


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-09-00068-CR
 
Marlin James Ray, Jr.,
                                                                                    Appellant
 v.
 
The State of Texas,
                                                                                    Appellee
 
 

From the 85th District Court
Brazos County, Texas
Trial Court No. 08-02494-CRF-85
 

MEMORANDUM  Opinion





 
            Marlin James Ray, Jr. was convicted by
a jury of burglary of a habitation with intent to commit theft.  Tex. Pen. Code Ann. § 30.02 (Vernon
2003).  This offense was enhanced to a first degree felony based on prior
convictions of Ray, Jr., to which Ray, Jr. pled true to the jury.  Tex. Pen. Code Ann. § 12.42(b) (Vernon
2003).  Based on the jury’s verdict on punishment, the trial court assessed
punishment at forty years in the Texas Department of Criminal Justice –
Institutional Division.  See Tex.
Pen. Code Ann. § 12.32 (Vernon 2003).  We affirm.
Ray, Jr.'s appellate counsel filed an Anders
brief and a motion to withdraw as counsel. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).  Counsel concludes
that the appeal is frivolous.
Ray, Jr. has filed a pro se brief. 
However, we review Ray, Jr.’s brief solely to determine if there are any
arguable grounds for appeal.  Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).  See also In re Schulman, 252 S.W.3d 403, 409 n. 23 (Tex.
Crim. App. 2008).
Counsel's brief evidences a professional
evaluation of the record for error, and we conclude that counsel performed the
duties required of appointed counsel. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also In
re Schulman, 252 S.W.3d at 407.
In reviewing an Anders appeal, we must,
"after a full examination of all the proceedings, . . . decide whether the
case is wholly frivolous." Anders at 744; accord Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991); Coronado
v. State, 996 S.W.2d 283, 285 (Tex. App.—Waco 1999, order) (per curiam), disp.
on merits, 25 S.W.3d 806 (Tex. App.—Waco 2000, pet. ref'd).  An appeal is
"wholly frivolous" or "without merit" when it "lacks
any basis in law or fact."  McCoy v. Court of Appeals , 486 U.S.
429, 439 n.10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988).  Arguments are
frivolous when they "cannot conceivably persuade the court."  McCoy,
486 U.S. at 436.  An appeal is not wholly frivolous when it is based on
"arguable grounds."  Stafford, 813 S.W.2d at 511.
After a review of the briefs and the entire record
in this appeal, we determine the appeal to be wholly frivolous.  See Bledsoe
v. State, 178 S.W.3d at 826-27.  Accordingly, we affirm the trial court's
judgment.
Should Ray, Jr. wish to seek further review of
this case by the Texas Court of Criminal Appeals, Ray, Jr. must either retain
an attorney to file a petition for discretionary review or Ray, Jr. must file a
pro se petition for discretionary review.  Any petition for
discretionary review must be filed within thirty days from the date of either
this opinion or the last timely motion for rehearing that was overruled by this
Court.  See Tex. R. App. P.
68.2.  Any petition for discretionary review must be filed with this Court,
after which it will be forwarded to the Texas Court of Criminal Appeals along
with the rest of the filings in this case.  See Tex. R. App. P. 68.3.  Any petition for discretionary review
should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure. See Tex. R.
App. P. 68.4.  See also In re Schulman, 252 S.W.3d 403, 409 n.22
(Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007
Tex. App. LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref’d) (not
designated for publication).[1]
Counsel's request that he be allowed to withdraw
from representation of Ray, Jr. is granted.  Additionally, counsel must send
Ray, Jr. a copy of our decision, notify Ray, Jr. of his right to file a pro
se petition for discretionary review, and send this Court a letter
certifying counsel’s compliance with Texas Rule of Appellate Procedure 48.4.  Tex. R. App. P. 48.4; see also In re
Schulman, 252 S.W.3d at 409 n. 22. 
 
