Antonio Serrana v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00345-CR

ANTONIO SERRANA,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the County Court at Law No. 2

Johnson County, Texas

Trial Court No. M200301848

MEMORANDUM  Opinion

          Antonio Serrana pleaded guilty to driving while intoxicated after the court denied his suppression motion. Pursuant to a plea bargain, the court sentenced him to 180 days in jail, suspended imposition of sentence, and placed him on community supervision for two years.  Serrana contends in his sole issue that the court abused its discretion by denying his suppression motion.  We will affirm.

          The facts are undisputed.  A DPS trooper observed Serrana’s car driving on Interstate 35.  Serrana’s car came to the trooper’s attention because it was weaving within its lane.  Serrana’s car drove onto the white lane marker on the right side of the lane then back into the lane of travel.  The car then drove completely over the right-hand lane marker then “jerked” back into the lane.    These movements all occurred within a distance of one-half mile.  The trooper suspected that the driver may be intoxicated and pulled the car over to investigate further.

          Serrana contends that the facts of his case are analogous to those in Hernandez v. State.  983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref’d).  In that case, the defendant’s car drifted about eighteen inches into another lane of traffic a single time.  The officer testified that he was concerned about the driver’s “well-being.”  Id. at 868-69.  These were the only bases recited for the stop.

          The Austin Court concluded that the State had not satisfied its burden of proving that the stop was reasonable because: (1) the officer did not testify that he suspected the defendant of being intoxicated; and (2) he did not “testify that anything about the objective circumstances—time, location, the vehicle’s movement, etc.—would have led a reasonable officer to suspect the driver of being intoxicated.”  Id. at 870.

          In a similar case, this Court affirmed a trial court’s order granting a suppression motion.  See State v. Tarvin, 972 S.W.2d 910 (Tex. App.—Waco 1998, pet. ref’d).  In Tarvin, the officer testified that he pulled the defendant over after observing him drive “over” the right-hand lane marker two or three times.  Id. at 910-11. It was unclear from the officer’s testimony whether the right tires of the defendant’s car ever crossed completely over the lane marker, and the trial court found that they had not.  Id. at 910-11 & n.2.  As in Hernandez, the officer did not testify that he suspected the defendant to be intoxicated. Id. at 912.

          Serrana’s case is different from these.  The trooper here testified that after observing Serrana’s driving he suspected that Serrana may be intoxicated.  Cf. Hernandez, 983 S.W.2d at 870; Tarvin, 972 S.W.2d at 912.  Unlike Tarvin, the trooper here testified that Serrana’s tires crossed completely over the right-hand lane marker.  Cf. Tarvin, 972 S.W.2d at 910-11 & n.2.

And unlike Hernandez, the trooper here testified that Serrana’s return to the lane of travel after his “second weave” was “abrupt” and that Serrana “jerked” back into the lane of travel.  Cf. Hernandez, 983 S.W.2d at 868-69.

          The trooper here testified that Serrana was weaving within his lane, that he drove onto the right-hand lane marker and back, and that he then drove across the right-hand lane marker before abruptly returning to the lane of travel.  Based on these observations, the trooper decided to stop Serrana because he suspected that he may be intoxicated. These facts make Serrana’s case more similar to others in which reasonable suspicion has been found.  See e.g. James v. State, 102 S.W.3d 162, 171-72 (Tex. App.—Fort Worth 2003, pet. ref’d); Gajewski v. State, 944 S.W.2d 450, 452-53 (Tex. App.—Houston [14th Dist.] 1997, no pet.).

Accordingly, we cannot say that the court abused its discretion by denying Serrana’s suppression motion.  Thus, we overrule Serrana’s sole issue and affirm the judgment.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray concurring)

Affirmed

Opinion delivered and filed February 15, 2006

Do not publish

[CR25]

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          Exhibit “A” consists of photographs, two of which depict elevated booths in Texas Roadhouse.  Exhibit “B” is the incident report prepared by the manager on duty at the time of Messer’s fall. It states that the lighting was “dim” on the occasion in question.  Exhibit “C” is Messer’s deposition testimony.  Messer testified that the area was dimly lit and she was unaware that the booth area was elevated.

          Viewed in the light most favorable to Messer, this constitutes some evidence that the elevated booth posed an unreasonable risk of harm.  See Burns v. Baylor Health Care Sys., 125 S.W.3d 589, 599 (Tex. App.—El Paso 2003, no pet.) (plaintiff/non-movant presented some evidence that curb in parking garage which was difficult to see because of poor lighting posed unreasonable risk of harm); Brooks v. First Assembly of God Church of Cleburne, 86 S.W.3d 793, 796-97 (Tex. App.—Waco 2002, no pet.) (plaintiff/non-movant raised fact issue regarding whether curb-stop in dark part of church parking lot posed unreasonable risk of harm), disapproved on other grounds by Binur v. Jacobo, 135 S.W.3d 646, 651 & n.11 (Tex. 2004).

