Gray County v. Debra Kay Shouse as Natural Mother, Guardian and Next Friend of Jessi Lynn Noble, a Minor

NO. 07-05-0448-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MAY 31, 2006 ______________________________ GRAY COUNTY, APPELLANT V. DEBRA KAY SHOUSE AS NATURAL MOTHER, GUARDIAN AND NEXT FRIEND OF JESSI LYNN NOBLE, A MINOR, APPELLEE _________________________________ FROM THE 223RD DISTRICT COURT OF GRAY COUNTY; NO. 32,158; HONORABLE LEE W. WATERS, JUDGE _______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ. OPINION Appellant, Gray County, seeks an interlocutory appeal of the denial of its motion for summary judgment based on the affirmative defense of official immunity. (1) We affirm the trial court. Background Officer Wallis of the Gray County Sheriff's Department was dispatched to investigate a report of persons pointing a gun at passing motorists on Interstate 40. En route to the location, Officer Wallis was involved in an accident with a vehicle driven by Debra Kay Shouse. Shouse brought suit against Gray County under the doctrine of respondeat superior asserting that Wallis, a county employee, was negligent. In response, Gray County filed a motion for summary judgment asserting the defense of official immunity. The trial court denied appellant's motion for summary judgment. Gray County seeks interlocutory appeal of the denial of its motion for summary judgment contending that, as a matter of law, Shouse's claims are barred by Wallis's official immunity; consequently, Gray County contends that, as Wallis's employer, it retains governmental immunity and thus is entitled to summary judgment. Standard of Review and Applicable Law A governmental unit retains immunity when the basis of liability is respondeat superior and the acts of the employee are covered by official immunity. DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995). A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee's authority; and (3) provided the employee acts in good faith. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000). (2) Because official immunity is an affirmative defense, to obtain summary judgment on official immunity the governmental employee must conclusively prove each element of the defense. Id. To obtain summary judgment on good faith in a pursuit case, a police officer must prove that a reasonably prudent officer, under the same or similar circumstances, could have believed that the need to immediately apprehend the suspect outweighed a clear risk of harm to the public. See id. at 581. The need and risk factors apply to good faith determinations in police pursuits as well as emergency responses. Id. at 582. Whether an emergency response or police pursuit, both situations involve rapidly changing circumstances which require a police officer to continually assess the need and risk factors. See id. at 582-83. Depending on the circumstances, an officer may not be able to thoroughly analyze each need or risk factor, and this fact alone should not prevent an officer from establishing good faith. Id. at 583. When the material facts underlying a claim of good faith are in dispute, an officer must base his need-risk assessment on the facts by viewing them in the light most favorable to the nonmovant. Harris County v. Smyly, 130 S.W.3d 330, 334 (Tex.App.-Houston [14th Dist.] 2004, no pet.). Additionally, the officer must address all evidence in the record that is material to the good faith determination. Id. When the material facts underlying an officer's claim of good faith are in dispute, a material fact issue is created and summary judgment is improper. Id. Analysis Gray County contends that the accident was caused by Shouse's failure to yield the right of way at an intersection. According to Gray County, Wallis was responding to an emergency call, traveling west on Interstate 40, when he came to the intersection of I-40 and Highway 273. As Wallis approached the intersection, Shouse entered the intersection causing Wallis to take corrective action. Gray County contends that Wallis was traveling at or near the speed limit, saw Shouse's vehicle stopped at the intersection before she entered the interstate ahead of him, and took appropriate corrective measures in an attempt to avoid the accident. In Wallis's affidavit, Wallis detailed his assessment of the needs and risks that were confronted in responding to a call of persons pointing a gun at vehicles traveling on I-40. Wallis states that he made the decision to respond to the call to reduce the risk of harm to other officers and the public in general. However, Wallis also indicates that the need was not so great as to require the use of emergency sirens or lights, nor did it require him to travel above the speed limit of 50 miles per hour. Wallis's affidavit further states that he assessed the risks of responding by considering the time of day, the day of the week, the weather conditions, and the amount of traffic on the interstate in determining his response. In his opinion, Wallis felt that traveling along an interstate route on a Sunday afternoon on a clear day with light traffic posed a minimal risk compared to the need to proceed quickly to the emergency call. Finally, Wallis states his belief that a reasonably prudent peace officer faced with the same or similar circumstances would have acted in the same manner. Additionally, Texas Department of Public Safety Trooper Lynn Holland, Jr., provides an affidavit based on his reconstruction of the accident concluding that Wallis took the appropriate route, was traveling near the speed limit, and