Opinions Released July 27, 2017

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.

Curtis v. State, No. 13-16-00466-CR (Memorandum Opinion by Chief Justice Valdez; Panel Members: Justices Longoria and Hinojosa)

In this appeal from a conviction for habitual theft, the Thirteenth Court of Appeals examined the timing requirements for amending an indictment and the implications of a defendant’s status as a parolee.

Clinton Ray Curtis was charged with habitual theft, a state jail felony, based on his third theft offense. The State specifically described the prior convictions in the indictment, providing the date of conviction, cause number, county, and nature of the offense. Then, the day before trial, the State amended its indictment to correct the prior convictions. The State amended one prior conviction to correct the county in which defendant was convicted and to change the description of the offense from “theft of service” to “theft.” The cause number and date remained the same. The State corrected the second offense to modify the date from February 2, 2008 to December 2, 2008; the cause number from “08-10-24027-D” to “08-10-24031-D;” and the description of the offense from “theft of property valued at less than $1500” to “theft.”

The trial court allowed the State’s amendment, over Curtis’s objection. The court offered Curtis an opportunity to request a 10-day continuance of the trial to respond to the changes, but Curtis declined.

The jury convicted Curtis of habitual theft and sentenced him to twenty years’ confinement. The trial court ordered the sentence to run consecutively with Curtis’s pre-existing thirty-year sentence, for which he was on parole at the time of trial. Curtis appealed, claiming he was not given sufficient time to respond to the State’s amended indictment and that the trial court erred by running his sentences consecutively.

Held: Curtis expressly declined his opportunity to have more time to respond to the State’s amended indictment. However, the trial court erred by ordering that Curtis’s sentence run consecutively with the sentence for which he was serving parole. Thus, the judgment was modified such that Curtis’s sentence for habitual theft ran concurrently with his prior sentence, and the judgment as modified was affirmed.

Amended Indictment

On appeal, Curtis argued that the State’s amended indictment was filed after the deadline set forth in Article 28.01 of the Texas Code of Criminal Procedure, which requires that the defendant have sufficient notice of a pre-trial hearing to allow him at least 10 days to raise relevant issues. However, the Thirteenth Court held that Article 28.01 was inapplicable, because Article 28.10 governs the amendment of an indictment.  Article 28.10 allows the State to amend an indictment any time before trial commences, although the court must allow the defendant ten days to respond before trial if the defendant so requests. Here however, Curtis was provided the opportunity to seek a 10-day continuance and declined. Thus, the issue was waived.

Consecutive Sentences

Curtis next argued that the trial court erred by ordering that his twenty-year sentence for habitual theft should run consecutively with the thirty-year sentence for which he was then serving parole. The Thirteenth Court of Appeals compared the case to Byrd v. State, 400 S.W.3d 443 (Tex. Crim. App. 2016). There, as here, the defendant committed a crime while on parole, and the trial court ordered that his new sentence run consecutively with the pre-existing sentence for which he was on parole. However, there was no evidence that the defendant’s parole had been revoked prior to the trial court’s order. The Court of Criminal Appeals held that the sentences could not be stacked unless the defendant’s parole had already been revoked at the time of sentencing. Here, the State conceded that Curtis’s parole had not been revoked at the time of sentencing, and the trial court’s order was contrary to Byrd. The Thirteenth Court thus modified the judgment so that Curtis’s twenty-year sentence for habitual theft ran concurrently with his pre-existing thirty-year sentence.

Read the Full Opinion Here

Heredia v. Wal-Mart Stores, Texas, LLC, No. 13-16-00129-CV (Memorandum Opinion by Justice Hinojosa; Panel Members: Chief Justice Valdez and Justice Longoria)

In this appeal from an order granting summary judgment on the plaintiff’s slip-and-fall claim, the Thirteenth Court of Appeals discussed the knowledge requirement for premises liability claims and analyzed a store’s duty to preserve spills as evidence.

Norma Heredia was shopping in the women’s department of Wal-Mart, when she slipped on a dark sticky substance on the floor and fell. Heredia waited until a Wal-Mart employee—Elizabeth Sanchez—arrived in the area, then told Sanchez about the substance and her fall. Sanchez got the store manager, Bill Daniels, who offered to call an ambulance and asked if Heredia would like to file a report. Heredia declined, and Sanchez cleaned up the spill.

After Heredia arrived home her pain worsened, and she returned to the store to file a report with the manger on duty, Maria Del Angel. Del Angel spoke with Heredia and Sanchez and took photos of the location of the spill and fall. Del Angel requested a copy of the surveillance video from the area, but she learned that the camera was not pointed in the direction of Heredia’s fall. Heredia left Wal-Mart and went to the hospital for treatment for her injuries.

