author: UTTER, Justice.

text:
    Rosie SALINAS, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-029-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 7, 1985.
    Earl C. Hill, San Antonio, for appellant.
    George J. Filley, III, Dist. Atty., Victoria, for appellee.

      Before UTTER, KENNEDY and KEITH, JJ.
   OPINION

UTTER, Justice.

This is an appeal from a jury conviction for the offense of aggravated assault on a peace officer under TEX. PENAL CODE ANN. § 22.02 (Vernon Supp.1984) for which the jury assessed punishment at three years’ confinement in the Texas Department of Corrections, which was probated for three years, and a $3,000.00 fine. We affirm the judgment of the trial court.

In her first ground of error, appellant challenges the constitutionality of TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon Supp.1984).

Appellant first claims that the application of TEX. PENAL CODE ANN. 9.31 (Vernon Supp.1984) requires that appellant has no right to defend herself against an unlawful arrest and assault by a police officer simply because he is a police officer. This is not correct. § 9.31(c) provides:

(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

Appellant then claims that the application of § 22.02(2) and § 9.31(a)(b) and (c) together require appellant to await the actual use of greater force by a peace officer than necessary to illegally arrest her or to permit the peace officer to attempt to use some greater force than necessary to illegally arrest her before she can defend herself against such illegal arrest and that such requirement is violative of the equal protection rights afforded by the 14th Amendment of the United States Constitution.

The constitutionality of § 9.31 when applied and used in conjunction with TEX. PENAL CODE ANN. § 38.03 (Vernon Supp.1984) has previously been upheld by the Texas Court of Criminal Appeals in Ford v. State, 538 S.W.2d 633 (Tex.Crim.App.1976), wherein the Court wrote:

This limitation of the right of self-defense against an unlawful arrest is a necessary complement to Section 38.03, supra, and is also a reasonable and legitimate exercise of police power. As in Section 38.03, supra, the Legislature has limited the citizen’s right to use force when he knows he is confronted by an officer of the law and the officer does not himself use excessive force to make the arrest. The citizen still maintains all his judicial remedies for an unlawful arrest. We hold that V.T.C.A., Penal Code, Section 9.31, is not unconstitutional.

Ford v. State, 538 S.W.2d at 636.

Likewise, this limitation of the right of self-defense against an unlawful arrest is a necessary complement to § 22.02 and also is a reasonable and legitimate exercise of police power. We hold that § 22.02 is not unconstitutional when used and applied with § 9.31, which limits the right of self-defense. Appellant’s first ground of error is overruled.

In her second ground of error, appellant asserts that “The verdict of the jury in this case is against and contrary to the law and facts presented in this cause and should be reversed”; however, the only argument presented alleges that the victim during cross-examination gave a nonresponsive answer, which was “obviously designed” to prejudice the minds of the jury. After testifying that he had disarmed appellant, the victim (a police officer) gave the following testimony:

Q. Were you afraid of her now at this point?
A. She had been known to carry a knife.

The court refused to instruct the jury to disregard the nonresponsive statement and denied appellant’s motion for mistrial.

Prior to the nonresponsive statement, the victim had already related details of appellant’s conduct prior to her arrest including fighting, kicking, scratching, recklessly driving her truck at a high rate of speed near and towards the victim’s car, carrying a pistol, pointing such pistol at the victim, threatening to shoot said pistol and hitting the victim with a board. Later, appellant’s son testified that appellant carried a gun in her truck. Finally, appellant admitted that she had a pistol lying next to her on the seat of her truck and carried a shotgun behind the seat of the truck.

Even if the nonresponsive statement was improper and even if the trial court should have instructed the jury to disregard the nonresponsive statement, the nonresponsive statement was harmless. The test for harmless error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction or affected the punishment assessed. Johnson v. State, 660 S.W.2d 536 (Tex.Crim.App.1983); Prior v. State, 647 S.W.2d 956 (Tex.Crim.App.1983); Clemons v. State, 605 S.W.2d 567 (Tex. Crim.App.1980); Esquivel v. State, 595 S.W.2d 516 (Tex.Crim.App.1980); Gentsch v. State, 654 S.W.2d 768 (Tex.App. — Houston [14th Dist.] 1983, no pet.). A review of the evidence in this case reveals that there is no reasonable possibility that the nonre-sponsive statement might have contributed to the conviction or affected the punishment assessed.

Consequently, we hold that the trial court’s failure to instruct the jury to disregard the nonresponsive statement was not so prejudicial so as to warrant a reversal. Furthermore, after reviewing all of the evidence, we hold that the evidence is sufficient to support the verdict. Appellant’s second ground of error is overruled.

The judgment of the trial court is AFFIRMED.


source: Caselaw Access Project

author: DEVANY, Justice. AKIN, Justice,

license: Public Domain

text:
    Maria SMITH, Appellant, v. DALLAS COUNTY HOSPITAL DISTRICT, Appellee.
    No. 05-83-01360-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 11, 1985.
    Rehearing Denied March 12, 1985.

      Joe N. Boudreaux, Dallas, for appellant.
    Mike Holloway, Dallas, for appellee.
    Before AKIN, WHITHAM and DEVA-NY, JJ.
   DEVANY, Justice.

This is a workers’ compensation case. The trial court granted the motion for summary judgment of appellee, Dallas County Hospital District, on the basis that appellant, Maria Smith, was not in the course and scope of her employment at the time of the accident. Smith presents a single point of error contending that the trial court erred in granting summary judgment. We disagree and affirm.

Smith was employed by the District as a technician in the hospital’s radiology department. She had a regular forty-hour, Monday through Friday, work week. In addition, Smith rotated with other employees to be “on call” for emergencies during evenings and on weekends for one week each month. “On call” employees were not required to stay at the hospital, but were required to be available by telephone or beeper. Smith lived about fifteen minutes driving time from the hospital. When “on call,” Smith was called back to the hospital about fifteen times per week.

Pursuant to the District’s “Personnel Policy Memorandum,” compensation was paid for being in the status of “on call” (“non-productive time”), for working at the hospital during emergencies (“productive time”), and for “Portal-to-Portal time” (“non-productive time”). The Memorandum states that “Portal-to-Portal time” is the travel time needed to transport an employee from home to the hospital and back home, over and above the ordinary scheduled day. “Portal-to-Portal time” is paid at the regular hourly rate but limited to “one hour (60 minutes) per round trip.” Each time an employee is called back to the hospital, that employee is allowed the “Portal-to-Portal time.”

On November 16, 1980, Smith was injured while returning home from one of these “on call” situations. Smith was injured in an automobile accident which occurred after she had completed her “productive time” in her radiology duties and during her return to her home. The question presented is: Was Smith covered under workers’ compensation? Smith argues that her injury arose in the course of her employment under Sections 1 and lb of the Workers’ Compensation Act, TEX.REV. CIV.STAT.ANN. art. 8809 (Vernon 1967). Section 1 provides in pertinent part:

The term “injury sustained in the course of employment,” ... shall include all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.

Section lb pertains to travel as a basis for injury. That section provides in pertinent part:

Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment.

Smith was returning home after completing an “on call” service. She was to be compensated for her duties at the hospital. Smith is a highly skilled technician, and her services are performed at the hospital. Applying the foregoing controlling statutory provision, which is relied upon by Smith, to the facts in the instant case, we reach these conclusions:

1. Smith’s transportation was not furnished or paid for by the District;

2. Smith’s means of transportation were not under the control of the District; and

3. Smith was not directed in her employment to proceed to another place.

The “Portal-to-Portal time” is not in the course and scope of Smith’s employment. Both parties stipulated that Smith received the one hour of non-productive, portal-to-portal pay for each call without regard for her actual travel time. Actual travel was not the basis for this payment. The purpose of the payment was to give an on-call employee an extra hour’s pay to cover any time up to one hour for working an emergency call.

