Mohammad Khan and Jamila Williams v. Shell Oil Company and Motiva Enterprises, L.L.C. ( 2002 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-01-00104-CV ______________________________



MOHAMMED KHAN AND JAMILA WILLIAMS, Appellants

V.

SHELL OIL COMPANY AND MOTIVA ENTERPRISES, L.L.C., Appellees

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On Appeal from the 157th Judicial District Court Harris County, Texas Trial Court No. 99-42848A

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Chief Justice Cornelius

O P I N I O N

Mohammed Khan and Jamila Williams sued Shell Oil Company ("Shell") to recover damages resulting from personal injuries suffered by Khan when he was shot during an armed robbery at the Shell service station where he worked. The trial court granted summary judgment in favor of Shell, from which Khan and Williams now appeal.

The single issue presented for review is whether granting summary judgment was error. The propriety of rendering summary judgment is a question of law. We review de novo the trial court's decision to grant summary judgment. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

With a traditional motion for summary judgment, the movant bears the burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A defendant moving for summary judgment must negate at least one essential element of each of the plaintiff's theories of recovery, Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970), or plead and conclusively establish each element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). If the moving party does not meet its burden of proof, the nonmovant has no burden and the summary judgment motion must fail. See id. If the moving party produces summary judgment evidence entitling it to summary judgment, the burden shifts to the nonmovant to present evidence that raises a material fact issue. Phan Son Van v. Pena, 990 S.W.2d 751, 752 (Tex. 1999); Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In deciding whether there is a disputed material fact issue precluding summary judgment, summary judgment evidence favorable to the nonmovant will be taken as true, every reasonable inference must be indulged in favor of the nonmovant, and any doubts resolved in the nonmovant's favor. Nixon, 690 S.W.2d at 548-49.

Khan sued Shell on theories of negligence and gross negligence. Common law negligence consists of three elements: 1) a legal duty owed by one person to another; 2) a breach of that duty; and 3) damages proximately resulting from the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975). Shell moved for summary judgment on the ground that it owed no duty to Khan. Khan alleged that Shell failed to provide him a safe place to work. The proper inquiry concerning duty in a case alleging negligence in maintaining a safe workplace focuses on who had specific control over the safety and security of the premises. See Exxon v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993). In particular, the focus should be on who had the right to control the alleged security defects leading to the plaintiff's injuries. See id. Thus, whether Shell had a duty to provide a safe workplace for Khan turns on whether the company actually controlled or had a right to control those security-related matters that conceivably contributed to Khan's injuries. See id. ⁽¹⁾

Shell owns the service station at which Khan was employed and injured. Shell leases the station to LA Sani, Inc., a company owned by Saleem R. Syed. Syed also acts as the manager of the station. Khan suffered an injury during an armed robbery at the service station one morning at approximately 4:00 a.m. According to Khan's affidavit, he was outside the station cleaning the service bays and emptying a trash can when a man emerged from a dark side of the building wearing a bandanna over his face and carrying a rifle. On seeing the man, Khan turned and ran toward the station. He was shot while trying to lock the door behind him.

The business relationship between Shell and Syed (through his company) is governed primarily by two documents, the lease and the dealer agreement. Shell argues that nothing in these two documents gave it a right of control over the safety and security of the gas station, that all such control was in the hands of Syed, and thus it owed no duty to Khan. Shell points out that the lease agreement required Syed to personally and actively manage the business to assure compliance with all provisions of the lease. The lease also required him to satisfy all regulatory requirements, and he was prohibited from maintaining or permitting any condition at the station that might endanger the health, safety, or well-being of anyone present at the station. In a paragraph entitled "Dealer's Independence," the dealer agreement reads:

Dealer is an independent businessperson, and nothing in this Agreement shall be construed as reserving to Shell any right to exercise any control over, or to direct in any respect the conduct or management of, Dealer's business or operations conducted pursuant to this Agreement; but the entire control and direction of such business and operations shall be and remain in Dealer, subject only to Dealer's performance of the obligations of this Agreement.

Although Shell cites this paragraph as support for its position, Khan focuses on the words, "subject only to Dealer's performance of the obligations of this Agreement," and argues that this is the exception that "swallows the rule." According to Khan, Syed managed the service station in general, but Shell reserved the right to control some security measures because Syed was obligated by the lease and dealer agreements to obtain Shell's express permission before undertaking many actions directly affecting the elements of security relevant here. Shell, in effect, had veto power over many of Syed's security-related decisions. Khan further argues that although Syed had to obtain Shell's prior permission before undertaking many security-related decisions, Shell had the right to enter the premises and make such security-related changes on its own initiative.

