                           NUMBER 13-06-00692-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


WACKENHUT CORRECTIONS CORPORATION
AND WARDEN DAVID FORREST,                                               Appellants,

                                         v.

GREGORIO DE LA ROSA, SR., ET AL.,                                        Appellees.


   On appeal from the 404th District Court of Willacy County, Texas.



                                 OPINION
    Before Chief Justice Valdez and Justices Garza and Benavides
                    Opinion by Justice Benavides

      This case involves the horrific and gruesome death of Gregorio de la Rosa, Jr.

(“Gregorio”). Gregorio, an honorably discharged former National Guardsman, was serving

a six-month sentence at a prison operated by Wackenhut Corrections Corporation for

possession of less than 1/4 grams of cocaine. A few days before his expected release,

Gregorio was beaten to death by two other inmates using a lock tied to a sock, while
Wackenhut’s officers stood by and watched and Wackenhut’s wardens smirked and

laughed.

        Gregorio’s estate and his family members1 (collectively “the family”) brought survival

and wrongful death claims against Wackenhut and its warden, David Forrest, alleging that

they negligently caused Gregorio’s death and acted with malice and gross negligence.

Wackenhut also either lost or destroyed key evidence in this case, prompting the trial court

to give a spoliation instruction. The jury found that Wackenhut and Warden Forrest were

negligent and acted with gross negligence or malice, and it awarded actual damages to

Gregorio’s parents and children and punitive damages to Gregorio’s estate. The trial court

rendered judgment on the verdict, and it also awarded funeral and emergency medical

services (“EMS”) expenses to Gregorio’s estate, though these were not awarded by the

jury.

        On appeal, Wackenhut and Warden Forrest (collectively “Wackenhut”) raise twelve

issues attacking nearly every facet of the judgment. We reverse and render judgment

dismissing the claims of the estate of Gregorio’s father, Gregorio de la Rosa, Sr.

(“Gregorio, Sr.”), for lack of subject-matter jurisdiction. We also reverse the trial court’s

award of $7,000 for funeral expenses to Gregorio’s estate. However, we affirm the

remainder of the judgment.

                                             I. BACKGROUND


        1
          The appellees in this case, who were the plaintiffs below, are: (1) Catalina de la Rosa, Sr., who is
Gregorio's m other, individually and on behalf of Gregorio's estate; (2) Gregorio de la Rosa, Sr., who was
Gregorio's father and who is now deceased; and (3) Cynthia de la Rosa, who is Gregorio's widow, as guardian
and next friend of Gregorio’s children— Catalina de la Rosa, Jr., Cynthia Deanna de la Rosa, Jr., and Priscilla
de la Rosa. Gregorio’s widow also sought recovery below on her own behalf. The jury refused to award her
dam ages. She has not appealed that award. Accordingly, in this proceeding, she only appears in a
representative capacity on behalf of her m inor children.

                                                      2
        The family brought suit against Wackenhut after Gregorio was brutally attacked by

two other inmates, resulting in his death, at the Wackenhut facility in Willacy County on

April 26, 2001.2

A.      The Assault

        The inmates at Wackenhut live in separate dormitories or “housing” facilities. A

“crash gate” guards the walkway leading away from the housing facilities. The crash gate

is made out of cyclone fencing material and is closed unless prisoners are passing through

the gate. A guard is posted at the crash gate to monitor the prisoners passing through the

gate.

        On the crash gate’s other side, in between the housing unit and the support building,

is a 100-yard-long walkway known as the “bowling alley.” It is a large sidewalk that is, for

the most part, an open area with no buildings immediately adjacent to it. A chain-link fence

runs along one side of the sidewalk. There are no guards posted along this walkway.

        Wackenhut contracts with the State of Texas to operate the prison, and it is required

to follow the State’s policies in operating the prison. One such policy is the crash gate

“post order,” which, according to Warden Forrest, is an order that “gives the officer general

guidelines and duties to go by in that particular area.” Warden Forrest stated that the

guard at the particular post should follow the post order. The crash gate post order stated,

“The officer shall conduct pat-searches of inmates before permitting entrance or exit to or

from any department within the area of responsibility.” (Emphasis added). Warden Forrest


        2
           The fam ily presented several theories of liability, several of which, as is explained by our analysis
of the issues in this case, need not be discussed in detail. Because the trial transcript is very long and tedious,
and so m any theories of liability were presented, we will discuss generally the facts surrounding the incident
here and will note the additional theories without including all the details. See T EX . R. A PP . P. 47.1.

                                                        3
testified that the purpose for searching inmates was to discover contraband, including

weapons. The procedures are in place to safeguard the inmates.

        Corrections Officer Raul Hernandez3 was stationed at the crash gate on April 26,

2001. Gregorio and several other inmates, including inmates Pedro Equia and Daniel

Sanchez, passed out of their housing facility and through the crash gate on their way to the

support building for “pill call.”4 Officer Hernandez testified that he checked the inmates’

“passes” to ensure they were allowed to leave the housing unit, but he admitted that he did

not pat search Equia or Sanchez.5 Officer Hernandez stated that if he had searched the

inmates, he would have found the lock.

        After traveling about half the distance to the support building, Equia and Sanchez

attacked Gregorio from behind. At least one of the two inmates possessed a lock tied to

a sock and used this as a weapon, striking Gregorio on the head.6 Officer Hernandez

testified that he saw one of the inmates hit Gregorio on the head with the sock, and

Gregorio fell to the ground and did not fight back—he “didn’t have a chance at all.” While

Gregorio crouched on the ground, Equia and Sanchez were kicking him, and blood was

splattering on the ground.


        3
          Officer Hernandez testified at trial. In addition, the fam ily played a videotaped interview of Officer
Hernandez taken by the Office of Inspector General shortly after the incident. Officer Hernandez’s testim ony
is drawn from that video and his trial testim ony.

        4
          Apparently, “pill call” is when the inm ates are allowed to leave the housing facility and go to the
support building to receive m edicine.

        5
            It was undisputed at trial that neither Equia nor Sanchez were searched.

        6
           Only one lock was produced at trial. However, the evidence showed that two lock shanks were
discovered at the scene. Officer Juan Cortez testified that after the attack, W ackenhut personnel brought the
sock inside and discovered that it contained three locks and two sm all alum inum cans of food inside. The
fam ily theorized that there were two locks, and possibly m ore, used in the attack, and the other locks were
lost or destroyed by W ackenhut.

                                                       4
        Officer Juan Cortez, another Wackenhut corrections officer, testified that he was

standing near the door next to Central Control7 waiting for inmates to arrive at the

education department. He stated that he could see down the “bowling alley” all the way

to the housing units through a glass window pane in the door. The officers inside Central

Control could also see the “bowling alley” through glass windows. He stated that he saw

inmates coming out of the housing unit and that he noticed that the crash gate officer did

not pat-search them. He claimed that he knew something was “wrong” when he saw the

inmates pass through the crash gate without being pat-searched.

        Officer Cortez testified that he saw Gregorio walking down the “bowling alley,” and

two inmates came up from behind. He saw one inmate take out a sock, swing it, and hit

Gregorio on the right side of his head. Gregorio then “bounce[d] down to the floor.” The

inmate tried to hit Gregorio with the sock again while he was on the ground, and then both

inmates began kicking him all over his body. Officer Cortez testified that Gregorio did not

respond or fight back because the first hit with the sock knocked him out.8

        Officer Cortez testified that the beating itself lasted fifteen to twenty minutes before

officers arrived and halted the assault and that it took another hour and fifteen minutes for

medical personnel to arrive, even though these medical personnel were employed by



        7
          “Central Control” is the facility’s com m and center and is located at the end of the “bowling alley” in
the support building. It is a secure area that houses the facility’s keys, different types of weapons or “use-of-
force” equipm ent, video equipm ent, and the controls for all of the doors to the facility. Two officers are
regularly stationed there, and their duties are to control the facility’s doors, issue equipm ent to the officers,
m anage the video equipm ent, and respond to radio and phones.

        8
         Major Steve Sangster further testified that Gregorio was basically knocked out when he was hit on
the head with the lock, and thereafter, Gregorio could not defend him self. Major Sangster testified that if
Equia and Sanchez had not passed through the crash gate with the lock, Gregorio would have had a better
chance of defending him self.

                                                        5
Wackenhut and were present at the facility at the time.9 Officer Cortez claimed that

Warden Forrest and Assistant Warden Elberto Bravo first arrived approximately forty-five

minutes later. He claimed that he saw Warden Forrest standing right inside the door next

to Central Control laughing about the incident. Assistant Warden Bravo was also laughing,

and another officer, Rodriguez, was smirking.                     Officer Cortez opined that many of

Wackenhut’s officers were corrupt. He believed the assault was a “hit” on Gregorio and

that Wackenhut’s employees knew it was going to happen.

        Maria Juanita Marroquin testified she was formerly employed at Wackenhut and was

present at the facility on April 26, 2001.10 Upon hearing the “code black” over the radio

about the fight, she went to the door by Central Control. She saw Gregorio on the ground

in the “bowling alley,” and two inmates were beating him. One was swinging a sock at him.

        9
           One of the fam ily’s m ain theories at trial was that W ackenhut’s officers unreasonably delayed in
stopping the fight and in providing m edical attention, which was readily available, to Gregorio. Officer
Hernandez testified that he im m ediately called a “code black,” which is the code called over the officers’
handheld radios notifying them that a fight is in progress. He testified that he attem pted to separate the other
inm ates from the fighting inm ates and ordered Equia and Sanchez to stop the attack. At first, they did not
stop. Eventually, Equia stopped and laid down on the ground, but Sanchez had to be restrained by another
officer. W arden Forrest testified that the fight only lasted approxim ately thirty seconds, and m edical personnel
were im m ediately called to the scene. W arden Forrest testified that Officer Hernandez’s actions were
appropriate, and an officer should not intervene in an inm ate-on-inm ate fight until another support officer
arrives to assist.

          W ackenhut’s expert, Gary Johnson, agreed that if officers allowed a fight to last m ore than five
m inutes, that would constitute negligence. Officer Cortez testified when the fight started, he saw Officer
Hernandez turn his back on the fight. Officer Cortez pushed a button outside the door to the “bowling alley”
so that Central Control would allow him outside to stop the fight. The Central Control officer told him “no,” and
“it’s none of your business.” He presum ed that the Central Control officer did not open the doors to let him
out because she was under orders not to let anyone out. Had the officer opened the door, Officer Cortez
testified that he would have gone out and stopped the fight him self, and he could have done so in less than
a m inute. He asserted that when inm ates get in a fight, typically all an officer had to do was order them to
stop, and they would stop. For this reason, he could have stopped the fight had he been allowed out of the
door. If the inm ates disobeyed the order, he would have personally intervened and would not have waited for
any back up if it appeared that Gregorio was in im m inent danger of death.

        10
           W ackenhut asserted that Marroquin was not present that day. It introduced em ploym ent
applications that were dated after April 26, 2001. Marroquin, however, testified that she was allowed to work
as a substitute teacher in the education departm ent before she form ally applied for a position at W ackenhut
because W ackenhut was short-staffed.

                                                        6
        She also stated that the beating lasted fifteen to twenty minutes.11 She opined that

the actions taken would have been different if a guard was being assaulted and that

Wackenhut did not value the inmates’ lives. She also stated that she saw Assistant

Warden Bravo smirking and laughing after the incident. She testified that Warden Forrest

had a look on his face like “that’s one less Mexican he had to worry about.”

B.      Meaning of the Crash Gate Post Order

        Warden Forrest testified that the inmates have a right to a safe facility, and the

inmates depend on the wardens to ensure that a safe living environment is provided. He

stated that the State promulgates the post order policies and mandates that Wackenhut

follow them, and the procedures are imposed to safeguard the inmates. Warden Forrest

acknowledged that he owes a duty and obligation to the inmates to follow all policies and

procedures. He admitted that breach of the policies and procedures will jeopardize the

unit’s integrity and the inmates’ security. Furthermore, he agreed that if Wackenhut failed

to follow the State’s procedures, the inmates can suffer serious injuries. He admitted that

the best way to stop a beating is to prevent it from occurring in the first place.

        Nevertheless, Wackenhut disputed the meaning of the crash gate post order at trial.

All the witnesses agreed that the post order’s plain language was mandatory—stating that

the crash gate officer “shall” pat-search the inmates. However, Wackenhut’s witnesses

testified that only random searches were required at the crash gate because the order only


        11
           Marroquin also claim ed that she im plored the guards to go outside and help, but Officer Cortez told
her that Central Control would not let them outside until m ore guards arrived. Although this was apparently
the explanation given to her and to Officer Cortez, Marroquin stated that there were three guards outside who
were standing around watching the fight. She believed that the num ber of officers was sufficient for a safe
intervention. She also testified that it took m edical personnel an hour to get to the scene after the fight ended.
Finally, Marroquin testified that on occasion the guards would take paym ent from the inm ates to allow a fight
to happen. She believed that the guards stood around and did not intervene because they had been paid off.

                                                        7
applied when inmates were entering or exiting from a “department” within the officer’s area

of responsibility.

       Warden Forrest testified that neither the housing unit nor the “bowling alley” were

“departments.” Thus, because Gregorio, Equia, and Sanchez were not entering or exiting

a “department” within the crash gate officer’s area of responsibility, the crash gate officer

was not required to search every inmate. Major Steve Sangster, the head of security at

the Wackenhut facility, testified that the officer working the crash gate was required to

follow the crash gate post order. However, he also claimed that neither the housing unit

nor the “bowling alley” were “departments,” so only random searches were required.

       Warden Forrest explained that it was impractical to search all the inmates passing

through the crash gate because the officers must keep the inmates moving to avoid

congestion at the gate. Warden Forrest was trained to send the inmates through the gate

in a group, but he admitted that groups traveling together are dangerous. Nevertheless,

he claimed that congestion at the gate could also be dangerous, and it would cause the

inmates to be late to their appointments in education and elsewhere. Wackenhut’s expert,

Gary Johnson, echoed these concerns.

       Major Sangster testified that locks are available at the commissary for purchase so

that the inmates can lock away their personal items. Major Sangster testified that pat-

searches are not 100 percent accurate, and he claimed that even if a pat-search had been

conducted, it is not certain that a lock and a sock would have been discovered. However,

he agreed that if all the inmates had been searched, the lock probably would have been

detected.



                                             8
       Furthermore, he stated that even if the lock had been detected, it may not have

been confiscated by the officers if the inmate provided a good explanation for possessing

the lock. For example, Warden Forrest testified that if an inmate had purchased a lock and

needed to return it to the commissary for some reason, he would be allowed to do so.

       On the other hand, Officer Cortez testified that the crash gate post order meant that

“you had to search all, each and everybody, coming out of their housing before they got

to crash gate . . . .” He testified that every inmate had to be searched because “you don’t

know within that time frame whether somebody was going to pass contraband or

whatever.” He claimed that the proper procedure was to search the inmates and let them

out of the gate one at a time, with time separating the exit of each inmate:

       Well, I think, start off with, when these people came out of the housing to go
       to education, okay, first they should have searched the first inmate, give him
       a little bit, two, three, four minutes, let him walk, then check the other one,
       give him another two, three minutes like that there’s a far walking distance
       between these people. If something is going to happen that gives time for
       the officer up front or whoever is in the back to get a glimpse of what’s going
       to happen. You don’t send two inmates after one another. You don’t do
       that. It’s against policy. I mean, Wackenhut, the employees knew about it.
       They went against their own rules.

       Officer Cortez further testified that if a search had been conducted, the lock would

have been discovered, and neither Equia nor Sanchez would have been permitted to pass

through the gate at that time:

       Q:     (By Mr. Rodriguez) You know how to do pat[-]searches, right?

       A:     Yes.

       Q:     You would have found—you would have found that lock if they would
              have tried—

       A:     Oh, yes. Oh, yes.


                                             9
             ....

      Q:     And in your opinion, do you think that would have made a difference
             in the outcome of De La Rosa?

             ....

      A:     Oh, yes. He’d be alive.

      Q:     And why is that?

      A:     Because the simple reason that I would have taken out the
             contraband from the inmate. I would have dropped him right there.
             Tell him to drop himself or, you know, we do it. And I would call, you
             know, my supervisor, which was Warden Rodriguez at the time, let
             him know that I have a situation at [the] crash gate. I have an inmate
             with contraband, you know, a weapon. As to what he’s going to do
             with it, I don’t know. See, everything would have ceased right there.
             There would be nobody coming out, but we would have taken care of
             the situation right there before it led to where it led. In this case, that
             did not happen.

             ....

      Q:     Had that happened, in your opinion, was that De La Rosa would be
             alive today?

      A:     Yes, he would.

Officer Hernandez, who was manning the crash gate on the day of the incident, further

agreed that if he had pat-searched Equia and Sanchez, he would have discovered the lock,

and Gregorio would likely be alive.

      Although Marroquin was working as a substitute teacher in education on the day of

the incident, she later was trained and became a corrections officer at Wackenhut.

Marroquin testified that the post order required every inmate leaving the housing units to

be searched for contraband and weapons. She testified that had a proper search been

conducted, she expected that the searching officer would have discovered the lock. If she


                                             10
discovered a lock during a pat-search and the lock was not broken, she stated that she

would have considered it a weapon.

       The family introduced into evidence the State’s security audits of the Wackenhut

facility. Major Sangster testified that, in 2002 and 2003, Wackenhut was cited for failing

to conduct pat-searches as the inmates were leaving the housing facility.

C.     Previous Assaults at the Wackenhut Facility

       Both Warden Forrest and Major Sangster testified that other assaults had occurred

in the “bowling alley” area, which was not manned by guards. The trial court admitted four

reports offered by the family detailing other incidents at Wackenhut where locks had been

used in an assault on an inmate. Major Sangster admitted that he had knowledge of these

reports prior to Gregorio’s assault.

       More importantly, Warden Forrest testified that Equia had assaulted another inmate

just a few months before the assault on Gregorio. On January 3, 2001, while at another

facility, Equia and another inmate assaulted a fellow inmate by kicking and hitting him.

Equia was transferred to the Wackenhut facility at the beginning of February 2001.

Apparently, the TDCJ database was updated on February 8, 2001, after Equia was

transferred to the Willacy County facility, to note the assault. Warden Forrest stated that

he was not aware that the computer system had been updated because the system does

not provide notice of updates.         He admitted, however, that he had access to this

information at any time after February 8, 2001, and before Gregorio was assaulted on April

26, 2001.




                                              11
D.        Gregorio’s Injuries and Death

          Gregorio suffered severe injuries as a result of the beating. Officer Valentin

Martinez testified that he escorted Gregorio to the medical department. He testified that

Gregorio was “messed up,” with blood all over his face and bumps on his head.

          The medical department called an EMS team, and Gregorio was taken to the

hospital. Foster Frank Edwards, a Willacy County EMS paramedic, testified that he was

dispatched to the jail. He stated that Gregorio’s face was swollen and deformed. Gregorio

was suffering pain in his abdomen, face, back, and neck. Gregorio refused to lie flat on

the stretcher because of the pain he was suffering. He stated that Gregorio told him that

he was about to be released from jail, that things were going to be good for him then, and

that he was looking forward to seeing his family.

          Robert Sims, M.D., testified that he is an emergency room physician at Valley

Baptist Medical Center and that he treated Gregorio. He is board certified in internal and

emergency medicine. He testified that Gregorio was very seriously injured. Gregorio was

talking, but his clarity was impaired. Gregorio’s blood pressure was low and was dropping,

and he had facial bruising, black eyes, broken ribs, and a partially collapsed lung. Sims

performed a quick bedside ultrasound and found blood inside Gregorio’s abdominal cavity,

which indicated that an internal organ was damaged. By the time he examined Gregorio,

between one-fifth and one-fourth of Gregorio’s blood had already spilled into his body

cavity.

          Gregorio died during surgery. Sims testified that the beating caused Gregorio’s

death, based on a reasonable degree of medical probability. He testified that the death

resulted from multiple blows to the body and that all the blows were important.

                                            12
       Ruben Lopez, M.D., who performed the surgery on Gregorio, testified he was 100

percent certain that the beating proximately caused Gregorio’s death, based on a

reasonable degree of medical probability, and he opined that had Gregorio not received

the beating, he would be alive. The autopsy report determined that the cause of death was

“multiple vascular lacerations, due to: Beating.”

E.     The Spoliated Evidence

       Warden Forrest testified that there were video cameras along the facility’s perimeter,

and the cameras were linked to video recording equipment in Central Control. He testified

that the State of Texas required him to ensure that the cameras were in good working

condition. These cameras, Warden Forrest explained, could pan and tilt, and they were

mounted on perimeter posts to get a “bird’s eye view.” The cameras were adjustable from

Central Control and were always on.

       At trial, the family contended that a videotape existed that showed the beating but

that this video had been lost or destroyed by Wackenhut. Warden Forrest testified during

his deposition that there was a video camera on one of the perimeter posts that was

focused down on the beating. In his sworn testimony, he admitted to seeing a tape of the

beating and described the video and the beating in detail. His stated that the video showed

“that one inmate had beat another inmate with a sock filled with a lock,” and it showed an

inmate kicking and punching Gregorio.

       After reviewing his deposition, however, Warden Forrest changed his testimony,

claiming that the video never existed. At trial, he admitted to describing the video in his

deposition testimony, but he claimed that his prior testimony describing the video was

“based on all the information that I received regarding that incident over and over receiving

                                             13
information.” He explained that he had created his “own little movie” in his mind:

       I did that based on all the information that I received regarding that incident
       over and over receiving information. I put that picture—painted that picture
       in my head that I believed that’s what I saw, and that’s what I testified to, and
       I corrected it that day and at a later date. . . . I described what I thought I saw
       based on the information of everyone telling me what happened. I painted
       a picture of that incident in my mind, and I played it over in my mind many,
       many times since then.

       Officer Cortez testified that during his training, he learned that every department had

a video camera that was constantly recording in Central Control, and there should have

been a camera pointing to the crash gate area. He testified that at the end of the third shift

every day, the videotapes were taken to the warden’s office, and the warden maintained

custody of them. He opined that Wackenhut’s wardens destroyed the tapes of Gregorio’s

beating.

       Warden Forrest also admitted that the facility owned and used several handheld

cameras to record the use of force by officers when necessary. Officer Cortez testified that

after the fight ended, Assistant Warden Bravo recorded Gregorio with a handheld camera

and followed Gregorio all the way to the medical department. Officer Cortez testified that

the videotape would have shown Gregorio’s injuries. Officer Cortez testified that he saw

Warden Bravo leave the medical department with the tape in his hand and, later that day,

take the video to his vehicle in the parking lot. When asked what he believed Warden

Bravo intended to do with the tape, Officer Cortez testified, “I mean, the only thing I can

think about what he did with the tape, you know, make sure nobody got a hold of it.” This

videotape was never produced.

       Representatives from the Office of Inspector General of the Texas Department of

Criminal Justice arrived at the Wackenhut facility approximately six hours after the beating.

                                               14
Warden Forrest testified that he turned over all the evidence and videotapes to these

representatives.12 Warden Forrest admitted that six hours was plenty of time to destroy,

remove, or alter the videotapes, had he so desired.

F.      Pretrial Rulings on Spoliation

        The family filed its original petition on August 29, 2001. On August 16, 2004, the

family filed the first of many motions for default judgment and sanctions based on the

missing evidence. On September 12, 2005, the parties appeared for a hearing. The court

gave Wackenhut thirty days to produce the missing videotapes. No videotapes were

produced, so the family moved the court to render a default judgment, which the court

granted on October 25, 2005. A hearing was set on damages for November 4, 2005.

Before the hearing on damages, Wackenhut produced several videotapes and persuaded

the court to reconsider the default judgment and, instead, give a spoliation instruction.13

G.      The Trial Court’s Judgment

        The case was tried to a jury. The jury found that Wackenhut and Warden Forrest



        12
           Texas Ranger Rudy Jaram illo assisted with the incident investigation. He stated that the only
videotapes turned over to the investigators were the “use of force” videos, which showed the officers
restraining Equia and Sanchez after the fight and taking them to the m edical departm ent. One videotape
showing the use of force by the officers had been partially erased. Ranger Jaram illo adm itted that he relied
on W arden Forrest to hand over the videotapes and did not conduct an independent investigation into whether
any other tapes existed.

