                                                                                        ACCEPTED
                                                                                    01-14-00013-CV
                                                                         FIRST COURT OF APPEALS
                                                                                 HOUSTON, TEXAS
                                                                               7/15/2015 3:38:10 PM
                                                                              CHRISTOPHER PRINE
                                                                                             CLERK

                          NO. 01-14-00013-CV

                         In the Court of Appeals                   FILED IN
                                                            1st COURT OF APPEALS
             For the First Supreme Judicial District of   Texas HOUSTON, TEXAS
                                                            7/15/2015 3:38:10 PM
                              at Houston, Texas
                                                            CHRISTOPHER A. PRINE
                                                                    Clerk
 Marcus B. Patterson, individually, as Independent Administrator of
                    the Estate of Diane Patterson,
    and as next friend of Daniel Patterson and Danae Patterson,
   and Danae Patterson and Daniel Patterson (now 18 years old),
                                 Appellants
                                     v.
                    Brewer Leasing, Inc., Appellee

             On Appeal from the 334th Judicial District Court
                        of Harris County, Texas
               The Honorable Judge Ken Wise presiding


              APPELLANTS’ MOTION FOR REHEARING

HARRY HERZOG                              DOROTHEA “DOTTY” L. VIDAL
State Bar No. 09548200                    State Bar No. 20578100
DAVID A. CARP                             GEARY, PORTER & DONOVAN
State Bar No. 03836500                    16475 Dallas Parkway, Ste. 400
HERZOG & CARP                             Addison, Texas 75001-6837
P.O. Box 218845                           972-931-9901 Telephone
Houston, Texas 77218-8845                 972-931-9208 Facsimile
713-781-7500 Telephone                    dvidal@gpd.com
713-781-4797 Facsimile
HHerzog@hcmlegal.com                      Co-Counsel for Appellants

Lead Counsel for Appellants
                                    TABLE OF CONTENTS
                                                                                                      Page

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

I.      Brewer Leasing is liable as the undisputed owner of the never
        leased Heil trailer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.     With respect to the tractor the Court’s opinion reverses statutory
        law, the burden of proof, and incorrectly construes cited case
        authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
        A.    This Court’s opinion judicially reverses the 1956
              Congressional statute and parallel Texas legislation,
              together with the federal and Texas regulatory schemes. . . . . 2
        B.    This Court’s opinion incorrectly construes cited case
              authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        C.    There was no lease from Brewer Leasing to Texas Stretch. . 15
              1.     There was no consideration.. . . . . . . . . . . . . . . . . . . . . 15
              2.     We looked for consideration. . . . . . . . . . . . . . . . . . . . . 15
              3.     The reason for no consideration. . . . . . . . . . . . . . . . . . 16
              4.     This Court also errs on the burden of proof and
                     jury questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
              5.     The criminal wrongdoing clause in 49 USC §
                     30106(a)2 precludes any liability shifting away
                     from Brewer Leasing. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
              6.     The big picture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III.    A factual error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24




                                                     ii
                                  INDEX OF AUTHORITIES

U.S. SUPREME COURT

American Trucking Ass’ns. v. U.S., 344 U.S. 298, 302-306;
73 S. Ct. 307 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. COURT OF APPEALS

Empire Fire & Marine Insur. Co. v. Guaranty National Insur. Co.,
868 F.2d 357, 362 (10th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Jackson v. O’Shields, 101 F.3d 1083, 1086 (5th Cir. 1996). . . . . . . . . . . . . 3

Price v. Westmoreland, 727 F.2d 494, 496 (5th Cir. 1984). . . . . . . . . . . . . 3

White v. Excalibur Ins. Co., 599 F.2d 50, 52 (5th Cir. 1979),
cert. denied, 444 U.S. 965 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TEXAS SUPREME COURT

Berry v. Golden Light Coffee Company,
327 S.W.2d 436, 439 (Tex. 1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEXAS COURT OF APPEALS

Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 884-5
(Tex. App. – Dallas 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Hooper v. Torres, 790 S.W.2d 757, 759
(Tex. App. – El Paso 1990, writ den’d). . . . . . . . . . . . . . . . . . . . . . . . . . . 17

In re Brewer Leasing, 255 S.W.3d 708
(Tex. App. – Hou 1st 2008, mandamus den’d). . . . . . . . . . . . . . . . . . . . . . 15

Morris v. JTM Materials, Inc., 78 S.W.3d 28, 38
(Tex. App. – Ft. Worth 2002, no pet).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3


                                                   iii
OTHER COURTS

Hunt v. Drielick, 852 N.W.2d 562 (Mich. 2014). . . . . . . . . . . . . . . . . . . . . 13

Jones Express, Inc. v. Watson, 871 F.Supp. 719, 728-734
(quotes at 734)(M.D. Tenn. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Luizzi v. Pro Transport, 2013 WL 3968736 (E.D. NY, 2013). . . . . . . . 11, 12

Paul v. Bogle, 484 N.W.2d 728, 731, 735 (Mich. Ct. App. 1992). . . . . . . . 7

Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011
(Ct. App. – Indiana 1st, 1986, trsf den’d, cert. den’d 107 S.Ct. 1571). . . . . 4

Shimko v. Jeff Wagner Trucking, 2014 WL 7366190
(W.D. Wisc. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Wilson v. Riley Whittle, 701 P.2d 575 (Ariz. Ct. App. 1984). . . . . . 9, 10, 13

FEDERAL STATUTES
49 USC § 11107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 16
49 USC § 31135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
49 USC § 30106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 15, 17, 18

CODE OF FEDERAL REGULATIONS
49 C.F.R. § 376. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 11, 12, 15, 16
49 C.F.R. § 1057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10

OTHER
TRCP 279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Texas Penal Code § 37.09(a)1, 37.09(d)1, 37.08. . . . . . . . . . . . . . . . . . . 18




                                                    iv
                        MOTION FOR REHEARING

      The Patterson family moves for rehearing on two grounds: (1) the

Court’s opinion erroneously fails to hold Brewer Leasing liable as the

undisputed owner of the Heil trailer with no testimony of any oral lease to

Texas Stretch, and (2) the Court’s opinion reverses statutory law, the burden

of proof, and incorrectly construes cited case authorities with respect to any

oral lease of the Peterbilt tractor, thereby erroneously allowing an oral lease

to evade liability.

                                     I.
            Brewer Leasing is liable as the undisputed owner
                     of the never leased Heil trailer.

      The reason this court gave for exonerating Brewer Leasing does not

apply to the Heil trailer. The legal principle underlying the Court’s liability

analysis on the tractor (an oral lease can shift liability away from Brewer

Leasing pursuant to 49 USC § 30106) does not apply as there was no oral

lease of the Heil trailer. The opinion correctly reflects the Patterson family’s

theory of liability on the trailer but then skips it in the analysis. Brewer

Leasing undisputably owned the Heil trailer, there is no written lease, and

there is also no testimony of any oral lease of the Heil trailer. Therefore




                                       1
nothing the Court wrote absolving Brewer Leasing of liability for the Peterbilt

tractor applies to the Heil trailer.

                                  II.
With respect to the tractor the Court’s opinion reverses statutory law,
the burden of proof, and incorrectly construes cited case authorities.

A.    This Court’s opinion judicially reverses the 1956 Congressional
      statute and parallel Texas legislation, together with the federal and
      Texas regulatory schemes.

      Between 1935 and 1956 trucking abuses were alarmingly frequent,

threatening both the industry and public safety. American Trucking Ass’ns.

v. U.S., 344 U.S. 298, 301-306; 73 S. Ct. 307 (1953); White v. Excalibur Ins.

Co., 599 F.2d 50, 52 (5th Cir. 1979), cert. denied, 444 U.S. 965 (1979).

Relationships before a collision were consistently concealed after a wreck.

Owners or lessees of vehicles magically produced oral leases to uninsured

companies. It takes a lot to get any Congress off dead center, but the

unending stream of perjurious testimony to evade trucking liability moved

Congress in 1956 to end the existence of oral leases to evade liability.

      From 1956 until this Court’s opinion no case in America allowed any oral

lease to evade liability. Courts have detailed the history and policy decisions

that forced Congress to act. As the Ft. Worth Court of Appeals correctly

summarized, “. . . protecting the public from accidents, preventing public


                                       2
confusion about who was financially responsible if accidents occurred, and

providing financially responsible defendants” were three goals of the 1956

Federal Motor Carrier Safety Act Amendments. Morris v. JTM Materials, Inc.,

78 S.W.3d 28, 38 (Tex. App. – Ft. Worth 2002, no pet); accord Empire Fire

& Marine Insur. Co. v. Guaranty National Insur. Co., 868 F.2d 357, 362 (10th

Cir. 1989); Price v. Westmoreland, 727 F.2d 494, 496 (5th Cir. 1984). As the

Fifth Circuit noted:

            “Under the authority of 49 U.S.C. § 11107, the
            Interstate Commerce Commission regulates leases of
            equipment used in interstate commerce. See 49
            C.F.R. § 1057.1 et seq. One of the primary purposes
            of the ICC’s leasing regulations is to ensure that
            carrier-lessees take control of and responsibility for
            leased equipment during the term of a lease.”

Jackson v. O’Shields, 101 F.3d 1083, 1086 (5th Cir. 1996). Jackson was

another classic case of the round robin of finger pointing by carriers, lessors,

owners, drivers and insurers. Jackson, 1081. The Jackson decision correctly

notes that the failure to comply with trucking regulations “does not and should

not insulate a carrier-lessee from liability.” Jackson, 1089.

            “The stringent regulations also eliminate the difficulty
            faced by an injured plaintiff in determining who
            controlled the vehicle; the purpose upon which the
            vehicle was embarked at the time of the accident; and
            the questions of agency, employee or independent


                                       3
            contractor status, frolic and detour, and borrowed
            employee.”

Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011 (Ct. App. – Indiana 1st,

1986, trsf den’d, cert. den’d 107 S.Ct. 1571). Rediehs contains some of the

country’s most cited and quoted language on the history of the 1956

amendments and the end of delegating responsibility, evading responsibility,

abrogating responsibility, and eliminating fly-by-night contracting. This Court’s

reliance on an oral lease to evade liability returns trucking law to its pre-1956

wild west condition.

      Texas Stretch spent three years denying any affiliation with Charles

Hitchens and evading liability since Brewer Leasing was the lessee under a

written lease. At the last minute they admitted employing Charles Hitchens

(Appendix 8, 20). Now, at the last minute, Brewer Leasing denies being the

lessee and in a classic example of statutorily precluded finger pointing claims

Texas Stretch was the oral lessee. The 1956 Act and “stringent regulations”

designed to prevent this insanity are neutered by this Court’s acceptance of

the claim of an oral lease.

      Courts have consistently ruled that a company cannot evade liability by

non-compliance with the 1956 statute or regulations. For example,



                                       4
           “The purpose of the amendments was to ensure that
           interstate motor carriers would be fully responsible for the
           maintenance and operation of the leased equipment and
           the supervision of the borrowed drivers, thereby protecting
           the public from accidents, preventing public confusion about
           who was financially responsible if accidents occurred, and
           providing financially responsible defendants. Id. The
           Interstate Commerce Commission later issued regulations
           that required a certificated interstate carrier who leases
           equipment to enter into a written lease with the equipment
           owner providing that the carrier-lessee shall have exclusive
           possession, control, and use of the equipment, and shall
           assume complete responsibility for the operation of the
           equipment for the duration of the lease. See 49 C.F.R. §§
           376.11-12 (2005). These regulations are known as the
           Federal Motor Carrier Safety Regulations.”

                                     ***
           “One of the purposes of amending the Interstate Common
           Carrier Act to include specific lease requirements was to
           prevent the type of confusion we have here as to financial
           responsibility. Simply because Higgins and MTR failed to
           enter into a lease agreement, thereby creating this
           confusion, Higgins should not be allowed to hide behind the
           protection of the federal regulations and insulate
           themselves from liability if they had practical control over
           Jackson at the time of the collision.”

Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 884-5 (Tex. App. –

Dallas 2006, no pet.).

     Finding a trucking company “was in violation of both the letter and the

spirit” of the written lease requirements with respect to policy limits, the

deductible, and insurance disclosure, one court concluded the trucking


                                     5
company “is estopped from enforcing the Lease indemnification provision...”

Jones Express, Inc. v. Watson, 871 F.Supp. 719, 728-734 (quotes at

734)(M.D. Tenn. 2012). The court reversed its first holding in favor of the

violative trucking company, fixing their error by concluding the unlawful and

hidden insurance obligation violated the letter and the spirit of the Truth-in-

Leasing regulations (49 CFR § 376) and “to allow Jones Express to pass

liability for this loss on to Watson defeats the very purpose of the federal

regulations.” Jones Express, 734. The same analysis applies in our case.

To allow Brewer Leasing to pass liability for this loss off to Texas Stretch

through the even more violative act of an oral lease defeats every purpose of

the federal and Texas laws and regulations.

      The laws and regulations do several things to eliminate the 1935-1956

shenanigans.

            1.    Any lease must be written.
            2.    Any lease must contain about a dozen things.
            3.    The lessee must be adequately insured.
            4.    The vehicle must be properly marked.
            5.    The lease must be terminated in writing.
            6.    Possession must be terminated with a written receipt.
            7.    Possession must be terminated with removal of the
                  markings.

Not a single one of these seven was done under the phantom oral lease from

Brewer Leasing to Texas Stretch.          Instead the mythological oral lease

                                      6
contradicts the written lease, Texas Stretch had no insurance for either

vehicle, the oral lease contradicts the tractor markings in all four places, and

there is no written termination of the lease or receipt for surrendering

possession. Others have tried similar tricks, but because the policy and

purpose of the 1956 Act was to stop all the oral foolishness after the collision

the tricks don’t work. Paul v. Bogle, 484 N.W.2d 728, 731, 735 (Mich. Ct.

App. 1992)(finding written lease never terminated as a matter of law due to

lack of receipt for termination and lack of removal of placards, disregarding

contradictory oral claims).

      By giving effect to a claimed oral lease and using that oral lease to

eviscerate Brewer Leasing’s statutory liability this Court’s opinion defeats

every purpose of the law from 1956 to today. The effect of this Court’s opinion

is a judicial repeal of the entire purpose and policy of the 1956 Act, parallel

Texas legislation, and the federal and state regulations.

      This Court’s opinion also judicially repeals 49 USC § 31135. Congress

provided that:

            “Two or more motor carriers, employers, or persons shall
            not use common ownership, common management,
            common control, or common familial relationship to enable
            any or all such motor carriers, employers, or persons to
            avoid compliance, or mask or otherwise conceal non-
            compliance, or a history of non-compliance, with regulations

                                       7
           prescribed under this subchapter or an order of the
           Secretary issued under this subchapter.” 49 USC § 31135.

     Brewer Leasing and Texas Stretch shared the same President and

General Manager. Both companies operated out of the same location. Texas

Stretch owned 100% of the stock in Brewer Leasing (a fact perjuriously

concealed for eight years). This is a classic example of two carriers with

common ownership, management, and control. This Court’s decision to allow

an oral lease between them to avoid liability to the Patterson family

eviscerates any effect of 49 USC § 31135.

     What Brewer Leasing is trying to do, and this Court’s opinion

erroneously allows, is to be the only company with legal authority to operate

the Peterbilt tractor on June 15, 2006, then improperly orally delegate those

rights to uninsured parent company Texas Stretch and thereby dodge liability.

The law precludes operation in this fashion. In addition to 49 USC § 31135,

           “It further seems well settled that one holding a certificate
           or permit authorizing him to operate a motor carrier over the
           highways of the State may not delegate to another the
           rights conferred by such certificate or permit and then
           release himself from liability to those injured by the
           negligence of the wrongfully delegated party.”

Berry v. Golden Light Coffee Company, 327 S.W.2d 436, 439 (Tex. 1959).




                                      8
B.    This Court’s opinion incorrectly construes cited case authority.

      Trucking laws are designed to protect the public from accidents, prevent

public confusion, set responsibility when accidents occur, and provide for

financially responsible defendants. This Court’s erroneous analysis of cited

case authorities subverts all four goals and lets Brewer Leasing benefit from

violations. This Court leaves the Patterson family as unprotected as possible,

confuses everyone, evades responsibility, and eliminates financial

responsibility for the only insured company. None of the cases cited at pages

27-28 of the opinion allowed a trucking company to evade liability through an

oral lease. This Court confused the ability of a plaintiff to use an oral lease

to create liability versus the statutory and regulatory inability of a defendant

to use an oral lease to evade liability. In chronological order:

      Wilson v. Riley Whittle, 701 P.2d 575 (Ariz. Ct. App. 1984) is a collision

death case with the reverse of our facts. The trucking company, Riley Whittle,

owned its own vehicles and employed its own drivers. A cranberry juice load

needed to be moved. An independent trucker, Meyer, called Riley Whittle

looking to see if he could haul a load for them. Riley Whittle agreed and

instructed Meyer “to have a trip lease signed for the load.” Meyer never

obtained a trip lease but he obtained the cranberry juice. When Meyer’s


                                       9
tractor broke down Riley Whittle sent $600 for repairs. Meyer drove on, made

some stops, ate, drank some beer, and within spitting distance of the Riley

Whittle facility had a fatal collision with Wilson. (All facts from Wilson, 576-7).

      The court realized that a trucking company cannot benefit from

violations of the law. Riley Whittle tried to claim a written lease was an

essential requirement for their liability, but the court correctly declined to allow

the purpose of the law to be flipped. Wilson, 578. After citing the policy

reasons for the law the court refused to allow Riley Whittle to immunize itself

from liability based on an oral lease that violated the law. “The cases are

uniform in holding that absence of a written trip lease is legally irrelevant.”

Wilson, 578-9. Thus the plaintiff could use an oral lease to create additional

liability. The court correctly reflected:

            “The public policy expressed by 49 U.S.C. § 11107and 49
            C.F.R. § 1057 would be wrongfully frustrated if we were to
            allow Riley Whittle to evade the liability imposed upon it by
            the federal statute and regulations by asserting that a
            written trip lease was a condition precedent to any contract
            between the parties and to responsibility on its part.
            Instead, that policy demands a holding that Riley Whittle is
            liable as a matter of law.” Wilson, 579.

The case holds an oral lease can create liability, but this Court’s opinion uses

an alleged oral lease to evade liability. Saying “I orally leased the truck” to

evade liability is exactly what the 1956 Act ended.

                                        10
      Luizzi v. Pro Transport, 2013 WL 3968736 (E.D. NY, 2013) is an

insurance coverage case. There was no oral lease, there was a written lease.

Luizzi sued Sanchez over a collision, Sanchez sued State National, and then

State National sued Green Mountain who placed the coverage. The court

held the vehicle involved was a covered auto. Luizzi settled for $1,100,000

and State National tried to force Green Mountain to reimburse due to

negligently failing to properly terminate the policy.

            “The question currently before the Court is whether the
            Policy, which was in effect on the day of the Luizzi-Sanchez
            accident, provided coverage to Pro Transport and/or
            Sanchez for the Luizzi-Sanchez accident . . . the Court finds
            that State National has proven by a preponderance of the
            evidence that the Sanchez vehicle was a “covered auto”
            and that the Policy provided coverage to both Pro Transport
            and Sanchez for the underlying accident.”

      In analyzing the facts and legal issues the trial court reviewed a one-

year written lease, exhibit 44. The parties debated whether the written lease

fully complied with all legal requirements. The court found it “was a valid

contract under New Jersey law,” but was missing many provisions required

by 49 CFR § 376.12.

      The case contains an excellent summary of the principles of federal

trucking policies and then applies them. “Given that the public policies

governing motor carriers are a driving force behind the analysis in the instant

                                       11
case . . .” The opinion contains a discussion of courts’ unwillingness to allow

carriers to hide behind defective or ineffective leases to deny compensation

to innocent members of the public injured in collisions. Policy considerations

caution against a carrier benefitting from its own failure to comply with the

regulatory scheme. A motor carrier that fails to enter into a proper written

lease cannot hide from liability for that reason. Oral leases, or defective

written leases, can’t be used to evade responsibility to injured members of the

public. Concluding that any contrary rule would create perverse incentives to

create defective leases, the court held the lease “valid and enforceable in this

case.”

      This Court’s opinion flips the reasoning and result of Luizzi. This Court’s

opinion creates the perverse incentive to claim to create an oral lease in an

effort to shift liability off to an uninsured carrier so that an injured citizen is

denied a recovery. Contrary to Luizzi, this Court’s opinion uses a defective

oral lease to deny compensation.

      Luizzi held that noncompliance with 49 FCR § 376.12 did not render the

lease unenforceable, but did so for the express purpose of applying public

policy and the goals of the regulatory scheme to create liability and deprive

a company of the ability to evade liability by noncompliance. This Court’s


                                        12
opinion does the reverse: uses an alleged oral lease to defeat the statutory

goals and policies by evading liability through noncompliance.

      Hunt v. Drielick, 852 N.W.2d 562 (Mich. 2014) is an irrelevant wrongful

death collision case involving “the interpretation and application of an

insurance policy.”    Hunt, 565.     Procedurally, the case involved writs of

garnishment. Hunt, 564. Several leases and events are involved. Empire

Fire and Marine Insurance Co. only insured Drielick Trucking for bobtail use

(a tractor with no trailer). Corey Drielick was driving a tractor without a trailer,

but Empire denied coverage and refused to defend.

      The plaintiffs settled with Sargent Trucking and GLC, then entered into

consent judgments with Corey Drielick and Drielick Trucking. All the court did

was hold the bobtail portion of the policy was fulfilled and remand for

evaluation of the existence of a leasing agreement between Drielick Trucking

and GLC “as contemplated by the business-use exclusion’s leasing clause.”

Hunt, 569.

      Nothing in Hunt directly applies to our case. This Court’s opinion quotes

footnote 9 (which provided guidance to the trial court on remand), but footnote

9 is just a reference to the Wilson case. Our facts are very different. No

policy exclusion or policy lease language is in issue. The quote from Wilson


                                        13
is erroneously applied to our case. “The absence of a written trip lease is

legally irrelevant” is true when applied to eliminate the ability of a trucker to

distort public policy and evade liability, but it is not true when an oral lease is

used to try to evade liability and defeat the purpose of the legislation and

regulatory scheme.

      The cited case this Court relied on most heavily is Shimko v. Jeff

Wagner Trucking, 2014 WL 7366190 (W.D. Wisc. 2014), but the case does

not involve any collision (and several cases cited by this Court in the key

erroneous paragraph emphasize the importance of that distinction). The pro

se litigants lost a motion for summary judgment in a dispute between a trucker

and a trucking company.        The trial court found fact questions on dual

ownership and the existence of an oral lease.

      Although this Court’s opinion quotes extensively from Shimko, nothing

in Shimko supports the conclusion that an oral lease can be used to shift

liability under 49 USC § 30106, thereby allowing Brewer Leasing to benefit

from violating federal and Texas laws and regulations.

      There is a huge difference between creating liability and evading

liability. The purpose of the 1956 law was to eliminate post-collision evasion

techniques. While it is true that the absence of a written lease is legally


                                        14
irrelevant in extending liability because an oral lease can create liability, it is

also true that one of the key pillars of the 1956 Act was the elimination of oral

leases to evade liability.

C.    There was no lease from Brewer Leasing to Texas Stretch.

      1.    There was no consideration.

            49 USC § 30106 uses the defined term “leases.” 49 CFR §

376.2(e) defines a lease to include the requirement of consideration. It is over

nine years since Diane Patterson died and no one has ever testified in answer

to interrogatories, deposition, or two jury trials to any consideration for a lease

from Brewer Leasing to Texas Stretch. No document has ever been marked

as an exhibit in either jury trial reflecting any consideration. The lack of

consideration defeats the existence of a lease by definition.

      2.    We looked for consideration.

            In 2007 the Patterson family requested the relevant banking

records of Brewer Leasing and Texas Stretch. Brewer Leasing objected to

the discovery.    The trial court ordered production, denied a Motion for

Rehearing, this Court denied a mandamus effort to conceal the bank records,

and the Supreme Court also denied the mandamus effort. In re Brewer

Leasing, 255 S.W.3d 708 (Tex. App. – Hou 1st 2008, mandamus den’d).


                                        15
There is no proof of payment from Texas Stretch to Brewer Leasing for an

oral lease of the Peterbilt tractor on June 15, 2006.

      3.    The reason for no consideration.

            There is no consideration because there is no oral lease from

Brewer Leasing to Texas Stretch. That’s why Texas Stretch never insured the

tractor. Mr. A. B. Brewer, the President of Brewer Leasing and Texas Stretch,

is an elderly gentleman with a lifetime of trucking experience. (6 RR, 79-80).

Mr. Lonnie Box, the General Manager of Brewer Leasing and Texas Stretch

with 25 years of experience, had a side company that did trucking company

compliance. (4RR, 138-140). They knew all the legal requirements, and they

met all the legal requirements by virtue of a written lease from Texas Stretch

to Brewer Leasing. (4RR, 148-151; 6RR, 80-91; Appendix 9).

            To conclude there was an oral lease from Brewer Leasing to

Texas Stretch this Court has to do all of the following:

            1.    Find consideration,
            2.    Decide when Brewer Leasing did not own the tractor it was
                  the lessor,
            3.    Decide when Texas Stretch owned the tractor it was the
                  lessee,
            4.    Decide both companies can violate 49 USC §§ 11107,
                  13906, 14102; 49 CFR § 376; and 37 Tx Admin Code 4.11,
            5.    Ignore four signs painted on the tractor contradicting the
                  oral lease, and


                                      16
            6.    Find termination of the written lease from Texas Stretch to
                  Brewer Leasing.

      4.    This Court also errs on the burden of proof and jury questions.

            To evade liability Brewer Leasing must prove the unplead

affirmative defense of shifting liability by virtue of a lease, thus they must

obtain a jury finding in their favor. This Court’s opinion incorrectly moves that

burden to the Patterson family.       As the court correctly notes, “It was

incumbent upon the party with the burden on the issue to request a correct

issue which was raised by the evidence and obtain a favorable answer in

order to prevail upon that part of the case...” Hooper v. Torres, 790 S.W.2d

757, 759 (Tex. App. – El Paso 1990, writ den’d).

            Brewer Leasing was the party with the burden on this issue. “We

are not liable because we just owned the tractor” was Brewer Leasing’s

argument. As the owner Brewer Leasing was liable unless they proved

compliance with 49 USC § 30106.             Compliance was not conclusively

established so it was waived by Brewer Leasing’s failure to request and obtain

a jury finding of a lease to Texas Stretch.

            As the party arguing (1) ownership of (2) a leased tractor with (3)

no criminal wrongdoing, Brewer Leasing had the burden to obtain those jury

findings. With no jury finding on any element, Brewer Leasing’s independent

                                       17
ground of defense is waived pursuant to Texas Rule of Civil Procedure 279.

Brewer Leasing never even argued this defense or cited the relevant statute.

The Patterson family briefed it out of completeness, and at pages 29-30 this

Court confuses our briefing with Brewer Leasing’s burden of proof and burden

of jury submission and findings.

            Brewer Leasing never argued they complied with 49 USC §

30106, probably because they knew they did not. Brewer Leasing also never

requested or obtained any jury finding pursuant to 49 USC § 30106.

      5.    The criminal wrongdoing clause in 49 USC § 30106(a)2 precludes
            any liability shifting away from Brewer Leasing.

            Any analysis of obstruction of justice compared to Brewer

Leasing’s concealment of the reports of 43,444 nanograms of cocaine

metabolite they received but hid from the police, assistant district attorney,

lawyers and litigants, and trial judge compels the conclusion there was

criminal wrongdoing on the part of Brewer Leasing. Texas Penal Code §§

37.09(a)1, 37.09(d)1, 37.08; Appendix 3, 4, 5, 6, 13; 11 RR, PX 503, 517,

520, 521, 522.

      6.    The big picture.

            Texas Stretch and Brewer Leasing lied for 1,000 days about who

employed Charles Hitchens. (Appendix 8, 12, 20). We pierced that lie.

                                      18
            They simultaneously concealed and lied about Charles Hitchens’

cocaine level. We pierced that lie and fraud. (Appendix 3, 4, 5, 6, 13).