Generally, injuries sustained by employees while traveling public streets and highways in going to and returning from work are not compensable because they are not incurred in the course of employment as required by Article 8309, § lb. American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370, 374 (1957); City of Dallas v. Bradford, 646 S.W.2d 302, 303 (Tex.App.-Dallas 1983, writ ref’d n.r.e.); Jones v. United States Fire Insurance Co., 420 S.W.2d 160, 165 (Tex.Civ.App. — Amarillo 1967, writ ref’d n.r.e.).

In City of Dallas, this court stated the following:

To have a compensable injury for injuries received while going to or from work, an employee must show that his claim is within the provisions of article 8309, § 1, that is, that his injuries were of a kind and character that had to do with and originated in the work, business, trade or profession of the employer, and were received while the employee was engaged in or about the furtherance of the affairs or business of the employer.

City of Dallas, 646 S.W.2d at 304. An injury received by an employee while using public streets and highways in going to and returning from his place of employment is not compensable, Texas Employers Insurance Association v. Clauder, 431 S.W.2d 579, 584 (Tex.Civ.App.-Tyler 1968, writ ref’d n.r.e.), since, in most instances, such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject, rather than risks and hazards having to do with and originating in the work or business of the employer. Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350, 353 (Tex.1963).

Although Smith’s injury while using the public streets occurred while she was “on call” to the District, this fact does not alter the application of the foregoing rules. In Loofbourow v. Texas Employers Insurance Association, 489 S.W.2d 456 (Tex.Civ. App.-Waco 1972, writ ref’d n.r.e.), the Court analyzed a similar fact situation in which Loofbourow was employed as a nurse-anesthetist and was required by a hospital to be “on call” at particular times. Loofbourow had an accident on her way to the hospital and contended that the injury occurred while she was “at work,” being paid for her duty, and acting in the course of her employment. In the present case, Smith argues the same points. However, in Loofbourow, the court followed the rule that the fact that the employee was “on call” and could be called at any time was not controlling. That rule further states that where the employee is not required to perform any duty for the employer on the public street but rather all of his duties are to be performed at the place of business of the employer, the employee’s injury while going to the employer’s place of business is not in the course of employment and is not compensable. Loofbourow, 489 S.W.2d at 457; Aetna Life Insurance Co. v. Palmer, 286 S.W. 283, 284 (Tex.Civ.App.—Austin 1926, writ ref’d). This rule applies to the facts in the case at hand. Smith was “on call” at the time of her injury and not required to perform any duty for the District at that time.

Smith contends that the holding in Jecker v. Western Alliance Insurance Co., 369 S.W.2d 776 (Tex.1963) should apply in this case to put this accident within the purview of Section lb of Article 8309. In Jecker, the Texas Supreme Court recognized that under the Act an automobile trip would be in the course of employment when the employee is directed in his employment to proceed from one place to another. The Court construed the provision of the Act to include situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment. However, in Jecker, the employee was a salesman of appliances. In addition, he was responsible for service of any appliance that he sold. The employee was injured upon returning from a service call. Thus, the Court held that these facts constituted sufficient evidence that the employee was injured during the furtherance of his employer’s business and in the performance of duties imposed by his contract of employment.

The facts in the instant case are clearly distinguishable. Smith was not directed in her employment to travel around to different destinations to perform her nursing skill. She was only required to be at the hospital when called. The payment for “Portal-to-Portal time” did not create a requirement that Smith travel as part of her job duties. All of her duties were performed at the hospital. Loofbourow, 489 S.W.2d at 457-458. Accordingly, we hold that no fact issue was created to demonstrate that the injury occurred while Smith was in the course of employment by the District.

We also distinguish a line of cases including Texas Employers’ Insurance Association v. Inge, 146 Tex. 347, 208 S.W.2d 867 (1948); Texas Employers’ Insurance Association v. Byrd, 540 S.W.2d 460 (Tex.Civ.App.-El Paso 1976, writ ref’d n.r.e.); and Texas Employers’ Insurance Association v. Adams, 555 S.W.2d 525 (Tex.Civ. App.-Amarillo 1977, writ ref’d n.r.e.), all of which Smith cites in support of her contention that the compensation for “Portal-to-Portal time” constituted payment for Smith’s transportation by the District and/or the furnishing of transportation to Smith by the District and thus that the injury occurred in the course of Smith’s employment since she was enroute from the hospital at that time. Although we disagree with Smith’s contention that the payment of this compensation constituted payment for transportation or the “furnishing” of transportation by the District, we note that, even if we were to accept Smith’s contention, the Court in Byrd, 540 S.W.2d at 462, stated that the furnishing of transportation as a part of the contract of employment, standing alone, is not sufficient to show that the injuries occurred in the course of employment and while in the furtherance of the employer’s business. In all of these cases, the location of drilling sites in uninhabited areas made it essential that the employers furnish transportation to the employees, Byrd, 540 S.W.2d at 462-463, and it was necessary that the employer furnish transportation in order to secure employees, Adams, 555 S.W.2d at 529. Of course, in the case at hand, no such necessity existed. Thus, there was no fact issue as to the injury occurring while Smith was in the course of her employment with the District. We do not address the other cases which Smith cites in support of her position since all of those cases are factually distinguishable in that the payment received in those cases was compensation for transportation. See Gardner v. United States Fidelity and Guaranty Co., 574 S.W.2d 636, 639 (Tex.Civ.App. — Amarillo 1978, writ ref’d n.r.e.); Liberty Mutual Insurance Co. v. Chesnut, 539 S.W.2d 924, 927 (Tex.Civ.App.-El Paso 1976, writ ref’d n.r.e.).

Accordingly, we affirm the judgment of the trial court.

AKIN, J., dissenting.

AKIN, Justice,

dissenting.

I cannot agree that summary judgment for the Dallas County Hospital District (the “Hospital District”) was proper because the Hospital District failed to establish, as a matter of law, that Smith was not in the course of her employment when the accident occurred. Accordingly, I would reverse and remand the cause for trial on the merits. Consequently, I must dissent.

The majority has ignored well-settled principles for reviewing the granting of a summary judgment. For example, a mov-ant, in order to be entitled to summary judgment, must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). The reviewing court must view the evidence in the light most favorable to the non-movant, Valley Stockyards Co. v. Kinsel, 369 S.W.2d 19 (Tex.1963), and must indulge every reasonable inference and resolve all doubts in favor of the non-movant, Hudnall v. Tyler Bank & Trust Co., 458 S.W.2d 183 (Tex.1970). Additionally, courts are to give the Workers’ Compensation law a liberal construction in order to accomplish its purposes and to, at the same time, promote justice. Goldman v. Torres, 161 Tex. 437, 341 S.W.2d 154 (1960). The Workers’ Compensation law should be liberally construed for the protection of the worker. Goldman, 341 S.W.2d at 158.

I begin my consideration of the issue before us by noting that Texas adheres to the “coming and going” rule, under which an injury received while using the public streets and highways in going to or returning from the place of employment is not compensable. American General Insurance Co. v. Coleman, 157 Tex. 377, 303 S.W.2d 370 (1957). The rationale of the “coming and going” rule is that such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards relating to and originating in the work or business of the employer. Texas General Indemnity Co. v. Bot tom, 365 S.W.2d 350 (Tex.1963). Thus, under this rule an injury received by an employee while traveling to and from his place of employment is considered not to be sustained in the course of his employment.

The Texas Workers’ Compensation law covers injuries sustained in the course of employment. TEX.REV.CIV.STAT.ANN. art. 8306, § 3b (Vernon 1967). TEX.REV. CIV.STAT.ANN. art. 8309, § 1 (Vernon 1967) provides that, with certain exceptions not applicable here, the term “injury sustained in the course of employment” includes:

all other injuries of every kind and character having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere. (Emphasis added).

