Alonzo B. Moss, III v. State

MOSS V. STATE NO. 07-04-0330-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 11, 2005

______________________________



ALONZO B. MOSS, III, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 33,504-E; HONORABLE ABE LOPEZ, JUDGE

_______________________________

Before QUINN and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Alonzo B. Moss, III challenges an order of the trial court revoking his community supervision and sentencing him to four years confinement. In a single point of error, Moss contends the court erred in denying his motion to dismiss the State's motion to revoke his community supervision because the State failed to exercise due diligence in executing the capias for his arrest. We affirm.

On October 24, 1994, appellant pled guilty to aggravated theft and received two years deferred adjudication probation. In February 1996, the State reported that appellant had violated the terms of his probation and filed a motion to proceed with adjudication of guilt. Appellant did not contest the violations and the court extended his probation by three years. In August 1998, the State filed a second motion to revoke his probation, citing additional violations and a new theft offense. Appellant was adjudicated guilty on the original theft charge on November 20, 1998, but the sentence was suspended in favor of four years of community supervision. In June 2002, the State discovered that appellant had been detained on felony theft charges in Lubbock County. The State filed a motion to revoke appellant's community supervision on September 17, 2002, based on the new theft charges and appellant's failure to report to his supervision officer. Three days later, on September 20th, the court issued a capias for appellant's arrest.

In December 2002, the Community Supervision Office learned that Lubbock County authorities were not aware of the Potter County capias. The office immediately requested that a teletype of the warrant be sent to Lubbock County. Following the request, they received a confirmation from the Potter County Sheriff's Office stating that the warrant had been served. No further action was taken regarding the capias. Appellant was released by Lubbock County on bond in March 2003. After his release, appellant resided in Lubbock and contacted the Community Supervision Office in Potter County to see if he owed any money. Believing that his community supervision had expired, he did not report the fact that he had been released or his new Lubbock address. The Community Supervision Office did not inform him of the pending capias for his arrest. Appellant resided in Lubbock until October 2003, when he was jailed again on previous charges. On April 15, 2004, the trial court issued a bench warrant requesting that appellant be returned to Potter County. Following his apprehension, appellant filed a motion to dismiss the State's motion to revoke his community supervision claiming that the State had not exercised due diligence in executing the capias warrant. Following a hearing, appellant's motion was denied, and the court assessed the original sentence of four years confinement.

Appellant contends the State did not use due diligence because he was not apprehended until approximately eighteen months after the motion to revoke was filed and approximately sixteen months after the expiration of his community supervision. We disagree. We review the revocation of community supervision under an abuse of discretion standard. Cardona v. State, 665 S.W.2d 492, 493 (Tex.Cr.App. 1984). In determining an abuse of discretion we must look to whether the trial court's decision was arbitrary, unreasonable, and without reference to guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Cr.App. 1990) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986)).

A trial court may hear a motion to revoke community supervision even after the period of community supervision has expired. Peacock v. State, 77 S.W.3d 285, 287 (Tex.Cr.App. 2002). However, in order for a trial court's jurisdiction to be extended, two acts must occur prior to the expiration of the probationer's community supervision: 1) the State must file a motion to revoke, and 2) a capias must be issued for the probationer's arrest. Id.; Tex. Code Crim. Proc. Ann. art. 42.12, § 21(e) (Vernon Supp. 2004-05). A capias warrant may be issued for any violation at any time during the period of community supervision. Art. 42.12, § 21(b). Once the jurisdictional requirements are met, the State must use due diligence in executing the capias. Id. at § 24; Peacock, 77 S.W.3d at 287-88. The State's failure to execute the capias with due diligence is an affirmative defense to revocation. Art. 42.12, § 24. See also Connolly v. State, 983 S.W.2d 738, 741 (Tex.Cr.App. 1999) (holding that failure to execute the capias with due diligence is a plea in bar for the probationer). As an affirmative defense, the probationer has the burden of raising the issue of due diligence at the revocation hearing. Peacock, 77 S.W.3d at 287-88. Once the issue is before the court, the burden shifts to the State to show by a preponderance of the evidence that due diligence was used in executing the capias. Id. at 288.