            They lied about who owned Brewer Leasing: “Mr. Brewer owns

100% of Brewer Leasing” turned into Texas Stretch owned 100% of Brewer

Leasing. (4 RR, 141; 6 RR, 69-70; Appellee’s Brief). That successful lie

precluded us from proving Brewer Leasing’s liability as a single business

enterprise with Texas Stretch.

            The fourth big lie is the classic after the wreck fabrication of an

oral lease. In this case, an oral lease that would:

            •     be impossible, as Texas Stretch owned the tractor on the
                  date of the alleged lease to Texas Stretch

            •     be impossible, as Brewer Leasing did not own the tractor on
                  the date of the alleged lease by Brewer Leasing

            •     be violative of federal statutes

            •     be violative of federal regulations

            •     be violative of Texas statutes

            •     be violative of Texas regulations

            •     create a lessee with no liability insurance

            •     contradict and reverse a written lease

            •     contradict and reverse four painted placards on the tractor


                                      19
            •     contradict the entire theory and purpose of the 1956 Act
                  and companion Texas law.

            Brewer Leasing testimonially admitted liability for a reason. (4 RR

138-40, 151; 6 RR 70).       No lawyer for Brewer Leasing ever filed any

document with any court claiming an oral lease evades statutory liability for

a reason. But this Court’s opinion revives the legal theory that an oral lease

can be used to shift liability, driving a stake through the 1956 federal law’s

heart and the parallel Texas legislation.

                                     III.
                               A factual error.

      The opinion contains one factual error. It is minor, but if it created an

unfavorable impression it needs to be corrected. At page four the Court

writes “the jury was then dismissed,” but that is erroneous.

      On Monday, April 6, the April 4 settlement with Texas Stretch was

implemented. The venire panel then answered the jury questionnaire, oral

voir dire was conducted, the jury was seated, and a jury trial progressed for

more than a week. During the second week, shortly before the Patterson

family called their last damage witnesses, Ray Bellew & Sons settled.

Charles Hitchens had already stipulated to 100% fault and invoked his

privilege against self-incrimination. At that point Charles Hitchens waived the


                                      20
jury with the Patterson family’s agreement. Evidence was concluded and

closing arguments were then given to the court without a jury.

                              CONCLUSION

     This Court should withdraw its opinion of June 30, 2015, delete the

erroneous paragraph at pages 27-28, and reverse and render judgment

against Brewer Leasing for the negligent driving of Charles Hitchens while

operating a Heil trailer owned by Brewer Leasing with no lease, or while

operating a Peterbilt tractor that Brewer Leasing is estopped to deny owning

with no written lease to any other company combined with Brewer Leasing’s

criminal wrongdoing.

                                   Respectfully Submitted,

                                   HERZOG & CARP, P.C.

                                   By:     /S/Harry Herzog
                                          Harry Herzog
                                          State Bar No. 09548200
                                          P.O. Box 218845
                                          Houston, Texas 77218-8845
                                          (713) 781-7500 Telephone
                                          (713) 781-4797 Facsimile
                                          HHerzog@hcmlegal.com

                                   COUNSEL FOR APPELLANTS




                                     21
                                    By:     /S/Dorothea Vidal
                                           Dorothea “Dotty” L. Vidal
                                           State Bar No. 20578100
                                           dvidal@gpd.com
                                           Geary, Porter & Donovan, P.C.
                                           One Bent Tree Tower
                                           16475 Dallas Parkway, Suite 400
                                           Addison, Texas 75001-6837
                                           P.O. Box 700248
                                           Dallas, Texas 75370-0248
                                           972-349-2211 Telephone
                                           972-931-9901 Facsimile

                                    CO-COUNSEL FOR APPELLANTS

                        CERTIFICATE OF SERVICE

      This is to certify that in accordance with the Texas Rules of Appellate

Procedure a true and correct copy of the above and foregoing Brief of

Appellants has been sent to all parties and/or counsel of record listed below

via electronic filing and email on July 15, 2015.

      George W. Long
      Attorney at Law
      2000 East42nd Street, Suite G110
      Odessa, Texas 79762
      george.long.mexico@gmail.com


                                               /S/ Harry Herzog
                                                Harry Herzog




                                      22
                    CERTIFICATE OF COMPLIANCE

    This brief complies with the typeface and length requirements of Texas

Rule of Appellate Procedure 9.4 because:

    (1)    This brief complies with typeface and the type style requirements

           of Rule 9.4(e) because the brief has been prepared in a

           conventional typeface using WordPerfect with Arial 14-point font.

    (2)    This brief complies with the length requirements of Rule

           9.4(i)(2)(D) because it contains 4,445, excluding the parts of the

           brief exempted by Rule 9.4(i)(1).



                                               /S/Harry Herzog
                                                Harry Herzog
                                                Attorney for Appellants




                                    23
                                   APPENDIX

Appendices 3-6, 8, 9, 12 and 13 were in the original Appellants’ Brief.
Appendix 20 contains PX 335, referred to in Appendix 8.

3    Brewer Leasing test results to HPD                   (PX 263)

4    DA report declining prosecution                      (CR 75)

5    Mr. Patterson’s affidavit on fraud                   (Supp CR 82)

6    Mr. Herzog’s affidavit on fraud                      (Supp CR 75)


8    W ho employed Charles Hitchens                       (Summary of exhibits)

9    Brewer Leasing lease to Texas Stretch                (PX 302)


12   Mr. Herzog’s two affidavits on pleadings

13   Plaintiffs’ Fourth Amended Petition                  (CR 29)


20   Supplemental Response of Texas Stretch to
     Plaintiffs’ Motion for Partial Summary Judgment      (PX 335)




                                          24
Appendix
   3
                                         713&91&81:lJ
    Q7/25/2666       21:46     71 36'316883                       TEYAS ·.;TPETQ-1




                                                   21 03 SkJnner IQad
                                                  Houston, T~~ 77093
                                                     713-691-2779
                                                   Fvc. 713·691-6883




              Attention:                                     Date:
                                                             Off'te~   Locadon:       I

               Fax Number·                                  Phone Number.

              0 Urgent
              a ReplyASAP
              Q Plcuc comment
             ,~ Plccue Revtew
             )"~;/or. your Information

              Total pages. Including cnver:      2
              Comments:

                T     -~e"'f- ~(rJ). Jl/s                   h/A-e /1> -t es J-
                  Of)j Pssl acc/Je,f                        Te £' ;f-
                                                                          7 Z, )~ Jc11fA
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193 of 252
                                                                                           00158
      87/2~'~0eG         21:~0           n   :t&9l&IJBJ
                                                                                                                                               Pil.GE   eJ
    Fax sent tly I.!Sin9 OP Informer vt 0       0510212006     A   51·04 Pl\A   P 4 of 8




                      Fl•etSc:reen. Ltd.
                     15000 Westem Place
                      Sul!e 480
                      For1 Worth. Texaa 76107


                     ATTENTION:
                      Bulch Brewer
                      Te>ras Stretch. Inc.                                                    Participant: Charles A Hitchens
                      2103 Skinner Road
                     Houston. TX 7709J
                                                                                                    --166!:1
                                                                                           PartJc:rpant 10:    337



                                                                                    Results of DOT Controlled Subs.unce Test
                                Record Starvs: Neg alive                                      Let>oralory LebOne. Inc.
                                      Te>st T1-pe   Pr~·Emproyment                                        10101 Renner    Boul..-:~111

                         Colleetion   DateTTim(Ji§¥20.le~                                                 Leneu, KS 66219-9752
                                   BolCh 10:        20060502                              CollectJon Sile Tnaa StreiCh, me.
                                Soeclmen 10:        45213879                                              2103 Skinner Road
                          Dare COC RecelveG:        05102/2006                                            Hou&ton. TX 77003
                                Sample Type:        Urrne                             Specimen Collector. Douglns A Schopp~

                                         Submns;e Testl!d Result                                        Sub~nceJ~ ~
                                             Amphflamin~s          Negat~~~e                                      Cocaine Negalive
                                                 1\Aariju:ma Negative                                             0Ptales Nogarive
                                              Pheneyt;lidine Negative
                     ----------~~--~-----~------------------------------------------------~
                        In aceordonc;e wilh epplrcable I=P.det:~l requirement&. my determrnationr'vllrrlic:~llon is as Gbave




                                                                                                                          5/212006
                                             Garrett R Tucker Ill. MO. MPH                                           Venfic;ation Date




                   Results ror Cherie!$ A 1-lorchens. l'el'tielpent 10: 337 • • • • • -'865)                         Primed an 51212006   ar   4·42:36PM




                                                                                                                                                             00114
92 of 252
                                                                                                                                                                                                    ;
                                                                                                                                                                                                    i
                                                                                                                                                               ~··~·--   -· -~~·-~--··------,.·-~   ;



                                       71 ::{,'H{,88J
                                                                                                                                               PAGE      J::!:.'
   ~.;n ~.enl by :.~~ng OP ln:o=e~ vi 0       06/21~006 10 J6 1A AM          9 2 or 2




                    Fl~tScreen,       Ud.
                    6000 Western Place
                    Su•te   480
                    Fort Worth. Texas 76107


                    ATTENTION:
                    3uteh 8ro:wer
                                                                                          P;~rti,ipant:   Charle$ Hitcl'lem
                    Texas Sir~. '"'·
                    2103 Sklnl'er Road                                                  PartrcipaniiO.         337
                    HouliiDn, l'X n093                                                          SSN:-888S

                                                                                Results of OOT Contr~lled Substance Test
                              RKord S:"all.ls. Posltwe                                    Laboratory: LabOnc!,lnc.
                                     Test Type Post-3cc:rfent T~>St                                       10101 Renner    Boul~ard

                        Colleet1on   OaleiTrm~~~~                                                         Lenexa. KS 66219-9752
                                      Batch 10. 20060621                              Collection Srte. Teqs Slrutch. Inc.
                               Specimen 10· 36839345                                                   2 I 03 SIU,.er Road
                         Oate COC Received: 001201'20C6                                                ~u~f!Oft. TX 77093
                               S•tnple Type· U11ne                                SPecimen Collector DOUGLAS 4 SCHOPPE

                                       Sub5Qnct     T~stv<J   RHult                                  Substanc;•      Tesl~    ~
                                            Amph~mr11n     Nevati,..                                             CocaillCI POSITIVE
                    f                           ManjuatU N409ative                                                Opiates Nel!B"M
                    I.                       Phencyc'oelim Negative




                                            Ga11etr R. Tucker Ill. MO. MPH                                            Verilicalion Dete




                   P.esults for Charlc-; Hitcnem:. P:zr1icr;,:ant 10· 337 • • • •l-00651                             P<~r:led 01"1 6/21/2006 .:t! 9 4~ 14AM




                                                                                                                                                                               00115
93 of2S2
        SYSTEM ADVISORY: REPORT ENTERED USING PERSONAL COMPUTER VER-5.00-W
      *******************************************************************
      * ENTRY DEVICE: MOTOROLA MW-520 736SDL0504 345                      *
      * ENTRY FROM DATK-062906 TIME-1345 TO DATE~062906 TIME-1444         *
      *   TRANSFER DEVICE: COMPAQ TOWER 220614 S77 WIN2000    VER. 5.00-W*
      * TRANSFER DATE-062906 TIME-1656     LOAD DATE-070206 TIME-1019     *
      * LOCATION OF OFFENSE: POLICE DISTRICT-DISTRICT 20        DIST-20   *
      *******************************************************************
        EVIDENCE WAS TAGGED-N      LATENT PRINTS WERE LIFTED AT A SCENE-N




Supplement entered by =   89942



No-0002

Offense- DEATH DUE TO TRAFFIC ACCIDENT
                           Street location information
Number-    14800 Name-KATY                      Type-FWY       Suffix-
Apt no-      Name-HWY 6                     Type-         Suffix-N
Date of offense-06/15/06                 Date of supplement-07/27/06
Compl(s) L~st-PATTERSON        First-DIANE      Middle-YARBROUGH
                      Recovered stolen vehicles information
 Recovery location-                                   District-    Beat-   00
 Stored-                          by-
Officer1-D.L. HARWELL          Emp#-085506 Shift-1 Div/Station-MOBILITY

                                  SUPPLEMENT NARRATIVE

JFFICER HARWELL DOING A FOLLOW-UP ON FATALITY ON 14800 KATY FWY ON 7/26/06.
JFFICER HARWELL CALLED TEXAS STRETCH TRUCKING COMPANY ON 7/26/06 AND TALKED TO
:.L. BREWER.HE FAXED ME THE TOXICOLOGY REPORT OF CHARLES HITCHENS FOR HIS
PRE-EMPLOYMENT AND POST ACCIDENT URINE TEST. THE PRE-TEST SHOWED NEGATIVE ON ALL
3UBSTANCES WHICH INCLUDE: AMPHETAMINES, MARIJUANA-, PHENCYCLIDINA, COCAINE·, AND
)PlATES. THE POST-ACCIDENT TEST SHOWED POSITIVE ON COCAINE. OFFICER TALKED TO
:HIEF INTAKE DA J. ORTIZ IF WE SHOULD SUBPOENA THE LAB RECORDS TO GET THE
2UANTITY OF COCAINE IN HIS SYSTEM. HE TOLD ME TO CONTACT THE LAB AND SEE IF
rHERE WERE QUANTITATIVE RESULTS. I CONTACTED LABONE INC AT 1-913-888-8397 AND
rHEY SAID THERE ARE QUANTITY RESULTS IF THE ACCOUNT IS SET UP FOR IT. I WAS TOLD
ro TALK TO DON HAHN AT 1-800-728-4064 X1632 TO PURCHASE A LITIGATION KIT FOR
~200.00. I WILL TALK TO THEDA TOMORROW AND SEE IF THEY WANT TO PURSUE THIS
:..ITIGATION KIT. TALKED TO METRO PD, OFF GOODNIGHT ABOUT THE SCALE DRAWING. HE
;TATED OFF PORTER HAS JUST COME BACK TO DUTY AND HAS NOT FINISHED THE SCALE




   120 of 252
Appendix
   4
03/08/2013 03:57:29 PM                                    713-755-1451                                              Page 33/57




      Case Decline Report
        FURTHER INVESTIGATION NEEDED

        Defendant First: -Charles                             Defendant Last: Hitcnens
        Date of Off!nse:
                                            0
                           6115'2GO'f'-'C.-t::> ~               Date of Reject: 611:1/'ZJXJT
                Offllnsa: Intoxication Manslaughles:
           Officer First: DL                                      Officer Last: Harwell
                Agency: HOUSTON POUCE DEPARTMENT
          Witness Rrst: Diane                                    Witness Last: Patterson
              ADA First: Warren                                      ADA Last: Dlepraam
                  OR#: 92975406
                Reason:
             VATS REVIEWED CASE

             The defendant was driving a tractor trailer eastboUnd in the 148:10 block of the Katy Freeway
             just west of HigtMray 6. Sever.ll Precinct Feu de~ies had stopped freeway traffiC because
             they were escorting an Clllef$ize load. The defendant was not able to see the stq:Jped traffic
             ahead of him foe some unknown reason. He drove into sever.~l cars that had stopped. The
             complainant's vehicle caught fire and she was kiHed.

             The sole act of negligence so far in the case is failing to maintain a proper lookout.
             HONeYer, the defendant has not given a complete statement abaJt why he was looking
             doNn. hoN long he was looking doW'n, etc.

             In a case d this nature, speed is aitical. The HPD has been unable to determine as~ of
             the defendanrs tractoc trailer prior to impact. 1tis l.l'lki"'INTT if this vehicle had satellite -
             trackill;J capablity that wuold be r:1 assistance. Of the fifteen witnesses that HPD spoke to
             (II'ICI!dng the C4 deputies), only a couple cJ them mention speed. Their opinions on speed
             should be more extensively investigated.

             The defent:IMt, due to federal ~tory reqlirements, sltmitted to a uir&ysis -wnich
             tested positive fer cocaine. It Is a.r«nown whether or not the private lab tested for actual
             cocaine, cocaine metabolites, cr quantifted the amourt. Asrl today, tlis lnfamation has not
             been obtaned. Therafore, it is UOOlc:w1 whether the ill'l'lOI.ri rl cocaine is a large dose
             three days ago. s small dose two days cg:~, etc. Additionally, officers at the scene ncted no
             sigr6 rl impairment on the defendant. This means that either they missed the signs d
             cocaine use or that the cocaine CJJ31'1Uty was insufficient to cause impairment. That
             Questioo, hoNever, can't be answered until the adual amounts are obtained by HPD.

             lastly, altho.Jgh this office is a pmsecutorial- off.ce a'ld not an investigatiVe office, the report
             and photos were submitted to a ~vale reconstructionis t for review. Fran the information
             provided to him, he was unable to answel' the above questions.




                                                                                                                                       I
                                                                                                                            EXHIBIT

                                                                                                                                 E.
                                                                                                                                  75
Appendix
   5
02/28/2012 04:32:32 PM                        713-755-1451                              Page 71 /75




                                                CAUSE NO. 2011-64488

           MARCUS BRENT PATTERSON,                               §                IN THE DISTRICT COURT
           INDIVIDUALLY, AS INDEPENDENT                          §
           ADMINISTRATOR OF THE ESTATE OF                        §
           DIANE PATTERSON, AS NEXT                              §
           FRIEND OF DANIEL PATTERSON,                           §
           DANAEPATTERSON,oodDANffiL                             §
           PATTERSON (now 18 years of age),                      §
                                                                 §
                         Plaintiffs,                             §
                                                                 §
           v.                                                    §               3341h JUDICIAL DISTRICT
                                                                 §
           BREWER LEASING, INC.                                  §
                                                                 §
                          Defendant.                             §               HARRIS COUNTY, TEXAS

                                                      AFFIDAVIT

           STATE OF TEXAS                 §
                                          §
           COUNTY OF HARRIS               §

                  BEFORE ME, the undersigned authority, on this day personally appeared Marcus Brent

           Patterson. After being duly sworn Mr. Patterson stated under oath as follows:

           1.     Backa:round.

                  "My name is Marcus Patterson. I am over the age of 18 and have never been
                  convicted of a crime. Every statement contained in this affidavit is true ood correct.

                  I was married to Diane Patterson for 21 years before her death. We adopted two
                  children at birth, Daniel Patterson and Danae Patterson.

                  On June 15, 2006 my wife was killed in a multi-vehicle collision on Interstate I 0,
                  just west of Highway 6. I first learned of the collision when I was called by the
                  medical examiner to assist them in gaining dental records to verify the identity of my
                  wife.

                  After the wreck I heard a rumor, not verified at the time, that the driver of one of the
                  vehicles involved in the collision was using cocaine or tested positive for cocaine.


                                                   Page 1 of 4


                                                                                       EXHIBIT               10
                                                                                                              82
02/28/2012 04:32:32 PM                     713-755-1451                               Page 72/75




                 In January or February of2007 the Houston Police Department finally released their
                 report with regard to the collision. The Houston Police Department report reflects
                 that Mr. Charles Hitchens, driving a Brewer Leasing vehicle, used an illegal
                 substance, and the use of that illegal substance was a factor in the collision. Before
                 I received the Houston Police Department report of the collision I had no other
                 written documentation with regard to who had used an illegal substance in the
                 collision.

           2.    My personal knowlede-e.

                 I have personal knowledge of the following:

                 From the time I first read the Houston Police Department report through the time of
                 trial, which began April6, 2009 and ended the following week, I never learned the
                 quantity or amount of cocaine that was used, and I never learned of any scientific
                 evidence in respect to the cocaine level in Mr. Hitchens at the time of the collision.
                 We attempted to ascertain this information, and we discussed this in one or more
                 phone calls with law enforcement personnel, but we were never able to learn the
                 amount of cocaine that was in Mr. Hitchens' system at the time of the collision. In
                 discussions that Mr. Herzog and I had with law enforcement personnel Mr. Herzog
                 told the law enforcement personnel that he also still did not know the amount of
                 cocaine in Mr. Hitchens' system at the time ofthe collision.

                 At some point in 2008 (I do not recall the date) we finally got the sworn testimony
                 of Mr. Hitchens, but Mr. Hitchens decided to decline to answer questions and
                 invoked his right against self-incrimination. Therefore, we were unable to learn from
                 Mr. Hitchens when he had ingested cocaine, how much he ingested, and what his
                 level of cocaine was at the time of the collision.

                 At some point before the trial Mr. Herzog showed me a Motion that Brewer Leasing
                 had filed with the Court (I believe in conjunction with other defendants, including
                 Mr. Hitchens) to exclude the evidence from the Houston Police Department
                 investigation that Mr. Hitchens had cocaine in his system at the time of the collision.
                 We had no evidence that indicated the amount of cocaine in Mr. Hitchens' system.
                 Brewer Leasing was contending in writing in the document filed with the Court that
                 there was no evidence or quantification as to how much cocaine was in his system,
                 and that without that evidence we could not show that the cocaine had any relevance
                 to his driving behavior. We were unable to dispute the Motion.

                 Starting Friday afternoon April3 and continuing most ofthe day Saturday, April4,
                 2009, a variety of settlement discussions were initiated by individuals other than me.
                 During this time I had no information that indicated the quantity or specific level of
                 cocaine in Mr. Hitchens' system at the time of the collision.


                                                  Page 2 of 4




                                                                                                           83
02/28/2012 04:32:32 PM                       713-755-1451                                 Page 73/75




                 In April2009, before trial, during settlement discussions, and during the trial I never
                 knew when Mr. Hichens ingested cocaine, how much cocaine he ingested, or what
                 the level of cocaine was in his system at the time of the collision.

                 In privileged discussions relating to filing this suit I learned for the first time that Mr.
                 Hitchens had a level of 43,444 nanograms. I also learned for the first time that
                 Brewer Leasing and its lawyers knew this information as early as February of2007,
                 discussed the information between themselves and the insurance carrier in February
                 and March of2007, concealed it for two years, and lied to the Court in writing when
                 they filed the Motion just before trial to exclude the evidence of cocaine. I was
                 furious at the abuse of the judicial system. I still am shocked and angry at their
                 conduct.

                 If I had known that Brewer Leasing was concealing the truth for two years and had
                 lied to the judge, to me, my children, my lawyer, and other parties and lawyers in the
                 written document that they filed with the Court, I would not have entered into an
                 agreement with them to not execute on their assets or take an assignment in the future
                 of their rights.

                 Brewer Leasing's failure to tell me the truth, and their specific false written
                 statements with regard to Mr. Hitchens cocaine level, were essential ingredients in
                 obtaining my consent to not execute against the assets of Brewer Leasing and were
                 essential ingredients to my agreement to later step into the shoes of Brewer Leasing
                 in its dispute with its insurance carrier, Home State County Mutual Insurance
                 Company. I would never have agreed, signed, or allowed my lawyer to negotiate the
                 Covenant to Not Execute and Agreement to Assign Claims in the future that were
                 negotiated and agreed to that weekend if I had known then what I know now with
                 respect to the truth concerning Mr. Hitchens' cocaine level and the truth with respect
                 to Brewer Leasing's concealment of that cocaine level for over two years.

                 Now I am in a position of having to continue the lawsuit process, regardless of its
                 turmoil and cost, to get at the truth of what happened. Brewer Leasing cheated me,
                 my children, our lawyer, the other injured people, their lawyers, Williams Brothers
                 and Bellew & Sons, and their lawyers."

                 Further Affiant sayeth not.




                                                        Page 3 of 4




                                                                                                                84
02/28/2012 04:32:32 PM                713-755-1451                       Page 74/75




                 SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand and seal

          of office on the   a1tf.-day of   r~ f u({




                                               Page 4 of 4




                                                                                         85
Appendix
   6
02/28/2012 04:32:32 PM                       713-755-1451                             Page 64/75




                                               CAUSE NO. 2011-64488

           MARCUS BRENT PATTERSON,                              §               IN THE DISTRICT COURT
           INDIVIDUALLY, AS INDEPENDENT                         §
           ADMINISTRATOR OF THE ESTATE OF                       §
           DIANE PATTERSON, AS NEXT                             §
           FRIEND OF DANIEL PATTERSON,                          §
           DANAE PATTERSON, and DANIEL                          §
           PATTERSON (now 18 years of age),                     §
                                                                §
                         Plaintiffs,                            §
                                                                §
           v.                                                   §               334th JUDICIAL DISTRICT
                                                                §
           BREWER LEASING, INC.                                 §
                                                                §
                         Defendant.                             §               HARRIS COUNTY, TEXAS

                                                     AFFIDAVIT

           STATE OF TEXAS                §
                                         §
           COUNTY OF HARRIS              §

                  BEFORE ME, the undersigned authority, on this day personally appeared Harry Herzog.

           After being duly sworn Mr. Herzog stated under oath as follows:

                  "My name is Harry Herzog. I am over the age of 18, of sound mind, and have never
                  been arrested, charged, or convicted of any crime. I have personal knowledge of
                  every statement contained in this affidavit. Every statement in this affidavit is true
                  and correct.

           I.     Backeround.

                  I was hired by Marcus Patterson to represent his family with regard to the death of
                  his wife, Diane Patterson. Despite many efforts on our part we were unable to
                  ascertain precisely who was responsible for the collision, or begin a comprehensive
                  and detailed investigation of who was responsible for the collision, until the Houston
                  Police Department accident report was released. In January or February of 2007 the
                  police report was finally released relating to the collision that killed Diane six or
                  seven months earlier.



                                                  Page 1 of 7


                                                                                     EXHIBIT           Cj
                                                                                                           75
02/28/2012 04:32:32 PM                     713-755-1451                               Page 65/75




                 The HPD accident report indicates Mr. Hitchens was responsible for the collision and
                 an illegal substance contributed to the collision. (See Exhibit 3, second page, factors
                 22 and 68). In the course of the next two years I engaged in a variety of conduct in
                 an effort to ascertain exactly what illegal substance Mr. Hitchens consumed, what the
                 level of the substance was, and to obtain proof that the substance impaired his driving
                 behavior.

                 I was able to learn that Mr. Hitchens tested positive for cocaine. (Exhibit 4).
                 However, we were never able to learn before the April 6, 2009 trial what the level or
                 quantification of cocaine was. Mr. Elwood, a skillful and capable attorney working
                 with Mr. Ramey on behalf of defendant Ray Bellew & Sons, attempted to obtain lab
                 testing results by a Deposition on Written Questions. He failed. Since then I have
                 spoken with the responsible individual at the deposition company who advised me
                 that the lab refused to comply with the Deposition on Written Questions and refused
                 to provide any information. Mr. Elwood has confirmed for me on several occasions
                 that he was unable to obtain any satisfactory response to his Deposition on Written
                 Questions.

                 While I was working with Mr. Elwood in an attempt to ascertain the level of cocaine
                 I was also working with a variety of skillful and experienced plaintiffs counsel
                 representing various injured individuals. None of us were able to obtain the
                 infonnation that quantified the level of cocaine.

                 In addition to working with other plaintiffs counsel and with Mr. Elwood on behalf
                 of a defendant, I also attempted to ascertain the cocaine level by communicating with
                 the Harris County Assistant District Attorney, Warren Diepraam, who was the point
                 person with respect to the criminal investigation of Mr. Hitchens. Mr. Diepraam
                 assured me that he had been unable to ascertain the level or quantification of cocaine
                 in Mr. Hitchens' system, and without that infonnation he was unable to charge Mr.
                 Hitchens with homicide.

                 Brewer Leasing filed a document with the Court in which Brewer Leasing contended
                 that there was "no evidence that Mr. Hitchens was impaired," that there was "no
                 quantification as to the amount of cocaine" in Mr. Hitchens' system, that there was
                 "no information" as to whether the substance tested was cocaine or a cocaine
                 metabolite, and that since there was no quantification on the amount of cocaine, no
                 information as to whether it was cocaine or cocaine metabolite, and there was no
                 evidence that Mr. Hitchens was impaired, the positive drug test on Mr. Hitchens for
                 the presence of cocaine should not be admitted into evidence at the trial of the case.
                 With great reluctance Mr. Elwood and I agreed to the proposed Order since we had
                 no information that contradicted these claims by Brewer Leasing.




                                                 Page 2 of 7




                                                                                                           76
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          II.    No neelieence.

                 The claims by Home State that I was negligent with regard to failing to discover the
                 cocaine level of Mr. Hitchens, and that I learned of the cocaine level of Mr. Hitchens
                 in August of2010, are completely false and unsupported by any facts.