We agree with Shell that the contracts establish, in general, that the day-to-day operations are the responsibility of Syed. Nevertheless, who controls general operating procedures is not the relevant inquiry. See Exxon v. Tidwell, 567 S.W.2d at 19. We must determine who had a right to control those security-related matters that conceivably contributed to Khan's injuries. The terms of the contracts, even as understood by Shell as reflected in the testimony of its representative, support Khan's position.

Shell's representative, Brooks Herring, testified that if Syed wanted to put up new lights for greater illumination, install bullet-proof glass, or even put up a sign announcing minimal cash on hand, he would be required by the contracts to obtain Shell's permission. Similarly, if Syed wanted to install a security camera, he would need Shell's permission. Although Syed had to request permission of Shell to make certain changes related to security, Shell had the power and the right to step in at any time and make security-related changes itself, such as adding bullet-proof glass, extra lighting fixtures, or outside fencing. Herring testified that safety and the prevention of crime were relevant considerations when designing new service stations. Yet, as stated in the contracts and understood by Herring, Syed could not remodel or alter the premises, even if directly related to security, without Shell's permission. Syed, in fact, did submit a preliminary remodeling proposal to Shell suggesting, among other things, the addition of proper exterior lighting for the express purpose of making customers feel safer. The remodeling was not authorized, even though Syed did not request that Shell finance it.

The strongest case on which Shell relies for support, Smith v. Foodmaker, Inc., 928 S.W.2d 683 (Tex. App.-Fort Worth 1996, no writ), is distinguishable. In that case, the appeals court concluded that the franchisor did not retain any control over the safety and security of the premises because it was not aware of any crime, violence, or security problems at the site; it did not require the franchisee to report security problems; it did not direct, control, or advise the franchisee in terms of security; it did not make any decisions regarding the hiring of guards or installation of security cameras; and it did not require the franchisee to seek its prior approval to maintain or repair lighting, doors, or locks. Id. at 686-87.

We note that knowledge of past criminal activity at the site is not relevant to the issue of who had control over security matters at the time of the crime giving rise to the cause of action. The second factor noted by the court in the Smith case, the duty to report security problems, existed in our case by the express terms of the contracts. As to directing, controlling, or advising a franchisee on security, Shell undertook to train its dealers on topics including security and required such training of them. Shell could even require a franchisee to provide additional staff at a service station, possibly even a security guard. And, although the contracts imposed on Syed the duty to keep the premises illuminated, Shell had the right to install exterior lighting or security cameras, which Syed could not do without Shell's prior permission.

Shell clearly had the right to exercise control over some security-related matters. It is reasonable to infer from this fact that these matters may have been causally related to the robbery in which Khan was shot. Therefore, there is some evidence of facts that may have imposed a duty on Shell. Thus the summary judgment was improper.

We reverse the summary judgment and remand the cause to the trial court for further proceedings.

William J. Cornelius

Chief Justice

Date Submitted: February 28, 2002

Date Decided: March 19, 2002

Publish

1. We distinguish here between a right of control and the exercise of control. A showing of actual control is not necessary except where the right of control is not otherwise manifested. Exxon v. Tidwell, 867 S.W.2d 19, 21-22 n.3 (Tex. 1993).

ll v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006). The reviewing court must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 318-19. In reviewing the sufficiency of the evidence, each fact need not point directly and independently to the guilt of the appellant, so long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. See Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). On appeal, the same standard of review is used for both circumstantial and direct evidence cases. Id.; see Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Henderson was charged by indictment with delivery of cocaine. More specifically, the indictment required the State to prove to the jury that Henderson actually or constructively transferred cocaine weighing more than one gram but less than four grams to Cawthon on or about April 15, 2003. See Tex. Health & Safety Code Ann. § 481.102(2)(D) (Vernon Supp. 2007) (defining cocaine as penalty group 1 narcotic), § 481.112 (Vernon 2003) (criminalizing delivery of penalty group 1 drug).