        13
             Even though the fam ily filed num erous m otions for default judgm ent arguing that W ackenhut was
still hiding evidence, the trial court did not grant any of these m otions. Instead, the court instructed the jury
that W ackenhut spoliated evidence, as follows:

        You, the jury, are instructed that W ackenhut Corrections Corporation and W arden David
        Forrest destroyed, lost, or failed to produce to this Court m aterial evidence that by law should
        have been produced as evidence for your deliberations. You are further instructed that you
        m ay, but are not required to, presum e this m aterial evidence is unfavorable to W ackenhut
        Corrections Corporation and W arden David Forrest.

W ackenhut has not challenged the trial court’s decision to give a spoliation instruction.

                                                       15
were negligent and acted with malice or gross negligence, assigning 75 percent of the

responsibility to Wackenhut and 25 percent to Warden Forrest. The jury awarded $47.5

million in damages as follows:

      •          Gregorio’s estate received zero damages for pain and suffering,
                 disfigurement, and mental anguish; $20 million in punitive damages against
                 Wackenhut; and $500,000 in punitive damages against Warden Forrest.

      •          Catalina, Sr. (Gregorio’s mother) received $2.5 million for past mental
                 anguish, $2.5 million for future mental anguish, $2.5 million for past loss of
                 companionship and society, and $2.5 million for future loss of companionship
                 and society.

      •          Gregorio, Sr.’s estate (Gregorio’s father) received $2.5 million for past mental
                 anguish and $2.5 million for past loss of companionship and society.

      •          Catalina, Jr. (Gregorio’s oldest daughter) received $2 million for future
                 mental anguish and $2 million for future loss of companionship and society.

      •          Cynthia, Jr. (Gregorio’s middle daughter) received $2 million for future
                 mental anguish and $2 million for future loss of companionship and society.

      •          Priscilla (Gregorio’s youngest daughter) received $2 million for future mental
                 anguish and $2 million for future loss of companionship and society.

      After trial, the trial court rendered judgment on the verdict and also awarded

Gregorio’s estate $7,511 for funeral and EMS expenses, finding that these damages were

conclusively established by the evidence. This appeal ensued.

                         II. CHARGE ERRORS IN THE LIABILITY QUESTIONS

      By its sixth issue,14 Wackenhut argues that Questions 1, 2, and 3 in the jury

charge—the liability questions—failed to submit the correct negligence standard applicable

to prisons.      Comparing the family’s negligence claim to a premises liability claim,

Wackenhut argues that the family waived its negligence claim by failing to secure findings


      14
           W e will address W ackenhut’s twelve issues out of order, for convenience.

                                                    16
on all the necessary elements. See, e.g., Clayton W. Williams, Jr., Inc. v. Olivo, 952

S.W.2d 523, 528-29 (Tex. 1997) (holding plaintiff waived premises defect claim by failing

to submit Corbin elements). Thus, Wackenhut argues that we must reverse and render

judgment that the family takes nothing. Id. We hold that Wackenhut waived this argument

by failing to sufficiently make the arguments it now makes on appeal known to the trial

court.

A.       The Charge Submitted to the Jury

         The charge presented three liability questions based on negligence.15 Question 1,

the “general negligence question,” asked, “Did the negligence, if any, of any party named

below proximately cause the injuries to and death of Gregorio de la Rosa Jr.?” The jury

was presented with three lines to answer the question with respect to Wackenhut, Warden

Forrest, and Gregorio. The jury answered “yes” to Wackenhut and Warden Forrest and

“no” to Gregorio.

         Question 2, the “assumed duty question,” asked the same general negligence

question as in Question 1 but then provided the following instructions:

                  For this question a party named below was negligent if—

         a.       A party named below undertook to perform services they knew or
                  should have known were necessary for the protection of Gregorio de

         15
           The initial instructions to the jury contained definitions pertinent to the entire charge. These
included the following:

                   “Negligence” with respect to W ackenhut Corrections Corporation and W arden David
         Forrest m eans failure to use ordinary care, that is, failing to do that which a jailor of ordinary
         prudence would have done under the sam e or sim ilar circum stances or doing that which a
         jailor of ordinary prudence would not have done under the sam e or sim ilar circum stances.

                 “Ordinary care” with respect to W ackenhut Corrections Corporation and W arden
         David Forrest m eans that degree of care that would be used by a jailor of ordinary prudence
         under the sam e or sim ilar circum stances.

                                                        17
              la Rosa Jr., and

       b.     A party named below failed to exercise reasonable care in performing
              those services, and

       c.     Performance of these services by a party named below increased the
              risk of harm to Gregorio de la Rosa Jr.

Again, the jury answered “yes” to both Wackenhut and Warden Forrest and “no” to

Gregorio.

       Finally, Question 3, the “failure to control question,” also asked the same general

negligence question as in Questions 1 and 2 but provided the following instructions:

              For this question a party named below was negligent if—

       a.     A party named below knew or should have known Equia or Sanchez
              were likely to cause bodily harm to others if not controlled; and

       b.     A party named below failed to exercise reasonable care to control
              Equia or Sanchez and such failure proximately caused the injuries to
              and death of Gregorio de la Rosa Jr.

The jury answered this question the same way it answered the first two questions.

B.     Wackenhut’s Arguments

       On appeal, Wackenhut argues that these three liability questions submitted an

incorrect duty or standard of care owed by a prison operator. Specifically, it argues that

a prison operator’s standard of care is as follows:

       The general rule gathered from the cases which have considered the
       question as to liability of an officer in charge of the jail or prison for an injury
       inflicted by one prisoner upon another prisoner is that, in order to hold the
       officer liable for such injuries, there must be knowledge on the part of such
       officer that such injury will be inflicted or good reason to anticipate danger
       thereof, and negligence in failing to prevent the injury.

Browning v. Graves, 152 S.W.2d 515, 519 (Tex. Civ. App.–Fort Worth 1941, writ ref’d).

Wackenhut argues that the liability questions were inadequate or incomplete because they

                                               18
did not instruct the jury that to find the defendants liable, the defendants must know or

have reason to believe that an injury will likely be inflicted on another prisoner and

thereafter be negligent in failing to take steps to prevent the injury. Wackenhut argues it

objected to these errors and requested an instruction containing the appropriate standard.

Wackenhut argues that its proposed instruction comported with Browning, and the trial

court erred when it refused the tendered instruction. Id. Likening this case to a premises

liability claim, Wackenhut argues that the family waived its negligence claim by failing to

submit all the necessary elements of that claim.

       With respect to Question 2, Wackenhut argues that the assumed duty theory has

never been applied to a prison operator and is wholly inapplicable. It argues that there was

no reason to create an assumed duty because the duty that applies is the Browning

standard. With respect to Question 3, Wackenhut likewise argues that this “failure to

control” theory has never been applied in these specific circumstances, and the Browning

standard should have been applied.

C.     The Family’s Response

       In response, the family argues that Wackenhut waived these arguments by agreeing

to the form of the charge. Specifically, the family argues that after a two-day charge

conference during which the parties “horse-traded” their jury questions and instructions,

Wackenhut agreed to the charge’s form and merely reserved its right to make no-evidence

objections to the charge. Accordingly, the family contends that Wackenhut is estopped

from claiming that the questions were erroneous. See Tittizer v. Union Gas Corp., 171

S.W.3d 857, 862 (Tex. 2005) (holding that a party cannot seek a ruling from the trial court



                                            19
and then complain that trial court erred by making the ruling); Gen. Chem. Corp. v. De La

Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (holding that a party cannot request submission

of jury issue and then object to its submission); Am. Nat’l Petroleum Co. v. Transcon. Gas

Pipe Line Corp., 798 S.W.2d 274, 278 (Tex. 1990) (holding that a court may hold parties

to charge agreements).

         The family further argues that Wackenhut’s proposed instruction did not preserve

error because it also included improper theories of liability, including a standard requiring

proof of intentional, willful, or wanton conduct. The family argued that Wackenhut was

commingling improper instructions. See TEX . R. CIV. P. 278. Furthermore, the trial court

did not sign the instruction as refused. See id. at R. 276. In any event, the family argues

that the applicable law supported each question.

D.       The Charge Conference

         Unfortunately, we cannot explain the basis of our holding without explaining, in

detail, the proceedings and arguments made below.16 On September 14, 2006, the trial

court began the arduous process of crafting the jury charge in this case. The parties had

been working together to whittle down the remaining charge disagreements. At the



         16
            Analyzing the charge com plaints has been m ade exceedingly com plex due to the record’s lack of
clarity. On Septem ber 14 and 15, 2006, while the trial was ongoing, the trial court held a hearing on the record
where the parties discussed their disagreem ents about the charge. At first, the parties appeared to believe
this hearing constituted an inform al charge conference during which both parties would attem pt to assist the
court in crafting the charge. Shortly after beginning the hearing, however, the trial court m ade it clear that it
considered this hearing to be the “form al” charge conference. Due to the num erous disagreem ents between
counsel regarding the charge, this “form al” charge conference was nothing short of chaotic. For exam ple,
the trial court interspersed a few of its rulings during the parties’ argum ents, but it reserved m any of its rulings
until the end of the hearing, by which tim e the parties and the court apparently becam e confused about what
rulings had been m ade or had yet to be m ade. This resulted in m ore discussions with the court about issues
that one party or the other understood to be previously determ ined. W ith that background, and with m uch
chagrin, we proceed to determ ine whether W ackenhut preserved its com plaints about what ultim ately becam e
the final charge.

                                                         20
beginning of the hearing, the parties presented the court with three documents, which the

court reporter labeled “Court’s Charge Exhibits” numbers 1, 2, and 3. Charge Exhibit 1 was

an e-mail between the parties discussing their ongoing negotiations, and attached to that

e-mail was a document titled, “Defendants’ Additions to Proposed Jury Charge.” Charge

Exhibit 2 was a document titled, “The Parties’ Jointly Proposed Court’s Charge.” It became

apparent, early in the hearing, that Charge Exhibit 2 did not contain language that both

parties fully agreed to submit. Nevertheless, Charge Exhibit 2 became the basis for the

parties’ discussion at that hearing.17

        Initially, Wackenhut argued to the court that Questions 2 and 3, the assumed duty

and failure to control questions, should not be submitted because the family should only

“go to the jury on one negligence question and that’s it.” Wackenhut argued that the family

would be getting multiple “bites at the apple” by submitting several negligence theories.

A short time later, Wackenhut objected “to both the submission of a broad form negligence

and the specific granulated form.” The trial court stated, “No. Do one or the other.” We

note that neither of these objections pointed out the specific problem that Wackenhut now

argues with respect to these questions, and in fact, created confusion as to what, exactly,

Wackenhut believed was the proper form of the negligence submission. Up to this point,

it appeared that the parties agreed that a general negligence question should be

submitted. Later, Wackenhut reurged these objections with respect to Questions 2 and


        17
            T he questions in Charge Exhibit 2 were labeled alphabetically; however, the final charge was
labeled num erically. Question A was the general negligence question without any additional instructions,
which ultim ately becam e Question 1 in the jury charge. Question D was the general negligence question with
the “assum ed duty” instructions, which ultim ately becam e Question 2 in the final charge. Question E was the
general negligence question with the “failure to control” instructions, which ultim ately becam e Question 3 in
the form al charge. This discrepancy in labeling has m ade our analysis quite com plex. For ease of reference,
we will refer to the num bers used in the final charge to identify the questions we are discussing.

                                                     21
3, arguing that the theories of liability were subsumed within Question 1's general

negligence inquiry.

      When further pressed by the court, Wackenhut lodged the following objections to

Question 1, the general negligence question:

      [Wackenhut]:               I’m sorry, Your Honor. There is more. It includes within
                                 it—Of course, as we mentioned earlier, negligence
                                 requires evidence of the standard of care. It’s
                                 unquestioned in this case that the standard of care took
                                 place in a prison environment and it involves balancing
                                 the risks of a prison environment in a way that is outside
                                 the common experience of the average layperson. As
                                 such, as a black letter matter of law, it requires expert
                                 testimony as to the standard of care as well as the
                                 breach. Absent that testimony, that question simply
                                 isn’t proper for submission to the jury. I would object on
                                 that ground.

      The Court:                 Are you finished?

      [Wackenhut]:               In the alternative, Your Honor, I would argue that the
                                 only evidence that there has been or will be, after Mr.
                                 Johnson testifies by deposition, is that the standard of
                                 care involves adherence to the TDCJ mandated policies
                                 that have been already presented as evidence in this
                                 case. In that event, I would ask that the jury simply be
                                 instructed that that is the standard of care because
                                 there isn’t any competing evidence in the case.

      At this point, Wackenhut asked the court to apply the State of Texas’s policies as

the general standard of care.18 The court did not rule on the objection at that time.

      With respect to Questions 2 and 3, Wackenhut again argued that these theories of

liability would be subsumed under Question 1 and would be redundant. As against

Question 2, Wackenhut argued that the assumed duty question would allow the jury to find



      18
           W e will refer to these argum ents as the “TDCJ policy” argum ents.

                                                     22
that Wackenhut committed “medical negligence,” which would be an impermissible ground

of recovery. Furthermore, as against Question 3, Wackenhut argued that there was no

evidence that Sanchez had a history of a predisposition to cause bodily harm. Wackenhut

did not make any further objections to Questions 2 or 3 at that time.

        The parties then moved through the remaining charge issues and discussed various

instructions. After addressing all the questions in Charge Exhibit 2, Wackenhut directed

the court to Charge Exhibit 1, which contained several instructions that Wackenhut sought

to include in the jury charge. First, Wackenhut requested an instruction it called “prison

environment”:

                 It is important that in your deliberations you be aware that this action
        arises in a penal institution. All inmates assigned to the Willacy County State
        Jail are convicted felons. In view of the unique nature of the jail environment,
        jail officials such as the Defendants are given broad discretion in the
        execution of policies and procedures that, in their judgment, are needed to
        maintain the internal security, order, and discipline of the jail, and broad
        deference must be given to their management decisions.

                You are further instructed that, because state jail facilities are
        occupied by convicted felons, who are either ineligible for or found to be
        unworthy of release into society, by its very nature, the operation of such a
        jail is a dangerous task. The reasonableness of Defendants’ actions,
        therefore, must be determined against the backdrop of the jail environment.

              You are further instructed that prison officials are not expected to
        prevent all inmate-on-inmate violence.19

Wackenhut argued that it wanted this instruction at the beginning of the charge to give the

jury guidance about what ordinary care means in the circumstances of the case. At the



        19
            This instruction was crafted by W ackenhut by cherry picking language from federal case law
analyzing the Eighth Am endm ent’s prohibition on cruel and unusual punishm ent. See W hitley v. Albers, 475
U.S. 312, 321 (1986) (analyzing cruel and unusual punishm ent claim s); Adames v. Perez, 331 F.3d 508, 512
(5th Cir. 2003) (sam e); 5th Cir. Pattern Jury Instructions 10.5 (2006) (providing excessive force instructions).



                                                      23
time, the court did not rule on whether the “prison environment” instruction would be given

or on Wackenhut’s TDCJ policy arguments.

       Next, Wackenhut requested “an instruction under negligence that comes from Texas

Government Code section 497.096.”20 It argued that the Government Code sets the

appropriate burden of proof and the “standard that is required to impose civil liability in this

case.” Wackenhut’s counsel then read the complete instruction he was requesting:

               You are instructed that an employee of a private prison is not an
       insurer of the personal safety of the inmates under his supervision and
       control; the law requires only that the employees in actual charge of the
       prison exercise ordinary care to prevent prisoners in their custody from
       harming one another. In order for David Forrest or the Wackenhut
       Corrections Corporation to be liable under Texas law, the employees must
       know or have reason to believe that injury will likely be inflicted or he must
       have reason to anticipate the danger thereof and therafter be negligent in
       failing to take steps to prevent the injury.

             You are further instructed that a person is not required to anticipate
       the negligent or unlawful conduct of another.

               You are further instructed that Wackenhut Corrections Corporation
       and David Forrest cannot be held liable if their act or failure to act was not
       intentional, willfully or wantonly negligent, or performed with conscious
       indifference or reckless disregard for the safety of others.21



       20
            See T EX . G O V ’T C OD E A N N . § 497.096 (Vernon 2004). That section provides:

       An em ployee of the Texas Departm ent of Crim inal Justice, sheriff, em ployee of a sheriff’s
       departm ent, county com m issioner, county em ployee, county judge, em ployee of a com m unity
       corrections and supervision departm ent, restitution center, or officer or em ployee of a political
       subdivision other than a county is not liable for dam ages arising from an act or failure to act
       in connection with com m unity service perform ed by an inm ate im prisoned in a facility
       operated by the departm ent or in connection with an inm ate or offender program m atic or
       nonprogram m atic activity, including work, com m unity service, educational, and treatm ent
       activities, if the act or failure to act was not intentional, wilfully or wantonly negligent, or
       perform ed with conscious indifference or reckless disregard for the safety of others.

Id.

       21
            W e will refer to this as the “Governm ent Code” instruction.

                                                        24
       Wackenhut’s counsel did not orally state where in the charge the Government Code

instruction should be placed. However, in Charge Exhibit 1, this instruction was labeled,

“To be included with negligence Question A,” which ultimately became Question 1.

Wackenhut never argued that this instruction should be included with Questions 2 and 3

or should be placed at the beginning of the charge, to be applicable to all the liability

questions.

       The family objected that the Government Code instruction was erroneous in whole

and in specific parts, particularly the instruction’s last two paragraphs, which appeared to

require a showing of intentional or grossly negligent conduct. The family argued that the

Government Code provision did not apply. In response, Wackenhut argued:

       Brief response, Your Honor. Just that what this does is redefine the standard
       under these circumstances. Anybody who is taking care of prisoners—This
       was passed before the legislature gave the executive branch the authority to
       contract with private enterprises like Wackenhut. We think that what it really
       does is immunize anybody performing those functions that are listed, in
       effect, taking care of prisoners. It changes the background law and provides
       a new standard. It kind of eliminates the negligence standard and puts this
       new standard in. . . .

(Emphasis added).     Thereafter, the court stated that it was refusing the additional

Government Code instruction but agreed to take the” prison environment” instruction under

advisement.

       The hearing, however, continued. Later, the court stated that it would refuse the

“prison environment” instruction subject to “anything you bring me tomorrow.” At the end

of the hearing that day, Wackenhut’s counsel handed the judge a stack of papers

containing all of its requested instructions. However, signed copies of these requests

noting the judge’s refusal to incorporate the “prison environment” and Government Code


                                            25
instructions do not appear in the record.

         The next day, September 15, 2006, trial continued. After the last witness testified,

the parties and the court continued the charge conference. Wackenhut informed the court

that the parties had “come to an agreement on a number of issues on the charge,” but that

there were a few unresolved issues. Wackenhut’s counsel informed the court that “we are

still asking for the submission of some of the instructions we gave you yesterday. I’m not

sure about the list, if we have them there, but we can go through what we have agreed

upon.”

         Wackenhut’s counsel informed the court that he was still pursuing the prison

environment instruction. In response, the family argued that the appropriate standard of

care in a prison case was set out in Browning, which applied a “common law negligence

standard” and which was submitted “on a negligence question.” The family argued that the

Browning standard was merely an application of the general negligence standard to a

prison case and that it was subsumed in ordinary negligence instructions. Wackenhut’s

counsel then stated that the Government Code “established a different standard of care

for the prisons” and that “the standard of care should be what is set out under that

provision of the Government Code.” He asserted that Wackenhut was entitled to the

“higher, willful or wanton standard of care.” The court again stated it would not give the

requested instructions.

         The family then noted that Wackenhut continued to “disagree with the applicability

of these three theories. They are still reserving that objection.” Wackenhut’s counsel

explained,

         Well, Your Honor, other than the objections we made yesterday to those, the

                                              26
       only thing I would add is that in regards to Question No. 2—Question No. 1
       is the general negligence question. Other than the argument we had about
       standard of care, we have no objection to the wording of that . . . straight
       from the Pattern Jury Charge. . . . No. 2 is a products liability standard. It’s
       from a products liability case. . . . I just don’t think we have that, Your Honor.
       We would disagree that this is even a proper theory to submit to the jury on
       this issue.

After more arguments about the rest of the charge, the court recessed for lunch.

       Upon return, the family’s counsel informed the court that the parties had almost

completely agreed on the charge’s contents:

              We’ve been working on the charge all day. I spent the last two hours
       with [counsel for Wackenhut] on the charge. And of the seven issues, we
       are very—I think we’ve only got maybe one or two issues that we haven’t
       agreed to, that this charge is the correct charge.

               The big hangup at this point is the instructions that they have
       requested the court to submit on prison environment. Okay. What I’ve done
       is I’ve offered to drop the conspiracy claim and to give them the new and
       independent cause instruction if they would submit to me some reasonable
       language on what they think the standard of care is, assuming that it’s
       different from a person of ordinary prudence, if they would just tell me in one
       sentence what they think the standard really ought to be instead of that,
       because that seems to be what they are saying.

Wackenhut’s counsel did not disagree with the family’s assertion that the only issue in

dispute was the “prison environment” instruction. Rather, he stated that the parties

“attempted to see if we could come to a resolution on this,” but they “weren’t able to.” He

further stated, “At this point, we are not willing to waive the objections that we’ve put in the

record.” After a short break, Wackenhut was allowed to make its no-evidence objections

to the charge.

E.     Analysis

       As noted above, the family first argues that Wackenhut agreed to the charge’s

contents and cannot complain now. The record, however, does not show that Wackenhut

                                              27
agreed to the form of the liability questions. A stipulation is “‘an agreement, admission, or

concession made in a judicial proceeding by the parties or their attorneys, respecting some

matter incident thereto.’” Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 734 (Tex.

App.–Corpus Christi 1994, writ denied) (quoting Nat’l Union Fire Ins. Co. v. Martinez, 800

S.W.2d 331, 334 (Tex. App.–El Paso 1990, no writ)). When construing a trial stipulation,

we must determine the parties’ intent from the language used in the entire agreement “‘in

the light of the surrounding circumstances, including the state of the pleadings, the

allegations therein, and the attitude of the parties in respect of the issues.’” Id. (quoting

Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 886-87 (Tex. App.–El Paso 1993,

orig. proceeding)). Stipulations that are ambiguous and uncertain in their terms should be

disregarded. Id. For a stipulation made in open court to be binding, the parties must

dictate all material terms into the record and express their assent to those terms. Id.

        Throughout the hearing, on both days, Wackenhut repeatedly argued against the

form of the liability questions. At the end of the two-day hearing, Wackenhut explicitly

informed the trial court that it was not willing to waive the objections it had placed into the

record. Thus, we hold that the record does not support the family’s assertion that the

charge’s liability questions were submitted by agreement. See id. (holding counsel’s

remarks were insufficient to constitute binding stipulation because they were uncertain and

did not recite the terms of any stipulation).22


        22
            T he fam ily cites In re W .J.H., 111 S.W .3d 707, 711 (Tex. App.–Fort W orth 2003, pet. denied),
arguing that a party who jointly drafts a charge and apparently agrees cannot appeal problem s it later asserts
with the charge. It is true that the Fort W orth Court of Appeals considered the fact that the appellant assisted
in drafting the charge and also apparently agreed to its contents. Id. However, the court also held that any
error was waived because the appellant did not object or request any different language in the charge. Id.
Thus, the court’s decision that the error was waived was based on the failure to properly raise the issue with
the trial court and the apparent agreem ent. Id. Here, W ackenhut specifically stated that it was not waiving

                                                      28
        Nevertheless, Wackenhut’s arguments below were not sufficiently clear that we can

conclude with confidence that the trial court understood its arguments, and its complaints

on appeal do not comport with the arguments that it made in the trial court. To preserve

error for appeal, an appellant must have made a

        timely request, objection, or motion that: (A) stated the grounds for the ruling
        that the complaining party sought from the trial court with sufficient specificity
        to make the trial court aware of the complaint, unless the specific grounds
        were apparent from the context; and (B) complied with the requirements of
        the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or
        Appellate Procedure.

TEX . R. APP . P. 33.1(a)(1)(A)-(B) (emphasis added). Texas Rule of Civil Procedure 274

further explains the requirements for preserving an objection to the jury charge:

        A party objecting to a charge must point out distinctly the objectionable
        matter and the grounds of the objection. Any complaint as to a question,
        definition, or instruction, on account of any defect, omission, or fault in
        pleading, is waived unless specifically included in the objections. When the
        complaining party’s objection, or requested question, definition, or instruction
        is, in the opinion of the appellate court, obscured or concealed by
        voluminous unfounded objections, minute differentiations or numerous
        unnecessary requests, such objection or request shall be untenable. No
        objection to one part of the charge may be adopted and applied to any other
        part of the charge by reference only.

