Detwonne Monshay Alexander v. State

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

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No. 06-08-00176-CR ______________________________



DETWONNE MONSHAY ALEXANDER, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 22531

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Before Morriss, C.J., Carter and Moseley, JJ. Opinion by Chief Justice Morriss

O P I N I O N

At Detwonne Monshay Alexander's jury trial in Lamar County leading to his conviction ⁽¹⁾ for delivery of a controlled substance--cocaine between four and 200 grams--in a drug free zone, Alexander wanted to prominently display a Bible on counsel table in view of the jury, but was directed by the trial court to keep it in a less prominent position. In this appeal, Alexander asserts that he was improperly denied his constitutional right to exercise his religion and that he was convicted on insufficient evidence corroborating accomplice-witness testimony.

We affirm the trial court's judgment because (1) the trial court did not abuse its discretion in directing Alexander to move his Bible and (2) sufficient evidence corroborates the accomplice-witness testimony.

(1) The Trial Court Did Not Abuse Its Discretion in Directing Alexander to Move His Bible

Alexander began trial with his Bible on the counsel table in front of him. When the State objected, the trial court ordered it put away. Alexander asserts that, in that respect, the trial court erred and thus infringed his right to the free exercise of his religion. We disagree.

We analyze questions committed to the trial court's exercise of discretion by inquiring whether the trial court acted without reference to guiding rules and principles or, stated otherwise, whether the court acted arbitrarily or unreasonably. ⁽²⁾ See Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). If a trial court's discretionary ruling falls "within the zone of reasonable disagreement," we must affirm. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002); Allen v. State, 232 S.W.3d 776, 781 (Tex. App.--Texarkana 2007, no pet.).

We are required to uphold a decision by a trial court not just on the rationale given for that decision, but on any lawful basis that justifies that decision. We may uphold a trial court's ruling on any legal theory or basis applicable to the case, but may not reverse a trial court's ruling on any theory or basis that might have been applicable to the case, but was not raised. Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002); cf. Cameron v. State, 241 S.W.3d 15, 18-20 (Tex. Crim. App. 2007). Thus, if we find that the trial court's decision, to have Alexander move the Bible, is supportable for any reason, we will find no error.

Certainly, symbolism is found in and around our courtrooms, and trial courts have the discretion to allow displays so long as they are not prejudicial to a litigant. See Davis v. State, 223 S.W.3d 466, 475 (Tex. App.--Amarillo 2006, pet. ref'd) (no prejudice shown in trial court's allowing trial spectators to wear medallions bearing photograph of victim police officer); Green v. State, 209 S.W.3d 831, 834 (Tex. App.--Amarillo 2006, pet. ref'd) (trial court permissibly allowed small, unobtrusive cross pendant to be worn by prosecutor); Ruckman v. State, 109 S.W.3d 524, 532 (Tex. App.--Tyler 2000, pet. ref'd) (within trial court's discretion to allow district attorney and assistant district attorney, during trial, to wear lapel pins supporting children).

The  trial  court  has  "the  inherent  power  to  control  the  orderly  proceedings  in  the courtroom . . . ." Allen, 232 S.W.3d at 780; Gonzales v. State, 2 S.W.3d 600, 607 (Tex. App.--Texarkana 1999, pet. ref'd); see Geders, 425 U.S. at 86. Trial courts have the power and obligation to control their courtrooms for the purposes of ascertaining the truth, promoting judicial economy, and protecting witnesses. Trial courts must have certain authority over their courtrooms, sufficient to

exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the   ascertainment   of   the   truth,   (2)   avoid   needless   consumption   of   time, and  (3) protect witnesses from harassment or undue embarrassment.

Tex. R. Evid. 611(a). Litigants have the right to have cases decided based on the evidence adduced at trial, not on some other basis. See Holbrook v. Flynn, 475 U.S. 560, 570 (1986); Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996).

That inherent trial-court power includes restricting conduct or displays that might detract from an orderly, impartial trial focused on the issues to be tried and the legitimate evidence. In an unpublished opinion from Minnesota, a trial court was faced with a similar display of a Bible. That court reasoned that,

the district court is charged with restricting disruptive conduct at trial, including the regulation of religious displays. A compelling interest of conducting a trial in a secular, impartial, orderly manner justified the district court's order. Because the district court inquired into the purpose of the Bible, had a compelling interest in conducting an orderly, impartial trial, and allowed appellant to hold the Bible in his lap, the district court did not err in ordering appellant to conceal his Bible.

