Texas Capital Securities Management, Inc. v. J. D. Sandefer, III ( 2002 )

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

______________________________

No. 06-01-00131-CV ______________________________



TEXAS CAPITAL SECURITIES MANAGEMENT, INC., ET AL., Appellants

V.

J. D. SANDEFER, III, ET AL., Appellees

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On Appeal from the 270th Judicial District Court Harris County, Texas Trial Court No. 1999-08372

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Before Grant, Ross, and Cornelius,* JJ. Opinion by Justice Ross *William J. Cornelius, C.J., Retired, Sitting by Assignment

O P I N I O N

Thomas Buckley, Patrick Smetek, Thomas R. Reckling, IV, and Texas Capital Securities Management, Inc. (TCSM) (collectively Appellants) appeal the trial court's granting of summary judgment in favor of J. D. Sandefer, III, and Stephen F. Smith (Appellees) on their claims under the Texas Securities Act. ⁽¹⁾ Appellees sued Appellants for common-law fraud, statutory fraud, violation of the Texas Securities Act, and constructive fraud. Appellees nonsuited as to the fraud claims, leaving only the violation of the Texas Securities Act claim.

Appellants contend that the trial court erred in granting Appellees' motion for summary judgment and that the trial court erred in not reducing the sum of money awarded in the summary judgment, or in not deeming the judgment satisfied. Reckling further contends the trial court erred by not granting his post-trial motions.

In Texas Capital Securities v. Sandefer, Appellees sued various defendants and recovered damages stemming from the sale of stock in Titan Resources, Inc. Tex. Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760 (Tex. App.-Houston [1st Dist.] 2001, two pets. denied). Appellants were not parties to that lawsuit. The evidence in that case showed that Sandefer and Smith each invested in Titan based on the recommendation and representations of Steven Johnson, a stockbroker with Texas Capital Securities, Inc., and that both suffered losses when the value of the stock fell. Appellees sued Titan, Harris D. Ballow (a stock promoter and principal at Titan), Johnson, and Texas Capital Securities, Inc. Titan and Johnson settled before trial. A jury found that Ballow and Texas Capital Securities, Inc. made fraudulent misrepresentations to Appellees. The jury further found Ballow and Texas Capital Securities, Inc. jointly and severally liable for the $359,063.00 purchase price of the stock and determined that Ballow should pay eight million dollars in punitive damages.

In this case, Appellees sued Appellants individually for violations of the Texas Securities Act, contending they are control persons and aiders under Article 581-33 of the Texas Securities Act and are therefore liable for the conduct of Texas Capital Securities, Inc. Appellees contend that, as control persons, Appellants were in a position to prevent the violations of the Act found against Texas Capital Securities, Inc. in the Texas Capital case. Id. at 775-76.

Appellants first contend the trial court erred in holding them jointly and severally liable for the sums for which Texas Capital Securities, Inc. is liable to Appellees under the final judgment in the Texas Capital case. Appellees moved for a traditional summary judgment under Tex. R. Civ. P. 166a(c), based on the principle of collateral estoppel, contending Appellants are prevented from contesting the liability of Texas Capital Securities, Inc. for violating the Texas Securities Act. Appellees contend the issue of Texas Capital Securities, Inc.'s liability has already been litigated, and because Appellants were in privity with Texas Capital Securities, Inc., the Texas Capital judgment establishes their liability under the Texas Securities Act. Appellees also moved for traditional summary judgment based on Appellants' status as "control persons," as defined by the Texas Securities Act. Appellees contend Appellants are also liable for the actions of Texas Capital Securities, Inc. pursuant to this status. Appellees further moved for traditional summary judgment that Appellants cannot prevail on one of the elements of their affirmative defense. Appellees finally moved for a no-evidence summary judgment under Tex. R. Civ. P. 166a(i) because they contend there is no evidence to support Appellants' affirmative defenses.

Summary judgment under Rule 166a(c) may only be granted in favor of the movants if they prove there is no genuine issue of material fact and they are entitled to judgment as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Because the movant bears the burden of proof, all conflicts in the evidence are disregarded, evidence favorable to the nonmovant is taken as true, and all doubts as to the genuine issue of material fact are resolved in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the nonmovant's favor. Id. at 549.

A no-evidence summary judgment is essentially a pretrial directed verdict. We therefore apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. McCombs v. Children's Med. Ctr., 1 S.W.3d 256, 258-59 (Tex. App.-Texarkana 1999, pet. denied); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.-Austin 1998, no pet.).

