Hiawatha Graves v. State ( 1993 )

Graves v. State

IN THE

TENTH COURT OF APPEALS

No. 10-93-004-CR

     HIAWATHA GRAVES,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the County Court

Limestone County, Texas

Trial Court # 18,988

                                                                                                    

O P I N I O N

                                                                                                    

      Hiawatha Graves was charged by information with the misdemeanor offense of possession of marihuana over two ounces. The jury convicted him and assessed punishment at 180 days in the county jail and a $1,500 fine. Graves appeals on five points.

      In point four, Graves complains that the information charging him with possession of marijuana was not read before the jury. In point five, Graves complains that he never entered a plea. The State concedes that it failed to read the information before the jury and requests that the cause be remanded for a new trial. See Tex. Code Crim. Proc. Ann. art. 36.01 (Vernon Supp. 1993); Peltier v. State, 626 S.W.2d 30 (Tex. Crim. App. [Panel Op.] 1981). Until the information is read and a plea is entered, the issue is not joined between the State and the accused before the jury. Peltier, 626 S.W.2d at 31. We sustain points four and five.

      Grave's complains in his first point that the court erred in allowing evidence obtained from an illegal search. Graves filed a motion to suppress evidence alleging the police conducted a warrantless search of the premises. The State responded on three theories: consent, probable cause plus exigent circumstances, and Grave's lack of standing to contest a warrantless search of a co-defendant's home. The motion to suppress was heard on May 22 and July 10, 1992. No transcription of the May 22nd portion of the hearing is before us. The court overruled the motion by an order dated August 4.

      Graves has failed to bring forward a sufficient record for our review. See Tex. R. App. P. 50(d). Thus, we do not reach point one. The propriety of the search remains an issue to be determined at the new trial.

      Having sustained points four and five, we remand the cause for a new trial.

 

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed August 18, 1993

Do not publish

1:place>,

  Appellants

 v.

 

Jimmy and Carolyn Dowell,

Individually and on behalf

of the Estate of

Jonathan Lance Dowell, Deceased,

                                                                      Appellees

 

 

 

From the 170th District Court

McLennan County, Texas

Trial Court # 99-2717-4

 

DISSENTING Opinion

 

      This is an appeal of a wrongful death and survival suit.  We should reverse and render.  Because the majority does not do so, I respectfully dissent.

      In Appellants’ first issue, they contend that there was no evidence of proximate cause and no evidence that Appellants failed to perform an appropriate psychiatric screening examination.  See 42 U.S.C. § 1395dd(a) (2000).

      Appellees contend that Appellants waived their issue by failing to object to the testimony of one of Appellees’ expert witnesses.  The cases cited by Appellees, to the extent that they are on point, concern the waiver of objections to the methodological reliability of expert testimony, not the sufficiency of the evidence.  See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998); Crown Cent. Petroleum Corp. v. Coastal Transp. Co., 38 S.W.3d 180, 190 (Tex. App.—Houston [14th Dist.] 2001), rev’d, 136 S.W.3d 227 (Tex. 2004); Gen. Motors Corp. v. Castaneda, 980 S.W.2d 777, 780 n.2 (Tex. App.—San Antonio 1998, pet. denied).[1]  By making an objection to the charge, filing a motion to disregard jury questions and for judgment notwithstanding the verdict, and filing a motion for new trial, all on the grounds that there was no evidence of proximate cause, Appellants preserved their no-evidence complaint.  See Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 259 (Tex. 2004); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992).

      Lance Dowell was admitted to the Providence Health Center emergency room for treatment of shallow self-inflicted cuts to his wrists.  A nurse employed by Appellants performed a psychological evaluation of Lance.  Appellees contend that Appellants failed to promulgate or enforce policies for psychological screenings, that the nurse failed to perform an appropriate screening, and that these failures caused Lance’s death.  The undisputed evidence was that when the nurse evaluated Lance, Lance was lucid, calm, remorseful, stable, and not actively suicidal. There is no evidence that, if Appellants had recommended admission to the DePaul Center, a psychiatric hospital, Lance would have agreed or could have been compelled to be admitted.  After Lance was released from Providence to Appellees, and until his death, they saw nothing out of the ordinary about him except that he was “more withdrawn.”  The day that he was released from the hospital, Lance visited with his family, went to a rodeo, and visited with friends.  The next day, he had lunch with his family and helped a friend bale hay.  About a day and a half after he left Providence, Lance hanged himself.  Appellees’ expert testified, at most, that had Lance been admitted to DePaul the probability that he would commit suicide upon his release would have been reduced.

      Under these facts, there is no evidence that Appellants’ conduct was a substantial cause of Lance’s death.  See IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Ramos, 47 Tex. Sup. Ct. J. 666, 668-69, 2004 Tex. LEXIS 534, at *8-*13 (Tex. June 18, 2004); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex. 2003); St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20 (Tex. 2002); Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343-44 (Tex. 1998). Accordingly, we should sustain Appellants’ first issue.

      We should, then, after sustaining Appellants’ first issue, reverse and render judgment that Appellees take nothing from Appellants.  Therefore, we should not consider Appellants’ other issues.

      Because the disposition of the first issue would be dispositive of the appeal, I will not discuss my disagreements with the remainder of the majority’s opinion.  I note only in passing that an estate, by that name, is not a proper party to litigation. Embrey v. Royal Ins. Co. of Am., 22 S.W.3d 414, 415 n.2 (Tex. 2000); Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975).  I also note that two notices of appeal from the same judgment should bear the same docket number on appeal.  Tex. R. App. P. 12.2(c).  Docketing this cause and Cause No. 10-01-00420-CV, styled Pettit v. Dowell, as two separate appeals was improper.

TOM GRAY

Chief Justice

Dissenting opinion delivered and filed October 6, 2004

 

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[1]       See also Coastal Transp. Co v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 231-33 (Tex. 2004); Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 252 (Tex. 2004).