Charles Claude Carlton v. The State of Texas--Appeal from 248th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 06-02-00073-CR

Case Date: 10/10/2002

Plaintiff: Best Disposal Services, Inc. and Emanuel Eugene Cox

Defendant: Janet Burch, Individually and as Representative of the Estate of Robert Burch, Sr., Julie Carter, S

Preview:Best Disposal Services, Inc. and Emanuel Eugene Cox v. Janet Burch, Individually and as Representative of the Estate of Robert Burch, Sr., Julie Carter, Stephanie Nelson and Robert Burch, Jr.--Appeal from 40th District Court of Ellis County
IN THE TENTH COURT OF APPEALS

No. 10-04-00188-CV Best Disposal Services, Inc. and Emanuel Eugene Cox, Appellants v. Janet Burch, Individually and as Representative of the Estate of Robert Burch, Sr., Julie Carter, Stephanie Nelson and Robert Burch, Jr., Appellees

From the 40th District Court Ellis County, Texas Trial Court # 63660 MEMORANDUM Opinion This is a negligence case resulting from an automobile accident. Emanuel Cox was an employee of Best Disposal Services (BDS). The garbage truck he was driving collided with a car driven by Robert Burch, Sr. Burch was killed in the collision. The plaintiffs sued BDS and Cox for wrongful death. The jury found both Cox and BDS negligent, apportioned fault at 50% as to each of the defendants, and awarded $740,000 in damages to the Burch estate and survivors. BDS argues on appeal that: (1) the evidence was legally and factually insufficient to support the plaintiffs theory of negligent hiring, retention, and supervision; (2) the trial court erred in admitting evidence that Cox had been convicted of crimes in 1993; and (3) the trial court erred in submitting a negligence question that allowed the jury to

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consider theories of liability for which there was no legal or factual support. Finding no error, we will affirm the judgment. Admission of Convictions We will consider BDS s second issue first. BDS argues that the trial court erred in admitting into evidence Cox s 1993 convictions for DWI and drug possession. Preliminary questions concerning admissibility of evidence are determined by the court. Tex. R. Civ. Evid. 104(a). The decision whether to admit evidence rests within the discretion of the trial court. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Evidentiary rulings will result in a reversal of the cause only where the whole case turns on that evidence. Cook v. Sabio Oil & Gas, Inc., 972 S.W.2d 106, 111 (Tex. App. Waco 1998, pet. denied). BDS argues that the convictions are not relevant and therefore should not have been admitted. The plaintiffs brought their suit on simple negligence and negligent hiring, retention, and supervision. The criminal convictions were relevant to the issue of negligent hiring, retention, and supervision. Thus the trial court did not abuse its discretion in admitting the evidence.

Charge Error BDS argues that the trial court erred in submitting the negligence issue in a single question, thus permitting the jury to consider both the theory of simple negligence and the theory of negligent hiring, retention, and supervision. However, BDS did not make a timely and specific charge-error objection. Complaints of error in broad-form submission must be preserved by objection at trial. In the Interest of B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). BDS has not preserved its charge-error complaint for appeal. Legal and Factual Sufficiency BDS challenges the legal and factual sufficiency of the evidence to support the plaintiffs theory of negligent hiring, retention, and supervision. However, BDS does not challenge the sufficiency of the evidence to support the theory of simple negligence. Because the jury s negligence finding can be upheld on the theory of simple negligence, we need not consider the sufficiency of the theory of negligent hiring, retention, and supervision. See Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 160 (Tex. 1995). CONCLUSION Finding no error, we affirm the judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed March 30, 2005 [CV06]

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