Richard Warner, Et Ux v. H. E. Butt Grocery Company ( 1991 )

WARNER V. H.E.B.

NO. 10-90-133-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          RICHARD WARNER, ET UX,

                                                                                            Appellants

          v.

          H.E. BUTT GROCERY COMPANY,

                                                                                            Appellee

* * * * * * * * * * * * *

From the 13th Judicial District Court

Navarro County, Texas

Trial Court # 691-87

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O P I N I O N

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          This is an appeal by the Warners from a take-nothing judgment entered after a jury verdict in a slip-and-fall case against H. E. Butt Grocery Company (H.E.B.). The Warners assert four points of error, but we find the first point is dispositive of the case. We will reverse and the remand the judgment.

          The Warners pled that Mrs. Warner slipped and fell in a small pool of liquid substance on the floor of H.E.B. She alleged that H.E.B. was negligent on two theories. First, that H.E.B. failed to adequately maintain the floors of the store in question in a safe condition, and second, that H.E.B. failed to pre-bag the chill-packed chicken to reduce the amount of chicken blood that dripped to the floor of the store.

          The court's charge erroneously submitted the negligence issue in five separate questions which did not include the Warners' second theory of negligence. The jury was instructed not to answer each of the second through fifth questions unless they answered the preceding question in the affirmative. In response to Question 1, the jury found that the liquid substance on the floor of the store posed an unreasonable risk of harm to Mrs. Warner. Question 2 asked the jury the following question:

Did the defendant know or should defendant reasonably have known that there was liquid substance on the floor of its store on the occasion in question?

The jury answered this question, "No". Pursuant to the trial court's erroneous instruction, the jury did not answer questions 3, 4 or 5 which asked whether H.E.B. failed to reduce or eliminate the risk in question, whether such failure constituted negligence, and whether such negligence was a proximate cause of Mrs. Warner's injuries. In answering the damage question, the jury found Mrs. Warner had suffered $156,500 worth of injuries, but the charge submitted by the trial court prevented the jury from awarding damages based upon Mrs. Warner's second theory of recovery, that is, the failure of H.E.B. to pre-bag the chicken to prevent leakage of chicken blood throughout the store, which resulted in foreseeable harm through a course of conduct or method of operation. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).

          Rule 277 of the Texas Rules of Civil Procedure, which controls submission of issues to a jury, is unambiguous in directing broad-form submission. See Tex. R. Civ. P. 277. The text of Rule 277 mandates that "[i]n all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions." Id. (emphasis added). This language of the rule requires that broad-form submission be used in any or every instance in which it is capable of being accomplished. See Texas Department of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). In E.B., the Supreme Court said, "[t]he rule unequivocally requires broad-form submission whenever feasible. Unless extraordinary circumstances exist, a court must submit such broad-form questions." Id. (emphasis added). The Supreme Court went on to say that the controlling issue in E.B. was whether the parent-child relationship between the parent and two children should be terminated and not upon what specific ground the jury based their decision. Here, the controlling issue is whether H.E.B. was negligent and not upon which theory of negligence the jury based their decision.

          When reviewing errors in a charge we employ the abuse-of-discretion standard. Id. The trial court abuses its discretion when it acts without reference to any guiding principle. Id. It is now clear that the rule requires broad-form submission and eliminates the trial court's discretion unless extraordinary circumstances exist. Id. In this matter the trial court did not follow the language of Rule 277. Therefore, since the alternative theory of negligence was supported by the pleadings and evidence, the negligence issue could have been submitted in broad form. We find the trial court erred when it submitted the charge to the jury in the form of special questions and not in broad form.

          Now we must analyze the error under Rule 81(b)(1) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 81(b)(1). The rule provides that a judgment shall not be reversed unless we are of the opinion that the error was such a denial of the rights of the Appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment. Id. Because the court submitted the charge in such a form that denied the Warners their second theory of liability, it is our opinion that their rights were denied under Rule 278 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 278. The denial of their right to have all theories of liability submitted was reasonably calculated to cause and probably did cause rendition of an improper judgment. The judgment of the trial court is reversed and the cause remanded.