TEX . R. CIV. P. 274 (emphasis added). With respect to instructions, rule 278 provides that

the “[f]ailure to submit a definition or instruction shall not be deemed a ground for reversal

of the judgment unless a substantially correct definition or instruction has been requested

in writing and tendered by the party complaining of the judgment.” TEX . R. CIV. P. 278

(emphasis added).            Thus, in every manner of pointing out errors in the charge, the

appellant is required to make the trial court sufficiently aware of its complaints.



its objections to the liability questions in the charge.

                                                           29
Furthermore, objections to the charge and requests for instructions must comport with the

arguments made on appeal. See Isaacs v. Bishop, 249 S.W.3d 100, 113 n.13 (Tex.

App.–Texarkana 2008, pet. denied); Coke v. Coke, 802 S.W.2d 270, 275 (Tex.

App.–Dallas 1990, writ denied).

       In the trial court, Wackenhut argued different standards of care at different times.

First, it argued that the TDCJ policies should dictate the standard of care. Second, it

proposed the Government Code instruction. The Government Code instruction, however,

contained conflicting standards. Initially, the instruction appeared to define ordinary care

in a prison environment in accordance with Browning. See 152 S.W.2d at 519. However,

a completely inconsistent standard of care was included at the end of the instruction, which

the Browning decision does not require. See id. The instruction included an admonition

to the jury that it could not find the defendants liable unless their acts or failure to act were

“intentional, willfully or wantonly negligent, or performed with conscious indifference or

reckless disregard for the safety of others.” This part of the instruction was drawn from the

government code and used language that would have required the jury to find that

Wackenhut acted intentionally or was grossly negligent, which would have been improper.

See TEX . CIV . PRAC . & REM . CODE ANN . § 41.001(10) (Vernon 2008) (defining gross

negligence as an act or omission “of which the actor has actual, subjective awareness of

the risk involved, but nevertheless proceeds with conscious indifference to the rights,

safety, or welfare of others”); see also Burk Royalty Co. v. Walls, 616 S.W.2d 911, 916-20

(Tex. 1981) (examining history of gross negligence and the historical use of these terms

in gross negligence definitions); Wheeler v. Yettie Kersting Mem’l Hosp., 866 S.W.2d 32,



                                               30
50 n.25 (Tex. App.–Houston [1st Dist.] 1993, no writ) (stating that the terms “heedless and

reckless disregard,” “willful act or omission,” or “willful and wanton disregard” are

synonymous with gross negligence).

       Importantly, Wackenhut never argued the instruction’s two parts in the alternative.

In fact, Wackenhut never emphasized the instruction’s Browning portion, even though the

family’s counsel pointed to the Browning standard as merely a restatement of general

negligence principles. Rather, Wackenhut adamantly emphasized the intent and gross

negligence standard on both days of the charge conference. In contrast, on appeal,

Wackenhut ignores its gross negligence arguments and now asserts that it only intended

to include the Browning portion of the instruction.

       Wackenhut argues that because its proposed instruction included the Browning

standard, the trial court should have recognized that all the charge questions were

erroneous. Wackenhut argues that a trial court is not entitled to refuse all of an appellant’s

requested instructions just because they are included in one document with other possibly

incorrect instructions. See Lester v. Logan, 907 S.W.2d 452, 453 (Tex. 1995). In Lester,

the supreme court, in denying an application for writ of error, disapproved of the court of

appeals’ holding that the trial court was not required to sort through a multitude of requests

to determine which requests were proper and improper. Id. Wackenhut cites several other

cases that it claims rejected the argument that a request for an instruction is waived if it is

buried in a multitude of requests. See Alaniz v. Jones & Neuse, Inc., 907 S.W.2d 450, 451

(Tex. 1995); Samedan Oil Corp. v. Intrastate Gas Gathering, Inc., 78 S.W.3d 425, 453

(Tex. App.–Tyler 2001, pet. granted, judgm’t vacated w.r.m.); Tex. Natural Res.



                                              31
Conservation Comm’n v. McDill, 914 S.W.2d 718, 724 (Tex. App.–Austin 1996, no writ).

       In Lester, the supreme court relied on its decision in State Department of Highways

v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). In Payne, the court made it clear that the

ultimate test for preservation of charge error is not necessarily whether the appellant strictly

complied with the Texas Rules of Civil Procedure’s complex procedures for objecting to

and requesting items in the charge; rather, the test should be “whether the party made the

trial court aware of the complaint, timely and plainly, and obtained a ruling.” Payne, 838

S.W.2d at 241.

       For example, in Alaniz, the supreme court held that the plaintiff preserved his

request for a question on future lost profits even though the requested instruction was

presented as part of the plaintiff’s complete proposed charge, which contained numerous

other requests. 907 S.W.2d at 451. The trial court submitted a page from the plaintiff’s

proposed charge that had included the references to future lost profits, but it had redacted

the future lost profits references. Id. The plaintiff objected to the omission during the

charge conference. Id. The court of appeals held that the plaintiff failed to comply with the

rules because he (1) included his request as part of a complete charge instead of

separately, (2) submitted the request before trial and not after the charge was submitted

to the parties, and (3) failed to make his request separate from his objections. Id. The

court of appeals acknowledged that under Payne, the plaintiff’s error was likely preserved

because the trial court was obviously aware of the complaint. Id. Nevertheless, the court

of appeals held the objection was waived. Id. The supreme court reversed. Id. It held

that the rules must be applied in a common sense manner and must be interpreted with



                                              32
an eye towards preserving errors in the charge as long as it appears that the appellant

made the trial court sufficiently aware of the issue and obtained a ruling. Id.

        We believe that Alaniz and the other cases cited by Wackenhut do not support its

arguments. We agree that under Lester and Alaniz, a submission of instructions en masse

or in a complete proposed charge may be sufficient in a given case to alert the trial court

to a potential problem in the charge ultimately given.23 However, in the cases relied on by

Wackenhut, there was no indication that the appellant submitted multiple, inconsistent

theories to the trial court without arguing them in the alternative or clearly specifying to the

trial court which of the theories it believed was correct. See id. (holding that the trial court

was sufficiently made aware of the complaint); see also Samedan Oil Corp., 78 S.W.3d at

453 (holding that error was preserved on a specific theory of damages without indicating

that a contrary or inconsistent theory had been proposed by appellants); McDill, 914

S.W.2d at 724 (holding that eleven requests were not too many to conclude that trial court

was not alerted to complaint because of en masse submission). Given the apparent initial

agreement that a general negligence question was proper, Wackenhut’s vacillating and

inconsistent definitions of the standards of care, and its repeated emphasis of the incorrect

intentional or gross negligence standard, we cannot conclude that Wackenhut sufficiently

alerted the trial court to the complaints that it now makes on appeal. See Payne, 838



        23
           Cf. Hoffman-La Roche, Inc. v. Zeltwanger, 69 S.W .3d 634, 652-53 (Tex. App.–Corpus Christi 2002)
(holding that m erely subm itting a question to the court as part of an en m asse request is not sufficient unless
the record also showed that the question was otherwise called to the trial court’s attention), rev’d on other
grounds, 144 S.W .3d 438 (Tex. 2004); Nat’l Fire Ins. Co. of Pittsburgh, Pa. v. Valero Energy Corp., 777
S.W .2d 501, 508 (Tex. App.— Corpus Christi 1989, writ denied) (“The court should not be required to pick
through appellant’s own tendered issues to construct an instruction to conform to an issue actually subm itted;
this is the responsibility of the party com plaining that a necessary instruction is m issing from the court’s
charge.”).

                                                       33
S.W.2d at 241; see also Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex. 1986).

        With respect to Questions 2 and 3, Wackenhut never objected that these questions

did not include the Browning standard. Wackenhut’s written request indicated that the

Government Code instruction was intended to accompany Question 1, and Wackenhut

never asked that the instruction be included at the beginning of the charge with the

generally applicable instructions. Additionally, Wackenhut never argued that Questions

2 or 3 relied on standards that had never been applied in the circumstances of this case,

as it now argues on appeal. Thus, with respect to all the liability questions, Wackenhut’s

arguments on appeal do not comport with the issue it raised in the trial court. See Isaacs,

249 S.W.3d at 113 n. 13; Coke, 802 S.W.2d at 275. Accordingly, Wackenhut’s arguments

with respect to the liability questions are not preserved for our review, and we overrule its

sixth issue.24

                     III. CHARGE ERRORS IN THE APPORTIONMENT QUESTION

        In its eighth issue, Wackenhut argues that at least one of the liability questions was

improper because the questions submitted incorrect theories of liability or were not

supported by the evidence. It argues that even if one of the questions was properly

submitted, the judgment cannot be affirmed based on the jury’s answer to a proper

question because the apportionment of liability question was conditioned on an affirmative

finding in any one of the liability questions.25 Thus, it argues that we must reverse because


        24
           Because we have held that W ackenhut waived its argum ents with respect to the liability questions,
we need not address the fam ily’s argum ent that no error is shown because the general negligence instructions
correctly set out the applicable law. T EX . R. A PP . P. 47.1.

        25
          Specifically, for exam ple, W ackenhut argues that assum ing that Question 1 was properly subm itted
but Questions 2 or 3 were not, it was harm ed because Question 4 (the apportionm ent question) was
conditioned on an affirm ative answer to the liability Questions 1, 2, or 3.

                                                     34
the jury’s answers to the apportionment question could have been influenced by an

improper theory.26 See Romero v. KPH Consol., Inc., 166 S.W.3d 212 (Tex. 2005).

        We have already determined that Wackenhut waived its challenges to the form of

the liability questions. Wackenhut did, however, assert no-evidence objections to all three

liability questions.27 Assuming that at least one liability question was not supported by the

evidence, Wackenhut must show that the error in the apportionment question was

preserved and that it was harmed by the submission. Texas Rule of Appellate Procedure

44.1(a) provides that a properly preserved error in the trial court merits reversal of the

judgment on appeal if it “(1) probably caused the rendition of an improper judgment; or (2)

probably prevented the appellant from properly presenting the case to the court of

appeals.” TEX . R. APP. P. 44.1(a). We disagree that Wackenhut’s argument has been

preserved or that it has shown harm.

        On the last day of the charge conference, the following exchange occurred:

        [The family]:             Question No. 4 is the comparative question.
                                  [Wackenhut’s counsel] and I have agreed to move it
                                  from Question No. 7 and move it up to Question No. 4.


        26
             In its seventh issue, W ackenhut argues that the liability questions are not supported by legally or
factually sufficient evidence. Ordinarily, we would first assess the legal sufficiency challenge to the liability
questions, as this is a rendition issue instead of a rem and issue. However, in the interest of brevity, and
because we agree with the fam ily that W ackenhut waived its eighth issue, we will address issue eight first.
Because issue eight has been waived, if any one of the liability theories is supported by legally and factually
sufficient evidence, the judgm ent m ay be affirm ed on that theory. See Harris County v. Smith, 96 S.W .3d 230,
232 (Tex. 2002) (holding that where broad-form objection is not preserved, legal sufficiency challenge is
lim ited to the verdict as a whole) (discussing Thomas v. Oldham, 895 S.W .2d 352, 360 (Tex. 1995)).

        27
            W ackenhut further argues that the m alice and gross negligence question (Question 12) was
conditioned on an affirm ative finding in Questions 1, 2, or 3, and the exem plary dam age questions (Questions
13 and 14) were conditioned on an affirm ative answer to the m alice and gross negligence question.
W ackenhut does not challenge the form of the gross negligence and m alice or exem plary dam ages questions.
Although W ackenhut’s statem ent of issues asserts, as its ninth issue, that the m alice and gross negligence
findings were not supported by legally and factually sufficient evidence, W ackenhut did not brief this issue.
See T EX . R. A PP . P. 38.1(i). Accordingly, we do not address W ackenhut’s ninth issue.

                                                      35
        The Court:               If you have agreed upon it, that’s fine.

        [Wackenhut]:             Okay.

        [The family]:            We’ve agreed to hook it on question—to an affirmative
                                 answer to Question 1, 2, or 3, because those are
                                 negligence questions and so we are comparing
                                 negligence in this question.      This is where the
                                 comparative question is going to go.

        The Court:               Okay.

        [The family]:            We agree to that.

When the court stated it was approving the agreement if Wackenhut agreed, Wackenhut’s

counsel responded, “Okay.” Wackenhut never objected or asked for separate comparative

questions at the charge conference, and it never alerted the trial court that the

apportionment question commingled valid and invalid theories. See In re B.L.D., 113

S.W.3d 340, 349-50 (Tex. 2003) (“This Court has recently emphasized that complaints of

error in broad-form submission must be preserved by objection at trial.”); In re A.V., 113

S.W.3d 355, 363 (Tex. 2003) (“Because Puig did not make a specific and timely objection

to the broad-form charge, he did not preserve a claim of harmful charge error.”); Gerdes

v. Kennamer, 155 S.W.3d 523, 534 (Tex. App.–Corpus Christi 2004, pet. denied) (holding

that appellant waived objection to trial court’s failure to include proper conditioning

instruction by failing to either object or tender proper conditioning instruction).28

        Wackenhut does not dispute that it did not raise this specific issue with the trial

court. Rather, it argues that in Romero, the supreme court held that an objection to the

form of an apportionment question is not necessary if the appellant properly objects that


        28
         Likewise, W ackenhut never alerted the trial court that the m alice, gross negligence, or exem plary
dam ages questions were im properly conditioned on invalid theories.

                                                    36
one of the liability questions is not legally tenable. See Romero, 166 S.W.3d at 229. We

disagree with Wackenhut’s reading of Romero.

       In Romero, the trial court submitted a negligence claim and a malicious credentialing

claim. Id. at 219. The jury was then instructed that if it found liability under either theory,

it should answer a single apportionment of damages question. Id. The jury found both

negligence and malicious credentialing and then assigned percentages of responsibility.

Id. On appeal, the defendant argued that there was no evidence to support the malicious

credentialing claim, and the supreme court agreed. Id. at 224-25. Thus, the court then

considered whether the judgment could be sustained on the jury’s negligence finding—in

other words, whether the defendant was harmed by the submission of the malicious

credentialing claim. Id. at 225. The court held that it was possible that the jury considered

the improper malicious credentialing claim in apportioning responsibility. Id. It likened the

case to Crown Life Insurance Co. v. Casteel29 and Harris County v. Smith,30 holding that

the error prevented the defendant from demonstrating harm. Id. at 226.

       The plaintiffs in Romero argued that, despite the above analysis, the defendant did

not preserve its complaint in the trial court. Id. at 228. The supreme court reviewed the

record to determine whether the trial court was sufficiently aware of the issues being raised

on appeal. Id. The court noted that during the first day of the charge conference, the trial

judge pointed out the problem with submitting a single apportionment question and

suggested multiple apportionment questions. Id.                   Then, on the second day of the



       29
            Crown Life Ins. Co. v. Casteel, 22 S.W .3d 378, 388 (Tex. 2000).

       30
            See Smith, 96 S.W .3d at 234.

                                                     37
conference, the defendant specifically objected to the submission of a single

apportionment question and argued that it would prevent the defendant from showing

harm.    Id.   However, the defendant also argued that submitting two apportionment

questions would constitute a comment on the weight of the evidence, so it objected to

submitting two separate questions. Id. Thus, the plaintiff argued that the defendant did

not make it clear to the trial court that it wanted two apportionment questions, which would

have corrected the problem in the charge. Id. at 229.

        The supreme court held that the error was preserved. Id. The court reasoned:

        [T]he Romeros’ argument simply ignores the fact that Columbia’s objection
        to the malicious credentialing question was correct, and had the trial court
        sustained it, there would have been no problem with the apportionment
        question. The overruling of that objection created the problem in the single
        apportionment question that the Romeros requested, to which Columbia also
        objected, also correctly. No more was required of Columbia to preserve its
        complaints.

Id. (emphasis added). Wackenhut points to this language and asserts that an objection

that a question is not supported by evidence also preserves an objection to any question

that is later conditioned on the question, because “there would be no problem with the

apportionment question if the unsupported theory had not been submitted.” See id.

        However, in Romero, the court further noted that it did not need to decide whether

the defendant “was required to object not only to the lack of evidence for the malicious

credentialing claim but also to the form of the apportionment question that included the

claim because it did both.” Id. (emphasis added). Thus, the error was preserved. Id.

        Obviously, that is not what we have in this case. Although Wackenhut did object

that all the liability questions were not supported by the evidence, it never pointed out to



                                            38
the trial court that the conditioning instruction in Question 4 created a problem, and in fact,

it expressly agreed to the conditioning instruction in Question 4. The ultimate test is

whether the trial court was made sufficiently aware of the complaint,31 and Wackenhut

cannot meet that standard because there is nothing in the record that demonstrates the

trial court was ever made aware of the problem Wackenhut now raises. This is in stark

contrast to the facts in Romero, where the trial court itself raised the problem with the

apportionment instruction. See id. at 228. Accordingly, Wackenhut failed to preserve its

complaint and has failed to show harm. We overrule its eighth issue.

  IV. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE SUPPORTING NEGLIGENCE AND
                                PROXIMATE CAUSE

        By its seventh issue, Wackenhut argues that the evidence was legally and factually

insufficient to support the jury’s answers to the liability questions; specifically, Wackenhut

argues that the family did not meet its burden to prove both negligence and proximate

cause under the various theories of negligence presented to the jury. The family submitted




        31
             As the suprem e court explained,

        [i]m portant prudential considerations underscore our rules on preservation. Requiring parties
        to raise com plaints at trial conserves judicial resources by giving trial courts an opportunity
        to correct an error before an appeal proceeds. In addition, our preservation rules prom ote
        fairness am ong litigants. A party “should not be perm itted to waive, consent to, or neglect
        to com plain about an error at trial and then surprise his opponent on appeal by stating his
        com plaint for the first tim e.” Moreover, we further the goal of accuracy in judicial
        decision-m aking when lower courts have the opportunity to first consider and rule on error.
        Not only do the parties have the opportunity to develop and refine their argum ents, but we
        have the benefit of other judicial review to focus and further analyze the questions at issue.
        Accordingly, we follow our procedural rules, which bar review of this com plaint, unless a
        recognized exception exists.

In re B.L.D., 113 S.W .3d 340, 350 (Tex. 2003) (citations om itted). These considerations underscore the
court’s holding in Payne, where the court held that the ultim ate test is whether the trial court understood and
ruled on the com plaints. State Dep’t of Highways v. Payne, 838 S.W .2d 235, 241 (Tex. 1992). W e find these
considerations to be particularly relevant to this case.

                                                      39
multiple theories of negligence based on Wackenhut’s conduct.32 Because Wackenhut

failed to preserve its challenges to the form of the liability and apportionment questions,

we may sustain the judgment if any of the theories is supported by legally and factually

sufficient evidence. See Harris County v. Smith, 96 S.W.3d 230, 232 (Tex. 2002) (holding

that where broad-form objection is not preserved, legal sufficiency challenge is limited to

the verdict as a whole) (discussing Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995)).

        We hold that the evidence was legally and factually sufficient to support the jury’s

finding of negligence and proximate cause based on Wackenhut’s failure to search the

inmates at the crash gate, which allowed Equia and Sanchez to pass through the gate with

a weapon. This negligent failure proximately caused Gregorio’s death. Accordingly, we

need not address the other theories of liability. See TEX . R. APP. P. 47.1. We will now turn

to Wackenhut’s specific arguments.

A.      Standards of Review

        When conducting a legal sufficiency review, we view the evidence in the light most

favorable to the verdict to determine whether the evidence at trial would allow reasonable

and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005). We “must credit favorable evidence if reasonable jurors

could, and disregard contrary evidence unless reasonable jurors could not.” Id. We will



          32
             First, the fam ily asserted that W ackenhut should have called the am bulance sooner, and if it had,
Gregorio would have survived the attack. Second, the fam ily asserted that W ackenhut unreasonably delayed
in stopping the assault that caused Gregorio’s death. Third, the fam ily claim ed that W ackenhut negligently
failed to search the attackers at the crash gate, that a search would have uncovered the lock that was used
to kill Gregorio, and that a search would have prevented Gregorio’s death. Fourth, the fam ily claim ed that
W ackenhut’s sale of locks to inm ates was negligent and that had W ackenhut not sold locks to the inm ates,
Gregorio’s death would not have occurred. Finally, the fam ily asserted that W ackenhut was aware that Equia
was a dangerous inm ate who had previously been involved in a fight and negligently failed to control him .

                                                      40
sustain a challenge to the legal sufficiency of evidence only if: (1) there is a complete

absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes

conclusively the opposite of a vital fact. Id. at 810. More than a scintilla of evidence exists,

and the evidence is legally sufficient, if the evidence furnishes some reasonable basis for

differing conclusions by reasonable minds about a vital fact’s existence. Lee Lewis Constr.

Co. v. Harrison, 70 S.W.3d 778, 782-83 (Tex. 2001). However, “’when the evidence

offered to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no

evidence.’” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred

v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

       In conducting a factual sufficiency review, we do not substitute our judgment for that

of the jury; rather, we view all the evidence in a neutral light to determine whether the

evidence is so weak or the finding is so contrary to the great weight and preponderance

of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate

bias. City of Keller, 168 S.W.3d at 826; Golden Eagle Archery, Inc. v. Jackson, 116

S.W.3d 757, 761 (Tex. 2003); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986);

Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 749 (Tex. App.–Corpus Christi

2006, pet. denied).

B.     Negligence

       Wackenhut raises several arguments against the jury’s finding of negligence. First,



                                              41
Wackenhut argues that the family was required to present expert testimony to establish

negligence in a prison environment. Second, Wackenhut makes specific challenges to the

evidence presented, including that: (1) there is no evidence that the prison or its officials

knew that the attackers planned to assault Gregorio, Jr; (2) the crash gate post order did

not require searches of all inmates; and (3) even if the post order required a search of all

the inmates at the gate, the breach of that policy does not constitute negligence. We

disagree.

       1.     Expert Testimony

       Wackenhut first argues that the family was required to present expert testimony to

establish negligence.    Wackenhut argues that because this case involves a prison

environment that is outside the common understanding of lay jurors, expert testimony was

required to show that its conduct amounted to negligence in the prison environment. We

disagree, and furthermore, we hold that Wackenhut invited the error of which it now

complains.

       The determination of whether expert testimony is required is a question of law that

we review de novo. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004).

Expert testimony is only necessary when the alleged negligence is not within the

experience of laymen. Id.; see Melody Home Mfg. Co. v. Barnes, 741 S.W.3d 349, 355

(Tex. 1987). In other words, expert testimony is required when specialized knowledge is

necessary to the determination of the issue. Fulgham, 154 S.W.3d at 90. We disagree

that specialized knowledge was required to show Wackenhut had a duty to search the

inmates passing through the crash gate or that the failure to search the inmates violated



                                             42
this duty.33

        Wackenhut conceded that it had a duty to ensure the inmates’ safety at its facilities.

Furthermore, it was undisputed that Wackenhut had a duty to prevent inmates from

securing weapons and using them against other inmates. Those issues were never

contested at trial.34 The only issue at trial was how these duties were required to be

fulfilled—in other words, how far Wackenhut had to go to detect the possession of

weapons by inmates. Specialized knowledge was not required to show that a search

should be performed on some or all inmates at a given time. The jury was presented with

simple explanations of Wackenhut’s reason for not searching every inmate at the crash

gate, including preventing inmate congestion that could lead to assaults. The jury was fully

able to understand these arguments. We hold that expert testimony was not required to

establish a duty or its breach in this case.

        Furthermore, Wackenhut successfully excluded the family’s expert on negligence

by arguing that expert testimony was not required to establish that Wackenhut negligently

failed to search the inmates at the crash gate, and we will not allow Wackenhut to switch

its position now when it suits it. A party cannot complain on appeal that the trial court took

a specific action the complaining party requested. Tittizer, 171 S.W.3d at 862. “The

invited error doctrine applies to situations where a party requests the court to make a

specific ruling, then complains of that ruling on appeal.” In re Dep’t of Family & Protective


        33
           W e note that W ackenhut does not cite a single case to support its argum ent that expert testim ony
is required to prove a prison’s negligence because the prison environm ent is outside the com m on knowledge
of a lay person.

