​Opinions Released December 8, 2016

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Gonzalez v. State, No. 13-16-00134-CR (Opinion by Justice Garza; Panel Members: Chief Justice Valdez and Justice Longoria)

In this direct appeal, the Thirteenth Court of Appeals determined whether it is a violation of the Double Jeopardy Clause to charge a defendant with separate counts of driving while intoxicated with a child passenger (“DWI – Child Passenger”) for each child passenger involved in a single driving incident.

After having several alcoholic beverages, Kimberly Gonzalez was involved in a rollover accident while her three children in the backseat of the vehicle. Gonzalez was charged with five crimes stemming from the wreck: two counts of intoxication assault, and three counts of DWI - Child Passenger. Gonzalez pleaded guilty to the DWI – Child Passenger charges, and the State dismissed the intoxication assault charges.

Gonzalez appealed, arguing that her rights under the Double Jeopardy Clauses of the United States and Texas Constitutions were violated because she was convicted of three offenses for one traffic accident.

Held: Gonzalez’s convictions violated her constitutional freedom from double jeopardy; the first count of DWI with a child passenger is affirmed and the remaining two counts are vacated.

The Double Jeopardy Clause protects against multiple prosecutions for the same “unit” of crime. The court determines the applicable “unit” of crime by identifying the gravamen of the offense set forth in the relevant statute. The gravamen can be the result of the crime, the nature of the crime, or the circumstances surrounding the crime. However, if the statute protects the victim(s) a specific type of harm, the Legislature is understood to have intended each criminal act to be punished separately.

Here, Gonzalez argues that the gravamen of the DWI - Child Passenger statute is the act of driving under certain circumstances rather than jeopardizing the safety of the child passengers. The State however, emphasized that child endangerment is punished with a separate charge for each child, and the DWI – Child Passenger statute is essentially a specialized version of child endangerment.

The Thirteenth Court noted that, while Gonzalez’s case was on appeal, the Eastland Court of Appeals issued an opinion in State v. Bara, 2016 WL 4118659 (Tex. App.—Eastland 2016, no pet.) (mem. op.), holding that the relevant “unit” of prosecution for DWI – Child Passenger is “one offense for each incident of driving or operating a vehicle.” The Eastland Court noted that the relevant criminal act was driving while intoxicated, and the child passenger need not be aware of the intoxication or injured in an accident for the act to constitute a crime. The court compared the DWI – Child Passenger offense to the offense of indecency with a child by exposure ,which was analyzed in Harris v. State, 359 S.W.3d 629 (Tex. Crim. App. 2011). In Harris, the Court of Criminal Appeals held that the act of exposure was the relevant unit of prosecution, and a criminal could not be charged with multiple counts of indecency based on a single act of exposure, even if multiple children were involved.

The Thirteenth Court adopted the Eastland Court’s analysis and holding, finding that the relevant unit of prosecution for DWI – Child Passenger is the operation of the vehicle. Thus, Gonzalez’s constitutional freedom from double jeopardy was violated by charging her with multiple instances of DWI – Child Passenger stemming from the same offense.

The State also challenged Gonzalez’s preservation of the double jeopardy issue because Gonzalez raised the matter in a motion to quash. The Thirteenth Court agreed that the motion to quash was not the proper method of asserting an objection regarding double jeopardy, but nonetheless held that the error could be asserted for the first time on appeal if a violation is apparent from the face of the record and enforcement of the usual procedural rules serves no legitimate state interest. Although Gonzalez failed to provide a copy of the reporter’s record on appeal, it was clear from the records attached to Gonzalez’s judicial confession that there was only one traffic accident involved. Thus, a double jeopardy violation was apparent from the face of the record. Furthermore, even if the missing reporter’s record revealed that Gonzalez had explicitly waived her double jeopardy objection at the hearing, the State had no legitimate interest in maintaining an erroneous conviction.

Thus, the Thirteenth Court held that Gonzalez’s three convictions for DWI – Child Passenger were a violation of her freedom from double jeopardy, and could be asserted for the first time on appeal. Gonzalez’s first conviction for DWI – Child Passenger was affirmed, and the remaining two counts vacated.

Read the Full Opinion Here

Pasko v. Schlumberger Technology Corp., No. 13-15-00619-CV (Memorandum Opinion by Justice Longoria; Panel Members: Justices Garza and Perkes)

In this appeal from an order granting traditional summary judgment, the Thirteenth Court analyzed whether there was a genuine issue of material fact regarding the discovery rule that precluded summary judgment on the statute of limitations defense.

Michael Pasko worked as a contractor at a well site in DeWitt County. Schlumberger also provided contractors, equipment, and chemicals to the site, although it did not employ Pasko.

In May 2013, Pasko cleaned a water spill at the site, pursuant to the direction of a Schlumberger employee. Later, Pasko learned that the water contained frac chemical residue and other substances that resulted in chemical burns to Pasko’s skin. Four months later, in September 2013, Pasko was diagnosed with squamous cell carcinoma in the same area as his chemical burns.

In early 2015, Pasko sued numerous parties—but not Schlumberger—on various tort claims including negligence, fraud, fraudulent concealment, conspiracy, and intentional infliction of emotional distress. After beginning discovery, Pasko learned that Schlumberger employees negligently set up a hose containing U028 which then leaked into the frac chemical residue and contributed to Pasko’s injuries. Pasko added Schlumberger as a party in August 2015.

Schlumberger filed a traditional motion for summary judgment, claiming that Pasko’s claims were barred by the statute of limitations. Pasko responded by asserting the discovery rule. The trial court granted Schlumberger’s motion, and severed Schlumberger to make the judgment final.

Pasko appealed, arguing that Schlumberger did not disprove each element of the discovery rule and Pasko raised a genuine issue of material fact regarding the statute of limitations.

Held: A genuine issue of material fact existed regarding the discovery rule. The trial court’s summary judgment order is reversed and the cause remanded.

In Texas, torts are generally governed by a two-year statute of limitations. Schlumberger bore the burden to establish that such statute of limitations barred Pasko’s action as a matter of law. Moreover, since Pasko pleaded the discovery rule, Schlumberger bore the burden to conclusively establish when Pasko discovered or should have discovered his injury and that it was the likely result of the defendant’s wrongful acts. In the context of a latent occupational disease, discovery does not occur until “symptoms manifest themselves to a degree or for a duration that would put a reasonable person on notice” of the injury, which could be attributed to a work-related incident through due diligence.

Here, Schlumberger pointed to the fact that Pasko first experienced burns in May 2013, and was thus aware of his injury at that time. In response, Pasko claimed that he was not diagnosed with squamous cell carcinoma until September 2013, and thus did not discover his latent disease for another four months. Furthermore, the defendants delayed several months in providing information regarding the chemical mixture in the water, thus hindering Pasko’s ability to discover his disease. Additionally, Pasko did not learn of Schlumberger’s negligence in the hose setup until he filed suit and began conducting discovery. Schlumberger offered no evidence that Pasko should have learned of his squamous cell carcinoma condition or Schlumberger’s involvement prior to September 2013. Although Pasko may have suspected his condition, suspicion alone was insufficient to conclusively negate the discovery rule.

Viewing the evidence in a light most favorable to Pasko, the Thirteenth Court held that Pasko created a genuine issue of material fact regarding the date of discovery. Thus, the trial court’s order granting summary judgment was reversed and the cause remanded.

Read the Full Opinion Here