
NO. 07-02-0099-CR
NO. 07-02-0100-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

NOVEMBER 12, 2002

______________________________


PEDRO MORENO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE


_________________________________

FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

NOS. 10, 105 AND 10,106; HONORABLE TOM NEELY, JUDGE

_______________________________

Before REAVIS and JOHNSON, JJ., and BOYD, SJ. (1)
	In this appeal of companion cases, appellant Pedro Moreno challenges his
conviction in each case of delivery of a controlled substance (cocaine) in an amount of
more than four grams but less than 200 grams.  In our cause number 07-02-0099-CR, the
jury assessed a sentence of five years confinement in the Institutional Division of the
Department of Criminal Justice, and in our cause number 07-02-0100-CR, it assessed a
sentence of 20 years in the same penal institution.  For reasons we later recount, we affirm
the judgment of the trial court in each cause.
	In presenting his issues, appellant asks us to determine whether the trial court:  1)
erred in admitting "evidence envelopes" over his timely objection, and 2) in permitting
"multiple State's comment on appellant's failure to testify."  However, in presenting his first
issue, appellant failed to present any argument or supporting authority.  That being so, any
error is waived.  Garcia v. State, 887 S.W.2d 862, 871 (Tex.Crim.App. 1994), cert. denied,
514 U.S. 1021, 115 S.Ct. 1368, 131 L.Ed.2d 223 (1995).  See also Tex. R. App. P. 38.1(h).
Appellant's first issue is overruled.
	Appellant's second issue complaints about the State's alleged comments on his
failure to testify arise from two statements made by the State in both the guilt-innocence
and punishment stages of the trial.  Because appellant first argues the punishment phase
statements, we will, likewise, consider them first.  In that argument, the prosecutor argued
that in assessing punishment, the jury could consider appellant's lack of remorse.  The
record reveals that the trial court promptly sustained appellant's objection to the argument
and instructed the jury to disregard it, but denied his mistrial motion.
	In arguing that reversal is required, appellant cites and relies upon Dickinson v.
State, 685 S.W.2d 320 (Tex.Crim.App. 1984).  In that case, the court held that a "lack of
remorse" argument required reversal because it amounted to a comment on the
defendant's failure to testify.  In doing so, it commented that "[s]uch error is rarely curable
by an instruction to the jury to disregard."  Id. at 323.  However, there, the trial court had
overruled the objection.  Thus, the court's comment there was gratuitous, was dicta in the
case, and is not determinative here.
	Moreover, both before and after Dickinson, the Court of Criminal Appeals has
considered challenges to "lack of remorse" arguments in which an objection was sustained
and the jury instructed to disregard.  In each such instance, the court found the instruction
sufficient to cure any error, and reversal was not required.  See Bower v. State, 769
S.W.2d 887, 907 (Tex.Crim.App. 1989); Hawkins v. State, 660 S.W.2d 65, 79 (Tex.Crim.
App. 1983).  Indeed, in Bower, the court specifically noted the Dickinson case, but
distinguished it because of the instruction to disregard given by the trial court in the case
it was considering.  Id.
	In Barnum v. State, 7 S.W.3d 782 (Tex.App.--Amarillo 1999, pet. ref'd), we
discussed the distinguishing factors in determining whether a comment on a defendant's
failure to testify required reversal.  The argument we were considering in that case also
contained a reference to the defendant's lack of remorse.  In deciding that reversal was not
required, we noted the discussions by the Court of Criminal Appeals in which it
distinguished between a direct reference to a defendant's failure to testify, which usually
cannot be cured by an instruction to the jury, and an indirect reference, which can be cured
by an instruction to disregard.  The argument before us here falls within the category that
can be cured by a prompt instruction to disregard.  Thus,  the trial court's prompt instruction
to disregard was sufficient to cure any error.
	In his second argument under this issue, appellant contends that the several
statements here by the prosecutor that the evidence of guilt was undisputed amounted to
reversible comments on appellant's failure to testify.  However, a prosecutor's argument
that incriminating evidence is uncontroverted only becomes an impermissible comment on
the defendant's failure to testify if the defendant is the only person who can contradict the
State's evidence.  Goff v. State, 931 S.W.2d 537, 548 (Tex.Crim.App. 1996); Silva v. State,
989 S.W.2d 64, 66 (Tex.App.--San Antonio 1998, pet. ref'd).
	The specific evidence here that the prosecutor argued was uncontroverted was:  1)
testimony by the investigating officer, Randy Alsup, that appellant had sold him cocaine on
two occasions, 2) the chain of custody and laboratory results that the substance transferred
to Alsup was cocaine, and 3) Alsup's testimony about his conduct in a bar while waiting for
appellant to arrive.  At each of the sales and transfers of the drug, a confidential informant
was present.  During the first sale, the informant was in the same room in which the
transaction took place.  At the time of the second sale, the informant was seated in
appellant's truck between appellant and Alsup.  Indeed, the testimony was that appellant
actually passed the cocaine to Alsup over the informant's lap.  Thus, at all critical times,
there was another person who could have contradicted Alsup's testimony.
	With regard to the chain of custody testimony, appellant could not have contradicted
it because he had no personal knowledge of those events.  Thus, under this record, the
argument that the evidence was undisputed was not a reversible comment on appellant's
failure to testify.
	Likewise, the third statement by the prosecutor challenged by appellant arose from
his attempts to show through cross-examination that while awaiting appellant's arrival at
the bar, Alsup drank alcoholic beverages.  The relevant evidence was that appellant was
in the bar only long enough to get Alsup and the informant to go to appellant's truck where
the sale took place.  Thus, because appellant could have no knowledge as to what Alsup
did before his arrival at the bar, he could not have contradicted that testimony.  The
informant was also present with Alsup at the bar prior to appellant's arrival and could have
contradicted Alsup's testimony if appropriate.
	In supporting his argument that reversal is required, appellant also cites and relies
upon Carrillo v. State, 821 S.W.2d 697, 699 (Tex.App.--Dallas 1991), pet. ref'd, 826
S.W.2d 955 (Tex.Crim.App. 1992).  However, that case is also distinguishable.  The
testimony to which the prosecutor in that case referred to as undisputed concerned an
event at which only the defendant and the testifying officer were present.  Id. at 699. 
Again, as we have noted, that is different from the evidence before us.
	Under the governing standards, the statements challenged by appellant were not
impermissible comments on his failure to testify.  Appellant's second issue is overruled.
 