        34
           See, e.g., Medina v. Hart, 240 S.W .3d 16, 24 (Tex. App.–Corpus Christi 2007, pet. denied) (holding
that defendant doctor adm itted standard of care and only issue of fact for jury was whether, as a factual
m atter, breach occurred).

                                                     43
Servs., 273 S.W.3d 637, 646 (Tex. 2009). “For a party to be estopped from asserting a

position in an appellate court based on actions it took in the trial court, the party must have

‘unequivocally taken a position in the trial court that is clearly adverse to its position on

appeal.’” Id. (quoting Tittizer, 171 S.W.3d at 862).

       The family offered the expert testimony of Juan Garza, a former sheriff, regarding

whether Wackenhut took reasonable steps to search the offenders and whether it

negligently failed to implement the crash gate post order. In response, Wackenhut argued

that “[t]he jury is perfectly able to interpret what our policy was and how it should have been

applied.” The trial court agreed, stating:

       To me, your expert needs to give information to the jury that they would not
       normally have. All of that information has been brought to them. They can
       make a common sense decision, you know, hey, you know, if they would
       have patted everybody like they should, like the statute says right there, that
       they would have caught it. You have argued that point very well, and I think
       you have already gotten that point across to the jury.

Having successfully convinced the trial court to exclude the family’s expert testimony by

arguing that expert testimony was not necessary to assist the jury, Wackenhut cannot now

complain that such expert testimony was necessary because the issue was beyond the

jury’s common experience. Id. Accordingly, we hold that the family was not required to

present expert testimony regarding whether Wackenhut’s failure to search the inmates at

the crash gate constituted negligence.

       2.     Actual Knowledge of Plan to Assault Gregorio

       Wackenhut next argues that the evidence is legally insufficient because, under

Browning, the family was required to prove that Wackenhut knew that Equia and Sanchez

planned to assault Gregorio. That is not what Browning says. In fact, Browning states that


                                              44
a prison operator can be liable for injuries inflicted on one prisoner by another if the prison

knew that such an injury will be inflicted or had “good reason to anticipate danger thereof.”

Browning, 152 S.W.2d at 519; see also Miller v. Jones, 534 F.2d 1178 (5th Cir. 1976).

Wackenhut is switching positions again—the instruction that Wackenhut submitted, which

it argues to this Court was erroneously refused, included language that would have allowed

the jury to find Wackenhut negligent not only if it had actual knowledge that Equia and

Sanchez planned to assault Gregorio, but also if it found that Wackenhut had “good reason

to anticipate” the danger that Equia and Sanchez would assault Gregorio. Accordingly, we

reject this argument.

       3.     Evidence Supporting the Verdict

       In Browning, an inmate named Graves was killed by other inmates in a jail who were

in possession of deadly weapons. 152 S.W.2d at 519. The jury found that the sheriff and

his deputies negligently caused Graves’s death. Id. On appeal, the sheriff and the

deputies argued that the trial court should have directed a verdict in their favor—a legal

sufficiency challenge—because there was no evidence that the sheriff and his deputies

knew or should have known that Graves would be injured if he was placed in the cell with

the other inmates. Id. The court held that the duty required of a jailer in this type of case

is to “exercise ordinary care to prevent those confined together from having in their

possession weapons with which they might inflict serious injuries upon another prisoner.”

Id. The court held that the evidence was legally sufficient to show a breach of that duty

because: (1) the inmates that killed Graves possessed deadly weapons; (2) the officer

knew the weapons had been found among those prisoners during prior searches of the



                                              45
compartment; (3) it was not unreasonable to assume that the prisoners would again make

and possess the weapons; and (4) the officer had not searched the compartment for a

week or ten days prior to Graves’s death. Id. The court held that “[i]f a jailer whose duty

it was to care for and protect his prisoners from harm, would have, in the exercise of

ordinary care, discovered the presence of these weapons and removed them, and thus

prevent the tragedy that resulted in Graves’ death, he, with his principal, the sheriff, would

be responsible in damages for having failed.” Id. We hold that equivalent evidence existed

in this case, and that such evidence was legally and factually sufficient to support the

judgment.

              a.     Spoliation Instruction

       Initially, as proof that Wackenhut was aware or had good reason to anticipate that

Equia and Sanchez would assault Gregorio, the family points to the spoliation instruction,

which it argues allows an inference that the destroyed videotape would have shown (1) that

Equia and Sanchez had bulges in their clothes or had the weapons in plain view, (2) that

Equia and Sanchez acted nervously, or (3) other indicia of an imminent assault. In

response, Wackenhut argues that the spoliation instruction did not relieve the family’s

burden to prove its case. It further argues that the inferences the family asserts may not

be drawn from the missing videotape because there is no evidence or reason to believe

that the missing tapes would have shown any of the facts allegedly inferred. See State ex

rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002).

       Wackenhut argues that the trial court gave the least severe spoliation instruction

available, and it did not “relieve the nonspoliating party of the burden to prove each



                                             46
element of its case.” Trevino v. Ortega, 969 S.W.2d 950, 960-61 (Tex. 1998) (Baker, J.,

concurring). Wackenhut argues that the spoliation instruction, by itself, is not sufficient

proof of the fact inferred.

       Justice Baker, in his concurrence in Trevino, explained that there are two types of

spoliation instructions typically given by trial courts, each with different effects. Id. First,

he referred to the most severe type as a “rebuttable presumption”:

       The trial court should begin by instructing the jury that the spoliating party
       has either negligently or intentionally destroyed evidence and, therefore, the
       jury should presume that the destroyed evidence was unfavorable to the
       spoliating party on the particular fact or issue the destroyed evidence might
       have supported. Next, the court should instruct the jury that the spoliating
       party bears the burden to disprove the presumed fact or issue.

Id. at 960. This instruction shifts the burden of proof on the issue to the spoliating party,

and it “will enable the nonspoliating party to survive summary judgment, directed verdict,

judgment not withstanding the verdict, and factual and legal sufficiency review on appeal.”

Id. (emphasis added). Justice Baker recognized a second, less severe type of spoliation

instruction. Id. This instruction allows, but does not require, the jury to presume that the

evidence would have been unfavorable to the nonspoliating party. Id. This is the type of

instruction the trial court gave in this case.

       We agree that the instruction given in this case does not completely relieve the

nonspoliating party of its burden of proof. Id. However, Wackenhut essentially invites us

to conclude that because the family retained the burden of proof, the spoliation instruction

has no effect whatsoever in our review of the record. This is contrary to well-established

law that the spoliation instruction at least allows an inference to support the facts that the

missing evidence would have established. See Wal-Mart Stores, Inc. v. Johnson, 106


                                                 47
S.W.3d 718, 724 (Tex. 2003) (“Because the instruction itself is given to compensate for the

absence of evidence that a party had a duty to preserve, its very purpose is to ‘nudge’ or

‘tilt’ the jury.”); Trevino, 969 S.W.2d at 952 (“In other words, within the context of the

original lawsuit, the factfinder deduces guilt from the destruction of presumably

incriminating evidence.”) (emphasis added); id. at 960-61 (Baker, J., concurring) (“The

presumption itself has probative value and may be sufficient to support the nonspoliating

party’s assertions.”). We decline Wackenhut’s invitation.

       Allowing a spoliation instruction to hold probative value and constitute evidence is

intended to place the nonspoliating party in the same position as if it had the missing

evidence. Johnson, 106 S.W.3d at 724. If a spoliation instruction had no evidentiary

effect, then its purpose would not be fulfilled by the instruction. See id. We hold that the

less severe spoliation instruction allows a nonspoliating party to withstand a legal

sufficiency challenge to the elements that the spoliated evidence would have proved,

because the instruction itself allows an inference of the facts the evidence would have

proved. Id.

       We do not believe that this holding is inconsistent with Justice Baker’s statement

that the instruction does not relieve the plaintiff of its burden of proof. Trevino, 969 S.W.2d

at 960-61 (Baker, J., concurring). A plaintiff’s burden is to present both legally and factually

sufficient evidence. As Justice Baker explained, a spoliation instruction of this type “is

simply another factor used by the factfinder in weighing the evidence.” Id. at 961. Thus,

while the spoliation instruction given in this case will allow the family to survive a legal

sufficiency challenge, it will not, by itself, prevent a successful factual sufficiency challenge,



                                               48
which is intended to prevent a party from recovering when the evidence supporting a

finding is so weak or the evidence contrary to the finding is so overwhelming such that the

verdict is manifestly unjust, shocks the conscience, or clearly demonstrates bias. See City

of Keller, 168 S.W.3d at 826; Jackson, 116 S.W.3d at 761; Pool, 715 S.W.2d at 635. In

a factual sufficiency challenge, the spoliation presumption is merely one factor that we

must consider in reviewing the evidence for factual sufficiency. Trevino, 969 S.W.2d at 61

(Baker, J., concurring).

       As stated above, the family argues that the spoliation instruction allowed an

inference that the destroyed videotape would have shown that Equia and Sanchez had

bulges in their clothes or had the weapons in plain view, that Equia and Sanchez acted

nervously, or other indicia of an imminent assault.        Wackenhut argues that these

inferences may not be drawn from the missing videotape because there is no evidence or

reason to believe that the missing tapes would have shown these things. See Gonzalez,

82 S.W.3d at 330. Again, we disagree.

       At trial, Warden Forrest denied that a videotape ever existed that showed the

beating.   However, that testimony was impeached by Warden Forrest’s deposition

testimony, where he unequivocally stated that there were surveillance cameras along the

prison’s perimeter that were focused down on the beating. In his deposition, he testified

to the beating’s details based on the video. Although he later claimed that the “video” he

was referring to was a picture that he painted in his head based on information relayed to

him, the jury was entitled to believe that the earlier deposition testimony was true and that




                                             49
a videotape existing showing the beating.35 Warden Forrest testified that the perimeter

cameras were mounted on poles to get a “bird’s eye view,” and these cameras could pan

and tilt to different angles. He admitted that these cameras are always on.

        We hold that this evidence was sufficient to support the inferences that the family

claims resulted from the missing evidence. The cameras were always on and could be

panned and tilted; thus, it was reasonable to infer that the camera was pointed at the crash

gate area where Equia and Sanchez passed through with a lock and then followed them

along the “bowling alley” to record the fight. It is also reasonable to infer that the videotape

would have shown conduct by Equia and Sanchez that either alerted or should have

alerted Wackenhut to the danger that Equia and Sanchez would assault Gregorio. We

hold that this evidence was legally sufficient to show that Wackenhut was aware that Equia

and Sanchez planned to assault Gregorio.

                   b.      Testimony at Trial

        Nevertheless, even without the spoliation instruction and the resulting inferences,

the evidence was legally and factually sufficient to support a finding that Wackenhut had

good reason to anticipate the danger that Equia and Sanchez posed to Gregorio, and that

Wackenhut was negligent in failing to take steps to prevent the injury.

        Warden Forrest admitted that it was Wackenhut’s duty to ensure the inmates’ safety

in the prison.36 On the day of the incident, Gregorio, Equia, and Sanchez left their housing



        35
             W ackenhut does not challenge the trial court’s adm ission of W arden Forrest’s testim ony for all
purposes.

        36
           See Browning v. Graves, 152 S.W .2d 515, 518 (Tex. Civ. App.–Fort W orth 1941, writ ref’d) (“[I]t
is conceded that it is the duty of the officer to use all reasonable efforts to protect his prisoner from harm while
in his custody . . . .”).

                                                        50
unit and passed through the crash gate into the “bowling alley.” The “bowling alley” was

a walkway approximately 100 yards long that was not guarded, except at the gates leading

to other areas, and there had been other assaults along the “bowling alley” in the past.

        It was undisputed that Equia and Sanchez used a deadly weapon—a lock tied to the

end of a sock—to kill Gregorio.37 Warden Forrest and Major Sangster admitted that locks

were available at the commissary, and prior to Gregorio’s beating, several other fights at

the prison had involved the use of locks. Both testified that it was foreseeable that locks

could be used as weapons in the future.38 Nevertheless, it was undisputed at trial that the

officer manning the crash gate post, Officer Hernandez, did not search Equia or Sanchez

for locks or other contraband.39

        Warden Forrest and Major Sangster admitted that a “post order” was in place at the

crash gate and that the crash gate officer should follow the order. The crash gate post

order stated, “The officer shall conduct pat-searches of inmates before permitting entrance

or exit to or from any department within the area of responsibility.” Warden Forrest testified

that the purpose for searching inmates was to discover contraband, including weapons, to

safeguard the inmates. Warden Forrest conceded that the post order was mandated by

the State of Texas and that Wackenhut was required to follow the policy. He admitted that

a breach of State-mandated policies and procedures will jeopardize the unit’s and the



        37
           Id. at 519 (“It is undeniably true that the prisoners in cell or tank No. 1 did possess weapons referred
to by the witnesses as blackjacks which could be used for the infliction of serious injuries.”).

        38
         Id. (“[I]t is not unreasonable to assum e that the prisoners would again m ake and possess [the
weapons] . . . .”).

        39
             Id. (“[The officer] had not searched the com partm ent for a week or ten days prior to Graves’
death.”).

                                                       51
inmates’ security and integrity, leading to inmate injuries.

        Officer Cortez testified that the crash gate post order meant that “you had to search

all, each and everybody, coming out of their housing before they got to crash gate . . . .”

He testified that the reason every inmate had to be searched was because “you don’t know

within that time frame whether somebody was going to pass contraband or whatever.”

Both he and Marroquin testified that had the inmates been searched, the lock would have

been discovered. Major Sangster admitted that if no search is conducted, the chances of

finding contraband and weapons is “zero.” He agreed that if the crash gate officer had

searched every inmate that passed through the day of the incident, the officer probably

would have detected the lock.40

        Warden Forrest also testified that Equia had been involved in a fight with another

inmate on January 3, 2001, before Gregorio’s assault. Although Warden Forrest denied

specific knowledge of this incident, Warden Forrest admitted that the information was in

the TDCJ database as early as February 8, 2001, and was available to him on the

computer well before Gregorio’s assault. Warden Forrest admitted that he could have

accessed Equia’s file and determined that Equia had been involved in another attack

against an inmate. See Garrett v. United States, 501 F. Supp. 337, 338-39 (N.D. Ga.

1980) (noting that an inmate’s file, which was transferred with the inmate to a new facility

and demonstrated his prior history of violence in prison against other inmates, was

sufficient to put the prison on notice of inmate’s dangerous propensities).


        40
           Id. (“If a jailer whose duty it was to care for and protect his prisoners from harm , would have, in the
exercise of ordinary care, discovered the presence of these weapons and rem oved them , and thus prevent
the tragedy that resulted in Graves’ death, he, with his principal, the sheriff, would be responsible in dam ages
for having failed.”).

                                                       52
       Officer Cortez testified that he believed that the attack was “a hit” on Gregorio and

that Wackenhut knew it was going to happen. Moreover, both Marroquin and Officer

Cortez testified that they saw Warden Forrest and Assistant Warden Bravo smirking or

laughing while Gregorio was being beaten to death. We hold that all this evidence, taken

together with the spoliation inferences, constitutes legally and factually sufficient evidence

that Wackenhut either had actual knowledge that Equia and Sanchez intended to assault

Gregorio or good reason to anticipate the danger thereof and then acted negligently by

failing to take steps to prevent the injury.

       4.     Breach of the Post Order

       Wackenhut argues that the post order did not apply, and even if it did require a

search of all the inmates at the gate, the breach of that policy does not prove negligence.

Warden Forrest insisted that the post order did not require Wackenhut to search every

inmate that passed through the crash gate—rather, it only required Wackenhut to randomly

search inmates. Warden Forrest claimed that the post order only applied to require

searches when an inmate is entering or exiting from a “department.” He claimed that the

housing unit, from which the inmates were exiting, and the “bowling alley,” which the

inmates were entering, are not “departments.” Thus, the policy did not apply. This

interpretation was reiterated by Gary Johnson, Wackenhut’s expert, who testified that it

was not reasonable to expect every offender going through the crash gate to be searched.

Moreover, Wackenhut argues that a mere breach of policy is not evidence of negligence,

citing Walden v. State, 430 So. 2d 1224, 1227 (La. Ct. App. 1983) and Entex Division of

Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 10 & n.19 (Tex. App.–Houston [14th Dist.]



                                               53
2002, pet. denied).41

        First, by expecting this Court to credit its evidence regarding its interpretation of the

post order, Wackenhut inverts the legal sufficiency standard of review. We must “credit

favorable evidence if reasonable jurors could, and disregard contrary evidence unless

reasonable jurors could not.” City of Keller, 168 S.W.3d at 827. Wackenhut, however,

asks this Court to ignore all the favorable evidence and to credit the evidence it has cherry-

picked from the record.

        All of Wackenhut’s witnesses conceded that the post order states that the officers

“shall” search the inmates, and that the policy does not say the officers may “randomly”

search the inmates. The jury could read the policy itself and figure out what it meant.

Additionally, Officer Cortez, a former corrections officer at Wackenhut, testified that the

post order required every inmate to be searched when passing through the crash gate.

Wackenhut does not explain or argue why the jury was not entitled to credit this evidence,

which supports the verdict. See id. At most, Wackenhut merely raises a conflict in the

evidence, and it is emphatically within “the province of the jury to resolve conflicts in the

evidence.” Id. at 820.

        Next, Wackenhut argues that even if the policy required it to search every inmate,

a breach of policy does not prove negligence. As a general proposition, we agree;

however, in this case, the crash gate post order embodied the applicable legal standard

of care because the order was “designed to prevent injury to the class of persons to which



        41
          W e note that, once again, W ackenhut has switched its tactics. During the charge conference,
W ackenhut requested that the court instruct the jury that the TDCJ policies constituted the applicable
standard of care. Now, it disputes that a breach of these policies can constitute evidence of negligence.

                                                   54
the injured party belongs.” See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex.

1985); Browning, 152 S.W.2d at 519. The cases cited by Wackenhut do not require a

different conclusion. See Walden, 430 So.2d at 1227 (holding prison policy of not allowing

two inmates out of their cells at the same time, which was violated and which allowed two

inmates the opportunity to fight, did not demonstrate that the prison knew or had reason

to know that harm would ensue and failed to exercise ordinary care to prevent the harm);

see also Gonzalez, 94 S.W.3d at 10 & n.19 (holding internal safety procedures did not

create a legal duty where none otherwise would exist). When considering both the

evidence presented and the spoliation inferences, the evidence supporting Wackenhut’s

position was not so overwhelming that it requires this Court to hold that the family’s

evidence was factually insufficient.

C.     Causation

       As with negligence, Wackenhut argues that expert testimony was required to prove

causation and that the family’s evidence was legally and factually insufficient.      We

disagree.

       1.     Expert Testimony

       Wackenhut argues that this case is similar to a medical negligence case, which

requires proof that the defendant’s negligence caused the plaintiff’s death within a

reasonable degree of medical probability. See, e.g., Park Place Hosp. v. Estate of Milo,

909 S.W.2d 508, 511 (Tex. 1995). Specifically, Wackenhut argues that the family had the

burden to present “probative evidence,” not “mere conjecture or guess,” that an act or

omission was a substantial factor in bringing about Gregorio’s death, which would not



                                           55
otherwise have occurred.      Exxon Corp. v. Quinn, 726 S.W.2d 17, 21 (Tex. 1987).

Wackenhut argues that no expert witness testified that Gregorio probably would have

survived had all of the inmates passing through the gate been searched.

       All of the cases that Wackenhut cites for the proposition that expert testimony is

required to prove causation are medical negligence cases. See, e.g., Milo, 909 S.W.2d

at 511; Phillips v. Bramlett, 258 S.W.3d 158, 165 (Tex. App.–Amarillo 2007), rev’d on other

grounds, No. 07-0522, 2009 WL 567889 (Tex. Mar. 6, 2009); Arguelles v. UT Family Med.

Ctr., 941 S.W.2d 255, 258 (Tex. App.–Corpus Christi 1996, no writ); McDole v. San Jacinto

Methodist Hosp., 886 S.W.2d 357, 360-61 (Tex. App.–Houston [14th Dist.] 1984, no writ).

However, the family’s theory that Wackenhut’s failure to search the inmates for weapons

caused Gregorio’s death is not a theory based on medical negligence, which is without a

doubt an entirely different sort of claim.

       Proximate cause consists of both foreseeability and cause in fact. Nixon, 690

S.W.2d at 549. “Cause in fact denotes that the negligent act or omission was a substantial

factor in bringing about the injury and without which no harm would have been incurred.”

Id.   In contrast, “[f]oreseeability means that a person of ordinary intelligence can

reasonably anticipate the dangers that his negligent act or omission created for others.”

City of Waco v. Hester, 805 S.W.2d 807, 814 (Tex. App.–Waco 1990, writ denied).

       We agree with the family that common sense and ordinary experience is all that is

required to evaluate cause in fact under these circumstances. See id. It does not take

specialized knowledge to determine whether negligently failing to search inmates for

weapons is a substantial factor in bringing about an injury to an inmate when a weapon



                                             56
goes undetected and then is used to injure another inmate. Nor does it take specialized

knowledge to evaluate whether harm would have occurred absent the failure to search the

inmates.

      With regard to foreseeability, the Waco Court of Appeals has held that “[b]ased on

common sense and experience, one can reasonably foresee that a jailer’s negligent act

may result in an inmate being physically attacked by another prisoner.” Id. We agree that

foreseeability under these circumstances is also within the jury’s common knowledge and

experience. Id. Accordingly, we hold that expert testimony was not required to establish

causation.

      2.     Evidence Supporting the Verdict

      Next, Wackenhut argues that the evidence is legally and factually insufficient to

prove proximate cause because there is no evidence that Gregorio probably would have

survived had it searched all of the inmates passing through the crash gate. Wackenhut

asserts that no witness testified that searching all the inmates would have prevented the

death because the lock could have been missed in a search or it could have been

previously hidden in the “bowling alley.” Wackenhut presents several theories, arguing that

(1) inmates were allowed to have locks; (2) had the lock been discovered, Equia or

Sanchez may have claimed that he just purchased it or was returning it to the commissary;

(3) the lock did not actually cause much damage; (4) even without the lock, Equia and

Sanchez could have attacked and killed Gregorio; and (5) it is more likely that the fatal

blow to the spleen area was caused by a kick rather than a blow with the lock.

      Again, Wackenhut asks this Court to ignore all the favorable evidence and to credit

the evidence it has cherry-picked from the record. At most, Wackenhut merely raises a

                                            57
conflict in the evidence, which the jury was entitled to and did resolve in the family’s favor.

City of Keller, 168 S.W.3d at 820.

       In any event, Wackenhut’s arguments are not supported by the record. With regard

to cause in fact, Robert Sims, M.D., opined within a reasonable degree of medical

probability that Gregorio’s death was caused by the injuries he received during the assault.

He testified that Gregorio died not as a result of any one particular blow, but as a result of

numerous blows by the assailants. Furthermore, the spoliated evidence included a missing

videotape that could have shown the entire fight. Thus, it permits an inference that the

death-causing blow came from the lock instead of a kick by Equia or Sanchez.

       Officer Cortez testified that the post order required every inmate leaving the housing

units to be searched for contraband and weapons. Both Officer Cortez and Marroquin

testified that had a proper search been conducted, the searching officer would have

discovered the lock. Officer Hernandez agreed that if he had searched Equia and

Sanchez, he would have discovered the lock. Furthermore, Officer Cortez testified that

had the lock been discovered, neither Equia nor Sanchez would have been permitted to

pass through the gate. Officer Cortez and Officer Hernandez both stated that had the

inmates been searched, Gregorio would be alive. We hold that this evidence was legally

sufficient to support a finding of cause in fact because it creates a reasonable basis for the

jury to conclude that, had Wackenhut searched all the inmates passing through the crash

gate, this crime would not have taken place, and Gregorio would be alive. See Harrison,

70 S.W.3d at 782-83. Wackenhut has ignored this evidence in the record, and it has not

provided this Court with any valid reason requiring the Court to disregard this evidence.

The contrary evidence—that a search might not have turned up the lock and that the

                                              58
inmates could have beaten Gregorio anyway even without the lock—is not so

overwhelming as to render the evidence supporting the judgment factually insufficient.

