*1 Therefore, the writ sepa UHI as did. of law and the “persons” as matter GRANTED. entity corporations will be observed CONDITIONALLY rate Tex. R.App. Cynthia company one The Honorable by the courts even where P. 52.8(c). control, or even treat may dominate or her to withdraw Or- Muniz is ORDERED department, as a mere company another Against U-Haul Imposing der Sanctions instrumentality, agency. Valero South International, to Com- For Its Refusal Inc. County Appraisal v. Processing Texas Co. Starr Compel- Order ply With The Trial Court’s t., to Plaintiffs’ First Re- ling Responses Dis denied). 1997, pet. App. 28-31.1 Numbers quests — San For Production corpo willing disregard are Courts days so ten If do within she does not part of an rate form when it is used as order, writ. we issue the will inequitable re unfair to achieve an device party against All costs are assessed sult, orga corporation as such when who incurred them. operated as a mere tool or busi nized and corporation, of another ness conduit fiction corporate
when the is resorted as obli evading existing legal an means Branscum,
gation. Castleberry v. 270, 271-72 Under the doctrine, enterprise”
“single business when
corporations operated separate not as entities, re integrate rather their BAGHERI, Appellant, Hossein pur sources to achieve common business pose, corporation each constituent be Texas, Appellee. The STATE of pur held for the incurred in hable debts Repub of that purpose. suit business Old No. 04-00-00551-CR. Ins. v. Ex-Im Corp., lic Co. Servs. Texas, Appeals of Court of (Tex.App . —Houston Antonio. writ). 1996, no Even if UHI [1st Dist.] related, Republic closely plain 28, 2002. June proving tiffs have not met their burden that UHI and busi Republic form enterprise.
ness There is no evidence Republic depart “a
UHI treats like mere companies “inte
ment” or
grate their resources achieve a common purpose.”
business plaintiffs did
We hold because establishing
not meet their burden “possession, custody, or control”
UHI has documents, responsive the trial sanctioning
court its discretion abused form of that sanctions 1. We understand the trial court’s frustration against discovery dispute remedy on-going attorney’s between other with the fees or some Although conditionally parties. these another appropriate be UHI mandamus, grant petition for writ of UHI's basis. interpreted disposition here should *2 Scharmen, Antonio, George San ap- for pellant. Roberts,
Scott Assistant Criminal Dis- Antonio, Attorney, appellee. trict HARDBERGER, Sitting: PHIL Chief Justice, LÓPEZ, Justice, ALMA L. STONE, Justice, CATHERINE PAUL W. GREEN, DUNCAN, Justice, SARAH B. Justice, ANGELINI, Justice, KAREN MARION, SANDEE BRYAN Justice. Opinion by: DUNCAN, SARAH B. Justice.
Hossein Bagheri was convicted of driv- appeal while intoxicated. On he con- he his exited confused stumbled when the trial court erred in tends car; appeared unsteady as he retrograde extrapo and he testimony regarding car. Field sobri- to the rear The walked lation result. error, ety indicated McCumbers admitting that tests State has confessed *3 In- intoxicated. Bagheri driving was while they are no than were the facts here better (Tex.Crim. al- State, Bagheri’s tests blood toxilyzer 46 902 revealed Mata v. at 3:34 a.m. and cohol level to be 0.113 App.2001), in which the Texas Court of At Allen George trial Appeals concluded the trial court 0.107 at 3:37 a.m. Jr., County’s Bexar breath admitting McDougall, its a retro abused discretion supervisor, that these technical testified grade by the same witness that who in this at 917. results established testified case. Id. or Bagheri’s alcohol level was 0.10 blood keeping prior opinions with our stop a retro- using at the time of more State, (Tex. 490, v. 2 Hartman 494 grade extrapolation. ref'd), 1999, App.-San pet. Antonio State, 499, charge jury find Mata v. 75 S.W.3d The court’s asked filed) (not 2002, App.-San yet Bagheri guilty was the offense whether and instructed published), driving this court held that while intoxicated that to be jury person is deemed error was harmless because evi sufficient the mean- support driving conviction intoxicated while within dence was (1) not have the theory, the law if: he does impairment under alternate physical facul- urges that the normal use of his mental or State error was harmless. initiative, alco- by On own ties reason of introduction of we have reconsid (2) has alcohol body; the harm en now hold hol into the or he ered issue bane and sufficiency 0.10 or more. percent under concentration of evidence Bagheri and he was impairment theory guilty; the alternate is irrele The found vant; jail, probated eight it does not establish that the error in sentenced to months retrograde extrapola days, flawed and fined 120 $1500. tion was harmless. We therefore Applicable
overrule Mata and Hartman to the extent Law conflict and reverse trial court’s Because the error of judgment and remand the cause for new nonconstitutional, complains is Bagheri trial. disregard it affected his must unless Tex.R.App. 44.2(b). P. rights.” “substantial Background
Factual
Procedural
rights
by
are not affected
“[S]ubstantial
‘if
admission of evidence
Bagheri
approximately
was arrested at
erroneous
court,
examining
after
the record
appellate
a.m.