Under section 1 a claimant must show that the injury was of a kind and character that had to do with and originated in his employer’s work, business, trade, or profession and was received while he was engaged in or about the furtherance of his employer’s affairs or business. Bottom, 365 S.W.2d at 352-53. On summary judgment, however, the movant has the burden of establishing that the injury, as a matter of law, was not sustained in the course of employment.

I would hold that Smith has at least raised a fact issue as to whether her injury was related to and originated in her employer’s work or business and was received while she was engaged in or about the furtherance of her employer’s business. In this respect, it is clear that Smith’s injury occurred while she was engaged in the furtherance of the Hospital District’s business because the hospital, under a written personnel policy memorandum, paid Smith on a “portal-to-portal” basis. Thus, her employment commenced when she left her home in response to a call from the hospital to come in to work and continued until she returned home. Since this written memorandum is an unambiguous part of her contract of employment, the Hospital District is bound by its terms. Consequently, summary judgment evidence by the Hospital District purporting to construe this memorandum is barred by the parol evidence rule. Thus, the majority’s reliance upon the explanation of the memorandum by the Hospital District is misplaced.

Smith’s injury was also related to and originated in her employer’s work or business. The Hospital District is, inter alia, in the business of providing radiology services. Smith’s “on call” travel, as a result of which her injury occurred, directly facilitated the Hospital District’s ability to provide these services. The “on call” arrangement benefited the Hospital District in at least two ways: (1) it enabled the Hospital District to provide radiology services at nights and on weekends; and (2) it enabled the Hospital District to provide these services at a lower cost to the Hospital District, in that it is doubtless less expensive to bring in “on call” personnel to provide radiology services at nights and on weekends than it would be to maintain a twenty-four hour per day, seven day per week radiology staff.

TEX.REV.CIV.STAT.ANN. art. 8309 § lb (Vernon 1967) limits the definition of “injury sustained in the course of employment” with respect to injuries related to transportation or travel. Section lb provides, in pertinent part:

Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment_ (Emphasis added).

To recover under the Workers’ Compensation law when, as in the instant case, transportation or travel is the basis of the claim for injury, a claimant must show that the requirements of both section 1 and section lb have been met. Bottom, 365 S.W.2d at 353-54. Consequently, the provisions of section 1 and section lb are limited exceptions to the “coming and going” rule which allow a claimant, in those situations specified therein, to recover for travel-related injuries sustained in the course of his employment. The question before us, then, is whether the Hospital District has established as a matter of law that Smith’s injuries were not suffered in the course of her employment.

Turning to section lb, I would hold that Smith has, at the very least, raised a fact issue as to whether she was “directed in [her] employment to proceed from one place to another place.” This provision of section lb includes situations in which the employee proceeds from one place to another “under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment.” Jecker v. Western Alliance Insurance Co., 369 S.W.2d 776, 779 (Tex.1963). In this respect, Smith worked a regular, forty-hour, Monday through Friday work week. The law is clear that her travel to and from work during this regular work week is within the purview of the “coming and going” rule and, consequently, injuries incurred during such travel are not compensable because they fall within the range of risks to which all members of the traveling public are subject. In addition to her regular work week, however, Smith was “on call” for one week and weekend per month. While “on call” it was not unusual for Smith to be directed by her employer to come to the hospital to perform her radiology duties two or more times per twenty-four hour period. On the average, she was called back to the hospital about fifteen times per week. Smith’s trips to and from the hospital while “on call” were made at the direction of her employer, pursuant to the terms of her “on call” employment, in order for Smith to discharge her duties at the hospital. By virtue of these numerous trips, Smith was subjected to a greater risk of injury during travel than were other members of the traveling public. Thus, the rationale underlying the “coming and going” rule does not apply to these trips made while “on call.”

I would hold that Smith has at least raised a fact issue as to whether she was “directed in [her] employment to proceed from one place to another place” and, therefore, that the injury suffered by Smith during such travel falls within one of the specified exceptions to the section lb provision mandating that a travel-related injury “shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment.”

I am not unmindful of Loofbourow v. Texas Employer’s Insurance Association, 489 S.W.2d 456 (Tex.Civ.App.-Waco 1972, writ ref’d n.r.e.), which is heavily relied upon by the Hospital District and by the majority in its opinion. Loofbourow does not, however, control the ease at bar. Lo-ofbourow concerned a nurse who was injured in an auto accident while on her way to work. She was “on call” and had been called in to the hospital to perform her duties. The Waco Court of Appeals held that, under section lb, her injury was not compensable. Because all of her job duties were performed at the hospital, that court held that she was not directed “in her employment” to proceed from one place to another. Loofbourow is distinguishable from our case in two important respects. First, nurse Loofbourow was “on call” only — she was required to report to the hospital only when called in. In contrast, Smith, while “on call”, was required to report to the hospital for her regular Monday through Friday work week in addition to reporting when called. Thus, the risks of travel-related injury to which Smith was exposed were greater than those to which Loofbourow was exposed. Second, Loof-bourow was compensated by a monthly salary plus $30 for each twenty-four hour period during which she was “on call.” Smith, in addition to being compensated at one and one-half times her regular hourly rate for the time spent on her radiology duties at the hospital after being called in, was paid one hour “portal-to-portal” time for each trip to and each trip from the hospital made while “on call.” “Portal-to-portal” time is defined by the Hospital District as “the travel time compensated for which is needed to transport an employee from their residence to the Hospital and back to their residence for work time over and above the ordinary scheduled day.” (Emphasis added). This practice of paying employees for their travel time, both to and from the hospital, shows that the Hospital District considered an employee’s travel that was necessitated by the hospital’s direction to come in as being “in [the employee’s] employment.” At minimum, a fact issue has been raised.

In conclusion, Smith should not be penalized as a consequence of the Hospital District’s decision to provide its night and weekend radiology services by means of the “on call” system, which exposed Smith to risks greater than those borne by the general traveling public. Accordingly, I would reverse the decision of the trial court and remand the cause for trial on the merits.

      . We note that the holding in Jecker was subsequently overruled by the Texas Supreme Court on another point not at issue in this case in McKelvey v. Barber, 381 S.W.2d 59, 65 (Tex.1964).


author: BOYD, Justice.

text:
    Dale Roy LYNCH, Appellant, v. The STATE of Texas, Appellee.
    No. 07-83-0266-CR.
    Court of Appeals of Texas, Amarillo.
    Feb. 11, 1985.
    Carlton McLarty, Lubbock, for appellant.
    Jim Bob Darnell, Dist. Atty., Hollis M. Browning, Asst. Dist. Atty., Lubbock, for appellee.
    Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
   BOYD, Justice.

Appellant Dale Roy Lynch brings this appeal from his conviction of driving while intoxicated and the consequent court-assessed punishment of ten days confinement in the county jail and a fine of $350.00. In appellant’s first ground, he contends the court erred in admitting the results of a blood alcohol test over his objection that the State had failed to establish that the blood specimen used in the blood alcohol test was the same specimen taken from the suspect. We agree and, accordingly, reverse the conviction and remand the case for new trial.

As a result of a one-car accident, appellant was taken to the emergency room of Lubbock General Hospital at 4:43 a.m. on January 16, 1983. Dr. Craig Rhyne was the doctor on duty at the time of appellant’s arrival. Dr. Rhyne testified that appellant appeared to have been involved in a motor vehicle accident and had suffered several facial lacerations. Appellant signed a consent to treatment form and, as a part of appellant’s medical treatment, Dr. Rhyne ordered a blood alcohol test. The blood sample was drawn by a nurse on duty in the emergency room at the time. However, Dr. Rhyne did not know which nurse nor did he observe any label being placed on the sample taken from appellant. There is no testimony that Dr. Rhyne even observed the sample actually being taken from appellant.