Actual or Constructive Knowledge

          Messer must also have produced some evidence raising an issue of material fact regarding whether Texas Roadhouse had actual or constructive knowledge of this condition.  See LMB, 201 S.W.3d at 688.  Messer argued in her summary-judgment response that “Exhibits A, B, and C” address Texas Roadhouse’s actual or constructive knowledge.

          From the photographic evidence, it can be seen that the elevated booth is a “permanent” condition of the premises and regularly used, not something temporary like liquid spilled on the floor.  See Burns, 125 S.W.3d at 599-600 (plaintiff/non-movant presented some evidence regarding defendant’s constructive knowledge because place of plaintiff/non-movant’s fall was “a principle egress and ingress into the Baylor facility” and parking garage was regularly patrolled by Baylor security officers); cf. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002) (in slip-and-fall case involving spilled liquid, “there must be some proof of how long the hazard was there before liability can be imposed on the premises owner”).

          Therefore, viewing the evidence in the light most favorable to Messer, she presented some evidence that Texas Roadhouse had constructive knowledge that the elevated booth posed an unreasonable risk of harm.

Failure to Exercise Reasonable Care

          We next consider whether Messer produced some evidence raising an issue of material fact regarding whether Texas Roadhouse failed to exercise reasonable care to reduce or eliminate this unreasonable risk of harm.  See LMB, 201 S.W.3d at 688.  Her summary-judgment response again refers to her three exhibits with regard to this element of her claim.

          The photographic evidence indicates that Texas Roadhouse marked other areas of differing elevations.  Messer testified in her deposition that Texas Roadhouse should have marked the elevated booth, improved the lighting, or had its waitpersons warn customers.  Viewed in the light most favorable to Messer, this constitutes some evidence that Texas Roadhouse failed to exercise reasonable care to reduce or eliminate this unreasonable risk of harm.  See Scroggs v. Am. Airlines, Inc., 150 S.W.3d 256, 262 (Tex. App.—Dallas 2004, no pet.).

Proximate Cause

          The final element of Messer’s claim is proximate cause.  See LMB, 201 S.W.3d at 688.  As with the other elements of her claim, Messer’s summary-judgment response identifies her three exhibits as responsive to the issue of proximate cause.

          Messer testified that she fell because the elevated booth was not marked and no one warned her.  Viewed in the light most favorable to Messer, this constitutes some evidence that Texas Roadhouse’s failure to use reasonable care to reduce or eliminate the unreasonable risk of harm was a proximate cause of Messer’s injuries.  See Scroggs, 150 S.W.3d at 262; Harwood v. Hines Interests Ltd. P’ship., 73 S.W.3d 450, 453 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Conclusion

Messer presented some evidence raising an issue of material fact on each of the elements of her claim challenged by Texas Roadhouse’s summary judgment motion.  See Mack Trucks, 206 S.W.3d at 582. Therefore, we reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurring)

(Chief Justice Gray dissenting)

Reversed and remanded

Opinion delivered and filed May 9, 2007

[CV06]

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[1]         Such a condition is often referred to as an “unreasonably dangerous condition.”  See, e.g., LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688-89 (Tex. 2006); Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex. App.—Waco 2006, no pet.); Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 645 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Sanmina-SCI Corp. v. Ogburn, 153 S.W.3d 639, 642 (Tex. App.—Dallas 2004, pet. denied).

[2]           Perhaps it could be argued that Messer’s reference to a mere “dangerous condition” was not a sufficient response regarding the existence of an “unreasonably dangerous condition.”  Nevertheless, in viewing the totality of Messer’s summary judgment response, it is evident that she is referring to the existence of “a dangerous condition for which Defendant owed Plaintiff a duty of reasonable care,” namely, an unreasonably dangerous condition.  See Rivero v. Blue Keel Funding, L.L.C., 127 S.W.3d 421, 424 (Tex. App.—Dallas 2004, no pet.) (“Generally, we construe pleadings as favorably as possible to the pleader.  The pleader’s intention will be upheld even if some element of a cause of action has not been specifically alleged.”); see also Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex. App.—Dallas 2004, pet. denied) (“Summary judgment is a harsh remedy.  Reviewing courts will strictly construe summary judgment in procedural and substantive matters against the movant.”).