Appellants contend Appellees failed to establish the requisites of collateral estoppel. Collateral estoppel is also known as issue preclusion. Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985). Collateral estoppel is more narrow than res judicata in that it only precludes the relitigation of identical issues of fact or law that were actually litigated and essential to the judgment in a prior suit. Id.; see Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). Once an actually litigated and essential issue is determined, that issue is conclusive in a subsequent action between the same parties. Van Dyke, 697 S.W.2d at 384. Thus, unlike the broader res judicata doctrine, collateral estoppel analysis does not focus on what could have been litigated, but only on what was actually litigated and essential to the judgment.

In order to invoke collateral estoppel, a party must establish that: 1) the facts sought to be litigated in the first action were fully and fairly litigated in the prior action; 2) those facts were essential to the judgment in the first action; and 3) the parties were cast as adversaries in the first action. Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1991). Mutuality is not required for the invocation of collateral estoppel; rather, it is only necessary that the party against whom the plea of collateral estoppel is being asserted be a party or in privity with a party in the prior litigation. Id.

Appellees had the burden to present sufficient evidence to establish that the doctrine of collateral estoppel is applicable. See Scurlock Oil Co. v. Smithwick, 787 S.W.2d 560, 562 (Tex. App.-Corpus Christi 1990, no writ). "To meet this burden, the party relying on the doctrine is required to introduce into evidence both the prior judgment and pleadings from the prior suit." Jones v. City of Houston, 907 S.W.2d 871, 874 (Tex. App.-Houston [1st Dist.] 1995, writ denied); see Cuellar v. City of San Antonio, 821 S.W.2d 250, 256 (Tex. App.-San Antonio 1991, writ denied); Smithwick, 787 S.W.2d at 562 (party asserting collateral estoppel must introduce into evidence judgment and pleadings from prior suit or doctrine will not apply); Traweek v. Larkin, 708 S.W.2d 942, 945 (Tex. App.-Tyler 1986, writ ref'd n.r.e.) (doctrine of collateral estoppel not applicable in second suit if party does not introduce both prior judgment and pleadings); but see Bass v. Champion Int'l Corp., 787 S.W.2d 208, 214 (Tex. App.-Beaumont 1990, no writ) (finding no error in basing summary judgment on judgment alone without pleadings because judgment so clearly stated what was determined by earlier court there was no need to resort to pleadings). We agree with the reasoning in Bass that, so long as the record before the court in the second case adequately provides what was determined in the earlier case, pleadings need not be filed.

In this case, Appellees filed a copy of the judgment and jury charge with their motion for summary judgment, but did not include a copy of the pleadings from the Texas Capital case. Appellees contend the judgment and jury charge satisfy the purpose of attaching the pleadings. Appellees further contend that, at any rate, the pleadings from the Texas Capital case were part of the record before the trial court because Reckling included the plaintiffs' fourth amended original petition from that case in his response to Appellees' motion for summary judgment in this case. Actually, what Reckling included in his response was a copy of Sandefer and Smith's motion for leave to join additional parties in the Texas Capital case. It was this motion that had a copy of plaintiffs' fourth amended original petition attached as an exhibit. The record shows the trial court in the Texas Capital case denied the motion to join additional parties. Therefore, plaintiffs' fourth amended original petition never became a live pleading in the Texas Capital case.

Despite the lack of pleadings, the record before us contains the jury charge and judgment from the Texas Capital case and, taken together, clearly state what was determined in that case.

Appellants contend that Appellees have failed to prove there is no genuine issue of material fact and that Appellants were, as a matter of law, in privity to the parties in the Texas Capital case. "Due process requires that the rule of collateral estoppel operate only against persons who have had their day in court either as a party to the prior suit or as a privy, . . . ." Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex. 1971); see Eagle Props., Ltd., 807 S.W.2d at 721; Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 819 (Tex. 1984). There is no general definition of privity, and the determination of who are privies requires a careful examination into the circumstances of each case. Dairyland County Mut. Ins. Co. v. Childress, 650 S.W.2d 770, 774 (Tex. 1983); Benson, 468 S.W.2d at 363. "[T]he word 'privy' includes those who control an action although not parties to it * * *; those whose interests are represented by a party to the action * * *; successors in interests." Benson, 468 S.W.2d at 363; see Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800-01 (Tex. 1992); Dairyland County Mut. Ins. Co., 650 S.W.2d at 774. Privity connotes those who are in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right. Benson, 468 S.W.2d at 363; Cannon v. Tex. Indep. Bank, 1 S.W.3d 218, 224 (Tex. App.-Texarkana 1999, pet. denied).