 

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings and

          Justice Vance

Reversed and remanded

Opinion delivered and filed May 2, 1991

Publish

t use deadly force unless deadly force was in fact used against him first.Ô  Such a statement would appear to be contrary to applicable law.  See id.  However, Evans’s paraphrase of the complained-of statements is not entirely accurate and appears to be taken out of context.

            It is improper for a prosecutor to misstate the law.  See Whiting v. State, 797 S.W.2d 45, 48 (Tex. Crim. App. 1990); Abbott v. State, 196 S.W.3d 334, 343 (Tex. App.—Waco 2006, pet. ref’d).  However, when evaluating the propriety of the challenged statement, we must consider the context in which it was made.  See Cantu v. State, 939 S.W.2d 627, 633 (Tex. Crim. App. 1997); Davis v. State, 268 S.W.3d 683, 694 (Tex. App.—Fort Worth 2008, pet. ref’d); see also Gardner v. State, No. AP-75,582, 2009 WL 3365652, at *17 (Tex. Crim. App. Oct. 21, 2009) (“Although it is possible to construe this argument as being improper when taken out of its full context, the prosecutor’s argument is more naturally interpreted as a permissible one.”).

            Evans first complains of the prosecutor’s explanation of the law concerning the use of deadly force during voir dire.  He cites as examples the following:

·                    “You can only respond to force with force”

 

·                    “the law specifically says the use of deadly force is not justified if all that is threatened is force”

 

·                    “the law says if a person is under attack by the use of force, not deadly force, you can respond with force, but not deadly force.  Okay.  In other words, there’s a proportionate, proportionality, I don’t know what the right word would be, but you can’t use deadly force to repel an attack that’s only force”

 

At first blush, these statements might be construed as assertions that a person may act in self-defense only when actual force is used against him (and can use deadly force in self-defense only when deadly force is actually used against him).

            However, when read in context, it appears that the prosecutor was attempting to explain the difference between the justified use of deadly force in self-defense and the justified use of force less than deadly in self-defense.  Regardless of whether a person faces an actual or apparent threat, sections 9.31 and 9.32 contain a proportionality requirement with regard to the magnitude of force which the person is legally justified to employ.  See Tidmore v. State, 976 S.W.2d 724, 728-29 (Tex. App.—Tyler 1998, pet. ref’d) (“The amount of force used must be in proportion to the force encountered.”); accord McBride v. State, No. 13-04-00575-CR, 2006 WL 1965822, at *5 (Tex. App.—Corpus Christi July 13, 2006, pet. ref’d) (not designated for publication); Seibert v. State, No. 05-03-01131-CR, 2004 WL 2804795, at *6 (Tex. App.—Dallas Nov. 30, 2004, pet. ref’d) (not designated for publication).  “Deadly force is not immediately necessary if a reasonable person in the position of the defendant would use some available nondeadly method of self-defense.  In such circumstances, a defendant's use of deadly force would not be justified.”  Tidmore, 976 S.W.2d at 729; accord McBride, 2006 WL 1965822, at *5; Seibert, 2004 WL 2804795, at *6.

            Later in voir dire after the statutory definitions had been read to the venire panel and discussed further, a veniremember commented (apparently in his own effort to explain Evans’s objection):

This is the reason for his objection. That’s why he keeps standing up and saying he keeps leaving out the word perceived attempted force or some such, because if you perceive you’re going to be met with force, he’s probably going to argue that his client has the right to stop that force from happening.

 

The prosecutor agreed that the issue of self-defense must be viewed from “the defendant’s standpoint” but re-emphasized that his focus was on the magnitude of force a person is justified in using in self-defense.  The prosecutor later commented that “if a defendant reasonably believes he or she is being attacked with deadly force, then you [sic] can respond with deadly force.”  But the prosecutor also reiterated that his point was that there is a proportionality requirement regarding the magnitude of force which may be used in self-defense.