                 I spent a significant amount oftime and a great deal of effort trying to investigate and
                 prove the cocaine level of Mr. Hitchens. My efforts, and the efforts of the other
                 lawyers, exceeded ordinary care. In light of the efforts by Brewer Leasing and its
                 counsel to conceal the truth I do not know how any lawyer representing any plaintiff
                 or any defendant could have obtained the truth. I am not an expert on criminal
                 procedure so I do not know what the limits are with regard to the subpoena power of
                 an Assistant District Attorney or a grand jury, but it appears that the only way anyone
                 could have overcome the efforts to conceal the cocaine level would have been for the
                 District Attorney's office or a grand jury to subpoena the records from the testing
                 service.

                 The claim that I first learned of the cocaine level in August 2010 is a false fantasy.
                 In August 201 0 for the first time Mike Hays and his finn made available to me "the
                 file" of George Jackson with regard to the underlying case. But the reality was that
                 the documents I was shown were limited. I did not see the February 2007letter from
                 Mr. Hays, the investigator's report, or the initial report of defense counsel. In
                 addition, numerous other boxes containing numerous other documents were not
                 revealed to me. None of Mr. Jackson's emails were provided (many are still not
                 produced), his letter to the mediator was not provided (and still has not been
                 provided), his notes from his first meeting with me were not provided (and still have
                 not been provided), and various other documents were not revealed to me.

                 I first saw Mike Hays'letter ofFebruary 2007 and George Jackson's initial defense
                 attorney status report either the last week of October or the first week of November
                 2010. I saw them from one of two sources. First, Home State finally produced
                 documents responsive to a Request for Production many, many weeks after the
                 responses were due. Their lawyer gave me a disc with thousands of pages of
                 documents on it at the conclusion of a court hearing that took place on Friday,
                 October 22, 2010. In addition, Home State sent Requests for Production which
                 compelled the production of various documents from Mr. Hays' firm, including Mr.
                 Jackson's file. I immediately complied with the Request for Production and tried to
                 produce documents within a week, rather than waiting thirty days. When I went to
                 Mr. Hays' office to coordinate the production and to meet with Mr. Nick Morrow (an
                 attorney for Home State who decided not to attend), I learned for the first time that
                 Mr. Hays had additional boxes of documents that he was "now producing." I
                 watched in amazement as box after box were gradually brought to me, all of which
                 had been concealed from me in August. I, of course, rapidly scanned through the


                                                  Page 3 of 7




                                                                                                            77
02/28/2012 04:32:32 PM                       713-755-1451                                  Page 67/75




                  boxes and had the material in the boxes copied.

                  The materials that revealed the cocaine level were produced in late October 2010
                  from Home State and from Mr. Hays. I have vivid memories of my shock, anger, and
                  disgust when I first saw the information.

                  Another false claim (made with no evidentiary support) was that I designated Mr.
                  Garrett Tucker as an expert because I knew the results of Mr. Hitchens' cocaine test.
                  The reality is Mr. Tucker never spoke with me. He refused to speak with me or
                  anyone in my office (other than to say he would not speak with us). I designated Mr.
                  Tucker as an expert solely to open the possibility that if I learned what the cocaine
                  level in Mr. Hitchens system was I would have a witness who could testify to the jury
                  at the time of trial.

                  With regard to the filing of the Bill of Review, we tried to place the case in the 334' 11 •
                  We sent a cover sheet noting for the clerk that the case had to be in the 3341h due to
                  its nature as a Bill of Review, with the underlying judgment having been issued from
                  the 3341h. (See Exhibit 11).

                  Between early November 2010 and the filing of the Bill ofReview lawsuit in October
                  2011 a variety of activity occurred. It would be accurate to characterize the activity
                  as follows: first, shock, anger, and dismay at the concealment of the cocaine level
                  of Mr. Hitchens. Second, an investigation, as best as we could conduct, with regard
                  to how the matter was concealed and how the truth could be proven. This involved,
                  in part, the deposition of Mr. Jackson. The deposition of Mr. Jackson was delayed
                  and moved, at his request or at his counsel's request, to June of2011. Third~ without
                  waiving the attorney client privilege or the work product exemption, it is accurate to
                  say that after the investigation was completed the matter had to be discussed among
                  the various individuals involved on our team and with Mr. Patterson. The decision
                  had to be made whether to file the Bill of Review, and that decision was certainly not
                  made lightly.

           III.   Inducement.

                  In 1anuary 2009 this case seemed incapable of settlements.

                  On January 28, 2009 I was diagnosed with cancer. I delayed treatment to get the
                  Patterson case resolved. With the courteous assistance of opposing counsel and
                  Judge McCally, the trial setting was adjusted from a two week docket of March 30---
                  April 10 to a preferential setting to start April 6, 2009: this allowed me to schedule
                  surgery with a level of comfort that I would not be in trial after April 24.

                  On the afternoon of Friday, April 3, 2009, I received an unexpected call from


                                                    Page 4 of 7




                                                                                                                 78
02/28/2012 04:32:32 PM                     713-755-1451                               Page 68/75




                 Amanda Hilty. She was lead counsel for Sagamore Insurance in their suit against
                 Texas Stretch (Hitchens' employer) seeking to deny any coverage or duty to defend.
                 For the first and only time Sagamore made a realistic, legitimate settlement offer.
                 Thus began 24 hours of unanticipated, complex, multi-party settlement discussions.
                 At no time during these discussions did I know that the Joint Motion to exclude Mr.
                 Hitchens' positive drug test result (Exhibit 8) was full of lies, false
                 misrepresentations, and concealment of the truth.

                 I, my wife, and my son had been friends with Marcus, Diane, Daniel, and Danae
                 Patterson for many years when Diane was killed. Marcus trusted me and relied on
                 my legal advice as we navigated the maze that became the legal landscape of the
                 dispute. The wreck generated three lawsuits involving the Patterson family, with over
                 a dozen parties and dozens of witnesses, at that time. I never would have advised
                 Marcus to accept an assignment of claims in the future or foreclose his ability to
                 recover uninsured punitive damages from the assets of Brewer Leasing if I had
                 known the truth about Mr. Hitchens' cocaine level. I was deceived by Brewer
                 Leasing in this regard.

           IV.   Gross neflliJ:ence.

                 Without proof of a cocaine level Icouldnotprove Mr. Hitchens operated the 79,940
                 pound vehicle while impaired by cocaine, and without proof of impairment I did not
                 think gross negligence could be proven by clear and convincing evidence to all
                 twelve jurors selected.

                 I had been a licensed attorney for over 26 years at the time of the trial. I had been
                 board certified in civil trial law for 20 years and civil appellate law for 16 years. I
                 had recovered punitive damage awards ten times for plaintiffs, and my clients had
                 been hit for punitive damages four times, so I had significant trial and appellate
                 experience on all sides of the punitive damages debate. One of the driving reasons
                 for accepting the two agreements with Brewer Leasing and then dropping the claim
                 for punitives (which was not part of any agreement) was the inability to prove
                 cocaine impairment.

                 While it is impossible to perfectly predict the behavior of an opposing lawyer or a
                 jury, I believe any human being with knowledge of the whole truth has to agree that
                 Mr. Hitchens' driving that almost killed Sheryl Skinner and then did kill Diane
                 Patterson was grossly negligent behavior. No one can seriously claim that driving
                 79,940 pounds at highway speed while impaired by 43, 444 nanograms of cocaine so
                 that on a flat highway for a mile, on a clear morning, they don't see eight stopped
                 vehicles blocking all lanes of traffic, one or two motorcycle escort vehicles with
                 emergency flashing lights in operation, and an 198,000 pound, 160 feet long, 50
                 wheeled vehicle approaching is not grossly negligent.


                                                  Page 5 of 7




                                                                                                           79
02/28/2012 04:32:32 PM                     713-755-1451                             Page 69/75




           V.    Exhibits.

                 Attached to the Motion for Partial Summary Judgment are true and correct copies of
                 the following documents:

                 1.      LabOne form reflecting Charles Hitchens' specimen collected June 15, 2006
                         at 1:29pm (produced by defendants in collision case)~

                 2.      Tx.DOT form reflecting Charles Hitchens' speimen collected June 15,2006
                         at 1:24pm (produced by defendants in collision case);

                 3.      HPD collision report (verified by HPD in deposition of investigating officer
                         Dane Harwell);

                 4.      FleeScreen results ofTxDOT test (produced by defendants in collision case);

                 5.      Mike Hays' letter to Geroge Jackson dated February 12, 2007 (produced by
                         Mike Hays);

                 6.      George Jackson's February 26, 2007 Initial Status Report to Home State
                         (produced by Home State);

                 7.      Harris County Case Decline report (produced by Brewer Leasing);

                 8.      Joint Motion to Exclude drug test (filed by Brewer Leasing);

                 9.      This affidavit (the original);

                 10.     The affidavit of Marcus Patterson (the original);

                 11.     Civil Case Information Sheet which I signed;

                 12.     Aerial photo of scene on June 15, 2006 (produced by HPD);

                 13.     Photo of Brewer Leasing vehicle at scene (produced by Williams Brothers);
                         and

                 14.     Photo of Diane Patterson's Ford Expedition at scene (produced byTxDOT)."

                 Further Affiant sayeth not.


                                                          Harry Herzog


                                                      Page 6 of 7




                                                                                                        80
02/28/2012 04:32:32 PM                         713-755-1451          Page 70/75




                    DQtN. .ENI£ DIC1(SON
                    MY COMMISSION exPIRES
                         Qlillllel' 17, 2015




                                                       Page 7 of 7




                                                                                  81
Appendix
   8
                    Who employed Charles Hitchens?

     In the first case Texas Stretch spent 1,000 days denying employing

Charles Hitchens while Brewer Leasing implied they were the employer. The

documentary evidence conclusively proved the opposite. Charles Hitchens

applied for a job with Texas Stretch (PX 307), signed an employment

agreement with Texas Stretch (PX 308), received Texas Stretch trucker

policies (PX 309), gave his time to Texas Stretch (PX 310), was paid by

Texas Stretch (PX 311), and was dispatched on June 15, 2006 by Texas

Stretch (PX 324; AB p. 109) while hauling a load for Texas Stretch (PX 325).

After the General Manager of both companies testified that the lawyerly

position was ludicrous and that Texas Stretch employed Charles Hitchens,

then and only then – the week before the first trial – Texas Stretch finally

admitted it employed Charles Hitchens. (PX 335).
Appendix
   9
                                            LEASEAGR.EEHENT




  TRACTOR     OWNE:R.'-LT-ri"-::x_A_s_S_0_~_t_.:._j(_c....:_)l__..,:.~_n~_c_s.   s. No._ _ _ _ _ __

                                                                        _ _ _PHONE No. 713 6 11 J.. I '7 7
  ADnREss_----'1-!)r-/...::::...o-=s--:..S-!-/c-=-J-=-N-!.../L~'c.::.:...:::f(_
                        f/aU.>/onJ 11~ 'l7o9J

  ::::~_S_NAH:E__====/:z:\-r1-z:~:z=:7=~~::_-_-_-_-_-_-_-_-:__ :_ _;:~0~ ::~=================
. B IJ..£"wl;-12. LH-}S;..Jfr '£1VC •   1 ocated at:   :J../ 0 J S /C:.J/V/VEIC J-ioo..('/0 IV ;I,X 7.7093
  herein after referred to as lessee and            TE){/)5 STR.ETCJ.i :f:/'!IC. •
  ~a~/70~3~5_/C_I_N~~~E~~~f{~a~U~-~CT!~O~A-/~J~~/~/~Zud~~9~3__-_ __________
                                                                          . ______~~--,
  herein after-referred to as Lessor. do hereby enter into this agreement for the
  1ease of the fo1lowing equipment under the e~ress terms and condit~ons set forth
  be:lmt:



        In ~onslderation of the provisions and covenants herein contained, it is mutually
   agreed as foll~s:
        1. The Lessor's rate of pay shall be                    2Q_
                                                    percent: for power nnit and                     .36
   percent for tractor trailer combinations of the Revenue on freigbt moved all Tar±ff.

        2. Th.at Lessee t.rill place signs on said equiplllent shawing that: this equipment
   is leased to and operated by lessee and that. upon termination of this contract by
   either party such signs vil1 be removed by Lessor, And Lessor agrees the fai1ure to
   remove such signs will result: in damages to Lessor.

         3. 'That Lessor will equip said equipment vit:h lights and reflectors as re-
   ,quired by the Interstate Co~rce Commission and provide all accessorial equipment
    as required by rules and regulations on said equipment at All t.ime.s when in use of
    Lessee, and keep the equipment up to the ~nimum ~echanical requiremencs as se~ forth
    ~n the rules and regulations. lessee reserves the right to inspect said equipment at
    any time or place while in its use to assure compliance with such pro~ions.

        4. That tessoT will obtain and pay for all necessary state license tags and
   registrations and affix same to said equipment and pay for and supply all gasoline.
   oil, tires, repairs, and supplies necessary t.o JJaintain operating efficiency.
   Further, Lessor shall p.ay all mileage, fuel, and hi.gbway taxes and post all bonds
   necessary and required by various states.

         5. 1bat ~t is exp~essly understood by the parties hereto tba~ all drivers.
    helpers and/or agents of Lessor used to fulfill thi.s contract are employees of
    Lessor and Lessor assumes responsibili   f              g ~bese dc!Qets, helpers.
                                                          • • . per a n n~ to hou-rs of
    service -and ma~ntenance of e~u~p~nc and shall as~ure that all drivers maintain a
    da~ly log as required aud forward to Lessee said log sheets daily .

              .·
                                                                                                             !.    PLAINTIFF'S
                                                                                                             §       EXHIBIT
                                                                                                             w
                                                                                                             \;(       ~02...
                                                                                                             ~
      6.   Lessee does not agree to furnish physical damage insurance for Loss.

      7. That Lessor will furnish Lessee with a doctor's physi~al examinat~on
certificate on any and all driveYs of said equipment in accordance vith the Rules
aud 'Regulations of I.C.C.

      8. That Lessee assumes and will be responsible for and agrees to furnish
adequate protection to the public and the shipper.R for sutomobLle bodily injury,
praperty damage, and cargo liability.

      9. That during the tenns of this agreement, Lessor will fun:dsn adequate
protection as to render L9ssee ha~less from claims arising from dama~e or injury
to any third party resulting from bobtailing of Lessor's equipment.

     10. That during the terms of this agreement, said equipment will be made
available to and controlled by Lessee at all times. and all drivers and other
employees of Lessor used in connect~on witn this contract will also be under full
control, direction and supervision of Lessee, or its agent.

     l.L That Les.sot" agrees that equipment herein described i.s to be used ex-
clusively by Lessee and in t:he event said Lesso-r, his driver. eD~ployee. or agent
shall (ieviat:e from the t:e:nns of this contract. by t:b.e transport:at:ion of freight
for another, either gratuitously, or foy hire, or by deviation fro~ other terms.
then rhis contract is automatically suspended until the equip~nt is returned to
service of Lessee, and that Lessee shall be harmless fr~ such deviation.

     11. That this agreement sh<lll be :in full force and effect until terminated
by either party hereto, but not less than 30 days. by vritten notice delivered by
either party signatory heYeto in person if an individual, or to any officer
t:hereofsaid party is a corporat1on. Said agreement also may be cancelled or term-
~nated by depos~ting in the U.S. Mail a notice of such cancellation. properly add-
ressed. pn~ted. and that said party or officer hereof is evidenced by the return
registered receipt or upon the said refusal of said addressee to accept deL~very
thereo£. and upon termination of this agreement, Lessor agrees co return to Lessee
all equipment, suppl~es, permits, and other property of ~ssee to the nearest
teTminal within S days. or be charged thirty (30) cents per mile for retrieving
of such propert)' by Lessee.

     13. That :l.f Lesaoy or his ageut is unable to deliver ca.rg,o hauled under this
agteement to the destination upon an agreed time. Lessor ~ill immediately notify
Lessee, or the consignee of such cargo of the probable delay, and chat failure to
give such notifications will be construed a$ negligence on the part of the Lessor.

      14. That Lessee shall be impovered to charge Lessor all claims foY shortages,
 losses, or damage to cargo 'Which are uot the result of accident: i.nvo~v1.ng the
 equipment covered by this agreement.

      15. That Lessee will charge the first $~00.00 Q£ any cla~m for public liability
 or property damage due to negligence of Lessor, his driver, or agent, and furtheY
 the lessee will charge Lessor for all damages to cargo caused by negligence of
 ~ssor. h~s dr~ver. or agent.
     16. The Lessor ~ill be responsible to Lessee for damag~ to Lessee's equipment
or property damages as a result of Lessor's Gtr:iking any viadnc:t:., lev overhead, or
other s~at~onaTy object through carelessness or neglect of Lessor, his dr~ver, or
agent.

     17. That: ·Lessor shall not be paid for any load vrecked or dam.aged in transit:
and returned to origin point.

     18.   The Lessee shall charge Ikssor in full for any aml all water damage to
cargo caused by neglect of LeBaor, his driver, or agent.

     19. The Lessee will hold from the Lessor's earnings a total of $200.00. The
said $200.00 less any clai~s. to be refunded to Lessur or Lessee v~thin a per~od
of not less than thirty day~ and not to exceed ninety days of the termination of
the lease by either party.

     20. The Lessor shall reimburse the ~essee for any fines or penalties pa~d by
tbe Lessee ae a result of illegal or criminal acts committed by the Lessor. his
driver, or agent.

     21. All iusurange, payroll taxes, state employment taxes shall be paid by
Lessee and charged back to Lessor. Any ~ncrease in above will be charged or any
decrease vill be adjusted in cost •




      .·
Appendix
   12
                                   CAUSE NO. 2011-64488

MARCUS BRENT PATIERSON, et al                       §                   IN THE DISTRICT COURT
                                                    §
             Plaintiffs,                            §
v.                                                  §                   334th JUDICIAL DISTRICT
                                                    §
BREWER LEASING, INC.                                §
                                                    §
              Defendant.                            §               HARRIS COUNTY, TEXAS

                                          AFFIDAVIT
STATE OF TEXAS                 §
                               §
COUNTY OF HARRIS               §

      BEFORE ME, the undersigned authority, on this day personally appeared Harry

Herzog. After being duly sworn Mr. Herzog stated under oath as follows:

      "My name is Harry Herzog. I personally wrote this affidavit and the Motion
      to which the affidavit is attached. I have always been the lead counsel of
      record for the Patterson family members in all five district court lawsuits
      involving this wreck (two of them are suits against them), was the lead
      counsel in the recent trial of this case, and personally prepared every
      pleading on behalf of the family. I therefore have personal knowledge of
      everything in this affidavit. All statements in this affidavit are true and correct.
      I have been a licensed attorney for almost 32 years. I have been Board
      Certified in Civil Trial Law for almost 24 years and Civil Appellate Law for
      almost 20 years.

      I have reviewed our pleadings files. We filed all of the following pleadings in
      the first case:

             Plaintiffs' Original Petition on December 1, 2006;
             Plaintiffs' 1st, 2nd, 3rd, 4111, and 5111 Amended Petitions.

      In this case we filed:

             Plaintiffs' Original Petition on October 24, 2011;
             Plaintiffs' 18 1, 2nc:t, 3rd, and 4th Amended Petitions.

      In response to those eleven pleadings I recall no Special Exceptions by
      Brewer Leasing, I show none in my files, and I have no reason to believe any
      were ever filed."




                                                                                             1016
      Further Affiant sayeth not.


                                                Harry Herzog

      SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand

and seal of office on the 18th day of October, 2013.




                                      Page 2 of 2




                                                                    1017
                                  CAUSE NO. 2011-64488

MARCUS BRENT PATTERSON,                            §               IN THE DISTRICT COURT
INDIVIDUALLY, AS INDEPENDENT                       §
ADMINISTRATOR OF THE ESTATE OF                     §
DIANE PATTERSON, AS NEXT                           §
FRIEND OF DANIEL PATTERSON,                        §
DANAE PATTERSON, and DANIEL                        §
PATTERSON (now 18 years of age),                   §
                                                   §
              Plaintiffs,                          §
v.                                                 §               3341h JUDICIAL DISTRICT
                                                   §
BREWER LEASING, INC.                               §
                                                   §
             Defendant.                            §               HARRIS COUNTY, TEXAS

                                         AFFIDAVIT
STATE OF TEXAS              §
                            §
COUNTY OF HARR.IS           §

      BEFORE ME, the undersigned authority, on this day personally appeared Harry

Herzog. After being duly sworn Mr. Herzog stated under oath as follows:

      "My name is Harry Herzog. I am over 21 and personally wrote this affidavit
      and the Reply to which the affidavit is attached. I have always been the lead
      counsel of record for the Patterson family members in all five district court
      lawsuits involving this wreck (two of them are suits against them), was the
      lead counsel in the recent trial of this case, and personally prepared every
      pleading on behalf of the family. I therefore have personal knowledge of
      everything in this affidavit. All statements in this affidavit are true and correct.
      I have been a licensed attorney for almost 32 years. I have been Board
      Certified in Civil Trial Law for almost 24 years and Civil Appellate Law for
      almost 20 years.

      After I was hired we attempted to get the police report from the Houston
      Police Department. It had not been released so I could not obtain a copy.
      In August 2006 I wrote a letter to a company I believed to be acting in
      conjunction with Brewer Leasing's insurer. (PX 490). I later turned out to be
      correct. The letter addressed Brewer Leasing's responsibility for the driver
      in this collision. No one ever replied to my letter.

      On December 1, 2006 I filed suit for the family members who hired me
      against Brewer Leasing (and others), claiming Brewer was liable for the
 driver's negligence in the collision. (Exhibit 1 to this Reply). I attached
 discovery with that suit.

 In February 2007 several things occurred that are relevant to the matters in
 issue at this time. HPD released the collision report. Two defendants
 surfaced and answered. I renewed my efforts to hold each company
 responsible for the driver's negligence, and I tried to settle quickly with each
 defendant.

 Who employed Charles Hitchens?

 On March 1, 2007 I received the first discovery responses. (PX 527). Brewer
 Leasing produced the driver file/ personnel file for Charles Hitchens. There
 was no explanation then, later, or through today, as to why Brewer Leasing
 was producing his driver file in light of the fact that every document in it
 relevant to the issue showed he applied for a job from Texas Stretch ("TS"),
 was hired by TS, signed an employment agreement with TS, gave his time
 records toTS, received every paycheck from TS, and there was no paper in
 the file that mentioned Brewer Leasing.

 Sagamore ln~urance, which sold a policy toTS, sued TS claiming there was
 no insurance coverage for this wreck. (PX 506). They later amended and
 also sued the Pattersons. During the course of the case Sagamore claimed
 that Brewer Leasing, not TS, hired and employed Charles Hitchens.

 TS repeatedly denied employing Charles Hitchens.

  In later discovery we obtained transcripts of recorded statements, given by
  Butch Brewer (AB's brother)(PX 519) and Doug Schoppe (the GM of both TS
. and Brewer Leasing)(PX 509) in which it was claimed that Brewer Leasing
  employed Hitchens.

 In light of this cacophony of misdirection and confusing positions on who
 employed Hitchens I made sure that every pleading we filed alleged both TS
 and Brewer Leasing were responsible for Hitchens' negligent actions.
 (Exhibits 2, 3, 4, 5, and 6 to this Reply). There has never been a pleading
 filed by us that does not seek to hold Brewer Leasing liable for everything
 Charles Hitchens did negligently on June 15, 2006.

 In March of 2009 I was finally able to depose Mr. Lonny Box (the GM of both
 companies) and Mr. A. B. Brewer (the 100% owner and President of both
 companies). Mr. Box testified with firmness and clarity that TS employed
 Hitchens, only TS employed Hitchens, and that any lawyer that said
 otherwise was wrong. TS filed a document with this court a few days before
 trial in which they finally admitted Hitchens was their employee. (PX 335).

                                 Page 2 of 7
That admission was filed within seven days of trial so I did not amend our
pleading out of concern that our preferential trial date and trial assignment
could be lost (and also my delayed cancer surgery possibly re-scheduled).

Cocaine.

On March 1, 2007 Brewer Leasing also produced a one page lab report
showing Hitchens "positive: cocaine" on the post collision drug test of June
15, 2006. (PX 501, 527). Brewer Leasing never explained how they could
have his drug test result if they were not his employer. Brewer Leasing has
also never explained, to this day, how they could fail to produce his other
drug test results that show the exact, precise, scientifically verified level of
43,444 Ng of cocaine metabolite. Nor has Brewer Leasing ever explained,
to this day, how they could fail to produce those 43,444 Ng results in light of
these requests (either from us or a co-defendant, Ray Bellew and Sons):

       "2.    All documents received from LabOne, with respect to
              the post-accident DOT Controlled Substance Test of
              Charles Hitchens.

       3.     All documents that reflect the level of cocaine detected
              in Mr. Hitchens in the June 15, 2006 Post-Accident
              DOT Controlled Substance Test of Charles Hitchens.

       4.     All documents that reflect the amount of cocaine
              ingested by Charles Hitchens on or before June 15,
              2006 that was detected in his system in the June 15,
              2006 post-accident DOT Controlled Substance Test."

(PX 530, pp. 3 and 4 ).

       "22.   Please produce Charles Hitchens' employment file.

       24.    Please produce the test results from any drug and/or
              alcohol tests given to Charles Hitchens following the
              accident in question.

      25.     Please produce all test results for all drug and/or
              alcohol tests given to Charles Hitchens."

(PX 532, pp. 10 and 11 ).




                                Page 3 of 7
Trucking law.

Beginning in 2007, and continuing through last week, I have on numerous
days performed legal research on federal and state legislative and
administrative trucking laws, regulations, and case law. I have become very
conversant in liability theories under those laws. I have attended trucking
liability seminars and read many scholarly articles on the subject. Lawyers
who work with me on this case have also done significant legal research in
this area and then shared their results with me. I have consulted with many
lawyers outside my firm and outside our formal Patterson team in an effort
to leave no stone unturned and be certain I have found everything there is
to find on the subject. For about a decade before she died Diane was my
friend, Marcus was my friend and for a year or two my Sunday school
teacher, our children were friends and playmates, and I have tried extremely
hard to leave nothing undone in my efforts to resolve this case. Thus at all
times, in all ways, I have tried to make sure that Brewer Leasing was liable
for the driving negligence of Charles Hitchens.

Pleadings.

With respect to our pleadings, I always tried in the first case to have all the
wiggle room r needed as they played their "who employed Hitchens" shell
game. I did not think there was any real doubt in light of his personnel file,
but I wanted to take no chances. Brewer Leasing never Specially Excepted
to any of our six pleadings filed between December 2006 and March 2009.

In this Bill of Review case, in my pleadings I relied in large part on the clear,
convincing, uncontradicted testimony of Lonny Box and A. B. Brewer with
regard to the lease, the fact that all relevant documents showed TS owned
the tractor at the time of the lease to Brewer Leasing, the fact that both fuel
tanks on both sides of the vehicle said "Leased to Brewer Leasing" with the
company logo and TxDOT number 00580014 7C, the cab card (carried in the
vehicle and given to HPD), and the fact that Brewer Leasing admitted the
existence and applicability of the lease on June 15, 2006.

Brewer Leasing's ambush of us.

I began to suspect a surprise was coming in September 2012. I amended
our pleadings. Among other things, I made sure that I made reference to the
trailer repeatedly. When Brewer Leasing failed to participate in the
preparation of, or file anything with, the Pre-Trial Order in compliance with
the court ordered deadline of Oct 1, 2012, I was certain a surprise was
coming. I did not know what it was or could be, but I knew danger was
lurking. No one, nevertheless extremely capable lawyers like Mr. Hays and
Mrs. Banks/Thompson, openly flouts a court ordered deadline for a PTO and

                                 Page 4 of 7
ignores it for months unless they think they have a surprise worth the
potential judicial wrath of non-compliance. They waited for over five months
to file their first portions of the PTO, and those materials contained no
surprises. I remained convinced a surprise was coming, but felt we were
ready for it.

When we went to the pre-trial conference on July 11, 2013, I was once again
braced for a surprise. It did not come.

On Friday afternoon, Aug 2, on the last business day before trial, we
received the surprise. Without supplementing any discovery, on the literal
eve of trial, Brewer Leasing was going to argue there was no lease.