       We also hold that the evidence was legally and factually sufficient to support a

finding of foreseeability. Wackenhut could certainly anticipate that failing to search inmates

could result in inmates possessing weapons and using them on other inmates. Warden

Forrest and Sangster both testified that they were aware that socks combined with a lock

could be used as a weapon and had been used as weapons at Wackenhut in the past.

See Nixon, 690 S.W.2d at 550 (“The evidence is replete with instances of prior violent

crimes occurring at Chalmette Apartments. This record certainly provides evidence that

further acts of violence were reasonably foreseeable.”). In fact, Warden Forrest and

Sangster both agreed that it was foreseeable that locks could be used again in the future.

See id. Warden Forrest admitted that the purpose of searching inmates was to uncover

contraband and weapons. Both testified that fights had occurred in the “bowling alley,”

where no guard is posted to protect the inmates, and Wackenhut had information that

Equia had previously been involved in a fight with another inmate. This evidence was

legally and factually sufficient to support the foreseeability element.         We overrule

Wackenhut’s seventh issue.

         V. RECOVERY OF DAMAGES BY WRONGFUL DEATH BENEFICIARY’S ESTATE

       By its first issue, Wackenhut argues that the trial court erroneously awarded $5

million to Catalina Sr. as the administrator of Gregorio, Sr.’s estate. Gregorio, Sr. brought

suit as a wrongful death beneficiary and sought damages for past mental anguish and loss

of companionship arising from his son’s death. See TEX . CIV. PRAC . & REM . CODE ANN . §§



                                             59
71.001-.012 (Vernon 2008) (the “Wrongful Death Act”). Before trial, however, Gregorio,

Sr. passed away. Wackenhut argues that a wrongful death claim does not survive a

beneficiary’s death; thus, Gregorio, Sr.’s estate lacked standing to recover damages as a

wrongful death beneficiary.

       In response, the family argues that Wackenhut waived its right to challenge the

estate’s ability to recover. First, the family argues that the estate’s ability to recover is an

issue of capacity, not standing, and Wackenhut waived a capacity challenge by failing to

file a verified denial. See TEX . R. CIV. P. 93(1); Pledger v. Schoellkopf, 762 S.W.2d 145,

146 (Tex. 1988) (holding failure to file verified denial when required by rule waives

defense). Second, the family argues that Wackenhut agreed to submit Gregorio, Sr.’s

damages to the jury and should not be heard to complain now. Finally, the family argues

that Wackenhut’s destruction of evidence resulted in lengthy delays in bringing the case

to trial, and had Wackenhut complied with its duties to preserve and disclose evidence,

Gregorio, Sr. would have likely been alive at the time of trial and able to recover for his

injuries. The family reasons that Wackenhut should not be rewarded for the delay by a

reduction in the damage award.

       We agree with Wackenhut that a wrongful death claim does not survive a

beneficiary’s death; thus, Gregorio, Sr.’s estate lacked standing. We further hold that

because this argument affects the trial court’s subject-matter jurisdiction, it is properly

before this Court.

       A party must have both standing to sue and capacity to sue. Austin Nursing Ctr.,

Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). The standing inquiry “focuses on

whether a party has a sufficient relationship with the lawsuit so as to have a ‘justiciable

                                              60
interest’ in its outcome, whereas the issue of capacity ‘is conceived of as a procedural

issue dealing with the personal qualifications of a party to litigate.’” Id. (quoting 6A CHARLES

ALAN W RIGHT , ARTHUR R. MILLER , & MARY KAY KANE , W RIGHT , MILLER & KANE, FEDERAL

PRACTICE AND PROCEDURE: CIVIL 2D § 1559, at 441 (2d ed.1990)). “A plaintiff has standing

when it is personally aggrieved, regardless of whether it is acting with legal authority; a

party has capacity when it has the legal authority to act, regardless of whether it has a

justiciable interest in the controversy.” Id. at 848-49 (citing Nootsie, Ltd. v. Williamson

County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996)). The distinction is of primary

importance in this case because standing affects the trial court’s subject-matter jurisdiction

and may be raised for the first time on appeal, while capacity must be raised by a verified

denial in the trial court. Id. at 849.

       The Texas Supreme Court has held that an estate’s standing to pursue a

decedent’s claim depends on whether the claim survives the death. Id. at 850 (“Because

a decedent’s survival claim becomes part of her estate at death, it follows that the estate

retains a justiciable interest in the survival action.”); see also Belt v. Oppenheimer, Blend,

Harrison & Tate, Inc., 192 S.W.3d 780, 786 (Tex. 2006) (“Because legal malpractice claims

survive in favor of the decedent’s estate, the estate has a justiciable interest in the

controversy sufficient to confer standing.”). Thus, we must determine whether Gregorio,

Sr.’s wrongful death claim survived his death in order to determine whether his estate has

standing. See Belt, 192 S.W.3d at 786.

       There is no common-law right to recover for the death of another. See Coffey v.

Johnson, 142 S.W.3d 414, 417 (Tex. App.–Eastland 2004, no pet.). The Wrongful Death



                                              61
Act provides a statutory cause of action for wrongful death. See TEX . CIV. PRAC . & REM .

CODE ANN . § 71.004; Coffey, 142 S.W.3d at 417; see also Carter v. Van Meter, 495 S.W.2d

583, 585 (Tex. Civ. App.–Dallas 1973, writ dism’d). Section 71.004 expressly states that

a cause of action for wrongful death is for the “exclusive” benefit of the decedent’s

surviving spouse, children, and parents. TEX . CIV. PRAC . & REM . CODE ANN . § 71.004. This

language indicates that the Texas Legislature intended a cause of action for wrongful

death to be personal to the beneficiary. Carter, 495 S.W.2d at 586. For this reason,

several courts have held that a claim for wrongful death does not survive the beneficiary’s

death. See Coffey, 142 S.W.3d at 417; Johnson v. City of Houston, 813 S.W.2d 227,

229-30 (Tex. App.–Houston [14th Dist.] 1991, writ denied); Carter, 495 S.W.2d at 586-87;

Huntington v. Walker’s Austex Chili Co., 285 S.W.2d 255, 258 (Tex. Civ. App.–Waco 1955,

writ ref’d). Furthermore, the Wrongful Death Act provides that the damages awarded by

the jury must be divided “among the individuals who are entitled to recover and who are

alive at that time.” TEX . CIV. PRAC . & REM . CODE ANN . § 71.010(b); see Carter, 495 S.W.2d

at 585. Thus, the legislature expressly contemplated that a beneficiary’s right to recover

would terminate upon the beneficiary’s death. See Carter, 495 S.W.2d at 585.

       Nevertheless, the family argues that Gregorio, Sr. suffered mental anguish, and this

claim was preserved by the Texas Survival Statute. See TEX . CIV. PRAC . & REM . CODE ANN .

§ 71.021 (Vernon 2008). We disagree. In Huntington v. Walker’s Austex Chili Co., an

infant and his parents were in an automobile accident, and the parents predeceased the

infant by ten minutes. See 285 S.W.2d at 256. The infant’s estate brought a wrongful

death action, arguing that the infant’s wrongful death claim for his parents’ death survived



                                             62
his own death and passed to his estate. Id. The estate relied on the survival statute. Id.

at 258. The court of appeals disagreed. Id.

        The court interpreted the Texas Revised Civil Statutes article 5525.42 It looked at

the survival statute’s language and distinguished between an estate’s claim for damages

the deceased suffered prior to his death and a wrongful death beneficiary’s claim for

damages:

                The cause of action that survives is for damages for injuries received
        by the injured party . . . , which, if he lives, may be recovered by him, but, if
        he dies from the injuries, then his heirs and legal representatives have the
        right to recover the same damages that the injured party, had he lived, could
        have recovered. That is, his right to recover damages because of the
        injuries which he has suffered up to the time of his death, survives to his
        heirs and legal representatives.

               The cause of action which Terry Wayne Huntington had by virtue of
        his parents’ death and which is involved herein, was a new cause of action
        created by the Death Statute, and was for damages suffered by
        himself—loss of nurture, support and education—by virtue of his parents’
        death. This new cause of action was for damages not recoverable at
        common law, but recoverable only by virtue of the Death Statute and for the
        sole and exclusive benefit of himself.

Id. at 258. The court held that the survival statute only provides for survival of the

deceased’s cause of action for the deceased’s personal injuries and death, not for the

survival of a wrongful death beneficiary’s cause of action. Id. The Texas Supreme Court

refused the application for writ of error in this case, making the case’s authority as binding


        42
             At the tim e, the statute provided:

        All causes of action upon which suit . . . m ay hereafter be brought . . . for injuries resulting
        in death . . . shall not abate by reason of the death of the person against whom such cause
        of action shall have accrued, nor by reason of the death of such injured person, but, in the
        case of the death of either or both, all such causes of action shall survive to and in favor of
        the heirs and legal representatives and estate of such injured party . . . .

Huntington v. W alker’s Austex Chili Co., 285 S.W .2d 255, 257 (Tex. Civ. App.–W aco 1955, writ ref’d).

                                                      63
as an opinion from the supreme court itself. See Carter, 495 S.W.2d 586.

         In 1985, the legislature repealed Texas Revised Civil Statutes article 5525 and

codified the provision as section 71.021 of the Texas Civil Practice and Remedies Code.

See Act of May 17, 1985, 69th Leg., R.S., ch. 959, §§ 1, 9, 1985 TEX . GEN . LAW S 3242,

3242, 3297, 3322 (codified at TEX . CIV. PRAC . & REM . CODE ANN . § 71.021). The current

statute has not changed in any significant respect.43 In fact, when article 5525 was

repealed and imported into the newly created Texas Civil Practice and Remedies Code,

the legislature expressly stated that “no substantive change in the law is intended by this

Act.” See id. § 10, 1985 Tex. Gen. Laws 3242, 3322. Thus, Huntington is still binding on

this Court, and we hold that a wrongful death beneficiary’s claim for the wrongful death of

another does not survive the beneficiary’s death. Carter, 495 S.W.2d 586; Huntington, 285

S.W.2d at 258.

         Because Gregorio, Sr.’s claim did not survive his death, it follows that his estate

lacked standing to pursue the claim. See Belt, 192 S.W.3d at 786. Wackenhut’s failure

to raise this issue in the trial court and its agreement to submit Gregorio, Sr.’s damage

claim to the jury did not waive its arguments, which affect the trial court’s subject-matter



         43
              It provides:

         (a)        A cause of action for personal injury to the health, reputation, or person of an injured person
                    does not abate because of the death of the injured person or because of the death of a
                    person liable for the injury.

         (b)        A personal injury action survives to and in favor of the heirs, legal representatives, and estate
                    of the injured person. The action survives against the liable person and the person’s legal
                    representatives.

         (c)        The suit m ay be instituted and prosecuted as if the liable person were alive.

T EX . C IV . P RAC . & R EM . C OD E A N N . § 71.021 (Vernon 2009).

                                                            64
jurisdiction. Lovato, 171 S.W.3d at 849. We also cannot ignore the defect in the trial

court’s subject-matter jurisdiction because of Wackenhut’s spoliation of evidence below.

“While we are sympathetic to the inequity caused by limiting the group of beneficiaries, and

are fully aware of the purpose of the statute, we cannot legislate or decline to follow the

prior decisions of the Texas Supreme Court.” Johnson, 813 S.W.2d at 230. Accordingly,

we sustain Wackenhut’s first issue and reverse the trial court’s award of $5 million to

Catalina, Sr. as administrator of the estate of Gregorio, Sr., and we render judgment

dismissing this claim for lack of subject-matter jurisdiction.

         VI. MENTAL ANGUISH AND LOSS OF COMPANIONSHIP AND SOCIETY DAMAGES

        By its tenth, eleventh, and twelfth issues, Wackenhut challenges the damage

awards to Gregorio’s children and his mother.44 First, Wackenhut argues that the children’s

future damages awards cannot be sustained because the jury failed to award them past

mental anguish and loss of companionship damages. Second, Wackenhut argues that the

evidence was legally and factually insufficient to support the damage awards to the family.

We disagree and hold that the evidence is legally and factually sufficient to support the

awards to the family.

A.      Future Damages in the Absence of Past Damages

        Wackenhut first argues that the children’s awards of future mental anguish and loss

of companionship and society damages cannot stand because the jury failed to award past

damages. Wackenhut argues that “[g]enerally, when a family member dies the grief or

mental anguish that a person experiences diminishes over time. If, as the jury found, the


       44
          W ackenhut also challenged the award to Gregorio, Sr.’s estate, but we need not address these
argum ents because we have already held that the estate did not have standing. See T EX . R. A PP . P. 47.1.

                                                    65
children had no compensable mental anguish or loss of companionship during the five

years after their father’s death, then there is no reasonable basis for the jury to find that the

children would suffer any such damages in the future.”

       For support, in its brief Wackenhut cited YMCA of San Antonio v. Adams, a decision

by the San Antonio Court of Appeals, which has since been reversed by the Texas

Supreme Court. See 220 S.W.3d 1 (Tex. App.–San Antonio 2006), rev’d, 265 S.W.3d 915

(Tex. 2008). In that case, the jury awarded future mental anguish damages, but not past

mental anguish damages, to a 9-year-old child who was sexually abused by a summer

camp counselor. 265 S.W.3d at 916. The court of appeals reversed the award because

there was no evidence of future mental anguish and because a presumption of future

mental anguish could not be applied given that the jury found no compensable damages

in the past. Id.

       The supreme court reversed, holding that the evidence was legally sufficient to

support an award of future damages. Id. at 917-18. The court noted that the testimony

indicated that children who are sexually abused do not always process the injury

immediately, and the issue will have to be dealt with at a time when the child is ready. Id.

at 917. Occasionally children suppress their distress for many years. Id. The court held

that the jury’s failure to award past mental anguish “does not mean that they found no

injury to [the child] in the past . . . .” Id. Rather, the “jury’s allocation of damages was

entirely consistent with the testimony presented that [the child] was coping well by

repressing his intense distress, which would inevitably surface in the future.” Id. at 917-18.

The court held that Texas law permits a jury to award future damages to an injured child



                                               66
even if the jury finds that at the time of trial, the child is coping with the injury by

suppressing his emotions. Id. at 918. Based on this holding, we reject Wackenhut’s

argument that future mental anguish and loss of companionship damages are prohibited

as a matter of law because the jury failed to award past damages, and we will proceed to

determine if legally and factually sufficient evidence supports the damage awards.45 We

overrule Wackenhut’s tenth issue.

B.      Legal and Factual Sufficiency of the Evidence Supporting the Children’s
        Awards

        Wackenhut argues that the awards of future mental anguish and loss of

companionship and society to Gregorio’s children are not supported by legally and factually

sufficient evidence. To recover damages for future mental anguish, a plaintiff must present

evidence demonstrating a reasonable probability that the plaintiff will suffer compensable

mental anguish in the future. Id. at 916. Typically, this requires a showing that in the

future, the plaintiff will suffer “‘a high degree of mental pain and distress’ that is ‘more than

mere worry, anxiety, vexation, embarrassment, or anger.’” Id. at 916-17 (quoting Parkway

Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995)). In the context of a wrongful death

case, mental anguish is concerned “not with the benefits [the beneficiaries] have lost, but

with the issue of compensating them for their harrowing experience resulting from the

death of a loved one.” Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex. 1986). A loss of



        45
            Although W ackenhut argues that generally a person will suffer m ore intense m ental anguish soon
after the death of a fam ily m em ber and the pain will ease over tim e, we disagree that this general principle
necessarily applies to all children who have lost a parent. Any parent knows that children process em otional
events differently than adults do— often tim es, in a m anner that is illogical and incom prehensible to their adult
caretakers. Thus, what m ay seem like com m on sense to an adult is not necessarily true when applied to a
child. W e think it is entirely reasonable that a sm all child, too young to understand the loss of the parent at
the tim e of death, would suffer m ore from that loss later in life when they are m ore able to understand the loss.

                                                        67
consortium claim, on the other hand, compensates for “a loss of positive benefits which

flowed to the family from the decedent’s having been a part of it.” Id.

       As the supreme court has explained, “wrongful death actions are predicated on the

proposition that a wrongful death necessarily destroys any pre-existing family relationship.

In most death cases, the emotional impact of the loss of a beloved person ‘is the most

significant damage suffered by surviving relatives.’” Id. at 685. Thus, in wrongful death

cases, proof of a familial relationship is some evidence that the surviving family members

suffered mental anguish as a result of the death. Id. Juries considering mental anguish

and loss of companionship and society damages are instructed to consider: “(1) the

relationship between husband and wife, or a parent and child; (2) the living arrangements

of the parties; (3) any absence of the deceased from the beneficiary for extended periods;

(4) the harmony of family relations; and (5) common interests and activities.” Id. at 688.

The jury was so instructed in this case.

       Wackenhut argues that there must be direct evidence of the nature, duration, or

severity of a plaintiff’s anguish, and the plaintiff must establish a substantial disruption in

his or her daily routine, or there must be other evidence of a high degree of mental pain

and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.

See Parkway, 901 S.W.2d at 444. We disagree that to survive a legal sufficiency

challenge, a plaintiff must make this strong of a showing in a wrongful death case, in which

the familial relationship supports an inference of mental anguish to support an award of

these damages. Id. at 445 (“As we have noted, historically, some types of disturbing or

shocking injuries have been found sufficient to support an inference that the injury was



                                              68
accompanied by mental anguish. As a general matter, though, qualifying events have

demonstrated a threat to one’s physical safety or reputation or involved the death of, or

serious injury to, a family member.”) (emphasis added); see Hawkins v. Walker, 238

S.W.3d 517, 526 (Tex. App.–Beaumont 2007, no pet); Whipple v. Deltscheff, 731 S.W.2d

700, 703 (Tex. App.–Houston [14th Dist.] 1987, writ ref’d n.r.e.).

       However, the lack of such evidence may require the reviewing court to find that the

evidence is factually insufficient to support the award’s amount, given that the award must

“fairly compensate” the victim for the loss. It appears that many courts have approved

large mental anguish awards if there is evidence of severe mental anguish, while smaller

awards have been affirmed when the evidence merely showed a close familial relationship.

See Hawkins, 238 S.W.3d at 526-32 (discussing cases involving large and small mental

anguish awards and the quantum of evidence necessary to sustain each). While there is

a presumption of some mental anguish from the death of a family member, that

presumption does not also require the court to find that the evidence is factually sufficient

to support an extremely large award. Id. at 531-32.

       The evidence in this case not only showed a close familial relationship between

Gregorio and his children, but it also showed severe mental anguish that was likely to

continue into the future. Catalina, Sr. testified that Gregorio was an honorable man who

was responsible for his children. Catalina, Sr. testified that Gregorio’s daughters “were

his life.” He wanted to do the right thing by his children. He tried to be a good provider.

       Catalina, Sr. testified that Gregorio knew he had made some mistakes, but he was

going to be a good father and was going to correct those mistakes. “He loved his

daughters very much[,] and he wanted them to move forward.” Catalina testified that

                                             69
Gregorio’s daughters will suffer in the future, for example, when they get married. Gregorio

will not be there to walk them down the aisle, and that will be painful for them. She testified

that Gregorio’s children miss him a lot.

       Cynthia, Gregorio’s widow, admitted that she and Gregorio had some marital

problems, but she explained that it never affected the way her children loved their father

or how Gregorio loved his daughters. She testified that he was a “stand-up guy,” and he

was very proud to have served in the National Guard. He never tried to avoid his

obligations.

       She and Gregorio lived together in Rio Bravo after their marriage. Gregorio was

very excited to have children. He told everyone about their first pregnancy. Catalina, Jr.,

nicknamed “Cat,” was born premature. Gregorio would go to work and then go straight

to the hospital to visit his tiny daughter. Zulema Salazar, Gregorio’s sister, testified that

Gregorio stayed by Cat’s side the entire time she was in the hospital. Cynthia stated that

Gregorio would caress her through the incubator, and he was the first one to hold her.

When Cat was a little older, Gregorio would always play with her in the living room and

would carry her around. He would take her outside when she was able to walk. He was

proud when he took her to her first day of school.

       When Gregorio found out Cynthia was pregnant again, he was very happy. They

named this child Cynthia, Jr., but nicknamed her “Lulu.” Cynthia testified that Lulu was a

“daddy’s girl.” Wherever Gregorio went, Lulu wanted to go. Their youngest daughter,

Priscilla, was a surprise. Gregorio was again very happy. Cynthia testified that Gregorio

named all three of the children. On the weekends, the family would go out to eat dinner,

and Gregorio would take the kids to Wal-Mart to buy new toys. On Sundays, the family

                                              70
would barbeque and have family gatherings.

       Cynthia and Gregorio separated three years after Priscilla was born, which was

approximately one year before his death. Nevertheless, there was no doubt in Cynthia’s

mind that Gregorio loved his children. After the separation, Cynthia moved away, first to

Harlingen and then to Corpus Christi. She took the children with her, stating that she

“needed a chance to be alone, to evaluate my life, my marriage . . . .” Gregorio then began

living with his parents.

       The children did not have contact with their father once Cynthia moved to Corpus

Christi. However, Cynthia also testified that she never told Gregorio where she had

moved. It was her decision not to keep in contact—it was not Gregorio’s fault that he could

not get in touch with his children.

       The children missed Gregorio very much while they were in Corpus Christi, and they

wanted to see him. Cynthia testified that for that reason, a few weeks before he passed

away, she tried to contact Gregorio so that she could take the children to visit him in prison.

Gregorio told her that he did not want the children to see him in jail, so he would visit with

them either at his mother’s house or he would travel to Corpus Christi to visit after his

release. Cynthia testified that she and Gregorio were going to try to reconcile.

       When she found out that Gregorio had passed away, she went to Cat’s school and

removed her from class. Cat was a junior high school student at the time. When Cynthia

told Cat what had happened, Cat cried. Cat then helped her mother explain to Lulu and

Priscilla what had happened. Cynthia took the children to the home of Gregorio’s parents

and attended the funeral.



                                              71
       Cynthia testified that the children were very sad and cried a lot. They did not

understand why their father was gone, and they wanted their father back. After the funeral,

the children struggled with their father’s death. Cynthia testified that it was still very hard

on them, and the children would cry when they remembered him.

       Regarding Cat, Cynthia testified that she was sad when she attended her senior

prom because Gregorio was not there. Cynthia testified that regardless of the marital

problems she had with Gregorio, she had no doubt that Gregorio would have been there

for all the important moments in their children’s lives. Cynthia testified that the pain that

she and her children will suffer will “last until we die.”

       Gregorio’s sister Zulema also testified that the little girls were traumatized. Cat

tattooed the name of her father on herself because “she doesn’t want to let go.” After

Gregorio’s death, Lulu did not want to play with her cousins. Zulema testified that Priscilla

was very young at the time of Gregorio’s death.

       Cat testified that she was eighteen years old at the time of trial. She remembered

her father and loved him very much. She testified that “[i]t hurts a lot because I just

graduated[,] and he wasn’t there for me. He was there my first day of school, but when I

walked across that stage to receive my diploma, he wasn’t there. . . . It made me feel very

sad.” She testified that she will miss him at important times during her life, such as when

she gets married and has a child. She stated that the pain will never go away. She knew

there were problems between her parents, but she stated that it never changed her

feelings for her father or the way he felt about her.

       Lulu testified to several memories she had of her father spending time with her. She

loved her father and was very attached to him. She will always miss him, and she does

                                               72
not think the pain will ever stop. She stated that she cried when she missed him. She

stated that she was confused when she went to his funeral. She did not understand why

her father had died. Priscilla was nine at the time of trial. She testified that she loved her

father, and he loved her. She will miss him and will always remember him.

       We hold that all the above evidence demonstrates both a close familial relationship

and severe mental anguish that will likely continue into the future.             Wackenhut

nevertheless makes several arguments against the awards. First, Wackenhut argues that

the parties’ living arrangements did not support the awards. It argues that because Cynthia

separated from Gregorio a year before his death, there is no basis for the jury to believe

that Gregorio would ever live with his children again. It also argues that presumably

Gregorio would have lived with his parents in Laredo after his release. Thus, Gregorio

would have to travel from Laredo to Corpus Christi to visit the children, which is a long

distance, and it is not likely he would ever visit them. Second, Wackenhut argues that

Gregorio was absent from the children for extended periods during the separation and that

there is no evidence that they had regular or frequent visits, and the children never visited

Gregorio in prison.