Appellants contend their interests were not actually and adequately represented in the Texas Capital case, so it is not fair to bind them to the prior results. See Eagle Props., Ltd., 807 S.W.2d at 721. Appellees argue that directors of a corporation are automatically in privity with the corporation and cite Eagle Properties for their position. See id. The directors in Eagle Properties, as in this suit, were defendants. However, unlike this suit, the directors in Eagle Properties were the ones seeking to assert collateral estoppel against the plaintiffs. The Texas Supreme Court's specific holding was that mutuality is not required for the invocation of collateral estoppel; rather, it is only necessary that the party against whom the plea of collateral estoppel is being asserted be a party or in privity with a party in the prior litigation. Id. No one asserted collateral estoppel against the directors in Eagle Properties, and the Texas Supreme Court did not hold the directors were in privity with anyone in the prior suit. Id. Appellees' reliance on Eagle Properties is misplaced; they have not directed us to any other case holding that a party's status as director or officer automatically makes the party a privy, and we have not found a case so holding.

Federal courts have held stockholders and officers are not in privity to their corporations. Dudley v. Smith, 504 F.2d 979, 982 (5th Cir. 1974); Am. Range Lines, Inc. v. Comm'r of Internal Revenue, 200 F.2d 844, 845 (2d Cir. 1952). This status does not automatically show the parties had control over the prior action or that their interests were represented by a party to the action. Benson, 468 S.W.2d at 363. The question of privy revolves around the prior cause of action, not the time of injury. See Myrick v. Moody Nat'l Bank, 590 S.W.2d 766, 769 (Tex. Civ. App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.).

Appellees present evidence that, when they purchased the Titan stock in 1996, an unamended form filed in 1993 with the National Association of Securities Dealers (NASD) lists Smetek, Reckling, and Buckley as officers of Texas Capital Securities, Inc. Appellees provide no evidence that at the time of the Texas Capital case these three appellants still held these positions. Smetek and Reckling both create genuine issues of material fact in their affidavits. Smetek states he was president and a director until 1997. The Texas Capital case was instigated in late 1997. Reckling denies being an officer or director of Texas Capital Securities, Inc. in his affidavit. Each of these affidavits creates genuine issues of material fact on the issue of privity. The evidence clearly shows all three are shareholders, but a party's mere status as shareholder does not create privity absent further evidence. Although Buckley did not dispute being an officer during the Texas Capital case, the only evidence put forth by Appellees was that Buckley was the secretary and treasurer. This status alone, without more evidence, does not, as a matter of law, establish privity. Appellees presented no evidence Buckley, Smetek, Reckling, or TCSM participated in the Texas Capital lawsuit. In fact, Reckling contends he had no knowledge of the suit until the very end.

Appellees contend TCSM, a wholly owned subsidiary of Texas Capital Securities, Inc., is in privity with Texas Capital Securities, Inc., based on a management role. The evidence provided to show TCSM's management role is the 1997 annual report which states:

Texas Capital Securities Management Co., Inc. has entered into an agreement to indemnify the Company, assume primary liability related to certain settlement agreements with former customers and pay certain legal fees. The Company paid Texas Capital Securities Management Co., Inc. $154,000 during 1997. This amount is reflected in management fees.

No further evidence is provided as to what TCSM did. There is no evidence TCSM exerted control over or managed Texas Capital Securities, Inc. in any way. Buckley's affidavit states TCSM has never been in a position of control over Texas Capital Securities, Inc. and that it is merely a service provider and is not engaged in the securities business.

Appellees also contend the fact that Appellants used the same attorney as Texas Capital Securities, Inc. shows they are in privity with Texas Capital Securities, Inc. They direct our attention to caselaw stating that an attorney's knowledge gained during the existence of the attorney-client relationship is imputed to the client. Allied Res. Corp. v. Mo-Vac Serv. Co., 871 S.W.2d 773, 778 (Tex. App.-Corpus Christi 1994, writ denied). Appellees would have us extend this principle of imputed knowledge to the circumstances of this case, where Appellants hired the attorney who represented Texas Capital Securities, Inc. in the Texas Capital case. Appellees contend this mutual representation in separate actions imputes privity. The caselaw on which they rely deals with settled law that imputes the knowledge of an attorney to the client in that attorney-client relationship. The mere fact that these Appellants enlisted the services of the same attorney who defended Texas Capital Securities, Inc. in the previous case does not prove privity between Appellants and Texas Capital Securities, Inc.

Genuine questions of fact remain regarding each of the Appellants and whether they were in privity with Texas Capital Securities, Inc. We hold the trial court erred in applying collateral estoppel to the Appellants.

Appellants' second point of error concerns the determination by the trial court in its summary judgment that Appellants are liable as control persons under the Texas Securities Act. Appellees seek to establish joint and several liability of Appellants as control persons for Texas Capital Securities, Inc.'s violations of the Texas Securities Act. Appellants contend the trial court erred in holding they are control persons under the Act. Tex. Rev. Civ. Stat. Ann. art. 581-33(F)(1) (Vernon Supp. 2002).

