                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-11-00342-CV


CITY OF FORT WORTH, TEXAS                                              APPELLANT

                                         V.

HARMIT CHATTHA                                                           APPELLEE


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          FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                   I. Introduction

      Appellant City of Fort Worth appeals the trial court‘s order denying its plea

to the jurisdiction. We reverse and remand.

                      II. Factual and Procedural Background

      On February 10, 2010, Fort Worth Police Officer Byrd conducted a traffic

stop while on duty. Believing the driver to be intoxicated, Officer Byrd called for a


      1
       See Tex. R. App. P. 47.4.
DWI unit to conduct a field sobriety test. While awaiting this unit, Officer Byrd

told Lisa Valenzuela, the front seat passenger, to call someone to pick up the

car‘s passengers; she called her brother, Alex Morfin.

      According to Officer Byrd, Appellee Harmit Chattha, one of the back seat

passengers, refused to leave and insisted that the vehicle be released to him

instead of being towed. What happened next is the subject of dispute, and what

follows are excerpts from affidavits submitted by Officer Byrd, Chattha, and two

witnesses.

      According to Officer Byrd,

             Based on Mr. Chattha‘s behavior in refusing my reasonable
      requests to move away from traffic, and my observations of him that
      he had a strong smell of alcoholic beverage on his person, that he
      had bloodshot eyes, slurred speech, and was swaying, I determined
      that I had probable cause to believe that Mr. Chattha was intoxicated
      to the degree that he was a danger to himself and others, and
      decided to arrest Mr. Chattha for Public Intoxication. I told him he
      was under arrest. I grabbed him by the left hand and leaned him
      against the door of the BMW. I took my handcuffs to place them on
      Mr. Chattha. I was able to place a handcuff on his left wrist. I
      attempted to grab Mr. Chattha‘s right arm but he stiffened his arm,
      thus frustrating the arrest process. I warned Mr. Chattha not to
      resist. Mr. Chattha then jerked his arm free and was able to turn
      away from me toward the open driver‘s door of the BMW. The
      female who was getting her purse began to scream for me not to
      arrest him. She climbed through the BMW and came out on the
      driver‘s side of the door, therefore Mr. Chattha was now facing her.
      Both Mr. Chattha and the female were between me and the driver‘s
      seat. I could not see Mr. Chattha‘s right hand, and based on our
      positions at the vehicle, and his continued resistance to my attempt
      to handcuff him, I decided to take him to the ground in order to
      complete the arrest process.

             I determined that the only way I could take Mr. Chattha to the
      ground safely without throwing him into traffic was to take him down
      directly behind me. I was still holding on to the handcuff on Mr.
      Chattha‘s left arm. I grabbed the back shoulder area of his shirt,
                                        2
      twisted him around and took him to the ground. As he went to the
      ground, our legs became entangled, and I fell to the ground also. I
      landed on the lower half of Mr. Chattha‘s body. I observed that Mr.
      Chattha went limp as soon as he struck the ground. . . .

              I made the decision to take Mr. Chattha to the ground in an
      effort to gain control of him because he was resisting my attempt to
      arrest him. I intentionally took Mr. Chattha to the ground. . . .

            I believe the force used on Mr. Chattha was necessary and
      reasonable because he was actively resisting my attempt to arrest
      him, he was resisting near traffic, he was close enough to a running
      vehicle to take control of the vehicle in an intoxicated state, and I
      was outnumbered by his friends on the scene.

      According to Chattha,

              I was trying to talk to the officer but I was not threatening
      anyone, staggering, walking into traffic or slurring my words. I don‘t
      recall a lot of the details after I was handcuffed but I do remember
      the officer telling me to turn around, which I did. Then he grabbed
      my arm to cuff my hand behind my back. I had a car fall from a lift
      onto my left arm some months prior to this and still suffered from
      physical injury from that incident. So the range of motion in my arm
      was not good. I was not struggling or resisting but it was not easy to
      get my arm behind me because of the injury. That is the last thing
      that I remember until waking up in the hospital.

      According to Alex Morfin, Chattha‘s brother-in-law and a witness, he went

to pick up the passengers after Valenzuela called him. In his affidavit, Morfin

stated:

      I could not clearly hear everything, but I did hear [Chattha] tell the
      officer that he could take the car. [Chattha] was not staggering or
      slurring his words. He was not doing anything dangerous. I next
      saw Officer Byrd grab [Chattha] and slam him against the car. The
      officer got one side of the handcuffs on. [Chattha] has an arm injury
      from a time when a car fell from a jack and landed on his arm. It
      was a severe injury and his arm did not work normally. I could see
      that his arm was not bending back easily to put the other cuff on and
      then the officer grabbed him and swung him around like a rag doll.
      The officer threw [Chattha] to the ground head first. Since Officer
      Byrd had [Chattha] at least partially in handcuffs and was holding the
                                         3
      cuff, [Chattha] had no way to break his fall and his head slammed
      into the ground, knocking him unconscious.

