In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00121-CV

______________________________

JAMES MICHAEL O'DONALD, ON BEHALF OF THE

ESTATE OF ROSS EUGENE O'DONALD, DECEASED, AND ALL WRONGFUL DEATH BENEFICIARIES, Appellants

v.

TEXARKANA MEMORIAL HOSPITAL D/B/A

WADLEY REGIONAL MEDICAL CENTER, Appellee

 

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On Appeal from the 5th Judicial District Court

Bowie County, Texas

Trial Court No. 01C1015-005

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Before Ross, Carter and Cornelius,* JJ.

Memorandum Opinion by Justice Cornelius

_____________

*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment

MEMORANDUM OPINION

            James Michael O'Donald, on behalf of the Estate of Ross Eugene O'Donald, deceased, and all wrongful death beneficiaries, brought suit against T. Michael Hillis, M.D., Malcolm A. Smith, M.D., Collom and Carney Clinic Association, and Texarkana Memorial Hospital, Inc., doing business as Wadley Regional Medical Center, seeking damages for the death of Ross Eugene O'Donald, allegedly as a result of an aortofemoral bypass surgery and an esophageal perforation.

            The trial court granted summary judgment in favor of Doctors Hillis and Smith and the Collom and Carney Clinic. The trial court also severed the claims against those defendants from the claims against Wadley Regional Medical Center, and on October 1, 2004, rendered summary judgment in favor of Wadley Regional Medical Center. The O'Donalds appealed from that judgment.

            Wadley's motion for summary judgment was a joint one that combined a no-evidence motion pursuant to Tex. R. Civ. P. 166a(i) and a traditional motion pursuant to Tex. R. Civ. P. 166a(b) and (c).

            Wadley's summary judgment motion was filed on August 20, 2004. The hearing on the motion was originally set for September 27, 2004. At the request of counsel for the O'Donalds, the hearing was by agreement reset for 9:00 a.m. on October 1, 2004. The O'Donalds filed their response to Wadley's summary judgment motion at 8:39 a.m. on October 1, 2004, the day set for hearing Wadley's motion.

            A response to a motion for summary judgment must be filed at least seven days before the hearing on the motion unless the trial court grants leave to file the response late. Tex. R. Civ. P. 166a(c). The O'Donalds did not request leave of the court to file their late response, and there is nothing in the record to indicate that the trial court granted leave to file the late response.

            When a defendant files a motion for a no-evidence summary judgment, properly alleging a lack of evidence supporting one or more specific essential elements of the plaintiffs' cause of action, the trial court must grant the summary judgment unless the plaintiffs timely respond, presenting to the trial court evidence, more than a scintilla, that raises a genuine issue of fact on the challenged elements. Tex. R. Civ. P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 511 (Tex. 2002); Trusty v. Strayhorn, 87 S.W.3d 756, 759 (Tex. App.—Texarkana 2002, no pet.); Garrett v. L. P. McCuistion Cmty. Hosp., 30 S.W.3d 653, 655 (Tex. App.—Texarkana 2000, no pet.); McCombs v. Childrens' Med. Ctr. of Dallas, 1 S.W.3d 256, 258 (Tex. App.—Texarkana 1999, pet. denied).

            If the record contains no order or other affirmative evidence that the trial court granted leave to late file a response or summary judgment evidence, it is presumed that the late filing was not before the trial court, and it cannot be considered on appeal to defeat summary judgment.  Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985); Alford v. Thornburg, 113 S.W.3d 575, 586 (Tex. App.—Texarkana 2003, no pet.); Pinnacle Data Servs., Inc. v. Gillen, 104 S.W.3d 188, 192 (Tex. App.—Texarkana 2003, no pet.); Merch. Ctr., Inc. v. WNS, Inc., 85 S.W.3d 389, 394–95 (Tex. App.—Texarkana 2002, no pet.); Johnston v. Vilardi, 817 S.W.2d 794, 796 (Tex. App.—Houston [1st Dist.] 1991, pet. denied).