State v. Albertson, No. A04-2277, 2006 Minn. App. Unpub. LEXIS 195, at *2-6 (Minn. Ct. App.

Feb. 28, 2006).

Similarly, in a 1971 case from Florida, a trial court (reasoning that it would introduce an extraneous factor into the trial) declined to allow a defendant to keep a Bible on the table, noting that he had developed his interest in religion only after being incarcerated. The court also allowed the defendant to keep the Bible within his grasp, though requiring him to keep it out of sight. Caldwell v. State, 243 So. 2d 422, 424 (Fla. Dist. Ct. App. 1971).

On the other hand, a trial court in Ohio was unimpressed with such an objection by the State and responded differently: "I'm not going to order that a defendant can't have a Bible in the courtroom." The objection was overruled, and the trial resumed, with no apparent negative effect. State v. Jackson, No. L-07-1184, 2008 Ohio App. LEXIS 1344, at *P18 (Ohio Ct. App. Mar. 31, 2008). Generally, either position--allowing any particular, nongermane display or restricting it--is within the sound discretion of the trial court in the control of trial proceedings.

Here, the trial court did not deny Alexander the opportunity to have his Bible near him or even to read or refer to it if needed during trial. The court merely directed him to keep the Bible in a place less visible than on top of counsel table. In doing so, the trial court acted within its inherent authority to conduct orderly, impartial trial proceedings.

To justify a substantial interference with religious beliefs or practices, the government must show that it has a compelling interest in doing so. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972); In re R.M., 90 S.W.3d 909, 912-13 (Tex. App.--San Antonio 2002, no pet.). Alexander suggests that the trial court's directive was a substantial interference with Alexander's First Amendment right to the free exercise of his religion. We disagree.

Because the record does not demonstrate how the trial court's order interferes with Alexander's free exercise of religion at all, much less "substantially," this complaint must fail. In 2002, our sister court of appeals in San Antonio was faced with a claim that an order requiring R.M. to submit to psychoactive medications would interfere with her religious beliefs. The court examined the testimony in the record and determined that, while R.M. testified she was "very religious and a devout Catholic" and taking the medication interfered with her reading, writing, or working to make money--which could be used to get music lessons to help her minister in song--that evidence failed to prove the medications would substantially burden R.M.'s free exercise of religion. See id. This record contains no evidence of any burden on Alexander's free exercise of religion.

Without proof to the contrary, simply displaying a Bible on the counsel table does not constitute the "exercise" of religion. This act is nothing more than a particular, easily recognized book being prominently displayed to jurors.

We also do not see that this is an issue about the Bible, in particular, or the free exercise of religion, in general. Imagine that a significant portion of the local population, in the county where trial was being held, highly esteemed the Boy Scout Handbook, ⁽³⁾ which, by its cover, was easily recognizable by most jurors at a distance. Imagine further that the State's attorney, a former Boy Scout, wanted to display his well-worn Boy Scout Handbook prominently on counsel table, in a jury trial that did not particularly involve that book. Contents of the Handbook could very well be helpful in guiding the State's attorney in acting admirably and with virtue, if he used the Handbook's teachings. But would the trial court have the discretion to require the State's attorney to put the book in a less prominent position so as not to risk improperly influencing the jury? Undoubtedly. In doing so, would the trial court in any way interfere with the State's attorney's right to conduct himself according to the teachings of the Handbook? Certainly not.

The record contains no showing that Alexander's religious practices or beliefs required him to prominently display his Bible during trial. Nor is there any evidence that he had it for reference or even for comfort. The record suggests only that he wished to display it passively to the jury.

Further, the record suggests that the trial court's order did not deny Alexander access to his Bible any time he wanted to use it conventionally, rather than as a mute statement to the jury. The order was issued for the purpose of conducting an orderly trial, so that the jury would be uninfluenced by factors external to the evidence adduced.

Alexander asserts that the effect of the order was to make him choose between the exercise of two constitutional rights: his right to remain silent and his right to exercise his religious beliefs. The State argued that displaying a Bible on the table in front of Alexander equated to testimony; thus, the State suggested, with some level of concurrence by the trial court, that displaying the Bible that prominently might have waived Alexander's Fifth Amendment right to remain silent. We see no possibility of waiver here.

An effective waiver of a fundamental constitutional right requires an "intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464 (1938); In re Bryan, 645 F.2d 331, 333 (5th Cir. 1981). "Courts indulge every reasonable presumption against waiver of a fundamental right . . . ." United States v. Shea, 508 F.2d 82, 85 (5th Cir. 1975).