	In sum, because neither of appellant's issues reveal reversible error, the judgment
of the trial court is affirmed. 
							John T. Boyd
							Senior Justice

Do not publish.        
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.  Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp. 2002). 


011)%2cCL(H%2cO)%2cDC(A%2cL%2cO%2cD%2cG)%2cDT(E%2cD%2cC%2cM)&rs=WLW7.07&docsample=False&service=Find&rlt=CLID_FQRLT50519119&fcl=False&serialnum=1999044283&rp=%2">claims arose out of an intentional tort to which the waiver of immunity does\
not extend.  Tex. Civ. Prac. & Rem. Code Ann. § 101.057 (Vernon 2005). \
'

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NO. 07-06-0094-CV
 
IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

NOVEMBER 27, 2007

______________________________
 
REBECCA HERNANDEZ, APPELLANT

V.

THE CITY OF LUBBOCK AND BLAKE LITTLEJOHN, APPELLEES
_________________________________

FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-529,164; HONORABLE SAM MEDINA, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

OPINION
          In the suit appellant Rebecca Hernandez brought against the City of Lubbock and
Blake Littlejohn, the trial court granted summary judgment in favor of the City and
dismissed her claims against Littlejohn.  On her appeal, we affirm the judgment for the City,
and reverse as to her claims against Littlejohn.
 
Factual and Procedural Background
          Hernandez’s suit arose from events that occurred in June 2004 when Littlejohn, then
a uniformed Lubbock policeman, made a nighttime traffic stop of Hernandez’s vehicle.  She
alleged that Littlejohn, in the back seat of his patrol car, required her to masturbate him
after she refused his demand that she perform oral sex.  After the events, Littlejohn
resigned from the police force, and plead guilty to misdemeanor harassment.  Hernandez’s
petition alleged Littlejohn committed the intentional torts of sexual assault and battery
against her, and alleged the City negligently supervised Littlejohn and was negligent in
other respects.  She alleged Littlejohn’s actions caused her extreme mental anguish and
bodily injury.  Her petition makes clear that she sued Littlejohn in his individual capacity
and sued the City under the Texas Tort Claims Act.