       We note, however, that Cynthia testified that she had no doubt that Gregorio would

be involved in the children’s lives after his release from prison. She also testified that she

and Gregorio intended to discuss reconciliation upon his release. Furthermore, even

though Cynthia prevented Gregorio from having contact with the children during the year

before his death, she also testified that it was her decision to keep their location hidden—it

was not because Gregorio did not love his children or want to see them. She stated that

because the children missed Gregorio so much, she contacted him a few weeks before his

                                             73
death to schedule a visit. Gregorio asked Cynthia to wait so that his children would not see

him incarcerated.46 Essentially, Wackenhut seeks to visit the mother’s sins upon the

children, who were minors and were unable to take any action on their own to visit their

father. We will not oblige. There is nothing in the record to support Wackenhut’s

argument, which we find is pure speculation.

        Next, Wackenhut argues that there is no evidence that Gregorio had any common

interests or activities with his children. We disagree. The testimony was clear that

Gregorio was a doting father and that his children enjoyed spending time with him. Again,

Wackenhut’s arguments are based on pure speculation.

        Finally, incredibly, Wackenhut argues that because the children were making good

grades in school, strong evidence exists that these children were not suffering severe

mental anguish or would not suffer severe mental anguish in the future. We disagree. We

commend the children for remaining studious and will not overturn an award of future

damages merely because the children remained responsible in their school work. Even

those who suffer severe mental anguish can remain responsible for their studies.

Wackenhut has not provided any evidence to the contrary. Accordingly, we hold that the

evidence is legally and factually sufficient to justify the awards to Gregorio’s children. We

overrule Wackenhut’s eleventh issue.

C.      Mental Anguish and Loss of Companionship to Gregorio’s Mother

        As we stated above, proof of a strong familial relationship is legally sufficient


        46
             Although W ackenhut argues that m ental anguish dam ages should be denied because the children
did not visit Gregorio in prison, we decline to so hold. The evidence shows that Gregorio refused the visit, not
because he did not want to see his children, but because he did not want his children to see him in the prison
environm ent— a position that we do not regard as avoidance of responsibility.

                                                      74
evidence to sustain an award of mental anguish damages in a wrongful death case, and

evidence of severe mental anguish will provide factually sufficient evidence to support a

large damage award. The evidence showed that Catalina, Sr. enjoyed a close familial

relationship with Gregorio and that she suffered severe mental anguish, establishing her

right to past and future mental anguish and loss of companionship and society.

       Catalina, Sr. testified that Gregorio was her second child and that he was an

obedient child and a good son. He always told her that he loved her. She testified that she

was very proud of Gregorio for serving in the National Guard. He wrote letters to his

parents and sent pictures while he was in the service. She testified that the family was

“very united.” They would always spend holidays together and were very happy together.

Cynthia also testified that the de la Rosa family was very close and that Gregorio loved his

mother and father. Whenever his mother wanted help with something, Gregorio was

always there for her.

       Zulema testified that the family was close-knit. They went to church every Sunday

and would barbeque with the family. She stated that Gregorio had “a lot of love and a lot

of respect” for their mother. She testified that they shared a loving bond.

       Catalina, Sr. testified that Gregorio named his first-born child after her. Cynthia

testified that it was Gregorio’s idea to name their first daughter after his mother—“He

wanted his daughter to carry her name.” Cynthia testified that when they were first allowed

to bring Cat home from the hospital, they went straight over to Gregorio’s parents’ house

so his parents could meet her.

       Catalina, Sr. stated that she was very happy when Gregorio had his first baby. She

testified that she and Gregorio’s father visited the family after their first daughter was born,

                                              75
and that when she arrived, Gregorio “ran and hugged us, and he told us that we have a

daughter.” Catalina, Sr. stated that she and her husband would visit Gregorio and his

children every opportunity they had.

       She testified that when people ask her about her son, she feels very sad. She said

that Wackenhut took away her dreams for her life. She feels emptiness from the loss. She

testified that she first heard about Gregorio’s injury at 4:00 a.m. on April 27, 2001. The

prison’s chaplain had called them by phone. He informed her that her son was injured and

that she needed to come immediately. She testified that they left immediately, and

Gregorio’s brother and Zulema accompanied them.

       Zulema testified that they first went to the prison, and the chaplain came outside and

told them to go to the hospital. She said that when they arrived at the hospital, they went

to the receptionist and asked to see Gregorio. They were made to wait, and Catalina, Sr.

was in a state of panic. The hospital chaplain finally told the family that Gregorio was

dead. She testified that all the family members began to cry.

       They were not able to see Gregorio in the hospital because his body had already

been moved to a funeral home. The first time they were able to see him after the injury

was when he was in the funeral home. Zulema said that at first, she was not sure that the

body she viewed was Gregorio because he was “beaten up beyond recognition.” Zulema

stated that Catalina, Sr. did not believe the person she viewed was Gregorio because she

could not recognize him. Zulema testified that her mother was incredulous at the funeral

home, and her mother cried during the entire funeral. Catalina, Sr. tried to get up to look

at the coffin, but her legs were trembling, and she had to sit back down.



                                             76
       Zulema stated that both her parents became very sick over their son’s death. They

were in a “very depressive state” and constantly crying. They did not want to eat. She

stated that Gregorio’s death “tore us apart.” Zulema opined that her mother is not as

strong as she used to be. During the days and weeks that followed Gregorio’s death, her

mother would hug a picture of Gregorio and cry. Zulema testified that even at the time of

trial, her mother would cry at night and say, “Where is my child? Where are you my son?”

Zulema testified that since Gregorio, Sr. passed away, her mother cries and says, “Come

for me, my son and my husband,” and “I feel that death steps are upon me . . . . I really

wish I could go with my loved ones”—essentially wishing for her own death.

       Catalina, Sr. said it was “terrible, terrible, terrible” to see him at the funeral home.

She said the pain will be with her for “the rest of [her] life . . . to see him the way they left

him.” She said the pain was terrible then, and it is still the same. The pain from losing her

son “took her husband,” as well. Her husband could not accept the pain, and he “couldn’t

survive.” She said that Gregorio’s death “has affected the whole family . . . . And for me,

it’s going to be a very strong pain, very strong. Nothing will revive it. Nothing will revive it.”

She said that she “can’t stand this pain.” She stated that there was “not an instant, not a

moment in my life that [Gregorio’s] presence is not with us.” She missed him very much.

       Wackenhut ignores most of this evidence. Rather, it argues first that the parties’

living arrangement did not support an award of mental anguish or loss of companionship

and society. It argues that at the time of his death, Gregorio was not living with his mother

but was in prison. Next, it argues that there is no evidence that Gregorio shared any

common interest and activities with his mother. It is true that Gregorio was in prison at the

time of his death; however, prior to his incarceration, Gregorio had moved in to his parents’

                                               77
home while he was separated from Cynthia. The testimony also established that the family

spent holidays and weekends together. Gregorio named his first daughter after his mother,

and the family had a strong bond. Wackenhut’s arguments are contrary to the evidence

at trial.

        Next, Wackenhut argues that in reviewing the award, we should compare the award

with those approved by other courts in comparable litigation. It points to awards ranging

from $150,000 to $15 million. See Sanchez ex rel. Estate of Galvan v. Brownsville Sports

Ctr., Inc., 51 S.W.3d 643 (Tex. App.–Corpus Christi 2001),vacated w.r.m. sub nom., Honda

Motor Co. V. Sanchez, No. 01-1040, 2003 Tex. LEXIS 8 (Tex. Feb. 6, 2003) ($15 million

to each parent for death of child); Page v. Fulton, 30 S.W.3d 455 (Tex. App.–Beaumont

2000, pet. denied) ($150,000 to parent). First, we note that Wackenhut points to a jury

award that is even larger than the one at issue here. See Sanchez, 51 S.W.3d at 653. We

find, however, that we are not conclusively bound by a previous jury award because the

facts of a given case may justify a higher award. Moreover, the evidence here is certainly

strong enough to justify the award of $10 million in this case.

        As detailed above, Catalina, Sr. was very close to her son and enjoyed a strong

relationship with him—so much so that he named his first-born child after her. The family

spent weekends together and family holidays, and Catalina, Sr. was particularly proud of

her son, a former National Guardsman. She suffered severe emotional distress due to the

brutal murder of her child in the custody of, and at the hands of, those who were charged

with his protection. The testimony showed that the wardens smirked and laughed while

Gregorio was beaten to death, and Gregorio was beaten so badly that Catalina, Sr. did not

recognize him when he was being identified at the funeral home. The testimony showed

                                            78
that Catalina, Sr. clung to Gregorio’s picture and cried every night, wishing that her own

death would come sooner so that she can join her son. Given the brutal manner in which

Gregorio died, the disgusting display of conduct by Wackenhut, the closeness between

Gregorio and his mother, and the severe emotional distress she exhibited, we cannot say

that the jury award in this case was excessive or that the evidence was legally or factually

insufficient. Wackenhut’s twelfth issue is overruled.

                       VII. ENTITLEMENT TO EXEMPLARY DAMAGES

       The jury did not award any actual damages to Gregorio’s estate. However, the jury

found that Gregorio’s injuries and death resulted from the malice or gross negligence of

Wackenhut and Warden Forrest, and it awarded Gregorio’s estate $20 million in exemplary

damages against Wackenhut and $500,000 in exemplary damages against Warden

Forrest. The jury did not award any of the other plaintiffs exemplary damages. After the

verdict, the trial court awarded Gregorio’s estate $7,511 for funeral and EMS expenses,

finding that the evidence conclusively established these damage elements. It awarded the

punitive damages found by the jury.

       In its second and third issues, Wackenhut challenges the trial court’s award of

funeral and EMS expenses and argues that the exemplary damages awards should be

reversed. Wackenhut first argues that the evidence did not conclusively establish the

damages for funeral or EMS expenses; therefore, the trial court erroneously awarded these

actual damages after the verdict. As a result, according to Wackenhut, there are no actual

damages to support an award of exemplary damages, and the damage awards to

Gregorio’s estate should be reversed. See TEX . CIV. PRAC . & REM . CODE ANN . § 41.004(a)

(Vernon 2008) (“Except as provided by Subsection (b), exemplary damages may be

                                            79
awarded only if damages other than nominal damages are awarded.”); see also, e.g.,

Doubleday & Co. v. Rogers, 674 S.W.2d 751, 753-54 (Tex. 1984).                   Additionally,

Wackenhut argues that the family affirmatively waived its right to recover for funeral and

EMS expenses by withdrawing its jury question that would have asked the jury to award

these damages. Furthermore, Wackenhut asserts that the trial court erred in awarding

funeral expenses because there was no pleading to support the award.

       In response, the family first argues that Wackenhut should not be heard to complain

about the lack of actual damages because Wackenhut destroyed videotapes of the beating

and of Gregorio’s injuries, resulting in the spoliation instruction. The family further argues

that the findings of funeral and EMS expenses should be deemed in support of the

judgment. Second, the family argues that sufficient evidence supports the trial court’s

award of funeral and EMS expenses. Third, the family contends that the “zero damage

rule” does not apply when a jury finds the defendants acted with malice. Fourth, the family

argues that the punitive damages should be allowed because all the family members

suffered a legal injury and should be treated as a single unit for purposes of the “zero

damage rule.”

A.     Spoliation

       First, we must address the family’s argument that because Wackenhut destroyed

evidence that would have supported Gregorio’s actual damages claim, Wackenhut cannot

be heard to complain about the lack of actual damages. We note that the family has not

cited any authority for this proposition, nor have we located any.

       A spoliation instruction, like the one given in this case, creates an inference that can



                                             80
support the nonspoliating party’s claims. See Trevino, 969 S.W.2d at 960-61 (Baker, J.,

concurring). However, when a jury is given the less-severe spoliation instruction and

nevertheless finds against the nonspoliating party, it is incumbent upon the nonspoliating

party to preserve its right to complain on appeal by raising a cross-point attacking the

negative finding or by filing a cross-appeal. See TEX . R. APP. P. 38.2(b)(1); TEX . R. APP. P.

25.1(c) (“A party who seeks to alter the trial court’s judgment or other appealable order

must file a notice of appeal. . . . The appellate court may not grant a party who does not

file a notice of appeal more favorable relief than did the trial court except for just cause.”);

Trevino, 969 S.W.2d at 961 (noting that the burden of proof remains on nonspoliating

party). The family has not brought a cross-appeal or raised a cross-point challenging the

jury’s award of zero actual damages to Gregorio. Thus, we are not at liberty to affirm the

punitive damage award by merely relying on the spoliation instruction as some evidence

of actual damages, specifically because in this case, Wackenhut has challenged the

evidence demonstrating that Gregorio’s estate incurred funeral and EMS expenses and

that the expenses were reasonable. The fact that Gregorio suffered injuries requiring

treatment has no bearing on whether the charges were reasonable. See Dallas Ry. &

Terminal Co. v. Gossett, 294 S.W.2d 377, 382 (Tex. 1956) (“While information regarding

the nature of the injuries might be of some assistance to the jury in certain cases in

determining the need for treatment, we fail to see its materiality on the question of whether

the amounts charged for the treatment are reasonable. And the fact that treatment is

necessary is not proof, or a circumstance tending to prove, the reasonableness of the

charges made therefor.”). With that in mind, we will turn to those awards.



                                              81
B.     Standard of Review

       After the verdict, although the family did not submit questions on funeral and EMS

expenses, the trial court awarded these damages, stating in the judgment that “[t]he

uncontroverted evidence showed Gregorio de la Rosa Jr. incurred $7,000 in funeral and

burial expenses and $551 in Emergency Medical Service expenses.” Wackenhut argues

that the trial court was not entitled to render judgment for these expenses in the absence

of evidence conclusively establishing the elements of the expenses. We agree. Texas

Rule of Civil Procedure 279 governs omissions from the charge. TEX . R. CIV. P. 279. It

provides:

       Upon appeal all independent grounds of recovery or of defense not
       conclusively established under the evidence and no element of which is
       submitted or requested are waived. When a ground of recovery or defense
       consists of more than one element, if one or more of such elements
       necessary to sustain such ground of recovery or defense, and necessarily
       referable thereto, are submitted to and found by the jury, and one or more
       of such elements are omitted from the charge, without request or objection,
       and there is factually sufficient evidence to support a finding thereon, the trial
       court, at the request of either party, may after notice and hearing and at any
       time before the judgment is rendered, make and file written findings on such
       omitted element or elements in support of the judgment. If no such written
       findings are made, such omitted element or elements shall be deemed found
       by the court in such manner as to support the judgment. . . .

Id. (emphasis added). Although the family argues that this rule requires this Court to deem

findings on funeral and EMS expenses in support of the judgment, the family does not

point us to any element of these damages, “necessarily referable thereto,” that was

“submitted to and found by the jury . . . without request or objection.” Id.

       The family cites to Ramos v. Frito-Lay, Inc. to support its argument that a deemed

finding is required. 784 S.W.2d 667, 668 (Tex. 1990). In Ramos, the trial court submitted,



                                              82
and the jury found, that Frito-Lay’s employee committed an intentional tort, and it awarded

exemplary damages. Id. However, the plaintiff did not submit a question asking whether

the employee was acting in a managerial capacity and in the course and scope of his

employment. Id. The supreme court held that managerial capacity and course and scope

constituted elements of the plaintiff’s cause of action for exemplary damages and did not

constitute an independent ground of recovery. Id. Thus, if evidence supported these

elements of punitive damages and Frito-Lay failed to object to the omission, these findings

could be deemed in support of the judgment. Id.

       That is not the case here. We hold that funeral expenses and EMS expenses are

separate grounds of recovery that are not necessarily referable to a cause of action for

punitive damages. See Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 655 (Tex.

App.–Houston [14th Dist.] 1987, writ denied) (refusing to deem finding of actual damages

in tort to support recovery of punitive damages). Moreover, Wackenhut adamantly

objected to the inclusion of funeral and EMS expenses in the charge because these claims

were not supported by the evidence, and the family withdrew its jury questions on these

damages. See id. (“Where, however, issues are omitted which constitute only a part of

a complete and independent ground and other issues necessarily referable to that ground

are submitted and answered, the omitted elements are deemed found in support of the

judgment if no objection is made and they are supported by some evidence.”). Thus, in

order to sustain the award of funeral and EMS expenses, we must find that the evidence

conclusively established the award. See id. (“If an entire theory were omitted from the




                                            83
charge it would be waived.”).47

        Conclusive evidence can take many forms. City of Keller, 168 S.W.3d at 814.

Evidence is conclusive of a fact if it is undisputed and permits only one logical inference.

Id. For example, undisputed physical evidence that cannot be denied is one type of such

evidence. Id. Additionally, undisputed evidence is conclusive if the opposing party admits

it is true. Id.

C.      Evidence of Funeral Expenses

        The trial court awarded Gregorio’s estate $7,000 in funeral expenses. Wackenhut

argues that the family did not conclusively establish that Gregorio’s estate ever paid or

incurred any funeral expenses. Wackenhut argues that the only evidence of funeral

expenses came from Gregorio’s sister, Zulema Salazar, who testified that she made the

funeral arrangements and the cost was $7,000. Finally, Wackenhut argues that there was

no evidence offered to show that $7,000 was a reasonable amount for funeral services.

        To recover funeral expenses, the plaintiff must prove that the amount charged was

reasonable. See Edwards Transfer Co. v. Brown, 764 S.W.2d 249, 250 (Tex. App.–Dallas

1987, no writ); Soliz v. Garcia, 702 S.W.2d 668, 671 (Tex. App.–Houston [14th Dist.] 1985,


        47
            W ackenhut cites Southwestern Bell Telephone Company v. Delanney, arguing that the failure to
secure a jury finding on these dam ages waived the fam ily’s right to recover them . 809 S.W .2d 493, 495 (Tex.
1991). It also cites W alsh v. Hershey for the sam e proposition. 472 S.W .2d 954, 958 (Tex. Civ. App.–Fort
W orth 1971, writ ref’d n.r.e.). W e disagree that the fam ily waived its right to recover these dam ages by
withdrawing its questions on these dam ages in response to W ackenhut’s objections at the charge conference.
If the evidence conclusively established these dam ages, there was no need for a question asking the jury to
resolve a fact issue. Sullivan v. Barnett, 471 S.W .2d 39, 44 (Tex. 1970); GuideOne Lloyds Ins. Co. v. First
Baptist Church of Bedford, 268 S.W .3d 822, 834 (Tex. App.–Fort W orth 2008, no pet.); Scott v. Sebree, 986
S.W .2d 364, 370 (Tex. App.–Austin 1999, pet. denied) (“Scott did not request the subm ission of jury questions
on these issues, however, so we are authorized to render judgm ent that he recover those am ounts only if the
record contains conclusive proof of their reasonableness and necessity.”). Neither Delanney nor W alsh
involved this situation. See Delaney, 809 S.W .2d at 495; W alsh, 472 S.W .2d at 958 (“The evidence in this
case does not establish as a m atter of law the reasonable cost of future m edical expense Lisa W alsh will in
reasonable probability incur after she is twenty-one.”).

                                                     84
no writ); Monsanto Co. v. Johnson, 675 S.W.2d 305, 312 (Tex. App.–Houston [1st Dist.]

1984, writ ref’d n.r.e.) (“It is generally the plaintiff’s burden to offer specific evidence of the

reasonableness and necessity of expenses . . . .”); Folsom Invs., Inc. v. Troutz, 632 S.W.2d

872, 876 (Tex. App.–Fort Worth 1982, writ ref’d n.r.e.); see also Landers v. B.F. Goodrich

Co., 369 S.W.2d 33, 35 (Tex. 1963) (noting that recovery of “reasonable” funeral expenses

is allowed in wrongful death actions); Martinez v. Angerstein, 517 S.W.2d 811, 816 (Tex.

App.–Corpus Christi 1974, writ dism’d w.o.j.) (noting that recovery of “reasonable” funeral

expenses is allowed in survival actions).

       In Troutz, the court of appeals reversed an award of funeral expenses because

there was no testimony regarding the reasonableness of the expense. Troutz, 632 S.W.2d

at 876. The same is true here—there was no testimony regarding whether $7,000 was a

reasonable charge for funeral services. Accordingly, the family did not conclusively

establish its right to recover these expenses, and the trial court erred by awarding funeral

expenses in the judgment. Id. We sustain Wackenhut’s second issue with respect to the

award of funeral expenses.

D.     EMS expenses

       With respect to the EMS expenses, Wackenhut argues that there is no evidence as

to the amount of the expenses, that Gregorio’s estate ever incurred or paid those

expenses, or that the expenses were reasonable. We disagree.

       To recover medical expenses, the plaintiff must prove (1) the amount of expense

incurred, and (2) that the expense was reasonable and necessary. TEX . CIV. PRAC . & REM .

CODE ANN . § 41.0105 (Vernon 2008) (“In addition to any other limitation under law,



                                                85
recovery of medical or health care expenses incurred is limited to the amount actually paid

or incurred by or on behalf of the claimant.”); see Monsanto Co., 675 S.W.2d at 312; see

also Reliance Steel & Aluminum Co. v. Sevcik, 268 S.W.3d 65, 69 (Tex. App.–Corpus

Christi 2006), rev’d on other grounds, 267 S.W.2d 867 (Tex. 2008). Medical expense

statements can be used to prove the amount of the expense actually incurred, but there

must be further testimony establishing that the expense was reasonable. Monsanto Co.,

675 S.W.2d at 312.

       First, Wackenhut argues that there is no evidence of the amount incurred by

Gregorio’s estate or that Gregorio’s estate ever paid the expenses. We disagree. Samuel

Garza testified by deposition that he was the ambulance driver for Willacy County EMS on

the day that Gregorio was injured. During Garza’s testimony, the family’s counsel referred

to deposition exhibit 5, and he asked if “[t]his is the billing for Willacy County?” Garza

replied that it was the bill. Garza then testified that the services provided were necessary

to treat Gregorio. Referring back to that bill, the family’s counsel then asked if “these”

charges were “reasonable charges based on your current knowledge.” Garza replied that

they were. Continuing with the questioning, the family’s counsel asked if $551.50 is a

“reasonable charge for the services . . . provided?” Garza again replied that it was. After

the deposition was played to the jury, the family’s counsel offered all the deposition exhibits

into evidence as plaintiff’s exhibit 43; however, deposition exhibit 5 was not included with

the documents that ultimately were admitted.

       A reasonable reading of this testimony established that the bill was for $551.50.

During Wackenhut’s cross-examination of Garza, Garza was never questioned whether

$551.50 was the amount charged by Willacy EMS or whether the bill was paid. Thus, this

                                              86
evidence was uncontradicted, and it conclusively established that Gregorio incurred these

charges. City of Keller, 168 S.W.3d at 814.

       Next, Wackenhut argues that the evidence did not conclusively establish that the

charges were reasonable and necessary. Wackenhut argues that the family relied on

Garza’s testimony, and Garza was unqualified to render such an opinion because he was

merely the ambulance driver. Wackenhut argues that the trial court erred in finding Garza

qualified. Wackenhut, however, ignores Garza’s testimony that he was currently employed

at Pro-Medic EMS in San Antonio, that his current job was in billing, and that he was

familiar with the standard charges, more or less, of a particular call. Wackenhut does not

explain why this testimony does not qualify Garza to testify about the reasonableness of

the billing. See Medina v. Hart, 240 S.W.3d 16, 22 (Tex. App.–Corpus Christi 2007, pet.

denied) (noting that the court could overrule issue by appellant who did not distinguish or

explain other evidence in record supporting judgment).

       Moreover, Foster Frank Edwards, a paramedic with the Willacy County EMS, also

testified by deposition that he administered emergency care to Gregorio. During the

deposition, the family’s counsel referred to a bill for EMS services. The following exchange

occurred:

       Q:     And basically, it goes through there, the lactated ringers, the oxygen,
              supplies, and everything else you gave. It says that the total charges
              here are $551.50. Is this a fair and reasonable amount for the
              charges that are—

       A:     Sir, I have nothing to do with the billing or the office. I didn’t even
              know how much they did charge, sir.

       Q:     That’s all right. But certainly, the—the services that were provided
              were necessary in order to treat him?


                                            87
      A:     Yes, sir.

      Q:     In your opinion?

      A:     Yes, sir.

      Q:     All right. And you don’t—you’ve never known the Willacy County
             EMS to be unreasonable in their charges, have you?