Here, the jurisdiction of the trial court is undisputed as the State's motion to revoke was filed and capias was issued prior to the expiration of appellant's community supervision. The motion to revoke was based on new thefts committed by appellant in Lubbock County in January 2001 and June 2002 and appellant's failure to report to his supervision officer. Due to appellant's failure to abide by the conditions of his community supervision, the court issued a capias for his arrest on September 20, 2002. Appellant maintains the first time he learned of the capias was when he was arraigned in Lubbock on April 13, 2004. Therefore, he claims the State did not use due diligence in executing the warrant. Article 42.12, section 24 of the Texas Code of Criminal Procedure provides that the State's failure to execute a capias with due diligence is a defense "to revocation for an alleged failure to report to a supervision officer as directed or to remain within a specified place . . . ." Applying the rules of statutory construction, we must accord criminal statutes their plain and ordinary meaning. See Barrow v. State, 973 S.W.2d 764, 768 (Tex.App.-Amarillo 1998, no pet.). In doing so, we find the due diligence statute makes no mention of probation violations resulting from a probationer's failure to refrain from committing additional crimes against the State. We agree with the State's argument that the due diligence defense as stated in section 24 applies only to appellant's failure to report to his community supervision officer. The law does not require the State to exercise due diligence in executing a capias issued for crimes perpetrated while under community supervision. See Nurridin v. State. 154 S.W.3d 920, 924 (Tex.App.-Dallas 2005, no pet.). Because this rule is dispositive of appellant's motion to dismiss, we find it unnecessary to determine whether the State acted with due diligence on appellant's failure to report. Appellant's sole point of error is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

judgment is proper for a defendant if the defendant affirmatively disproves at least one element of the plaintiff's claim or establishes all necessary elements of an affirmative defense to the claim. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

We will examine the record in light of Christine's response in the trial court which urged that more than a scintilla of evidence was presented on the issue of Mark's being a reckless driver. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 203-04 (Tex. 2002). In examining the record, we consider any evidence presented in the light most favorable to the non-movant Christine. See Wal-Mart Stores, 92 S.W.3d at 506; Johnson, 73 S.W.3d at 208. NEGLIGENT ENTRUSTMENT

A cause of action for negligence has three elements: (1) a legal duty owed by one party to another, (2) a breach of that duty, and (3) damages proximately caused by that breach. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). A claim for damages based on the theory that a party negligently entrusted a vehicle to another and thereby caused damages has the same three elements. See Garcia v. Cross, 27 S.W.3d 152, 155 (Tex.App.--San Antonio 2000, no pet.).

Christine claims that the Hudsons negligently entrusted their vehicle to Mark because: (1) the Hudsons entrusted to Mark a vehicle they owned or over which they had the right of control, (2) at the time of entrustment Mark was a reckless driver, (3) the Hudsons knew or should have known at the time of entrustment that Mark was a reckless driver, (4) Mark was negligent on the occasion in question, and (5) Mark's negligence proximately caused the accident. See Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987); McCarty v. Purser, 379 S.W.2d 291, 294 (Tex.1964).

To obtain recovery against the Hudsons, Christine essentially must prove two negligence causes of action in one lawsuit. One cause of action requires proof that Mark's negligence in operating the vehicle proximately caused the accident and Eric's injuries (elements 4 and 5 of her allegations). The other cause of action requires proof that the Hudsons were negligent in entrusting a vehicle to Mark because he was a reckless driver and that their negligence was a proximate cause of Eric's injuries (elements 1, 2 and 3 of her allegations together with proximate causation). See Schneider, 744 S.W.2d at 596-97 (entrustment liability rests upon the combined negligence of the entrustor in entrusting the vehicle and the negligence of the driver entrusted with the vehicle; the risk that forms the basis for determining that the entrustment was negligent must also be a proximate cause of the accident in question for the entrustor to be liable); McCarty, 379 S.W.2d at 294. It is the elements of the latter of the two negligence causes of action that the Hudsons challenged by their summary judgment motion.