          Littlejohn filed a motion to dismiss pursuant to section 101.106(e) of the Tort Claims
Act.  Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e) (Vernon 2005). Hernandez
responded and, after a hearing, the court granted the motion and dismissed her claims
against Littlejohn with prejudice.
 
          The City of Lubbock later filed a motion for summary judgment.  The trial court
granted the City’s motion and signed the final judgment made the subject of this appeal. 
          Hernandez brings three appellate issues challenging the trial court’s dismissal of her
claims against Littlejohn, and by her fourth issue contends the court erred by granting
summary judgment for the City.                                               Analysis
Motion to Dismiss Pursuant to Section 101.106(e)
          By her first issue, Hernandez contends in part that the trial court erred by granting
the motion to dismiss because it was filed by Littlejohn rather than the City.  We agree and
find the contention dispositive of Hernandez’s appeal of the dismissal.

          The issue raises a question of law, so we will review the dismissal de novo. See In
re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (determining applicable standard of review based
on substance of issue to be reviewed); Johnson v. City of Fort Worth, 774 S.W.2d 653,
655-56 (Tex. 1989) (matters of statutory construction are questions for the court); Buck v.
Blum, 130 S.W.3d 285, 290-91 (Tex.App.–Houston [14th Dist.] 2004, no pet.) (to the extent
resolution of an issue requires interpretation of statute itself, de novo standard applies). 
          As pertinent here, section 101.106 of the Tort Claims Act reads as follows:
(a)The filing of a suit under this chapter against a governmental unit
constitutes an irrevocable election by the plaintiff and immediately and
forever bars any suit or recovery by the plaintiff against any individual
employee of the governmental unit regarding the same subject
matter.  
 
(b)The filing of a suit against any employee of a governmental unit
constitutes an irrevocable election by the plaintiff and immediately and
forever bars any suit or recovery by the plaintiff against the
governmental unit regarding the same subject matter unless the
governmental unit consents.  
 
*     *     *
 
(e)If a suit is filed under this chapter against both a governmental unit
and any of its employees, the employees shall immediately be
dismissed on the filing of a motion by the governmental unit.
 