Under the Act, a control person is:

A person ⁽²⁾ who directly or indirectly controls a seller, buyer, or issuer of a security is liable . . . jointly and severally with the seller, buyer, or issuer, and to the same extent as if he were the seller, buyer, or issuer, unless the controlling person sustains the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist.

Id.

The burden rested on the Appellees to establish that the Appellants are control persons under the statute. Appellants contend genuine issues of material fact remain as to whether they are control persons, and therefore the trial court improperly granted summary judgment.

The Texas Securities Act does not provide a definition of "control persons." Id. The comments to the statute state, "control is used in the same broad sense as in federal securities law." Tex. Rev. Civ. Stat. Ann. art. 581-33F cmt. "Depending on the circumstances, a control person might include an employer, an officer or director, a large shareholder, a parent company, and a management company." Id. ⁽³⁾ The rationale for control person liability is that a control person is in a position to prevent the violation and may be able to compensate the injured investor when the primary violator is not. Id. The United States Fifth Circuit Court of Appeals has held that, to make a prima facie case that the defendant is a control person, a plaintiff must prove that each had actual power or influence over the controlled person and that each induced or participated in the alleged violation. Dennis v. Gen. Imaging, Inc., 918 F.2d 496, 509 (5th Cir. 1990); G.A. Thompson & Co. v. Partridge, 636 F.2d 945, 958 (5th Cir. 1981).

As evidence of Smetek's, Buckley's, and Reckling's status as control persons, Appellees rely partly on the "Form BD" filed by Texas Capital Securities, Inc. in 1993 with the NASD, which lists Smetek, Buckley, and Reckling as control persons. Appellants contend this form does not prove they are control persons for purposes of the Texas Securities Act. They contend Appellees have not proved the term "control person" has the same meaning for purposes of the NASD as under the Texas Securities Act. NASD "Form BD" has instructions defining the term "control," but this definition was not included in Appellees' summary judgment evidence. In the absence of such definition, we cannot say the label of "control person" on the NASD form conclusively establishes Appellants as control persons under the Texas Securities Act.

The evidence presented clearly proves Smetek was president, a director of Texas Capital Securities, Inc., and owned between ten and twenty-five percent of the stock when the transactions occurred in 1996. According to the forms filed with the NASD, Buckley owned between ten and twenty-five percent of the stock. Both the form and Buckley's affidavit reveal he was secretary and treasurer of Texas Capital Securities, Inc. However, status alone does not automatically cause defendants to be deemed control persons under the statute. See Dennis, 918 F.2d at 509. Evidence was required that Smetek and Buckley had influence over at least the direction of Texas Capital Securities, Inc. See id. Smetek states in his affidavit that he was not responsible for reviewing information that companies seeking investors wanted forwarded to Texas Capital Securities, Inc. customers, that he was unaware any Texas Capital Securities, Inc. customer had invested with Titan, and that he had no knowledge of the investments and no reason to have knowledge of the investments. Genuine issues of material fact remain regarding whether Smetek was a control person, and the trial court erred in granting summary judgment. As for Buckley, the evidence shows he was secretary and treasurer of Texas Capital Securities, Inc., but his affidavit shows that he did not hold a license entitling him to supervise registered representatives and that he was not responsible for supervising Texas Capital Securities, Inc. brokers or representatives, did not review information that companies seeking investors wanted forwarded to Texas Capital Securities, Inc. customers, and had no knowledge or reason to have knowledge of the purchase of Titan stock by Texas Capital Securities, Inc. customers. Because genuine issues of material fact remain regarding Buckley's status as a control person, the trial court erred in granting summary judgment on this issue as to Buckley.

Although the NASD forms list Reckling as a vice president, Reckling's affidavit states his relationship with Texas Capital Securities, Inc. was that of a shareholder and that he was not an officer or director. This clearly creates a fact question as to Reckling's status. The trial court improperly granted summary judgment holding that Reckling was a control person.

We finally consider whether it was proper to grant summary judgment holding that TCSM, a wholly owned subsidiary of Texas Capital Securities, Inc., was a control person under the Texas Securities Act. The only evidence provided regarding TCSM is the 1997 annual report calling the fees paid to TCSM "management fees." The evidence shows TCSM agreed to indemnify Texas Capital Securities, Inc., assume primary liability related to certain settlement agreements with former customers, and pay certain legal fees. This evidence does not show any form of power or influence over Texas Capital Securities, Inc. or over Johnson, the Texas Capital Securities, Inc. broker who arranged for the sale of the Titan stock. Buckley's affidavit states TCSM has no responsibility to supervise or otherwise monitor any securities salesmen at Texas Capital Securities, Inc. Appellees failed to produce sufficient evidence to prove as a matter of law that TCSM was a control person for its parent company, Texas Capital Securities, Inc., and evidence presented by Appellants raises genuine issues of material fact regarding this issue. The trial court erred in holding TCSM was a control person of Texas Capital Securities, Inc.