Mrs. Barbara Kennedy, the Director of the Medical Records Department of the hospital, brought two emergency room records for a patient named Dale Lynch. She testified to the facts necessary to lay the predicate for the admission of the records under Tex.Rev.Civ.Stat.Ann. art. 3737e (Vernon Supp.1985), i.e., the records were prepared in the course of the patient’s treatment, the records were made in the regular course of business and were regularly maintained, the person who made the records had personal knowledge of the records and they were maintained under her care, custody, and control. The records contained the results of a blood alcohol test and Dr. Rhyne was allowed to testify as to the results of that test and, based upon those results, a diagnosis of acute ethanol or alcohol intoxication. Dr. Dale F. Rector testified as to the results of the test and gave his conclusion, based upon those results, that at the time the test was made the patient did not have the normal use of his faculties and activities. He also testified that he did not know if the blood sample drawn from appellant was actually the sample tested in the lab.

The thrust of the State’s argument is that the medical records were properly admitted under article 3737e and that any deficiencies in the identification of the person actually taking the blood or its chain of custody thereafter bear upon the weight rather than the admissibility of the test results. In support of this proposition, they cite the holding of the Texas Supreme Court in Missouri-K-T.R. Co. v. May, 600 S.W.2d 755, 756 (Tex.1980). While that holding certainly establishes that rule in civil cases in this State, we do not believe it applicable in criminal cases.

Under our unique system in this State, the court of last resort in criminal cases is the Court of Criminal Appeals and we believe that Court’s holdings mandate a different result. It has long been established in this State that, as a condition precedent to the admission into evidence of the results of such a blood test, proof must be made that the specimen tested is the same specimen actually taken from the accused. Brown v. State, 156 Tex.Crim. 144, 240 S.W.2d 310, 311 (1951). 2 R. Ray, Texas Law of Evidence Civil and Criminal § 1430 (Texas Practice 3d ed. 1980, 1984 Supp.). While the State correctly asserts that the Court of Criminal Appeals has recognized the applicability of article 3737e to criminal cases, that Court has specifically cautioned that even though “the formal requirements for admissibility of such records may be shown, they are not to be admitted automatically; the indispensable fundamental trustworthiness of the proffered record must be evident.” Coulter v. State, 494 S.W.2d 876, 883 (Tex.Crim.App. 1973). The teaching of Brown and Coulter is that in order to establish reliability sufficient to justify the admission in evidence of the results of a test such as this is, the State must show that the blood sample tested was the one actually drawn from the suspect as well as the proper chain of custody of that sample. The differences in the standard of proof in a criminal case and the far-reaching consequences of a criminal conviction more than justify the imposition of a more stringent rule in criminal than in civil cases.

Since this record does not show that the blood sample tested was the same as that drawn from appellant, the admission of the results of that test in evidence was error. Appellant’s first ground of error is sustained. The disposition which we have made of this ground makes discussion of the remainder of appellant’s grounds of error unnecessary.

The judgment of conviction is reversed and the cause remanded for new trial.


author: DEVANY, Justice.

text:
    Dorothea DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 05-84-00427-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 13, 1985.

      Victor Ortiz, Dallas, for appellant.
    Dennis E. Guffey, Asst. Dist. Atty., Dallas, for appellee.
    Before STEPHENS, VANCE and DEVA-NY, JJ.
   DEVANY, Justice.

The jury found appellant, Dorothea Davis, guilty of recklessly injuring a child younger than fourteen years and assessed three years imprisonment as punishment. In thirteen grounds of error, appellant complains that the trial court erroneously overruled her objections to the jury charge and photographic evidence of complainant’s condition; denied her requested jury instructions and motions for mistrial; and improperly admitted certain testimony. She also contends that the evidence is insufficient to support her conviction. Because many of appellant’s contentions present nothing for review and because we disagree with her remaining contentions, we affirm her conviction.

Appellant is complainant’s mother. In grounds of error one, two and four, she contends that the trial court erred when it refused her requested jury instructions on the definition of “parent” and when it instructed the jury concerning the meaning of “on or about” the date the offense allegedly occurred. However, none of these grounds contain citations of authority and only one contains a reference to the record. Because these grounds of error do not comply with TEX. CODE CRIM. PROC. ANN. art. 40.09(9) (Vernon Supp.1985), they present nothing for review. McWherter v. State, 607 S.W.2d 531, 536 (Tex.Crim.App.1980); see also, Cook v. State, 611 S.W.2d 83, 87 (Tex.Crim.App.1981) (concerning the need to cite evidence in the record supporting requested instructions).

In her third ground of error, appellant complains of a variance between the indictment and the charge. The indictment alleged that appellant “knowingly and intentionally ... caused serious bodily injury and serious physical deficiency and impairment ... by failing to provide support ..., to wit: failing, neglecting and refusing to provide ... adequate food, clothing and medical care ... (emphasis added).” However, the trial court charged the jury in the disjunctive.

Appellant contends that, by charging the jury in the disjunctive, the jury was authorized to find her guilty for failing to provide adequate clothing. Appellant admits that the State may conjunctively allege the methods in which one commits an offense; however, she argues that the “failure or refusal solely to provide clothing ... [can] not cause serious physical deficiency or impairment.”

We disagree. Whether a parent’s failure to perform a legal obligation owed to his or her child caused “serious physical deficiency or impairment” is a question for the trier of fact. We cannot say that, as a matter of law, the failure to provide adequate clothing could never have this effect on a child. Because appellant has not properly attacked the sufficiency of the evidence as shown below, we think this contention is waived.

Nevertheless, having carefully reviewed the record, we think the evidence would support the jury’s verdict even if failure to provide adequate clothing were its sole basis for finding appellant guilty. See Sidney v. State, 560 S.W.2d 679, 681 (Tex.Crim.App.1978). Medical testimony indicated that the complainant suffered from a severe rash caused by prolonged exposure to urine. A physician testified that this rash was similar to a second-degree burn and caused a substantial risk of death. Thus, we think the jury could have properly inferred that the appellant’s failure to regularly change the complainant’s diapers constituted failure to provide adequate clothing which caused serious physical deficiency.

Concerning the disjunctive submission of the remaining elements of the offense, it is not erroneous to charge the jury in the disjunctive when the indictment alleges them conjunctively unless the statute defines the offense in conjunctive terms. See Ely v. State, 582 S.W.2d 416, 421 (Tex.Crim.App.1979). The offense of injury to a child is disjunctively defined under TEX. PENAL CODE ANN. § 22.04 (Vernon Supp.1985); therefore, the trial court did not err by charging the jury in the disjunctive. Accordingly, appellant’s third ground of error is overruled.

At trial, the State introduced testimony of incriminating statemeiits made by appellant to a social worker who interviewed her when she brought complainant to the hospital for medical care. In her fifth ground of error, appellant contends this testimony was inadmissible because the social worker had not advised her of her rights as required by TEX. CODE CRIM. PROC. ANN. art. 38.22 (Vernon 1979 & Vernon Supp. 1985). The State contends that article 38.-22 is inapplicable because the social worker’s interview was not a “custodial” interrogation.

Custodial interrogation occurs when law enforcement officers initiate questioning after a person has been taken into custody or otherwise significantly deprived of freedom of action. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). Probable cause to arrest, subjective intent of the police, focus of the investigation, and the accused’s subjective beliefs are relevant to determining whether the social worker’s questioning occurred while appellant was in “custody.” United States v. Phelps, 443 F.2d 246, 247 (5th Cir.1971).

In the instant case, appellant was interviewed by a state social worker called in by the hospital’s physicians. Concerning her intent for conducting the interview, the social worker testified that she was investigating whether or not to initiate civil proceedings to remove the complainant from appellant’s custody. She was not a police officer nor was she making a criminal investigation. Appellant did not testify whether she believed she was free to leave the hospital’s family room where the interview was held.

On the basis of this evidence, the interview was not a “custodial interrogation” which required Miranda warnings. Cf. Payne v. State, 579 S.W.2d 932 (Tex.Crim.App.1979) (holding general questioning by probation officer not a “custodial” interrogation). Consequently, appellant’s fifth ground of error is overruled.

