









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-06-00173-CR

______________________________



VAN LEE TOLLETT, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the County Court at Law

Harrison County, Texas

Trial Court No. 2005-1497







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

Memorandum Opinion by Justice Carter


MEMORANDUM OPINION


	Van Lee Tollett appeals from a conviction by a jury on the class C misdemeanor offense of
speeding.  Tollett's speed was clocked by radar at seventy-three miles per hour along a section of
road with a posted speed limit of sixty miles per hour.  Tollett argues on appeal the trial court erred
in denying his motion to quash, the information was fundamentally defective, the evidence was
factually insufficient, and the evidence was legally insufficient.  We affirm the judgment of the trial
court.
I.	Motion to Quash and Defective Information
	Tollett argues, in his first two points of error, that the trial court erred in denying his motion
to quash and that the information was fundamentally defective.  The State contends that Tollett failed
to preserve error and that the information was not defective because it met the requirements of
Section 543.010 of the Texas Transportation Code. (1) 
	The information alleges Tollett "did then and there, operate a vehicle at a speed in excess of
the limits established by Subsection (b) of the Texas Transportation Code to-wit:  73 mph in a 60
mph zone."  According to Tollett, the information fails to charge an offense because:  1) it fails to
allege Tollett operated a motor vehicle, 2) the phrase "Subsection (b)" is meaningless, and 3) the
phrase "73 mph in a 60 mph zone" is unclear as a matter of law.  In addition, Tollett contends the
information was required to allege he was "operating a motor vehicle at a speed that was greater than
reasonable and prudent under existing conditions, having regard for actual and potential hazards." 
In support of this argument, Tollett cites Eaves v. State, 171 Tex. Crim. 670, 353 S.W.2d 231 (1961). 
	Historically, "fundamental" errors in the indictment could be challenged at any point in the
proceedings. See, e.g., Morris v. State, 13 Tex. Ct. App. 65, 71 (1882); see also Cook v. State, 902
S.W.2d  471,   476  (Tex.  Crim.  App.  1995).   In  1985,  Texas  voters  approved  an  amendment
to Section 12 of Article V of the Texas Constitution that the presentation of an indictment or
information vests the trial court with jurisdiction over the case.  See Tex. Const. art. V, § 12; see
also Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990).  A defendant waives any defect
of form or substance in an information if no objection is made before the date trial commences.  See
Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon 2005); Nam Hoai Le v. State, 963 S.W.2d 838,
843 (Tex. App.--Corpus Christi 1998, pet. ref'd) (exception for justice and municipal courts does
not apply when there is a trial de novo in county court).
	Tollett has failed to direct this Court to the place in the record where he objected to any
defect in the indictment.  While Tollett filed a motion to quash and a motion to dismiss in the county
court at law, he has not directed us to the page or pages in the record containing a ruling on these
motions.  Tollett has failed to preserve error. (2) See Tex. R. App. P. 33.1(a).
II.	Legal Sufficiency of the Evidence
	Tollett testified that, just before he was stopped for speeding, he had been passing a slow-
moving semitruck.  Tollett estimated the slow-moving semitruck was traveling approximately forty-five miles per hour.  Because he was approaching a point where the highway merged from a four-lane highway into a two-lane highway, Tollett testified he needed to speed in order to safely pass the
slow-moving semitruck.  Tollett believed it was safer to exceed the speed limit than to pass the slow-moving truck at the speed limit. 
	Tollett argues there is no evidence that he endangered another vehicle or that his speed was
unsafe under existing circumstances.  In reviewing the legal sufficiency of the evidence, we view the
relevant evidence in the light most favorable to the verdict and determine whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt.  Johnson v.
State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  
	Section 545.352(a) provides, "[a] speed in excess of the limits established by Subsection (b)
or under another provision of this subchapter is prima facie evidence that the speed is not reasonable
and prudent and that the speed is unlawful."  See Tex. Transp. Code Ann. § 545.352 (Vernon Supp.
2006); see also Tex. Transp. Code Ann. §§ 545.353, 545.355, 545.356 (Vernon Supp. 2006).  
Because Trooper Jesse Mitchell testified Tollett exceeded the posted speed limit, a rational trier of
fact could have found that Tollett's speed was not reasonable and prudent.  The evidence is legally
sufficient.  We overrule Tollett's fourth point of error.
III.  Factual Sufficiency of the Evidence
	In his third point of error, Tollett argues his testimony was sufficient to overcome the
presumption created by his exceeding the posted speed limit.  In a factual sufficiency review, the
appellate court views all the evidence in a neutral light and determines whether the evidence
supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or
whether the great weight and preponderance of the evidence is contrary to the verdict.  Johnson, 23
S.W.3d at 7; see Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); see also Watson v.
State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).
	The record does contain some evidence Tollett's speed was reasonable.  Tollett testified that
his semi was not loaded and that he would not have passed the slow-moving semitruck if his
semitruck had been loaded.  According to Tollett, the road was clear of other traffic and his action
did not endanger anyone.  Tollett testified it was safer, in his opinion, to exceed the speed limit than
to pass the slow-moving semitruck at the speed limit. 
	The evidence, though, is factually sufficient.  Evidence that a person was exceeding the
posted speed limit is prima facie evidence that the speed was unreasonable.   Trooper Mitchell
testified that the posted speed limit was sixty miles per hour and that Tollett was traveling seventy-three miles per hour as clocked by radar.  While no vehicle had to take evasive action or was
endangered by Tollett's operation of his semitruck, Mitchell testified Tollett's speed could have
posed a danger, particularly since a semitruck has greater weight and takes longer to stop than other
vehicles.  Further, Tollett could have avoided the possibility of violating the speed law had he not
attempted to pass the other semitruck at that time.  When considered in a neutral light, the evidence
supporting the verdict is not so weak that the jury's verdict is clearly wrong and manifestly unjust. 
Further, the great weight and preponderance of the evidence does not indicate that Tollett's speed
was reasonable and prudent.  We overrule Tollett's third point of error.