Implicit, or "testimonial," waiver of the privilege against self-incrimination can be inferred from a witness' prior statement concerning the subject matter in question, but such waiver will not lightly be inferred and will be resisted by every reasonable presumption. Klein v. Harris, 667 F.2d 274, 287 (2d Cir. 1981) (citing Emspak v. United States, 349 U.S. 190, 198 (1955); Smith v. United States, 337 U.S. 137, 150 (1949)). Even if display of a Bible could be considered Alexander's "statement," it could not be considered to be a statement on the subject matter of the trial.

One could as well argue that it was testimony for the defendant to wear a particular type of clothing, or as suggested by appellate counsel, to have a particular type of facial hair, or a pony tail. ⁽⁴⁾ Testimony, by definition, is sworn, oral communication made by a witness at trial, or in affidavit or deposition. See Black's Law Dictionary 1514 (8th ed. 2004). The presence of a book on counsel table does not constitute testimony. Thus, the court's directive based on that theory is not supportable. ⁽⁵⁾

The State has directed our attention to an unpublished Minnesota appellate decision as support for its position. See Albertson, 2006 Minn. App. Unpub. LEXIS 195, at *2-6. The case is not on point. Although the facts are quite similar, Albertson does not stand for the proposition that display of the Bible constituted some form of testimony. In that case, a trial court refused to allow a defendant to keep his Bible in a visible location, but not on the basis that it constituted testimony.

This instance of the trial court's control of its courtroom is within its sound discretion. Finding no abuse of the trial court's discretion, we overrule this point of error.

(2) Sufficient Evidence Corroborates the Accomplice-Witness Testimony

Alexander also contends the evidence is insufficient to support his conviction because the testimony of Brittany Brown, an accomplice, was not adequately corroborated.

The test for adequate corroboration is whether, after excluding the accomplice's testimony, there is other evidence of an incriminating character which tends to connect the defendant with the commission of the offense. Castillo v. State, 221 S.W.3d 689, 691 (Tex. Crim. App. 2007). The other evidence needs only to link the accused to the commission of the crime and allow "rational jurors [to] conclude that this evidence sufficiently tended to connect [the accused] to the offense." Malone v. State, 253 S.W.3d 253 (Tex. Crim. App. 2008).

The record reveals this story. Confidential informant, K.H., was wearing a "wire" and was to make a drug buy from Brown. K.H. and Brown met at a local store and together drove to a roadside rendezvous point, where a person in a gold Chevrolet Suburban met them. Brown went to the passenger seat of the Suburban, and the occupant of the Suburban gave her a single bag containing what was later proven to be cocaine. As the Suburban pulled away and police attempted to stop the vehicle, Brown went the opposite direction. Brown returned to K.H.'s home, and police met them there.

Brown, found by the trial court to be an accomplice, gave authorities the cocaine and identified Alexander as the driver of the Suburban, that is, the seller of the cocaine. When police stopped the Suburban, its driver got out and successfully eluded police.

The question before us is whether sufficient evidence, beyond Brown's testimony, connects Alexander to the sale of cocaine.

The Suburban was registered to Alexander and his wife, Lameca Edwards. The officer who stopped the vehicle, David Rowton, said that its driver met the general physical description of Alexander, but that he could not positively identify him.

The police also recovered a cell phone that was left in the Suburban. Edwards was the telephone's owner. Edwards' cell phone memory indicated several calls received from Brown's cell phone and several text messages matching text messages on Brown's telephone, the most crucial of which occurred during the time period that K.H. and Brown were together the evening of the offense. The relevant text messages compiled from the telephones tell the story of the text messages sent and received between Brown's telephone and Edwards' telephone between 8:09 p.m. and 8:34 p.m. the evening of the drug buy in question:

From Brown at 8:09 p.m.: "Are u almost ready"

To Brown at 8:10 p.m.: "Yeah"

From Brown at 8:16 p.m.: "When we meet im gettin in with u becuz me and this other girl from work are gettin this together where u want to meet me"

To Brown at 8:17 p.m.: "Ok.who u wth"

From Brown at 8:22 p.m.: "Cum on I am waitin on u"

To Brown at 8:23 p.m.: "ok.gve me 5min.im gttn it 2gthr nw"

To Brown at 8:25 p.m.: "Hw do u wnt it. solid r n 2pcks"

From Brown at 8:26 p.m.: "Ok hurry please"

