing to state the complete offense, the jury charge lessened the State’s burden of proof. A complete jury charge would have required the jury to review the evidence for forgery, fraud, misrepresentation, or deception. Without instructions limiting the jury’s consideration of the offense of unlawful possession of a controlled substance “through forgery, fraud, misrepresentation, or deception,” the jury was without the necessary guidance to accurately decide the facts of Garcia’s case. See Abdnor, 871 S.W.2d at 741. As a result, the jury was unable to perform its function as a fact-finder. See id. Therefore, Garcia suffered “actual harm.” See id. We sustain Garcia’s issue.

Having sustained Garcia’s issue addressing the jury charge, we reverse the judgment of the trial court and remand the cause for a new trial.

      . Garcia was also charged with possessing marijuana in the amount of two thousand pounds or less, but more than fifty pounds in a separate cause. The two causes were consolidated for trial. The jury also found Garcia guilty of the possession charge, and assessed punishment at two years confinement, probated for ten years.


author: ALMA L. LÓPEZ, Justice.

text:
    Matthew Martin PERDUE, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 04-99-00305-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 18, 2000.

      Chad O. Bull, San Antonio, for Appellant.
    Charles R. Maddox, Austin, for Appel-lee.
    Sitting: HARDBERGER, Chief Justice, and LÓPEZ, Justice and GREEN, Justice.
   OPINION

Opinion by:

ALMA L. LÓPEZ, Justice.

In this appeal, Matthew Martin Perdue challenges the trial court’s order denying his petition for an expunction of arrest records and files. Perdue contends the trial judge abused his discretion by denying his petition because article 42.12(20) of the Code of Criminal Procedure provides that a probationer released from probation under that article “shall thereafter be released from all penalties and disabilities.” See TexCode CrimProc. Ann. art. 42.12(20) (Vernon Supp.2000) Perdue contends that despite having been discharged under section 42.12(20), he suffers from a disability resulting from the underlying offense because he is unable to serve as executor of as estate. Despite this argument, Perdue is not entitled to an expunction under the plain language of the expunction statute. See generally Tex. Code CRIm.Proc.Ann. ch. 55 (Vernon Supp.2000).

Article 55.01 of the Code of Criminal Procedure provides for the ex-punction of arrest records and files. Specifically article 55.01(a) provides, in relevant part,:

(a) A person who has been arrested for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, it has been dismissed and the court finds that it was dismissed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 of this code; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

Id. art. 55.01 (emphasis added). Once an applicant demonstrates his eligibility under the provisions of this article, the trial judge does not have the discretion to dismiss the petition or deny the request for an expunction. See Matter of Wilson, 932 S.W.2d 263, 266 (Tex.App.—El Paso 1996, no pet.); Ex parte Current, 877 S.W.2d 833, 836 (Tex.App.—Waco 1994, no pet.). Although the trial judge does not have discretion to deny the petition if the statutory requirements are met, each requirement must be met before the applicant is entitled to an expungement. See Matter of Wilson, 932 S.W.2d 263, 266-67; Harris County District Attorney’s Office v. Pennington, 882 S.W.2d 529, 530 (Tex.App.—Houston [1st Dist.] 1994, no pet.).

In the instant case, Perdue was placed on court-ordered community supervision as a result of the arrest he sought to expunge. Thus, at least one of the statutory requirements for obtaining an expunction of arrest records is not present. As a result, Perdue was not entitled to an ex-punction. Although Perdue contends that the trial judge should have relied on article 44.12(20) in considering his petition, article 55.01 specifically addresses a person’s eligibility for an expunction. Where statutes address similar subject matter — here the consequences of arrest, the statutes must be construed together to carry out the full legislative intent of the applicable statutes. See McLendon v. Texas Department of Public Safety, 985 S.W.2d 571, 577 (Tex. App.—Waco 1998). The legislative intent of article 55.01 is very clear: to allow persons wrongfully arrested to expunge their arrest records — a purpose not at issue here. See Pennington, 882 S.W.2d at 530; State v. Arellano, 801 S.W.2d 128, 131-32 (Tex.App.—San Antonio 1990, no pet.). As a result, the Legislature set forth very specific requirements for an expunction. Because those requirements do not exist in this case, we overrule Per-due’s issue on appeal, and affirm the trial court’s order denying Perdue petition for expunction.


author: TOM RICKHOFF, Justice.

text:
    Artis WATSON and Lela Watson, Appellants, v. The STATE of Texas, Appellee.
    No. 04-00-00211-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 18, 2000.
    Rehearing Overruled Nov. 21, 2000.

