Douglas Prine v. State ( 2002 )

NO 07-01-0424-CR

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D APRIL 2, 2002 __________________________________________ DOUGLAS PRINE,

Appellant

v. THE STATE OF TEXAS,

Appellee

____________________________________________ FROM THE 183rd DISTRICT COURT OF HARRIS COUNTY; NO. 834,588; HON. JOAN HUFFMAN, PRESIDING _____________________________________________

Before BOYD, C.J., QUINN and REAVIS, JJ.

Douglas Prine (appellant) appeals from a judgment adjudicating him guilty of aggravated assault with a deadly weapon. We affirm.

The trial court initially deferred appellant's adjudication of guilt and placed him on community supervision. The state subsequently moved to adjudicate him guilty. The court granted the motion, adjudicated appellant guilty, and sentenced him to 40 years in prison. Appellant perfected a timely appeal, but his appointed counsel filed an Anders brief. ⁽¹⁾ In the latter, counsel addressed two potential issues but concluded they were groundless. So too did she inform appellant of this circumstance and his right to review the record and tender a pro se response. Appellant tendered such a response which encompassed the same issues mentioned by counsel and one other. We now address the validity of same.

Appellant's first issue concerns his right to self-representation at the time he pled guilty to the charges ultimately resulting in his conviction. He contends that he is able to raise the matter under the authority of Jordan v. State, 54 S.W.3d 783 (Tex. Crim. App. 2001). However, his reliance on Jordan is misplaced. Jordan dealt with the ability of an appellant initially granted deferred adjudication to attack his plea after being adjudicated guilty. Normally, complaints regarding the initial plea and matter arising prior thereto must be raised immediately after the trial court's decision to defer the adjudication of guilt. Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). With the advent of Jordan, matters which could have been asserted and that void the judgment may now be raised once guilt is adjudicated. Id. at 785-87. Nevertheless, this window of opportunity is small for a judgment is void only if the court rendering it had no jurisdiction over the subject matter or person involved or lacked the power to enter it or the capacity to act as a court. Light v. State, 993 S.W.2d 740, 749 (Tex. App.-Austin 1999), rev'd on other grounds, 15 S.W.3d 104 (Tex. Crim. App. 2000); Adams v. State, 827 S.W.2d 31, 33 (Tex. App.-Dallas 1992, no pet.). And, the contention at bar regarding the ability to represent oneself at trial falls within none of these categories. Thus, it is not something which we can address.

The next issue mentioned by appellant and counsel involves the voluntariness of appellant's initial plea of guilty. Yet, this too is something which we cannot consider due to Cooper v. State, 45 S.W.3d 77 (Tex. Crim. App. 2001). Nor may we address the third and final ground asserted, i.e. the effectiveness of counsel at the time of the initial plea. Like the matter of voluntariness, it too is a subject that could have been raised on appeal immediately after the trial court deferred appellant's adjudication of guilt but which does not void the judgment.

Finally, upon conducting our own independent review of the file pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991), we discern no issue warranting reversal. Accordingly, the judgment of the trial court is affirmed.

Brian Quinn

Justice

Do not publish.    

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

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NO. 07-08-0359-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JULY 28, 2010

______________________________

THI OF TEXAS AT LUBBOCK I, LLC, D/B/A

 SOUTHWEST REGIONAL SPECIALTY HOSPITAL, APPELLANT

V.

MARIO PEREA, INDIVIDUALLY AND AS REPRESENTATIVE

OF THE ESTATE OF JACOB PEREA, DECEASED;

MAX PEREA;TONY PEREA; AND GEORGE PEREA, APPELLEES

_________________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-533.287; HONORABLE RUBEN REYES, JUDGE

_______________________________

Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.[1]

CONCURRING AND DISSENTING OPINION

I agree with the Court’s discussion of appellant THI of Texas at Lubbock I, LLC’s issues challenging denial of its proposed jury instruction on negligence (issue one); the trial court’s allowing the Pereas to amend their petition during trial (issue two); exclusion of THI’s proffered testimony (issue six) and the trial court’s failure to apply liability caps on damages set out in sections 41.008(b) and 74.301(b) of the Civil Practice and Remedies Code (issue seven).  With regard to its issues challenging the sufficiency of the evidence supporting the jury’s findings of negligence and gross negligence (issues three, four and five), I agree with the Court that legally and factually sufficient evidence supports the jury’s negligence finding with regard to the negligence of THI’s nurses.  I disagree, however, that any evidence supports the Pereas’ “negligent credentialing/hiring” theory of THI’s negligence. 