            The prosecutor correctly stated that there is a proportionality element incorporated within the law of self-defense.  See McBride, 2006 WL 1965822, at *5; Seibert, 2004 WL 2804795, at *6.Tidmore, 976 S.W.2d at 728-29.  He acknowledged in voir dire that the issue of self-defense must be viewed from the defendant’s perspective and what he reasonably believed.  Thus, we cannot say that the challenged statements, when viewed in context, were affirmatively incorrect.

            Evans also complains of a similar remark made during closing argument.  The prosecutor stated, “And it says you can use deadly force in this scenario. When you’re under attack or attempted attack by someone using or attempting to use deadly force.  That is the scenario that talks about deadly force.”

            As with the challenged voir dire statements, this argument standing alone could be construed as an assertion that there must be an actual use or attempted use of deadly force before a person is justified in using deadly force in self-defense.  However, when the argument is read in context with the prosecutor’s entire closing argument, we conclude that the prosecutor’s focus on the proportionality issue was not affirmatively incorrect.

            Just before making the challenged statement, the prosecutor reminded the jury that a person is justified in using force “to the degree [he] believes is immediately necessary viewed from his standpoint.”  The charge accurately stated the applicable law.  The prosecutor correctly stated that there is a proportionality element incorporated within the law of self-defense.  Id.

            Accordingly, we cannot say that the court abused its discretion by overruling Evans’s objections to the complained-of voir dire statements and closing argument. Evans’s second point is overruled.

Extraneous Misconduct

            Evans contends in his third and fourth points respectively that the court abused its discretion by excluding evidence of the complainant’s prior history of drug use and a prior assault he committed.

            At the beginning of trial, the trial court granted the State’s motion in limine regarding evidence of the complainant Timothy Carter’s prior violent acts and any prior possession or use of illegal drugs by Carter.  During Evans’s cross-examination of Carter, he sought to establish that Carter had “committed assaults” and “was in possession of drugs” in Granbury.  Outside the presence of the jury, Evans’s counsel explained that these prior acts were relevant to self-defense because Evans was aware of them when he assaulted Carter.  Evans sought to make an offer of proof at this juncture in the trial “about the assaults that occurred there and his drug use there.”  After further discussion regarding the relevance of the extraneous misconduct evidence, Evans’s counsel agreed to make an offer of proof later in the trial after establishing relevance (i.e., by showing that Evans was aware of the extraneous misconduct when he assaulted Carter).  However, Evans did not thereafter attempt to make an offer of proof.

            The rules of evidence permit the defendant to offer evidence concerning the victim’s character for violence or aggression on two separate theories when the defendant is charged with an assaultive offense, as applicant was in this case.

 

            First, the defendant may offer reputation or opinion testimony or evidence of specific prior acts of violence by the victim to show the “reasonableness of defendant’s claim of apprehension of danger” from the victim.  This is called “communicated character” because the defendant is aware of the victim’s violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not.  This theory does not invoke Rule 404(a)(2) because Rule 404 bars character evidence only when offered to prove conduct in conformity, i.e., that the victim acted in conformity with his violent character.  Here, the defendant is not trying to prove that the victim actually is violent; rather, he is proving his own self-defensive state of mind and the reasonableness of that state of mind.

 

            .  .  .  .

 

            Second, a defendant may offer evidence of the victim’s character trait for violence to demonstrate that the victim was, in fact, the first aggressor.  Rule 404(a)(2) is directly applicable to this theory and this use is called “uncommunicated character” evidence because it does not matter if the defendant was aware of the victim’s violent character.  The chain of logic is as follows: a witness testifies that the victim made an aggressive move against the defendant; another witness then testifies about the victim’s character for violence, but he may do so only through reputation and opinion testimony under Rule 405(a).

 

Ex parte Miller, No. AP-76,167, 2009 WL 3446468, at * 4-5 (Tex. Crim. App. Oct. 28, 2009) (quoting Dempsey v. State, 159 Tex. Crim. 602, 266 S.W.2d 875, 877 (1954)) (footnotes omitted).