I looked at our pleadings. All of them, in both suits against Brewer Leasing.
We had one cause of action: negligence. In this case they alleged liability
for the Heil trailer from Sept 2012 to the present, and I knew the Heil trailer
was a separate commercial motor vehicle under both federal and Texas law
and was a separately scheduled, premiumed, insured vehicle under the
insurance policy. There were never any Special Exceptions. I knew the law
is clear: if there are no Special Exceptions the pleading is liberally construed
in favor of the pleader and any defect is waived. I also knew that in addition
to ignoring their liability as a matter of law for the Heil trailer, Brewer Leasing
was making the mistake of ignoring their liability for owning the Peterbilt
tractor if they succeeded in their newest shell game of "who leased the
tractor?" The existence of the lease was not my sole theory. It was the
theory plead in the most detail.

So on Monday, August 5, 2013, when Mike Hays told the panel in voir dire
that Brewer (I am doing my best to quote him word for word here based on
my memory and notes) "just owned the tractor'' I thought Mike Hays was
making a huge mistake. I thought he was arguing something that was no
defense. I thought he might as well argue Hitchens was wearing a hat or
black slacks: neither was relevant or a defense. If he succeeded in
convincing the jury that everything about the lease was wrong, the fuel tanks
were wrong, all the testimony and documents were wrong, and whatever else
he wanted to claim, it was a road to defeat for him- not a road to victory. He
wanted to focus on it. I let him distract himself.

In my opinion, we tried the claim of liability for the Heil trailer by express
and/or implied consent. Contrary to Brewer Leasing's claim yesterday, we
introduced everything we needed to prove without objection. Every single
document and all oral testimony necessary to prevail on ownership and
weight was admitted without objection. Some of the evidence was in the form
of defense exhibits. All of the evidence is detailed in the various documents
we have filed in the last 45 days. The title to the Heil trailer relates only to

                                  Page 5 of 7
this liability and nothing else. The weight of the trailer, both empty and
loaded, relates only to this liability and nothing else. Starting yesterday
afternoon, Brewer Leasing is essentially arguing they are surprised by what
their own exhibits prove and the liability their own exhibits create.

In my opinion we tried the claim of liability for the Peterbilt tractor by express
consent. It was Brewer Leasing, and only Brewer Leasing, that argued they
owned the tractor. Brewer Leasing argued everything needed to establish
their own liability. In my opinion they are now estopped to deny that
ownership. If that ownership makes them liable as a matter of law - which
it does- then so be it. They cannot legitimately slap their surprise on us Aug
2, run it Aug 5-9, and then complain that there are no pleadings rebutting
their surprise! If at any time in the seven years earlier they had made the
claim, then there would have been pleadings addressing it. There had been
pleadings for years alleging their liability as the owner or lessee of the tractor:
there is no chance we surprised them, and they cannot legitimately claim
they are surprised by the legal effect of their ambush.

In the discovery done from Dec. 1, 2006 to the present I have never seen
any document that says it is a lease from Brewer Leasing to anyone (for
either the tractor or the trailer). In two trials of this matter no defendant has
ever offered imy document which reads it is a lease of the trailer or tractor
from Brewer Leasing to anyone. No witness has ever testified that on the day
of this collision there was a lease of the tractor or of the trailer saying it was
from Brewer Leasing to anyone. Lonny Box testified - correctly under any
reading of federal and Texas law- that any such lease has to be in writing.
So by claiming ownership of the tractor, and by having undenied ownership
of the trailer, with no written lease of either commercial motor vehicle to
anyone, and with no other entity insuring either vehicle, the legal conclusion
I reach is that Brewer Leasing is absolutely, unquestionably, 100%
vicariously liable for Charles Hitchens' negligent operation of each vehicle.

One of the fundamental purposes of trucking law, expressed in Texas
statutory law and case law at all levels, is to provide a solvent defendant in
trucking collisions.

Discovery revealed Charles Hitchens had no automobile insurance: he drove
~iscar to work each day uninsured. He was also a paranoid schizophrenic
and an admitted crack head.

All parties, and all lawyers involved, agreed that TS had no insurance
coverage with Sagamore for this collision as neither the Peterbilt tractor nor
the Heil trailer were scheduled vehicles. (Non-insurance, but a type of
coverage under Form F or the MCS 90, were heatedly debated).


                                 Page 6 of 7
       Mr. Brewer admitted in his deposition that TS was essentially gone, out of
       business in March 2009. Brewer Leasing's game of pin the tail on the
       insolvent donkeys (Hitchens and TS} flies in the face of 78 years of federal
       law and a long history of Texas law. It is an old legal trick, for which I refuse
       to fall.

       The only way the vehicles rolled down several Texas highways on June 15,
       2006 in compliance with the law was under the permit and insurance of
       Brewer Leasing. There is no way that having operated the vehicles that way
       on June 15, 2006 that Brewer Leasing is now suddenly surprised that they
       are being held liable. Even their GM, Lonny Box, candidly admitted in 2009
       that Brewer Leasing was responsible for Charles Hitchens' driving on June
       15, 2006.

      Attached to this reply are 10 documents. Each of them is Hyperlinked. Every
      one is a true and correct copy of pages from the original. Some are just
      excerpts of relevant pages for the court's ease and some have been marked
      in places to quickly move the eye to the relevant portion to aid the Court and
      counsel."


      Further Affiant sayeth not.


                                                      Harry Herzog

      SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand

and seal of office on the 171h day of September, 2013.


                           PAULA JAHNKE
                    Notary Public, State of Texas                RY PUBLIC
                      My Commission Expires
                        October 02, 201 S                        STATE OF TEXAS




                                              Page 7 of 7
Appendix
   13
03/08/2013 03:57:17 PM                      713-755-1451                                Page 2/13
                                                                                           Filed 13 March 08 P3:57
                                                                                           Chris Daniel - District Clerk
                                                                                           Harris County
                                                                                           FAX15426354
                                               CAUSE NO. 2011-64488

          MARCUS BRENT PATTERSON,                            §                    IN THE DISTRICT COURT
          INDIVIDUALLY, AS INDEPENDENT                       §
          ADMINISTRATOR OF THE ESTATE OF                     §
          DIANE PATTERSON, AS NEXT                           §
          FRIEND OF DANIEL PATTERSON,                        §
          DANAE PATTERSON, and DANIEL                        §
          PATTERSON (now 18 years of age),                   §
                                                             §
                         Plaintiffs,                         §
                                                             §
          v.                                                 §                   3341h JUDICIAL DISTRICT
                                                             §
          BREWER LEASING, INC.                               §
                                                             §
                         Defendant.                          §                   HARRIS COUNTY, TEXAS

                  PLAINTIFFS' FOURTH AMENDED PETITION FOR BILL OF REVIEW

                 Plaintiffs, Marcus Patterson, in his individual capacity, as independent administrator of the

          estate of Diane Patterson, and as next friend of Daniel Patterson and Danae Patterson, and Daniel

          Patterson (now 18 years of age), complain of Defendant Brewer Leasing, Inc., in this equitable bill

          of review to remedy the fraudulent representations to conceal Charles Hitchens' massive cocaine

          level, and show the following:

           1.    This Petition is being filed under Level 2 of Rule 190.1.

          2.     Plaintiffs are residents of Harris County, Texas.

          3.     Defendant, Brewer Leasing, lnc. has been served with citation, and has answered.

          4.     Defendants Charles Hitchens and Texas Stretch, Inc. are both new parties. Both of these new

          parties have previously been released by all members of the Patterson family. Neither of these

          parties were previously affected by this action, by Texas law they do not need to be added to this suit,

          they are not indispensable parties, by adding them to this suit the Patterson family does not rescind,


                                                       Page 1 of 12




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          negate, or disavow their releases, and no service of citation is requested at this time. Part of the

          Patterson family's settlement with Ray Bellew & Sons involved periodic payments from 2011

          through 2022, as set forth in Exhibit A to the Final Judgment in case 2006-7664 7, and nothing in this

          case is designed to affect, revoke, alter, modify, or change that settlement or those structured periodic

          payments in any way. These two new parties are being added solely and exclusively to eliminate an

          invalid argument being raised by Home State on appeal in a simultaneous legal proceeding.

          5.      Venue is proper in Harris County, Texas, pursuant to Section 15.002 of the Texas Civil

          Practice and Remedies Code, because the incident which forms the basis of this suit occurred in

          Harris County, Texas, and Plaintiffs and Defendant reside in Harris County, Texas.

          6.      The Court has jurisdiction over this controversy because Plaintiffs seek damages within the

          jurisdictional limits of this Court and this Court entered the judgment under attack.

          7.      On December 1, 2006, in Cause No. 2006-76647, the Patterson family sued Brewer Leasing,

          Inc. On June 2, 2009 they recovered a judgment against Brewer Leasing.

          8.      Plaintiffs obtained a favorable judgment, but were prevented from making a meritorious

          claim for punitive damages and obtaining a full recovery of actual damages by the extrinsic fraud

          of Defendant. Defendant fraudulently concealed knowledge of the massive level of cocaine in

          Charles Hitchens's system at the time the tragic auto collision occurred. Brewer Leasing referred

          to "an allegedly positive drug test." Brewer Leasing hid the massive level (43,444nanograms) from

          all plaintiffs and from some former defendants, then falsely claimed in writing to this Court just

          before the trial that there was "no evidence that Hitchens was impaired." Knowing the urine test

          administered two hours after the wreck revealed a precise and massive level of 43,444 nanograms,

          Brewer Leasing falsely wrote that the positive drug test "contained no quantification as to amount


                                                       Page 2 of 12




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          of cocaine found, if any." Brewer Leasing falsely concluded, "since there is no evidence that

          Hitchens was impaired ... ". Brewer Leasing's fraudulent misrepresentations constituted extrinsic

          fraud and a wrongful act.

          9.     The extent of the concealment is further revealed by Exhibit E to Brewer Leasing's Motion

          to Exclude the positive drug test. In Exhibit E Assistant District Attorney Warren Diepram recounts

          how neither the Houston Police Department or the Harris County District Attorney had been able

          to obtain the truth a year later, on June 21, 2007. "It is tmknown whether the private lab ... quantified

          the amount. As of today, this information has not been obtained... " (See Exhibits 1, 2, 3, 4, and 5).

          10.     Brewer Leasing knew that 43,444 nanograms was a huge level of cocaine. Case law

          researched by Brewer Leasing's counsel revealed toxicologist testimony that the following levels

          proved impairment: 756, 1194, 1363, over 2000, and 6206 nanograms. Nanograms of 12,500 were

          a "considerably high value," and 26,720 nanograms were "an immense concentration." At 43,444

          nanograms Charles Hitchens was massively impaired, Brewer Leasing knew it, and Brewer Leasing

          chose to conceal this truth and misrepresent the truth.

          11.     Plaintiffs were not at fault and were not negligent in failing to discover the truth. Plaintiffs,

          along with other plaintiffs and a defendant in the original proceeding, sent several discovery requests

          to obtain infom1ation about the level of cocaine in Charles Hitchens's system. Brewer Leasing made

          positive assertions to Plaintiffs and this Court that there was no evidence of the level of cocaine in

          Charles Hitchens's system or impairment at the time of the collision. Brewer Leasing fooled the

          Houston Police Department, the Harris County District Attomey, all plaintiffs, two defendants, and

          Judge McCally.




                                                       Page 3 of 12




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          12.     Though the Plaintiffs obtained a judgment against Brewer Leasing, they were unable to put

          on evidence of Charles Hitchens's level of cocaine at the time of the collision in order to prove the

          utter disregard for human life and gross negligence when Mr. Hitchens transported 79,940 pounds

          on the highway while impaired under the influence of cocaine. (Exhibit 6).

          13.     Plaintiffs have exercised due diligence. Due to Defendant's fraudulent concealment and

          fraudulent misrepresentations, Plaintiffs were not aware that Defendant had knowledge of Charles

          Hitchens's extraordinary cocaine level until concealed documents were reluctantly produced in

          Cause Number 2010-35479, a subsequent Stowers case based on the original proceeding. In the

          Stowers action, Plaintiffs gained access in late October and early November 2010 to information on

          the cocaine level that was previously concealed and that conclusively proved fraudulent

          misrepresentation. This infonnation was not discovered until well after the deadlines for a motion

          for new trial and an appeal had passed in 2006-7664 7. Now that Plaintiffs have discovered the fraud

          against them and this Court, Plaintiffs are seeking this Bill ofReview to correct the injustice inflicted

          by the conscious acts of Defendant.

           14.    On Saturday, April4, 2009, just two calendar days before trial was set to begin on April6,

           Brewer Leasing attempted to make a deal with the Patterson family. Those negotiations took place,

           and agreements were reached, by virtue of Brewer Leasing's active ongoing concealment and

           fraudulent misrepresentation of the devastating results of Mr. Hitchens' urine test for cocaine.

           15.    On April 4, 2009 Mr. A.B. Brewer, Texas Stretch, Inc., Brewer Leasing, Inc., and Texas

           Stretch's insurer, Sagamore Insurance Company, reached various agreements with the Patterson

           family. The agreements were:

                  A.      Texas Stretch would be released;


                                                       Page 4 of 12




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                  B.      Sagamore Insurance Company would dismiss its coverage suit against Texas Stretch

                          and the Patterson family;

                  C.      Texas Stretch would pay $470,000 as follows:

                           1.     $400,000 by Sagamore Insurance,

                          2.      $25,000 in cash by Texas Stretch, and

                           3.     $45,000 over time by Texas Stretch, personally guaranteed by Mr. Brewer;

                  D.      Brewer Leasing would not be released, as Brewer Leasing was paying nothing and

                          was not settling;

                  E.       Having personally guaranteed $45,000 to be paid by Texas Stretch, Mr. Brewer

                           would not be personally exposed to any further payments and therefore Brewer

                           Leasing would receive a Covenant to Not Execute;

                   F.      Brewer Leasing would hire Mr. Herzog to pursue the Stowers claims created by

                           Home State's three wrongful denials of settlement demands, and any other claims of

                           Brewer Leasing against Home State (breach of duty to defend, Insurance Code, etc.);

                           and

                   G.      Brewer Leasing would agree to assign those claims to the Patterson family later, in

                           the future, upon request.

           16.     On April6, 2009, the Texas Stretch settlement and the Brewer Leasing agreement without

           settlement were signed. On behalf of Brewer Leasing, Mr. Michael Hays, their personal counsel,

           orally discussed an assignment ofthe Stowers claims after a jury verdict was returned in the Stowers

           case in the future.




                                                       Page 5 of 12




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          17.     Misunderstandings later arose. Brewer Leasing disagreed with part of Mr. Herzog's fee

          agreement and, without communicating their disagreement, declined to sign. Mr. Herzog sent a

          statutory demand notice to Home State, on behalf of Brewer Leasing, based on the oral

          understanding that he was hired. Once it became clear that Brewer Leasing would not sign a fee

          agreement, the decision was made that suit could not be filed as originally planned on behalf of

          Brewer Leasing so an oral request for an assignment was made and suit was filed with the Patterson

          family as assignees of Brewer Leasing. Brewer Leasing later signed a written confirmation in

          October 2010 of an assignment of claims.

           18.    The Covenant, the agreement to assign claims in the future upon request, and the written

          assignment in October 2010 were all fraudulently induced by the wrongful behavior of Brewer

          Leasing, the consideration for them has failed, and they should be nullified as void ab initio.

           19.    After the filing of the Plaintiffs' Original Petition for Bill of Review, with incontrovertible

          and conclusive evidence of Brewer Leasing's wrongful act and Brewer Leasing's extrinsic fraud

           attached as exhibits, Brewer Leasing eventually stipulated and agreed to set aside the Covenant to

          Not Execute, the June 2, 2009 Final Judgment, and all assignment efforts as void ab initio. This

           Court has entered an Order setting all of those aside as void ab initio.

                                              Liability of Brewer Leasine

           20.    On July 26, 2005 Texas Stretch, Inc. was the Lessor of a 2002 Peterbilt Class 8 motor

           vehicle, YIN 1XPSDB9X220528915, commonly called "a tractor" or "a power unit." (Exhibit 302).

           Brewer Leasing, Inc. was the Lessee. Federal law, Texas law, and paragraph 8 of the Lease make

           Brewer Leasing liable for any injury caused from operation of the vehicle. Paragraph 2 required

           Brewer Leasing, as Lessee, to place signs on the vehicle showing it as leased to Brewer Leasing, Inc.:


                                                       Page 6 of 12




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03/08/2013 03:57:17 PM                      713-755-1451                              Page 8/13




           Brewer Leasing complied. Paragraph 5 specified that all drivers would be employees of Texas

          Stretch, Inc.: Brewer Leasing complied.

          21.     In April2006 Texas Stretch hired Charles Hitchens as a driver. On Thursday, June 15,2006,

          as an employee of Texas Stretch, driving with the permission of Texas Stretch and only Texas

          Stretch, under the dispatch of Texas Stretch, hauling a load for Texas Stretch, Charles Hitchens

          operated the 79,940 pound fully loaded leased vehicle while impaired by and under the influence of

          a massive amount of cocaine (43,444 nanograms or more of cocaine metabolite were in his system).

          22.     On June 15, 2006 officer Stan Jolly stopped traffic on 1-10 just west ofHighway 6. Visibility

          was perfect and the road was dry. Officer Jolly was in uniform and operating his motorcycle with

          his hazard flashers/emergency lights on. Eight vehicles stopped, blocking all three lanes of traffic.

          A ninth vehicle, operated by Jimmy Bimmage, began to enter I-10. Mr. Bimmage was operating

          with an oversize load permit. His oversized vehicle had approximately 50 wheels, measured about

           160 feet long, and weighed about 198,000 pounds. Officer Robert Norris, also in uniform with his

          motorcycle hazard flashers/emergency lights on, was in the back of the eight stopped vehicles.

           23.    Sitting high up in the driver's seat of his Class 8 motor vehicle, impaired by massive

           quantities of cocaine, Mr. Hitchens failed to see a 160 foot long 50 wheeled vehicle approaching

           from his right, eight stopped vehicles in front of him, or Officer Norris' flashers-lights and hand

           signal. Driving at highway speed, without braking, in full view of numerous eyewitnesses who

           watched in horror, Mr. Hitchens slammed into the rear of Diane Patterson's stationary ford

           Expedition and then careened down the highway.

           24.    Over the course of the next few minutes Diane Patterson died, nine individuals were burt,

           at least five veh1cles were destroyed, and three more vehicles sustained damage.


                                                      Page 7 of 12




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03/08/2013 03:57:17 PM                        713-755-1451                               Page 9/13




          25.       Mr. Hitchens was negligent, and grossly negligent, in his operation of the vehicle leased by

          Brewer Leasing that displayed the Brewer Leasing logo. That negligence was a proximate cause of

          the collision and the death of Diane Patterson. Brewer Leasing is liable for all actual damages plus

          punitive damages of at most 400% of all actual damages. These actual damages include Diane

          Patterson's pain and mental anguish before her death, funeral and burial expenses, and then for

          Marcus Patterson, Daniel Patterson and Danae Patterson all of the fo11owing in the past and in the

          future:

                    A.     Pecunimy loss,

                    B.     Loss of companionship and society, and

                    C.     Mental anguish.

                    Marcus Patterson is also entitled to recover the fair market value of the Expedition destroyed

          in the collision.

          26.       Brewer Leasing is liable for Mr. Hitchens' negligent driving behavior for these reasons:

                    A.     The lease's existence;

                    B.     The specific provisions of the lease;

                    C.     The Brewer Leasing logo on both the driver and passenger's side fuel tanks; and

                    D.     Mr. Hitchens' provision of a Brewer Leasing cab card to the police who investigated

                           the collision.

          27.       Brewer Leasing is liable for Charles Hitchens' gross negligence because Brewer Leasing

          ratified Charles Hitchens' conduct. Brewer Leasing did or knew all of the following:

                    A.     Knew a woman was killed in the collision;

                    B.     Knew Charles Hitchens admitted fault at the scene;


                                                        Page 8 of 12




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03/08/2013 03:57:17 PM                       713-755-1451                             Page 10 /13




                 C.      Knew Charles Hitchens V\'as drug tested about two hours after the collision;

                 D.      Knew Charles Hitchens admitted to a private investigator the day after the collision

                         to recent cocaine   use~


                 E.      Knew the vehicles driven by Charles Hitchens on June 15,2006 were not scheduled

                         vehicles (tractor or trailer) on the Texas Stretch insurance policy with Sagamore

                         Insurance Company;

                 F.      Knew the vehicles driven by Charles Hitchens on June 15, 2006 were scheduled

                         vehicles on the Brewer Leasing policy with Home State County Mutual Insurance

                         Company; and

                 G.      Knew Charles Hitchens was an employee of Texas Stretch and never of Brewer

                         Leasing.

          Armed with these facts and the resulting fear of no insurance coverage, or inadequate coverage,

          Brewer Leasing took the following actions ratifying Mr. Hitchens' conduct:

                 H.      Falsely claimed in a recorded call with a Sagamore adjuster that Charles Hitchens

                         was a Brewer Leasing employee;

                 I.      Produced Charles Hitchens' employee file, thereby subtly implying Charles Hitchens

                         was their employee;

                 J.      Implemented a plan to fraudulently misrepresent and conceal the level of cocaine

                         revealed by Charles Hitchens' drug test;

                 K.      Implemented a plan to lie and distort the truth to defraud the injured parties, this

                         Court, and the Harris County District Attorney's office, so that their ratification of




                                                     Page 9 of 12




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03/08/2013 03:57:17 PM                       713-755-1451                                Page 11 /13




                         Charles Hitchens's conduct would have no financial impact or a lesser financial

                         impact on Brewer Leasing and their insurance company; and

                 L.      Conceal their fraud and their cover-up by destroying some of the files relating to

                         Charles Hitchens in conjunction with others and concealing the rest of the damaging

                         evidence.

          28 .   Brewer Leasing's actual, constructive, and extrinsic fraud, and wrongful acts (including all

          acts listed in paragraph 27) also proximately caused damages to the Patterson family, including but

          not limited to expenses incurred that would not have been incurred had the fraud not occurred. In

          addition to obtaining relief in their Bill of Review, in accordance with Texas case law the Patterson

          family seeks a recovery of these actual damages.

          29.    For the assistance of this Court and opposing counsel, the current version of the Patterson

          family's proposed Jury Charge is attached reflecting all causes of action and proposed elements of

          damage.

                                                       Jury Trial

          30.    Plaintiffs and Defendant request an expedited jury trial, and have paid the jury fee.

                                                         Prayer

                 Plaintiffs request that the Court set aside and nullify ab initio for all legal purposes its prior

          judgment dated June 2, 2009 as to Brewer Leasing, Inc., nullify ab initio the April 6, 2009 Covenant,

          nullify ab initio the April 6, 2009 agreement to assign claims in the future, nullify ab initio the oral

          assignment in the summer of 2010, nullify ab initio the October 2010 executed Assignment, and

          enter a new judgment in favor of Plaintiffs for negligence, gross negligence, and fraud with just and




                                                      Page lOof 12




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          fair compensation for all actual damages, punitive damages, and recovery for prejudgment interest,

          post judgment interest, and court costs within the jurisdictional limits of this Court.

                                                         Respectfully submitted,

                                                         HERZOG & CARP


                                                         By:
                                                                 Harry Herzog
                                                                 State Bar No. 09548200
                                                                 P.O. Box 218845
                                                                 Houston, Texas 77218-8845
                                                                 (713) 781-7500
                                                                 (713) 781-4797, fax


                                                         GEARY, PORTER & DONOVAN, P.C.


                                                         By:       /14 1/;jJ t.i ~ )J..)
                                                                 Dorothea "Dotty" L. Vidal
                                                                 State Bar No. 20578100
                                                                 One Bent Tree Tower
                                                                 16475 Dallas Parkway, Suite 400
                                                                 Addison, Texas 75001-6837
                                                                 P. 0. Box 700248
                                                                 Dallas, Texas 75370-0248
                                                                 (972) 349-2211, direct
                                                                 (972) 931-9901, fax

                                                         ATTORI\EYS FOR PLAINTIFFS




                                                      Page 11 of 12




                                                                                                        39
03/08/2013 03:57:17 PM                        713-755-1451                                 Page 13/13




                                             CERTIFICATE OF SERVICE

                  This is to certify that a true and correct copy of the above and foregoing has been sent to all

          parries of record listed below via certified mail, return receipt requested, on this the 8111 day of March,

          2013.

          (Courtesy copy without exhibits viafacsimile and electronic delivery)
          MichaelS. Hays             A J_
         -Ryan M. Gnnt - ~no- IJ#o- S
          Hays, McConn, Rice & Pickering
          400 Two Allen Center
          1200 Smith Street
          Houston, Texas 77002
          (713) 654-1111
          (713) 650-0027, fax
          Attorneys for Brewer Leasing, Inc.




                                                       Harry Herzog




                                                        Pagel2of 12




                                                                                                                 40
03/08/2013 03:56:40 PM                      713-7 55-1451                              Page 1/2
                                                                                          Filed 13 March 08 P3:57
                                                                                          Chris Daniel - District Clerk
                                                                                          Harris County
                                                                                          FAX15426354
                                              CAUSE NO. 2011-64488

          MARCUS BRENT PATTERSON,                               §                IN THE DISTRICT COURT
          INDIVIDUALLY, AS INDEPENDENT                          §
          ADMINISTRATOR OF THE ESTATE OF                        §
          DIANE PATTERSON, AS NEXT                              §
          FRIEND OF DANIEL PATTERSON,                           §
          DANAE PATTERSON, and DANIEL                           §
          PATTERSON (now 18 years of age),                      §
                                                                §
                         Plaintiffs,                            §
                                                                §
          v.                                                    §               3341h JUDICIAL DISTRICT
                                                                §
          BREWER LEASING, INC.                                  §
                                                                §
                         Defendant.                             §               HARRIS COUNTY, TEXAS

                                                     AFFIDAVIT

          STATE OF TEXAS                §
                                        §
          COUNTY OF HARRIS              §

                 BEFORE ME, the undersigned authority, on this day personally appeared Marcus Brent

          Patterson. After being duly sworn Mr. Patterson stated under oath as follows:

                 My name is Marcus Patterson. I am a Plaintiff in this case. I am over the age of 18,
                 have never been convicted of a crime, and have personal knowledge of every
                 statement made in this affidavit. Every statement in this affidavit is true and correct.

                 I was stunned when I learned that Mr. Hitchens had ingested a massive amount of
                 cocaine and the level of cocaine that he ingested was improperly concealed from us
                 in the prior lawsuit. I was more than stunned, extremely disheartened bordering on
                 furious, when I learned that false statements were made in writing to my lawyer, to
                 other lawyers, and to the previous judge of this Court to conceal Mr. Hitchens'
                 cocaine impairment.

                 I have reviewed the Petition ofthe Bill of Review. Paragraphs 7, 8, 10, 11, 12, 13,
                 14, 15, 16 and 18 are, to the best of my understanding of these legal proceedings, true
                 and correct. Paragraphs 19- 23 are consistent with all of the information I have


                                                  Pagel of 2




                                                                                                            41
03/08/2013 03:56:40 PM                             713-7 55-1451                     Page 2/2




                 reviewed and all of the information I saw and heard during the previous trial of this
                 case.




                 Further Affiant sayeth not.




                 SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand and seal

          of office on   the~                dayofMarch, 2013.




              ~~
                 ~.~~-         PAULA JAHNKE
                     ~\ Notary Public, State of Texas
                  •.• ·~~~ My Commission Expires
                l!j/.,~V     October 02, 2016




                                                            Page 2 of 2




                                                                                                         42
    03/08/2013 03:57:29 PM                                                                                                              713-755-1451                                                                               Page 1 /57
                                                                                                  FEDER!-'~                     IG TESTING CUSTODY AND CONTROL FORM


    -- ;-
                                         •
                                     :,,_-                 DDODDDDDDDDDD                                                                                                                                     1111        ~ rm f1111/1 lll/
                                                                                                                                                                                                          36
                                                                                                                                                                                                                     ~39345                                   10101 Renner Blva
                                                                                                                                                                                                                     U                                        Lenexa. KS 66219
     1: COMPLETED BY COLLECTOR OR EMPLOYER REPRESENTATIVE                                                                                                                                                        SPECIMEN 10 NO.                                  (800) 728-4064
    1p1over Name. Address, LD. No .