      A:     No, sir.

      Q:     All right. So the best you know, that these are reasonable charges for
             the—

      A:     Yes.

      Q:     —services provided, right?

      A:     Yes, sir.

      Q:     And they were necessary for the medical services that you provided—

      A:     Yes, sir.

      Wackenhut again ignores this testimony in the record, which constitutes evidence

that $551.50 was a reasonable charge for necessary services that were provided to

Gregorio. Because Wackenhut has not argued that Edwards’ testimony was improperly

admitted, it cannot show harm from the admission of Garza’s testimony. Gee v. Liberty

Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989) (holding error in admission or

exclusion of evidence is not reversible if the evidence is cumulative of other evidence in

the record). Accordingly, we overrule Wackenhut’s second issue as it applies to the award

of EMS expenses. Furthermore, having found that the award of EMS expenses was

proper, we overrule Wackenhut’s third issue challenging the award of exemplary damages

as not being supported by an award of actual damages.



                                           88
E.      Application of the “Zero Damages Rule” when Jury Finds Malice

        Nevertheless, even if the trial court erred in awarding damages for funeral and EMS

expenses, we hold that the malice finding precludes the application of the “zero damages

rule” in this case. Wackenhut argues that because the jury failed to award actual damages

and the trial court’s award of funeral expenses and EMS expenses was erroneous, there

is no award of actual damages to support the award of punitive damages. See TEX . CIV.

PRAC . & REM . CODE ANN . § 41.004(a) (Vernon 2008). In response, the family asserts that

the “zero damages” rule does not apply to its claim for wrongful death because the jury

found that Wackenhut acted with “malice,” which supplanted the requirement for actual

damages under the applicable, 1995 version of the statute.

        At common law, punitive damages were not permitted unless the plaintiff recovered

actual damages. See Doubleday & Co., 674 S.W.2d at 753-54. An award of merely

nominal damages was insufficient to sustain a recovery of punitive damages. Id. at 754.

In 1987, this rule was codified as Texas Civil Practice and Remedies Code section 41.004,

and that section was amended in 1995.48 See Act of June 3, 1987, 70th Leg., 1st C.S., ch.

2, § 2.12, 1987 TEX . GEN . LAW S 37, 44 (adding Chapter 41 of the civil practice and

remedies code); Act of Apr. 6, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 TEX . SESS. LAW

SERV. 108, 110 (Vernon). In 1995, it provided:

        (a)      Except as provided by Subsection (b), exemplary damages may be
                 awarded only if damages other than nominal damages are awarded.

        48
            W ackenhut relies on the current version of the Texas Civil Practice and Rem edies Code. The
fam ily, however, correctly points out that the 1995 version of section 41.004 applies to this case, which was
filed on August 29, 2001. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 13.05, 23.02(d), 2003 T EX .
S ESS . L AW S ER V . 847, 888, 898 (stating that the prior version applied to cases on file prior to the effective
date). Accordingly, all further references herein are to the 1995 version of the civil practice and rem edies
code.

                                                       89
       (b)    A claimant may recover exemplary damages, even if only nominal
              damages are awarded, if the claimant establishes by clear and
              convincing evidence that the harm with respect to which the claimant
              seeks recovery of exemplary damages results from malice as defined
              in Section 41.001(7)(A). Exemplary damages may not be awarded to
              a claimant who elects to have his recovery multiplied under another
              statute.

TEX . CIV. PRAC . & REM . CODE ANN . § 41.004. Subsection (b) modified the general rule that

nominal damages are insufficient to sustain an award of punitive damages, if certain

conditions are met. Id.

       The 1995 version of Chapter 41 defined “malice” as:

       (A)    a specific intent by the defendant to cause substantial injury to the
              claimant; or

       (B)    an act or omission:

              (i)    which when viewed objectively from the standpoint of the actor
                     at the time of its occurrence involves an extreme degree of
                     risk, considering the probability and magnitude of the potential
                     harm to others; and

              (ii)   of which the actor has actual, subjective awareness of the risk
                     involved, but nevertheless proceeds with conscious
                     indifference to the rights, safety, or welfare of others.

TEX . CIV. PRAC . & REM . CODE ANN . § 41.001(7). Question 12 of the jury charge asked

whether the jury found by clear and convincing evidence that Gregorio’s injuries and death

resulted from Wackenhut or Warden Forrest’s malice or gross negligence. The charge’s

definition of “malice” or “gross neglect” tracked the 1995 version’s definition of malice

exactly. The jury found that both Wackenhut and Warden Forrest acted with malice or

gross negligence, and neither Wackenhut nor Warden Forrest has challenged this finding

on appeal.


                                            90
       The problem with the family’s argument, however, is that the 1995 version of the

statute allowed a plaintiff to recover exemplary damages based on a finding of malice

“even if only nominal damages are awarded.” TEX . CIV. PRAC . & REM . CODE ANN . § 41.004;

see Bic Pen Corp. v. Carter, 251 S.W.3d 500, 510 (Tex. 2008) (“At the time, this statute

also provided that the claimant could recover exemplary damages, even if only nominal

damages were awarded, but only if it established by clear and convincing evidence that the

harm resulted from malice . . . .”); Waste Disposal Ctr., Inc. v. Larson, 74 S.W.3d 578, 589

(Tex. App.–Corpus Christi 2002, pet. denied) (“Except where there are nominal damages

which result from malice and in wrongful death claims involving workers’ compensation,

exemplary damages may be awarded only if damages other than nominal damages are

awarded.”); Perez v. Perez, No. 09-05-024-CV, 2005 WL 2092807, at *2 (Tex.

App.–Beaumont Aug. 31, 2005, no pet.) (mem. op.). In other words, a malice finding would

allow a plaintiff to recover exemplary damages in the absence of actual damages, but only

if the jury at least awarded nominal damages. Had we found the award of EMS expenses

was erroneous, that would not be the case here. The jury did not award nominal damages

to Gregorio.

       To remedy this situation, the family argues that if Gregorio’s estate is not entitled to

recover actual damages, we may consider the jury’s award of damages to the wrongful

death beneficiaries. The 1995 version of Section 41.001(1) defined “claimant” as

       a party, including a plaintiff, counterclaimant, cross-claimant, or third-party
       plaintiff, seeking recovery of exemplary damages. In a cause of action in
       which a party seeks recovery of exemplary damages related to injury to
       another person, damage to the property of another person, death of another
       person, or other harm to another person, “claimant” includes both that other
       person and the party seeking recovery of exemplary damages.


                                             91
TEX . CIV. PRAC . & REM . CODE ANN . § 41.001(1) (emphasis added). The family argues that

all wrongful death beneficiaries must be treated together as one “claimant” for purposes

of section 41.004's prohibition on exemplary damages. Thus, because the wrongful death

beneficiaries recovered at least nominal damages, those damages must be considered

when applying section 41.004 to the award to Gregorio’s estate.

        We agree that the damages awarded to Gregorio’s children must be taken into

account.49 “Under section 41.001(1), when a party is seeking exemplary damages for the

death of an individual, both the deceased and the persons seeking recovery are defined

as a claimant.” Gen. Chem. Corp. v. De la Lastra, 852 S.W.2d 916, 923 (Tex. 1993); see

Tex. Health Enters., Inc. v. Geisler, 9 S.W.3d 163, 169 (Tex. App.–Fort Worth 1999, pet.

dism’d) (“Further, chapter 41 expressly indicates that the actual damages to be quadrupled

encompass the actual damage awards to all plaintiffs.”). In Drilex Systems, Inc. v. Flores,

1 S.W.3d 112, 122 (Tex. 1999),50 the supreme court interpreted the definition of “claimant”

in the context of a settlement credit under Chapter 33. Chapter 33 defined “claimant”




        49
             Gregorio’s m other, Catalina, Sr., was awarded $10 m illion in m ental anguish and loss of
com panionship and society dam ages. Com bining her dam age awards with the other wrongful death
beneficiaries’ awards to determ ine the am ount of punitive dam ages available to Gregorio’s estate would
violate the Texas Constitution. In General Chemical Corp. v. De la Lastra, the Texas Suprem e Court faced
a sim ilar issue where a decedent’s estate sought recovery of exem plary dam ages. 852 S.W .2d 916, 923
(Tex. 1993). The decedent’s parents brought a wrongful death action along with the survival action, and the
trial court com bined the actual dam ages awarded to both the decedent’s estate and to the parents in
calculating the punitive dam age cap. Id. at 922. However, the Texas Constitution prohibits recovery of punitive
dam ages by a deceased’s parent. See id. at 922-23 (citing T EX . C ON ST . art. XVI, § 26 (lim iting class of
persons who can recover exem plary dam ages for wrongful death)). Thus, the suprem e court was called upon
to consider whether the constitution prohibited inclusion of the parent’s actual dam ages award in calculating
the dam ages cap. Id. The court held that it did. Id.

        50
           Justice Baker’s concurrence in Utts v. Short questioned Drilex’s correctness. 81 S.W .3d 822, 833
(Tex. 2002) (Baker, J., concurring). However, Drilex has not been overruled and rem ains the law.

                                                      92
almost exactly as it is defined by Chapter 41.51

        In Drilex, Jorge Flores was injured, and he and his family asserted claims based on

that injury. 1 S.W.3d at 115. When calculating settlement credits, the court concluded that

all the plaintiffs, including the injured plaintiff himself, must be considered as a single

“claimant” for purposes of applying a settlement credit. Id. at 122 (“All of the Flores family

members are seeking recovery of damages for injury to Jorge. Thus, under the plain

language of section 33.011(1), the term ‘claimant’ in section 33.012(b)(1) includes all of the

family members.”). Under Drilex, regardless of whether the plaintiff is seeking damages

for his own injuries, his recovery can be limited by including the derivative plaintiffs in the

definition of “claimant.” Id. It would be illogical to conclude that under Chapter 33, a party

seeking recovery for his own injuries can be combined with derivative plaintiffs for purposes

of reducing the injured plaintiff’s recovery, but for purposes of ensuring a recovery of

punitive damages, the same definition should be applied differently. Accordingly, we hold

that the definition of “claimant” includes both Gregorio and his children.52 Because the


        51
             At the tim e, chapter 33 defined “claim ant” as:

        a party seeking recovery of dam ages pursuant to the provisions of Section 33.001, including
        a plaintiff, counterclaim ant, cross-claim ant, or third-party plaintiff seeking recovery of
        dam ages. In an action in which a party seeks recovery of dam ages for injury to another
        person, dam age to the property of another person, death of another person, or other harm
        to another person, “claim ant” includes both that other person and the party seeking recovery
        of dam ages pursuant to the provisions of Section 33.001.

Act of May 4, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 T EX . S ESS . L AW S ER V . 971, 973 (Vernon), am ended
by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.05, 4.10(3), 2003 T EX . S ESS . L AW S ER V . 847, 856, 859
(Vernon) (codified as T EX . C IV . P RAC . & R EM . C OD E A N N . § 33.011(1)).

        52
            W ackenhut cites our decision in Adolph Coors Co. v. Rodriguez, arguing that when a jury m akes
findings that a defendant caused actual dam ages to one plaintiff, but not another plaintiff, the plaintiff who did
not obtain a finding of actual dam ages cannot recover exem plary dam ages. 780 S.W .2d 477, 478-79 (Tex.
App.–Corpus Christi 1989, writ denied). That case, however, did not involve a survival and wrongful death
action, for which the term “claim ant” is defined differently. See id. Thus, Rodriguez is inapplicable and does
not require a different outcom e.

                                                         93
legislature stated that a “claimant may recover exemplary damages, even if only nominal

damages are awarded, if the claimant establishes by clear and convincing evidence that

the harm with respect to which the claimant seeks recovery of exemplary damages results

from malice,” and Gregorio’s children recovered more than nominal damages, the “zero

damages rule” does not apply. See TEX . CIV. PRAC . & REM . CODE ANN . § 41.004 (b).53

                             VIII. STATUTORY CAP ON PUNITIVE DAMAGES

         In its fourth issue, Wackenhut argues that if exemplary damages were properly

awarded, the exemplary damages award should be capped. See TEX . CIV. PRAC . & REM .

CODE ANN . § 41.008(b).54 The 1995 version of the statute provided that

         exemplary damages awarded against a defendant may not exceed an
         amount equal to the greater of:

                  (1)      (A)      two times the amount of economic damages plus

                           (B)      an amount equal to any noneconomic damages found
                                    by the jury, not to exceed $750,000; or

                  (2)      $200,000, whichever is greater.

Id. “Economic damages” was defined as “compensatory damages for pecuniary loss; the

term does not include exemplary damages or damages for physical pain and mental

anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship

         53
           See Act of Apr. 6, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 T EX . S ESS . L AW S ER V . 108, 110 (Vernon).
W e note that under the statute’s current version, the sam e result would not obtain because the legislature
subsequently deleted the provision allowing plaintiffs to recover exem plary dam ages based on an award of
nom inal dam ages only when the jury finds m alice. Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 13.05,
2003 T EX . S ESS . L AW S ER V . 847, 888 (Vernon).

         54
          W ackenhut correctly asserts that the prior, 1995 version of this statute applies to the fam ily’s claim .
W e note, however, that the statutory am endm ents since 1995 have not altered the dam age cap am ounts.
Compare Act of Apr. 6, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 T EX . S ESS . L AW S ER V . 108, 110 (Vernon), with
Act of May 21, 2001, 77th Leg., R.S., ch. 643, § 3, 2001 T EX . S ESS . L AW S ER V . 1136, 1137 (Vernon ); and Act
of June 2, 2003, 78th Leg., R.S., ch. 204, § 13.06, 2003 T EX . S ESS . L AW S ER V . 847, 888 (Vernon); and Act
of May 17, 2007, 80th Leg., R.S., ch. 593, § 3.03, 2007 T EX . S ESS . L AW S ER V . 1122, 1132 (Vernon).

                                                         94
and society.” Id. § 41.001(4) (Vernon 1995)).

        The trial court awarded EMS expenses in the amount of $551.50. These are

economic damages. See id. The jury awarded $2 million in future mental anguish and $2

million in future loss of companionship and society to each of Gregorio’s three children, for

a total of $12 million. These damages are noneconomic damages. See id. Thus, if we

apply the statutory cap, Gregorio’s estate would be limited to recovering $751,10355 against

each defendant. See id. § 41.008(b) (Vernon 1995); Seminole Pipeline Co. v. Broadleaf

Partners, Inc., 979 S.W.2d 730, 752 (Tex. App.–Houston [14th Dist.] 1998, no pet.)

(holding cap applied on a per defendant basis and not to the entire award of exemplary

damages).

        The award against Warden Forrest was within the cap; thus, no reversible error is

present with regard to the award against Warden Forrest. See TEX . R. APP. P. 44.1(a)(1)

(stating appellant must show that error “probably caused the rendition of an improper

judgment”). Accordingly, for that reason, we affirm the award of $500,000 in exemplary

damages to Gregorio’s estate against Warden Forrest. Id. If we apply the statutory cap

to the award against Wackenhut, however, the award would be limited to $751,103.

        The family argues that Wackenhut waived the statutory cap on punitive damages

by failing to plead it, and in any event, Texas law allows for uncapped punitive damages

for aggravated assault and malicious wrongful death. TEX . CIV. PRAC . & REM . CODE ANN .

§ 41.008(c)(1), (4). We agree that Wackenhut was required to plead the damage cap,

particularly given that during trial the family asserted that the cap needed a supporting


        55
          W e arrive at this calculation by doubling the award of EMS expenses and adding it to the $750,000
allowed for non-econom ic dam ages. T EX . C IV . P RAC . & R EM . C OD E A N N . § 41.008(b).

                                                    95
pleading and that it was relying on the state of the pleadings in withdrawing issues from the

jury.

        Texas Rule of Civil Procedure 94 provides:

        In pleading to a preceding pleading, a party shall set forth affirmatively
        accord and satisfaction, arbitration and award, assumption of risk,
        contributory negligence, discharge in bankruptcy, duress, estoppel, failure of
        consideration, fraud, illegality, injury by fellow servant, laches, license,
        payment, release, res judicata, statute of frauds, statute of limitations,
        waiver, and any other matter constituting an avoidance or affirmative
        defense. . . .

TEX . R. CIV. P. 94 (emphasis added). In Shoreline, Inc. v. Hisel, this Court held that

“[w]here maximum damages are provided in statutes in Texas, and a defendant wants to

rely on the cap, it is considered a defense that must be [pleaded] and proved.” 115

S.W.3d 21, 25 (Tex. App.–Corpus Christi 2003, pet. denied). Although in that case we

were applying the damage limitation in section 21.2585(d) of Texas Labor Code, we

expressly cited Texas Rule of Civil Procedure 94 and the punitive damage cap provision

in Chapter 41. Id. (citing TEX . CIV. PRAC . & REM . CODE ANN . § 41.008 (Vernon Supp.

2003)). The Fort Worth Court of Appeals has likewise held that section 41.008's punitive

damages cap is an affirmative defense that must be pleaded. Horizon/CMS Healthcare

Corp. v. Auld, 985 S.W.2d 216, 233 (Tex. App.–Fort Worth 1999), rev’d in part on other

grounds, 34 S.W.3d 887 (Tex. 2000).

        Wackenhut argues that Shoreline is distinguishable because Texas Labor Code

section 21.2585 requires the defendant to prove the number of employees it has in order




                                             96
to determine the cap amounts. See TEX . LABOR CODE ANN . § 21.2585(d) (Vernon 2006).56

In contrast, Wackenhut argues that the cap in section 41.008 does not require any proof

to establish its applicability—in other words, because defendants have nothing to prove,

there is nothing to plead. See Hall v. Diamond Shamrock Ref. Co., L.P., 82 S.W.3d 5, 22-

23 (Tex. App.–San Antonio 2001), overruled on other grounds, 168 S.W.3d 164 (Tex.

2005); Seminole Pipeline Co., 979 S.W.2d at 758-59. We disagree.

         First, we note that in applying damage caps under other statutory schemes, where

the caps’ application did not require any additional proof by the defendant, courts have

nevertheless required defendants to plead the caps as an affirmative defense. See

Ingraham v. U.S., 808 F.2d 1075, 1079 (5th Cir. 1987) (holding that Texas’s “statutory limit

on medical malpractice damages is an affirmative defense which must be pleaded

timely . . . .”); Webster v. Johnson, 737 S.W.2d 884, 889 (Tex. App.–Houston [1st Dist.]

1987, writ denied) (holding that defendant waived the liability cap in former article 4590i by

failing to plead the cap). In fact, this Court held as much in Tsai v. Wells, 725 S.W.2d 271,



         56
              The caps in that section are applied based on the num ber of the defendant’s em ployees:

         (d)       The sum of the am ount of com pensatory dam ages awarded under this section for
                   future pecuniary losses, em otional pain, suffering, inconvenience, m ental anguish,
                   loss of enjoym ent of life, and other nonpecuniary losses and the am ount of punitive
                   dam ages awarded under this section m ay not exceed, for each com plainant:

                   (1)      $50,000 in the case of a respondent that has fewer than 101 em ployees;

                   (2)      $100,000 in the case of a respondent that has m ore than 100 and fewer
                            than 201 em ployees;

                   (3)      $200,000 in the case of a respondent that has m ore than 200 and fewer
                            than 501 em ployees; and

                   (4)      $300,000 in the case of a respondent that has m ore than 500 em ployees.

T EX . L ABO R C OD E A N N . § 21.2585(d) (Vernon 2006).

                                                            97
275 (Tex. App.–Corpus Christi 1986, writ ref’d n.r.e.). Wackenhut fails to acknowledge or

distinguish this controlling authority.57

         Second, we disagree that the purpose for requiring a defendant to plead a matter

of avoidance is solely to allow the plaintiff notice that the defendant intends to offer

evidence of a particular fact. In fact, in addition to this purpose, a defendant’s pleading of

an affirmative defense puts the plaintiff on notice that the affirmative defense needs to be

defeated, and it allows the plaintiff to structure his or her case in order to defeat the

affirmative defense, if possible. It is well established law that

         [t]he purpose of Rule 94 is indicated forcibly by the provision that a party
         must affirmatively plead certain named defenses, and “any other matter
         constituting an avoidance or affirmative defense.” That purpose is to require
         the defendant to announce in his pleadings what his defense will be, if it
         includes any of the matters referred to in the Rule, and to give plaintiff the
         opportunity of knowing what character of proof he may need to meet the
         defenses pleaded.

Reid v. Associated Employers Lloyds, 164 S.W.2d 584, 585 (Tex. Civ. App.–Fort Worth

1942, writ ref’d); see Gorman v. Life Ins. Co. of N. Am ., 811 S.W.2d 542, 546 n.8 (Tex.

1991) (quoting Reid, 164 S.W.2d at 585); First Nat’l Bank in Dallas v. Zimmerman, 442

S.W.2d 674, 677 (Tex. 1967); Petroleum Anchor Equip., Inc. v. Tyra, 419 S.W.2d 829, 835

(Tex. 1967) (holding that this rule is “sound” and prevents a defendant from waiting until

after a verdict to assert a defense when it is too late for the plaintiff to defeat it); Favaloro

v. Comm’n for Lawyer Discipline, 13 S.W.3d 831, 837-38 (Tex. App.–Dallas 2000, no pet.);



         57
            Courts have held that a governm ental entity does not waive the liability lim its under the Texas Tort
Claim s Act by failing to plead the lim its. However, given that the Tort Claim s Act is a lim ited waiver of
sovereign im m unity from suit, a court’s jurisdiction is necessarily lim ited to the am ounts stated in the Tort
Claim s Act. See, e.g., State Highway Dep’t v. Pinner, 531 S.W .2d 851, 858 (Tex. Civ. App.–Beaum ont 1975,
no writ) (citing T EX . C IV . P RAC . & R EM . C OD E A N N . § 101.023). These cases have no applicability to the present
issue, which does not involve a question of subject-m atter jurisdiction.

                                                           98
Garcia v. Rutledge, 649 S.W.2d 307, 310 (Tex. App.–Amarillo 1982, no writ); see also

State v. One (1) Red 1988 Chevrolet Silverado, No. 13-00-143-CV, 2001 WL 1002159, at

*1 (Tex. App.–Corpus Christi June 14, 2001, no pet.) (not designated for publication).

       Contrary to Wackenhut’s arguments, the damages cap in section 41.008(b) does

not automatically apply in every case. Section 41.008(c) provides several “cap-busting”

theories that can apply in a given case:

       (c)    Subsection (b) does not apply to a cause of action against a defendant from
              whom a plaintiff seeks recovery of exemplary damages based on conduct
              described as a felony in the following sections of the Penal Code if, except
              for Sections 49.07 and 49.08, the conduct was committed knowingly or
              intentionally:

              (1)    Section 19.02 (murder);

              ....

              (4)    Section 22.02 (aggravated assault)

              ....

              (11)   Section 32.46 (securing execution of document by deception)

              ....

TEX . CIV. PRAC . & REM . CODE § 41.008(c). The family was entitled to notice that Wackenhut

intended to assert the cap so that its case could be structured to present a “cap-busting”

theory. See Reid, 164 S.W.2d at 585; see also Gorman, 811 S.W.2d at 546 n.8;

Zimmerman, 442 S.W.2d at 677; Tyra, 419 S.W.2d at 835. Accordingly, we hold that the

damages cap in section 41.008 must be pleaded or else it is waived.

       Wackenhut argues that the family was not prejudiced by its failure to plead the cap

because: (1) the family should have been aware that contrary authority does not require

a pleading; and (2) in any event, the family pleaded and unsuccessfully attempted to prove

                                            99
“cap-busting” theories, despite Wackenhut’s failure to plead the cap.            Under the

circumstances of this case, we disagree.

       First, we have already held that the “contrary” authority is incorrect based on well-

established precedent. Second, we disagree that Wackenhut’s failure to plead the cap did

not prejudice the family. In fact, we believe that although not technically a violation of

counsel’s duty of candor to a tribunal, the conduct of Wackenhut’s counsel at trial was less

than forthcoming. See Texas Lawyer’s Creed at III.7, available at http:// www.txethics.org/

reference_creed. asp (last visited Feb. 7, 2009) (“I will not serve motions or pleadings in

any manner that unfairly limits another party’s opportunity to respond.”).