On appeal, the Hudsons seek to sustain their summary judgment by asserting that Mark was not a reckless driver and, therefore, they could not have known that he was a reckless driver. Additionally, the Hudsons argue that there was no evidence that their entrustment, even if negligent, was a proximate cause of the damages asserted. See Schneider, 744 S.W.2d at 596-97; McCarty, 379 S.W.2d at 294.

At the outset, we decline to consider the Hudsons' assertion that their entrustment of the vehicle to Mark, even if negligent, was not a proximate cause of Eric's injuries. The issue was not expressly presented in the trial court by their motion for summary judgment. See TRCP 166a(c); Johnson, 73 S.W.3d at 204; Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989).

In focusing on the issue of whether Mark was a reckless driver, the Hudsons urge us to apply the definition of "reckless" which the Legislature has used in criminalizing reckless driving. The criminal offense of reckless driving is committed when a person drives a vehicle in wilful or wanton disregard for the safety of persons or property. Tex. Transp. Code Ann. § 545.401 (Vernon 1999). Wilful and wanton disregard is synonymous with conscious indifference. See White v. State, 647 S.W.2d 751, 753 (Tex.App.-Fort Worth 1983, writ ref'd). The Hudsons do not cite authority for their proposition. Nor do we find authority requiring the driving history of an entrustee to reflect a pattern of wilful and wanton actions in disregard for the safety of other persons or property before the entrustee can be found to be "reckless" for the purposes of a negligent entrustment action.

On the other hand, we note that in regard to negligent entrustment, drivers have been determined to be reckless when their history of driving habits, traffic violations, or intemperance (whether due to wilful and wanton actions or otherwise) exhibits a pattern of such deviations from lawful and proper manner of vehicle operation that if the entrustor had knowledge of the history, the entrustor should reasonably have anticipated that the driver would operate the entrusted vehicle in a wrongful manner and thereby damage persons or property. See Schneider, 744 S.W.2d at 596; Louis Thames Chevrolet Co. v. Hathaway, 712 S.W.2d 602, 604 (Tex.App.-Houston [1^st Dist.] 1986, no writ); Revisore v. West, 450 S.W.2d 361, 364 (Tex.Civ.App.-Houston [14^th Dist.] 1970, no writ); Broesche v. Bullock, 427 S.W.2d 89, 93 (Tex.Civ.App.-Houston [14^th Dist.] 1968, writ ref'd n.r.e.). We decline to engraft the heightened standard for criminalized reckless driving onto the common-law negligent entrustment cause of action.

The Hudsons also argue that because there is no evidence that Mark actually was under the influence of alcohol or marijuana on the occasions in question, the evidence that he drove after using the substances cannot be considered in regard to whether he was a reckless driver. We disagree.

The episodes of Mark's driving after using alcohol and marijuana were of sufficient concern to the Hudsons that they temporarily suspended Mark's privileges to drive when they found out about the situations. Mark testified that the suspension for his drinking and driving was because the Hudsons considered the matter a safety issue. Viewing the evidence in the limited record before us in the light most favorable to Christine, evidence that Mark used marijuana ⁽⁴⁾ and that the Hudsons restricted Mark's driving privileges based on their knowledge of that usage raises a similar inference that they considered the matter a driving safety issue. Such matters could be considered ⁽⁵⁾ in regard to whether Mark was a reckless driver; that is, whether Mark's driving history was such that the Hudsons should reasonably have anticipated that Mark would operate an entrusted vehicle in an unsafe manner, resulting in damage to persons or property.

The Hudsons further argue that the instances in which Mark drove after drinking and after using marijuana should not be considered in regard to the negligent entrustment claim because there is no allegation that Mark used alcohol, marijuana or any similar substance on the morning of the accident, and the risk which might have been anticipated from those past instances was not a proximate cause of the accident. See Schneider, 744 S.W.2d at 596-97. As noted previously, we will not consider the proximate cause aspect of the Hudsons' argument because they did not present the issue in their motion for summary judgment.