     . '.....    :~; '   .
                                         . - '·-                    ·-
                                                                    ,.


Jnor        SSN_ or Employee LD. No.                                                 ~~-~~/.,                IU [YJ                 J   _:-j I ?II ?fJ (                          j   b-j
~ason              lor Test:                    0      Pre-employment                                        0      Random                                  D      Reasonable Suspic•on.'Cause     (Q"Post-Accident
                                                        0 Return)O Duly                                              D Follow-up                                    D Other (specify) _ _ _ _ _ _ _ _ _ _ _ __
ug Tests to be Perlormed:                                                        0   THC. COC. PCP. OPt. AMP                                        0     THC & CDC Only                          0     Other (speci,y)
•llection Site Address:___..                                                                                                                                                                                                ------------
                                                           ,,            .....
                                                    -- i        -    .~                  I .'            i
                                                                                                             /

                                                                                                                                                             ColleciOr Phone No                 U [ZJ EJ -IZJ [L] [2J- bJ [2] CJ [LJ
                                                                                                                                                             Conector Fax No                    [2] [2] W- [ZJ G 0- [ZJ lZJ 0 []
, 2: COMPLETED BY COLLECTOR
l specimen temperature within 4 minutes. Is temperature                                                                                        Specimen Collection
een 90" and 100' F? Uves 0 No. Enter Remark                                [9-'split 0 Single 0 None Provided (Enter Remark)         0 Observed lEnter Remark)
• 3: conector aftixes bonle seal[s) lo bottlejs). Collector dates seal(s). Donor initials seal(s). Donor completes STEP 5 on Copy 2 (MRO Copy)
' 4: CHAIN OF CUSTODY· INITIATED BY COLLECTOR AND COMPLETED BY LABORATORY
1ARKS
y that      the spec.men grven lome by lite donot Identified in the eer'tifir:alion ~er:lion on Copy 2 of ltus lorm was eo/leerei:l, labeled. ~ealed and released to the Delivery SeNice notea in
Jane~       WJI'tl appliCable Federal requirt>men/s.
:!or's Name fPAIN~•rst. ~.EJ..,~,-                                                                                      __                              --,                                                         .-
                                                                                                                                                                                         X.-                                                     -.
                                                                                                                                                                                                                                                         /


ClVl~E f::                                    lr::li
                                       ·~L:....._-'-·-__J~IV
                                                                II "l !i i~l95L2}_1.["ti /- :Qil~_J              ~·-~    ~·j...:___j...::::...__'
                                                                                                                                                                   I
                                                                                                                                                                                          ,.                                      S.gn•IYJr·Of Conec1ot

                                                                                                                                                                                        Is~_Eci~~N -~oTTLE_~~) ,~~~-~~s~D ;~=_:
__:.....___,_••-'                                                                               -·   -                                                      L_..j
Jl Collecti011                                                              T1me o1 Collection
~         .---,~-~
6J-LL!L£-!C
                                       ~~
                                              !~                           ,:'Jl
                                                                            L.J~
                                                                                                ["Tii?.!
                                                                                                ._:::::.1 :__f__j        - 'AM
                                                                                                                                            rp,(
                                                                                                                                            _____;M
)                 DAY                    YR                                      HR                  MIN                                                                                L___               Name ot 0-eh .... ery Serv1ce Trans:emng: Spec•men to Lab

:EIVED AT LAB                                                                                                                                                               Primary Specimen                        SPECIMEN BOITLE(S) RELEASED TO:

                                                            S'Qnalure of Ar;e~!i!iiDni!!'J
                                                                                                                                                                  ... 0 Yes Bottle Seal Intact


                ti51"iiNTI Accessooner s Name fFor•t MI. la5tl                                                              O;o.te lMo.!OayiYr)                   ~    0        No. Enter Remark Below

;p 5: COMPLETED BY DONOR
certify that !provided my urine specimen to the collector;                                                                mar
                                                               J nave not adulterated it in any manner: each specimen bottle used was sealed with a tamper-
viQ.~i          seal
             in my presence: and tfl~t me information provided an this form and an tfle !Hbel affixed to eadl specimen bo!tle is correct.
                             -   r      r·/         /~·             ~~                                                              {/;                 ,.J·-'         ;:/       _._..-;'Jio.-,c~/·~·                                     _,.        /           .- ,-
( ---- ·                 ·· ·-~- ·-·             / · ·/'---··---·--                                                                  ~-l: / r-.1              -         •   1    ' ' - 1~ • • •                                         '.:      /       '    /;:_"" -,
                                          Sqlalutlt of Doner                                                                                             (PAINT I [)ongr's Name 1F11st loll Las!l                                             O.ote (t.loJOay'Yr I

>aytime Phone No                                                                                                        Evening Phone No_                  t""7/ j ( :.· I I ;y\~.,.                                             Date of Birth               7Mo. I   1
                                                                                                                                                                                                                                                                      Day
                                                                                                                                                                                                                                                                          -   {i •
                                                                                                                                                                                                                                                                                 Yr.
:hould the results ot lhe laboratol)' tests lor the specrmen identified by th1s form be ccnlirmed positive. the Medical Review Officer will contact you to ask
 bout prescriptions and over-the-counter medications you may have taken. Therefore, you may want to make a list o' those medical ions tor your own records
'HIS LIST IS NOT NECESSARY. II you chose lo make a list. do so either on a separate piece of paper or on the back of your copy (Copy 5). - DO NOT
'ROVIOE TH!S INFORMATION ON THE BACK OF ANY OTHER COPY OF THE FOAM TAKE COPY 5 WITH YOU
:p 6: COMPLETED                                  BY MEDICAL REVIEW OFFICER· PRIMARY SPECIMEN
lccordance with applicable Federal requirements, my determination/verification is:
0     NEGATIVE                            0     POSITIVE                             0    TEST CANCELED                              0     REFUSAL TO TEST BECAUSE:
                0         DILUTE                                                                                                                    0   ADULTERATED                            0 SUBSTITUTED
MARKS __________________________________________________________________________________________________



                                                                                                                                                          !PAINT 1 M~d1cal            ~ev•ew   Olloee<s Name I Forsl Ml_ las!l

"EP 7: COMPLETED BY MEDICAL REVIEW OFFICER· SPLIT SPECIMEN
"Jccordance with applicable Federal requirements. my derermmationlverification for the split specimen (if tested) is:

    [) RECONFIRMED                                              0         FAILED TO RECONFIRM· R E A S O N - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -




                                                                                                                                                                                                                                                                              43
03/08/2013 03:57:29 PM                                                         713-755-1451                                                                  Page 2/57
               U.S. Department of"\ .1sporta tion (DOT)                                                                                             ..   ··---......... ___ .........         - -- .....
                                                                                                                                                                                                ..         ---~




                           .         . Alcohol ·.t __.ting Form ..,.
                      (The msrrucrronsfor completing rhisfonn ar·e on 1he back ofCopl 3)                                                                                                                            3:;,
STEP 1: TO BE COMPLETED BY ALCOHOL TECHNICIAN                                                                                                                                                                       ~       :...
,\:   Employ~Name         -uA£je£ /9. Iii rc..b eNI
                               •                                                                                                                                                                              : 1. . .
                                                                                                                                                                                                                 .... ::.
                              /'~~- / i.("-'• •r/ (/ ,~ _
                                                                                                                                                                                                                            ~-
                         rf>rintl CFi:'J.-                                                                                                                                                                       ;_..
                                               ;;' I I6
                                                                                                                                                                                                                   :;
B: SSN or Employee ID No.  ~_:;.    ~..:>                                                                                                                                                                          :::::

                                                                                                                                                                                                                   -
                                                                                                                                                                                                                    ~~.




                          ~f.L;x.t> .)TRI!Tc.H J:;...L-
                                                                                                                                                                                                                    .....
C: Employer Name                                                                                                                                                                                                   !:::
                                                                                                                                                                                                                   •:
      Street



                                                                                                                                                                                                                   ··.
                                                                                                                                                                                                                  ;~
                                                                                                                                                                                                                  ~-
      City, Sf ZIP                                                                                                                                                                                            ' '"
      DERNamtand                                                                                                                                         __..-   ......   -~   _,....
                                                                                                                                                                                                                   ~":
      Telephone No.                                                                                                                                      00~                      r:::tUTO 0 1 · 2:4          ,:;-
                                                                                                                                                    ;_~dY~----------
                                   DER Na!M                                                   DER (A.rra Code & Phone Number)
                                                                                                                                                                                                                  ...~
D: Rea50n for Test: OJUndom 0Rononabl• SUip.          ~l·Acddml 0Rrtum to Out~                     0Foll-o,.·up     Drrr·cmploym~nl                                                                               ~
                                                                                                                                                                                                                  -~a


STEP 2: TO BE COMPLETED BY EMPLOYEE




                                                                                         Date        Month          Da~     I      Yur                                                                            ..-
STEP 3: TO BE COMPLETED BY ALCOHOL TECHNICIAN
(lr the lechnkian conductio~ the screening lesl is not the same technician "'ho will be conducling the
confirmation lest. each technician must complete their own form.) I certif~· !hat I ha•·e conducted alcohol testing
ltn the abo,·e named indi•idual in accordance with the procedures established in the U.S. Oeputment of
Tral'lsporlation regula1ion. 49' CFR Pari 411. lhat I am qualified to opcra)e 1he luting d~•icr!sl id~nlilied, and
I hat lh~ resull~ are as recorded.

TECH~ICIAN:Ccl1hT              OSTI       DE\'ICE: OSALJ\'A [)J1(REATH• 15-MinuteWait:                                 DYes            0Nol
SCREENmG TEST: (For BREATH DEl'ICE'             ~>rtre 1111he   space /:>elo .. · Q!1b. rf liu: tesmrg de1•ice '-' wu designed   Ill   a.ti!JJ..I


  Test   fl                                                                                                                      Rosull


CONFIRMATION TEST: Resulrs             MJ1SI be affixed ro e"cl' copy of thiS jomr or pr!nted d1r~ctly onto the form.


REMARKS=-----------------------------------------------------------




                                                                  Pllone l'oumber tA.re-4 Codr & Nurnber)


                                                                                          Datr
                                                                                                          '
                                                                                                     !\1unlh
                                                                                                                    Is~    oL
                                                                                                                    o.. ~ I \' ~ar
STEP 4: TO BE COMPLETED B'f EMPLOYEE lF TEST RESllL TIS O.fJZ OR HIGHER
 )1'1!nif) tllat I ha~e submitled to the alcohol test. the rrsults nr which are accurately recorded on this form. l
 understand lhal I musl not drh·c. perform safrt:r-so:nsith·e dulit!S. or operate he:wy equipment because the
 results art' ().0~ or greater.



                                                                                                                                                                                                           44
                                                                                          Date       ,\lonlh
U,j/UO/LUl~                                  u;:s:o/:29 PM                                                              713-755-1451
                   ..... -.
                                                                                                                                                                                     Page 3/57
                              4
j..r,;;r•• ...,I                  ,~             11U\,.1'114C:I   -. 1 ......
                                       .....-.
                                                                                ...,.-.,p,   1'"-VVU   1\..1
                                                                                                               1--,   r->.'""'   •   - -·-




                                  FleetScreen, Ltd.
                                  6000 Western Place
                                  Suite 480
                                  Fort Worth, Texas 76107


                                  ATTENTION;
                                  Butch Brewer
                                  Te:ns Stretch, Inc.                                                                                            Participant Charles Hitchens
                                  2103 Skinner Road                                                                                           Participant ID:       337
                                  Houston, TX               77o93                                                                                      SSN: 463-45·8865


                                                                                                                                     Results of DOT Controlled Substance Test
                                                     Record Status: Positive                                                                     Laboratory: labOne, Inc.
                                                            Test Type: Post-accident Test                                                                       10101 Renner Boulev.ud
                                       Colle<;tion Date/Time: 0611512006 1:29PM                                                                                 Lenexa, KS 66219-9752
                                                  Batch 10: 20060621                                                                         Collection Site: Texas Sbetch, Inc.
                                              SpecimeoiD: 36639345                                                                                        2103 Skinner Road
                                        Date COC Received: 0612012006                                                                                     Houston. TX 7709'3
                                                      Sample Type: Urine                                                              Specimen Collector: OOUGLAS A SCHOPPE

                                                                  Substance Tested B.!ru!.!l                                                              Substance Tested ~
                                                                     Amphetamines Negative                                                                         Cocaine POSITIVE
                                                                          Marijuana Negative                                                                       Opiates Negative
                                                                      Phei"IC)'Ciidine Negative

                                       In accordance with applicable Federal requirements, my determination/Verification is as above.



                                                                                                :~ : . .Jtlll""
                                                                                                ..............-
                                                                         Garrett R. Tucker Ill, MD, MPH
                                                                                                                                                                             612112006

                                                                                                                                                                          Verification Date




                                                                                                                                                                             ExHIBIT          (b)

                          Results for Cnari.:'S Hitchens. Participant ID. 337 lSSN 4oJ-45-3&ci5)


                                                                                                                                                                                                 45
03/08/2013 03:57:29 PM                                                713-755-1451
                                                                                                                        ~   .   :




                                                                     HAYS IMcCONN
                                                                               Arrorneys or low
 ~lli<CHA-EL 5. HAVS
                                                                                                                                        DIRECT LINE P13J 752-8300
 l::jO~RD C::=t7!~d~c·-   PrqsO,...AL I NJURV T~l"''- LAW
                                                                                                                                           llro'IIHAYS@HAY'5MCCONf'III.COM
 TC::X.A,S 80A-Fi!D OF LEGA ... $PECIALI2:ATJON
                                                                                                                                             www    T   '"'AI.YSMCCONPt.C:OM




                                                                           February 12, 2007


            George T. Jackson
            Burck, Lapidus & Lanza, P.C.                                                                                            FEB 16 Z007
            5177 Richmond, Suite 850
            Houston, Texas 77056


                          Re:        No. 2006-76647; Marcus Brent Patterson, Individually and as Next Friend of
                                     Daniel Patterson and Danae Patterson v. Brewer Leasing, Inc., Texas Stretch,
                                     Inc. and Charles Hitchens, Individually; In the 3341h Judicial District Court of
                                     Harris County, Texas.


            Dear George:

                          As a follow-up to our conversation, I am providing to you the following:

                          1.         The initial investigation conducted by Charles Pollard. Mr. Pollard was retained
                                     by Mr. Johnson to conduct this investigation.

                          2.        The personnel file for Charles A. Hitchens.

                          3.        The title to the vehicle being driven by Mr. Hitchens showing it is owned by
                                    Brewer Leasing, Inc.

                          4.        The dispatch records for 6115/06.

                    I have talked to the drug tester. He indicated there was cocaine in the system of Mr.
            Hitchens and he gave me the number of 43,444 nanograms. I am not sure what a nanogram is.
            When I talked to him, he did not offer any opinion as to whether Mr. Hitchens would or would
            not have been impaired. If you take what Mr. Hitchens said to Mr. Pollard, he apparently did use
            cocaine 6 or 7 days before this accident. It could be that this measurement in nanograms is so
            small it might not render him driving under the influence. We need to get a toxicologist to read
            for us the entire drug screen so we can see whether or not an argument can be made to exclude
            any type of drug activity by Mr. Hitchens because it did not cause or contribute to the cause of
            the accident.




                                                                HAYS. MCCONN. RICE&. PICKERING
                                                                            A Prc>[eHIOnal Corporation

                                                     400 Two Allen Cenler    I 1200   5milh 51reel   I Hou$ron,   Texo$ 77002
                                                  T&lo>nhn"• 711 .... ~4 11' I I Fnnimil ..   711 ... ~n nrn7:    hnv<mrrnnn com                                46
                                            713-755-1451                              Page 5/57
03/08/2013 03:57:29 PM

       ;ebruary 12, 2007
       Page 2


               As a response to your letter concerning contact with Brewer Leasing, Inc., I feel thrs is in
       the best interest of Texas Stretch and Brewer Leasing. Since both companies are Mr. Brewer's
       companies, we need to make sure when you are requesting information for Brewer Leasing, you
       are only getting infonnation from Brewer Leasing.

                                                             Sincerely,

                                                             rrys, McC01m, Rice & Pickering


                                                         i]!'\... . . .---..-
                                                         \     ichael S. Hays

       MSH/bgf
       Enclosure




                                                                                                              47
03/08/2013 03:57:29 PM                    713-755-1451                            Page 6/57




                                   Cltarles Pollard
                                          P. 0. Box 5163
                                       Kingwood, Texas 77325
                                        (281) 361- 6079 office
                                         (281) 361- 6089 fax



          Private Investigations                                      State Lieense # f-.5894

         June 22. 2006

         Mr. John Johnsen
         Atty at Law
         55 VIJaugh Dr #505
         Houston, Tx 77007

         Re: Your client: Texas Stretch Trucking
             Plaintiff: Marcus Patterson
             My file: Q 049

         Dear Mr. Johnson:

         Per the instructions I rac..:;!ived, ! am reporting tc you what l have found out about
         ths June i 5, 2006 accident that involved 8 vehicles on I "I 0 near the Hw; 6
         overpass in western Harris County, Tx.

         I started my investigation by meeting with Butch Brewer of Texas Stretch, at his
         office on June 16. I secured from Butch Brewer a photo CD of scene pictures he
         took at the accident scene the day of (he accident, before the vehicles were
         moved. That CD is attached for your inspection, marked ''Butch Brewer Scene
         Pictures". I had the pictures developed off the CD, see accompanying pictures.
         Note: Butch took pictures at the scene on the day of the accident and then a day
         later returned and shot some pictures of the entrance ramp area and a 55 mph
         sign about a quarter mile west of the accident scene.

         At the time of my meeting with Butch Brewer, I got some of the deta~ls about the
         accident. He explained that the Texas Stretch driver, Charles Anthony Hitchens,
         had been to Mfnera! Resource Technologies, near La Grange, 24 miles off! 10,
         and picked up a ioad of fly .ash \Nhich he was delivering to Campbsll Concrete at
         their southv~··ast Houston bcBt:!on. P!e::!se find attached the Bill of lading, control
         numbar 10152994, attachsd. !t shO'NS Hitchens loaded out at 1 Q am and that his
         foad, truck, end trailer weight \'.!as 79.940, which !s just under the 80,000 ib !oad
         H:ntt. Butd1 exptarnad that Hifchenr 'A'Z:S on a direct route back to the HoliSton


                                                                                        EXHIBIT     ifl_
                                                                                                   48
03/08/2013 03:57:29 PM                    713-755-1451                            Page 7/57




           h!tr. Johr: Johnson
           Juns 22, 2006
           Pa:gs 2

          ar-ea ::t the time of the accident, lJVhich was somewhere ~ro:.md 11 am so far as
          we knew right now. Butch made it to the scene about 1 pm, h;;ving been delayed
          because of the traffic and shot the pictures. He did not talk to rnany people
          er.cspt his driver, Hitchens. Doug Shoppe, dispatcher. also made the accident
          scene in a_ separate vehicle that day. Shoppe took the drug and alcohol sample
          from Hitchens at that time. Butch talked to HPD officer Barr{ Balthrop at the
          scene and thought Balthrop was in charge of the investigc:tion. Balthrop and
          another officer asked about Hitchens, how long he worked fo:· them, what
          condition the truck was in, etc. Butch explained to me that Texas Stretch does
          their own maintenance work and have their own mechanics, headed out by
          Robert Burns, a long time, very experienced mechanic. The truck is an 02
          Peterbuilt, their truck #r 330 and the trailer is #55. Brewer Leasing owns all the
          equipment (trucks and trailers). The trailer is a cement tanker type trailer. Butch
          said Hitchens told him at the scene that he was t;aveling around 55 mph and that
          an the three lanes ahead of him were stopped with traffic. Hitchens hit his brakes
          and was trying to stop but was unable and hit a car and was trying to dodge other
          vehicles as he came to a stop but did hit some other vehicles.

           Hitchens met me at the Texas Stretch office on June 16. Hitchens advised that
           h~? i~ Chark~s Anthony Hitchens, 7250 Colton, Houston, TY 77016, cell phone 832
           858 8378. He 3aid he has worked for Te;;:as Stretch about 3 months_ He said he
           made his pickup at the Fayette Power Co. near La Grange, Tx on the day of the
           a~cident   and was headed back to Houston, eastbound on I 10, traveHng the
           speed limit, 65 to 70 mph. As he approached where the accident happened he
           slowed a bit down to 55 to 60 and was in the left hand lane of traffic on I 10. He
           said the Ford Expedition, driven by Diane Patterson, was the first car ahead of
            him in his lane of traffic. He was behind Patterson about 25 yards, when
            suddenly he saw her brake lights come on and she began to stop. Hitchens hit
            the brakes and tried to stop but was unable and rear ended Patterson. He talked
            about how her car went up in the air on impact. Hitchens then recalls
            sideswiping the white Cyclone Cylinder truck in the center lane of traffic and then
            going on past the Cyclone truck and sideswiping the long foad truck which was
          , just entering the freeway at the entrance ramp. Hitchens then went left and hit a
            Dodge Durango and pinned the Durango against the center guard rail where he
            stopped. He said the long load driver drove on a ways after impact and stopped
             up ahead. After stopping, Hitchens got out of his truck and c~uld see the
            Expedition burning, up against the guard rail. He talked about a wrecker driver
            v1ho was a!ready on the scene, using a fire extinguisher, but the wrecker driver
            cot)d r-rot put cut the fire. Hit~hens said "He !os.t it at this time" meaning he lost
            control of his emotions. He said when he was near the E){peditfon he could not
            hear c:nyone screaming and had no idea if the occupantE- were out of the vehfde
            -:-:- not Hrt.chens sard prtor to the accident hrG truck was opemting properly. He




                                                                                                     49
03/08/2013 03:57:29 PM                    713-755-1451                             Page 8/57




          r·!ir. John Johnson
          June 22, 200&
          Page 3

          recalled talking to a Sgt. VVashington of HPD at the accident scene and how
          '~\fashington put him in his patrol car for a while. Hitchens denies receiving any
          tickets from the accident. Hitchens recal!s writing out a short stc.:tament at the
          scene, about how the accident happened, but does not have a copy. The DOT
          inspector who came to the scene got Hitchens !og book.

          Hitche11s said he had no alcohol prior to the ac:;ident, had not had any in 40 days
          or so; but he does admit to doing cocaine the Friday and Saturday before the
          accident {5 or 6 days prior to the accident). He said he has a good driving
          record, his last ticket was in Gregg County, Tx for failure to control speed when
          he jackknifed his trucK and trailer back in 02. As far as any criminal record, he
          said he was arrested in Georgia back in 1997 when he had a box cutter in his
          pocket, spent one day in jail. In Houston he had a possession of marijuana
          conviction 25 years ago and an unlawfully carrying weapon charge also about 25
          years ago {which was not a conviction).

          I have spent some time on the computer doing research about the accident.
          At1ached is a KHOU (TV Channel 11) article on the accident, a Houston
          Chronicle article on the accident and the Obituarf about Diane Patterson. it
          sh~u!d be noted the KHOU a!so has a 6 minute uncut version of their video ta!1>en
          .::::t the scene, from a helicoptor, that was on their website. Although I captured it
          on my computer, I can't put it on a CO. It does show the scene and the layout of
          the wrecked vehicles following the accident pretty well. Much of the video deals
          with the burning Ford Expedition. The Expedition is damaged so badly that you
          can't make out what kind of car it is. \f.Jhen I saw the car later, I could not tell
          what color it was from a distance because all the paint was burned off.

          I have prepared a diagram which is attached, which shows the vehicles involved
          in the accident. It shows where they ended up. It is certainly not to scale but I
          believe fairly accurate. The confusing part is "How did the Expedition end up in
          front of Pankey's and Valdez' vehicle?" Could it be that Pankey and Valdez piled
          up in a separate accident, behind our accident, or were they ·part of our accident?

          On June 20, Butch Brewer and I went over to the storage lot called KTC, located
          at 1700 Brittmore, Houston, Tx phone 713 468 4242, where tr"le Texas Stretch
          truck is located. On arrival, we were allowed to look at our truck but told not to
          look at any other vehicles involved in the accident We saw from a distance,
          severa.l cf the vehicles. It appears that maybe ail the vehicles are there, except
          the long bad which was drivable from the scene. Vve did not see the iong toad
          tru~k or the motorcycle (but !t lil\e!y wes there also). VVe did see from a distance
          the Cyc!ons CyHnder truck, the silve-r car (Pan!~ey), the 'IIVhtte van \-fatdez:), z.nd




                                                                                                    50
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          f1Jir. John Johnson
          June 22, 2006
          Page4

          the burned Expedition (Patterson). I shot some picturas of the Te~~as Stretch 02
          Peterbuilt and the van and car (from a distance}. My photos are attached on a
          CD marked Pollard pictures and the developed pictures from the CD It should
          be noted that I saw blue paint on the left front of the Peterbuilt and on the right
          fmnt but at a glance it did not appear the same color blue as the Durango. Butch
          and I believe the Expedition was also blue but can't be sure. Butch tool~ some
          additional photos inside the Peterbuilt at that time.

          I have also spent some time tr{ing to contact people connected to the case, in
          hopes of finding out what happened. I found John Pankey's home at 23730
          Hopewell Dr, Katy, Tx 77493 and left a business card with his wife. Pankey
          responded by phone and gave me phone 281 727 6886. Pankey says he was
          traveling I 10 in the left hand lane of traffic and encountered the motorcycle cop
          stopping traffic on eastbound I 10 for the long load that the cop was escorting.
          Pankey stopped in the left lane as he thought he was supposed to, and was the
          first car in the left lane of traffic. He said the white van driven by Valdez was
          stopped behind Pankey. Pankey said our truck rear ended the Expedition, the
          Expedition was knocked into Valdez, and Valdez was knocked into Pankey.
          Pankey then claims that our truck then pushed the Expedition on down the road
          vJhere it began to burn. Pankey said he was alone :n his Chrysler car and has
          scme injuries.

          I also talked by phone to Sgt. Stan Jolly, Harris County Constable Pet. 4 deputy,
          phone 281 376 3472, 6831 Cypresswood, on June 19. He was back at work that
          date and said he had some injuries but was back to work. He did go to a hospital
          from the accident scene. Jolly said he was driving his own motorcycle and he
          and another officer were escorting two long loads on I 1 0, on feeder road
          eastbound. He said he had his red lights and emergency siren going and that he
          was leading the convoy. He got up on 110 and stopped traffic in the right two
          lanes of traffic. He did not intend for the far left lane to stop but they did also. He
          said all three eastbound lanes of traffic were stopped without any problems. The
          first tong load truck entered the freeway at the entrance ramp and went on
          through with no problems. The second long load was just feeding up onto the
          freeway wher. Jolly heard the crash. Jolly was near the Cyclone Cylinder truck
          and saw the Cyclone truck being pushed towards Jolly. Jolly then felt an impact
          which he thought was a vel1icle but it turned out to be the smoke stack from the
          Texas Stretch truck. Jolly estimates he had the traffic stopped for about 15
          seconds when the accident happened. just after Jolly was hit he looked over
          and saw the Exped\tion on flra. He said our truck after hitting Jolly, went ahead
          and struck the long load truckltrai!er in the rear. He said all three lanes of traffic
          were stopped and t11at our truck just came along and stacked them afl up,
          causing the whole 8-ccident.




                                                                                                    51
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           f1.fJr. Johrt Johnson
           June 22, 2006
           Page 5

          I checked Hitchens' criminal record on vi/hat I call the Texas Statewide search,
          and it was negative, see attached document I then did a 25 year search in
          Harris County on Hitchens and found the possession of marijuana back on Jan
          22, 1985, which was a conviction. got 3 days in jail and a fine. Also on 9-18-83
          Hitchens was charged with unlawfully carrying a weapon but it was dismisssd.
          VVhile there at Harris County, I also checked Pankey and Diane Patterson and
          found nothing.

          I also spent some time on the phone trying to contact the insurance carrier for
          Texas Stretch. The company adjuster at 888 389 0598 X 739, Kenton Kaplan,
          gave me claim# 000470329131 for the case, and said he had assigned it to
          independent adjuster Mike Alton. Crocker Claims, phone 832 593 0766 in
          Houston. I called Alton and gave him some details on the case s!nce he was
          getting a late start.

          r also made a trip down to the Houston P·:>lice Department, the Accident Division,
          81 Reisner, Houston. I learned that HPO officer Dane or Dale Harwell is the
          main investigating officer. Another offic-er named Rene Paloma {a male) to!d me
          the case was still under investigation and it would take a 1Nhile before the report
          was ready. He mer1tioned that the District Attorney was involved in the case.
          From my experience, it is going to be several weeks, possibly a month, before
          the report is ready_

          My file is open pending further instructions. twill follow up with HPD for the
          report when it is ready.