Appellant next complains that the trial court erred when it admitted photographs depicting the complainant’s condition because they were not properly authenticated and because they were inflammatory. Concerning the authentication issue, appellant argues that, although the authenticating witness stated that these photos accurately depicted the child’s condition on the day they were taken, they were inadmissible because the witness did not testify before the photos were admitted that she was present when they were taken.

Proper' authentication of photographic evidence requires that the witness, based on personal knowledge, identify the picture as accurately and correctly portraying the relevant facts. Goss v. State, 549 S.W.2d 404, 406 (Tex.Crim.App.1978); Haas v. State, 498 S.W.2d 206, 211 (Tex.Crim.App.1973). Because the witness satisifed this requirement, whether or not she was present at the time the picture was taken affects the weight to be given the photo by the trier of fact rather than its admissibility. See Dupnik v. State, 654 S.W.2d 780, 788 (Tex.App. — Corpus Christi 1983, pet. ref’d). Nevertheless, even if the witness were required to be present when the photograph was taken, the error of which appellant complains would have been cured because the witness later testified that she was present when the child was photographed. See Sherlock v. State, 632 S.W.2d 604, 606 (Tex.Crim.App.1982).

Appellant also claims that admitting these photographs was improper because they were inflammatory and prejudicial. It is within the trial judge’s discretion to decide if the prejudicial effect of these pictures was outweighed by their probative value concerning a relevant issue. Martin v. State, 475 S.W.2d 265, 267 (Tex.Crim.App.), cert. denied, 409 U.S. 1021, 93 S.Ct. 469, 34 L.Ed.2d 312 (1972); Lanham v. State, 474 S.W.2d 197, 199 (Tex.Crim.App.1971).

Complainant’s physical condition was relevant to proving serious physical deficiency or impairment. Further, several witnesses testified to the child’s physical appearance without objection by appellant. Because this testimony was admissible to illuminate the general nature of the incident, Campbell v. State, 525 S.W.2d 4, 7 (Tex.Crim.App.1975), a photographic rendition of complainant’s appearance was also admissible. Luck v. State, 588 S.W.2d 371, 374 (Tex.Crim.App.1979). A photograph is merely a graphic portrayal of facts that may be proved by oral testimony. Welch v. State, 576 S.W.2d 638, 640 (Tex.Crim.App.1979). Accordingly, we hold that the trial court did not err when it admitted these photos and overruled appellant’s sixth and eighth grounds of error.

Appellant next contends, in her seventh ground of error, that the trial judge erroneously denied her motion for mistrial after sustaining her objection to testimony authenticating photographs of appellant’s other children and instructing the jury to disregard. Appellant contends that the testimony was designed to introduce an extraneous offense. Assuming ar-guendo that this evidenced an extraneous offense, the instruction to disregard cured any error. Davis v. State, 642 S.W.2d 510, 512 (Tex.Crim.App.1982). Consequently, appellant’s seventh ground of error is overruled.

In grounds of error nine through eleven, appellant complains that the trial judge improperly admitted testimony in violation of her motions to instruct and the doctor-patient privilege. However, appellant merely restates these grounds of error as her argument following a brief factual statement. Consequently, because these grounds are not briefed, nothing is presented for review. Cowart v. State, 508 S.W.2d 613, 616 (Tex.Crim.App.1974); TEX. CODE CREVLPROC.ANN. art. 40.09(9) (Vernon Supp.1985). Therefore, these grounds of error are overruled.

In her twelfth ground of error, appellant contends that the trial court erroneously overruled her motion for mistrial resulting from the prosecutor’s improper jury argument. We have thoroughly examined the statement of facts and are unable to locate such motion during argument at the close of either the guilt-innocence or punishment phases of the trial. Further, appellant merely refers to ten pages of recorded jury argument containing seven objections. Because this ground of error complains of more than one act or incident, it is multifarious and preserves nothing for review. Euziere v. State, 648 S.W.2d 700, 703 (Tex.Crim.App.1983); TEX.CODE CRIM.PROC.ANN. art. 40.09(9) (Vernon Supp.1985); TEX.R.CRIM.APP.P. 201.

In her last ground of error, appellant concludes that the State did not present sufficient evidence to prove her guilty. However, appellant does not refer us to the record nor does she cite any legal authority to support this conclusion. A ground of error based on insufficient evidence that contains no references to the record and cites no authority presents nothing for review. Mosley v. State, 494 S.W.2d 557, 558 (Tex.Crim.App.1973). Thus, we overrule this ground of error and affirm the trial court’s judgment.


author: DUGGAN, Justice.

text:
    A. DUDA & SONS, INC., Appellant, v. John M. MADERA, Appellee.
    No. 01-84-0739-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 14, 1985.
    Christina Stone, Stone & Stone, Houston, for appellant.
    John M. Robinson, Robinson & Weaver, Houston, for appellee.
    Before DUGGAN, WARREN and HOYT, JJ.
   OPINION

DUGGAN, Justice.

The appellant, A. Duda & Sons, Inc. (“Duda”), filed suit against Tomatoes, Inc., and appellee, John M. Madera, individually, alleging that the two defendants were jointly and severally liable for the balance due on a promissory note. Interlocutory summary judgment was entered against Tomatoes, Inc., for the unpaid balance and pre-judgment interest. After a non-jury trial, the court entered a final judgment in favor of Duda against Tomatoes, Inc., for the balance due, plus pre- and post-judgment interest and attorney’s fees, but entered a take-nothing judgment as to appel-lee, John M. Madera.

The promissory note in question, payable to Duda in the amount of $47,872, is typewritten and begins, “For Value Received we promise to pay to A. Duda & Sons, Inc....” It is signed:

ATTEST: TOMATOES, INC. 3118 Produce Row Houston, Texas 77023
_ /s/ John Madera BY: By:

Duda’s petition alleged that Tomatoes, Inc., and Madera, individually, defaulted in paying the note and that the unpaid principal amounted to $39,893.40. The defendants answered with separately filed general denials, after which Duda took the interlocutory summary judgment against Tomatoes, Inc. On the day of trial, Madera filed an amended answer which the trial court disallowed as being untimely.

During trial, Joseph D. Obucina, Jr., testified that he was produce manager for market development for Duda; that Duda looked to Madera personally for payment of the indebtedness owed to Duda; and that prior to and at the time of the execution of the note, Madera represented that he was signing the note in an individual capacity. Duda’s attorney testified concerning reasonable attorney’s fees and then rested. The defendants moved for an instructed verdict, which was denied, and rested without presenting evidence.

The trial court made findings of fact that Duda was the owner and holder of a promissory note “executed by Defendant Tomatoes, Inc., by John Madera, and delivered to plaintiff by Defendant Tomatoes, Inc.”; that Duda “obtained the note by paying cash to Defendants Tomatoes, Inc. and John Madera ”; that the note matured and the plaintiff presented the note for payment “to defendants Tomatoes, Inc. and John Madera”', and that Tomatoes, Inc., defaulted in paying the principal and interest on the note. As conclusions of law, the trial court found that Tomatoes, Inc., is liable to Duda for the principal amount due, pre- and post-judgment interest and attorney’s fees, and that Duda “should take nothing by this suit as to defendant John Madera.” (Emphasis added).

Duda appeals only that portion of the final judgment ordering that it take nothing as to Madera. Madera has filed no appellee’s brief.

In its first point of error, Duda contends that the trial court erred in granting judgment for Madera, individually, because Duda’s pleadings and proof “conclusively established appellee Madera’s individual capacity in which he signed, ... and no evidence was introduced to refute” that proof. Duda’s second point of error alleges that the trial court erred in granting judgment in favor of Madera, individually, because Madera, as maker of the note, did not indicate his representative capacity or show himself free from personal liability by reason of agency, if any. Duda urges that Madera presented no evidence as to his representative capacity, and that the trial court made no findings of fact as to Mad-era’s representative capacity. The two points will be discussed together.