Because we find the trial court erred in granting summary judgment against Appellants, we need not address Appellants' remaining points.

We reverse the summary judgment and remand the case to the trial court for further proceedings.

Donald R. Ross

Justice

Date Submitted: May 30, 2002

Date Decided: June 19, 2002

Publish

1. Tex. Rev. Civ. Stat. Ann. art. 581-1, et seq. (Vernon 1964 & Supp. 2002).

2. The Act defines "person" to include a corporation. Tex. Rev. Civ. Stat. Ann. art. 581-4(B) (Vernon Supp. 2002).

3. Although in Busse v. Pac. Cattle Feeding Fund #1, 896 S.W.2d 807, 815 (Tex. App.-Texarkana 1995, writ denied), we found Busse, who was a majority shareholder and a director, to be a control person, we do not construe this case to mean evidence solely of status creates a prima facie showing of control person.

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00230-CR

                                                ______________________________

                                    JAMES BLAKE SPINKS, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                         On Appeal from the 8th Judicial District Court

                                                           Hopkins County, Texas

                                                          Trial Court No. 1021437

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

                                            Memorandum Opinion by Justice Moseley

                                                      MEMORANDUM OPINION

            James Blake Spinks’ evening of drinking at the Texas Lounge in Sulphur Springs, Texas was the genesis of the events causing the death of a fellow patron of the Lounge, twenty-one-year-old Nathan Paul Spataro.  After Spinks’ alcoholic indulgence and despite being warned that he was too drunk to drive, Spinks left the bar at the midnight closing time and drove away in his vehicle.  On a dark road leading from the Lounge, his vehicle collided violently with a large object, shattering the windshield.  Spinks maintained that he did not call the police because he said that he believed that his vehicle had struck a deer.  Tragically for him and for Spataro, the object which Spinks had struck was Spataro, who was killed instantly.  After a jury convicted Spinks of an accident involving personal injury or death,^[1] he was sentenced to ten years’ imprisonment and was ordered to pay a $10,000.00 fine.  On appeal, Spinks maintains that the evidence is insufficient to support the judgment, and argues that the trial court erred in admitting statements made by Spinks “prior to Miranda^[2] Warnings and without audio recording.” Because the evidence is sufficient to support the conviction, and Spinks’ brief is inadequate to preserve the second issue for our review, we affirm the trial court’s judgment.

I.          Sufficient Evidence Supported Spinks’ Conviction

            Doris Evelyn Gray met Spinks at about 4:30 on the afternoon of the accident when she went to visit her daughter, Juanita Joyce Gray, who was working at the Lounge.  Spinks was drinking “Crown with a splash of Coke,” and he remained at the Lounge for the remainder of the evening and a good portion of the night.  Dudley Calhoun, karaoke host at the Texas Lounge, testified that Spataro joined Spinks at the establishment. Security guard Don McKenzie described Spinks as obviously intoxicated and warned him not to drive his vehicle. Spinks ignored the warning and drove his vehicle, shortly thereafter running down Spataro with it, killing Spataro instantly. 

            Darrell Edwards also left the Texas Lounge at approximately midnight and “[w]ent straight over to Burton’s, across the road.”  Edwards and a friend remained at that local eatery for two hours.  According to recordings retrieved from video surveillance cameras, Spinks arrived at Burton’s at 1:25 a.m. where, Edwards testified, Spinks “ordered a burger to go, burger and fries, and he stood up there and played a little, old quarter game for a few minutes and, you know, just messed around” for about an hour. As Edwards was leaving the establishment “a few minutes after 2:00,” he saw Spinks’ “car there in a handicapped parking lot and noticed the windshield was busted.”  Spinks came outside and told Edwards that he had hit a deer while driving.  The video surveillance recording revealed that Spinks remained at Burton’s until 2:21 a.m. 

            At 2:47 a.m., Doris was visiting with Juanita when Juanita received a telephone call from Spinks.  Doris was able to overhear the telephone conversation between Spinks and Juanita and testified that Spinks had said that “there’s been some problems” and “I need you to hide me out.”  Juanita testified that Spinks “freaked out” and told her during the telephone conversation “that he had hit someone.”  At the end of the conversation, Doris and Juanita “went down the road to look for someone that [Spinks] had supposedly hit.”  En route to the location of the accident, Juanita called the police. 

