









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-00-00158-CR
______________________________


TIMMY JACKSON, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 98F0628-202





Before Cornelius, C.J., Grant and Ross, JJ.
Opinion by Chief Justice Cornelius

O P I N I O N

	A jury convicted Timmy Jackson of injury to a child.  The jury assessed his punishment at
five years' confinement.  Jackson challenges only the legal sufficiency of the evidence.
	Barbara Gladden, an investigator for the Texas Department of Protective and Regulatory
Services, testified that her department received an anonymous telephone call informing them that
a child had been severely burned.  The call was received on July 15, 1998, and the caller stated that
the child was burned on July 12, 1998.   The caller only identified the child and his mother by their
first names.  Gladden testified that she immediately began to search for the child by visiting various
housing projects and bingo halls and leaving messages at those places.   Gladden testified that on
July 16, 1998, the child's grandmother brought the child, two-year-old J.A., to her office.  She
testified J.A. had burns on his buttocks; his scrotum; the back of his left leg, up to mid calf; and the
top of his left foot.  Gladden immediately removed J.A. from his mother's home and took him to the
hospital emergency room.  Later, J.A. was taken to the burn center at a children's hospital in another
city.  
	Officer Steve Shelley testified that he took a voluntary statement from Jackson about a week
after J.A. was removed from the home and taken to the emergency room.  In his statement, which
was published to the jury, Jackson stated that he was taking care of his live-in girlfriend's children
on July 12, 1998, when J.A., one of the children, soiled himself.  Jackson said he and J.A.'s mother
had been trying to "potty train" J.A.  Jackson said he took J.A. upstairs, ran some water in the
bathtub, using both the hot and cold water, until the tub was one-quarter full.  He took J.A.'s clothes
off,  then checked the water, and let J.A. stand in the tub.  Jackson said that while he left J.A. in the
tub to clean himself with a washcloth, he went downstairs to check on some food that was cooking. 
Approximately two or three minutes later, Jackson returned and told J.A. to rinse himself.  Jackson
then went back downstairs, but returned less than a minute later to find J.A. out of the tub.  He then
helped J.A. dry himself.  Jackson said he did not notice anything unusual about J.A., and he had not
heard J.A. make any cry or other complaint, but that later J.A.'s mother noticed that he had a blister
on his left leg, which they treated with a first aid kit.  
	Gladden and Officer Bill Eubanks testified that they went to Jackson's home to measure the
temperature of the water that ran into Jackson's bathtub.   They testified that they let the hot water
run for three to five minutes and measured the temperature of the water flowing from the tap and 
collecting in the tub.  The water flowing from the tap registered at 123 degrees at its hottest; the
water that collected in the tub registered 120 degrees. 
	Doctor Charles Barton, who treated J.A. in the emergency room, testified that J.A. suffered
from second-degree burns, which is a painful burn characterized by blistering, sloughing of skin, and
the risk of scarring and dysfunction resulting therefrom.  He testified that the pattern of burns on J.A.
was more consistent with hot water being poured on J.A., rather than J.A. having sat in or been
dipped in hot water. Photographs showing the location of J.A.'s burns were identified by Barton and
other witnesses.  Barton testified that J.A. would have had to remain dipped in 125-degree water for
one and one-half to two minutes to sustain the kind of burns he suffered.  Barton also testified that
the location and nature of J.A.'s burns were not consistent with J.A. standing in the tub or turning
on the water himself.
	In his defense, Jackson called J.A.'s grandmother, Trina Fleming, who testified that she saw
J.A. in the evening of July 12, 1998, that he had been burned on his foot and part of his body, but
that the burn had not yet blistered.  Yolanda Crowder, J.A.'s mother, also testified that when she
returned home on July 12, 1998, J.A. "had one little mark on the back of his leg."  Fleming testified
that J.A.'s injuries did not begin to blister seriously until about four days later, after J.A. went outside
in the heat.  She met with Gladden the following day. 
	In his own testimony, Jackson reiterated the statement he gave to police, denying that he
intentionally injured J.A.  He admitted, however, that J.A.'s injuries occurred while he was in
Jackson's care on July 12, 1998, and that none of the other children who were home at the time could
have caused the injuries. 
	In reviewing the legal sufficiency of evidence, we look to see whether, after viewing all of
the evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 61 L.Ed.2d 560, 573 (1979); Lane v. State, 933 S.W.2d 504, 507 (Tex. Crim.
App. 1996).  We must evaluate all of the evidence in the record, both direct and circumstantial,
whether admissible or inadmissible.  Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
	A person commits an offense if he (1) intentionally, knowingly, or recklessly, (2) by act or
omission, (3) causes serious bodily injury, (4) to a child.  See Tex. Pen. Code Ann. § 22.04(a)
(Vernon Supp. 2001).  Here, the State alleged that Jackson intentionally (and not knowingly or
recklessly) committed an act (rather than an omission) that caused J.A. serious bodily injury.
	The State's theory was that Jackson became enraged because J.A. soiled himself; that he
carried him upstairs and put him in the tub; that he went downstairs and got boiling water from a pot
where the water was being boiled to make macaroni; that he took the hot water and poured it on
J.A.'s buttocks; and that the water dripped down on J.A.'s genitals and on the back of his left leg and
the top of his foot.
	Jackson contends the State failed to prove that he injured J.A. intentionally.  His theory at
trial and on appeal is that he did not burn J.A. by putting him in the tub or by pouring hot water on
him.  His defensive theory was that J.A. could have turned the hot water on and burned himself. 
Either way, Jackson contends, the evidence is insufficient to show he acted intentionally.  Neither
Jackson nor anyone else testified that he recklessly caused J.A.'s burns.
	To prove its case, the State relied on its evidence that the water flowing from the tap into the
bathtub never reached more than 123 degrees.  Evidence showed that at such a temperature, J.A.
would have had to remain exposed to the water continuously for over one and one-half minutes to
suffer second-degree burns.  The jury could have rationally concluded that no small child would have
remained exposed to water heated to such a high temperature for more than a few seconds.  Evidence
showed that J.A. was capable of getting out of the tub by himself.  Moreover, Jackson admitted that
J.A. stood in the tub for the entire time he was there, yet there were no burns on his legs or feet
except a small place on the top of one foot, and a burn on the back of the left leg at about mid calf
height.  Also, Barton testified that J.A.'s burns could not have been the result of his sitting in or
standing in the tub.
	The jury chose to believe the State's theory that Jackson poured water on J.A. that was hot
enough to inflict second-degree burns.  That theory is supported by evidence showing that exposure
to water temperatures of 145 degrees or more for three or fewer seconds could inflict second-degree
burns.  In addition, Barton's testimony demonstrates that J.A.'s injuries are more consistent with hot
water being poured on him, rather than with someone dipping him in hot water or causing him to
stand in hot water.
	Furthermore, Jackson admitted the injuries occurred while J.A. was in his care on July 12,
1998.  A rational jury could have concluded beyond a reasonable doubt that Jackson caused J.A.'s
injuries by pouring hot water on him.
	The judgment is affirmed.
 