                                                                                                52
03/08/2013 03:57:29 PM                    713-755-1451                            Page 11 /57




                                          CAUSE NO. 2006-76647

        MARCUS BRENT PATTERSON                       §             IN THE DISTRICT COURT OF
        INDIVIDUALLY AND AS NEXT                     §
        FRIEND OF DANIEL PATTERSON                   §
        AND DANAE PATTERSON                          §
                                                     §             HARRJS COUNTY, T EX A S
        V.                                           §
                                                     §
       BREWER LEASING, INC., TEXAS                   §
       STRETCH, INC. AND CHARLES                     §
       HITCHENS, INDIVIDUALLY                        §            334th mDICIAL DISTRICT

       Joint Motion of Defendants Brewer Leasing, Inc., Texas Stretch, Inc. and Charles Hitchens
           to Exclude Evidence: Positive Drug Test and Old Weapon Charge Not Admissible

               COME NOW, Defendants BREWER LEASING, INC. ("Brewer Leasing") and TEXAS

       STRETCH,        INC.,   ("Texas   Stretch")       and   CHARLES   HITCHENS       ("Hitchens"),

       INDIVIDUALLY in the above-entitled and numbered cause, and file this Motion to Exclude a!]

       evidence and testimony regarding a positive drug test and an old weapon charge of Charles

       Anthony Hitchens ("Hitchens") and would shows the Court as fol1ows:

                                                         I.
                                               Background

              This matter involves a multiple car collision which took place on Interstate Highway 10

       in Texas. Hitchens drove an 18 wheeler that was involved in an accident. After the accident,

       Hitchens cooperated with the police, was alert and was not impaired. Later, Hitchens tested

       positive on a urine test for the presence of cocaine. In addition, the police accident report

       includes information concerning prior weapon charges that have no bearing on any matter in

       dispute here.




                                                                                 EXHIBIT        _ill_
                                                                                                        53
03/08/2013 03:57:29 PM                      713-755-1451                              Page 12 /57




                                                        II.
                                   Any Testimony Concerning Drug Testing
                                   or Alleged Drug Use Should Be Excluded

        A. Evidence of Drug Consumption is Inadmissible.

               Evidence of alcohol or drug consumption is inadmissible in a case involving an

        automobile accident unless there is further evidence of impairment that caused the accident. See,

        Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727 (Tex. App.--Beaumont 1991, writ denied);

        Bedford v. Moore, 166 S.W.3d 454 (Tex. App. Fort Worth 2005, no pet.); Dorman v.

       Langlinais, 592 S.W.2d 650 (Tex.Civ.App.-Beaumont 1979, no writ); Rampel v. JVascher, 845

        S. W.2d 918 (Tex. App. San Antonio 1992 writ denied).

               For example, in Bedford v. Moore, Edwin Bedford was involved in a motor vehicle

       accident with Rita Elaine Moore. Mr. Bedford died as a result of the accident. Following the

       accident, Moore tested positive in a drug screen for methamphetamines. See Bedford v. Moore,

        166 S.W.3d 454 (Tex. App. Fort Worth 2005, no pet.). The Plaintiff in the Bedford case

       attempted to offer the testimony of Dr. Daniel Drew, a physician retained by the Department of

       Transportation who had analyzed the drug screen conducted on Moore. Upon objection, Dr.

       Drew was not allowed to testify about the correctness of the examination and the effects

       methamphetamine can have on an individual. Mr. Bedford also attempted to offer the lay

       testimony of witness Ronald G. Curry that Moore appeared to be under the influence of drugs at

       the time of the accident and that she appeared to be "hyper." The trial court excluded all

       evidence concerning the drug screen and its results. /d.

              The Court of Appeals affirmed the trial court's ruling, holding:

                      [E]vidence of drug usage must provide some explanation for the
                      negligence and improper conduct. However, this was not present
                      under our facts because Dr. Drew could not tie the presence of
                      methamphetamines in Moore's body to impairment at the time of



                                                                                                            54
03/08/2013 03:57:29 PM                       713-755-1451                               Page 13/57




                       the accident, and therefore could not connect the presence of the
                       drug to causation. ·ld at 465 (emphasis added).

               The Court of Appeals liltimately held that because Mr. Bedford presented no evidence

        that the drugs actually impaired Moore at the time of the accident: "there was no evidence that

        the presence of the drug was a causative factor in the accident. We hold that the trial court did

        not abuse its discretion by excluding the testimony of Dr. Drew or Mr. Curry." ld at 465.

        B. There is No Evidence that Hitchens Was Impaired.

               In this case, none of the many pol ice officers at the scene noted any impairment on the

       part of Hitchens during the investigation. In fact, the investigating officer, Officer Harwell

       stated that no officer at the scene stated that Hitchens was impaired. (See, deposition excerpts of

       Officer Harwell, attached as Exhibit "A").   Moreover~   in the field note section of the police

       accident report, Officer Harwell noted that,

               [Hitchens] did not appear to be intoxicated or under the influence of drugs at
               the scene. The suspect stayed to himself at the accident scene and was on his
               cell phone most of the time.

       (See excerpt from the complete HPD accident file, Exhibit #3 to the deposition of Dean Harwell,

       attached as Exhibit "B").

               The scene supervisor, Sergeant LA Washington, confirmed that he did not observe

       Hitchens to be impaired, and none ofthe officers investigating the scene reported to Washington

       that Hitchens was impaired or that they suspected Hitchens was impaired. (See, deposition

       transcripts of Sergeant Washington, attached as Exhibit ··c").

               In addition, one of the constables involved in the escort duty who was at the scene,

       Officer Norris, had special training in being able to spot drug or alcohol impairment, and he did

       not observe any impairment on the part ofHitchens. (See, deposition excerpts from Officer

       Norris, attached as Exhibit "D").



                                                                                                            55
03/08/2013 03:57:29 PM                       713-755-1451                              Page 14 /57




                Finally, the District Attorney's office declined to prosecute Hitchens for two reasons.

        First, the positive drug test obtained on the date of the accident, which was apparently only a

        screen for any detectible level, provided no information as to whether the substance obtained

        was actual cocaine or a cocaine metabolite, and contained no quantification as to amount of

        cocaine found, if any. Second,

               ... officers at the scene noted no signs of impairment on the defendant. This
               means either they missed the signs of cocaine use or that the cocaine quantity
               was insufficient to cause impairment.

       (See "Case Decline Report" paragraph 4, excerpted from Exhibit #3 to the Deposition of Officer

       Harwell, attached as Exhibit "E").

               Since there is no evidence that Hitchens was impaired, or that his alleged impairment

       caused or contributed to the accident, this Court must exclude any evidence or testimony

       regarding the positive drug test from the trial ofthis case.

       C. Evidence of Drug Consumption is Highly Preiudicial.

               In deciding whether evidence should be excluded, the court must weigh the probative

       value of the evidence against its potential for unfair prejudice or confusion, and must examine

       the necessity and probative effect of the evidence. See Tex.R. Evid. 403. Evidence is unfairly

       prejudicial if it would tend to persuade a jury to determine an issue on an improper basis such as

       emotion or bias. Olivarez v. Doe, 164 S.W.3d 427, (Tex. App. Tyler 2004, no pet.)

               \¥hen a party objects to admission of evidence as unfairly prejudicial; the trial court must

       conduct balancing test, weighing the danger of prejudice against the probative value of evidence.

       See Tex.R. Evid. 403; Campbell v. State, 118 S.W.3d 788 (Tex. App.··Houston (14th Dist.]

       2003, no pet.).




                                                                                                              56
03/08/2013 03:57:29 PM                       713-755-1451                                Page 15/57




               In this case, the highly prejudicial effect ?f the positive test substantially outweighs the

        probative value of the positive test. Because no causal link between any alleged consumption of

        the cocaine and any impairment of Hitchens has been established, this Court must exclude all

        evidence of a positive test or of alleged cocaine use by Mr. Hitchens. This would include any

        testimony or evidence not supported by scientific evidence. Guesses or suppositions that do not

        establish the necessary causal link between the alleged presence of cocaine in Hitchen's system

        and the level of impairment necessary and required by the case law.

                                                   III.
                                      Any Testimony Concerning Old
                                     Weapon Charge Should Be Excluded

       A. Police Accident Report Refers to a 1983 Weapon Charge.

              The complete HPD accident file, Exhibit #3 to the deposition of Dean Hanvell, contains a

       Criminal History Report on Charles Anthony Hitchens that states: "Caution 7 Suspect known

       to carry a weapon," and goes on to describe a 1983 weapon charge, as well as a prior traffic

       violation (See "Criminal History Report," excerpted from Exhibit #3 to the Deposition of Officer

       Harwell, attached as Exhibit "F").

              There is no evidence of a conviction on either matter, and neither matter mentioned in the

       criminal history report has any bearing on the causation or liability in this current litigation.

       B. Evidence of Old Weapon Charge is Highly Prejudicial

              As noted above, in deciding whether evidence should be excluded, the court must weigh

       the probative value of the evidence against its potential for unfair prejudice or confusion, and

       must examine the necessity and probative effect of the evidence. See Tex. R. Evid. 403.

       Evidence is unfairly prejudicial if it would tend to persuade a jury to determine an issue on an

       improper basis such as emotion or bias. Olivarez v. Doe, 164 S.W.3d 427, (Tex. App. Tyler




                                                                                                              57
03/08/2013 03:57:29 PM                      713-755-1451                               Page 16/57




        2004, no pet.)

                When a party objects to admission of evidence as unfairly prejudicial, the trial court must

        conduct balancing test, weighing the danger of prejudice against the probative value of evidence.

        See Tex.R. Evid. 403; Campbell v. State, 118 S.\V.3d 788 (Tex. App.--Houston [14th Dist.]

        2003, no pet.).

               In this case, the highly prejudicial of old weapon charge and a prior traffic ticket have

       absolutely no probative value in this present litigation and should be excluded. See Tex. R.

       Evidence 402 and 403. In addition, the alleged weapon charge occurred more than 25 years

       before trial and should be excluded under Tex. R. Evid. 609 because (a) Plaintiffs have not given

       Defendants sufficient advance written notice of intent to use such evidence, (b) there is no

       evidence of a conviction and (c) the alleged offense occurred more than ten years ago.

                                                     Prayer

               For the reasons stated, Brewer Leasing, Inc., Texas Stretch, Inc., and Charles Anthony

       Hitchens, Individually, pray this Court grant the Motion to Exclude and for all other relief,

       general or special, at law or in equity, to which they may show themselves justly entitled.

                                                    Respectfully submitted,

                                                    BURCK, LAPIDUS & LANZA, P .C.




                                                     LAW OFFICE OF MARVIN PETERSON



                                                                                                           58
03/08/2013 03:57:29 PM                    713-755-1451                              Page 17 /57




                                                    B
                                                           Ma in B. Peterson
                                                           TBN: 15846000
                                                           Mary Ann Starks
                                                           TBN: 19071300
                                                           4611 Montrose Blvd., Suite A210
                                                           Houston, Texas 77006
                                                           Tel:713-222-0004
                                                           Fax:713-222-0166
                                                           Attorneys for Defendant
                                                           Texas Stretch, Inc.



                                                   ::srr~z.LS. =~
                                                          WilliamS. Bush, Jr.
                                                          TBN: 03497500
                                                          24 Greenway Plaza, Suite 1700
                                                          Houston, Texas 77046
                                                          Tel: 713-626-1555
                                                          Fax: 713-622-8077
                                                          Attorney for Defendant
                                                          Charles Anthony Hitchens, lndi vidually


                                           Certificate of Service

             I hereby certify that a true and correct copy of the foregoing has been forwarded to all
       known counsel of record as indicated below on this the ~day of March, 2009:

             Harry Herzog                                 ViaFax: 713-781-4797
             Herzog & Carp, P.C.                          And Ordinary Mail.
             P.O. Box 218845
             Houston, Texas 77218-8845

             George Jackson                               Via Fax: 713-622-8054
             Burck, Lapidus & Lanza, P.C.                 And Ordinary Mail
             5177 Richmond Avenue, Suite 850
             Houston, Texas 77056

             William S. Bush                              Via Fax: 713-622-8077
             Bush & Ramirez, LLC                          And Ordinary Mail
             24 Greenway Plaza, Suite 1700
             Houston, Texas 77046



                                                                                                        59
03/08/2013 03:57:29 PM                   713-755-1451                           Page 18/57




              Lorin R. George                           Via Fax: 713-781-2514
              Jim Adler & Associates                    And Ordinary Mail
              3D/International Tower
              1900 West Loop South, 20th Floor
              Houston, Texas 77027-3214

             Robert L Ramey                             Via Fax: 713-266-1064
             John Elwood                                And Ordinary Mail
             Ramey, Chandler, McKinley & Zito
             One Bering Park, 750 Bering, Suite 600
             Houston, Texas 77057

             Charles W. Lyman                         Via Fax; 713-652-2419
             Lyman, Twining, Weinberg & Ferrell, P.C. And Ordinary Mail
             3600 One Houston Center
             1221 McKinney Street
             Houston, Texas 77010-2009

             Michael S. Hays                            Via Fax: 713-650-0027
             Hays, McConn, Rice & Pickering             And Ordinary Mail
             1233 West Loop South, Suite 1000


                                                      ·~~.A-,_._~·
             Houston, Texas 77027


                                                        MARY ANN-81'ARKS




                                                                                             60
03/08/2013 03:57:29 PM               713-755-1451                          Page 19/57




                                          Attachments


                         Exhibit A    Deposition Testimony, Officer Dane Harwell

                         Exhibit B    Excerpt from HPD Accident File (Harwell Exhibit #3)

                         Exhibit C    Deposition Testimony, Officer L.A. Washington

                         Exhibit D   Deposition Testimony, Sgt. Robert Norris

                         Exhibit E   District Attorney's Office "Case Decline Report from HPD
                                     Accident File (Harwell Exhibit #3)

                         Exhibit E   Criminal Background History from HPD Accident File
                                     (Harwell Exhibit #3)




                                                                                            61
03/08/2013 03:57:29 PM                  713-755-1451                           Page 20 /57

       1   I


    DANE
     '
         t ..' HARWELL                           12/2212008       PAITERSON v. BREWER LEASING, INC.


                                                                                                Page 1
                                        CAUSE NO.              2006-76647
                MARCUS BRENT PATTERSON,                    )    IN THE   DISTRICT       COURT
                INDIVIDUALLY AND AS NEXT
                FRIEND     OF DANIEL    PATTERSON)
                AND   DANAE   PATTERSON                 )
                Plaintiff                              }
                                                       )
               VS.                                     )       HARRIS    COUNTY,       TEXAS
                                                       )
               BREWER LEASING,         INC. ,
               TEXAS     STRETCH,   INC. AND
               . CHARLES   HITCHINS,
               INDIVIDUALLY                            )

               Defendants                              )       334TH    JUDICIAL       DISTRICT



                                ORAL VIDEOTAPED                DEPOSITION     OF
                                          DANE L.          HARWELL
                                         December          22,    2008


                       ORAL   VIDEOTAPED        DEPOSITION         OF DANE L.          HARWELL,
               produced as a witness· at the instance of Defendant
               and duly sworn, was taken in the above-styled and
               numbered cause on December 22, 2008, from 10:22 a.m.
               to 1:47 p.m., ·before Laurie Carlisle, Certified
               Shorthand Reporter "in and for the State of Texas,
               reported. by computerized· machine shorthand, at the
               offices of Hays, McConn, Rice & Pickering, 1233 West
               Loop South, Suite 1000, · Houston, Texas, pursuant to
               the Texas Rules      of Civil        Procedure            and the provisions
               stated on the record or attached                     hereto.
                                                                                         EXHIBIT
                                 CARLISLE REPORTING 713.864.4443
                                      tex.asdepos@sbcglobal.net                    j      A
                                                                                                   62
03/08/2013 03:57:29 PM             713-755-1451                       Page21/57




   DANE L. HARWELL                     12-22-2008     PATTERSO~   v. BREWER LEASING               INC.
                                                                                              1




                                                                                       Page 21
        1

        2

    .3

        4

        5

        6

        7

        B

        9

   10

   11

   12
                 Q.        And up a third it says supervisor on scene,
   13       Sergeant L.A. Washington.             Then _it says suspect
   14       Hitchens, Charles Anthony.             Says,   .. The suspect did
   15       not appear to be intoxicated or under the influence
   16       of drugs at the scene.         The suspect stayed to himself
   17       at the accident scene and was on his cell phone most
   18       of the time. ••
   19                           Do you know who wrote that portion of
   20       this report?
   21           A.         Looks like what I wrote.
   22           Q.         And how can you tell that it would be
   23       something that you wrote?·
   24           A.         Because this looks like the original
   25       report.

                         CARLISLE REPORTING 713.864.4443
                            texasdepos@sbcglobal.net
                                                                  d11Belif4-866b-4a2d·a9Db·99f1 0997 4000

                                                                                              63
03/08/2013 03:57:29 PM            713-755-1451                   Page 22/57




   D/>.NE L. HARWELL                   12-22-2008   PATTERSON v. BREWER LEASING, INC.


                                                                                Page 141
          1

      2

      3

      4

      5

      6

      7

      a
      9

     10

     11

     12

     1]



     14

     15

     16             Q.    Is it fair to say that even if Mr. Hitchens
     17
      '
              tested positive, that that·doesn't necessarily mean
     18       that he was impaired because of a positive test, does
     19       it?
     20             A.    No.   It just means he has cocaine in his
     21       blood.
     22           Q.       And just   be~ause    he tests -- or the test
     23       came back positive, it does not necessarily mean that
     24       that positive test actually caused or contributed to
     25       this incident, does it?

                         CARLISLE REPORTING 713.864.4443
                            texasdepos@sbcglobal.net
                                                                d1688Sf4-666b·4a2d·a90b·99f109974000

                                                                                        64
03/08/2013 03:57:29 PM              713-755-1451                   Page 23/57




    DANE L. HARWELL                       ~2-22-2008   PATTERSON v. BREWER LEASING, INC.


                                                                                   Page 142
           1
                   A.      No:
                   Q.      So this listing of a 68 under factor that
           3
               may have caused or contributed, that has no basis,
          4
               either from your opservatibns of Mr. Hitchens' or
          5
               anybody' s observa t.ions of Mr. Hitchens at the scene.
          6    True?
          7        A.      Well, it goes from the toxicology report
          8    that drugs were in his system.           That•s where it's in
          9    the form.
     10            Q.      I   understand that the toxicology report
     11        came back with a positive result.
     12            A.      Yes.
     13            Q.      What I'm saying is there's nothing that·' s
     14        inherent about simply having a positive result that
     15        necessarily caused or contributed to the accident.
     16        True?
     17           A.       Could be true, yes.
     18

     19

     20

     21

     22

     23"

     24

     25



                         CARLISLE REPORTING 713.864.4443
                            texasdepos@sbcglobal.net
                                                                  d18Be5f4·868b-4a2d·a90b·99f109974000

                                                                                           65
     03/08/2013 03:57:29 PM                                                                           713-755-1451                                                                           Page 24/57




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            .                                                                                                            ;                                                                                       ~




 Hf:'!LT AND ·1 t~ENT AROUND. HIM TO THE LEFT AND HE STARTED PUSHING PIE INTO THE WALL.
 I DIDN'T SEE-THE ACCIDENT I HEARD ABOUT IT LATER.

     DOA ··AT SCENE: DECEASED PATTERSON,                                                                             DIANE YARBROUGH
     uRI VER VEHICLE #2            -  .
 MEDICAL EXAMINER. ROXANNE MENA #9011 BODY CAR 9033
 fiE CASE:# ML06 1823
 ME TOok ANY· ~Ru~cRiY OR .WAS BURNED IN VEHICLE. OFFICER HARWELL TOOK TDL#200401~
     IN
 AID
 FILE.

SUPERVISOR ON SCENE: SGT L.A.                                                                        WASHINGTON 051675 1Z008D.·

 SUSPECT: HITCHENS, CHARLES ANTHONY TDL #eJ6832242 DOB 07/13/63
 THE SUSPECT DID NOT APPEAR TO BE INTOXICATED OR UNDER THE INFLUENCE OF DRUGS A"
 THE SCENE. THE SUSPECT STAYED TO HIMSELF AT THE ACCIDENT SCENE AND WAS ON HIS
 CELL PHONE MOST OF THE TIME.
 TDL RECORD: 03/11/84 NO LIABILITY INSURANCE MUN p HOUSTON
               01/29/88 NO LtABILITY INSURANCE MUN B HOUSTON
               IZIB/27 /01 OtJER 34, 000 LBS TANDEM AXLE Ct•lV NAVARRO CO
                10/05/~f ACCIDENT CMV YES CITATION YES INJURY
               12/23/02 ACCIDENT CMV YES CITATION YES NO INJURY
               07/16/03 ACCIDENT CMV NO CITATION NO NO INJURY
               05/14/05 DENY RENEWAL LTR~1-FTA
               07i11/05 DENY RENEWAL LTR*2-FTA
               09/07/05 DENIED RENEWAL - FTA
               09/08/05 DENIAL LIFTED - FTA
               11/02/05 DUTY STATUS NOT CURRENT CMV CMV HAZ NO CASS CO
JUT OF .STATE:
              07/09/97 SPEEDING 01-10 MPH OVER SPEED LIMIT CMU SOUTH CAROLINA
               10/20/98 SHOW/USE IMPROP-OPERRTOR'S LOG CMV WASHINGTON
              08/1211/02 SPEEDING Ct"'V CALIFORNIA
              09/02/02 SPEEDING CMV CALIFORNIA
:R.J;MINAL HISTORY:
              09/18/03 ARRESTED CARRY PROHIBIT WEAPON CCCL#12/TERRACINA $800 BONl
              09/18/03 TRAFFIC VIOLATIONS MUN CT $81 BOND



                   *********                            LAt-.JGUAGE TRANSLATOR                                        *********
:Ot<fP-#:01 PATTERSON, DIANE YARBROUGH WF056 - NO
ITN-#01 VALDEZ,                            JAVIER EDG~R WM~29 - SPANISH
ITN:---#:02                      PANKEY, JOHN C WM037 - I'JO
ITN--03                          COFIELD      JR.,· TIMOTHY BM027- NO
ITN-#04                          JOLLY, STANLEY DURAN WM043 - NO
ITN-#05                          BiiT1AGE, JIMMY Dl>-JAYNE BNJ.!:154 - NO
ITN-#06                          ALLEN, WILLIE JOHN WM035 - NO
  -N-ift217                      GOFFNEY~ LARRY CHARLES BM031 - NO



                                                                                                                                                                                                       ~~-EX--=B-..IBIT-
-fN~#08                          NORRIS, ROBERT WM000 -NO



                                                                                                                                                                                                                                                       I
ITN-#€19.                        HARTLEY, . CHAD AAHON .WM034 - NO
ITN-#10 LYNCH,                                         GR~HAM RANDALL                                WM032 -                NO


                                                                                                                                                                                                                                        66
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   -   -   ...
  L.A. WASHINGTON 1 JR.                               2-27-2009           PATTERSON v.              BREWE-R



                                     CAUSE NO. 2006-76647
                 MARCUS BRENT PATTERSON . ) IN THE DISTRICT COURT OF
                 INDIVIDUALLY AND AS NEXT )
                 FRIEND OF DANIEL PATTERSON)
                 AND DANAE PATTERSON-      }
                                     -        )
                 Vi! •                        )   HARRIS COUNTY I TEXAS
                                              )
                 BREWER LEASING, INC.,        )
                 TEXAS STRETCR, I~C., AND     )
                 CHARLES HITCHENS,            )
                 INDIVIDUALLY                 ) 334TH JUDICIAL DISTRICT




                                  ORAL VIDEOTAPED DEPOSITION
                                    L.A. WASHINGTON, JR.
                                      February 27, 2009


                         ORAL VIDEOTAPED DEPOSITION OF L.A. WASHINGTON,

                 JR., produced as a witness at the.instance of the
                 Defendant and duly sworn, was taken in the
                 above-styled and numbered cause on February 27, 2009,
                 from 11:53 a.m. to 12:59 p.m., before Terrilyn Paul,
                 Certified Shorthand Reporter in and for the State of
                 Texas, reported by computerized machine shorthand, at
                 the offices of Burck, Lapidus & Lanza, P.C., 5177
                 Richmond, Suite 850, Houston, Texas, pursuant to the
                 Texa~   Rules of Civil Procedure and the provisions
                 stated on the record·or attached hereto.




                                                                                 EXHIBIT

                                                                                    G
                                 CARLISLE REPORTING 713.864.4443
                                         texasdepos®sbcglobal.net
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   'b .A:    WASHINGTON I        JR.       2-27-2009   PATTERSON v. BREWER

                                                                                 Page 23
         1

         2

         3

         4

         5

         6

         7

         8

         5

    10

    11

    12

    13
                  Q.       You    understand that there's a    DOT
    14
             requirement for a post-accident drug screen to take
    15       place, correct?
    lG            A.       Yes.
    17
                 Q.    You·also understand that simply because
    18       someone tests positive for the presence of some type
    19
             of drug, whether it's cocaine or whatever it might
    20       be, the mere fact that they test positive does not
    :n       necessarily mean that they 1 re impaired, correct?
    22           A.        That's correct.
    23            Q.       And that's one of the reasons that trained
    24       officers will try to make a determination in the
    25       field as to whether or not somebody is impaired.

                         CARLISLE REPORTING 713.864.4443
                            texasdepos®~bcglobal.net
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    ·~~A; WASHINGTON,         JR.       2-27-2009   PATTERSON v. BREWER

                                                                             Page. 24
          1   True?
          2
                  A.    That's true.
          3       Q.    And in this case none of the officers that
          4
              were out in the field that spoke to Mr. Hitchens ever
          5   told you while this investigation was going on that
          6   Mr. Hitchens appeared impaired to them, did they?
          7
                  A.       Not as I can recollect.
          a        Q.      In fact, if an officer felt as though or
          9   suspected that Mr. Hitchens was impaired at the scene
     10       of the accident, they would have had an obligation to
     11
              report that to you. Is that fair to say?
     12           A.       They would have.
     13           Q.       They would have had a duty to report that
     14       to you, correct?
     15           A.       Yes.
     16

     17

     18

     19

     20

     21

     22

     23

     24

     25




                         CARLISLE REPORTING 713.864.4443
                            texasdepos®~bcglobal.net

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    '.'t,,        ...