            As the Court holds, expert testimony was required to establish that THI failed to act as a reasonably prudent hospital would act in the same or similar circumstances with regard to its decision to hire Leonard Espinoza.  The Court relies primarily on the testimony of Dr. Haines with regard to the hospital’s hiring actions.  He said that, when hiring nurses, administrators “should look at” the applicant’s past employment record and determine whether the applicant “had problems or troubles at prior nursing facilities,” and that administrators “had a duty to research the background of people they hired.”

But neither Dr. Haines nor any other expert testified that THI did not take those actions when it hired Espinoza.  No one said that THI’s nursing director Connie Long or any other THI administrator hired Espinoza without review of his employment record or a determination whether he had “problems or troubles” during a prior employment.  The record contains no expert testimony of THI’s breach of the standard of care Dr. Haines described.  See Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 545-46(Tex. 2004) (negligent credentialing). The Court seems to assume that no reasonably prudent hospital would have hired Espinoza as a registered nurse knowing of his discipline by the Colorado authorities under his licensure in that state as a licensed vocational nurse, but no expert said as much.  Nor did any expert testify that THI’s breach of a duty to act as a reasonably prudent hospital when it hired Espinoza proximately caused the injury to Mr. Perea.  See, e.g., Denton Regional Med. Ctr. v. LaCroix, 947 S.W.2d 941, 950 (Tex. App.—Fort Worth 1997, no pet.). To the degree the Court concludes otherwise, I respectfully dissent.

For the same reason, I must dissent from the Court’s conclusion sufficient evidence supported the jury’s finding THI was “reckless in employing” Espinoza, and thus was grossly negligent.[2]  The jury heard no expert testimony demonstrating that THI was reckless in employing Espinoza.  No expert was even asked to express an opinion whether THI acted in a less than prudent manner by hiring him.   

Despite my disagreement with my colleagues on the “negligent credentialing/hiring” issue, I concur with Court’s judgment affirming the award of punitive damages against THI, because I agree that such an award is supported by evidence THI’s acknowledged vice-principal, director of nursing Connie Long, ratified or approved Espinoza’s negligent act.  See Shamrock Communs., Inc. v. Wilie, No. 03-99-00852-CV, 2000 Tex.App. LEXIS 8284, *14 (Tex.App.—Austin 2000, pet. denied.) (mem. op.) (not designated for publication), citing Prunty v. Arkansas Freightways, Inc., 16 F.3d 649, 653 (5^th Cir. 1994) (case law provides that ratification may occur when the employer confirms, adopts, or fails to repudiate the acts of its employee).  The record includes Espinoza’s assertion he was never disciplined for authorizing the administration of Ativan to Mr. Perea and Long’s admission that Espinoza remained employed for the year following this incident.  Such testimony is evidence of Long’s failure to repudiate Espinoza’s negligent act of authorizing administration of Ativan.

Accordingly, I dissent from the Court’s discussion of the plaintiffs’ “negligent credentialing/hiring” theory but concur in the judgment.

                                                                                                James T. Campbell

                                                                                                            Justice

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[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov=t Code Ann. ' 75.002(a)(1) (Vernon 2005).

[2] The jury charge authorized the jury to find THI was grossly negligent because of an act by Espinoza if he was “unfit” and THI “was reckless in employing him,” or THI or its vice-principal ratified or approved the act.  No objection was raised to this aspect of the jury charge, so we examine the sufficiency of the evidence in light of the unobjected-to charge. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000); Soto v. Seven Seventeen HBE Corp., 52 S.W.3d 201, 204 (Tex.App.—Houston [14^th Dist.] 2000, no pet.).