      According to Valenzuela, Chattha‘s sister-in-law,

             When we were initially pulled over, I called my brother who
      was nearby and told him that we were being pulled over. My brother
      and his friend Joe were in a separate vehicle. They were not
      intoxicated and they arrived at the scene quickly. There was no
      legitimate reason that one of us could not drive the car home. It
      seemed as if the officer refused to talk to us about it for no good
      reason. At that point, [Chattha] said something about calling an
      attorney. The officer responded by telling [Chattha] to put his hands
      behind his back and was going to handcuff him. We were very
      surprised and [Chattha] said[,] ―[B]ut I didn‘t do anything!‖ The
      officer responded with[,] ―[O]h, yeah!‖ and slammed [Chattha] onto
      the car at the driver‘s side behind the driver‘s side door. [Chattha]
      was not swaying or acting drunk. He was not slurring his words and
      was not staggering into traffic. He was speaking to the officer clearly
      and walking normally. He wasn‘t doing anything dangerous. He
      was just trying to talk to the police officer.

             After the officer slammed [Chattha] against the car, the officer
      was trying to handcuff [Chattha]. [Chattha] had an injury to his arm
      that affected how far back it would go. [Chattha] did not resist in any
      way[;] he did not struggle[,] and he did not pull away. [Chattha] did
      not say anything during this time. But the officer grabbed [Chattha]
      behind his neck and turned him to the side. The officer then threw
      his weight onto [Chattha‘s] back, throwing him to the ground and
      landing on top of him. I screamed and rushed to [Chattha] and
      turned him over. There was blood coming out of his ear and his
      mouth and he was unconscious. I knew he was severely hurt.

      Chattha subsequently filed suit against the City for his injuries. The City

then filed a plea to the jurisdiction, which the trial court denied, and this appeal

followed.

                                   III. Jurisdiction

      The City argues that its plea to the jurisdiction should have been granted

under the Texas Tort Claims Act (TTCA) because there was no use of tangible

                                         4
personal property; the officer‘s official immunity applied, precluding a waiver of

the City‘s immunity; and the act committed by the officer was an intentional tort.

A. Standard of Review

      A plea to the jurisdiction contests a trial court‘s subject matter jurisdiction,

which is a question of law that we review de novo on appeal. City of Borger v.

Garcia, 290 S.W.3d 325, 329 (Tex. App.—Amarillo 2009, pet. denied); see Tex.

Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999). The plea is used

to defeat a cause of action without regard to whether the claims asserted have

merit. Garcia, 290 S.W.3d at 329 (citing Bland ISD v. Blue, 34 S.W.3d 547, 554

(Tex. 2000)). That is, normally the plea ―should be decided without delving into

the merits of the case.‖ Blue, 34 S.W.3d at 554. However, ―in some cases,

disputed evidence of jurisdictional facts that also implicate the merits of the case

may require resolution by the finder of fact.‖ Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Hence, in deciding whether the

plaintiff has alleged facts affirmatively establishing the trial court‘s jurisdiction to

hear the cause, we may consider the facts alleged by the plaintiff and, to the

extent it is relevant to the jurisdictional issue, the evidence submitted by the

parties. Garcia, 290 S.W.3d at 329; see also Miranda, 133 S.W.3d at 226 (citing

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). If

the evidence creates a fact question regarding jurisdiction, the trial court must

deny the plea and leave its resolution to the fact finder. Miranda, 133 S.W.3d at

227–28. But if the evidence is undisputed or fails to raise a fact question on the


                                           5
jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter

of law. Id. at 228.

      If the pleadings do not contain sufficient facts to affirmatively demonstrate

the trial court‘s jurisdiction but do not affirmatively demonstrate incurable defects

in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be

afforded the opportunity to amend. Id. at 226–27 (citing Cnty. of Cameron v.

Brown, 80 S.W.3d 549, 555 (Tex. 2002)).

B. Analysis

      Chatta sued under the TTCA, which provides that ―[a] governmental unit in

the state is liable for: . . . (2) personal injury and death so caused by a condition

or use of tangible personal or real property if the governmental unit would, were it

a private person, be liable to the claimant according to Texas law.‖ See Tex. Civ.

Prac. & Rem. Code Ann. § 101.021 (West 2011).