The evidence, viewed in the light most favorable to the jury's verdict, showed that Cawthon testified he purchased crack cocaine from Henderson in an Irving motel room on April 15, 2003. During this transaction, Cawthon offered to buy $100.00 of crack from Henderson. Henderson later laid the cocaine on a table next to Cawthon's buy money, after which Henderson took the $100.00. This amounts to a constructive transfer of drugs for money. See Tex. Health & Safety Code Ann. § 481.002(8) (Vernon Supp. 2007) ("delivery" includes constructive transfers). The drugs sold to Cawthon were later submitted to SWIFS for chemical analysis, this analysis revealing that the drugs purchased by Cawthon from Henderson contained 1.48 grams of cocaine, including adulterants or dilutants. The State's evidence satisfied the evidentiary requirements of the indictment, which was authorized by and consistent with our criminal law; the evidence is, therefore, legally sufficient.

IV. Chain of Custody

Henderson next contends there was a break in the chain of custody for the alleged drugs and that, due to this break in the evidentiary chain of custody, the drugs should have been excluded. Henderson's brief does not attempt to demonstrate that error on this issue was preserved in the court below. See Tex. R. App. P. 33.1(a), 38.1(h). For the most part, an error not properly preserved is waived. Additionally, "problems in the chain of custody do not affect the admissibility of the [drug] evidence. Instead, such problems affect the weight that the fact-finder should give the evidence, which may be brought out and argued by the parties." Druery v. State, 225 S.W.3d 491, 503-04 (Tex. Crim. App. 2007) (footnote omitted). We overrule this issue.

V. Permitting Officer Gipson To Testify About the Drug Trade

Henderson next contends the trial court erred by permitting Officer Tony Gipson of the Dallas Police Department to testify in general terms about the practices employed in cocaine trafficking. Henderson contends the trial court failed to conduct a Daubert ⁽³⁾ hearing regarding the admissibility of Gipson's testimony as expert testimony. We review a trial court's ruling regarding the admission of evidence under an abuse of discretion standard. Rankin v. State, 974 S.W.2d 707, 718 (Tex. Crim. App. 1996) (op. on reh'g); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). Only if a trial court's decision falls outside the zone of reasonable disagreement will that decision be reversed on appeal. Rankin, 974 S.W.2d at 718; Montgomery, 810 S.W.2d at 391.

Henderson's complaint on this issue fails for three reasons. First, Henderson objected at trial only to the relevance of Gipson's testimony and not to his qualifications to testify concerning the evidence he presented. Therefore, the objection now raised on appeal--a challenge to Gipson's qualifications to testify as an expert witness--was not first raised in the lower court and, therefore, was not preserved for our review. Cf. Paschal v. State, 35 S.W.3d 80, 82 (Tex. App.--Texarkana 2000, no pet.) (general relevance objection insufficient to preserve appellate complaint about Rule 403). Second, the trial court sustained Henderson's general relevancy objection but Henderson neither made the additional request that the trial court instruct the jury to disregard Gipson's testimony nor did he otherwise pursue his relevancy objection to an adverse ruling. Therefore, assuming (without deciding) that a general relevancy objection could ever be sufficient to preserve Henderson's Daubert-esque complaint, Henderson failed to preserve the issue for appellate review by not pursuing such an objection to an adverse ruling. Third, Gipson, as a veteran narcotics detective with the Dallas Police Department, could have been properly admitted as an expert to provide testimony regarding the manufacture and sale of crack cocaine in the area; the trial court could have reasonably determined that such expert testimony would have assisted the jury by providing it with information regarding the nuances of the illegal narcotics trade. See Tex. R. Evid. 702; Taylor v. State, 106 S.W.3d 827, 832-33 (Tex. App.--Dallas 2003, no pet.) (trial court would not abuse discretion by permitting Detective Tony Gipson, veteran Dallas narcotics officer, to testify as expert based on training and experience with manufacture, packaging, possession, and sale of crack cocaine).

VI. Tulia Comparison

Henderson also makes several attempts to compare his conviction in this case to the erroneous convictions of several defendants, collectively called the "Tulia defendants," for narcotics possession and trafficking. See, e.g., Editorial, Legislators Must Act To Free Tulia 13 on Bail if Court Doesn't Move, Austin Am. Statesman, May 9, 2003, http://www.statesman.com/editorial/ content/editorial/tulia/0509tulia_edit.html. Henderson asks us to hold that the State's evidence was manufactured by the Irving Police Department in much the same way as the evidence against the Tulia defendants was manufactured. Henderson has attached several newspaper and internet articles to his appellate brief in support of his point of error, including an article from the Winter 2006 issue of "Justice Denied: The Magazine for the Wrongly Convicted."