            Doris and Juanita saw no signs of an accident during their initial search and, believing that Spinks was playing a trick on them, began to return home.  On the way home, they saw Spinks “walking down the road,” but decided to drive past him.  Juanita received another telephone call from Spinks, wherein she expressed her negative opinion of the joke she believed was being played. Spinks responded, “I hit somebody. Come look at my car.”  Doris and Juanita “met him up where his car was” and saw that the windshield “was bashed in completely.”  Doris went on to relate that Spinks “was extremely upset.  He had said he had hit someone and he didn’t want to go back to jail.”  Doris testified to the following conversation with Spinks:

            I went back to the car, to the back of the car where he was, and I said, . . .             “Where did you hit this person?”

            And he says, “On the road.”

            And I said, “Well, did you stop?”

            “No, I -- I didn’t”

            And I said, “Okay this person is hurt.  You’ve hit someone, and he’s hurt.            I want you to sit right there, and don’t you get up, don’t you move. . . .

            . . . .

            . . . And as we were leaving he looked up at me, and he said, “I’m not going back to jail.”

In hindsight, Juanita believed that when they had seen Spinks walking down the road, he had been looking for the person he had struck with his car.  As Doris and Juanita “started slowly going down the service road,” they saw a “a flip-flop, a pair of glasses and a hat, and we stopped.”^[3]  The two exited their vehicle and began searching the “dark” road using illumination from their cell phones and Juanita discovered Spataro’s lifeless body.  Although Spataro was wearing a long-sleeved black T-shirt and dark blue jeans, Juanita testified that she had no difficulty spotting the body once she was “off the road” “because I was looking for somebody, and he was on a bed of rocks.”  She also stated that the tall grass in which the body was found did not conceal it from view.

            City of Sulphur Springs Police Lieutenant Jason Ricketson was dispatched to the scene of the accident at 3:06 a.m.  He was met by Juanita and Doris, who had located Spataro “in the actual bar ditch,” which sustained a growth of grass “12 to 16 inches” high.  Ricketson described the area as “fairly dark.”  He opined that when Spataro was hit, he “went up on top of the vehicle and onto the windshield.”  Spataro had died instantaneously and “didn’t appear to have any signs of life.”  J. K. Townsend-Parchman, M.D., an employee of the Dallas County Medical Examiner who conducted the autopsy report, testified that “as soon as he [Spataro] got that very large amount of force applied to his head, he was, for all intents and purposes, gone.”  Townsend-Parchman indicated that there was no medical care that could have been given to Spataro after the trauma that may have kept him alive.

            At the same time Ricketson was sent to the scene of the accident, Sulphur Springs police officer Lonnie Taylor was dispatched to the Lounge parking lot.  Spinks returned to the accident scene, approached Taylor and stated, “I didn’t see the guy walking down the middle of the road,” and, “I knew I hit something, but I didn’t know what it was.”  Taylor “saw the vehicle had quite a bit of damage, even on the windshield.”  Taylor testified Spinks made the following statement after the Miranda warning:

[Spinks] advised me he would speak to me and began telling me that he stopped his vehicle and looked around after he hit something.  [Spinks] informed me that he was traveling down East Industrial when he hit something. [Spinks] told me that he did not know what he hit, so he stopped the vehicle and got out and looked around. [Spinks] advised that he did not see anything so he got back into the vehicle and drove to Burton’s Family Restaurant to pick up some food and returned back to the Texas Lounge. [Spinks] then informed me that he went back to the accident site where he looked around again and did not find what he hit.

            Taylor “inspected the vehicle, noticed there was blood and hair on the windshield,” almost half of which had been completely shattered.  After conducting field sobriety tests, Taylor believed that Spinks was intoxicated and transported him to the Hopkins County Memorial Hospital, where a blood sample was taken from Spinks.  Spinks’ blood alcohol concentration was .13.  Under Texas law, a person is intoxicated if he has a blood-alcohol concentration of .08 or more.  Tex. Penal Code Ann. § 49.01(2)(B) (West 2011).

            Spinks believes this evidence was legally insufficient to sustain his conviction for accident involving personal injury or death.  In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the jury’s verdict to determine whether any rational jury could have found the essential elements of the charged offense.  Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).  Our rigorous legal sufficiency review focuses on the quality of the evidence presented.  Brooks, 323 S.W.3d at 917 (Cochran, J., concurring).  We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

            Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically-correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  The hypothetically-correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”  Id.