The circumstances under which a person who signs an instrument may avoid personal liability are as follows:

(a) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
(b) An authorized representative who signs his own name to an instrument
(1) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(2) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does riot name the person represented but does show that the representative signed in a representative capacity.
(c) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.

Tex.Bus. & Com.Code Ann. sec. 3.403 (Vernon 1968) (emphasis added).

A signer is personally liable on an instrument that does not show that he signed in a representative capacity. Griffin v. Ellinger, 538 S.W.2d 97 (Tex.1976). An instrument may disclose on its face that a signature was executed only in a representative capacity, even though the particular office or position of the signer is not disclosed thereon. Id. at 99. In the instant case, the promissory note is signed by appellee, Madera, below the typewritten name and address of the company, but does not indicate that Madera signed in a representative capacity, as dictated by section 3.403(b)(2). Since the organization’s name is not followed by Madera’s name and office, Madera’s representative capacity is not indicated as mandated by section (c). We find that the instrument on its face does not indicate that Madera signed in a representative capacity.

Additionally, the face of the typewritten instrument itself affirmatively shows that payment was promised from more than one source by its wording, “For Value Received we promise to pay A. Duda & Sons, Inc— ” (emphasis added). Examination of the signature portion of the note reveals the typewritten corporate name, Tomatoes, Inc., and John Madera’s signature. Nothing on the face of the note or in testimony to the court reflects that Madera signed in a representative capacity only, and with no intention of incurring personal liability.

Further, a person who signs a promissory note is presumed to be liable in an individual capacity, unless he interposes a defense. Seale v. Nichols, 505 S.W.2d 251 (Tex.1974). In the instant case, Mad-era proceeded to trial on his original answer, a general denial, because the amended answer he filed on the day of trial was disallowed as being untimely filed. Where an instrument does not show on its face that a person signed in a representative capacity only, extrinsic evidence is allowed to show that the immediate parties agreed or otherwise understood that the signer would not be personally liable. Griffin, 538 S.W.2d at 100. At trial, Duda presented evidence that Madera made representations that he would stand by the note. While Madera was entitled to offer testimony that he signed only in a representative capacity, he offered no evidence to rebut his apparent status of individual signer as shown by both the face of the note and Duda’s testimony through the witness Obu-cina. In the face of presumptive liability, he offered no defense. We find as a matter of law that Madera was liable in an individual capacity. Points of error one and two are sustained.

The take-nothing judgment entered as to John Madera, individually, is reversed and rendered. The judgment is reformed to show Tomatoes, Inc., and John Madera, individually, to be jointly and severally liable for the balance due on the promissory note, together with pre- and post-judgment interest, attorney’s fees, and costs.


author: McDONALD, Chief Justice.

text:
    Alton V. WILLIAMS, Appellant, v. Jacqueline C. (Williams) GAUL, Appellee.
    No. 10-84-087-CV.
    Court of Appeals of Texas, Waco.
    Feb. 14, 1985.
    Rehearing Denied March 14, 1985.

      Ernest F. Clouser, Clouser, Brooks & Greenlee, Houston, for appellant.
    Roy C. Engelke, Cynthia F. Driskell, Butler & Engelke, Dickinson, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Alton V. Williams, the natural father, from an order of the trial court terminating his parental rights to his daughters, Kedren Estelle Williams and Kimberly Danielle Williams, ages 11 and 4 at time of trial.

The record reflects appellant and appel-lee were divorced in 1979 and appellee was appointed managing conservator of the couple’s two minor children. Appellant was ordered to pay child support of $150 per month. On November 17, 1981, appel-lee filed suit to terminate appellant’s parental rights, alleging appellant had failed to support the children in accordance with his ability during a period of one year ending within 6 months of the date of filing the petition and that termination of the parent-child relationship would be in the best interest of the children. Appellant generally denied appellee’s allegations. A guardian ad litem was appointed for the children.

Trial was to a jury, the findings of which are summarized as follows:

1) We do find from clear and convincing evidence that Alton V. Williams failed to support his minor children in accordance with his ability during a continuous period of 12 consecutive months which ended within 6 months of the date of filing the petition.
2) We do find from clear and convincing evidence that termination of the parent-child relationship between Alton Y. Williams and the minor children would be in the best interest of the minor children.

The decree of termination was signed December 16, 1983.

Appellant appeals on 2 points asserting insufficiency of the evidence to support the jury findings.

Section 15.02 of the Family Code provides in part:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that:
(1) the parent has:
(F) failed to support the child in accordance with his ability during a period of one year ending within 6 months of the date of the filing of the petition;
(K) ...; and in addition, the court further finds that
(2) termination is in the best interest of the child.

Both elements must be proven by clear and convincing evidence. In re G.M., S.Ct. 596 S.W.2d 846, 847; Neiswander v. Bailey, CA (Dallas) NWH, 645 S.W.2d 835. Clear and convincing proof has been defined as that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. In re G.M., supra; State v. Addington, S.Ct., 588 S.W.2d 569, 570.

Point 1 asserts the evidence is insufficient to establish that appellant failed to pay child support in accordance with his ability during a period of one year ending within 6 months of the date of filing of the petition.

The petition in this suit was filed November 17, 1981; thus, the alleged failure of appellant to support the minor children in accordance with his ability involves a period of one year ending within 6 months of November 17, 1981. The relevant time period in this case extends from May 17, 1980, to November 17, 1981.

Appellant testified that his primary income during this period was in the form of student loans, $2,500 per semester for 2 semesters, which enabled appellant to attend law school. He further testified that tuition and book expenses amounted to approximately $700 to $800 per semester. Appellant stated he worked approximately 10 days during the fall of 1980, earning approximately $1,000. He testified that support from his mother, brother and friends during the period in question amounted to approximately $100. The record reflects appellant was employed from June or July to mid-August, 1981, as a maintenance mechanic and netted approximately $2,000. Appellant testified to working from August to December, 1981, as a pump mechanic, earning $1670 per month.

Appellant admitted and the Deputy District Clerk testified that from May 17,1980, through November 17, 1981, no child support payments had been made. The record further reflects that appellant did not attempt to contribute to the support of the children in any way during the relevant period. Inability to provide support during some months will not interrupt the running of the one year period if no effort is made to pay support during other months in which there is an ability to pay. In the Interest of S.K.S., CA (San Antonio) NWH, 648 S.W.2d 402, 404. McGowen v. State, CCA (Houston-lst) NRE, 558 S.W.2d 561, 565.

We hold the trier of fact could reasonably have concluded as highly probable that appellant failed to support his minor children in accordance with his ability during a continuous period of 12 consecutive months ending within 6 months of the date of the filing of the petition. See Neiswander v. Bailey, supra.

Point 1 is overruled.

Point 2 asserts the evidence is insufficient to support a finding that termination of appellant's parental rights is in the best interest of the children.

The best interest of the children will always be the primary consideration of the Court. See Wiley v. Spratlan, S.Ct., 543 S.W.2d 349. A strong presumption exists that the interest of the minor child is served by maintaining the parent-child relationship, and this presumption may only be rebutted by clear and convincing evidence. In re G.M., supra. Termination of parental rights is final, complete and irrevocable. A declaration to sever the relationship must be made only upon the most solid and substantial reasons, because it permanently divests the parent and child of all legal rights, privileges, duties and powers regarding each other except the child’s right to inherit. Wiley v. Spratlan, supra. Among the factors to be considered in ascertaining the best interest of the child are:

1) The emotional and physical needs of the child now and in the future;
2) The emotional and physical danger to the child now and in the future;
3) The parental abilities of the individual seeking custody;
4) The plans for the child by the individual seeking custody;
5) The acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and
6) Any excuse for the acts or omissions of the parent.