NO-EVIDENCE SUMMARY JUDGMENT

If each incident is viewed separately, as the Hudsons assert should be done, none of the episodes might, in and of themselves, be sufficient evidence for Christine to avoid summary judgment. But, they are not to be viewed separately and in isolation from one another. The term "history" commonly is used to reference those past events that form the subject matter of a history. See In the Matter of the Marriage of Stein, No. 07-03-0289-CV *7 (Tex.App.--Amarillo 2004, no pet. h.); Merriam-Webster's Collegiate Dictionary 549 (10^th ed. 2002). Mark's "history" of driving habits, traffic violations and intemperance includes all such events predating the Hudsons' entrustment of a vehicle on the date of the accident. And, viewing the events of that history in the light most favorable to Christine's claim, each of the instances could be considered in relation to whether Mark was a reckless driver.

The series of events, compressed as they were to within an approximate two-year period preceding the date of the accident, presented more than a scintilla of evidence that Mark was a reckless driver within the context of a negligent entrustment cause of action. Thus, the grant of a no-evidence summary judgment would have been improper.

TRADITIONAL SUMMARY JUDGMENT

Mark testified in his deposition that he was intoxicated when he drove himself and several friends to school after drinking whiskey, rum, vodka and tequila. He testified that he drove after using marijuana on at least two other occasions, and summary judgment evidence was not presented to conclusively prove that he was not impaired by the marijuana. See Tex. Transp. Code Ann. §§ 521.343(a)(3), 521.372(a)(1) (Vernon 1999 and Supp. 2004). Nor does the summary judgment proof show that, as a matter of law, Mark (1) did not deserve the speeding ticket, (2) was not at fault in the collision with the tree (a fixed object), or (3) was not at fault in the rear-end collision with another automobile.

In sum, the Hudsons did not prove, as a matter of law, that one or more of the referenced incidents were not of a type to be considered on the question of Mark's alleged recklessness as a driver. We have previously determined that the events comprising Mark's history, as a whole, presented at least a scintilla of evidence that Mark was a reckless driver within the context of a negligent entrustment cause of action. Thus, the Hudsons did not prove by their summary judgment evidence that, as a matter of law, Mark was not a reckless driver.

Finally, we consider the Hudsons' uncontroverted proof that they took corrective action following Mark's driving transgressions. Given the record before us those actions and the small amount of time which elapsed between the last corrective action and the accident did not prove that, as a matter of law, Mark had changed, by overcoming his driving history and the risk it presented, and was no longer a reckless driver. We offer no opinion on what part, if any, the Hudsons' corrective actions would play in regard to the proximate cause issue.

Summary judgment on a traditional basis was not warranted.

CONCLUSION

Because the Hudsons were not entitled to either a no-evidence summary judgment or a traditional summary judgment, we reverse the judgment and the cause is remanded for further proceedings.

Phil Johnson

Chief Justice

1. Further reference to a rule of Civil Procedure will be by reference to "TRCP __."

2. Mark's testimony dated both the collision incidents in 2000; other testimony raised the inference that they may actually have occurred in 1999. In their summary judgment motion, the Hudsons represented to the trial court that the second collision incident occurred in October of 2000.

3. Christine's notice of appeal identifies the July 26, 2002 order as the order appealed from. The July 26^th order merely severs the negligent entrustment claim from the negligence claim. We conclude, however, that the notice of appeal constitutes a bona fide attempt to invoke this court's jurisdiction over the summary judgment and is sufficient to invoke our jurisdiction. See City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex. 1992) (per curium); Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991).

4. Whether evidence that Mark used alcohol or marijuana before driving will be admissible at trial without proof that his driving abilities were impaired thereby or that he was intoxicated while driving are questions not presented and we offer no opinion on those matters.

5. We offer no opinion as to whether the instances of Mark's driving after using alcohol and marijuana, without consideration of the additional driving incidents and speeding ticket, comprise evidence that Mark was a reckless driver sufficient for Christine to avoid summary judgment.