      Douglas S. Daniel, Law Office of Douglas S. Daniel, San Antonio, for Appellant.
    W.C. Kirkendall, Dist. Atty., Frank Folks, Asst. Dist. Atty., Seguin, for Appellee.
    Sitting: HARDBERGER, Chief Justice, and RICKHOFF and DUNCAN, Justices.
   OPINION

TOM RICKHOFF, Justice.

This is an appeal from a judgment holding Artis and Lela Watson liable, as sureties, on a bail bond. Because we hold that any error in the execution of the bond was waived, we affirm.

BACKGROUND

The Watsons executed a bail bond as sureties for their son, William Watson. When William did not appear in court, the court entered a judgment nisi entitling the State to forfeiture of the bond. At the hearing on the bond forfeiture case, the Watsons argued they should be exonerated from liability because the bond was not a valid and binding undertaking in law. The court entered judgment against William, as principal, and the Watsons, as sureties, for $25,000. This appeal by the Watsons ensued.

ANALYSIS

Bond forfeiture is governed by the Texas Code of Criminal Procedure. See Alvarez v. State, 861 S.W.2d 878, 887 (Tex.Crim.App.1993). The essential elements of a bond forfeiture cause of action are the bond itself and the judicial declaration of the bond’s forfeiture, which is the judgment nisi. See Alvarez, 861 S.W.2d at 887; Tocher v. State, 517 S.W.2d 299, 301 (Tex.Crim.App.1975). The judgment nisi is prima facie proof that the statutory requirements have been satisfied and the burden is then on the defendant to show otherwise. See Alvarez, 861 S.W.2d at 887; Tocher, 517 S.W.2d at 301. The only grounds for exonerating a defendant and his sureties upon forfeiture of a bond are those provided in Code of Criminal Procedure article 22.13. See Lyles v. State, 587 S.W.2d 717, 717 (Tex.Crim.App.1979). Article 22.13 provides as follows:

The following causes, and no other, will exonerate the defendant and his sureties, if any, from liability upon the forfeiture taken:
1. That the bond is, for any cause, not a valid and binding undertaking in law. If it be valid and binding as to the principal, and one or more of his sureties, if any, they shall not be exonerated from liability because of its being invalid and not binding as to another surety or sureties, if any. If it be invalid and not binding as to the principal, each of the sureties, if any, shall be exonerated from liability. If it be valid and binding as to the principal, but not so as to the sureties, if any, the principal shall not be exonerated, but the sureties, if any, shall be.
2. The death of the principal before the forfeiture was taken.
3. The sickness of the principal or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, if any, unless such principal appear before final judgment on the bond to answer the accusation against him, or show sufficient cause for not so appearing.
4.Failure to present an indictment or information at the first term of the court which may be held after the principal has been admitted to bail, in case where the party was bound over before indictment or information, and the prosecution has not been continued by order of the court.

Tex.Code Crim.Proc.Ann. art. 22.13 (Vernon 1989).

The Watsons argue that the bond they executed is “not a valid and binding undertaking in law” because they are not licensed bail bondsmen or attorneys licensed to practice law in the State of Texas. See Tex.Occ.Code Ann. §§ 1704.151, 1704.163(a) (Vernon 2000) (a person may not act as a bail bond surety unless the person holds a license issued under the Occupation Code or is licensed to practice law in Texas and represents the other person in a criminal case). Therefore, the Watsons conclude, they are exonerated from liability on the bond. The State counters that the bond executed by the Watsons met the requirements of Texas Code of Criminal Procedure articles 17.02 (“Definition of ‘bail bond’ ”), 17.08 (“Requisites of a bail bond”), and 17.13 (“Sufficiency of sureties ascertained”); and these articles do not require a surety to be regulated under the Occupation Code. Therefore, the State concludes, the bond is valid and binding and the Watsons are not exonerated from liability. The State also argues that the Occupation Code does not apply here because the Code defines a bail bond surety (formerly known as a “bondsman”) as “a person who executes a bail bond as a surety or cosurety for another person for compensation.” Tex.Occ.Code Ann. § 1704.001(2) (Vernon 2000). Therefore, the State concludes, the Occupation Code does not apply to individuals (such as the Watsons) who are not in the bail bond business, but may act as surety for a family member or friend. Assuming without deciding that the Watsons’ premise is correct — that all bail bond sureties are regulated by the Occupation Code — we do not necessarily agree with their conclusion that a bond, which meets all the requirements of the Code of Criminal Procedure but is executed by an unlicensed surety, is an invalid bond. However, we need not reach this issue because we hold that the error, if any, was waived.