Officer Randall McCumbers
2:30
whole,
as a
has fair assurance
after
observed
vehi-
McCumbers
jury,
had but
m.p.h.,
not influence the
traveling
approximately
cle
at
70
error did
”
v.
Solomon
slight
inside
the road
effect.’
veer onto the
shoulder of
356,
occasions, and,
speed
increasing
his
way,
accused’s sub
Stated another
approximately
m.p.h.,
“[t]he
move across
rights affected unless
stantial
signaling.
lanes of traffic without
three
possibility
is a reasonable
stopped,
was
McCumbers
there
i.e.,
slurred,
prejudicial;
speech
his
errors
noticed
alcohol,
to the defendant’s
eyes
‘might have contributed’
and his
breath smelled
v.
conviction.” Hinds
glassy. Bagheri
red
seemed
(Tex.App.-Dallas
pet.)
of a
extrapolation tying the re
Brown,
(quoting United
States
F.2d
sults to the time
stop,1
(5th Cir.1990)).
Among
the facts
McCumber’s
alone would be suf
to be considered are whether the evidence
ficient to establish intoxication under the
was cumulative and whether it was elicited
impairment
theory,
the fact remains that
Solomon,
expert.
from an
See
charge
the court’s
submitted both theories
at 365.
result,
question.
in a single
As a
we do
theory
and cannot know which
per
Discussion
jury beyond
suaded the
a reasonable
The
argues
State
the error
Casteel,
doubt.
Ins.
Crown
Co. v.
*4
Cf.
Life
admitting
retrograde extrapolation
the
was
378,
22 S.W.3d
388
Without
harmless
the
charge
because
court’s
sub
that
knowing
jury
Bagheri guilty
the
found
both
“impairment”
mitted
the
se”
“per
and
impairment
theory,
under the
the State’s
intoxication;
theories of
jury
and the
is
assertion
the evidence
sufficient to
have convicted
based on the im
theory
support conviction under
is
pairment
theory,
supported
by
is
irrelevant;
simply
way
it in no
leads
McCumber’s
intoxilyzer
a “fair assurance that the error
admit
[in
test results.
argument
sup
The State’s
is
ported by
ting
retrograde extrapolation
previous
evidence]
opinions Mata v.
State,
499,
75 S.W.3d
(Tex.App.
jury,
did not influence the
or had but a
2002,
filed),
pet.
San Antonio
and Hart
Solomon,
slight effect.”
49
at
See
State,
490,
man v.
494 (Tex.App.
365.
sufficiency
We therefore hold the
'd).
1999,
pet.
ref
support
evidence to
conviction under
an impairment
theory
if
does not alone es
intoxilyzer
Even
we assume the
test
results would be admissible in the
absence
tablish that the error
flawed
intoxilyzer
indicating
Whether the
test results are ad-
after an
and
minutes
accident
retrograde
missible in the absence of a
ex-
"no
blood alcohol content
0.108 was
evi-
trapolation
question
is a
the Texas Court of
appellant’s
dence
blood
level
...
alcohol
expressly
open.
has
left
See
greater
equal to
time
than or
at the
0.10%
Mata,
my
dissenting opinion
earlier
Mata v.
en-
public
reposed
The
in the law
trust
State, 75
(Tex.App.-San
S.W.3d 499
Anto-
of
forcement officers
the Government
filed)
C.J.,
nio
(Hardberger,
dis-
requires
quick
to confess
Mata,
senting).