 
          Littlejohn’s motion to dismiss asserted that section 101.106 required Hernandez to
make an irrevocable election between a suit against the City
 under the Tort Claims Act
and a suit against Littlejohn, a City employee at the time the claims arose. Littlejohn’s
motion cited section 101.106(e) for the proposition that if suit is filed against both a
governmental unit and an employee, the employee is entitled to dismissal “on the filing of
a motion.”
          Hernandez objected in the trial court, and asserts on appeal, that section 101.106(e)
provides for dismissal only “on the filing of a motion by the governmental unit” when a
plaintiff sues both the employee and the governmental unit regarding the same subject
matter.
          Littlejohn contends that, considered together, sections 101.106(a) and 101.106(e)
warranted dismissal of the claims against him.  Acknowledging that section 101.106(e)
mandates dismissal in the circumstances described in that section when the governmental
unit moves for its dismissal, he nonetheless asserts that nothing in section 101.106(e)
prohibits a trial court from dismissing an action barred by section 101.106(a) simply
because the employee, rather than the governmental unit, moves to dismiss.
          In support of his position, Littlejohn quotes language from several cases applying
section 101.106(e).  His reading of the cases leads him to conclude that courts have
construed section 101.106(e) to provide for dismissal on the motion of any defendant.  For
instance, Littlejohn points to the statement in Waxahachie Independent School District v.
Johnson, 181 S.W.3d 781 (Tex.App.–Waco 2005, pet. filed), that “Upon the motion of
either the government or the employees, a plaintiff is forced to proceed against the
government alone . . . .” in the three circumstances there described.  Id. at 785.  We do not
read the Waxahachie ISD opinion to suggest that the identity of the movant is unimportant
under  section 101.106(e).
  In the quoted sentence from that opinion, the court cites and
quotes the opinion of the Beaumont court in Villasan v. O’Rourke, 166 S.W.3d 752
(Tex.App.–Beaumont 2005, pet. filed).  The sentence from Villasan quoted in Waxahachie
ISD comes from the Beaumont court’s discussion of the “procedural right” created by the
provisions of section 101.106.  Villasan,166 S.W.3d at 758.  That discussion carefully
distinguishes the aspects of the procedural right subject to the governmental unit’s election
from those subject to that of the employee.  Referring to section 101.106(f), the court notes
that the statute “allows the governmental employee whose conduct is alleged to have been
within the scope of employment to force the plaintiff to amend the suit and name the
governmental entity as the sole defendant.”  Id.  It follows that statement with one
addressing section 101.106(e), stating, “The statute allows the government, when both the
government and the employee are sued, to force the plaintiff to drop the employee from
the suit. Id., citing § 101.106(e).  Summarizing the statutory provisions creating the
“procedural right,” the court then states, “At the election of the government or the
employee, the respective defendant may force the plaintiff to proceed” in Texas Tort
Claims Act cases, in the manner described in section 101.106.  Id. (emphasis ours).  
          We see nothing in the Villasan opinion construing section 101.106(e) to provide for
dismissal of an employee on the motion of any but the governmental unit defendant.  To
the contrary, Villasan makes clear that it was the filing of a motion by the governmental unit
that entitled the employee to dismissal. Id.  Likewise, the court in Waxahachie ISD,
following its quote from the Villasan opinion, states, “The decisions have held that once the