From Brown at 8:29 p.m.: "Solid u ready"

To Brown at 8:31 p.m.: "Yeah meet me on austin&5th by st. joseph"

To Brown at 8:34 p.m.: "U wil c me on 5th.tke a rght"

This exchange provides some evidence that Brown was to obtain the drugs from the person she was meeting who was in the Suburban and was using Edwards' telephone to communicate. The person using Edwards' telephone identified him- or herself as "Det"--a "street name," according to an officer's testimony, used by Detwonne Alexander. There is testimony from the officer who failed to capture the fleeing suspect in the Suburban, that the suspect matched Alexander's general appearance. The vehicle was registered in the names of Alexander and Edwards. The telephone used by the suspect in the Suburban belonged to Edwards.

Viewed as a whole, we conclude this evidence tends to connect Alexander to the alleged offense and therefore sufficiently corroborates the testimony of the accomplice, Brown. We overrule this point of error.

We affirm the judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: February 20, 2009

Date Decided: March 11, 2009

Publish

1. Alexander was sentenced to sixty years' imprisonment.

2. See Geders v. United States, 425 U.S. 80, 86-91 (1976) (abuse-of-discretion standard applies because trial court "must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process").

3. The Court should not be misunderstood as saying that the Bible is equivalent to the Boy Scout Handbook, though both are highly valued by many in our society and contain excellent teachings. The Court is simply attempting to analogize.

4. Almost invariably, when police officers appear in court, either testifying or as interested observers, they appear in their uniforms. Under the State's argument in this case, one could equally take the position that their appearance in such specific and identifiable clothing constitutes a form of testimony. We also agree with Alexander's suggestion that a defendant priest would surely not be required to remove his clerical collar, or a rabbi his yarmulke. Although such a display would reflect a religious belief, it is simply not testimony for Fifth Amendment purposes.

5. Long-standing caselaw holds that a person may not be required to surrender one constitutional right to assert another. Simmons v. United States, 390 U.S. 377, 394 (1968); Avila v. State, 856 S.W.2d 260, 261 (Tex. App.--El Paso 1993, pet. ref'd).

eneral operations, but should, instead, focus on the right of control over the activity or condition that actually caused the injury. The specific question at issue was whether an oil company owed a duty to protect a tenant service station's employees from the criminal acts of third parties. Under the facts in that case, Exxon leased a full-service gasoline station to Jerry Morgan, who then hired Terry Tidwell as an attendant; Tidwell was later shot during a robbery attempt on the premises and suffered gunshot wounds to his face and arm. Id. at 20.

            In its analysis, the court cited an earlier opinion expressly adopting Section 414 of the Restatement (Second) of Torts in support of the rule that "[o]ne who retains the right of control or exercises actual control over the work of an independent contractor also owes a duty of reasonable care to the contractor's employees." Id. at 21 (citing Redinger, 689 S.W.2d at 418; Restatement (Second) of Torts § 414 (1965)). The court, however, limited the application of this principle when it stated:

[T]he nature of the matters to which the right of control extends [is] determinative. We think that in a case alleging negligence in maintaining a safe workplace, the court's inquiry must focus on who had specific control over the safety and security of the premises, rather than the more general right of control over operations. Issues concerning control over operations . . . obscure the true inquiry. The focus should be on whether Exxon had the right to control the alleged security defects that led to Tidwell's injury. If Exxon did not have any right to control the security of the station, it cannot have had any duty to provide the same. If Exxon had such a right of control, on the other hand, its conduct may be found to have contributed to Tidwell's injury. Applying the traditional test of right of control over general operations simply does not answer this question. It requires a factfinder to surmise a general right of control from factors unrelated to safety, and then to infer from that general control a right of control over the safety conditions that are the real issue in the case.

Id. at 23. This is precisely what Hagins' estate attempted to do in submitting a question encompassing any exercise of supervisory control by E-Z Mart over Lance.

            While it is clear that Texas caselaw supports narrowing the issue of actual control to whether a general contractor retained or exercised control over the activity or condition causing the injury, Lawrence, 988 S.W.2d at 226, we are concerned with the rather strict narrowness of the issue presented to the jury in this case. Nevertheless, regardless of whether it was proper to ask the jury to consider the issue of E-Z Mart's control over fall protection, the jury ultimately found E-Z Mart negligent, determined its negligence proximately caused Hagins' injuries, and assessed its proportionate responsibility. Therefore, any error in the submission of question one was thereby rendered harmless. We therefore overrule points of error one and two.