The Court of Criminals Appeals has held that the provisions of article 17.08 are for the benefit of the principal and the surety, who have the right to insist that the provisions of the statute be met if they do so at the time the bond is executed and presented for approval. See Scott v. State, 617 S.W.2d 691, 692 (Tex.Crim.App.1981); Balboa v. State, 612 S.W.2d 553, 555 (Tex.Crim.App.1981). If this right is not insisted upon at that time, it is a right that can be waived and the principal and surety may not be heard to complain of any omission for the first time on appeal. See Balboa, 612 S.W.2d at 555.

Although the above cases are distinguishable because they involve complaints about the contents of the bond, as opposed to a complaint about the surety’s ability to execute an otherwise valid bond, the same principle applies here. The Wat-sons admit they executed the bond to attain peace of mind about the safety of their son and to make him available to assist them in their daily needs. The record before this Court reflects that the Watsons did not object to the bond until after the trial court entered the judgment nisi. The Watsons benefitted from the release of their son on bail, and they should not now be allowed to complain for the first time on appeal about an alleged defect in the execution of the bond. Accordingly, we hold that the Watsons have presented nothing for review. See Tex.R.App.P. 33.1(a).

We affirm the trial court’s judgment.

      . At the time the Watsons executed the bond, former Texas Revised Civil Statute article 2372 p-3 was in effect. Act of 1975, 63rd Leg ., R.S., ch. 451, sec. 1, 197567 Tex.Gen. Laws 1194, repealed by Act of May 24, 1999, 76th Leg., R.S., ch. 388, § 6(a), 1999 Tex. Gen. Laws 2439 (current version at Tex. Occ.Code Ann. § 1704.151 (Vernon 2000). The current version contained in the Texas Occupation Code is not substantively different; therefore, we will refer to the appropriate sections of the Occupation Code in this opinion.


text:
    Ex parte Melanie CATHCART, Relator.
    No. 04-98-00231-CR.
    Court of Appeals of Texas, San Antonio.
    Oct. 18, 2000.
    Cynthia Hujar Orr, Goldstein, Goldstein & Hilley, San Antonio, for Appellant.
    Barbara Hervey, Asst. Crim. Dist. Atty., San Antonio, for Appellee.
    Sitting: HARDBERGER, Chief Justice, and LÓPEZ, Justice and GREEN, Justice.
   OPINION

Opinion by

ALMA L. LÓPEZ, Justice.

Previously, we considered Melanie Cath-cart’s appeal of the trial court’s judgment denying her application for writ of habeas corpus. Because we determined that Cathcart was accused of committing the offense of intoxication manslaughter beginning the day she was arrested on October 4, 1996, and because article 32.01 of the Code of Criminal Procedure uses the language “any criminal accusation,” we instructed the trial court to enter an order granting habeas relief. In response, the State filed a petition for discretionary review challenging our decision.

Upon consideration of the State’s petition, the court of criminal appeals reversed and remanded the cause because Cathcart “was neither held to bail nor illegally restrained in her liberty on the charge of intoxication assault” at the time she filed her application for writ of habeas corpus. See Ex parte Cathcart, 13 S.W.3d 414, 417 (Tex.Crim.App.2000). The court of criminal appeals explained that because Cath-cart “was never arrested for, charged with, or held to bail on intoxication assault” until after she was indicted for intoxication assault — a time subsequent to the filing of her application for writ of habeas corpus, the habeas corpus jurisdiction of the district court was not properly invoked. See Ex parte Cathcart, 13 S.W.3d at 416-17.

The court of appeals has no jurisdiction in a habeas corpus action where The trial court’s jurisdiction was not invoked. See Tex.Code CRIm.Proc.Ann. art. 11.05 (Vernon 1977) (courts of appeals not listed as court with original habeas corpus jurisdiction). As a result, we now dismiss Cath-cart’s application for want of jurisdiction.


author: REX D. DAVIS, Chief Justice.

text:
    WAL-MART STORES, INC., Appellant, v. Lizzie REECE, Appellee.
    No. 10-98-176-CV.
    Court of Appeals of Texas, Waco.
    Oct. 18, 2000.

      J. Preston Wrotenbery, Kevin D. Jewell, Magenhaim, Bateman, Robinson, Wroten-bery & Helfand, P.L.L.C., Houston, for appellant.
    Timothy F. Lee, Ware, Snow, .Fogel, Jackson & Greene, L.L.P., Houston, Roger Knight, Jr., Kevin Knight, Roger Knight, Jr., Inc., Madisonville, for appellee.
    Before Chief Justice DAVIS, Justice VANCE and Justice GRAY.
   OPINION

REX D. DAVIS, Chief Justice.