                                                                        TOM
GRAY
                                                                        Chief
Justice
Before
Chief Justice Gray,
            Justice
Reyna, and
            Justice
Davis
Affirmed
Opinion
delivered and filed October 28, 2009
Do
not publish 
[CRPM]




[1] 
We note that counsel has an affirmative duty to ensure that the client has, at
some point, been informed of his right to file a pro se PDR.  The
preferred mechanism for this is a letter sent to the client with the Anders
brief and the motion to withdraw as counsel.  In re Schulman, 252 S.W.3d
403, 408 n. 22 (Tex. Crim. App. 2008).



s
negligence by the mental state of the party whose conduct is questioned.  Id.  Thus, we must
determine if the record contains some evidence of probative value that Beverly was consciously
indifferent to Leath's rights, welfare, and safety.  See id.  Beverly's mental state may be inferred
from actions—Leath need not prove its subjective state of mind by direct evidence.  See Williams
v. Steves Industries, Inc., 699 S.W.2d 570, 573 (Tex. 1985).  We test conscious indifference by
Beverly's conduct:  Did its acts and the surrounding circumstances demonstrate that it knew about
the peril and did not care?  See id.; International Armament, 686 S.W.2d at 597. 
      The relevant evidence is derived from the testimony of Leath, Sharon Adams (a charge nurse),
and Naomi Smith (the dietary-services manager for the nursing home).  These witnesses said that
a dishwasher in the spray room leaked, that a pipe under a sink also leaked, that water had
continually accumulated in the spray room when the dishes were washed, and that the water ran
into the adjoining hall.  Leath testified that on November 11, 1988, she slipped and fell in a
hallway that led from the kitchen spray area to the patients' dining room.  Beverly's routine
required that Leath carry silverware from the spray room and down the hallway to the dining room
before the hallway was mopped.  Adams said water accumulated in the hallway every day.  Smith
said that water accumulated three times a day and that the dishwasher had leaked so long that the
tiles under it were warped.  Leath said that she told Smith, her supervisor, about the leaks.  Smith
and Adams said that management of the nursing home had been notified about the condition of the
dishwasher and leaky pipe before Leath's fall.   Smith said that mats were placed in the kitchen
to prevent falls, but none were placed in the hallway where Leath fell because they cost between
$200 and $400.
      We find that this testimony constitutes some evidence of probative value on which the jury
could have based both its finding that Beverly was grossly negligent and its award of punitive
damages.  Beverly knew that water accumulated on the floor, knew the source of the water, and
knew how often and how long it stayed on the floor.  The jury could have reasonably concluded
that Beverly's acts and the surrounding circumstances demonstrated conscious indifference to
Leath's rights, welfare, and safety.
      Section 41.001(5) of the Civil Practice and Remedies Code states:
'Gross negligence' means more than momentary thoughtlessness, inadvertence, or error of
judgment.  It means such an entire want of care as to establish that the act or omission was
the result of actual conscious indifference to the rights, safety, or welfare of the person
affected.
Tex. Civ. Prac. & Rem. Code Ann. § 41.001(5) (Vernon Supp. 1992).  The court used this
definition in its charge to the jury.  Beverly argues that the 1987 adoption of section 41.001(5),
including the words "establish" and "actual," established a new evidentiary standard "by which
courts are to review gross negligence findings."  Id.  Although it cites Terry v. Garcia in support
of its position, its reliance is misplaced.  See Terry v. Garcia, 800 S.W.2d 854, 856 (Tex.
App.—San Antonio 1990, writ denied).  We believe that the standard adopted by the Supreme
Court prior to the enactment of section 41.001 is the correct standard.  See Tex. Civ. Prac. &
Rem. Code Ann. § 41.001(5) (Vernon Supp. 1992); Burk Royalty, 616 S.W.2d at 922.
      We must sustain the findings of gross negligence and the award of punitive damages unless
all the evidence, both for and against the findings, is so weak or insufficient that the findings are
manifestly unjust.  See Cain, 709 S.W.2d at 176.  Based on the evidence described above, we do