    L.A. WASHINGTON, JR.                         2-27-2009    PATTERSON v. BREWER

                                                                                         Page 25
              1

             2

             J

             4

             5

             Ei

             7

             8

             9

    10

    11

    12
                            Q.     But I guess my question is:
                                                             \
                                                                     There was
    13
                        nothing to indicate at the scene of the accident that
    14
                        you were aware   o~   or that you were made aware of that
    15                  Mr. Hitchens was under the influence of any kind of
    16                  ·drugs to the point where he was impaired, correct?
    17                      A.    ·That's correct.
    18

    19

    20

    21

    22

    23

    24

    25




                                 CARLISLE REPORTING 713. 8"64. 4443
                                    t~xasdepos®sbcglobal.net
                                                                 888ecbf8·d77c-42bfl·9clle·b678db15bOS2
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                          DEPOSITION OF ROBERT NORRIS
      0001
       1         CAUSE NO. 2006-76647
      2 MARCUS BRENT PATTERSON,) THE CIVIL DISTRICT COURT
         INDIVIDUALLY and AS NEXT)
      3 FRIEND OF. DA~EL       )
         PATTERSON and·DANAE     )
         4    PATTERSON                    )
                              )
      5                        )
             VS.                      ) 334TH JUDICIAL DIS'rRICT
      6                           )
                              )
      7       BR:E~WER
               LEASING, INC., )
       TEXAS STRETCH, INC., and)          .
     8 CHARLES HITCHENS       ) HARRIS COUNTY, TEXAS
     ·9
     10
             *******************************************************
     11              VIDEOTAPED AND ORAL DEPOSITION OF
     l2                    SGT. ROBERT NORRIS
     i3                     DECEMBER 16; 2008
    14        *******************************************************
    15
    16            VIDEOTAPED AND ORAL DEPOSITION OF SGT.
    17  ROBERT NORRIS, produced as a witness at the instance of
    18  the Defendant and duly S9.!orn, was taken in the
    19  above-styled and numbered cause on the 16th of ·
    20  December, 2008, from 10:07 a.m. to 1:44 p.m., before
    21  RHONDA RUSSO, CSR, in and for the State of Texas,
    22  reported by Machine Shorthand, at the Law Offices of
    23  Hays, McConn, Rice & Pickerln1, 1233 West Loop South,
    24  Suite 1000, Houston, Texas, pursuant to the Texas Rules
    25· of Civil Procedure.
    0002
     1                 A P P. E A R A N C E S :
     2
               Counsel for Robert Norris and Stanley Jolly:
     3
     4              LAW OFFICES OF R. BURTON SPRINGER
                    3605 Katy Freeway
     5               Suite 210
                   . Houston, Texas 77007
     6               Office: 713.227.2677 Fax: 713.802.0517
     7                  BY: R. BURTON "BURT11 SPRINGER, Esq.
                                                                        EXHIBIT
                                                    Page 1
                                                                        1)
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                            DEPOSITION OF ROBERT NORRIS




      2 · · Q~ That ~ .. I understand that. Let's back up for
      3 a second. You have a llf:etime career in law
      4 enforceDlent, correct?
      5      A. Yes, sir.
     ·6      Q. And I think during one of the breaks I
      7 overheard you telling us you have a lengthy history In
      8 narcotics enforcement. Is that correct?
      9   · A. No, sir.
     10       Q. Did you not have a dog or som~thlng that you
     11 were involved with?
     12 · A. No, sir.
     13       Q. Tell us your background, then, in dealing with
     14 people who appear to be Impaired,
     15       A. Okay. I am a DWI specialist,· sir, and I deal
     16 with alcohol and drug related incidents where people
     17 are driving while impaired. And as such I am a drug
     18 recognition expert which is not -to recognize drugs
     19 · themselves but it'~ to recognize drug cat~gories where
     20 Individuals who have taken some type or aubstance and
     21 e:qtered Into the body causing them to be impa~d.
     22     · Q. Okay. You are an expert in assessing an
     23 individual and evaluating whether they are In any way
     24 impaired at the time that you were talking and
     25 Interacting with them, correct?
     opgo.
     1     A. Mast of the time~' yes~' sir.
     2      Q. I know .that your time period or speaking to
     3   Mr. Hitchens was brief as you testified today. Is that
     4   correct?
     5     A. Yes, sir.
     6      Q. But at the time you talked with him, you had
     7   taken notice or him because in your opinion he was the
     8   vehicle that had gone passed you and had struck the
     9   SUV, correct?
                                            Page 54


                                                                                72
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                              DEPOSITION OF ROBERT NORRIS
       10     A. Yes, sir.
       11     Q. In other words, In simple terms your radar was
       12 up and you were looking at h.im real close?
     . 13    A. I was looking a:t hi.m real close as bein& the
       14 at fault vehicle in a traffic accident, sir.
       15    Q. At the time that you interacted with
       16 Mr. Hitchens, you haci. formed the opinion as a law
       17 enrorcement officlal that he was the vehicle at :fault
       18 for what was obviously a very maJor traffic accident,
       19 correct?
      20     A. Yes, sb:.
      21     Q. And as such you were observing him very, very
      22 closely?
      23     A~ Not as an individual, sir.      .
      24    Q. How would you -- how would you observe him
      25 other than as an indiviclual?
      0091
       1   A. Sir, what ·I was doing I had entered the
      2 situation at the· time. I had -- as you said it was a
      3   major accident, several entities involved. My main
      4   concern on any traffic accident., my first concern is
        5 ror the imjured and also to make sure I don.•t lose
        6 potential witnesses~ suspects. And what I do, I check
        7 everybody and try to obtain some type of identification
        8 if possible. In this case I think I may have obtained
        9 an identification. I can't recall If I did or not fram
       10 him. I may have and may not. I don,'t recall. But I
       11 know my main concern at that time was --.is to identify
     .·12 who I have out there to a point to find out do I have
       13 inJuries, what resources 1•m going to need to respond,
       14 ambulances, fir49, police and so forth and I was on to
       15 the 911 system aud advising them exactly what equlpmeDt
       16 I was going ·to need when it occurred.
       17     Q. I understand that your first, duty and
       18 responsibility out there Ia to make sure that no one
   . · 19 else gets hurt. Seeonc:lly that the people who may be
      20 injured, to try and provide them with care, comfort,
      21 and assistance and those are what you're trying to do
       22 Immediately after an accident, correct?
      23      A. Yes, sir.
      24      Q. And in the process of that, though, you had at
      25 least some interaction with Mr. Hitchens. You spoke
      0092
        1 with him, you got close to him, and may or may not have
                                          Page 55




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   ~    I   •I   "




                                        DEPOSITION OF ROBERT NORRIS
            2        obtained identification from him, correct?
            3           A. Correct.
          4             Q. Considering the severity of the accident, if
        . 5          you had had even the slightest indication in any way
          6          that he was impaired, you would. have brought that to
          7          the attention of the other investigating officers,
          8          wouldn't you?
          9             A. Yes, sir.
       . 10              Q. So, we can assume and know that because you
         11           did not bring that to anyone's attention because you
         12           didn't speak to anyone,. you didn't identify
         13          Mr! Hitchens as being possibly impaired, that there was
         14          nothing about his demeanor in the short perioct of time
         15          that you talked to him that In any way lndicat~d to you .
         16          that he was Impaired in any way?        ·
         17             A. Nothing that ahi.rmed me at that particular
         18          time, sir.




                                                    Page 56



                                                                                              74
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      Case Decline Report
        FURTHER INVESTIGATION NEEDED

        Defendant First: -Charles                             Defendant Last: Hitcnens
        Date of Off!nse:
                                            0
                           6115'2GO'f'-'C.-t::> ~               Date of Reject: 611:1/'ZJXJT
                Offllnsa: Intoxication Manslaughles:
           Officer First: DL                                      Officer Last: Harwell
                Agency: HOUSTON POUCE DEPARTMENT
          Witness Rrst: Diane                                    Witness Last: Patterson
              ADA First: Warren                                      ADA Last: Dlepraam
                  OR#: 92975406
                Reason:
             VATS REVIEWED CASE

             The defendant was driving a tractor trailer eastboUnd in the 148:10 block of the Katy Freeway
             just west of HigtMray 6. Sever.ll Precinct Feu de~ies had stopped freeway traffiC because
             they were escorting an Clllef$ize load. The defendant was not able to see the stq:Jped traffic
             ahead of him foe some unknown reason. He drove into sever.~l cars that had stopped. The
             complainant's vehicle caught fire and she was kiHed.

             The sole act of negligence so far in the case is failing to maintain a proper lookout.
             HONeYer, the defendant has not given a complete statement abaJt why he was looking
             doNn. hoN long he was looking doW'n, etc.

             In a case d this nature, speed is aitical. The HPD has been unable to determine as~ of
             the defendanrs tractoc trailer prior to impact. 1tis l.l'lki"'INTT if this vehicle had satellite -
             trackill;J capablity that wuold be r:1 assistance. Of the fifteen witnesses that HPD spoke to
             (II'ICI!dng the C4 deputies), only a couple cJ them mention speed. Their opinions on speed
             should be more extensively investigated.

             The defent:IMt, due to federal ~tory reqlirements, sltmitted to a uir&ysis -wnich
             tested positive fer cocaine. It Is a.r«nown whether or not the private lab tested for actual
             cocaine, cocaine metabolites, cr quantifted the amourt. Asrl today, tlis lnfamation has not
             been obtaned. Therafore, it is UOOlc:w1 whether the ill'l'lOI.ri rl cocaine is a large dose
             three days ago. s small dose two days cg:~, etc. Additionally, officers at the scene ncted no
             sigr6 rl impairment on the defendant. This means that either they missed the signs d
             cocaine use or that the cocaine CJJ31'1Uty was insufficient to cause impairment. That
             Questioo, hoNever, can't be answered until the adual amounts are obtained by HPD.

             lastly, altho.Jgh this office is a pmsecutorial- off.ce a'ld not an investigatiVe office, the report
             and photos were submitted to a ~vale reconstructionis t for review. Fran the information
             provided to him, he was unable to answel' the above questions.




                                                                                                                                       I
                                                                                                                            EXHIBIT

                                                                                                                                 E.
                                                                                                                                  75
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      ...




                                                                                                     · HOUSTON POL! CE DEP,QRTMENT                                                                                                                                   PAGE:               0Qt1
                                                                                                        CRIMINAL HISTORY REPORT
      H Jl l     '   '   '   ., '1   II '   "   II '   Ji .,   ,   '   '   '    Ui '   U H '     ,   U '    '   '   '   '   .,   ! l   '   '   ,   '   5   7 7 '   !:   U '   U H '    U 1    n U U   ~ ~     II U J tt II U U '           U '     U. !II   II '   ;   '   l   U   ~   ll U ·n U .

      ME: HITCHENS                                                             _,      CHRRL~S                                   ANtHONY                                                                                                   MID#:0000232210
      "   II '   J J ..'     J '     U '    J II '     II ,    ,   t ,. '       II ,   II II   t ,   II   t t , ' '         J    t , t t , ' ,. 7 ,_ J t                U '   II U '   II '   U If IT '   '   II   n ' II 11   i1 II   t   U   7   II '     10 S j     t , u '         11 If U H




      UTION                  -------->                             SUSPECT 1-~NOWN TO CRRRY A ~..JEAPON

      ***********************                                                                             IDENTIFYING INFORMATION                                                                 . *************************
      :E-B     SEX-M     HGT-505                                                                                            l.JGT-130                                   HAIR-BLK                               EYES~BRO                                                Cot•1P-MED
      fE OF BIRTH - 07/13/63                                                                                                                                                                                             PLACE OF BIRTH -                                                 TX

      f**********************                                                                                   SCARS, MARKS,                                      TATOOS                           *************************


  <**********************                                                                                       IDENTIFYING NUMBERS                                                                *************************
      LICif-6832242                                                                                                 STATE-TX                                                              SOCIAL-SECURITY#- 4E.3-45-8055

                                                                                                                    SI D44-IZL3254239                                                                                                  FBI#-315554CA4

             14/t>19R00015                                                                                          LAST-PHOT0-09/lB/83                                                         NCIC-CLASS-15 61 C0 P0 15
                 S9UD0013                                                                                           PALMS-Tt='IKEN-                                                                                                    1!Zt 15 13 17 12



  **********************                                                                                   RELATIVE INFORMATION                                                                   *************************
  ATIVE NAME                                                                                                                                       ADDRESS                                                                                                  PHONE
 HER                         ANNETTE PEALS                                                                                                         7038 RICHWOOD                                                                                          7136456245

**********************                                                                                          ALIAS INFORMATION                                                                *************************
AS NAME                                                                                                                                        R/S           DOB                ·DRIVER-LICENSE#                                                            SOC-SECt~


:HENS                                           !   CHARLIE                                                                                    I           071363

~*********************                                                                                     ARREST INFORMATION.                                                                  *************************
TORY#: 001                                                                          ARREST DATE: 09/18/83                                                                                       JAIL BOOKING#: CB24142
=::       ADDR:                7038 RICHI·JOOD
:UPATION: CLERK - OFFICE
~ST LOCRTI0~:3600 UNKNOWN
=-sTING OFFICERS: NO#'  071538
   DISPOSITION: RELEASED ON BOND/MADE BOND                                                                                                                                     JAIL DISPOSITION DATE:09/18/~3

:.'NSE-1: CARRY PROHIBIT t--JEf:u:ioN .                                                                                                                                                                            INCIDENT#:                                56438883
~GE •..••                      :CARRY WEAPON(729709)IN CCCL#12/TERRRCINA,                                                                                                                     $800 BOND
)OSITION:

~NSE-2:. TRAFFIC VIOLATIONS <OTHER)
                                                                                                                                                                                                                                                 EXHIBIT
mE ••••• :TRAFFIC IN i•1UN CT, $81 BOND
                                                                                                                                                                                                                                                      F 76
03/08/2013 03:57:29 PM                                713-755-1451                                         Page 35/57
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                     CIIIJlle Cll\ tor antl Zle""'Dg tho Joh\-t Motlon otDcfendants mewet' Leutng',

             Inc., TeAS Stra~ tnc. BDcl Cbadee Hit.ebcna to Ex:cluda Bvtdonae~ Poalttvc Drug

            Teat ~d Old Weapon Cba.qe Not.Admll.slble, a:Ad the C()u.rt.. ha'YUlg ~sldeied

            the motion. rea,~ II.D.d argu:trlent rd' coun.set. ftnd• that the matlaa. hU merit
            and eb.ould ba gnm.ted. It :IS.,         thet~.

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            $ball b!: C11C01udll4 frOXIl tho hoB:dng       t.ftbe Jmy 1\.t 'tbc trtal ot th1a cause:
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                                                                                                            EXHIBIT&

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                                                                                                                          79
03/08/2013 03:57:29 PM                             713-755-1451                     Page 38/57




I, Loren Jackson, District Clerk of Harris
County, Texas certify that this is a n-ue and
correct copy of the original record filed and or
recorded in my office, electronically or hard
copy, as it appears on this date
Witness my official hand and seal of office
this Anril 4, 2009

Certified Document Number: 4162~552 Total Pa~cs: 3




        ._..           ~      .:~
•• ~.   •
        < •.,.•y. __   ;..,r / ....... .
                       ••   •• ~o;   '   •




LOREN JACKSON, DISTRICT CLERK
HARRIS COt:NTY, TEXAS




In accordance with Texas Govetnment Code 406.013 eled.ronically transmitted authenticated
documents are valid. lfthere Is a questlon regarding the validity of this document and or seal
please e~mail support@hcdistrictclerk.com




                                                                                                 80
                                                                                                              Page    :j~   1 or
                                                        713-755-1451
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                                              LEASEA.GR.EEHENT




   TRACTOR Clr1NF:B.   T/.~XAS          ST12t[c}l ::r n1 c                      s. s.    No •._ _ _ _ _ __

   ADDK.ESS_~/)r-/..:...0-=-3___:;:.5..!_/c......:../.:...._/I}...L_f'L.:::._:'L=-::f?.___:___ _PRotm NO.7J 3 6 t I /).. 17   7
                      f/OUSTOnJ /J;¥. 77o9J


   ::::_S_NAKE_:===,:z:1:;:~:z::?=..,.~-~~===========;~~ ::~==================
   herein after·referred to as Lessor. do hereby eater 1nto this agreement for the
   1ease of the fo~lowing equipment under the axp~ees eerms and condit~ons set forth
   be lew~

   HAKE   !l.<>o:l. fa/!             SElUAL     uolke!JD8.9X:l.:J..pS2.89/.5-
                                                           •
                                                                              LICENSE N0.!2JJ!t 3 7'-/

          In ~orusideration of the pt'ovi.sic:ms and covenants herein cant ained, 1 t                                is urut:\13.~ly
   ag~eed    as   foll~s:

        1. The lessor's rate of pay shall be                        '/A
                                                  percent for power tmit and                                            3()
   perceut for tractor trailer combinations of~Revenue on treignt ~ed all Tar±ff.

         2. That I.enee uill pl.ace &igns on said equip'Dient shoving tbat this equipment
   is leased to and operated by Lessee and that upon tena.ina.tion of this contract by
   ei.tber pau.y auch IJir;ns v1~l. be removed by Lessor • .and Lessor agrees t.be failure ~o
   remove such a1gn3 will            xesul~     in damagem to Lessor.

         3. 'That Le:~~•or vill equi.p said equipment Vich ligbts and reflectors as re-
   .quired by th@ Interstate Comaaerce Coma:islilion aud prortde all accessorial equipment
    as requir~ by rules and re.p1.at:10DJJ oa said equip111ea.t at all times vbe.n ia. use of
    Lessee. and k.eep the equ:lp111eut up to the llini~~Nm .nechanical n~quire.ment:.11 as. set forth
    in the :rules ltllld regulatious. Lessee re~terves the xight: to :tnspect sai.d equipment at
    any c:bne or place while 1n ita use ca assure compliance with auch proviai.ons •

      . · 4. 'fbat l.essoT vill obtain and paJ foT all necusary state license tags and
    registrations and affix same to said cquipmeot and pay for and supply all gasolinet
    oil. tiTes, repairs, and suppl1u necessary co aai:nt:ain operating effic~eacy.
    Purthcn:·. 't..ot!uor shall pay aU -.i1eage • f11el.. and bighway t:axes and post a 11 bcmds
    necessaTy and required by various sta~es.

         S. 'l'hat 1t is expre:ss1y u.nderctood by the part:ies hereto that: all drivers.
    helpers BDd}or agent:• of Le~sor used to fulfill this coa~ract are employees of
    Lessor and lessor assumes respoueibili                     g f;a••~ cfc hecs, helpers r
                                                             . • . per a n ~ to hours of
    servt~~ ·and ma~neeoance of equ~p~n~ aud eh~ll as&ure that all drive~s Maintaia a
    daily log as required aud forward co Les5ee &aid log sheets daily.

                                                                                                                                   ~ PLAINTIFFS
                                                                                                                                   ~     EXHIBIT
                                                                                                                                   li~    )) OL
                                                                                                                                   ~

                                                                                                                                         81
                                                                                         page q.u' ':'
                                                713-755-1451
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            6.        Lessee does not agree to furnish physical damage insurance for Loss.

            7. That Lessor will furnish Lessee with a doctor's physical examin4C~on
    cer:t ificate oo any and tll~ drivers of sa.1.d equipment in accordance with t:he Rules
   aud lte.gulat:l.ons of I .C. C.

         8. 'that Lessee aa:sumes and will be respon&i.ble. far snd agrees co furnish
   adaquate protection to the p~bl~c and the shipper~ for automob~le bodily 1nj~ry.
   P~Dperty d~ge,            and cargo   liab1l~ty.

            9.        That dur1ng the terms o! this agreement, 'U!&sor vill furuis"h adequate
   protect~ou          as to Ieoder Leas~e harale5s fram clai~s ar1s~nz from daua~e or ~njury
   to any    thi~d       party resulting from bobtail1ng of Lessot's equipbent.

         10. ~ac during the te~ of this agrecmeot, eaid equipment w~11 be made
   avail.able to and cont'rolled 'by Lessee at all times, and all drivers and other
   employees of Lessor US:I!!d in connection \litli this contract will also be under full
   control. direction and supervision pf Lessee, or ~~s agent.

        11. l'bat l.e.tlsor ag1:ces t:h.at equipment herein described :1s t:o be u.sed e:x-
   elusively by Lessee and in a;he event said Lessor • his driver, employee, or agent
   £hal1 ileviate from tbe t:.et'1116 of this contract • by the transportat:ion of freight:
   for ano~her, e~ther gratuitously, or for hi~~, or by deviation fro~ oa;her terms,
   then ch~s contract is auto~tically suspended until the equip~nt is returned to
   service of Lessee~ end that Le.Gsee sball be hannless fioe~~ suc.h deviation.

        U_ That t:his Agreement shall be in full force and effect until terminated
   by either party hereto, but not leGs than 30 days~ by vritten nctice delivered by
   eithe~ party signatory hereto in person if an individual, or to any offLcer
   ~hereofsaid party is a ~orporation. Said agreemenc also may be cancelled or term-
    1nat:e.d by depos1.ticg in t:hc U.S. Mail a not1.ce of such caneellat:icrn. properly add-
    re~sed. po~ted. and that said party or offiter bereof is evidenced by che return
    registered receipt or upon cbe said Tefusal of sa~d addTeasee to aecept delivery
    thereof. and upon te.radnati.on of th::ls agreemenr. Lessor ag-r:ec:o 'to -ret:urn to Le.ssee
    all equ~p0ent, supplie.s. pe~1.ta, •nd o~h~r pTaperty of Lessee to che nearest
    te~inal wt~h~n S days. or be charged thirty (30) ceots per mile for retrieving
    of such property by Lessee.

         13.          'l'ba.t :if Le:saor or 1ds ageut. i.s nnA.ble to deliver car)to hauled uu.der t:his
    ~gTeement to the destination upon an agreed time, Lessor vill ~diately notLfy
    Lessee. o~ the ~onsignee of such cargo of the probable delay. and ~hat faiLure to
    give such not1f1cacions will be construed a~ negligence on the part of the Lessor.

           14. That. Lessee t~h.all be illlpovered to cha.tge Lessor all _claims for shortages.
    losse.s. or damage to cArgo which are not the result: of a.cc.i.de.u1:. 1.nvo~v1.nJC; tllc
    equ'1.p~~~enr coveted by t.bi.s agree.eeut.

         15. !hat Le3see will charge the fLr&t $100.00 of any ela~m for public liab~liey
    oT property damege due to negligence of Le$SO~. his dr~ver. or agent, and fu~the~
    the lessee vil1 cbaTge Lesso~ for all dalll&ges to cargo cause.d by neRli~ence of
    Lassor. his dr~~er. or &Je~t •




                 .·




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         16 • The Le&oor vill be responsi.ble to Le,.;s-ee for ds.rnag~ to Le.:s :!lee' a equipment
    or propert-y d8..11lages as a result of Lessor 1 9 6tri.king any vi.aduc:t, lav overhead, or
    other 3~a~1onary objec~ thrnugh caTelessness or neglect of Lessor, his driveT. or
    ~tent.                                           ,

         17. Th•u:·LessoT shall not: br: paid for acy load vrecked e>r damaged ia t:ransit
    and returned to origin point.

         18.   The Lessee shall charge Lessor in full fot' any ~ml all water dat~~S.Rc t.o
    cargo ceused by neglect of Lessor, his driver, or agent.

         19. The Lessee ~111 hold from the Lessor's earnings a total of $ZOO.OO. The
    said $200.00 less any clai~s. ro be refunded to Lessur or Le&see v~~htn a p~~~od
    of not less than thirty days and not to excead nLaety days of the termination of
    the lease by et~her party.

         20. The Lessor shall ye~urse the ~essee for any fin~s or penalties Faid by
    the lessee aa a re3ult of i~lega1 or criminal acts co~tted by the Lessor. his
    driver~ or agent.


         21-   All 1n5urange. Fay~o11 ~axes, state employment taxes 6hal1 be paid by
    ~ssee and charged back to Lesso~.   Any iucrease in above will be charged or any
    decrea~e 9111 be adjusted in cost.




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                                              CAUSE NO. 2011-64488

          MARCUS BRENT PATTERSON,                           §                   IN THE DISTRICT COURT
          INDIVIDUALLY, AS INDEPENDENT                      §
          ADMINISTRATOR OF THE ESTATE OF                    §
          DIANE PATTERSON, and AS NEXT                      §
          FRIEND OF DANIEL PATTERSON and                    §
          DANAE PATTERSON, and DANIEL                       §
          PATTERSON (now 18 yearsofage)                     §
                                                            §
                         Plaintiffs,                        §
                                                            §
           v.                                               §                  334th JUDICIAL DISTRICT
                                                            §
          BREWER LEASING, INC.                              §
                                                            §
                         Defendant.                         §                  HARRIS COUNTY, TEXAS


                                                 JURY CHARGE

          MEMBERS OF THE JURY:

                 This case is submitted to you by asking questions about the facts, which you must decide
          from the evidence you have heard in this trial. You are the sole judges of the credibility of the
          witnesses and the weight to be given their testimony, but in matters oflaw you must be governed
          by the instructions in this charge. In discharging your responsibility on this jury you will
          observe all the instructions which have previously been given you. I shall now give you
          additional instructions which you should carefully and strictly follow during your deliberations.

                  Do not let bias, prejudice or sympathy play any part in your deliberation.

                  In arriving at your answers, consider only the evidence introduced here under oath and
          such exhibits, if any, as have been introduced for your consideration under the rulings of the
          Court, that is, what you have seen and heard in this courtroom, together with the law as given
          you by the court. In your deliberations, you will not consider or discuss anything that is not
          represented by the evidence in this case.

                  Since every answer that is required by the charge is important, no juror should state or
           consider that any required answer is not important.

                  You must not decide who you think should win, and then try to answer the questions
          accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the
          effect of your answers.


                                                                                          ExHIBIT         '7
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                  You will not decide the answer to a question by lot or by drawing straws, or by any other
          method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors
          agree to abide by the result to be reached by adding together each juror's figures and dividing by
          the number of jurors to get an average. Do not do any trading on your answers~ that is, one juror
          should not agree to answer a certain question one way if others will agree to answer another
          question another way.

                   You may render your verdict upon the vote of ten or more members of the jury to
          Questions 1, 2, 3 or 6. The same ten or more of you must agree upon all of the answers made
          and to the entire verdict. You will not, therefore, enter into an agreement to be bound by a
          majority or any other vote of less than ten jurors. Questions 4 and 5 may only be answered
          '"Yes" or with a dollar amount if the jury is unanimous. If the verdict and all of the answers
          therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the
          entire jury. If any juror disagrees as to any answer made by the verdict, those jurors who agree
          to all findings shall each sign the verdict.

                 These instructions are given you because your conduct is subject to review the same as
          that of the witnesses, parties, attorneys, and the judge. If it should be found that you have
          disregarded any of these instructions, it will be jury misconduct and it may require another trial
          by another jury; then all of our time will have been wasted.

                The presiding juror or any other who observes a violation of the court's instructions shall
          immediately warn the one who is violating the same and caution the juror not to do so again.




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03/08/2013 03:57:29 PM                     713-755-1451                              Page 44/57




                  When words are used in this charge in a sense which varies from the meaning commonly
          understood, you will be a given a proper legal definition which you are bound to accept in place
          of any other meaning.

                  A fact may be established by direct evidence, by circumstantial evidence, or by both. A
          fact is established by direct evidence when proved by docwnentary evidence or by witnesses
          who saw the act done or heard the words spoken. A fact is established by circumstantial
          evidence when it may be fairly and reasonably inferred from other facts proved.

                In this case any witness or lawyer may comment on Mr. Hitchens' claim of privilege, and
          you may draw any inference from his refusal to testify that you believe is a reasonable inference.




                 Answer questions "'Yes" or '"No" unless otherwise instructed to answer them with
          percentages or dollars. A "Yes" answer must be based on a preponderance of the evidence
          unless otherwise instructed. If you do not find a preponderance of the evidence supports a "Yes"
          answer, then answer "No".

                 "Preponderance of the evidence" means the greater weight and degree of credible
                 testimony or evidence introduced before you and admitted in this case. Whenever a
                 question requires an answer other than '"Yes" or "No", your answer must also be based
                 on a preponderance of the evidence.




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03/08/2013 03:57:29 PM                     713-755-1451                               Page 45/57




                                                QUESTION NO. 1

                 Did the negligence, if any, of any of the people or entities listed below proximately cause
          the occurrence in question?

                 "'Negligence" means failure to use ordinary care: that is, failing to do that which a person
                 of ordinary prudence would have done under the same or similar circumstances or doing
                 that which a person of ordinary prudence would not have done under the same or similar
                 circumstances.

                 "Ordinary care" means that degree of care that would be used by a person of ordinary
                 prudence under the same or similar circumstances.

                 "Proximate cause" means that cause which, in a natural and continuous sequence,
                 produces an event, and without which cause such event would not have occurred. In
                 order to be a proximate cause, the act or omission complained of must be such that a
                 person using ordinary care would have foreseen that the event, or some similar event,
                 might reasonably result therefrom. There may be more than one proximate cause of an
                 event.

                 Please answer "Yes" or "No" for each of the following:

                 Answer:        Charles Hitchens

                                Williams Brothers Construction

                                Ray Bellew and Sons




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03/08/2013 03:57:29 PM                    713-755-1451                               Page 46/57




          If you answered "Yes" to Question 1 for more than one of those named below, then answer the
          following question. Otherwise, do not answer the following question.

          Assign percentages of responsibility only to those you found caused or contributed to cause the
          occurrence. The percentages you find must total 100 percent. The percentages must be
          expressed in whole numbers. The percentage of responsibility attributable to any one is not
          necessarily measured by the number of acts or omissions found. The percentage attributable to
          any one need not be the same percentage attributed to that one in answering another question.