Lizzie Reece filed suit against Wal-Mart Stores, Inc. for injuries she allegedly sustained after she slipped and fell in the snack bar area of the Huntsville Wal-Mart store. The jury found in Reece’s favor and awarded her $58,512.47 in damages. Wal-Mart claims in three issues that: (1) there is no evidence or factually insufficient evidence to support a finding that Wal Mart had constructive knowledge of the puddle in which Reece slipped; (2) there is no evidence or factually insufficient evidence to support submission of a mental anguish issue to the jury or the amount awarded for mental anguish; and (3) Wal-Mart is entitled to a new trial because of side-bar remarks made by Reece’s counsel during trial.

BACKGROUND

Reece went to the snack bar in the Huntsville Wal-Mart store to purchase a chili dog. After she obtained her chili dog and paid for it, she walked “maybe two steps off” when she stepped in “something slippy” and fell on her right knee. Wal-Mart employee Stephen Cloyd had gone to the snack bar during his break. He was standing between five and eight feet in front of her at the snack bar when she fell. He turned around when he heard her fall and saw her down on one knee.

Cloyd noticed a small puddle of clear liquid near Reece. He described the size of the puddle as similar to a “small pizza, medium pizza, somewhere in there, possibly smaller.” He recalled that the puddle was not directly in the path of travel for persons at the snack bar counter but was slightly to the side. Only the snack bar attendant, Reece, Cloyd, and another man and woman were in the snack bar area when Reece fell. No one besides Reece and Cloyd ever saw the puddle.

Reece testified that she had a small red spot on her right knee after the fall. Although her knee hurt, she did not think she had suffered a serious injury at the time. She reported the incident to the Wal-Mart manager on duty. The manager prepared an incident report and helped Reece to her granddaughter’s car. The next morning Reece’s knee was swollen. Two of her daughters transported her to the hospital where x-rays revealed that she had sustained a severe bruise. A physician later determined that she had suffered a tear of the lateral meniscus ligament as a result of the fall. Reece ultimately required surgery to correct this condition.

CONSTRUCTIVE KNOWLEDGE

Wal-Mart contends in its first issue that there is no evidence or factually insufficient evidence to support a finding that it had constructive knowledge of the puddle in which Reece slipped and fell. Reece responds that, because Cloyd walked by the spill “only moments” before Reece fell, the jury could determine that he “should have noticed the clear liquid and done something about it to protect Mrs. Reece.”

When we decide a “no evidence” point, we consider only the evidence and inferences which tend to support the contested issue and disregard all evidence and inferences to the contrary. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). We will sustain a no evidence point if: (a) there is a complete absence of evidence of a vital fact; (b) we are barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Id. (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361, 362-63 (I960)). “More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)).

A factual sufficiency challenge requires us to consider and weigh all the evidence, not just the evidence which supports the verdict. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998); In re King’s Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp., 971 S.W.2d at 407.

To prevail in a slip-and-fall case, the plaintiff must prove that:

• the defendant had actual or constructive knowledge of a condition on its premises;
• the condition posed an unreasonable risk of harm;
• the defendant failed to exercise reasonable care to reduce or eliminate the risk; and
• such failure proximately caused injury to the plaintiff.

See Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). Generally, the plaintiff establishes constructive knowledge with evidence “that the foreign substance was on the floor so long that it should have been discovered and removed in the exercise of ordinary care.” Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex.1992) (quoting Robledo v. Kroger Co., 597 S.W.2d 560, 560 (Tex.Civ.App.—Eastland 1980, writ ref'd n.r.e.)); accord Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 667 (Tex.App.—Texarkana 1999, pet. denied).

Accordingly, Texas courts have held the evidence insufficient to establish constructive knowledge when the record contained no evidence of the length of time the foreign substance was on the floor. See, e.g., Gonzalez, 968 S.W.2d at 936-38; Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165-66 (Tex.App.—Texarkana 1998, no pet.); Robledo, 597 S.W.2d at 560-61; Furr’s Supermarkets, Inc. v. Arellano, 492 S.W.2d 727, 728 (Tex.Civ.App.—El Paso 1973, writ ref'd n.r.e.). Wal-Mart relies on these authorities because the record in this case contains no evidence of the length of time the puddle in which Reece slipped was on the floor.