In briefing this issue, Henderson has not cited to any location in the official appellate record wherein there is evidence to support his claim that Irving police officers used manufactured evidence or simulated narcotics to fraudulently obtain Henderson's conviction. Therefore, this issue has been inadequately briefed, and we overrule it as such. See Tex. R. App. P. 38.1(h). Additionally, after reviewing the record in this case, we are convinced that the existing record will not support such a claim by Henderson. Therefore, Henderson's claim that he was framed can be more appropriately pursued by filing a post-conviction application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2007).

VII. Ineffective Assistance of Counsel

In his next point of error, Henderson claims that his trial counsel performed deficiently in five respects: his trial counsel (A) did not challenge the lack of affirmative links between the narcotics and Henderson, (B) did not object to certain aspects of a police officer's testimony, (C) did not object to the trial court's denial of requests for Brady ⁽⁴⁾ material, (D) failed to object to testimony from the State's "surprise" witness, and (E) failed to object to veniremember 17 during voir dire. The standard for reviewing claims of ineffective assistance on direct appeal is well settled. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999). Texas appellate courts begin any such analysis by presuming that the appellant's trial counsel performed competently. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We also presume that counsel's decisions were reasonably professional and were motivated by sound trial strategy. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). In the absence of direct evidence of counsel's reasons for the challenged conduct, an appellate court will assume a strategic motivation for the conduct if any can be imagined. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We will not conclude that the challenged conduct constitutes deficient performance unless the conduct was so outrageous that no competent attorney would have engaged in it. Id.

A. Lack of Affirmative Links

Henderson claims that his trial counsel's failure to file a motion to suppress the admission of the narcotics into evidence (due to the alleged lack of any affirmative links between Henderson and the narcotics) amounted to ineffective assistance. As explained above, Cawthon's testimony served to affirmatively link Henderson to the State's narcotics evidence. It is possible that, through his pretrial investigation of the case, Henderson's trial counsel had already learned there was sufficient evidence to link Henderson to the narcotics. Such an investigation would reasonably support a strategic decision not to file a motion to suppress evidence.

B. No Objection to Cawthon's Testimony

Henderson next claims his trial counsel provided ineffective assistance by failing to object to certain portions of Cawthon's testimony. This alleged failure concerned allowing Cawthon to testify about how he (Cawthon) first came to know about Henderson as a suspected drug dealer without there already being any previous testimony that Cawthon's informant had a previous narcotics transaction relationship with Henderson.

We can imagine a strategic reason to explain counsel's alleged failure to object. The record indicates that the now-complained-of testimony was being offered as background information so that the jury could understand why the undercover officer was not surprised to see Henderson appear at the motel room where the officer was working, even though the officer had initially been scheduled to meet a different suspected drug dealer. Such evidence could be considered relevant by a trial court, who could then choose to admit such evidence over any evidentiary objection under Rule 402 of the Texas Rules of Evidence. See Tex. R. Evid. 402. Henderson's trial counsel may have made the strategic decision to not object because he reasonably believed such an objection (whether on relevancy, confrontation, or other grounds) would likely be overruled by the trial court because such testimony was arguably admissible.

C. Failure To Object To Being Denied Brady Material  

According to Henderson's appellate brief, he personally made a pretrial request to the Irving Police Department for a copy of Cawthon's personnel files, internal affairs files, departmental folders, division folders, supervisor's folders, and other things. This open records request was apparently denied. Subsequently, the record before us shows that Henderson's trial attorney subpoenaed those same personnel records, which were provided to the trial court under seal. The trial court thereafter conducted an in camera review of those personnel records and concluded that the records contained no Brady material. ⁽⁵⁾ Henderson now contends that his trial counsel's failure to further object to being denied access to those records amounts to ineffective assistance.

Once the lower court overruled trial counsel's request to review those subpoenaed personnel records, Henderson's attorney was not required to further object in order to preserve the issue for appellate review; Henderson's attorney had already obtained an adverse ruling on the issue, which would have been sufficient to preserve any claim of error on this issue. See Tex. R. App. P. 33.1. Counsel was not ineffective in this regard.