       After the family concluded its case in chief, Wackenhut moved for a directed verdict

on the family’s claims for assault and battery. The family argued that it was asserting penal

code violations “for other purposes should they become necessary.” The family explained

that these theories “could be used for other things, possibly for the punitive damage issues

or other things that may come up,” but informed the court that the purpose of pleading the

penal code provisions was not to obtain the recovery of damages for their violation.

Wackenhut did not respond to this argument.

       Later in the hearing, Wackenhut moved for a directed verdict on the family’s

common nuisance theory. The family argued that it was not asserting nuisance as a cause

of action that could provide the recovery of damages, but for “other purposes.” The court

inquired as to what those other purposes were, to which the family’s counsel responded:

             Well, it’s possible that we may be required to prove that under
       Chapter 41. Chapter 41 concerns punitive damages. It’s possible that under
       some circumstances in the future, we have to prove that to get punitive
       damages. . . . .


                                            100
         ....

                Now, the reason why it’s important is—and we are trying to cover all
         our bases here, obviously. I would like to direct the court’s attention to two
         cases, 34 S.W.3d 887, Horizon Healthcare Corporation v. Auld, and 115
         S.W.3d 21, Shoreline, Inc. v. Hisel. The Hisel case is a Corpus Christi
         decision from 2003. I will show these to counsel.

                These two cases stand for the unremarkable proposition that in order
         for a defendant to assert a defense they have to plead it. In this case, the
         defendants have not pled Chapter 41 of the Civil Practice and Remedies
         Code as a defense to this case; therefore, they are not entitled to the
         benefits of Chapter 41 of the Civil Practice and Remedies Code.

                The only reason why we are talking about common nuisance is
         because we are concerned that for some reason they might try to spring this
         defense on us in the middle of trial. So we would respectfully, you know,
         point out to the court that since they haven’t pled it and it’s not an issue in
         this case and we’ve relied on their pleadings and the state of their pleadings,
         this nuisance issue is probably moot.

(Emphasis added).

         Wackenhut did not speak up or dispute the family’s characterization of its pleadings.

Nor did Wackenhut attempt to distinguish our decision in Hisel or argue that under other

case law, it was not required to plead the damages cap. Moreover, Wackenhut was

expressly notified that the family was relying on the state of the pleadings. Wackenhut

could have requested a trial amendment at that point or at any other point during trial when

the family retained the opportunity to meet the defense. See TEX . R. CIV. P. 66.58

         58
              Rule 66 provides:

         If evidence is objected to at the trial on the ground that it is not within the issues m ade by the
         pleading, or if during the trial any defect, fault or om ission in a pleading, either of form or
         substance, is called to the attention of the court, the court m ay allow the pleadings to be
         am ended and shall do so freely when the presentation of the m erits of the action will be
         subserved thereby and the objecting party fails to satisfy the court that the allowance of such
         am endm ent would prejudice him in maintaining his action or defense upon the merits. The
         court m ay grant a postponem ent to enable the objecting party to meet such evidence.

T EX . R. C IV . P. 66 (em phasis added).

                                                        101
However, it did not.

       At the end of trial, on the first day of the charge conference, the family proposed a

question on securing the execution of a document by deception. Wackenhut argued that

this was not a “theory of civil recovery” and that “there is no evidence” to support such a

question. In response, the family again stated that it was submitting this question “out of

an abundance of caution,” but clearly stated that it was likely unnecessary “because there

are no pleadings that would support the requirement for us to submit this question.” Again,

Wackenhut did not dispute the family’s construction of Wackenhut’s pleadings, did not

argue that it was not required to plead the damages cap, or otherwise indicate in any way

that it intended to rely on the damages cap.

       After the jury verdict, Wackenhut raised the punitive damages cap for the first time

in its “Motion to Disregard Jury Findings and for Judgment Notwithstanding the Verdict and

Objections to Plaintiff’s Motion for Judgment.” At that point, it was too late for the family

to meet the defense by securing findings on the “cap-busting” theories.

       Wackenhut’s failure to speak up and to affirmatively assert its reliance on the cap

allowed both opposing counsel, and the trial court, to proceed under the assumption that

it did not intend to assert the cap. See Am. Paging of Tex., Inc. v. El Paso Paging, Inc.,

9 S.W.3d 237, 241 (Tex. App.–El Paso 1999, pet. denied) (noting that there are

circumstances where counsel’s failure to disclose a material fact is the equivalent of an

affirmative misrepresentation); see also Texas Lawyer’s Creed at III.7.          The family

specifically informed Wackenhut that it was relying on the state of the pleadings in shaping

the rest of its case, and Wackenhut remained silent. The family was surely justified in its

reliance on Wackenhut’s silence. See Ingraham, 808 F.2d at 1079 (noting plaintiffs’

                                            102
argument that it would have structured its proof differently had it known that medical

malpractice damage cap would be asserted, and holding that defendant should not be

“permitted to ‘lie behind a log’ and ambush a plaintiff with an unexpected defense.”).

Accordingly, we hold that Wackenhut waived its right to impose the cap. See Tyra, 419

S.W.2d at 835. We overrule Wackenhut’s fourth issue.59

                        IX. CONSTITUTIONAL LIMITS ON PUNITIVE DAMAGES

        By its fifth issue, Wackenhut argues that the award of exemplary damages violates

its due process rights under the Fourteenth Amendment to the United States Constitution.

See U.S. CONST . amend. XIV; BMW of N. Am. v. Gore, 517 U.S. 559, 568 (1996); Tony

Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 308 (Tex. 2006); Owens-Corning Fiberglas

Corp. v. Malone, 972 S.W.2d 35, 45 (Tex. 1998). We disagree.

        In BMW of North America v. Gore, the United States Supreme Court held that

“[e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that

a person receive fair notice not only of the conduct that will subject him to punishment, but

also of the severity of the penalty that a State may impose.” 517 U.S. at 574. The Court

set out three “guideposts” by which we must judge the constitutionality of punitive damage

awards. Id. First, we consider the “the degree of reprehensibility” of the defendant’s

conduct. Id. at 575. Second, we consider the disparity between the harm or potential

harm suffered and the punitive damages award. Id. Third, we examine the difference

between the punitive damages award and “the civil penalties authorized or imposed in

comparable cases.” Id. We will address each guidepost in turn.


       59
          Because of our holding, we need not address the fam ily’s argum ents that the findings the jury m ade
were sufficient to support a cap-busting theory. See T EX . R. A PP . P. 47.1.

                                                     103
A.     Degree of Reprehensibility of Wackenhut’s Conduct

       “Perhaps the most important indicium of the reasonableness of a punitive damages

award is the degree of reprehensibility of the defendant’s conduct.” Id. The Supreme

Court explained that this guidepost reflects the notion that “some wrongs are more

blameworthy than others.” Id. For example, the Court explained that “nonviolent crimes

are less serious than crimes marked by violence or the threat of violence,” and “‘trickery

and deceit,’ are more reprehensible than negligence.” Id. at 576 (citations omitted). Thus,

in State Farm Mutual Auto Insurance Co. v. Campbell, the Supreme Court held that when

considering the reprehensibility of a defendant’s conduct, courts are to examine whether

“the harm caused was physical as opposed to economic; the tortious conduct evinced an

indifference to or a reckless disregard of the health or safety of others; the target of the

conduct had financial vulnerability; the conduct involved repeated actions or was an

isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or

mere accident.” 538 U.S. 408, 419 (2003).

       Wackenhut does not address this guidepost. It does not argue at any point in its

brief that its conduct was not reprehensible. For this reason, the family argues that

Wackenhut has waived its due process argument. We disagree that the failure to address

this guidepost waives Wackenhut’s due process claim; however, it does affect our analysis.

In Campbell, the Court explained that “[t]he existence of any one of these factors weighing

in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the

absence of all of them renders any award suspect.” Id. (emphasis added). Thus, even if

the plaintiff establishes that the conduct is the most reprehensible conduct imaginable, we



                                            104
must nevertheless consider the other “guideposts” to analyze the due process claim, albeit

with reference to the reprehensible conduct. See id.

        We hold that nearly all the indicators of reprehensible conduct exists in this record.60

First, the harm caused to Gregorio and his family was physical rather than merely

economic. See USA Truck, Inc. v. West, 189 S.W.3d 904, 911 (Tex. App.–Texarkana

2006, pet. denied). This case involves “the most serious injury of all—death to a human

being.” Id. at 910. Second, the record shows that Wackenhut and Warden Forrest were

indifferent to and acted in reckless disregard for Gregorio’s safety.                         For example,

Wackenhut repeatedly violated the post order for the crash gate leading to the “bowling

alley” by failing to conduct pat-searches of all inmates going through the gate, even though

it was aware that locks were available to inmates and could be used as weapons. In fact,

other fights had occurred at the Wackenhut facility involving the use of locks in the same

manner, and Wackenhut knew about these fights. Additionally, testimony from two

witnesses showed that Wackenhut’s wardens callously disregarded Gregorio’s safety by

smirking and laughing while Gregorio was beaten to death. See Malone, 972 S.W.2d at

46.

        Furthermore, and no less importantly, the trial court instructed the jury that

Wackenhut and Warden Forrest intentionally spoliated evidence.61 “Evidence of post-act


        60
           W e note that one elem ent suggested by the Suprem e Court, whether “the target of the conduct had
financial vulnerability,” does not seem particularly appropriate in the context of a survival and wrongful death
action. See USA Truck, Inc. v. W est, 189 S.W .3d 904, 911 (Tex. App.–Texarkana 2006, pet. denied). W e
note, however, that Gregorio certainly was vulnerable in the sense that he relied on W ackenhut to ensure his
safety as against the other prisoners.

        61
          W ackenhut has not challenged the evidence supporting the jury’s findings of m alice and gross
negligence, and it does not dispute that the jury was entitled to consider the spoliation instruction and the
evidence of spoliation when awarding punitive dam ages. See Bennett v. Reynolds, 242 S.W .3d 866, 901

                                                     105
attempts by tortfeasors to cover-up or avoid responsibility for their acts may imply a

consciousness that their acts were intentional or willful, and not a mere mistake or

accident.” Bennett v. Reynolds, 242 S.W.3d 866, 889-90 (Tex. App.–Austin 2007, pet.

filed); see Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 273 (Tex. App.–Houston [1st

Dist.] 1991, writ denied). Warden Forrest expressly testified in his deposition that he had

seen a videotape that showed the beating and Gregorio’s injuries, which he described in

detail. Amazingly, Warden Forrest amended his deposition to testify that the “video” he

testified to seeing was in reality a movie he had “created” in his mind based on information

he had learned about the beating. Testimony also showed that while one lock was

produced in discovery and claimed by Wackenhut to be the only weapon used in the

beating, two lock shanks were found in the “bowling alley,” indicating that the inmates

passed two locks through the crash gate. The second lock was never produced; thus, the

jury was entitled to presume that Wackenhut intentionally destroyed this evidence as well

to lessen its liability. These cover-up attempts show “intentional malice, trickery, and

deceit.” Bennett, 242 S.W.3d at 903.

        Punitive damages are intended to punish and deter tortious conduct through the civil

justice system. Id. However, Wackenhut’s conduct also implicates another important and

basic policy underlying punitive damages—“preserving the integrity of [our] courts and the

rule of law.” Id. By spoliating evidence, Wackenhut attempted to “undermine Texas’s civil

justice system itself.” Id. We find that Wackenhut’s conduct was clearly reprehensible




(Tex. App.–Austin 2007, pet. filed) (noting that defendants had not challenged “factual” validity of punitive
dam age award and noting that jury was instructed it could consider the defendants’ “conduct,” which included
a subsequent cover-up).

                                                    106
and, frankly, constituted a disgusting display of disrespect for the welfare of others and for

this State’s civil justice system.

B.     Disparity Between the Harm or Potential Harm Suffered and the Punitive
       Damages Award

       The second “guidepost” is the “disparity between the harm or potential harm

suffered and the punitive damages award.” Gore, 517 U.S. at 575. Wackenhut argues

that we must compare the award of zero damages to Gregorio’s estate or, in the

alternative, the trial court’s meager award of $7,511 for funeral and EMS expenses, with

the award of $20.5 million in punitive damages. Under this theory of the case, Wackenhut

asserts that the award of punitive damages is more than 2,633 times the amount of actual

damages.

       Wackenhut concedes that there is no “bright-line” ratio that will automatically violate

due process, but it cites Tony Gullo Motors I, L.P. v. Chapa, where the Texas Supreme

Court stated that “‘few awards exceeding a single-digit ratio . . . will satisfy due process.’”

212 S.W.3d at 308 (quoting Campbell, 538 U.S. at 425). Wackenhut argues that “‘four

times the amount of compensatory damages might be close to the line of constitutional

impropriety.’” Id. (quoting Campbell, 538 U.S. at 425). In response, the family argues that

the second “guidepost” must be determined not only with respect to the actual damages

awarded, but with respect to the gravity of the misconduct and the potential harm to both

Gregorio and his family. We agree.

       The proper inquiry is “‘whether there is a reasonable relationship between the

punitive damages award and the harm likely to result from the defendant’s conduct as well

as the harm that actually has occurred.’” Gore, 517 U.S. at 581 (quoting TXO Prod. Co. v.


                                             107
Alliance Res. Corp., 509 U.S. 443, 459 (1993) (emphasis in original). In Gore, the Court

noted that it had “consistently rejected the notion that the constitutional line is marked by

a simple mathematical formula, even one that compares actual and potential damages to

the punitive award.” Id. at 582 (emphasis added). “Indeed, low awards of compensatory

damages may properly support a higher ratio than high compensatory awards, if, for

example, a particularly egregious act has resulted in only a small amount of economic

damages.” Id. For example, “[a] higher ratio may . . . be justified in cases in which the

injury is hard to detect or the monetary value of noneconomic harm might have been

difficult to determine.” Id. The precise amount of the award that is constitutionally

permissible necessarily must be judged in light of the defendant’s conduct and the actual

or potential harm to the plaintiffs. Campbell, 538 U.S. at 425; Bennett, 242 S.W.3d at 905;

Baribeau v. Gustafson, 107 S.W.3d 52, 64 (Tex. App.–San Antonio 2003, pet. denied)

(“This argument is that the punishment should not fit the conduct, but instead should only

fit the damages awarded. Instead, we believe that the penalty should fit the gravity of the

misconduct, not simply the actual damages awarded by a jury.”). Even where a plaintiff

is precluded by law from recovering actual damages against the defendant, Texas courts

have held that the failure to recover actual damages does not necessarily result in a finding

that an award of exemplary damages is constitutionally infirm. See Universal Servs. Co.,

Inc. v. Ung, 882 S.W.2d 460, 464 (Tex. App.–Houston [14th Dist.] 1994) (holding that

award of exemplary damages was not necessarily excessive because the jury failed to

award actual damages in worker’s compensation case because actual damages were

statutorily prohibited), rev’d on other grounds, 904 S.W.2d 638 (Tex. 1995) (citing Wright



                                            108
v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987)).

       The damages question asked the jury to award damages to Gregorio’s estate for

(1) physical pain in the past, (2) mental anguish in the past, and (3) disfigurement in the

past. Without a doubt, these elements of damages are difficult for juries to calculate,

particularly when the person injured is deceased and cannot testify to his own pain and

suffering and mental anguish. The jury awarded zero damages for these elements.

       We presume that the jury declined to award these damages because the testimony

at trial indicated that Gregorio was rendered completely incapacitated upon the first hit with

the sock containing the lock. At trial, Officer Cortez testified that he believed that the first

hit with the sock knocked Gregorio out because he did not fight back. Officer Hernandez

saw the incident, and he reported that after the sock hit Gregorio, he did not fight back.

       Dr. Sims, the emergency room doctor who examined Gregorio when he was first

brought to the hospital, testified that Gregorio did not appear to be in a lot of pain. Sims

stated that Gregorio “may have been a little bit dulled mentally by his—by the seriousness

of his acute injury, and he wasn’t in pain like a kidney stone patient is in pain, like a

gallstone patient is in pain.” Sims “presumed” he was in some pain, but could not quantify

the amount. Sims also testified that he “could not comment,” as a doctor, on whether

Gregorio appeared “scared.” His “common sense” opinion was that he did not recall that

Gregorio looked scared; rather, his appearance was “of someone who was injured.” He

testified that when a person’s blood pressure is beginning to drop, as Gregorio’s was, “one

may be sort of dulled in a sense that the normal human emotions that one might expect

in a certain situation may not be all that evident.”

       Given that we must consider not only the actual damages the jury awarded, but also

                                             109
the difficulty of calculating particular types of damages and the potential injury to the

plaintiff, we hold that Gregorio’s death certainly justifies a higher ratio of punitive damages

than in a typical case involving only economic damages. Gore, 517 U.S. at 582; Malone,

972 S.W.2d at 46 (“Conduct that endangers a person’s health or safety merits more

punishment than purely economic harm.); see USA Truck, Inc., 189 S.W.3d at 911.

Moreover, Wackenhut should not be permitted to complain that the award is excessive

because its victim did not suffer “actual damages,” given that its egregious conduct caused

an injury so severe and immediate that the victim was rendered senseless and thereby

unable to feel the pain and suffering and mental anguish that would logically result from

the conduct. See Gore, 517 U.S. at 582.

       Even so, in wrongful death actions, when considering the ratio of punitive damages

to the actual injury, Texas courts have taken into account (1) the actual damages awarded

to the deceased through a survival action, (2) the damages awarded to the wrongful death

beneficiaries, and (3) the extent to which a maliciously caused death offends a public

sense of justice. See Armstrong v. Randle, 881 S.W.2d 53, 59 (Tex. App.–Texarkana

1994, writ denied); Mo. Pac. R.R. Co. v. Lemon, 861 S.W.2d 501, 526 (Tex. App.–Houston

[14th Dist.] 1993, writ dism’d by agr.) (“The jury had many intangible factors to consider in

trying to put a price on the loss of human life. The life of a wife, mother, daughter whom

the evidence showed was dearly loved and sorely missed.”). If we consider the damages

awarded to Gregorio’s children, a total of $12 million, the ratio of punitive damages to

actual damages is less than 2 to 1 with respect to the award against Wackenhut, and less

than 1 to 1 with respect to the award against Warden Forrest. These ratios are well within



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constitutional limits. Malone, 972 S.W.2d at 46-47.62 Moreover, Wackenhut’s conduct in

maliciously causing Gregorio’s death and thereafter spoliating critical evidence so offends

this Court’s sense of justice that a high ratio is warranted. Bennet, 242 S.W.3d at 904-05;

Armstrong, 881 S.W.2d at 59.

C.       The Civil Penalties Authorized or Imposed in Comparable Cases

        Finally, we must consider “the civil penalties authorized or imposed in comparable

cases.” Gore, 517 U.S. at 575; Malone, 972 S.W.2d at 47. The Texas Supreme Court has

noted that actions for personal injury or death do not lend themselves to a comparison with

statutory penalties. Malone, 972 S.W.2d at 47. In these circumstances, the supreme court

has held that “judicial decisions at the time of the misconduct are also relevant under

Gore’s third prong to ascertain whether a defendant had notice that its misconduct could

subject it to a large punitive damages award.” Id.



        62
            W e note that in Tony Gullo, the Texas Suprem e Court observed that m ental anguish dam ages often
contain a punitive elem ent. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W .3d 299, 308 (Tex. 2006). In
Campbell, on which Tony Gullo relied, the United States Suprem e Court discussed the plaintiffs’ award of
punitive dam ages in an action against their insurer for refusing to settle a claim against them within their policy
lim its and then refusing to pay an excess judgm ent. State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408,
413 (2003). The Court noted that the plaintiffs had received $1 m illion in m ental anguish dam ages, which the
Court held likely included a punitive elem ent given that the harm suffered from the conduct was purely
econom ic:

        The harm arose from a transaction in the econom ic realm , not from some physical assault
        or trauma; there were no physical injuries; and State Farm paid the excess verdict before the
        com plaint was filed, so the Cam pbells suffered only m inor econom ic injuries for the 18-m onth
        period in which State Farm refused to resolve the claim against them . The com pensatory
        dam ages for the injury suffered here, m oreover, likely were based on a com ponent which
        was duplicated in the punitive award.

Id. (em phasis added). First, W ackenhut does not argue that the punitive dam ages should not be judged with
reference to the awards to Gregorio’s children because these awards m ay contain a punitive elem ent.
Second, we do not believe that the statem ents in Tony Gullo or Campbell were intended to im ply that a
plaintiff’s recovery for m ental anguish dam ages always includes a punitive elem ent. W e have already
reviewed the awards to Gregorio’s children and have determ ined they were supported by legally and factually
sufficient evidence and were not excessive.

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       The underlying concern in a substantive due process analysis of a punitive damages

award is ensuring that the award of punitive damages is reasonable in relation to the

State’s legitimate interest in punishing unlawful conduct and in deterring its repetition.

Gore, 517 U.S. at 568. The purpose, as Justice O’Connor explained, of ensuring fair

notice of the penalty’s severity is so that the defendant can structure his conduct to avoid

the penalty. See Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 59 (1991) (O’Connor, J.,

dissenting).

       Wackenhut claims that at the most, only four times the amount of actual damages

(four times $7,511 or $30,204) should be awarded, as this constitutes the outer boundary

of constitutional awards of punitive damages. See Tony Gullo Motors, 212 S.W.3d at 308.

However, Wackenhut ignores the Texas Supreme Court’s holding that wrongful death

cases do not involve the same concerns as, for example, a claim under the DTPA that may

allow for double, treble, or quadruple damages. Malone, 972 S.W.2d at 47. Wackenhut’s

conduct leading to Gregorio’s death occurred in April 2001. Prior to that date, the law was

well established, by statute and by judicial opinion, that punitive damages could be

awarded in survival and wrongful death actions. Act of May 17, 1985, 69th Leg., R.S., ch.

959, § 1, 1985 TEX . GEN . LAW S 3242, 3295 (current version at TEX . CIV. PRAC . & REM . CODE

ANN . § 71.009 (Vernon 2008)); Hofer v. Lavender, 679 S.W.2d 470, 473 (Tex. 1984)

(cause of action for exemplary damages survives death of injured party); see also Malone,

972 S.W.2d at 47 (noting that defendant knew that law provided it could be punished for

its conduct through an award of punitive damages.). Wackenhut likewise should have

been aware from the relevant case law that calculations of punitive damages included the



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injuries sustained by both the person injured and by derivative plaintiffs. See TEX . CIV.

PRAC . & REM . CODE ANN . § 41.001(1) (definition of “claimant” includes both decedent and

wrongful death beneficiaries); Gen. Chem. Corp., 852 S.W.2d at 923; Geisler, 9 S.W.3d

at 169; Armstrong, 881 S.W.2d at 59; Lemon, 861 S.W.2d at 526. Most importantly,

Wackenhut was aware that actions taken maliciously, recklessly, or with gross negligence

that resulted in the injury or death of an individual could be punished with a large award of

punitive damages. See Horizon/CMS Healthcare Corporation v. Auld, 34 S.W.3d 887, 891

(Tex. 2000) (noting that a jury awarded $90 million in exemplary damages to a plaintiff

injured in nursing home through gross negligence of nursing home, which was capped at

over $9,000,000, and affirmed by the Texas Supreme Court); Geisler, 9 S.W.3d at 170

(affirming an award of almost $3 million in punitive damages to decedent’s estate in

survival action); N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 920 (Tex. App.–Corpus

Christi 1999, pet. denied) (affirming an award of $1.3 million in punitive damages to

decedent’s estate in survival action). Given the horrific facts of this case, including

Wackenhut’s malicious and grossly negligent conduct, the gruesome manner in which

Gregorio was killed, and Wackenhut’s behavior in attempting to cover up its liability, we

hold that all three of the guideposts under Gore support the award of punitive damages in

this case, which does not violate due process. We overrule Wackenhut’s fifth issue and

affirm the award of punitive damages.

                                      X. CONCLUSION

       Because we find that Gregorio, Sr.’s estate lacked standing to recover wrongful

death damages, we reverse the award of $5 million to the estate and render judgment



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dismissing the estate’s claim for lack of subject-matter jurisdiction. We also reverse the

trial court’s award of $7,000 for funeral expenses. Having overruled all of Wackenhut’s

other issues, we affirm the remainder of the judgment.



                                                 ________________________________
                                                 GINA M. BENAVIDES,
                                                 Justice

Opinion delivered and filed this
the 2nd day of April, 2009.




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