On the other hand, some courts have held that evidence of a close proximity between the location of the foreign substance and an employee of the proprietor will support a finding that the employee, in the exercise of ordinary care, should have discovered the substance and removed it, even if the plaintiff fails to offer any evidence of the length of time the substance was on the floor. See Duncan v. Black-Eyed Pea U.S.A., Inc., 994 S.W.2d 447, 449-50 (Tex.App. —Beaumont 1999, pet. filed) (slippery substance located in an area where “employees frequently traversed”); Furr’s Super Market v. Garrett, 615 S.W.2d 280, 281-82 (Tex.Civ.App.—El Paso 1981, writ ref'd n.r.e.) (five employees located within five or six feet of water puddle); Albertson’s, Inc. v. Mungia, 602 S.W.2d 359, 362-63 (Tex.Civ.App.— Corpus Christi 1980, no writ) (one employee ten feet away from puddle located beside ice machine and another employee at ice machine handing bag of ice to customer); H.E.B. Food Stores v. Slaughter, 484 S.W.2d 794, 797 (Tex.Civ.App.—Corpus Christi 1972, writ dism’d) (three or four employees unloading produce “a few feet” from “water and grapes intermingled on the floor”); see also Stoner v. Wal-Mart Stores, Inc., 35 F.Supp.2d 958, 960 (S.D.Tex.1999) (spill located between ten and twelve feet from cash register). Reece relies on these authorities because of Cloyd’s proximity to the puddle.

From these distinct lines of cases, we conclude that a plaintiff can establish constructive knowledge in a premises liability case with evidence that:

• the dangerous condition existed for a sufficient length of time that it should have been discovered and removed in the exercise of ordinary care; see Gonzalez, 968 S.W.2d at 936-38; Richardson, 963 S.W.2d at 165-66; Robledo, 597 S.W.2d at 560-61; Arellano, 492 S.W.2d at 728; or
• the dangerous condition was in sufficient proximity to an employee of the defendant that it should have been discovered and removed in the exercise of ordinary care; see Duncan, 994 S.W.2d at 449-50; Garrett, 615 S.W.2d at 281-82; Mungia, 602 S.W.2d at 362-63; Slaughter, 484 S.W.2d at 797; see also Stoner, 35 F.Supp.2d at 960.

Reece’s case falls into the latter category as the parties concede that the record contains no evidence of the length of time the spill was on the floor.

Most of the proximity decisions rested on other factors in addition to proximity of employees. In Garrett, the court relied also on the size of the spill to affirm the verdict. See Garrett, 615 S.W.2d at 281-82. The court in Mungia found the evidence sufficient because of employee proximity, the size of the spill, and its opinion that “[t]he dispensing of bags of ice from an ice machine can bring with it water on the floor in the immediate vicinity of the machine. Ordinary care requires that such a place be constantly watched and water removed from the floor frequently.” Mungia, 602 S.W.2d at 362-63.

In Slaughter, the court recited several evidentiary factors which supported the verdict:

At the time of the accident there were three or four men unloading produce a few feet from where the plaintiff fell. The plaintiff testified that there were grapes on the floor and that the grapes displayed on the produce counter were displayed loose and in bulk. Other grocery stores displayed such grapes in cardboard boxes or in mesh packages so that they would not fall out easily. A jury would be entitled to believe that if it was the grapes that the plaintiff fell on, then defendant was negligent in displaying the grapes in bulk instead of displaying them in containers as some other stores do.
The men that the plaintiff saw nearby were standing there talking and unloading produce. At the time she fell, plaintiff heard one of the men say: “She fell on those grapes.” The spontaneous res gestae type statement made by the men ■unloading the produce that: “She fell on those grapes” reasonably infers that defendant’s employees knew that the loose grapes were on the floor a sufficient length of time, so that such grapes should have been removed in the exercise of ordinary care. We believe that with the several employees standing in the close proximity of where the plaintiff fell, a jury would also be entitled to find that they were negligent in not observing and correcting the dangerous condition of the floor. The condition of the water and grapes intermingled on the floor constituted a rather serious hazard.
On the basis of all the foregoing we believe that there was circumstantial evidence in the record to the effect that the wet condition of the floor was known to at least the one employee who attempted to sweep up the water. There is also circumstantial evidence that at least one of the employees knew that there were grapes on the floor as this was his immediate explanation of why she fell. We believe that all of the direct and circumstantial evidence and the inferences properly attributed to it is sufficient proof of a cause of action to uphold the trial court’s judgment.

Slaughter, 484 S.W.2d at 797.

To the contrary, the courts in Duncan and Stoner relied solely on employee proximity to conclude that summary judgment for the defendants was inappropriate because material fact questions existed in each case on the issue of constructive knowledge. See Duncan, 994 S.W.2d at 450; Stoner, 35 F.Supp.2d at 960.