D. Allowing the State To Call a "Surprise" Expert Witness

Henderson next contends that his trial counsel provided ineffective assistance by failing to ask for a hearing outside the jury's presence to test the qualifications of Officer Gipson as an expert witness. He also contends that Gipson's name was not disclosed to the defense before trial as a potential witness.

As discussed above, the record before us supports a decision to permit Gipson to testify as an expert about the practices commonly employed in the sale and distribution of crack cocaine in the Dallas area. It is possible that Henderson's trial counsel expected the State would be able to meet the threshold for establishing Gipson's expert qualifications and, therefore, made the strategic decision not to lengthen the trial process by requesting a hearing on Gipson's qualifications outside the jury's presence. In fact, our sister court has written a published opinion about this same officer's competency as an expert witness. See Taylor, 106 S.W.3d at 832-33.

Additionally, the record before us does not contain the copy of the State's witness list that was provided to Henderson before trial, nor did Henderson otherwise express surprise at trial to Gipson having been called as a witness. Therefore, the record is inadequate to support his claim that the State failed to provide Henderson with advance notice of any intent to call Gipson as an expert.

E. Failure To Object to the State's Challenge to Veniremember 17

Finally, Henderson contends his trial counsel failed to object to the State's challenging a member of the venire for cause during voir dire. The record before us shows that Henderson's trial counsel did object to allowing the State to strike prospective juror number seventeen for cause. The record also shows that the prospective juror testified that she would not vote to convict someone based on the testimony of a single witness, even if she found that witness to be absolutely credible and even if that witness's testimony otherwise proved all the essential elements of the alleged crime. Stated differently, the record shows that the prospective juror would have held the State to a higher burden of proof than is otherwise required by law because she would have required more evidence than merely the testimony of a single witness. Cf. Blackwell v. State, 193 S.W.3d 1, 19 (Tex. App.--Houston [1st Dist.] 2006, no pet.) (proper for State to ask during voir dire if jurors can convict on testimony of single witness if jurors believe witness beyond reasonable doubt on all necessary elements to establish offense).

The record does not support Henderson's claim that his trial counsel failed to object. Nor does the record support this conclusion that the trial court erred by denying the State's challenge to prospective juror 17 because she clearly testified she would not convict an accused based on the testimony of a single witness.

We overrule Henderson's claims of ineffective assistance of counsel.

VIII. Henderson Did Not Preserve His Article 38.141 Claim

Henderson next claims that Article 38.141 of the Texas Code of Criminal Procedure violates his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Henderson's brief fails to direct our attention to any location in the appellate record wherein he preserved this issue for appellate review by first raising it in the trial court. See Tex. R. App. P. 38.1(h) (appellate brief shall cite to official record from trial below in support of point of error raised), 33.1 (preservation of error, how shown). As such, this issue has been inadequately briefed and we overrule it as such. ⁽⁶⁾

IX. Conclusion

For the reasons stated, we overrule each of Henderson's points of error and affirm the trial court's judgment.

Bailey C. Moseley

Justice

Date Submitted: November 28, 2007

Date Decided: December 20, 2007

Do Not Publish

1. Cawthon did not arrest Henderson at this time; Henderson was taken into custody two days later after police obtained a warrant for Henderson's arrest. Shortly after purchasing the cocaine from Henderson, Cawthon sealed the narcotics in a bag; this bag was then later sent to the Southwestern Institute of Forensic Sciences (SWIFS).

2. See Ex parte Brown, 205 S.W.3d 538, 544-45 (Tex. Crim. App. 2006) (in habeas proceedings, establishing claim of actual innocence requires showing by clear and convincing evidence that no reasonable juror could have found the accused guilty; claim of actual innocence on direct appeal appropriate when record is adequate to evaluate claim).

3. Henderson makes reference to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The correct rule in Texas criminal cases which employs a test for experts somewhat similar to that in Daubert is set out in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).

4. Brady v. Maryland, 373 U.S. 83 (1963).

5. See Brady, 373 U.S. 83.

6. Henderson has also attached to his appellate brief an "exhibit 5," which he admits is not a part of the record from the proceedings below. With limited exceptions inapplicable here, our appellate review must be confined to the official record from the trial court's proceedings. See Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Williams v. State, 937 S.W.2d 479, 487 (Tex. Crim. App. 1996)). We will not reward Henderson's attempt to circumvent our appellate rules by impermissibly considering exhibits that have been improperly attached to his brief.