                                               QUESTION NO.2

                 For each person you found caused or contributed to cause the occurrence, find the
          percentage of negligence attributable to each:

                 Answer:        Charles Hitchens                    ---------------------%
                                Williams Brothers Construction                          %
                                                                    --------------------

                                Ray Bellew and Sons
                                                                    --------------------%
                                Total:                                         100
                                                                    --------~~--------
                                                                                               %




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03/08/2013 03:57:29 PM                     713-755-1451                           Page 47 /57




          If you answered ''Yes" to Question 1, then answer Question 3.       Otherwise, do not answer
          Question 3.

                                               QUESTION NO. 3

          What sum of money would have fairly and reasonably compensated Diane Patterson for-

          a.    Pain and mental anguish.

                "Pain and mental anguish" means the conscious physical pain and emotional pain,
                torment, and suffering experienced by Diane Patterson before her death as a result of the
                occurrence in question.

                Please answer in dollars and cents for damages, if any.

                 Answer:       $
                                   --------------------
          b.    Funeral and burial expenses.

                "Funeral and burial expenses" means the reasonable amount of expenses for the funeral
                and burial of Diane Patterson reasonably suitable to her station in life.

                Please answer in dollars and cents for damages, if any.

                Answer:        $
                                   --------------------




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03/08/2013 03:57:29 PM                      713-755-1451                                Page 48/57




          If you answered "Yes" to Question 1, then answer Question 4.             Otherwise, do not answer
          Question 4.

                                                 QUESTION NO. 4

                  What sum of money, if paid now in cash, would fairly and reasonably compensate
          Marcus, Daniel, and Danae Patterson for their damages, if any, resulting from the death of Diane
          Patterson?

                 Consider the elements of damages listed below and none other. Consider each element
                 separately. Do not award any sum of money on any element if you have otherwise, under
                 some other element, awarded a sum of money for the same loss. That is, do not
                 compensate twice for the same loss. Do not include interest on any amount of damages
                 you find.

                 Please answer separately in dollars and cents for damages, if any.

                 a.      Pecuniary loss sustained in the past.

                 '"Pecuniary loss" means the loss of care, maintenance, support, services, advice, counsel,
                 and reasonable contributions of a pecuniary value, that Marcus Patterson, Daniel
                 Patterson and Danae Patterson in reasonable probability would have received from Diane
                 Patterson had she lived.

                 Answer:        Marcus Patterson        $ ________________

                                Daniel Patterson        $ -----------

                                Danae Patterson         $ ----------------

                 b.      Pecuniary loss that, in reasonable probability. will be sustained in the future.

                 Answer:        Marcus Patterson        $--------------~--
                                Daniel Patterson        $
                                                            ---------------------

                                Danae Patterson         $
                                                            ---------------------
                 In determining damages for elements c, d, e, and f, you may consider the relationship
                 between Marcus, Daniel, and Danae Patterson with Diane Patterson, their living
                 arrangements, any extended absences from one another, the harmony of their family
                 relations, and their common interests and activities.




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03/08/2013 03:57:29 PM                      713-755-1451                               Page 49/57




                 c.      Loss of companionship and society sustained in the past.

                 "Loss of companionship and society" means the loss of the positive benefits flowing
                 from the love, comfort, companionship, and society that Marcus Patterson, Daniel
                 Patterson, and Danae Patterson in reasonable probability would have received from
                 Diane Patterson had she lived.

                 Answer:        Marcus Patterson        $~---------------
                                Daniel Patterson        $ _ _ _ _ _ _ _ _ __

                                Danae Patterson         $ _ _ _ _ _ _ _ _ __

                 d.      Loss of companionship and society that. m reasonable probability. will be
                         sustained in the future.

                 Answer:        Marcus Patterson        $ _________________

                                Daniel Patterson        $----------

                                Danae Patterson         $
                                                            -------------
                 e.      Mental anguish sustained in the past.

                "Mental anguish" means the emotional pain, torment, and suffering experienced by
                Marcus Patterson, Daniel Patterson, and Danae Patterson because of the death of Diane
                Patterson.

                 Answer:        Marcus Patterson        $ _________________

                                Daniel Patterson        $
                                                            -------------
                                Dana.e Patterson        $ -----------

                 f.      Mental anguish that. in reasonable probability, will be sustained in the future.

                 Answer:        Marcus Patterson        $ _________________

                                Daniel Patterson        $
                                                            -----------
                                Danae Patterson         $ ------------




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                g.       The fair market value ofthe Patterson's Ford Expedition on June 15. 2006 before
                         physical contact occurred with the Brewer Leasing tractor-trailer.

                "Fair market value" means the amount that would be paid in cash by a willing buyer who
                desires to buy, but is not required to buy, to a willing seHer who desires to sell, but is
                under no necessity of selling.

                Answer:         $   --~~~------------




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          Answer Question 5 only if you unanimously answered "Yes" to Question 1. Otherwise, do not
          answer Question 5.

          To answer "Yes" to Question 5, your answer must be unanimous. You may answer "No" to
          Question 5 only upon a vote of ten or more jurors. If you cannot unanimously answer "Yes" and
          if you cannot answer "No" upon a vote often or more jurors, please indicate "No Consensus".

                                               QUESTION NO.5

                 Do you find by clear and convincing evidence that the death of Diane Patterson resulted
          from gross negligence attributable to Brewer Leasing, Inc.?

                 "Clear and convincing evidence" means the measure or degree of proof that produces a
                 firm belief or conviction of the truth of the al1egations sought to be established.

                 "Gross negligence" means an act or omission by a driver,

                         (a)   which when viewed objectively from the standpoint of the driver at the
                               time of its occurrence involves an extreme degree of risk, considering the
                               probability and magnitude of the potential harm to others; and
                         (b)   of which the driver had actual, subjective awareness of the risk involved,
                               but nevertheless proceeded with conscious indifference to the rights,
                               safety, or welfare of others.

                 You are further instructed that Brewer Leasing, Inc. may be grossly negligent because of
                 an act by Charles Hitchens if, but only if, Brewer Leasing, Inc. ratified or approved the
                 act.

                 Please answer "Yes" or "No" or "No Consensus":

                 Answer:




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          Answer Question 6 only if you unanimously answered "Yes" to Question 5. Otherwise, do not
          answer Question 6.

                                                 QUESTION NO. 6

                 What sum of money, if any, should be assessed against Brewer Leasing, Inc. and
          awarded to Diane Patterson's estate, Marcus Patterson, Daniel Patterson, and/or Danae Patterson
          as exemplary damages for the conduct found in response to Question 5?

                 "Exemplary damages" means any damages awarded as a penalty or by way of
                 punishment but not for compensatory purposes. Exemplary damages includes punitive
                 damages.

                 You are instructed that you must unanimously agree on the amount of any award of
                 exemplary damages.

                 Factors to consider in awarding exemplary damages, if any, are-

                         (a)    The nature of the wrong.
                         (b)    The character of the conduct involved.
                         (c)    The degree of culpability of the wrongdoer.
                         (d)    The situation and sensibilities of the parties concerned.
                         (e)    The extent to which such conduct offends a public sense of justice and
                                propriety.
                         (t)    The net worth of Brewer Leasing, Inc.

                 Please answer in dollars and cents, if any.

                 Answer:        $
                                    --------------------




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          If in your answer to Question 6 you entered any amount of exemplary damages, then answer
          Question 7. Otherwise, do not answer Question 7.

                                             QUESTION NO. 7

                 How do you apportion the amount of exemplary damages awarded between Diane
          Patterson's estate, Marcus Patterson, Daniel Patterson, and/or Danae Patterson?

                Answer by stating a percentage for each person named below. The percentages you find
                must total 100 percent.

                 Answer:      Diane Patterson's estate
                                                         --------------------%
                              Marcus Patterson
                                                         --------------------%
                              Daniel Patterson           --------------------%

                              Danae Patterson
                                                         ---------------------%
                              Total                                 100            %
                                                         --------~~---------




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                                               QUESTION NO. 8

                  Did Brewer Leasing, Inc. commit fraud against Diane Patterson's estate, Marcus
          Patterson, Daniel Patterson, and/or Danae Patterson?

                Fraud occurs when-
                       a.     a party makes a material misrepresentation, and
                       b.     the misrepresentation is made with knowledge of its falsity or made
                              recklessly without any knowledge of the truth and as a positive assertion,
                              and
                       c.     the misrepresentation is made with the intention that it should be acted on
                              by the other party, and
                       d.     the other party relies on the misrepresentation and thereby suffers injury.

                "Misrepresentation" means a false statement of fact.

                Answer "'Yes" or "No".

                Answer:




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          If you answered "Yes" to Question 8, then answer Question 9.       Otherwise, do not answer
          Question 9.

                                                 QUESTION NO. 9

                What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
          Diane Patterson's estate, Marcus Patterson, Daniel Patterson, and/or Danae Patterson for their
          damages, if any, that were proximately caused by such fraud?

                 Consider as damages only expenses incurred that would not have been incurred if no
                 fraud took place. Do not include interest on any amount of damages you find.

                 Please answer in dollars and cents, if any.

                 Answer:        $
                                    --------------------




                                                                                                     97
03/08/2013 03:57:29 PM                       713-755-1451                              Page 56/57




                  After you retire to the jury room, you will select your own presiding juror. The first
          thing the presiding juror will do is to have this complete charge read aloud and then you will
          deliberate upon your answers to the questions asked.

                 It is the duty ofthe presiding juror-

                 to preside during your deliberations,
                 to see that your deliberations are conducted in an orderly mmer and in accordance with
                 the instructions in this charge,
                 to write out and hand to the bailiff any communications concerning the case that you
                 desire to have delivered to the judge,
                 to conduct all voting on the questions,
                 to write your answers to the questions in the spaces provided, and
                 to certifY your verdict in the space provided for the presiding juror's signature or to
                 obtain the signatures of all the jurors who agree with the verdict if your verdict is less
                 than unanimous.

                 You should not discuss the case with anyone, not even with other members of the jury,
          unless all of you are present and assembled in the jury room. Should anyone attempt to talk to
          you about the case before the verdict is returned, whether at the courthouse, at your home, or
          elsewhere, please inform the judge of this fact.

                  When you have answered all the questions you are required to answer under the
          instructions of the judge and your presiding juror has placed your answers in the spaces provided
          and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at
          the door of the jury room that you have reached a verdict, and then you will return into court
          with your verdict.




                                                                                                           98
03/08/2013 03:57:29 PM                     713-755-1451                              Page 57/57




                                                   CERTIFICATE
                  We, the jury, have answered the above and foregoing questions 1, 2, 3, 4, 5, 6, 7, 8 and 9
          as herein indicated, and herewith return same into court as our verdict.
          (To be signed by the presiding juror if unanimous.)



                                                 Presiding Juror


          (To be signed by those rendering the verdict if not unanimous on either question 1, 2, 3, 4, 8 or
          9)




                                                                                                         99
Appendix
   20
e4te112aa9    12:53     71322213166                       LAW MARVIN PETERSON                       PAGE   64/M




                                        CAUSE NO. 2006-76647

        MARCUS BRENT PAITERSON                        §       IN THE DISTRICT COURT OF
        lNDIVIDUALLY and AS NEXT                      §
        vruENDOFDANrnLPA~ON                           §
        And DANAE PATTERSON                           §
                Plaintiffs,                           §
                                                      §
        vs.                                           §
                                                      §
        BREWER LEASING, Il\C..                        §
        TEXAS STRETCH, INC. and                       §
        CHARLES HITCHENS                              §
             Defendants.                              §
                                                      §       HAR.RlS COUNTY, TEXAS
        JAVIER VALDEZ and LARRY C.                    §
        GOFFNEY                                       §
                Intervenors                           §       334 1 !1 JtJDIC!AL DISTRICT

                              SupplcmentaJ Response of Texas Stretch, Inc.
                          to Plaintiffs' Motion for Partial Summarv Judgment

                COMES NOW Texas Stretch, Tnc., Defendant in the above-entitled and numbered

        cause, and files its Supplemental Response to Plaintiffs" Motion for Partial Summary

        Judgment as follows:

                                                     I.
                                               Introduction

                This is a supplemental response on the issue of whether or not Defendant driver

        Charles Hitchens, Individually, was an employee of Texas Stretch.lnc., at the time of the

        June 15, 2006 multi-vehicle collision made the basis oftlJis suit.

                                                    n.
                    The Coll'or ate Representative bas testified that Hitchens was
                 the emplovee of Texas Stretch. l nc.. but not of Brewer Leasing. Inc.

                In his deposition on March 13, 2009, the tr.lnseript of which was received after

        the deadline for filing written responses to Plaintiffs' Motion for Partial Summary

        Judgment, General Manager Lonny Box testified by deposition as the corporate
                                                                                                    PLAINTIFF'S
                                                                                                     EXHIBIT
                                                                                               I       hs-
64/01/2809   12:53     71 32226166                      LAW MARVIN PETERSON                       PAGE 05/0':1



                             -
        representative of Defendant Texas Stretch, Inc. At page 36lines 3 through 12 and at page

        37 lines 19 through 22 of his depositiou Mr. Box testified that Charles A. Hitchens was

        the employee ofTexas Stretch. Inc., and that "any lawyer that says Hitchens is the

        employee of Brewer Leasing, Inc. is wrong." See Exhibit A, excerpts from the

        deposition of Lonny Box.

                                               Condusion

               Based upon the deposition testimony of its General Manager. Texas Stretch, Inc.,

        withdraws its objection to a finding that Defendant Charles A. Hitchens was an employee

        of Texas Stretch, Inc., on June 15, 2006.

               WHEREFORE, PREMISES CONSIDERED, Defendants Texa$ Stretch. Inc.

        respectfully concedes that Defendant Charles A. Hitchens was an employee of Texas

        Stretch, Inc., on June 15, 2006.

                                                    Respectfully submitted,

                                                    LAW OFFICE OF MARVIN PETERSON


                                                    BY:
                                                           ;:;;~!:;;;-~
                                                         TBN: 15846000
                                                         MARY ANN STARKS
                                                         TBN: 19071300
                                                         4611 Montrose Blvd., Suite A2JO
                                                         Houston, Texas 77006
                                                         Tel: 713-222-0004
                                                         Fax: 713-222-0166
                                                    ATTORNEYS FOR DEFENDANT TEXAS
                                                    STRETCH, INC.




                                                    2
04/ 01/2009   12:53    7132220166                        LAWMARVIN PETERSON




                                           Certificate of Service

                 I hereby certify that a true and correct copy of the foregoing has been fozwarded
         to all known counsel of record as indicated below on this the l;t" day of April, 2009:

                Harry Henog                                   Via Fax Only: 713-781-4797
                Herzog & Carp, P.C.
                P.O. Box 218845
                Houston, Texas 77218-8&45

                George Jackson                                Via Fax Only: 713-622-8054
                Burck, Lapidus & Lanza, P.C.
                5177 Richmond Avenue, Suite 850
                Houston, Texas 77056

                WilliamS. Bush                                Via Fax Only: 713-622-8077
                Bush & Ramirez, LLC
                24 Greenway Plaza, Suite 1700
                Houston, Texas 77046

                Richard Stucky                                Via Fax Only: 713-781-2514
                Jim Adler & Associates
                3D/International Tower
                1900 West Loop South, 20th Floor
                Houston, Texas 77027-3214

                Robert L. Ramey                               Via Fax Only: 713-266-I 064
                John Elwood
                Ramey, Chandler, McKinley & Zito
                One Bering Park, 750 Bering, Suite 600
                Houston, Texas 77057

                Mike Hays                                     Via Fax Only: 713-650-0027
                Hays, McConn, Rice & Picketin.g
                1233 West Loop South, Suite 1000
                Houston, Texas 77027




                                                     3
                                                               LAW MARVI N PETERSON               P~Wt   07/ tl':l
  04/81/2809   12:53   7132220156
                                      {) \J'-1 \0-       I l '1 J I"




                                                                                  UAR 1 9 2009


                                    Transcript of the Testimony of
                                                     Lonny Box

                                          Date: March 13, 2009

                          Case: Patterson, et al v . Brewer Leasing, et al ·




                                          ' .   ·-




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                                      .   "
04 / 61 /2069          12 :53        7132226166                                        LAW I•IARVI N PETERSON                                 PAGE         0B/ 09




                                                               p,.gc 37                                                                      Page 39
          1    Mr. Hit<heru; b an employee C>fBrewer Leesing is wrong.           l          Q. How much do you gel paid now.M g<r~=l mBnDg<:r?
      2        Conut1                                                            2              MJUiAYS: Whr.- Jtlstaminutc. Whyis
      3                 MR. PETERSON: Objccti.on, fOtm.                          3        that relevant?
      4                 MS. HlLTY: Objection, fonn.                              I                   MR. HERZOCT. Well, 1 thi!U und<:r the 600
      5                 MR. IIERZOO:     ru - ru change Ute                      s        S<!ries, it's an appropriate question.
      6        gta.J:nmeT.                                                      6                    MIL HAYS: The 600 scri<:s, is that a
      7         Q. (BY MR. HERZOG) Any lawyer that say•                         7         tnlctor or what? Just !cidmng. But why is it relevant?
      8        Mr. Hitchmu was an employee of B~ Leesine, comma                  9        What'•- l'oday. Bccal19Chc doesn't work·· 1 guess ..
      9       lm>,, is jQst 'l¥l'Cng. Com:ct'l                                  9                    Do you get paid by Texas S!l'elch today'/
   10
   ll
                A. I oan'tan•wcrthat.
                Q. Why not?                                                 ........
                                                                            lO
                                                                                            Q.
                                                                                                   THE WriNESS:        y.._I®.
                                                                                                 (BY MIL HEP..ZOCl) r11 ask that question. Do you
   12           A. Disruss.ions with my attomcy.                            12            get paid by Tt~tes Strct<h now'l
   13           Q. Okay.                                                    13              A. Yes, I do.
   14                   MR. BAYS: Yon ore free to lll!S....,. anything      14              Q. Hourly? W""""y? Monthly?
   15         off of document!. I don't wa!ll to lead bim to think ihat     13              A. It'> a yoarly .saluy.
   7'
   -•         he can't get a full aoswcr because I don~ wanl him            16              Q. Ol:.ay. And whal is U..t sal3ry?
   lJ         fil ing some motion wit!> tb.c Court. So -                    l7              A.   llS,OOO.
   l.S            • . W111 ~" ··•·     ' ?                                  lS              Q.   Why did Brewa Leasing relinquish m:nc of its
   19           Q. (BY MR. HERZOG) Sure. Any lawyer that seys               19           operating amhoritr with the United States Department of
   20         Charles Hitchens was an t131ployec of B!OWer·teax\ng is       20           Transpon.tjrm7
   Zl         just wrong?                                                   Zl                      MS. HILlY: Objo:<:tion, form.
   n            A. C<>nect.                                                 22              A. Ask that, again. pl..ase.
 ~3             Q. He was, from lbe day it<> applied for employment         23              Q. (BY MR. HERZOG) Has Brewer Le>sing lost some                If
   z~         and ........ hi~ to the day of me wn>ek, an omploycc oi       2~           its or rcljnquishc4 scm.c of its opc:nrting authority from
   25         Texas Stretch?                                                25           lile United States Department ofTranapoT'o4tion7
                                                               Page 38                                                                       Page 40
      l                 MS. HILlY: Objection, form.                             ~            A,. Brewer Lc:asing didn't have authority with Ute
      2          J\. Con'ect.                                                  z         Ullitcd StateS Department ofTnm5ponation.
    3           Q. (BY MR. HERZOG) Now y<>u indicsted earlier tha              3             Q. Did it bave it with 1X DOT?
    4         you had goQe back to Texas Snctch en Tuly 26th, 2006.             4            A. Yes.
    5         That was the da!!o from. your memory?                            5             Q. Okay. Has Bnower Leasing :elinquislted some of
      6          A. That's corn:.ct.                                           &         i'-' operating lllllhority witb !X DOT?
      1          Q. But the 1-9 from for Mr. Hibobcns has you                  7             A. Yes, it has.
      B       sieJ!ing it on behalf of the company and dating it Juoe          8             Q. Why?
   9          I Oth. Do you sec that? (Hands document)                       9               A. Brewer Loosing is a teasin~; company. It was
  10                   MR. PETF•.P..SON: Objection., frmn.                  10           formed as a teasing company, and it was my job to go bee
  11             A. Ycs,ldu.                                                11           to lhc business plm who! i t wa. CJeaied. It dOCllll't
  '12            Q. (BY MR. HERZOG) Okay. Can you C><PI~in that t           12           n:ed to be o motor carrier. It's tt leasing t:OD'IJ>lUlY·
  13          mc7                                                           13              Q. Does Texas Stretch still maintl:in an ICC number?
  H              4.. WeH, 1 was employed at Ametican Water Serviee.s:.      14              A. At this time,. yes.
  15          I was st:J.r'ting my own compliance n:view company nr.d h     15              Q. Docs Texas Sln:tcn sri!! maintain • Tcltas
  16          di.sc~$se.d wilh Mr. J:lrnwer ab()Ut doing his eompliancc     16           Department of'l'nuupottation nlltnber?
  l7          J'Cview_ AJ)(I we had entered into an agreement, and l just   17             A. At th~s time, yes.
  lS          began lhat type of work for him.                              15             Q . /!o.nd do.,. 'tcxos Stretch still m~intain • United
  19             Q.   So yoo were lin employee of Amcrico.n Wal"--r         19           Slates Depfl(tn'lcn.t ofTrunsportation nUT1').bq7
  20          Senriccs in Jane of2006, but you had a s ide job as a         20             A. At this time. yes.
  21          eompfia.nee administrator-or comptianoe officer-, and you     21              Q. But Brewer Loosing ha.< given up it3 TX DOT
  22          were freelancing ro, various companies around town?           22           numbu?
  23            A. Com::ct.                                                 23              A. That"; correct.
  2-1           Q. Did you make g01ld money a! it?                          24              Q. Did Br<wer Leasing hov< a logo, the State of
  25            A. I didn't -· lt didn't last ve.7 long.                    23           Te.><as, with tbo n.amc Brewer Leasing on tOp ofit7
          '   . --·                                                                                                                      .
                                                                                                                10 (Pages 37                 ~o      40)
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                                                 713-739-1400 (FAX) 713-739-1410
                              7132220166                                LAW MARVIN PETERSON                                     PAGE 09/ 09
04/ 01/2009 12:53



                                                       Page 33                                                               !?age 35

   1        Q. Let's take a look at Exhibit I. Do you                  l      Q. ADd you were in-;olved in that? (IDdicating.)
   2      JW)gcizc that?                                               2      A. TGat's correct.
   3        A. Yes.                                                    3      Q. And 011 behalf of w.hicb company?
   4        Q. What is that?                                           4      A. Texss Stretch, Inc.
      5     A. ll's llll Application For Employment.                   5      Q. Mr. Hilcbens received a Fair Cn:dit Reporting
      5     Q. Bywbo?                                               5      Act Disclosure Statement 011 April! 0, 2006.
      1     A. Ch8rld Hitcb=.                                       7         A. Correct.
      9     Q. Who <lid ho want to ~pply for employment with7       8         Q. Prom which company?
   9        A. T=s Stretch, Incorporated.                           9         A. Texas Sftctcb, lac.
  1o        Q. Does &ower Leasing employ any drivm?                10        Q. EverypaycbeckthatMr. aitcb.=~receivc
  11        A. No.                                                 11      was frnm Texas Stretl:b, Jnc. Cotr=? (Indicating.)
  12        Q. Does Brewer I..easilla overpay • driver to drive    12         A. C-omd..
  13      an 18-wbeelerbigrlg?                                     13         Q. .">ll.d Te.ta9 Stretch, lnc., prepared trunaaction
  14        A. No, notto my knowledgo.                             l4      reports showing his pl!.}"""..hecka.   c~
  lS        Q. Woul.ditbe=ttouythatMr. Rilchcns                    15         A. Om-eel.
  16      applied for employrn=l D.ll what dtte?                   15       Q. On lh~ day of the collision, June IS, 20~,
  17        A. 4-10-~.                                             17      Mr. Hitebens was driving a load of fly ash from lhe
  18        Q. Okay. Aprill0thof2006,Mr. Hitch= applied            18      Fayette Power Plant to the Campbdl Concrete in
  19      foremploynu:ntwit~'> TexuS!retth,!nc. Correct?           !9      Cleveload, Teus. Cornet? (lndicating.)
  20        A. Cor=t.                                              20        A. Com:ct. .
  21        Q. Te:<ai StretCh, Ioc.. die! a preemployment drug     21        Q. ADd according to the bill oflading, who wash
  22      testonJrim. Troe?                                        22      driving for?
  23        A. Correct.                                            23        A. Texas Stretch, lm:.
  24        Q. Test was done on Aprilll. 2006?                     24         Q. Ha"" you seen Brewer Leasmg's o.omc in tmy c
  25        A. I dod! aee that.                                    25      the dot:liDleiJ~ tb.at we jus< discussed with rc&afd to
                                                       Pa<;!C 34
   1        Q. It c:uto£flbe 4, but uy looking right over             1      Mr. Hitcheru' employmc:al?
      ~   !here. flndicatina.)                                     _!2_.........;A
                                                                                ~-~N~o:_!.l~i:s:!:ve~not.!!!!:__~-"7"-:-:::----:-:,--·l
      3       A. Ycs.                                               ~           Q. Wo-Jb! >""" agr= wilb m.c that 100 perunt of the
      q       Q. And - ond !hat te.•tsay> dull the eollection         '                                                       ""''an
                                                                             wrillm documen"'l\on incf.cAtcs !hot Mr. Hil<h<:ni
   5      s:ite sddtess w:a& Texas St:n::lch. comma, I.ne:., in       5      cnlf)loyoe ofTexu Srtctch. comme, Inc;.?
   6      handwritillg, and typed up in Section A, EmployerNamt       ~         A. Yeo.
   7      Corrco:t1                                                   1                 MS. HILTY: Objeoti,..,, fonn.
   8        A. CorreeL                                                a         Q. (BY MR. HI!RZOG) Would yo~ agree witll me, os the
   9        Q. Te<as Streteh did a preemployment license check        9      general mmager of<ho company, thot Mr. Hitchc:.,• was an
  10      on Mr. B.i«heM. • Motor Vehicle Rocords ..arch. True     10        employu ofTexos Strctc:h, Inc.?
  11        A.   Com>ot.                                            n                   MS. Iill.TV: Ol:jeaioo, form.
  12
  u
             Q. A.od it tays the ClU!O!l)et is Texas St7<:t<:b7
             A. Co~Ttct.                                           13
                                                                                   ..
                                                                   LlD2i--~A.nY~~-7.1iuiE!I~;c)c;;;;;;;;;;;;;;:-;~-;;;;~-
                                                                             Q. (BY MR.                  ) Con you e<plain to me why som. ~
  14         Q. Me. Hitchens signed an. Employment Agreement o     H       peOple. paniculorly lowyers in thio room, have contcndtd
  1.5     A.pril10,2006. b lharrighG                               15      foryeant:batMr. Hitdl=wucctlmemp~cofTeJW
  16         A. That's corm:l                                      !6      Srn:IUo, thal m-.1, be wu"" ""'J'I">""' of Browe:
  l7         Q. ADd it S>ys at the top, the very fiutline.         :7      Lea1ins?
  lS      Texu St.-eteh, lne. Correct?                             18                ~HAYS: Again, to lbo extent that it
  29         A. Cc.m....:t                                         19      callt for An)'1t\in.g h•ving communJca1lon;, with the lawyer,
  20         Q. And witbjn the body of the d:x:umcnt, twice it     20      J jll$lwtntto mmndyro.ycu can~ testify to ic
  ?.l     refen to Tau Stretch, Inc.?                              21      Otherwise, wt.at yw havelook.d 01 u.d what you lt.ve
  22         A. Correct.                                           22      rCviewod, youcen on.swc:r.
  23         Q. Mr. "I:HtchC))S filled out on I-9 Depruttnent of   23             M!l PETERSON: And objoclion, form.
  24      l U$1ice foan. (Indicating.) Cornet?                     24        A. Can't :mswcr.
  25        A.    Correct.                                         25        Q. (BY MR. H.ERZOG) Any lawyer that $>J1>

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