            Section 550.021(a) sets out the following requirements:

            (a)        The operator of a vehicle involved in an accident resulting in injury to or death of a person shall:

                        (1)        immediately stop the vehicle at the scene of the accident or as close to the scene as possible;

                        (2)        immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and

                        (3)        remain at the scene of the accident until the operator complies with the requirements of Section 550.023.^[4]

Tex. Transp. Code Ann. § 550.021(a).  These requirements are called “failing to stop,” “failing to return,” and “failing to remain,” and are viewed as “alternate methods of committing the same offense.”  Huffman v. State, 267 S.W.3d 902, 909 (Tex. Crim. App. 2008).  The elements of the offense of accident involving personal injury or death are:  (1) an operator of a motor vehicle, (2) involved in an accident, (3) resulting in injury or death of any person, and (4) intentionally and knowingly (5) fails to stop or render reasonable assistance. See Henry v. State, No. 06-11-00010-CR, 2011 WL 3890736, at *2 (Tex. App.—Texarkana Sept. 16, 2011, no pet.) (mem. op., not designated for publication)^[5] (citing McCown v. State, 192 S.W.3d 158, 162 (Tex. App.—Fort Worth 2006, pet. ref’d); Goar v. State, 68 S.W.3d 269, 272 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)).

            Section 550.021 of the Texas Transportation Code defines the offense of accident involving personal injury or death, and provides that the operator of a vehicle involved in an accident resulting in injury or death commits an offense if “the person does not stop or does not comply with the requirements of this section.”  Tex. Transp. Code Ann. § 550.021(c) (emphasis added).  There is no dispute in this case that Spinks operated the vehicle involved in this accident which caused Spataro’s death.  Thus, the contention is whether he intentionally or knowingly failed to stop, failed to return, or failed to remain and render aid in accordance with Section 550.023.  Spinks recites evidence that the road was dark and that testimony shows he tried to look for what he had hit.  Because he could not find anyone or anything, the brief argues he should not be charged with having failed to remain and render aid.^[6]  We focus on Spinks’ failure to stop.^[7] 

            The culpable mental state for this offense is that the accused had knowledge of the circumstances surrounding his conduct, meaning he had knowledge that an accident occurred.  Henry, 2011 WL 3890736, at *3 (citing Goss v. State, 582 S.W.2d 782, 785 (Tex. Crim. App. 1979) (establishing culpable mental state for offense); Goar, 68 S.W.3d at 272). Intent or knowledge may be inferred from the acts, words, and conduct of an accused at the time of an offense.  Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).  Moreover, “[t]here is no requirement that an accused must have positive, subjective knowledge of the nature or extent of injury resulting from the collision.”  McCown, 192 S.W.3d at 162.

            Spinks clearly knew he had collided with a large object.  While he told Edwards that he believed that he had struck a deer, in his telephone call to Juanita that night, he identified the object he hit as a person.  Doris specifically testified that Spinks told her he did not stop.^[8]  Instead, Spinks went to a local eatery, ordered a burger and fries, and played a video game before he confessed to Juanita.  He then returned to the scene of the accident and attempted, in a drunken state, to locate the person he had stricken.  Juanita testified that she could see the victim’s body when she got “off the road” and that the fairly tall grass in the ditch where it laid did not conceal the body.  A reasonable jury could have determined that had Spinks initially stopped his vehicle after striking Spataro, he would have been able to see the body. In any event, the jury was free to believe Doris’ testimony of Spinks’ admission to her.

            We find the evidence legally sufficient to show that Spinks, who operated a vehicle in an accident resulting in Spataro’s death, knowingly failed to stop as required by Section 550.021.  We overrule this point of error. 

II.        Point of Error Regarding Admission of Statements Is Inadequately Briefed

            Spinks argues that the trial court “should reverse and remand because statements made by Appellant prior to Miranda Warnings and without audio recording were admitted at trial.”  The entirety of Spinks’ application portion of the briefing recites:

At trial, the defense objected to statements made by Appellant 1) Appellant had not been Mirandized, and 2) no audio was available on the recording presented at trial.  No corroborating evidence of the alleged statements at the time of arrest was presented at trial.  No audio recording of waiver of any rights or actual statements made were presented at trial.  No such recording was ever provided to defense counsel.  No recording was presented at trial by which voices could be identified[.]

(Record citation omitted.)

            Spinks fails to identify any particular statement or statements of which he complains.  His only record citation refers to counsel objecting to admission of a video recording which did not contain audio, an objection that was later withdrawn.  The only citation to authority presented is a citation to Article 38.22, Section 3(a) of the Texas Code of Criminal Procedure, which provides that “[n]o oral or sign language statement of an accused made as a result of custodial interrogation shall be admissible against the accused in a criminal proceeding,” unless, inter alia, “an electronic recording, which may include motion picture, video tape, or other visual recording is made of the statement” and “prior to the statement but during the recording the accused is given the warning in Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily waives any rights set out in the warning.”  Tex. Code Crim. Proc. Ann. art. 38.22, § 3(a)(1), (2) (West 2005). 