government files a motion to dismiss the employees under section 101.106(e), the trial
court must grant the motion and dismiss the employees from the suit.  Waxahachie, 181
S.W.3d at 785, citing, inter alia, Villasan, 166 S.W.3d at 761-62.  Nor do we agree that 
Waxahachie ISD should be read as supporting Littlejohn’s contention that his motion under
section 101.106(e) warranted dismissal of Hernandez’s suit against him. 
          Littlejohn also cites language from several federal court cases applying section
101.106, including Martinez v. Center for Health Care Services, No. SA-04-CA-0412-RF,
2005 WL 1168433 (W.D. Tex. May 17, 2005); Hernandez v. Duncanville School Dist., No.
Civ. A. 3:04-CV-2028-BH, 2005 WL 723458 (N.D. Tex. March 29, 2005); Barnes v. Barnes,
No. Civ. A. 103CV231-C, 2004 WL 691202 (N.D. Tex. March 30, 2004); and Livingston v.
DeSoto Ind. School Dist., No. Civ. A. 3:04-CV-1818, 2004 WL 2964977 (N.D. Tex. Dec.15,
2004).  None of those cases address the significance of the identity of the movant under
section 101.106(e).  Moreover, each involves rulings on motions filed by multiple
defendants that include governmental entities.
  We do not find in them even persuasive
support for Littlejohn’s position.
          We similarly find Littlejohn’s reliance on section 101.106(a) unpersuasive.  As noted,
section 101.106(a) provides that the filing of a suit under the Tort Claims Act against a
governmental unit constitutes the plaintiff’s irrevocable election, “immediately and forever”
barring any suit or recovery by the plaintiff against any individual employee of the
governmental unit regarding the same subject matter.  Littlejohn asserts that Hernandez’s
act of filing suit against the City under the Tort Claims Act barred her suit against him,
authorizing the trial court to dismiss it on his motion.  
          When required to construe a statute, we must read the legislative enactment as a
whole, giving effect to all its provisions.  Liberty Mut. Ins. Co v. Garrison Contractors, Inc.,
966 S.W.2d 482, 484 (Tex. 1998) (in construing a statute, we look to the plain and
common meaning of the words, giving full effect to each term in context); State v.
Kingsbury, 129 S.W.3d 202, 204-05 (Tex.App.–Corpus Christi 2004, no pet.) (statute
should be considered in entirety when determining the meaning of its component parts). 
Section 101.106(a) does indeed provide that a plaintiff makes an irrevocable election of
remedies by filing suit against a governmental unit under the Tort Claims Act.  But section
101.106(e) provides the equally clear instruction that when suit is filed under the Tort
Claims Act against both the governmental unit and its employee, the employee shall
immediately be dismissed on the filing of a motion by the governmental unit.  
          Under Littlejohn’s reading of the statute, section 101.106(e)’s express provision for
dismissal on the motion of the governmental unit is unnecessary.  Under his view, the
plaintiff’s irrevocable election under section 101.106(a) of the remedy of suit against the
governmental unit under the Tort Claims Act is to be enforced by the trial court’s dismissal
of the employee, without the necessity for action by the governmental unit.  As this Court
recently said when called on to construe another part of section 101.106, “we opt to give
substance to the legislature’s words.”  Clark v. Sell ex rel. Sell, 228 S.W.3d 873, 875
(Tex.App.–Amarillo 2007, pet. filed) (construing section 101.106(f)).    
          Littlejohn’s pleadings do not assert any basis for his immunity from suit or liability
outside the provisions of section 101.106.  As the record stands, Littlejohn’s assertion of
immunity from Hernandez’s suit is thus dependent on the terms of section 101.106.
 