	For the reasons stated, we affirm the judgment of the trial court.

							Jack Carter
							Justice

Date Submitted:	January 24, 2007
Date Decided:		February 6, 2007

Do Not Publish
1. Section 543.010 of the Texas Transportation Code requires a complaint on a charge of
speeding to specify:

	(1)	the maximum or minimum speed limit applicable in the district or at the
location; and
	(2)	the speed at which the defendant is alleged to have driven.

Tex. Transp. Code Ann. § 543.010 (Vernon 1999). 
2. We note an instrument which is not an "information" under Article V, Section 12 of the
Texas Constitution fails to vest the trial court with jurisdiction and can be raised for the first time
on appeal.  See Duron v. State, 956 S.W.2d 547, 555 (Tex. Crim. App. 1997); Cook, 902 S.W.2d at
479-80.  "To comprise an [information] within the definition provided by the constitution, an
instrument must charge: (1) a person; (2) with the commission of an offense."  Cook, 902 S.W.2d
at 476. "[A] written instrument is an indictment or information under the Constitution if it accuses
someone of a crime with enough clarity and specificity to identify the penal statute under which the
State intends to prosecute, even if the indictment is otherwise defective."  Duron, 956 S.W.2d at
550-51.  Even though the information in this case fails to allege Tollett was not driving at a speed
that was reasonable and prudent under the circumstances then existing, it is sufficient to identify the
penal statute under which the State intends to prosecute.

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                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No.
06-10-00050-CV
                                                ______________________________
 
 
 
                                                                        IN
RE:
SAMSON
LONE STAR, LLC
 
 
                                                 
                                                 
 
                                                                                                                            

                                                     Original
Mandamus Proceeding
 
                                               
                                                   
 
 
 
 
                                        Before
Morriss, C.J., Carter and Cornelius, *JJ.
                                              Memorandum
Opinion by Justice Carter
 
                                                                              
__________________________________
*William J. Cornelius, Chief Justice, Retired,
Sitting by Assignment           




                                                      MEMORANDUM
OPINION
 
            Melba Faye Smith and Michael Edward
Smith (Smith) brought suit against Samson Lone Star, LLC (Samson), alleging
breach of contract.  In the course of
discovery, Samson objected to Request for Production No. 11, asserting that the
information sought was a trade secret. 
Smith argued that the information was not a trade secret and that
because Samson had inadvertently produced an analysis regarding proved
developed reserves in the Hancock-Smith Unit, Samson had waived the trade
secret privilege regarding all reserves within that unit.  The trial court ordered Samson to produce all
documents responsive to Request No. 11. 
            Here, Samson argues the trial court
abused its discretion by:  (1) finding
that Samson waived its trade secret privilege when it disclosed the Reserve
Analysis; (2) erroneously overruling Samsons assertion of trade secret
privilege to Request No. 11; and (3) failing to order Smith to return the
Reserve Analysis to Samson.  Samson prays
that we vacate the trial courts order and direct the trial court to enter an
order upholding the trade secret privilege and returning the inadvertently
produced document. 
            The order is overbroad and
indefinite and therefore constitutes an abuse of discretion.  We conditionally grant the petition for writ
of mandamus.
I.          Facts
 