            Wadley's motion for summary judgment combined a traditional motion with a no-evidence motion. There is no prohibition against filing such a joint motion, so long as the two bases for summary judgment are clearly distinguished, as they are in Wadley's motion. The no-evidence portion of Wadley's motion clearly challenges the duty and proximate cause elements of the O'Donalds' cause of action as having no evidence to support them. The traditional portion of Wadley's motion is supported by some deposition testimony, but attaching evidence to a combined motion does not invalidate the no-evidence portion of the motion or require that it be disregarded. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).

            Because the O'Donalds did not timely respond to Wadley's no-evidence summary judgment motion or timely point the trial court to any summary judgment evidence raising an issue of fact on the challenged elements, the trial court properly rendered summary judgment in favor of Wadley.

            For the reasons stated, we affirm the judgment.

                                                                        William J. Cornelius

                                                                        Justice*

*Chief Justice, Retired, Sitting by Assignment

 

Date Submitted:          June 15, 2005

Date Decided:             September 28, 2005

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00174-CR

                                                ______________________________

 

 

                            BRANDON DENNARD FRATER, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                 Â

 

 

                                         On Appeal from the 7th Judicial District Court

                                                             Smith County, Texas

                                                       Trial Court No. 007-0581-10

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                     MEMORANDUM OPINION

 

            After a Smith County^[1] jury found Brandon Dennard Frater guilty of driving while intoxicated (DWI)—the offense enhanced to a third degree felony^[2]—trial proceeded to the punishment phase, during which Frater pled “true” to a sentence enhancement.^[3]  See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003).  The jury found the sole sentence-enhancement allegation to be true and assessed Frater’s punishment at seventeen years’ imprisonment and a $5,000.00 fine.^[4]  On appeal, Frater complains only that the trial court’s judgment reflects that Frater pled true to two sentence-enhancement allegations.  The State has not filed a brief.  Agreeing with Frater, we modify the judgment and affirm it.

            The record reflects that Frater pled true to only one sentence-enhancement allegation—a felony conviction for DWI April 18, 2006, in Smith County, Texas, addressed in cause number 007-1827-05.^[5]  The trial court’s charge on punishment described this same, sole enhancement allegation, as did the jury’s verdict and the trial court’s recitation of that verdict in open court.  The trial court’s written judgment, therefore, incorrectly reflects a plea and finding of true to two enhancement allegations, rather than one.^[6]

            We have the authority to modify the judgment to make the record speak the truth when the matter has been called to our attention from any source.  Tex. R. App. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.).  The judgment does not accurately reflect what happened in open court.  When an appellate court has the necessary data and evidence before it for correcting the judgment, the judgment may be modified and corrected on appeal.  Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986); see Barecky v. State, 639 S.W.2d 943, 945 (Tex. Crim. App. [Panel Op.] 1982) (when appellate court has same information for modifying judgment as trial court would have were judgment remanded or appeal dismissed, appellate court to modify judgment).

            We modify the judgment to reflect only a plea of true and a finding of true to the first sentence-enhancement paragraph.  We delete from the judgment the plea, and finding, of true to the second enhancement paragraph. 

            As modified, the trial court’s judgment is affirmed.

 

 

                                                            Josh R. Morriss, III

                                                            Chief Justice

 

Date Submitted:          March 25, 2011

Date Decided:             March 28, 2011

 

Do Not Publish

 

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^[1]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.  See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005).  We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue.  See Tex. R. App. P. 41.3.

 

^[2]Because the indictment alleged Frater had two prior convictions for DWI, the charge was enhanced to that of a third degree felony. See Tex. Penal Code Ann. § 49.09(b)(2) (Vernon Supp. 2010).

 

^[3]The sentence enhancement was a previous felony conviction for DWI, unrelated to those enhancements alleged in the indictment.Â

 

^[4]This prior conviction increased the punishment range to that of a second degree felony.  Tex. Penal Code Ann. § 12.42(a) (Vernon Supp. 2010).

 

^[5]Frater signed a stipulation of evidence regarding this conviction as well, and does not contest his plea of true. 

^[6]The second enhancement finding that Frater is a habitual offender was erroneously included in the judgment and is not supported by the record.