Holley v. Adams, S.Ct., 544 S.W.2d 367, 372; Allred v. Harris County Child Welfare Unit, CA (Houston-lst) NRE, 615 S.W.2d 803, 807. An additional consideration consists of whether a step-parent is wishing to adopt the child and assume parental obligations. Dressier v. Aldridge, CA (El Paso) NWH, 567 S.W.2d 48, 50.

In the case before us, Dr. Dru Copeland, a clinical psychologist, testified after having examined both children that they are extremely well-adjusted children. Although the psychologist stated that Ke-dren, the older child, is generally cautious and distrustful, she also testified that Ke-dren does very well in school and relates well to adults and teachers. Dr. Copeland testified Kedren fears being separated from her mother and perceives her father as an aggressor, but the doctor also stated the situation could be remedied by a strong commitment and that it was possible to alter Kedren’s view of her father as an aggressor. Dr. Copeland testified that Kim’s perception of her father is based upon fantasy, as she has not seen him since she was a month or two old.

The record reflects appellant never physically abused either child. Nor is there a step-parent desiring to adopt the children and take on parental responsibilities. The record reflects appellee had remarried after, divorcing appellant, but at time of trial she has since divorced her second husband. No physical danger or great emotional danger appears from the record. The record is silent regarding plans for the children by appellee. It is not contemplated that the children will be permanently removed from the care of their mother, the appellee. We think the evidence falls far short of establishing that termination of appellant’s parental rights is in the best interest of the children.

Point 2 is sustained, which requires a reversal. We render judgment reinstating appellant’s parental rights.

REVERSED AND RENDERED.


author: GUITTARD, Chief Justice. GUILLOT, Justice,

text:
    KEYSTONE LIFE INSURANCE COMPANY, Appellant, v. MARKETING MANAGEMENT, INC., and M.M. Administrators Corp., Appellees.
    No. 05-84-01048-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 15, 1985.

      David L. Patterson, Maxwell, Godwin & Carlton, Dallas, for appellant.
    Larry M. Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellees.
    Before GUITTARD, C.J., and WHIT-HAM and GUILLOT, JJ.
   GUITTARD, Chief Justice.

Keystone Life Insurance Company appeals from an order granting a preliminary injunction pending trial of claims by Marketing Management, Inc. (“MMI”) that Keystone misappropriated MMI’s confidential and trade secret information. Keystone complains that the trial court abused its discretion in granting the order because: (1) MMI failed to establish a probable right to recovery; (2) MMI has an adequate remedy at law; (3) MMI had “unclean hands;” (4) the order is overbroad; and (5) the order violates TEX.R.CIV.PROC. 683. For the reasons set forth below, we affirm the order of the trial court.

The purpose of a temporary injunction is to preserve the status quo of the subject matter of the suit pending a final trial of the case on its merits. Janus Films Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962). Because the trial judge is endowed with broad discretion to grant or deny the injunction, appellate review is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion. Janus Films, 358 S.W.2d at 589. Accordingly, we review the facts only as necessary to make this determination.

MMI is an insurance agency offering group life, health and accident insurance coverages to small and medium-sized employers through a trust arrangement known as the “Policyholders Employees Trust” (PET). MMI entered into an agreement with Keystone, an insurance company, to provide group health and life insurance for the PET policyholders using marketing knowledge and agency relationships provided by MMI and the insurance facilities and claims administration knowledge of Keystone.

Under the contract Keystone agreed to assume all new claims filed under the existing plans and to reinsure all new plans written by MMI and a mutually acceptable primary carrier that Keystone was to provide. The primary carrier was to act as a marketing front while Keystone was to assume all the risk, pay claims, and audit premium collections. The names and addresses of the policyholders were made available to Keystone pursuant to the agreement with MMI and were used by Keystone in performing its duties under the agreement. A dispute between the parties resulted in termination of the agreement.

MMI brought suit and petitioned for a preliminary injunction alleging that before and after termination of its contract with Keystone, Keystone solicited PET insureds to join a competing trust arrangement. Evidence at the hearing showed that Keystone was soliciting PET insureds using information obtained under its contract with MMI, including names and addresses of over 900 certificate holders. This information was not generally available to persons in the business of selling group insurance. Keystone’s solicitations were directed to the PET insureds after MMI sent notice of termination of its contract with Keystone. The solicitations contained premium statements similar in appearance to those generated for the PET plan, which could have been interpreted as soliciting continued payments for the plan in which the policyholders were already enrolled. The same certificate numbers, agency number, and effective dates were given as in previous PET statements. There was also evidence that Keystone intended to continue such solicitations unless restrained by the court. The trial court granted an injunction restraining Keystone from continuing to solicit PET policyholders and from inducing those policyholders to discontinue their relationship with MMI.

Keystone first contends that the evidence is insufficient on four grounds to show a probable right of recovery. However, since the standard of review is to “draw all legitimate inferences from the evidence in the light most favorable to the trial court’s judgment,” David v. Bache Halsey Stuart Shields, Inc., 630 S.W.2d 754, 757 (Tex.App.—Houston [1st Dist.] 1982, no writ), these factual insufficiency points are not proper grounds for review.

Next, Keystone contends that there is no evidence to show a probable right of recovery because the contractual relationship between Keystone and MMI was not one that established fiduciary duties or a duty of confidentiality. The contract itself reads: “The parties are independent contractors with respect to each other. Nothing in this agreement shall be construed to create the relationship of employer and employee, principal and agent or partners or joint venturers.” Furthermore, MMI did not tell Keystone that the information was confidential. Also, Keystone argues that MMI did not prove sole ownership of the information and cannot support an action without so doing.

MMI responds that the parties were bound by the terms of the contract to perform that contract in good faith and that Keystone’s actions are a breach of good faith. Further, MMI contends that recovery for misappropriation of confidential information is not dependent on contractually imposed duties, but, that the right is created by the confidence given, and that an express confidential relationship is not required to establish its cause of action. MMI also maintains that recovery is not predicated on “ownership” but merely on a protectible interest. In support of these contentions, MMI cites Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763, 769-70 (1958); cert. denied, 358 U.S. 898, 79 S.Ct. 223, 3 L.Ed.2d 148 (1958); Texas Shop Towel, Inc. v. Haire, 246 S.W.2d 482, 486 (Tex.Civ.App. — San Antonio 1962, no writ); 2 R. Callmann, Unfair Competition, Trademarks & Monopolies, § 14.33 (4th ed. 1982); Restatement of Torts, § 757 (1939).

Although these authorities tend to support MMI’s position, they are not controlling with respect to the facts of the present case. Keystone’s authorities are likewise inconclusive. Whether the circumstances of this case are sufficient to show that the information in question was understood to be secret and whether the relationship between the parties under their contract was of such a confidential character as to impose a duty to use the information only for the purpose of performing the contract are mixed questions of law and fact, and the full facts have not been developed. The trial judge has the discretion to reserve difficult questions of law and fact, such as these, for full development at a plenary hearing. Irving Bank & Trust Co. v. Second Land Corp., 544 S.W.2d 684, 687 (Tex.Civ.App. — Dallas 1976, writ ref’d n.r. e.). Furthermore, we will not decide these questions since that would be a premature decision of the merits of this case and beyond the permissible scope of review. Iranian Muslim Organization v. City of San Antonio, 615 S.W.2d 202, 208 (Tex.1981); Brooks v. Expo Chemical Co., 576 S.W.2d 369 (Tex.1979); Irving Bank & Trust Co., 544 S.W.2d at 688.

To warrant a preliminary injunction the applicant need only show “a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation.” Walling v. Kimbrough, 365 S.W.2d 941, 943 (Tex.Civ.App. —Eastland) (per curiam), aff'd, 371 S.W.2d 691 (Tex.1963); Irving Bank & Trust, 544 S.W.2d at 687. With respect to Keystone’s contention that there is no evidence of the customer lists’ confidentiality or that Keystone misappropriated the information, we hold that the evidence supports a probable right of recovery and that no clear abuse of discretion is shown in granting the injunction to preserve the status quo pending final trial and decision on the merits.