The evidence in Reece’s case demonstrates that Cloyd walked within a few feet of the spill moments before Reece fell. The store manager agreed that the presence of self-serve drink and ice machines in that area increase the likelihood of spills there. He testified that, although Wal-Mart employees are generally responsible for keeping the area in which they are stationed free from hazards, they have an additional responsibility to intervene whenever “they walk past ... a known hazard” in any area of the store. This constitutes more than a scintilla of evidence to support the verdict. See Garrett, 615 S.W.2d at 281-82; Mungia, 602 S.W.2d at 362-63; Slaughter, 484 S.W.2d at 797; see also Duncan, 994 S.W.2d at 449-50 (summary judgment); Stoner, 35 F.Supp.2d at 960 (summary judgment).

The record contains little affirmative evidence contradictory to the verdict. The record contains no evidence concerning how long the spill was on the floor. Nevertheless, the above-cited cases stand for the proposition that chronology can be immaterial if the spill is located in close proximity to a store employee. No Wal-Mart employee saw the spill before Reece fell. However, that fact merely removes this case from the realm of actual knowledge and requires Reece to establish constructive knowledge (ie., whether the spill was in a location where it “should have been discovered” by an employee). Finally, the spill was apparently much smaller than those in Garrett and Mungia. Cf. Garrett, 615 S.W.2d at 281-82; Mungia, 602 S.W.2d at 362-68.

Although the spill was fairly small, we conclude that, because of Cloyd’s proximity to the spill, his responsibility to intervene whenever walking past “a known hazard,” and the fact that the spill occurred in the concession area where the store manager conceded spills are more likely to occur, the jury’s finding of constructive knowledge is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp., 971 S.W.2d at 407.

For these reasons, we overrule Wal-Mart’s first issue.

MENTAL ANGUISH DAMAGES

Wal-Mart argues in its second issue that the record contains no evidence or factually insufficient evidence to support the court’s submission to the jury of the past and future mental anguish elements of damages or to support the jury’s verdict on these elements of damages. Wal-Mart also claims that the damages awarded for past and future mental anguish are excessive.

Under Rule of Civil Procedure 278, a trial court must submit any issues to the jury “which are raised by the written pleadings and the evidence.” Tex.R.CivP. 278. Thus, if some evidence exists in the record to support an issue properly pleaded by the plaintiff, the court must submit that issue to the jury. See Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.1995). Wal-Mart does not allege that Reece failed to raise the issue of mental anguish in her pleadings. Accordingly, if the record contains some evidence of past and future mental anguish, the court properly submitted these issues to the jury and Wal-Mart’s “no-evidence” challenge to the verdict must necessarily fail.

We have already set out the standard of review for a “no-evidence” challenge. “Texas has authorized recovery of mental anguish damages in virtually all personal injury actions.” City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex.1997) (quoting Krishnan v. Sepulveda, 916 S.W.2d 478, 481 (Tex.1995)). “Where serious bodily injury is inflicted, ... we know that some degree of physical and mental suffering is the necessary result.” Id. (quoting Brown v. Sullivan, 71 Tex. 470, 476, 10 S.W. 288, 290 (1888)). To recover mental anguish damages however, the plaintiff must proffer “direct evidence of the nature, duration, and severity of [her] mental anguish, ... establishing a substantial disruption in [her] daily routine.” Id. (quoting Parkway Co. v. Woodruff, 901 S.W.2d 484, 444 (Tex.1995)); see also Verinakis v. Medical Profiles, Inc., 987 S.W.2d 90, 95 (Tex.App.—Houston [14th Dist.] 1998, pet. denied).

Reece testified that, since the accident, she has had to constantly use a cane. Her knee regularly experiences swelling and causes her significant pain. She can no longer kneel in church for prayer as she did before. This constitutes more than a scintilla of evidence to support submission of the past and future mental anguish issues to the jury and to support the amount awarded. See Weidner v. Sanchez, 14 S.W.3d 353, 367-68 (Tex. App.—Houston [14th Dist.] 2000, no pet.); Brookshire Bros., Inc. v. Wagnon, 979 S.W.2d 343, 353-54 (Tex.App.—Tyler 1998, pet. denied).

The charge directed the jury to assess Reece’s damages for the combined elements of “[p]hysical pain and mental anguish in the past” and of “[p]hysical pain and mental anguish in reasonable probability she will suffer in the future.” The jury awarded $25,000 for past physical pain and mental anguish and $10,000 for future pain and anguish. Wal-Mart does not challenge these awards insofar as they award compensation for past and future physical pain.