            Smith sued Samson alleging that
Samson breached its duty to act as a reasonably prudent operator by failing to
drill wells on their gas leases.  During
the course of discovery, a dispute arose regarding Smiths Request for
Production No. 11, which sought the production of all documents that describe
the nature and/or extent of the Proved Producing Oil and Gas Reserves that
[Samson] or any other person has estimated exist on the Hancock-Smith Unit . .
. includ[ing] any calculations, study, analysis and/or reports with respect to
such reserves. 
            Samson argued that the documents
sought by Request No. 11 were trade secrets and refused to produce them.[1]  Samsons privilege log and
production/privilege log assert that several specific documents are trade
secrets and that several dozen categories of documents are also trade
secrets.    
            However, in response to the
discovery requests, Samson produced an analysis regarding Proved Developed
Producing reserves in the Hancock-Smith Unit (Reserve Analysis).[2]
 Smith argued that by producing the
Reserve Analysis, Samson had waived its trade secret privilege as to any
information regarding other reserves, specifically any information regarding proven
undeveloped reserves in the Hancock-Smith Unit.  
            In June 2010, Samson moved to snap-back
the Reserve Analysis documents under Rule 193.3(d), alleging they were
inadvertently produced trade secrets, and sought to have them returned via
court-order.  See Tex. R. Civ. P. 193.3(d).  Samson argued it was not aware of the
disclosure until April 27, 2010.  In
response, Smith produced correspondence indicating that Samson knew of the
production in September 2009.    
            The trial court agreed with Smith,
denied Samsons snap-back motion, overruled Samsons objections and assertions
of trade secret privilege to Request No. 11, found that Samson waived the trade
secret privilege by producing the Reserve Analysis, and ordered Samson to
produce all documents responsive to the request for production.  Samson sought mandamus relief.
II.        Mandamus
 
            Mandamus will issue to correct a
discovery order if the order constitutes a clear abuse of discretion and there
is no adequate remedy by appeal.  In re Colonial Pipeline Co., 968 S.W.2d
938, 941 (Tex. 1998) (orig. proceeding); Walker
v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  When determining whether the trial court
abused its discretion, we are mindful that the purpose of discovery is to seek
the truth so that disputes may be decided by what the facts reveal, not by what
facts are concealed.  Colonial Pipeline, 968 S.W.2d at
941.  The rules governing discovery do
not require as a prerequisite to discovery that the information sought be
admissible evidence; it is enough that the information appears reasonably
calculated to lead to the discovery of admissible evidence.  See
Tex. R. Civ. P. 192.3(a).  But this broad grant is limited by the
legitimate interests of the opposing party to avoid overly broad requests,
harassment, or disclosure of privileged information.  In re
Am. Optical Corp., 988 S.W.2d 711, 713 (Tex. 1998) (orig. proceeding).        
            Appellate courts will not intervene
to control incidental trial court rulings when an adequate remedy by appeal
exists.  In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004)
(orig. proceeding); Walker, 827
S.W.2d at 840.  A party will not have an
adequate remedy by appeal (1) when the appellate court would not be able to
cure the trial courts discovery error, (2) when the partys ability to present
a viable claim or defense at trial is vitiated or severely compromised by the
trial courts discovery error, or (3) when the trial court disallows discovery
and the missing discovery cannot be made a part of the appellate record or the
trial court, after proper request, refuses to make it part of the record.  In re
Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998) (orig. proceeding); Walker, 827 S.W.2d at 843.  A trial court abuses its discretion and no
adequate remedy by appeal exists when a trial court erroneously compels
production of trade secrets without a showing that the information is necessary.  In re
Bass, 113 S.W.3d 735, 738, 745 (Tex. 2003) (orig. proceeding).
            A.        There is Evidence that
Samson Actually Discovered the Production of the                               Reserve
Analysis in September 2009
 
            Samson filed the snap-back motion
on June 2, 2010, and argued that it first learned of the production on April
27, 2010.  Smith contends that its
correspondence with Samson shows that Samson knew of the production in
September 2009, and therefore the snap-back motion is untimely.  In denying Samsons snap-back motion, the
trial court found that Samson did not invoke Rule 193.3(d) within 10 days of
actually learning that the [Reserve Analysis] documents were produced.    
            Under Rule 193.3(d), a party who
inadvertently produced privileged information does not waive privilege as to
that information if, within ten days after the producing party actually
discovers that such production was made, the producing party amends the
response, identifying the material or information produced and stating the
privilege asserted.  Tex. R. Civ. P. 193.3(d).  If the response is amended to identify the
specific information inadvertently produced and assert a privilege, the
requesting party must promptly return the specified materials.  Id.  
            The issue here is the approximate
date Samson actually discovered that it produced the Reserve Analysis.  In a letter dated September 23, 2009,
regarding an upcoming discovery conference between the parties, Smith informed
Samson:
As you know, Samson produced reserve analysis
found on pages SAM-02976 through SAM-02981. 
We are interested in receiving this same report or form of analysis, if
any exist, for proven undeveloped reserves associated with the Hancock-Smith
Unit.  
 