      1. Use of Tangible Personal Property

      The City argues that ―the officer actually used no tools, implements, or

other personal property‖ and that ―the facts of the case, as provided in the record,

demonstrate that tangible personal property was not used in the incident . . . .‖

Chatta responds that he was injured by the officer‘s negligent use of the

handcuffs in that the ―take down‖ maneuver used to throw him to the ground was

executed while the officer held on to the handcuffs, rendering Chattha unable to

use his hands to break the fall.

      Under the TTCA, to ―use‖ something is ―to put or bring into action or

service; to employ for or apply to a given purpose.‖              Tex. Natural Res.
                                   6
Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001). The evidence

presented does not clearly support either position: Morfin‘s affidavit indicated

that the officer ―swung [Chattha] around like a rag doll‖ while holding the cuff as

he threw him to the ground, while the officer‘s affidavit indicated that he ―was still

holding onto the handcuff on Mr. Chattha‘s left arm‖ when he ―took him to the

ground.‖   This raises a fact question regarding the use of tangible personal

property sufficient to defeat this aspect of the City‘s plea.

      The City also asserts that ―the positioning of Officer Byrd‘s hands, if

anything, only furnished the condition that made the injury possible,‖ which does

not constitute negligent use of property, citing Dallas County Mental Health &

Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.), cert. denied, 525

U.S. 1017 (1998). However, this contention is without merit, because it is the

handcuffs, not the officer‘s hands, which are the personal property at issue.

Further, unlike the unlocked door, which allowed a patient to escape and commit

suicide in Bossley, see id. at 341–43, the handcuffs were an integral part of the

injury-producing take-down in that either the officer used the handcuffs to throw

Chattha to the ground or held the handcuffs while he threw Chattha‘s body to the

ground. We hold that the officer‘s hands are not personal property and that the

handcuffs furnished more than a condition that made the injury possible.

      2. The Officer’s Official Immunity

      A government employee is entitled to official immunity from suit if his

alleged negligent act occurs during the performance of a discretionary duty that

is within the scope of his authority and he acts in good faith. Telthorster v.
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Tennell, 92 S.W.3d 457, 461 (Tex. 2002) (citing City of Lancaster v. Chambers,

883 S.W.2d 650, 653 (Tex. 1994)). Chattha does not dispute that the City, as the

officer‘s employer, is entitled to derivative immunity if the officer is entitled to

official immunity. See City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656

(Tex. 1995) (citing DeWitt v. Harris Cnty., 904 S.W.2d 650, 654 (Tex. 1995), for

the proposition that a city can rely on the official immunity of its employees and

agents). Nor does he dispute that an officer‘s decisions to make a traffic stop or

an arrest are discretionary. See City of Dallas v. Brooks, 349 S.W.3d 219, 225

(Tex. App.—Dallas 2011, no pet.) (describing the difference between ministerial

and discretionary acts); Kistner v. Pfannstiel, 107 S.W.3d 7, 11 (Tex. App.—San

Antonio 2002, no pet.) (―[A] law enforcement officer‘s decision to file a criminal

complaint is discretionary because it calls for the officer‘s ‗personal deliberation,

decision, and judgment.‘‖).    Therefore, we examine whether Officer Byrd has

established that he acted in good faith.

      In Telthorster, the supreme court set out what is necessary to establish

―good faith‖:

             To establish good faith, Officer Telthorster must show that a
      reasonably prudent officer, under the same or similar circumstances,
      could have believed that his conduct was justified based on the
      information he possessed when the conduct occurred. Officer
      Telthorster need not prove that it would have been unreasonable not
      to engage in the conduct, or that all reasonably prudent officers
      would have engaged in the same conduct. Rather, he must prove
      only that a reasonably prudent officer, under similar circumstances,
      might have reached the same decision. That Officer Telthorster was
      negligent will not defeat good faith; this test of good faith does not
      inquire into ―what a reasonable person would have done,‖ but into
      ―what a reasonable officer could have believed.‖

                                           8
             If Telthorster meets this burden, [the complainant], to
      controvert, must do more than show that a reasonably prudent
      officer could have reached a different decision. Instead, [the
      complainant] must offer evidence that no reasonable officer in
      Telthorster‘s position could have believed that the facts were such
      that they justified his conduct.       ―[I]f officers of reasonable
      competence could disagree on this issue,‖ the officer acted in good
      faith as a matter of law.

92 S.W.3d at 465 (citations omitted).

      The only evidence before the trial court that could possibly be construed as

touching on the ―reasonably prudent officer‖ standard here is the officer‘s

statement, ―I believe the force used on Mr. Chattha was necessary and

reasonable.‖ We hold that this statement is insufficient to meet the City‘s burden

because, otherwise, any officer could state on any set of facts that he believed

his actions were reasonable and be absolved of any responsibility, compelling

the grant of any city‘s plea to the jurisdiction. Nothing in Officer Byrd‘s affidavit or

in the other affidavits before the court provides any standard or benchmark to

determine what ―a reasonable officer would have believed,‖ and we are not in a

position to speculate.2 We hold that the City has not met its burden to establish

that the officer acted in good faith.