Jury Question Two: E-Z Mart's Duties

            In its third point of error, Hagins' estate contends the trial court erred in submitting question two of the jury charge because it failed to properly instruct the jury regarding E-Z Mart's duties, resulting in jury confusion and error in answering questions one and three. Hagins' estate cites no law on this point, but complains that the jury should have been provided dual instructions on negligence and ordinary care because E-Z Mart filled both the role of premises owner and general contractor. The trial court, instead, submitted only those instructions relating to E-Z Mart's role as premises owner. Because a "general contractor in control of the premises is charged with the same duty as an owner or occupier," Olivo, 952 S.W.2d at 527, both have the duty to use reasonable care to make and keep the premises safe. Id.; Koko Motel v. Mayo, 91 S.W.3d 41, 45 n.5 (Tex. App.—Amarillo 2002, pet. denied); Redinger, 689 S.W.2d at 417. Even if failure to submit both sets of instructions constituted charge error, in light of the jury's affirmative finding of E-Z Mart's negligence, we fail to see how any such error could have been harmful. See Marze, 61 S.W.3d at 456.

Evidentiary Sufficiency

            In its fourth and fifth points of error, Hagins' estate complains the jury's answers to questions one and three were against the great weight and preponderance of the evidence. In support of this position, Hagins' estate argues that the jury's answers were manifestly unjust because the evidence demonstrates that the only fault attributable to Hagins was his failure to watch where he was stepping, whereas E-Z Mart actually exercised control of the premises, knew of the unsafe platform used by Lance employees, and approved of the platform's use.

            When a party challenges the factual sufficiency of an adverse jury finding on an issue where it had the burden of proof at trial, we review and weigh all of the evidence, both for and against the issue, setting aside the verdict only if the evidence supporting it is so weak or the finding is so contrary to the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). If it sets aside the verdict, "the court of appeals must 'detail the evidence relevant to the issue' and 'state in what regard the contrary evidence greatly outweighs the evidence in support

of the verdict.'" Francis, 46 S.W.3d at 242 (quoting Pool v. Ford Motor Co., 715 S.W.2d 629, 630 (Tex. 1986)).

            Returning to the earlier discussion of retained control and Harrison, Hagins' estate maintains that E-Z Mart's actual control of the premises was established by the evidence. Unlike the present case, however, the Harrison court concluded a general contractor actually retained the right to control fall protection because it assigned one of its employees to oversee and routinely inspect its subcontractor's employees and their proper use of fall-protection equipment. Harrison, 70 S.W.3d at 784. The evidence also suggested that this supervisor personally witnessed and approved of the subcontractor's use of specific fall-protection systems, despite knowing of the subcontractor's failure to comply with established safety procedures relating to their use. Id. In this case, the evidence shows that one of E-Z Mart's employees, Danny Harrington, signed the building permit in the capacity of general contractor and was similarly identified on job specifications, but does not suggest he maintained any of the type of control over safety that led the Harrison court to conclude control had actually been retained. Evidence of the potential or possibility of control is not evidence that actual control is exercised or retained. Lawrence, 988 S.W.2d at 226. It is simply not enough that Harrington could have stopped work if he felt someone was in jeopardy or that he could have requested a change in procedure had he considered conditions to be blatantly unsafe.

            In order for E-Z Mart to have any duty of care under the circumstances, it must necessarily have exercised control beyond mere general or supervisory control, extending its influence over the operative detail of Lance's work to such an extent that Lance would not have been free to perform the work in its own way. Harrison, 70 S.W.3d at 793 (Hecht, C.J., concurring) ("[T]he right of control must . . . extend to the 'operative detail' of the contractor's work . . . and to the injury-producing activity itself."). The Texas Supreme Court has also said that "a general contractor or an employer is [not] required to stand idly by while another is injured or killed in order to avoid liability" and "the liability rules [do not] contemplate putting those who employ independent contractors in that position." Mendez, 967 S.W.2d at 358 (quoting Welch v. McDougal, 876 S.W.2d 218, 224 (Tex. App.—Amarillo 1994, writ denied)).

            The evidence supporting the claim that E-Z Mart retained control over the operative details of Lance's work is weak at best. Hagins' estate points out that, before the accident in question, Harrington directed a Lance employee to weld a bracket on a gas pipe and asked another to hang a door. After the accident, Harrington instructed that rails should be installed on the platform and asked an employee to come down from the top of a ladder. Although these facts present some evidence of control by E-Z Mart, they certainly are not so overwhelming as to undermine the jury's conclusion that E-Z Mart did not retain control.