We have set out the standard of review for a factual sufficiency challenge above. When the defendant challenges only part of a multi-element damages award, we determine only whether the aggregate evidence is sufficient to support the award. See Wal-Mart Stores, Inc. v. Ard, 991 S.W.2d 518, 520-22 (Tex.App.—Beaumont 1999, pet. denied); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589-90 (Tex.App.—Corpus Christi 1993, writ denied); see also Thomas v. Oldham, 895 S.W.2d 352, 359-60 (Tex.1995). Thus, we review the record to determine whether “the aggregate evidence is sufficient to support the jury’s award of damages” for past and future pain and suffering. Ard, 991 S.W.2d at 523.

In addition to the evidence recited above in support of submission of these issues to the jury, the record reflects that Reece awoke the morning after her fall with severe pain and swelling. After repeated examinations and physical therapy, she ultimately required surgery for her injuries. She frequently must treat her symptoms with non-prescription pain relievers, heating pads, ointments, and rest. As Reece stated at the conclusion of her direct testimony, her knee hurts “[v]ery near all the time. If I do much stirring around, it really hurts.” We conclude that this testimony constitutes factually sufficient evidence to support an award of damages for past and future pain and mental anguish. See Weidner, 14 S.W.3d at 367-68; Wagnon, 979 S.W.2d at 353-54.

Wal-Mart also contends that the jury’s award is excessive. An allegation that damages are excessive invokes the same standard of review as any factual sufficiency challenge. See Maritime Overseas, 971 S.W.2d at 406. Again, Wal-Mart’s challenge must be limited to the “aggregate evidence” pertinent to the elements of past and future pain and mental anguish. Ard, 991 S.W.2d at 523. Given the evidence recited above, we cannot say that the amount of the jury’s award for these elements of damages is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. See Olin Corp. v. Smith, 990 S.W.2d 789, 798 (Tex.App.—Austin 1999, pet. denied); see also Weidner, 14 S.W.3d at 367-68; Wagnon, 979 S.W.2d at 353-54.

Accordingly, we overrule Wal-Mart’s second issue.

CONDUCT OF COUNSEL

Wal-Mart claims in its third issue that it is entitled to a new trial because of sidebar remarks made by Reece’s counsel which were directed toward Wal-Mart’s counsel. The remarks at issue are as follows:

Kevin Knight: Okay. You don’t know what happened in that regard — let me ask you this: Is it customary that the managers tell people, go to the doctor and we’ll pay for at least the emergency room visit?
Alan Magenheim: Same objection. It’s irrelevant to the issues to be decided by the jury.
Kevin Knight: Goes to what was told to my client—
Roger Knight, Jr.: And it goes to impeachment and it goes to his credibility and it goes to this report and its accuracy and it goes to about 15 other things, okay?
The Court: Let me see the report.
(Whereupon Mr. Kevin Knight tendered the report to the Court.)
Roger Knight, Jr.: And it’s not prejudicial.
Magenheim: Judge, could we have one lawyer at a time, please?
Kevin Knight: We’re both on this case.
Roger Knight, Jr.: Two of us are not a match for you, Alan. It takes two of us. Of course, you don’t have Judge Hoyt here to take care of you.
Magenheim: Excuse me, Judge. I’ve got to put something on the record at this point.
Roger Knight, Jr.: Fine.
Magenheim: It’s a violation of the motion in limine.
The Court: Go ahead.
Magenheim: Okay, Judge, thank you. Kevin — Mr. Kevin Knight asked that no reference be made—
Kevin Knight: We need to do this outside the presence of the jury.
The Court: What was the question?
Kevin Knight: Do they make representations — or do they tell people they’ll pay for a doctor’s visit?
The Court: I think you can ask that question.
Magenheim: May I put on the record what I was going to put on the record?
Kevin Knight: Because he’s going to put what was in that court case.
The Court: Would ya’ll step back, just for a minute ladies and gentlemen of the jury? It won’t be long.
(Whereupon the Jury was escorted back to the jury room)

Wal-Mart’s complaint on appeal primarily concerns Roger Knight’s side-bar remark that Magenheim did not “have Judge Hoyt [tjhere to take care of [him].” According to the parties’ pretrial motions in limine, the parties previously tried this case before Judge Kenneth M. Hoyt in the United States District Court for the Southern District of Texas, Houston Division. Judge Hoyt apparently granted Wal-Mart’s motion for directed verdict, and Reece appealed to the Fifth Circuit. Both parties asked in their motions in limine that no reference be made in the state court trial to the federal litigation.

Outside the jury’s presence following the above interchange, Roger Knight made more pointed allegations about Magen-heim’s relationship to Judge Hoyt. Magen-heim again reminded the court of the parties’ motions in limine and asserted that the prior federal litigation “shouldn’t be referenced.” He continued, “I’m just asking that we honor our motions in limine. We both put that in there.” The court responded, “Please do. Please do.” No further reference to Judge Hoyt or the federal litigation was made after the jury returned. Magenheim did not request an instruction to disregard Roger Knight’s prior side-bar remarks, and the court did not instruct the jury sua sponte to disregard the remarks.