In
the
Court
when, in
a miscar-
opinion,
error
them
Appeals held that the trial
court erred
justice may
their
riage
result from
admitting McDougall’s testimony
re-
remaining silent. But
confession
such
manded the case
our court for a harm
perfor-
not reheve this Court
does
analysis.
judicial
See Mata v.
con-
mance
function. The
conducting
judgment
In
law
sidered
enforce-
analysis,
my
dissent asserts that
ment
error has
officers
reversible
great
should use an
similar to that
been committed is entitled to
Supreme
weight,
judicial obligations
com-
used
the Texas
Court
but
Casteel,
er-
examine
pel
independently
Crown
Ins. Co. v.
Life
public
simple
is
rors
The
interest
The reason
confessed.
promotes a
If a
is
a result be reached which
enough.
given both admissible
Although
during
present
the State confessed error
“The facts in the
case
somewhat
contends,
argument,
from those in Mata.”
oral
State’s brief
different
(c)
extent,
whether,
so, to
society
every
well-ordered
foremost in
and if
what
proceeding.
any
criminal
That
characteristics of the
interest
individual
de-
pro-
entrusted to our
consideration and
known to the
fendant were
enforcing
tection as well as
extrapolation.
providing his
These
Furthermore,
officers.
our judgments
in-
characteristics
behaviors
precedents,
proper
to,
clude,
adminis-
per-
are not limited
tration of the criminal
cannot
law
be left
weight
gender,
person’s
son’s
merely
stipulation
parties.
pattern and
typical drinking
tolerance
alcohol,
person
presented
When
much the
with confessions of
how
er-
ror,
drink
agreed frequently
day
night
question,
we have
prosecutors
drank,
able
correctly
person
have
conclud-
the duration of
what the
ed that
presented.
drinking spree,
error was
But we
of the last
always
indepen-
drink,
per-
have
done so after an
what the
much and
and how
before,
dent
during,
examination of the merits of the
son
eat either
had to
claim.
drinking.
after the
Saldano v.
personal fact
every single
Obviously,
Young
Crim.App.2002) (quoting
v. United
be known
about
defendant must
States,
257, 258-59,
315 U.S.
62 S.Ct.
produce
order to
ex-
(1942)).
tained some inconsistencies misstatements; however, McDougall extrapo- explain the
was able to science clarity.
lation to the with some McDougall’s testimony was unlike tes- MARTINEZ, Appellant, Fernando timony in Mata court cited inconsistencies, glaring includ- numerous contradictions, errors, math
ing numerous Texas, Appellee. The STATE Mata, 46 and inconsistent statements. See 9-14, n. & n. 914-15 & 81- S.W.3d at 906 No. 04-01-00135-CR. short, much is a clearer case Texas, Appeals Court than Mata. Antonio. regard to three factors the With 28, 2002. June Court has instructed consider, elapsed one hour be- test, opposed tween the offense and delay Only hour one Mata. which is Al- given,
test was standard.
though Bagheri’s McDougall did know characteristics, assumptions
individual hypothetical
used as the basis for his proven
later to be true through *7 (1) Bagh-
testimony, including the time of (2) meal; type
eri’s last of alcohol (3) consumed; the duration of (4)
Bagheri’s drinking spree; and the time last drink. assumptions underlying
Given that
McDougall’s
proven by Bagheri’s subsequent testimony, inconsistencies, a few
albeit with case
falls “somewhere in the middle” because reasonable
“there was test a and two
length driving, of time from the personal defen-
three characteristics of the Mata, expert.” known
dant were at 916-17. Since this case falls middle,” in the I believe
“somewhere analysis given
proper to address the “great weight” give that we