Because Littlejohn seeks protection in the statute against Hernandez’s common-law claims
of intentional tort, brought against him in his individual capacity, the law properly requires
his compliance with the terms of the statute.  See Employees Retirement Sys. of Tex. v.
Blount, 709 S.W.2d 646, 647 (Tex. 1986); Kennedy v. Andover Place Apts ., 403 S.W.3d
495 (Tex.App.–Houston [14th Dist.] 2006, no pet.); Perkins v. Group Life & Health Ins. Co.,
49 S.W.3d 503, 506 (Tex.App.–Austin 2001, pet. denied) (all applying precept that
statutory provisions of a cause of action derived from statute, not common law, are
mandatory and exclusive and must be complied with in all respects).  The terms of the
statute provide for his dismissal from the suit filed both against him and the City on the
filing of a motion by the governmental unit.  In the absence of a motion filed by the City,
Littlejohn was not entitled to dismissal pursuant to section 101.106.
  Because section
101.106 was the only basis on which Littlejohn sought dismissal, the trial court erred by
dismissing Hernandez’s claims against him.  Accordingly, we sustain Hernandez’s first
issue.                                 
          Hernandez’s second issue on appeal asserts dismissal of her claims against
Littlejohn deprived her of rights guaranteed by the Texas Constitution, and her third issue
complains of the trial court’s failure to make findings of fact and conclusions of law with
regard to the dismissal.  Given our sustaining of her first issue, we do not reach
Hernandez’s second and third issues.  Tex. R. App. P. 47.1.  
City of Lubbock’s Motion for Summary Judgment        
          Hernandez’s last issue on appeal asserts that the trial court erred in granting the City
of Lubbock’s motion for summary judgment.  Hernandez’s petition alleged the City was
responsible for Littlejohn’s conduct because he was in the course and scope of his
employment when he stopped her, and alleged the City negligently supervised Littlejohn
in several respects.  As noted, all her claims against the City were asserted under the
Texas Tort Claims Act.  Tex. Civ. Prac. & Rem. Code Ann. § 101.001, et seq. (Vernon
2005). 
          In its answer, the City plead its immunity as an affirmative defense.
  The City filed
a traditional motion for summary judgment and a plea to the jurisdiction,
 both asserting
it had immunity from Hernandez’s suit because none of her claims came within the limited
waiver of immunity provided by the Tort Claims Act.  The trial court denied the plea to its
jurisdiction but granted the summary judgment motion.   
          By its summary judgment motion, the City contended Hernandez’s suit arose out of
Littlejohn’s commission of intentional torts and were thus excluded from the Tort Claims
Act pursuant to § 101.057(2).
  The City also contended that, even assuming the
intentional tort allegations were not a bar to the suit, Hernandez’s claims did not come
within those described in § 101.021 of the Tort Claims Act
 because they arose neither
from Littlejohn’s use of his patrol car nor from the use of any other tangible personal
property.  
      Our review of a summary judgment is de novo to determine whether the movant
established the absence of a genuine issue as to any material fact and its entitlement to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,
341 (Tex. 1995); Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.–Dallas 2000,
pet. denied).  We take as true all evidence favorable to the non-movant, and indulge every
reasonable inference and resolve any doubt in the non-movant’s favor. Nixon v. Mr.
Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).  Where the movant is
a defendant, it must negate at least one essential element of the plaintiff's cause of action.
Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).  Likewise, a
defendant who conclusively establishes each element of an affirmative defense is entitled
to summary judgment.  Id.
          Once the movant has established a right to summary judgment, the non-movant has
the burden to respond to the motion for summary judgment and present any issues which
would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589
S.W.2d 671, 678 (Tex. 1979). Thus, when an affirmative defense like governmental
immunity is established, the burden of raising a disputed fact issue shifts to the non-movant.  EPGT Texas Pipeline, L.P. v. Harris Cty. Flood Control Dist., 176 S.W.3d 330,
335 (Tex.App.–Houston [1st Dist.] 2004 pet. dism’d); Medrano v. City of Pearsall, 989
S.W.2d 141 (Tex. App.–San Antonio 1999, no pet.) (citing Ager v. Wichita General Hosp.,
977 S.W.2d 658, 660 (Tex. App.–Fort Worth 1998, no pet.)). 
          It is undisputed the functions being performed by the City pertinent to Hernandez’s
suit were governmental in nature, entitling it to governmental immunity absent a waiver of
immunity.   Tex. Civ. Prac. & Rem. Code Ann. § 101.0215 (Vernon 2003); see City of
Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007) (discussing governmental immunity
of cities). We must therefore examine the summary judgment evidence to determine
whether a fact issue was raised regarding the application of immunity.  Ager, 977 S.W.2d
at 660 (citing Brand v. Savage, 920 S.W.2d 672, 673 (Tex.App.–Houston [1st Dist] 1995,
no writ)). 
          When, as here, the trial court’s order does not specify the ground on which summary
judgment was granted, the judgment is to be affirmed if the motion advanced any
meritorious theory.  Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
Use of tangible personal property and use of motor-driven vehicle
          Hernandez’s response to the City’s motion for summary judgment contended that her
claims fit within the limited waiver of governmental immunity contained in the Tort Claims
Act because her injury was caused by Littlejohn’s use or misuse of “police equipment
including the radio, audio recorder and video recorder.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021(2) (Vernon 2003). She pointed to summary judgment evidence suggesting that
the City’s policies allow police officers discretion whether to record traffic stops and similar
encounters with the public, and Littlejohn’s deposition testimony that he had never known
of an officer being disciplined for improper use of audio or video equipment.  She noted
evidence that showed Littlejohn admitted he had turned off his mobile microphone so as not
to record his contact with her.  Hernandez contended that Littlejohn’s offense against her
“could easily have been prevented if the City of Lubbock had policies and procedures in
place to prevent the manipulation of the audio and video recording devices and if proper
supervision of patrol officers had been implemented.”  Hernandez’s argument in her
response also made reference to the City’s failure to provide “equipment which would
prevent officers” from turning off the audio portion of the video recorder to prevent the
detection of improper actions.