Next, appellant submits that the court abused its discretion in granting the injunction because MMI has an adequate remedy at law by an award of damages. The use of confidential information to gain access to customers of a competitor has been recognized as a ground for injunctive relief because of the difficulty of establishing the amount of damages. David v. Bache Halsey Stuart Shields, Inc., 630 S.W.2d 754, 756-57 (Tex.App. — Houston [1st Dist.] 1982, no writ) (“One cannot assign a dollar value to a company’s loss of clientele, goodwill, office stability....”); see AMF Tuboscope v. McBryde, 618 S.W.2d 105, 108 (Tex.Civ.App. — Corpus Christi 1981, writ ref’d n.r.e.). The evidence here is that, because of the similarity of the Keystone trust to MMI’s trust, Keystone’s solicitation from the PET customer list would substantially affect MMI’s business. Keystone admittedly plans to continue soliciting from MMI’s customer list unless enjoined from doing so. Thus, the irreparable injury is that the information in question, the subject matter of the suit, would be fully exploited before the trial and MMI’s resulting loss could not be accurately determined. Consequently, we hold that MMI has made a sufficient showing of probable harm in the interim before trial, not fully reparable by damages, such that in maintaining the status quo the trial judge has not abused his discretion.

Keystone relies on Daily International Sales Corp. v. Eastman Whipstock, Inc., 662 S.W.2d 60, 64 (Tex.App. — Houston [1st Dist.] 1983, no writ), for the proposition that MMI’s loss of business and profits as a result of competition from Keystone is curable by an award of damages. In Daily International the appellate court sustained the trial court’s exercise of its discretion in denying a preliminary injunction in a confidential information case. The language Keystone refers to is only one of several alternative reasons given for upholding the lower court’s denial of the temporary injunction. A more substantial ground was the appellate court’s finding that there was no evidence that disclosure of the information was occurring or would occur in the future. 662 S.W.2d at 64.

Next, Keystone asserts that the trial court erred because it granted equitable relief to one with “unclean hands,” alleging that MMI antieipatorily breached the contract with Keystone on which MMI bases its cause of action. However, the only question before the trial court was whether to maintain the status quo — not to determine the ultimate rights of the parties. City of San Antonio v. Producers Association of San Antonio, 314 S.W.2d 413, 415 (Tex.Civ.App. — Eastland 1958, no writ). There is no abuse by the trial court if a cause of action is alleged and evidence which tends to sustain the cause of action is introduced. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953); Producers Association, 314 S.W.2d at 416. Thus, it would be within the trial court’s discretion to reserve matters of a purely defensive nature to the plenary hearing. Without commenting on the merit of this claim, we simply hold that no clear abuse of discretion is shown.

Keystone further contends that the trial court abused its discretion because the order is overbroad, an unreasonable restraint on trade, punitive in nature, and beyond the scope of MMI’s petition. The order prohibits Keystone from:

a. Selling or attempting to sell any form of insurance issued by any other company to or on any of the insureds of Policyholders Employee Trust (“PET”), sponsored by plaintiffs Marketing Management, Inc. and M.M. Administrators Corp. in the State of Texas; or
b. Inducing or attempting to induce any of the insureds of PET sponsored by plaintiffs Marketing Management, Inc. and M.M. Administrators Corp. to cancel, lapse or fail to renew their policies with PET, which is sponsored by plaintiffs Marketing Management, Inc. and M.M. Administrators Corp. in the State of Texas [emphasis added].

This injunction is, in fact, not limited to the use of the information obtained from MMI as a result of the contractual relations between the parties. Consequently, we modify the order to restrain solicitation of only those customers so obtained.

Even so, Keystone would argue that no injunction is proper because, unless prohibited by a valid contract or in the absence of a covenant not to compete, even a former employee is permitted to sell to customers of his late employer in competition with him and that, where the customer lists are not trade secrets, the former employee may legitimately compete with his former employer for the customers, citing Gaal v. BASF Wyandotte Corp., 533 S.W.2d 152, 155 (Tex.Civ.App. — Houston [14th Dist.] 1976, no writ.)

This injunction, as modified, does not prohibit Keystone from competing with MMI; it merely prohibits Keystone from soliciting customers whose names were obtained through the allegedly confidential customer list. Furthermore, the reliance on Gaal is misplaced because in that case the customer lists were held to be confidential to the extent that they were obtained as a result of the defendant’s employment, but not otherwise. Gaal, 533 S.W.2d at 154-55.

Lastly, Keystone contends that the order of temporary injunction fails to adequately set forth the reasons why injury will be suffered if interlocutory relief is not granted. To be sufficient, the court must give “the reasons why the court believes the applicant’s probable right will be endangered if the writ does not issue.” Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953). The trial court’s order states: “Plaintiffs [MMI] have also demonstrated that if defendant is not enjoined from such conduct plaintiffs will probably be irreparably injured, without adequate remedy at law, by the loss of the benefit of such trade secrets, a portion of their business.” MMI’s evidence supports this reason and we find this statement to be sufficient.

Accordingly, the order is modified by restraining solicitation of only those customers whose identities are available to Keystone through information Keystone obtained during its relationship with MMI, and as modified is affirmed.

GUILLOT, J., dissents.

GUILLOT, Justice,

dissenting.

I respectfully dissent on the ground that the evidence does not support a probable right of recovery, and, therefore, the court abused its discretion in granting a temporary injunction. To obtain a temporary injunction, MMI must establish a cause of action and a probable right of recovery. Sun Oil Company v. Whitaker, 424 S.W.2d 216 (Tex.1968). To establish a probable right of recovery MMI must show that Keystone misappropriated a trade secret and that irreparable harm would come to it if a temporary injunction were not issued. The alleged trade secret in this case is a customer list — names and addresses if you will — that both Keystone and MMI contractually agreed to share, that neither party restricted the other in its use of, and that was readily obtainable by others in the same business. The alleged misappropriation did not result from a breach of confidence or from some other impropriety, but from a cessation of contractual relations between two independent contractors, Keystone and MMI. The alleged irreparable injury is simply the loss of insurance premiums, and that is compensable by a suit for damages.

The majority does not give the specific evidence that it claims supports a probable right of recovery. There is, however, sufficient evidence to refuse the granting of an injunction. To begin with, we must take the parties as we find them, viz., independent parties formerly bound by a contract. The record shows that the contract did not refer to the customer list as confidential, did not restrict Keystone’s access to the list, and did not restrict Keystone’s use of the list. The contract does not establish— either explicitly or by implication of law — a confidential relationship between the parties. It does, however, establish that they are independent contractors. It reads:

The parties are independent contractors with respect to each other. Nothing in this Agreement shall create or be construed to create the relationship of employer and employee, principal and agent or partners or joint venturers.

In short, there is no evidence that the parties had a confidential relationship or treated the customer list as a trade secret.

The absence in the contract of an agreement restricting disclosure of information and the absence of an agreement to preserve confidential information are factors courts can consider in determining whether to grant temporary injunctions based on alleged misappropriations of trade secrets. See Daily International Sales Corp. v. Eastman Whipstock, Inc., 662 S.W.2d 60, 63 (Tex.Civ.App. — Houston [1st Dist.] 1983, no writ). Moreover, the owner of the alleged trade secret must perform some affirmative act to protect himself and must make the “disclosee” aware of the confidential nature of the secret and of his duty to keep it confidential. Furr’s, Inc. v. United Specialty Advertising Co., 385 S.W.2d 456, 459 (Tex.Civ.App. — El Paso 1964, writ ref’d n.r.e.), cert. denied, 382 U.S. 824, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965). There is no evidence of the confidential nature of the customer list, no evidence that it was treated confidentially by the partners, and no evidence that MMI told Keystone to keep the list confidential. Thus, MMI has not established that it has a cause of action and a probable right of recovery for misappropriation of a trade secret. I would hold that no injunction should have been issued.