            In addition, it appears that the evidence supporting the jury's response to question three, apportioning sixty percent of the responsibility for the accident to Hagins himself, thirty percent to Lance, and ten percent to E-Z Mart, is more than sufficient. The determination of negligent parties' proportionate responsibility is a matter soundly within the jury's discretion, and, after the jury's finding that Hagins, Lance, and E-Z Mart were all negligent and that their negligence proximately caused Hagins' injuries, it is not the place of this Court to substitute its judgment for that of the jury, even if a different percentage of allocation could be supported by the evidence. Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 659–60 (Tex. App.—Dallas 2002, pet. denied) (explaining Section 33.033 of Texas Civil Practice and Remedies Code affords juries "wide latitude in . . . allocating responsibility for an accident"); Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).

            Although Hagins' estate argues E-Z Mart failed to prove Hagins was contributorily negligent, it makes this claim only tangentially and as part of its factual insufficiency point of error respecting the jury's response to question three. Not only did the safety consultation expert for Hagins' estate testify on cross-examination that Hagins was at least partially at fault, but counsel for Hagins' estate also said in closing arguments that he believed the question relating to Hagins' own negligence should be answered affirmatively, even suggesting a fifteen percent allocation of responsibility. The evidence further demonstrated that it was an unsafe work practice for Hagins to use the platform while positioned at an angle (leaving approximately three feet of open space between one side of the platform and the wall on which he was working) and that it had been Hagins' decision not to make an attempt to reposition the platform so that it would be flush against the wall. In light of the fact that Hagins and his coworkers had been trained in safety practices and knew the hazards associated with working above ground without safety harnesses, it is not unreasonable to conclude, based on the evidence presented, that jurors could find Hagins himself was the person most responsible for his injuries.

Negligent Hiring

            In its sixth point of error, Hagins' estate contends the trial court erroneously granted E-Z Mart's motion for summary judgment on the issue of negligence in hiring. That is, E-Z Mart should be liable to Hagins' estate for negligently hiring Lance despite its routine violations of regulations and use of hazardous workplace procedures, including the failure of its employees to wear safety lines when working above ground.

            Under the doctrine of negligent hiring, the basis of liability "is the master's own negligence in hiring or retaining . . . an incompetent servant whom the master knows, or by the exercise of reasonable care should have known, was incompetent or unfit, thereby creating an unreasonable risk of harm to others." Wise v. Complete Staffing Servs., Inc., 56 S.W.3d 900, 902 (Tex. App.—Texarkana 2001, no pet.). An employer who negligently hires an incompetent or unfit individual, therefore, may be directly liable to a third party whose injury was proximately caused by the employee's negligence. Golden Spread Council, Inc. v. Akins, 926 S.W.2d 287, 294 (Tex. 1996).

Hagins, however, as an employee of the independent contractor itself, cannot be considered a third party to which E-Z Mart may have owed a duty.

            In analyzing the scope of the phrase "third party" as used in the context of negligent hiring, the Fifth District Court of Appeals determined that it did not include the employees of independent contractors. Rogers v. Pro-Tec Installations, Inc., No. 05-96-00049-CV, 1997 Tex. App. LEXIS 3829, at *30 (Tex. App.—Dallas July 24, 1997, no pet.) (not designated for publication). Although the court was unable to cite any cases definitively stating whether an independent contractor's employees are third parties for the purpose of considering liability in negligent hiring, it pointed out that Texas law clearly holds that an independent contractor's employee is not considered a third party in strict liability cases. Id. (citing Hammack v. Conoco, Inc., 902 S.W.2d 127, 131 (Tex. App.—Houston [1st Dist.] 1995, writ denied); Gray v. Baker & Taylor Drilling Co., 602 S.W.2d 64, 67 (Tex. App.—Amarillo 1980, writ ref'd n.r.e.)). Seeing no reason why the phrase should be interpreted differently in relation to negligent hiring, the court ultimately held that a general contractor cannot be liable to an independent contractor's employee on the ground of negligent hiring. Rogers, 1997 Tex. App. LEXIS 3829, at *31. We agree.

Conclusion

            Having determined (1) the trial court did not abuse its discretion in submitting questions one and two, (2) the evidence was factually sufficient to support the jury's findings, and (3) E-Z Mart's

motion for summary judgment with regard to negligent hiring was appropriately granted, we affirm the judgment of the trial court.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          January 22, 2004

Date Decided:             February 6, 2004