          In § 101.021, the word “use” means “to put or bring into action or service; to employ
for or apply to a given purpose.”  San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246
(Tex. 2004) (citations omitted).  While in this context “use” may include “misuse,” Smith v.
Tarrant County, 946 S.W.2d 496, 501 (Tex.App.–Fort Worth 1997, writ denied) (op. on
rehearing), it does not include “non-use.”  Using the property must actually have caused
the injury.  Tex. Dep’t Crim. Justice v. Miller, 51 S.W.3d 583, 587-88 (Tex. 2001); see Tex.
Nat’l Resource Cons. Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001) (to invoke Tort
Claims Act’s waiver of immunity, injury must have been caused by governmental unit’s
actual use of property, not the failure to use it) (citing Kerrville State Hosp. v. Clark, 923
S.W.2d 582, 584-85 (Tex. 1996)).  Waiver of the City’s immunity cannot be predicated
under § 101.021(2) on Littlejohn’s deactivation of his radio microphone.  
          Moreover, imposition of liability under § 101.021(2) based on use of personal
property requires more than the property’s mere involvement in the circumstances causing
injury.  City of Sugarland v. Ballard, 174 S.W.3d 259, 267 (Tex.App.–Houston [1st Dist.]
2005, no pet.). For waiver of immunity under that provision, the injury must have been
proximately caused by the condition or use of property.  Dallas County Mental Health &
Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43 (Tex. 1998); Texas Dep’t Mental
Health & Mental Retardation v. Lee, 38 S.W.3d 862, 867 (Tex.App.–Fort Worth 2001 pet.
denied) (cases require “close causal relationship” between condition or use of property and
resulting injury). Property that “does no more than furnish the condition that makes the
injury possible” does not cause injury.  Bossley, 968 S.W.2d at 343.  Even if Littlejohn’s
action of turning off his radio microphone is viewed as a misuse rather than a non-use of
the equipment, that action cannot be said to have caused the mental anguish and bodily
injuries alleged in Hernandez’s petition.  They were caused by Littlejohn’s intentional acts. 
If his unused police radio and related equipment can be said to have had any involvement
with Hernandez’s injuries, they did no more than play their part in furnishing the conditions
that made her injuries possible.  Indulging in Hernandez’s favor every reasonable inference
that can be drawn from the summary judgment evidence, we nonetheless find, as a matter
of law, that her injuries were not caused by use of Littlejohn’s police radio, audio recorder
or video recorder.  Id. See also Bonham v. Texas Dep’t of Criminal Justice, 101 S.W.3d
153, 159 (Tex.App.–Austin 2003, no pet.) (rejecting contention that lack of surveillance
equipment was use or condition of property that caused injuries from sexual assault by
prison guard);  Hendrix v. Bexar County Hosp. Dist. 31 S.W.3d 661, 663 (Tex. App.–San
Antonio 2000, pet. denied) (government employee sexually assaulted patient under guise
of performing breast exam; held that employee’s use of examination room, examination
table, patient gown and public address system did not cause the assault, but merely
furnished some of the conditions that made it possible).   
          In her response to the City’s summary judgment motion, Hernandez also asserted
the City had not established as a matter of law that her injuries did not arise from the
operation or use of Littlejohn’s patrol car.  She argued his assault of her could not have
taken place without the use of the patrol car’s back seat.  Summary judgment evidence
showed that three other people were with Hernandez when Littlejohn stopped her vehicle. 
His patrol car was behind her vehicle and Hernandez’s affidavit states that Littlejohn “took
me back to his car and told me to get into the backseat.”  The patrol car thus provided a
somewhat secluded location to which Littlejohn could remove Hernandez without causing
suspicion over his motives, and in which he could expose himself and make his demands
on her, outside the view of the passengers in her vehicle.  Accepting Hernandez’s
argument that these events would not have occurred but for the availability of the patrol
car’s back seat, still we conclude, as a matter of law, her injuries did not arise from the
operation or use of the patrol car, as the courts have applied that phrase.  
          Waiver of immunity for claims based on the operation or use of a motor-driven
vehicle, like that for injuries assertedly caused by use of tangible property, requires the
plaintiff to show a nexus between the vehicle’s operation or use and the plaintiff’s injury. 
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A) (Vernon 2005); Dallas Area Rapid
Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003).  “[A]s with the condition or use of
property, the operation or use of a motor vehicle ‘does not cause injury if it does no more
than furnish the condition that makes the injury possible.’”  Whitley, 104 S.W.3d at 543,
quoting Bossley, 968 S.W.2d at 343.  In a case in which a Houston police officer stopped
the plaintiff for an apparent traffic violation, ordered her to follow him as he drove his police
car, led her to a parking garage, and there sexually assaulted her in his police car, the
court found missing the “required causal nexus” between the officer’s use of his patrol car
and his intentional assault.  Holder v. Mellon Mortg. Co., 954 S.W.2d 786, 789, 807 (Tex.
App.–Houston [14th Dist.] 1997, rev’d on other grounds, 5 S.W.3d 654 (Tex. 1999)).  It
concluded the plaintiff had not alleged an injury arising from use of the vehicle, and
affirmed dismissal of her claims against the City of Houston.  Id. at 808.
  We reach the
same conclusion on these very similar facts.  Again viewing the summary judgment
evidence in Hernandez’s favor, we find that Littlejohn’s use of his patrol car simply served
to furnish one of the conditions that made his intentional assault, and Hernandez’s injuries,
possible.  Evidence shows Hernandez’s injuries occurred in the patrol car, but it does not
show Littlejohn’s use of the vehicle caused her injuries.
 