took appropriate evasive action in attempting to avoid an accident. In contrast, Shouse contends that Wallis was speeding at approximately 66 miles per hour in a 50 miles per hour zone and was unable to properly observe the intersection because of the curvature of the road and the sunlight shining into Wallis's eyes. To support her contentions, Shouse presents an affidavit from an accident reconstructionist, an affidavit from a meteorologist calculating the position of the sun at the time of the accident, and photographs showing the curvature of the road. Since the material fact of Wallis's speed as he approached the intersection is in dispute, Wallis must base his need-risk assessment on the facts viewed in the light most favorable to the nonmovant, specifically that he was traveling at 66 miles per hour. See Smyly, 130 S.W.3d at 334. Additionally, Wallis's affidavit discussing the needs-risk assessment for determining his good faith does not address either the curvature of the road nor the effect of the sunshine upon Wallis's vision. See id. (an officer must address all evidence in the record that is material to the good faith determination). Since several material facts underlying Wallis's claim of good faith are in dispute, a material fact issue is created and summary judgment would have been improper. See id. Therefore, the trial court did not err in denying Gray County's motion for summary judgment. Our determination that Gray County did not prove the good faith element of its defense as a matter of law pretermits any discussion as to whether Wallis's actions were discretionary or ministerial. See Tex. R. App. P. 47.1; Univ. of Houston, 38 S.W.3d at 580. Conclusion For the foregoing reasons, we affirm. Mackey K. Hancock Justice 1. Interlocutory appeal from the denial of Gray County's motion for summary judgment is allowed by Tex. Civ. Prac. & Rem. Code Ann. § 51.04(a)(5) (Vernon 1997). See City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex. 1995); Greenwell v. Davis, 180 S.W.3d 287 294 (Tex.App.-Texarkana 2005, pet. filed). 2. At trial, Shouse conceded that Wallis was in the course and scope of his employment. xception Locked="false" Priority="73" Name="Colorful Grid Accent 4"/> NO.  07-09-0046-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C FEBRUARY 17, 2010 ________________________ MARC E. ROUNSAVALL, APPELLANT V. THE STATE OF TEXAS, APPELLEE ________________________ FROM THE COUNTY COURT AT LAW NO. ONE OF LUBBOCK COUNTY; NO. 2007-442,973; HONORABLE LARRY B. “RUSTY” LADD, JUDGE __________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. MEMORANDUM OPINION Appellant, Marc E. Rounsavall, was convicted of driving while intoxicated[1] and sentenced to 30 days in the Lubbock County Jail and a fine of $2,000, with both the jail term and the fine being suspended while appellant was on probation for a term of 12 months. Appellant appeals the judgment contending that the trial court committed reversible error by denying appellant’s request for a jury charge on the issue of involuntary intoxication. We affirm. Factual and Procedural Background In the early morning hours of January 7, 2007, Julia Beaver was driving home and had arrived at the intersection of 19th St. and the Brownfield Highway in Lubbock. Beaver’s car was struck from the rear by a pickup truck being driven by appellant. Officer Cox of the Lubbock Police Department arrived on the scene first. Cox testified that when she first observed appellant he appeared confused and had a “deer in the headlight look.” It was Cox’s opinion that appellant did not know what had happened. However, Cox did believe that appellant may have been driving while intoxicated and, as a result, requested additional officers be dispatched to the scene to proceed with a driving while intoxicated investigation. Officer Aaron Spann arrived on the scene and took charge of the driving while intoxicated investigation. Upon his arrival, Spann observed that appellant could barely stand up and had a blank look on his face. Later, Spann attempted to give appellant several of the field sobriety tests. According to Spann, appellant could not perform any of the tests and appeared to be intoxicated. Appellant was subsequently arrested and taken to the Lubbock Police Department holding facility where a breath test was administered. The result of the breath test revealed a blood alcohol concentration of .099 and .104. These tests results were stipulated before the jury. During the trial of the case, the only contested issue was how appellant became intoxicated. Appellant presented evidence that he had two drinks between 9:30 and 10:30 p.m. on the evening before his arrest at approximately 5:00 a.m. the next morning. Appellant further testified that on the evening of his two drinks, he had taken the prescription sleep aid, Ambien. Appellant stated he had no recollection of any events until he awoke in the holding facility at the Lubbock Police Department. Further, appellant testified that after he returned to his home he found two bottles of alcohol that had been completely emptied and that his bottle of Ambien had been scattered in his bedroom. Appellant further presented the testimony of James Booker, Ph.D., toxicologist, who testified about the effect that Ambien can have on certain individuals. The doctor’s testimony revealed that the drug, especially in its instant release formula, could render a person into a somnambulistic state, or a state of sleepwalking. The doctor further testified that, a person suffering from somnambulism might take actions that he