							William J. Cornelius
							Chief Justice

Date Submitted:	October 18, 2001
Date Decided:		November 6, 2001

Publish

e essentially arguing the court can act as an expert by applying the "criteria" to the
facts of this case.   
	There is no expert testimony bridging the analytical gap between the origin of a fire in the
left rear area of an engine compartment and the conclusion that the SCDS in that area was the cause-
in-fact of the fire.  While the evidence creates a strong suspicion that the defect caused the fire, the
suspicion is just that, a suspicion.  In Tamez, the Texas Supreme Court held that circumstantial
evidence establishing, among other things, a design defect containing a possible ignition source was
not more than a scintilla of evidence of the actual cause-in-fact of the fire.   Id. at 583-84.  Whether
the SCDS caused the fire involves complex questions of chemistry, electrical engineering, and
hydraulic engineering.  The issue is beyond the general experience and common understanding of
a layperson.  Expert testimony was required to establish the SCDS was the cause-in-fact of the fire. 
Because the Driskills presented no expert testimony on causation other than the location of the origin
of the fire, there is less than a scintilla of evidence that the SCDS was the cause-in-fact of the fire
in this case.  The trial court did not err in granting Ford's and Sensata's no-evidence motions for
summary judgment.
	The Driskills' gross negligence claim fails for the same reasons as its negligence claim.  A
defendant "cannot be grossly negligent without being negligent."  Trevino v. Lightning Laydown,
Inc., 782 S.W.2d 946, 949 (Tex. App.--Austin 1990, writ denied); see Shell Oil Co. v. Humphrey,
880 S.W.2d 170, 174 (Tex. App.--Houston [14th Dist.] 1994, writ denied).  Because there is no
evidence of causation, the trial court did not err in granting summary judgment on the gross
negligence claims.
(3) 	A Res-Ipsa-Loquitur Argument Has Not Been Preserved
	In the alternative, the Driskills argue that the doctrine of res ipsa loquitur applies to this case. 
The Driskills, though, failed to raise res ipsa loquitur in their response to the motions for summary
judgment.  As argued by Sensata, (9) the Driskills cannot raise res ipsa loquitur for the first time on
appeal.  A summary judgment cannot be reversed on appeal based on an issue that was not expressly
and timely presented to the trial court by written response or other document.  Tex. R. App. P. 33.1;
Tex. R. Civ. P. 166a(c); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.
1979).  Because the Driskills failed to raise the issue in the trial court, this argument is not preserved
for appellate review.
	Because the trial court did not err in granting Ford's and Sensata's no-evidence motions for
summary judgment, it is not necessary to consider whether the trial court erred in granting Ford's
traditional motion for summary judgment or whether the component part manufacturer doctrine
shields Sensata from liability. (10)  We affirm the judgment of the trial court.