          Hernandez relies on Salcedo v. El Paso Hospital District, 659 S.W.2d 30 (Tex.
1983) and Bryant v. Metropolitan Transit Authority, 722 S.W.2d 738 (Tex.App.–Houston
[14th Dist.] 1986, no writ).  Hernandez’s reliance on Salcedo essentially involves the same
misapplication of the case that the supreme court later described in Bossley.  Bossley, 968
S.W.2d at 342-43.  As we have noted, the court there clarified that the requirement of
causation for a waiver of immunity based on use of property requires more than the
property’s mere involvement.  Id. at 343.  Bryant involved an assault on a bus passenger
by other passengers.  Bryant, 722 S.W.2d at 739.  Relying on Salcedo, and its “broad
reading” of the provisions that now constitute § 101.021, the majority opinion held that the
plaintiff had alleged a claim within the waiver provisions.  Id. at 740.  We do not agree that
Salcedo and Bryant can support reversal of the summary judgment granted the City in this
case, and choose instead to follow Holder’s analysis of the causal nexus between the
officer’s use of the patrol car and his intentional assault.  Holder, 954 S.W.2d at 807.    
Negligent supervision
           Hernandez’s pleadings alleged the City was negligent in not properly supervising the
actions of Littlejohn.  Specifically, she alleged the City was negligent in (1) maintaining a
policy that allows a police officer to use his discretion in recording or not recording the
audio portion of a police traffic stop; (2) allowing a police officer to use his discretion in
videotaping or not videotaping a police traffic stop; (3) allowing a police officer to make a
traffic stop of undetermined length before reporting to his supervisor the need and purpose
for the stop; (4) failing to supervise patrol officers who make routine traffic stops in an area
known to be frequented by young women; and (5) failing to fire Littlejohn when it became
apparent to the City that Littlejohn was a sex offender. A claim for negligent supervision or
training is a distinct cause of action.  Tex. Dep’t Pub. Safety v. Petta, 44 S.W.3d 575, 581
(Tex. 2001), (citing Young v. City of Dimmitt, 787 S.W.2d 50 (Tex. 1990)).  The Tort Claims
Act, however, does not waive governmental immunity for all such claims, only those that
are within the terms of the Act’s waiver under § 101.021.  Petta, 44 S.W.3d at 581; Norrell
v. Gardendale Volunteer Fire Dept., 115 S.W.3d 114 (Tex.App.–San Antonio 2003, no
pet.).  We have concluded that, under applicable law, Hernandez’s claims neither arose
from the use of Littlejohn’s vehicle nor were caused by his use of tangible personal
property. The addition of claims asserting that he was negligently supervised during his
encounter with Hernandez does not bring her suit within the waiver of immunity set forth
in § 101.021.
          Lastly, we agree with the City that Hernandez’s assertions of negligence with regard
to the policies the City maintained for officers’ decisions to record traffic stops and to report
to a supervisor during stops do not involve a use or misuse of property, and so do not
come within § 101.021's waiver of immunity.  See Ballard, 174 S.W.3d at 265 (reaching
similar conclusion on claims based on police force’s “customs and policies”).
 
          Because we conclude the summary judgment record shows as a matter of law that
Hernandez’s claims do not fall within the terms of the waiver of immunity prescribed by §
101.021, we overrule her fourth issue.
Conclusion
          The judgment of the trial court in favor of the City of Lubbock is affirmed.  The trial
court’s dismissal of Hernandez’s claims against Littlejohn is reversed and those claims are
remanded for further proceedings.
                                                                           James T. Campbell
                                                                                    Justice 
                     