Although it is true that Rule of Civil Procedure 269(f) specifically provides that such inappropriate side-bar remarks must be “rigidly repressed,” this does not excuse counsel from complying with the basic rules for preservation of error. See Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex.1986); Capellen v. Capellen, 888 S.W.2d 539, 546 (Tex.App. — El Paso 1994, writ denied); McInnes v. Yamaha Motor Corp., 659 S.W.2d 704, 712-13 (Tex.App.— Corpus Christi 1983), aff'd, 673 S.W.2d 185 (Tex.1984); Tex.R.Civ.P. 269(f).

In Pool, the Supreme Court held that no error was preserved because the appellant failed to obtain an express ruling on his objection to the side-bar comments at issue. See Pool, 715 S.W.2d at 637. Now however, the appellate rules provide that an implied ruling will suffice to preserve error. See Tex.R.App.P. 33.1(a)(2)(A); Frazier v. Khai Loong Yu, 987 S.W.2d 607, 610 (Tex.App. — Fort Worth 1999, pet. denied).

Magenheim objected to Roger Knight’s side-bar remarks concerning Judge Hoyt because they violated the parties’ motions in limine. The court responded by asking the parties to abide by these motions. This response is too indefinite to constitute even an implicit ruling on the objection. Accordingly, we conclude that Wal-Mart has failed to preserve any error arising from the comments at issue. See Pool, 715 S.W.2d at 637; Capellen, 888 S.W.2d at 546; McInnes, 659 S.W.2d at 712-13. Thus, we overrule Wal-Mart’s third issue.

We affirm the judgment.

      . Wal-Mart recites this principle as most recently enunciated by the Supreme Court in Gonzalez, viz: "[T]he evidence must establish that it is more likely than not that the dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition.” Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex.1998). However, this pronouncement actually constitutes a merger of two distinct legal principles: (1) the appropriate analysis to follow when addressing a "no-evidence” challenge to a verdict based on "meager circumstantial evidence from which equally plausible but opposite inferences may be drawn” {i.e., “more likely than not”); and (2) the showing necessary to establish constructive knowledge in a premises liability case {i.e., "dangerous condition existed long enough to give the proprietor a reasonable opportunity to discover the condition"). See id. at 936-38.

      . In Wal-Mart Stores, Inc. v. Tinsley, the Tex-arkana Court addressed most of its analysis to the issue of length of time but concluded that sufficient evidence of constructive knowledge existed not only on the basis of time but also because of the size of the puddle and the fact that the puddle lay "approximately forty steps away from the courtesy booth." 998 S.W.2d 664, 668-69 (Tex.App.—Texarkana 1999, pet. denied).

      . We note that in the "length-of-time” cases, the plaintiffs did not proffer any evidence that the dangerous condition at issue was in close proximity to an employee. See Gonzalez, 968 S.W.2d at 936; Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 165-66 (Tex.App. —Texarkana 1998, no pet.); Robledo v. Kroger Co., 597 S.W.2d 560, 560-61 (Tex.Civ. App.—Eastland 1980, writ ref'd n.r.e.); Furr’s Supermarkets, Inc. v. Arellano, 492 S.W.2d 727, 728 (Tex.Civ.App.—El Paso 1973, writ ref’d n.r.e.).

      . The courts have generally applied this principle to both "no-evidence” and factual sufficiency challenges. See, e.g., Wal-Mart Stores, Inc. v. Ard, 991 S.W.2d 518, 522 (Tex.App.— Beaumont 1999, pet. denied); Goodman v. Page, 984 S.W.2d 299, 304-07 (Tex.App.—Fort Worth 1998, pet. denied); Greater Houston Transp. Co. v. Zrubeck, 850 S.W.2d 579, 589-90 (Tex.App. — Corpus Christi 1993, writ denied). Nevertheless, we declined to do so with respect to Wal-Mart’s "no-evidence” challenge in this case because of Wal-Mart's additional challenge to the submission of the mental anguish issues in the charge. Cf. Ard, 991 S.W.2d at 522-23 (declining to address Wal-Mart’s “no-evidence” challenge to the damages award with respect to "the single element of loss of earning capacity” but then concluding that the record contained some evidence to support submission of lost earning capacity in the charge). In some instances, courts have summarily overruled challenges to damages awards which did not contest each element of the damages finding. See, e.g., City of Port Isabel v. Shiba, 976 S.W.2d 856, 858-59 (Tex.App. — Corpus Christi 1998, pet. denied).