might not otherwise take. The essence of appellant’s evidence was that he did not voluntarily consume any additional alcohol after the two earlier drinks and the consumption of the Ambien. At the conclusion of the evidence, appellant sought a jury charge on involuntary intoxication. The trial court denied the request and the jury was charged under a standard driving while intoxicated charge plus a paragraph on “synergistic effect” and another paragraph on voluntariness of appellant’s actions. The jury subsequently convicted appellant of driving while intoxicated and this appeal followed. Appellant contends that the trial court erred by not giving the requested charge on the issue of involuntary intoxication. We disagree with appellant and affirm the judgment of the trial court. Standard of Review In the trial of any case before a jury, the court is required to give the jury a written charge that distinctly sets forth the law applicable to the case, without expressing any opinion about the weight of the evidence or discussion of the evidence. See Tex. Code of Crim. Proc. Ann. art. 36.14 (Vernon 2007). When an appellant, as here, alleges that the trial court has committed error in the “Court’s Charge”, a reviewing court is presented with a two part inquiry. See Druery v. State, 225 S.W.3d 491, 504 (Tex.Crim.App. 2007). First, the reviewing court must determine whether error has been committed. Id. If error has been committed, the reviewing court must then determine whether the error was harmful. Id. In the case before the Court, appellant contends that error was committed when the trial court failed to give the requested jury charge on the issue of voluntary intoxication. The record supports the appellant’s position that there was ample evidence presented before the trial court regarding whether or not the later alcohol consumed by appellant was consumed voluntarily. This is the important fact because both the State’s expert and the appellant’s expert testified that if appellant had consumed no additional alcohol his breath test would have shown no alcohol in his blood stream at the time of the test. The record reflected that at the time of appellant’s breath test the results were 0.099 and 0.104. The record is also dispositive of the question of whether or not appellant has preserved this issue by requesting a charge with sufficient particularity so as to place the trial court on notice of what his complaint was. Appellant cites us to the case of Walters v. State for the proposition that a defendant is entitled to a jury instruction on any defensive issue raised by the evidence, regardless of how strong, weak, challenged, or uncontested that evidence may be. See Walters v. State, 247 S.W.3d 204, 209 (Tex.Crim.App. 2007). The statement is a true statement of the law, however, that proposition is not dispositive of this case. The first question we must answer is, which element of the offense of those that the State is required to prove does the requested charge attach. The elements of driving while intoxicated are 1) appellant, 2) on or about the date specified, 3) while intoxicated, 4) operated a motor vehicle, 5) in a public place. See Tex. Penal Code Ann. § 49.04 (Vernon 2003).[2] Conspicuously absent from the statute defining driving while intoxicated is a requirement for a culpable mental state. The penal code provides that a culpable mental state is required, even if the offense does not prescribe one, unless the definition plainly dispenses with any mental state. See § 6.02(b). In answer to the requirement of section 6.02(b), the penal code provides that proof of a mental state is not required for conviction of an offense under chapter 49. See § 49.11. For this reason, the case law in Texas is unanimous that a trial court does not err when it refuses to give a jury charge on involuntary intoxication in a driving while intoxicated case. See Aliff v. State, 955 S.W.2d 891, 893 (Tex.App.—El Paso 1997, no pet.), Nelson v. State, 149 S.W.3d 206, 211 (Tex.App.—Fort Worth 2004, no pet.) The State directs the court to a subsequent case from the Fort Worth Court of Appeals that is factually very similar to the case before us. See Brown v. State, 290 S.W.3d 247, 250 (Tex.App.–Fort Worth 2009, pet. ref’d) (appellant in that matter had two drinks before taking Ambien and had no recollection of any of the events that transpired until he was having his blood drawn at the hospital). The Fort Worth court held that involuntary intoxication was not a defense to driving while intoxicated for four reasons: 1) legislature had not seen fit to include a culpable mental state in the offense; 2) the Texas Court of Criminal Appeals has declined to include a culpable mental state in the offense; 3) that court had previously followed the legislature and court of criminal appeals direction in the Nelson case; 4) all other Texas courts that had considered the question had come to the same conclusion. Id. We agree with our sister courts and find the trial court did not err when it denied appellant’s request for a jury charge on the issue of involuntary intoxication. Because we find no error in the trial court’s action, we do not need to address a conditional issue appealed by the State regarding the trial court’s granting of an instruction on voluntariness. Conclusion Having found no error, we affirm the judgment of the trial court. Mackey K. Hancock Justice Do not publish. [1] See Tex. Penal Code Ann. § 49.04 (Vernon 2003). [2] Further reference to the Texas Penal Code Annotated will be by reference to “§ ___” or “section ___.”