not believe that the findings are manifestly unjust.  See id.
      We overrule points two and three.
FUTURE MEDICAL EXPENSES
      The jury awarded Leath $10,000 for future medical expenses.  In points nine and ten, Beverly
contends that no evidence, or insufficient evidence, supports this award.  It says, first, that the
record contains no evidence that Leath will, in reasonable probability, require medical treatment
or incur medical expenses in the future, and second, that the overwhelming weight of the evidence
established that she had "received the medical treatment necessary to correct the injury and that
[she] was much better."
      An award of future medical expenses is primarily a matter for the jury.  Hughett v. Dwyre,
624 S.W.2d 401, 405 (Tex. App.—Amarillo 1981, writ ref'd n.r.e.).  No precise evidence is
required.  Id.  Such an award may be based on the nature of the injuries, the medical care rendered
in the past, and the condition of the injured party at the time of trial.  Id.  Testimony of a
"reasonable medical probability" by a medical expert is not a prerequisite to a recovery for future
medical expenses.  Id.  If there is any probative evidence which supports the finding of future
medical expenses, then the award must be upheld.  Id. at 406.
      Leath, aged 56, testified that after the fall she saw Dr. E. E. Brooks, who made x-rays and
gave her pain medication.  She saw him once a week for three months, during which she had pain
in her left shoulder, neck, arm, and hand.  After three months, Dr. Brooks referred her to Dr.
Jack Elder, an orthopedic surgeon in Longview.  Dr. Elder ran a magnetic resonance imaging test
and referred her to Dr. Benjamin Guerra.  In December 1988 Dr. Guerra ran a myelogram and
computer-assisted x-rays and told her she had four ruptured disks.  He performed surgery in
January, and her pain subsided.  The pain later increased to the pre-surgery level.  Dr. Guerra
continued to prescribe medication, but in August 1989, he referred her to Dr. John White, who
used "trigger-point injections" six or seven times to relieve her pain.  Dr. White also hospitalized
her for "catheter surgery" twice.  He then referred her back to Dr. Guerra, who performed
additional surgery in April 1990.  Dr. Guerra said that he continued her anti-inflammatory and
pain medications after the April surgery.  Leath testified that the second surgery "did not return
[her] to normal health," that she had not returned to work as of the trial, and that she still had
shoulder, neck, and arm pain.  J. C. Leath, her husband, testified that she was better after the
second surgery, but was still restricted from raising her arms over her head and from lifting
anything heavy.  He said that she had the most difficulty sweeping and mopping and that she had
to give up gardening.
      We hold that this testimony constitutes legally and factually sufficient evidence to support the
award of future medical expenses.  See id. at 405.  We overrule points nine and ten.
BIFURCATED TRIAL AND EVIDENCE OF NET WORTH
      Beverly's point eight asserts that the court erred by failing to grant its request for a bifurcated
trial and in admitting evidence of its net worth before the jury had found it guilty of gross
negligence.  Beverly concedes that Texas has not adopted the "Wyoming Plan"— which mandates
a separate hearing on the amount of punitive damages when prima facie evidence justifying
punitive damages is produced at trial and the jury determines that it intends to award such
damages—but urges us to adopt it now.  We decline.  In the alternative, Beverly asserts that issues
related to gross negligence and punitive damages are proper subjects of a separate trial under Rule
174(b) and that the court abused its discretion in refusing to grant a separate trial.  See Tex. R.
Civ. P. 174(b).
      Abuse of discretion is determined by whether the court acted without reference to any guiding
principles.  Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939).   Stated
another way: Was the act of the court arbitrary or unreasonable?  Smithson v. Cessna Aircraft Co.,
665 S.W.2d 439, 443 (Tex. 1984); Landry v. Travelers Insurance Company, 458 S.W.2d 649, 651
(Tex. 1970).  The mere fact that an appellate court might have decided a matter within the trial
judge's discretion in a different manner does not demonstrate that an abuse of discretion has