In a
response letter dated September 30, 2009, Samson acknowledged receipt of the
September 23 letter and stood on its previously asserted objections and claims
of privilege, but made no mention of the Reserve Analysis.  More than eight months later, in June 2010,
Samson filed its snap-back motion, claiming that the Reserve Analysis was
privileged and that Samson first learned that [the Reserve Analysis documents]
were inadvertently produced on April 27, 2010. 

             Samson argues that the September 23 letter did
not put Samson on notice that a[] privileged document had been produced.  Smith contends that the September 23
letter put Samson on notice and that Samson failed to amend its response,
assert privilege as to the Reserve Analysis, or change its position in any way
regarding the Reserve Analysis until several months later.  
            The plain language of the September
23, 2009, letter informs Samson that it produced the Reserve Analysis and
Samson admitted receiving the letter. 
Parties are charged with notice of the contents of correspondence they
receive.  Burlington N. R.R. Co. v. Akpan, 943 S.W.2d 48, 51 (Tex. App.Fort
Worth 1997, no writ) (party held to have knowledge of material fact contained
in document he admitted receiving); see
also Hexter v. Pratt, 10 S.W.2d
692, 693 (Tex. Commn App. 1928, judgmt adopted), quoted with approval in Champlin Oil & Ref. Co. v. Chastain, 403
S.W.2d 376, 38889 (Tex. 1965); see also
Hicks v. Loveless, 714 S.W.2d 30,
33 (Tex. App.Dallas 1986, writ refd n.r.e); T-Vestco Litt-Vada v. Lu-Cal One Oil Co., 651 S.W.2d 284, 293
(Tex. App.Austin 1983, writ refd n.r.e). 
Samson fails to cite any authority negating its knowledge of the letters
contents.  Therefore, the trial court
acted within its discretion when it denied Samsons snap-back motion because it
had ample evidence from which to reasonably infer that Samson actually
discovered the inadvertent production in September 2009. 
            B.        The
Order Does Not Specify Which Documents Are Responsive to Request                            No. 11
 
            Samson refused to produce documents
in response to Request No. 11, claiming that they were trade secrets.  The trial court overruled all of Samsons
assertions of trade secret privilege and ordered Samson to produce all
documents responsive to this request.  
            To be entitled to mandamus relief,
the relator must demonstrate (1) that no other adequate remedy at law exists,
and (2) under the law and facts relevant to the case, the act sought to be
compelled is purely ministerial.  In re Rodriguez, 77 S.W.3d 459, 460
(Tex. App.Corpus Christi 2002, orig. proceeding).  An act is ministerial if it does not involve
the exercise of any discretion.  Id. (quoting State ex rel. Hill v. Court of Appeal Fifth Dist., 34 S.W.3d 924,
927 (Tex. Crim. App. 2001).  It must also
be clear and indisputable that the relator has an absolute right to relief
sought.  Id. at 461.  A ministerial
act is one that must be performed with such certainty it does not require the
exercise of judicial discretion.  Id. 

            Because the order fails to specify
which documents are responsive to Request No. 11, we are unable to determine
whether the trial courts order required the production of documents subject to
the trade secret privilege.  Further, the
general nature of the order does not allow us to consider whether the trade
secret issue was properly preserved, proven, or rebutted as to the responsive
documents.  
            The order is overbroad and
indefinite and therefore constitutes an abuse of discretion. 
            We conditionally grant the petition
for writ of mandamus and direct the trial court to vacate the order in question
and enter a new order identifying in detail the material and information to be
produced, in a manner that will enable petitioner to properly comply.  Because we are confident the trial court will
comply with this mandate, the writ will issue only if the court fails to do so.
 
 
 
                                                                                    Jack
Carter
                                                                                    Justice
 
Date
Submitted:          August 2, 2010           
Date
Decided:             August 3, 2010




[1]Smith
does not dispute that Samson filed a proper production/privilege log.
 


[2]The
documents are labeled SAM-02976 through SAM-02981.