      3. Intentional Torts

      The City also asserts that the officer‘s conduct constituted an intentional

tort, which is an exception to the waiver of immunity under the TTCA. See Tex.

Civ. Prac. & Rem. Code Ann. § 101.057 (West 2011) (stating that the TTCA‘s


      2
       Were we to do so, we would inject our own personal beliefs into this case
instead of relying on the evidence presented to the trial court.

                                           9
waiver does not apply to claims arising out of assault, battery, or any other

intentional tort).   That is, the City argues that because there was nothing

accidental about the officer‘s conduct in initiating the take-down maneuver to get

Chattha to the ground, which caused Chattha‘s injuries, this exception to the

TTCA applies.

      We first address what constitutes an assault or battery. ―Civil courts look

to the Texas Penal Code for the elements of civil causes of action such as

assault.‖ Childers v. A.S., 909 S.W.2d 282, 292 (Tex. App.—Fort Worth 1995, no

writ). Under the penal code, a person commits an assault if he intentionally,

knowingly, or recklessly causes bodily injury to another or intentionally or

knowingly causes physical contact with another when he ―knows or should

reasonably believe that the other will regard the contact as offensive or

provocative.‖ Tex. Penal Code Ann. § 22.01(a)(1), (3) (West 2011). Battery

does not require an assault; rather, it requires only an offensive touching, not an

intent to injure. Price v. Short, 931 S.W.2d 677, 687 (Tex. App.—Dallas 1996, no

writ) (citing Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.

1967)).

      ―The fundamental difference between negligent injury . . . and intentional

injury is the specific intent to inflict injury.‖ Reed Tool Co. v. Copelin, 689 S.W.2d

404, 406 (Tex. 1985); Presley v. Republic Energy Drilling, L.L.C., No. 02-07-

00225-CV, 2008 WL 4053002, at *5 (Tex. App.—Fort Worth Aug. 29, 2008, no

pet.) (mem. op.) (quoting Reed Tool). As to assault or ―any other intentional tort,‖


                                         10
there is no evidence that Officer Byrd intentionally or knowingly caused bodily

injury to Chattha.3

        Based on the affidavit evidence, however, there is a factual dispute as to

whether the officer acted recklessly.4 The officer‘s affidavit describes a situation

in which a combative, inebriated individual did not comply with the officer‘s

instruction, compelling the officer to take control of the situation by taking the

individual to the ground in a safe location behind the vehicle and out of the traffic

lane.       The other affidavits paint a different picture—that of a sober, non-

combative, previously-injured individual who did not need to be taken down at all,

much less in the officer‘s injury-producing manner. These circumstances present

a fact question as to whether the officer acted recklessly and, hence, a fact

question as to whether the TTCA‘s exception for assault applies.

        However, the evidence shows that the officer intended to touch Chattha

and that Chattha would consider it offensive. That is, the officer states in his

affidavit that he ―intentionally took Mr. Chattha to the ground,‖ and the other three


        3
        Under the penal code, a person acts ―intentionally‖ when it is his
conscious objective or desire to engage in a specific conduct or to cause the
result of his conduct. See Tex. Penal Code Ann. § 6.03(a) (West 2011). He acts
―knowingly‖ when he is aware of the nature of his conduct or that the
circumstances surrounding his conduct exist or when he is aware that his
conduct is reasonably certain to cause the result. Id. § 6.03(b).
        4
        A person acts recklessly when he is aware of but consciously disregards a
substantial and unjustifiable risk that the circumstances surrounding his conduct
exist or that the result of his conduct will occur, and the risk ―must be of such a
nature and degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under the circumstances
as viewed from the actor‘s standpoint.‖ Tex. Penal Code Ann. § 6.03(c).

                                         11
affidavits indicate that Chattha did not believe that he should be arrested, let

alone thrown to the ground, showing that the ―touching‖ would be offensive to

him and that the officer should have known the touching would be offensive or

provocative to Chattha, constituting a battery.       See Tex. Penal Code Ann.

§ 22.01(a)(3). Therefore, because the evidence reflects that a battery occurred,

the trial court erred by denying the City‘s plea on this ground, and we sustain this

portion of the City‘s issue.

                                   IV. Conclusion

      Having sustained part of the City‘s sole issue based on the TTCA‘s

intentional tort exception, we reverse the trial court‘s order and remand this

cause to the trial court to afford Chattha the opportunity to replead.


                                                    PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and WALKER, J.

DELIVERED: February 16, 2012




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