							Josh R. Morriss, III
							Chief Justice

Date Submitted:	September 10, 2008
Date Decided:		October 17, 2008
1. This case was transferred to this Court from the Tyler Court of Appeals as part of the Texas
Supreme Court's docket equalization program.  We are not aware of any conflict between the
precedent of the Tyler Court of Appeals and the precedent of this Court on any issue relevant in this
appeal.  See Tex. R. App. P. 41.3.
2. The Driskills nonsuited du Pont before the summary judgment proceedings. 
3. In the interest of convenience, we will refer to Texas Instruments as Sensata regardless of
the status of the corporate entity at the relevant times.
4. Ford's motion for summary judgment is both a no-evidence and traditional motion for
summary judgment.  Because we do not reach the issue of whether the trial court erred in granting
Ford's traditional motion for summary judgment, we will merely recite the standard for a no-evidence
motion.
5. Because we hold herein that there is no evidence of proximate cause, we need not decide
whether there is evidence of a product defect.  "A product may be unreasonably dangerous because
of a defect in manufacturing, design, or marketing."  Uniroyal Goodrich Tire Co. v. Martinez, 977
S.W.2d 328, 335 Tex. (1998).  The Driskills contend there is more than a scintilla of evidence of
both a manufacturing defect and a design defect.  Ford challenges the evidence supporting a product
defect.  Sensata does not challenge the existence of a design defect.  A manufacturing defect exists
"'when a finished product deviates, in terms of its construction or quality, from the specifications or
planned output in a manner that renders it unreasonably dangerous.'"  Ford Motor Co. v. Ledesma,
242 S.W.3d 32, 41 n.16 (Tex. 2007) (quoting Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 434
(Tex. 1997)).  A design defect exists when a condition of the product renders it "unreasonably
dangerous as designed, taking into consideration the utility of the product and the risk involved in
its use."  Hernandez v. Tokai Corp., 2 S.W.3d 251, 258 (Tex. 1999) (quoting jury instruction
contained in Turner v. Gen. Motors Corp., 584 S.W.2d 844, 847 n.1 (Tex. 1979)).
6. The Texas Supreme Court has adopted the Second Restatement's standard for products
liability.  See Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681 (Tex. 2004); Martinez,
977 S.W.2d at 335.  The Second Restatement provides:

	(1) one who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby
caused to the ultimate user or consumer, or to his property, if
				(a) the seller is engaged in the business of selling such a product, and
				(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.

Restatement (Second) of Torts § 402A (1965)).  "In other words, a manufacturer shall be held
liable if it negligently manufactures a product that, unless carefully designed and manufactured,
involves an unreasonable risk of causing harm."  Toshiba Int'l Corp. v. Henry, 152 S.W.3d 774, 784
(Tex. App.--Texarkana 2004, no pet.).  The four elements for a products liability action are:

	(a) the product must be defective; (b) the product must reach the consumer without
substantial change from the time it leaves the possession and control of the
manufacturer or seller; (c) the defective condition of the product must render the
product unreasonably dangerous; and (d) the unreasonably dangerous condition of
the product must be the cause of the injury to the user.

Id. at 778.
7. Strict liability requires proof of producing, as opposed to proximate, cause.  The Texas
Supreme Court has held proximate and producing cause differ in "that proof of proximate cause
entails a showing that the accident was foreseeable, while proof of producing cause does not."  Gen.
Motors Corp. v. Saenz ex rel. Saenz, 873 S.W.2d 353, 357 (Tex. 1993).
8. The Driskills' insurance company hired Dennis to investigate the fire.  Dennis admitted in
his deposition that he was not an engineer and could not testify as to whether the SCDS was the
source of the fire.  Dennis later retracted this testimony in an affidavit and stated that, after reviewing
the National Highway Traffic Safety Administration (NHTSA) reports, he could testify the SCDS
was the source of the fire.  Ford argues we should not consider Dennis' affidavit because he gave
inconsistent answers.  See S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (do
not defeat motion for summary judgment by using affidavit which impeaches, without explanation,
sworn testimony); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)
(litigant cannot give one version of facts in deposition, then suddenly remember new "answers" in 
later affidavit). This is not in issue here, because the Driskills have not challenged on appeal the trial
court's ruling limiting Dennis' testimony.
9. Ford cites Prieto v. Val Verde Memorial Hospital, 747 S.W.2d 487, 489 (Tex. App.--San
Antonio 1988, no writ), for the proposition that res ipsa loquitur must be pled in the plaintiff's
petition.  It is not necessary for us to decide whether res ipsa loquitur must be pled. 
10. According to Sensata, the design defect did not originate in the component part it
manufactured; rather, the design defect originated in Ford's design incorporating the component part.
See Henry, 152 S.W.3d at 779.  Because there is no evidence of causation, it is not necessary to
decide this issue.