occurred.  Southwestern Bell Telephone Company v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965);
Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).
      Rule 174 authorizes, but does not require, a court to grant a separate trial on any claim or
separate issue to "further convenience" or "avoid prejudice."  Tex. R. Civ. P. 174(b); Miller v.
O'Neill, 775 S.W.2d 56, 59 (Tex. App.—Houston [1st Dist.] 1989, no writ).  Unless the
Wyoming or a similar plan is mandated, courts will continue to determine on a case-by-case basis
whether to grant a separate hearing on the amount of punitive damages which are to be awarded. 
See Miller, 775 S.W.2d at 59.  Based on the record, we cannot say that the court abused its
discretion in refusing to grant Beverly's request for a separate trial.  See Johnson v. State Farm
Mutual Auto Insurance, 762 S.W.2d 267, 269 (Tex. App.—San Antonio 1988, writ denied).  We
overrule point eight.
EXCESSIVE PUNITIVE DAMAGES
      The jury awarded Leath $500,000 in punitive damages.  Although the damages for past and
future medical care, loss of earnings, physical pain and mental anguish, and physical impairment
awarded by the jury totalled $158,366.16, the judgment awarded only $100,927.70 for those
damages because Leath had agreed that Beverly was entitled to an offset for amounts paid to her
or on her behalf before trial.  In points four and five, Beverly asserts that the punitive damages
are excessive and that a remittitur should be ordered.  Specifically, it says that section 41.007 of
the Civil Practice and Remedies Code limits the amount of punitive damages to four times the
amount of the "actual damages" and that the court awarded "actual damages" of $100,927.70.  See
Tex. Civ. Prac. & Rem. Code Ann. § 41.007 (Vernon Supp. 1992).  Leath counters that a
limitation of damages is an affirmative defense that Beverly did not plead and, thus, waived.
      We believe that the term "actual damages" used in section 41.007 refers to the total amount
of damages found by the jury.  See id.  Pretrial payments do not reduce the amount of "actual
damages" suffered by an injured party; they simply reduce the amount of damages which are
recoverable by that party after a trial.  We do not believe that the legislature intended that
payments or lack of payments before trial should enhance or reduce a claimant's right to punitive
damages under the statute.  Because the jury's award of $500,000 in punitive damages did not
exceed four times its award of actual damages, the court's judgment did not violate the terms of
section 41.007.  See id.  We do not reach the question of whether the limitation imposed by
section 41.007 is an affirmative defense which must be pleaded.
      Beverly also contends that the award of $500,000 in punitive damages is excessive and the
result of passion and prejudice.  The amount of an award of punitive damages rests largely in the
discretion of the jury.  Miles Homes Div., Insilco Corp. v. Smith, 790 S.W.2d 382, 385 (Tex.
App.—Beaumont 1990, writ denied).  We have held that whether an award of punitive damages
is excessive is reviewed by considering: (1) the nature of the wrong, (2) the character of the
offending conduct, (3) the degree of culpability of the person against whom the damages were
awarded, (4) the relative situation and sensibilities of the parties, and (5) the extent to which the
conduct offends a public sense of justice and propriety.  See John Deere Co. v. May, 773 S.W.2d
369, 377-78 (Tex. App.—Waco 1989, writ denied).  Because evidence of net worth is admissible
for the jury's consideration, we add: (6) the net worth of the defendant.  See Lunsford v. Morris,
746 S.W.2d 471, 473 (Tex. 1988).
      Punitive damages are not necessarily multiples of actual damages.  Miles Homes, 790 S.W.2d
at 385.  Here, the punitive-damages award is within the amount authorized by the statute, and the
ratio is not so great as to render it excessive in light of the facts of the case.  See id.; Tex. Civ.
Prac. & Rem. Code Ann. § 41.007 (Vernon Supp. 1992).  We overrule points four and five.
      We affirm the judgment.
 
                                                                                 BILL VANCE
                                                                                 Justice

Before Chief Justice Thomas,
          Justice Cummings, and
          Justice Vance
Affirmed
Opinion delivered and filed April 22, 1992
Publish by order of May 20, 1992