            Rule 38.1(h) of the Texas Rules of Appellate Procedure requires that a brief contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”  Tex. R. App. P. 38.1(h); see In re N.L.G., No. 06-06-00066-CV, 2006 WL 3626956, at *2 (Tex. App.—Texarkana Dec. 14, 2006, pet. denied) (mem. op., not designated for publication) (declining to comb through record where record citation did not contain reference to allegedly overruled objection).  An inadequately briefed issue may be waived on appeal.  McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994) (discussing “longstanding rule” that point may be waived due to inadequate briefing); Hooper v. Smallwood, 270 S.W.3d 234 (Tex. App.—Texarkana 2008, pet. denied).  From the briefing provided and citation to the record included in the brief, we cannot discern the statements of which Spinks complains, whether they were specifically objected to, and whether the court allowed their admission.  The sole reference to the record in Spinks’ brief on this point is to an objection which was later withdrawn; accordingly, if there was once a valid objection raised to something there, the objection was not preserved.  In addition to containing inadequate citation to the record, no discussion of harm analysis was mentioned in the brief. 

            If a point of error is inadequately briefed, we will not address it.  See Tex. R. App. P. 38.1; Vuong v. State, 830 S.W.2d 929, 940 (Tex. Crim. App. 1992).  This Court is not the appellant’s advocate.  Although we have an interest in a just adjudication, we also have an interest in remaining impartial.  Ex parte Lowery, 840 S.W.2d 550, 552 n.1 (Tex. App.—Dallas 1992), rev’d on other grounds, 867 S.W.2d 41 (Tex. 1993).  Thus, we will not brief Spinks’ case for him.  Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995); see Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).  Finding Spinks’ brief inadequate as to this point of error, we overrule it.  Castillo v. State, 810 S.W.2d 180, 182 n.1 (Tex. Crim. App. 1990) (finding argument inadequately briefed and refusing to address it where defendant failed to identify part of record where issue was preserved).^[9]

III.       Conclusion

            We affirm the trial court’s judgment.

                                                                        Bailey C. Moseley

                                                                        Justice

Date Submitted:          November 14, 2011

Date Decided:             December 2, 2011

Do Not Publish

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^[1]The title of Section 550.021 of the Texas Transportation Code, setting forth the offense, is “Accident Involving Personal Injury or Death,” but this offense is commonly referred to as failure to stop and render aid.  See Tex. Transp. Code Ann. § 550.021 (West 2011).

^[2]Miranda v. Arizona, 384 U.S. 436 (1966).

^[3]Spataro’s Texas Longhorn hat, sunglasses, and flip-flop were found in the roadway.

^[4]When an accident results in personal injury or damage to a vehicle, the operator is required to provide reasonable assistance to any person injured in the accident if it is apparent that treatment is necessary. Tex. Transp. Code Ann. § 550.023 (West 2011).

^[5]Although the unpublished case has no precedential value, we may take guidance from it “as an aid in developing reasoning that may be employed.”  Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.––Amarillo 2003, pet. ref’d).

^[6]This argument was rejected by our sister court in Barnette v. State, No. 08-09-00147-CR, 2011 WL 486949, at *2 (Tex. App.––El Paso Feb. 9, 2011, pet. ref’d) (mem. op., not designated for publication) (“although Appellant testified that she stopped, looked outside her door, and did not see anything, the jury could have found the stop insufficient, disregarded her testimony, and rationally inferred that she knew she hit and killed another person given the dead body found just minutes after the accident occurred”) (See footnote 5 regarding unpublished cases.).

^[7]The indictment alleged Spinks “knowingly le[ft] the scene of said accident” and failed to remain and render aid.  The jury was charged in accordance with all three alternate means of committing the offense. 

^[8]Moreover, in accident cases a stop “does not mean a stop for an instant, enabling but a cursory examination of the surroundings, but does mean a definite cessation of movement for a sufficient length of time for a person of ordinary powers of observation to fully understand the surroundings of the accident and to possess himself of an accurate knowledge of the results of the accident.”  Moore v. State, 145 S.W.2d 887, 888 (Tex. Crim. App. 1940).

^[9]After combing through the record, which we are not required to do in light of the inadequate briefing, we find statements of which Spinks might have complained.  Assuming Spinks is complaining of statements where he “walked up to [an officer] and immediately said, ‘I didn’t see the guy walking down the middle of the road.’ . . . ‘I knew I hit something, but I didn’t know what it was,’ the record suggests these were statements which were volunteered by Spinks at a time when he was not undergoing custodial interrogation.  See Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (West 2005).  The record established that Miranda warnings were issued immediately after these statements.