Heredia sued Wal-Mart for the slip and fall. Wal-Mart filed a no-evidence motion for summary judgment based on Heredia’s lack of evidence that Wal-Mart had actual or constructive knowledge of the condition or a reasonable opportunity to discover and remedy the condition. Heredia responded that Wal-Mart’s awareness of spills in other stores dating back more than 15 years demonstrated its actual or constructive knowledge of the spill. Moreover, Heredia claimed Wal-Mart’s practice of cleaning up such spills constituted spoliation of the evidence that would have proven Wal-Mart’s knowledge. Wal-Mart filed a reply claiming there was no evidence as to the length of time the spill had been on the floor before Heredia’s fall.

Heredia then amended her petition to add claims that Wal-Mart owed duties to Heredia to (a) preserve the substance she slipped on as evidence; and (b) use video surveillance for early detection of spills. Wal-Mart filed a second motion for summary judgment for failure to state a claim, arguing that its alleged duties to preserve the substance and to videotape the location of the spill did not exist.

The trial court granted Wal-Mart’s first no-evidence motion for summary judgment without ruling on Heredia’s alleged failure to state a claim. Heredia appealed.

Held: Wal-Mart had no actual or constructive knowledge of the condition that caused Heredia’s slip and fall, nor did it have notice of her claim such that preservation of the substance was required. Thus, the trial court properly granted summary judgment.

On appeal, Heredia argued (1) that she presented more than a scintilla of evidence of Wal-Mart’s constructive knowledge; (2) that she was denied notice and an opportunity to be heard in violation of her due process rights; and (3) that Wal-Mart destroyed evidence and thereby prevented Heredia from showing constructive knowledge of the spill.

Scintilla of Evidence

A slip-and-fall premises liability claim requires evidence that (1) the owner/occupier had actual or constructive knowledge of the condition; (2) the condition posed an unreasonable risk of harm; (3) the owner/occupier did not exercise reasonable care to reduce the risk; and (4) the owner/occupier’s lack of care proximately caused the plaintiff’s injury. Wal-Mart’s no-evidence motion challenged the first element. This element could be established by showing that (a) Wal-Mart placed the sticky substance on the floor; (b) Wal-Mart actually knew the substance was there; or (c) the condition existed long enough that it is probable Wal-Mart had a reasonable opportunity to discover it.

Heredia argued that Wal-Mart had constructive knowledge of spills in its stores since 1988 such that the store developed a procedure for responding to and removing spills, thereby preventing injured shoppers from proving that the store had constructive knowledge of the condition. However, evidence of prior spills at other stores is not evidence of knowledge of the sticky substance on which Heredia slipped. In fact, Heredia admitted that there were no Wal-Mart employees in the general vicinity when she fell. Heredia’s expert testified, however, that Wal-Mart should have known of the substance through the use of video surveillance equipment. Yet, evidence that Wal-Mart was aware of a safer alternative does not show that Wal-Mart knew the condition posed an unreasonable risk of harm. Thus, there was less than a scintilla of evidence to show Wal-Mart’s knowledge of the condition.

Due Process

Heredia next argued that she was denied notice and an opportunity to be heard. Rule 166a(c) of the Texas Rules of Civil Procedure requires 21 days’ notice of a summary judgment hearing to comply with due process.

Here, Wal-Mart filed its no-evidence motion on January 15, 2015, followed by a supplemental no-evidence motion on September 25, 2015. On October 22, 2015, the trial court set the motion for a hearing on November 11, 2015. Heredia responded seven days before the hearing, and Wal-Mart filed a reply the day before the hearing. After oral arguments, the trial court requested additional briefing, then granted the no-evidence motion on November 30, 2015. Heredia thus had 21 days’ notice of the hearing, and was not denied due process.

 Spoliation

Finally, Heredia argued that Wal-Mart spoliated evidence by cleaning up the spill, thereby preventing her from proving Wal-Mart’s constructive knowledge of the condition. The Thirteenth Court of Appeals emphasized that spoliation is a form of discovery abuse that is within the province of the trial court. The trial court must determine whether a party spoliated evidence by analyzing whether there was a duty to preserve the evidence in question. There is a duty to preserve evidence when a party knows or should know that there is a substantial chance a claim will be filed and the evidence is material and relevant to the claim. Here, Wal-Mart did not spoliate evidence. In fact, the evidence was undisputed that when Heredia fell, she said she did not need an ambulance and declined the manager’s offer to file a report. Wal-Mart thus had no notice of the potential claim when it cleaned the spill in the ordinary course of business. Thus, Heredia’s third issue was overruled.

Having overruled each of Heredia’s issues, the Thirteenth Court affirmed the trial court’s judgment.

Read the Full Opinion Here