Bryan S. Hall v. Xcel Energy, Inc., Southwestern Public Service Company D/B/A Xcel Energy And Dwayne Marchbanks

NO. 07-08-0451-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C OCTOBER 20, 2009 ______________________________ BRYAN S. HALL,                                                                                                            Appellant v. XCEL ENERGY, INC., SOUTHWESTERN PUBLIC SERVICE                      COMPANY d/b/a XCEL ENERGY and DWAYNE MARCHBANKS,                                                                                                            Appellees _________________________________ FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 94392-A; HON. RICHARD DAMBOLD, PRESIDING _______________________________ On Motion for Rehearing ______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.           Pending before the court is the motion for rehearing of Bryan S. Hall. The latter contends that we erred in concluding that he failed to address, on appeal, each ground upon which the trial court could have based its summary judgment. The ground that we noted as being unaddressed involved whether the Workers’ Compensation Act provided him his exclusive remedy against Xcel Energy, Inc. Hall now posits that he covered the matter via one sentence appearing in a footnote on page two of his brief. The footnote in question states: Although the state of the summary judgment record is not altogether clear on this point, for purposes of this appeal, Hall concedes that he did indeed receive workers compensation benefits and that these benefits were likely paid on behalf of his likely employer, SPS. Accordingly, Hall is not contesting the applicability of the ‘exclusivity bar’ as to SPS and Marchbanks and agrees with Appellees’ contention that the bar would and could not otherwise be applied to Xcel Energy, Inc. – as it has no employees.  (Emphasis added). We find this footnote and the basis underlying his motion for rehearing insufficient reason to change our prior decision.           First, and at the very least, Hall implicitly concedes the accuracy of one aspect of our opinion. To the extent he “agree[d] with Appellee’s contention that the bar would and could not otherwise be applied to Xcel Energy, Inc.,” he recognized, by the time he filed his appellate brief, that the argument was a ground asserted in the motion for summary judgment. Having so recognized it, he had the duty to explain why it could not have formed the basis for the trial court’s decision. Lyco Acquisition 1984 Ltd. Partnership v. First Nat'l Bank, 860 S.W.2d 117, 119 (Tex. App.–Amarillo 1993, writ denied).           Second, and at best, the footnote can be read as a somewhat equivocal comment that the Workers’ Compensation Act did not apply to Xcel Energy. Yet, that purported concession came during appeal. By then, Hall already had expended great effort in trying to convince the trial court that he was indeed an employee of Xcel. So too had he provided the trial court with a litany of “evidence” to bolster that proposition. Much of that evidence was reiterated in his appellate brief, and included such things as the company’s name being on his pay stubs and the representations contained in the letter offering him employment. And, as acknowledged in our original opinion, that summary judgment evidence and argument he proffered may well have induced the trial court to accept Xcel’s contention that his sole means of redress was through Xcel’s workers’ compensation policy since he actually was an Xcel employee. This potentiality, in turn, obligated him to prove to us why the trial court would have been wrong had it so concluded.           Simply put, acknowledging, on appeal, that an opponent may be right does not necessarily make the trial court’s decision wrong. Indeed, there have been instances where we affirmed a trial court’s application of the law even though both parties agreed that it was wrong. E.g. Finney v. State, No. 07-99-0427-CR, 2000 Tex. App. LEXIS 3909 (Tex. App.–Amarillo June 14, 2000, no pet.) (not designated for publication). So, by attempting to prove though admirable effort a pivotal aspect of his opponent’s argument (i.e. that he was an employee of Xcel which in turn subjected him to Xcel’s workers’ compensation policy), Hall assumed the appellate burden of showing as a matter of law why the trial court would have been wrong in accepting his own contention. And that, he did not do.           Accordingly, we deny his motion for rehearing.                                                                             Brian Quinn                                                                           Chief Justice s unaware of the details of what ensued between the crowd and Appellant and his friends. Appellant's friends, Chad and Aaron, both testified that Arriaga's group was brandishing pool cues and knives and chasing them. Appellant, Chad, and Aaron ran back to the truck and backed out of an angled parking space as the crowd was yelling and hitting the truck. According to Chad, the natural direction to drive after backing out of the angled parking space was away from Arriaga's group. However, both Chad and Aaron testified that Appellant turned the truck around after backing out of the space so as to face the crowd he and his friends were fleeing from. Being unable to make a right turn onto the street because of the crowd, Appellant and his friends avoided the crowd by jumping a curb and driving through the bar parking lot. This resulted in Garcia being struck by the truck. From the circumstantial evidence presented, the jury could have inferred that Appellant was aware of, but consciously disregarded, the substantial and unjustifiable risk of fleeing from a crowd in a truck, jumping over a curb, and driving through the bar parking lot. Appellant disregarded the easiest exit from the shopping center parking lot by backing out of the parking space