            To preserve error with regard to the exclusion of evidence, a party must make an offer of proof setting forth the substance of the excluded evidence unless the substance of the evidence was apparent from the context.  Tex. R. Evid. 103(a)(2); Mays v. State, 285 S.W.3d 884, 889-90 (Tex. Crim. App. 2009).  Evans’s counsel plainly informed the trial court that he wanted to offer evidence of a prior assault committed by Carter for which he was placed on deferred adjudication community supervision.  Thus, we conclude that Evans adequately preserved error with regard to the court’s exclusion of this evidence.  See Mai v. State, 189 S.W.3d 316, 322 (Tex. App.—Fort Worth 2006, pet. ref’d).

            Because Evans claimed to be aware of this prior assault and because Evans sought to prove it through Carter’s own testimony, it appears that Evans sought to introduce this evidence as “communicated character” evidence to show the “reasonableness of [his] claim of apprehension of danger.”  See Miller, 2009 WL 3446468, at * 4.  However, Evans never established that he was aware of this specific assault.

            Evans testified that Carter told him “he’s been in a lot of fights and that he’s been in trouble for fighting.”  This general statement is not sufficient to establish that Evans was aware that Carter had committed an assault in Granbury for which he was placed on deferred adjudication community supervision. Accordingly, the court did not abuse its discretion by excluding this evidence.  See Hayes v. State, 124 S.W.3d 781, 785-86 (Tex. App.—Houston [1st Dist.] 2003) (evidence of victim’s prior assault with wrench admissible to show reasonableness of defendant’s fear because defendant personally knew of incident, but evidence of victim’s prior assault with gun inadmissible because defendant had no knowledge of it), aff’d, 161 S.W.3d 507 (Tex. Crim. App. 2005).

            With regard to evidence of Carter’s alleged prior drug use, we construe Evans’s complaint as having two parts: (1) exclusion of evidence regarding Carter’s alleged possession of drugs in Granbury; and (2) permitting the State’s witness to “minimize” the presence of Valium in Carter’s system on the day of the assault.

            Evans’s father testified that Carter told them “he had done a lot of drugs in the past.”  This general statement is not sufficient to establish that Evans was aware that Carter had possessed drugs in Granbury on a particular occasion. Accordingly, the court did not abuse its discretion by excluding this evidence.  Id.

            The State called Dr. Arthur Raines to establish that Carter suffered serious bodily injury and that Evans’s feet and the pavement against which he was “jamming, cramming, slamming”[2] Carter’s head both constituted deadly weapons in the manner of their use.  On cross-examination, Evans’s counsel reviewed Carter’s medical records with Dr. Raines and sought to establish from blood tests that Carter was under the influence of a combination of alcohol, valium and marihuana at the time of the assault.  Regarding valium, Dr. Raines opined that the amount indicated was a therapeutic amount.  Evans objected that this opinion was speculative, but the court overruled the objection.  On redirect, Dr. Raines explained that a sedative like valium is often used in an emergency room as a sedative to assist with a patient’s intubation.

            Evans did not call any experts of his own to try to refute Dr. Raines’s interpretation of Carter’s medical records.  Dr. Raines explained the basis for his opinion that the amount of valium in Carter’s system was therapeutic.  We cannot say that the court abused its discretion by overruling Evans’s objection to this testimony.  See DeLarue v. State, 102 S.W.3d 388, 396 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (“Expert testimony cannot be based upon mere guess or speculation, but must have proper factual basis”).

            Evans’s third and fourth points are overruled.

We modify the judgment by vacating Evans’s conviction for aggravated assault under Count One of the indictment and affirm the judgment as modified.  See Caballero v. State, 292 S.W.3d 152, 156 (Tex. App.—San Antonio 2009, pet. ref’d).

 

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Modified and affirmed

Opinion delivered and filed February 3, 2010

Do not publish

[CR25]

 

 

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[1]               The jury acquitted Evans of the aggravated assault allegation contained in Count Two of the indictment.

[2]               These are the words of an eyewitness to the assault.