and turning the truck around so as to face the crowd his friends claimed they were trying to avoid. Appellant acted recklessly and created the risk of striking a pedestrian by driving toward a crowd instead of exiting the parking lot in the opposite direction, which would have been the natural direction to take. Although the evidence is conflicting on whether weapons were brandished and who instigated the confrontation, the jury, as the trier of fact, determined that Appellant struck Garcia and that, at that time, he had the requisite mental state to be convicted of aggravated assault. We conclude that under Jackson, the evidence was legally sufficient to support Appellant's conviction. Issue one is overruled. Appellant asserts that the evidence supports his conclusion that Garcia's injuries were the result of a "terrible accident" and that he did not have the requisite criminal intent to commit the offense of aggravated assault. From a review of the most important and relevant evidence discussed hereinabove, (3) we cannot conclude under Watson, that Appellant's conviction was "clearly wrong" or "manifestly unjust." Thus, the evidence is also factually sufficient to support Appellant's conviction. Issue two is overruled. By his third and final issue, Appellant contends the trial court erred in overruling his objection to photographs of Garcia's injuries based on Rule 403 of the Texas Rules of Evidence. We disagree. Standard of Review-Rule 403 A trial court's ruling in response to a Rule 403 objection is reviewed for abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App. 2005). The test for whether the trial court abused its discretion is whether the action was arbitrary or unreasonable. Id. We will not reverse the trial court's ruling if it is within the zone of reasonable disagreement. Id. at 440. In determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, a court should consider (1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex.Crim.App. 2004). In determining the prejudicial effect of photographs, courts may consider the number of photographs offered; their gruesomeness, detail, and size; whether they are in color; whether they are taken close-up; whether the person in the photograph is clothed; and any other factors unique to the situation. Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App. 2006); Long v. State, 823 S.W.2d 259, 270 (Tex.Crim.App. 1991). Outside the jury's presence, the trial court heard Appellant's objections to State's Exhibits 19 through 28 depicting Garcia's severe facial injuries. The objections were based on Rules 401, 402, and 403 of the Texas Rules of Evidence. (4) Of the ten photographs, the trial court permitted the State to select one photograph from three separate groups showing three different angles of Garcia's face. The State chose Exhibits 20, 23, and 26, and Appellant's objections to those photographs were overruled. All three photographs are approximately three by five inches and show only Garcia's face. Exhibit 20 is a right center view of her face; Exhibit 23 is a frontal view of her face; and Exhibit 26 shows the left side of her face. Although the photographs in the appellate record appear in black and white, we will assume they were presented to the jury in color. See Shuffield, 189 S.W.3d at 787. The photographs were taken by Dr. John Marchbanks just prior to performing surgery. Dr. Marchbanks testified that he was called in to consult on Garcia's facial injuries, but did not offer any testimony describing the injuries. Serious bodily injury is an element of aggravated assault the State was required to prove. § 22.02(a) (1). The photographs were offered into evidence for the purpose of establishing that element. Appellant, however, argues that their admission was cumulative because a paramedic and a police officer who were dispatched to the scene gave graphic descriptions of Garcia's injuries during their testimony. He further urges that Garcia's injuries were obvious when she testified. Appellant contends that the probative value of the photographs was outweighed by their prejudicial effect. However, as the State points out, the photographs actually served to soften the testimonials of Garcia's injuries. The paramedic testified that he had never seen trauma like that sustained by Garcia. He described her face as disfigured, "literally ripped apart." He continued that her features were unrecognizable. He did not know where her mouth was and her nose was "just shredded." He didn't know if her eye had been ripped out. One of the responding police officers testified that Garcia's face looked like it "exploded." The objected-to photographs, on the other hand, depict Garcia's face cleaned up in preparation for surgery. They show Garcia's injuries in a less gruesome manner than described by the testimony of the paramedic and police officer. Photographs provide powerful visual evidence of an offense. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). A trial court does not abuse its discretion in admitting into evidence gruesome photographs of a victim. Id. We conclude the photographs were relevant and were not overly gruesome, and the trial court did not abuse its discretion in admitting them. Issue three is overruled. Consequently, the trial court's judgment is affirmed. Patrick A. Pirtle Justice Do not publish. 1. At the time of trial, Kelli and Appellant were married; however, through voir dire testimony it was established that they were not married at the time of the incident and thus, no spousal privilege applied to any communications made at that time. 2. Although the statute is worded disjunctively, Appellant was indicted for causing serious bodily injury and using a deadly weapon. The court's charge tracks the indictment. 3. Sims v. State, 99 S.W.3d 600, 600-601 (Tex.Crim.App. 2003); Roberts v. State, 221 S.W.3d 659, 665 (Tex.Crim.App. 2007). 4. On appeal, Appellant limits his argument to Rule 403.