*2 PRESSLER, Before PAUL CANNON ELLIS, JJ.
OPINION
CANNON, Justice. appel- Chapman, son and brother Scott lants, by on March was shot Ronald Buede was later convicted shooting. Appellants filed murder for the Buede, against wrongful action this death appellees as defen- and named [Oshman’s] Chap- kill the used to dants because by an em- purchased man was ployee and later re-sold to Buede. The trial granted summary judgment in favor court appellees portion ordered this allegations remain- severed from the case seven ing against Appellants raise Buede. challenge judgment points of error to the appellants Since failed of the trial court. any summary judgment evidence present intervening criminal conduct that Buede’s foreseeable, appellee’s successfully ne- gated an essential element of judgment the of action. We affirm causes below. reviewing grant of a sum
When mary judgment, this court does not view light most favorable to the evidence Instead, the trial court. in favor of the we must view the evidence nonmovant, resolving and in all doubts favor inferences in dulging all reasonable summary judgment. of reversal of the Property Management, Nixon v. Mr. (Tex.1985); Gulbenkian S.W.2d 929, 931 Penn, 151 Tex. (Tex.1952). appellate or
At either the trial level, question simply is not whether a material fact issue the non-movant raised Rather, unless defeat the motion. entitled to proved it was movant remand court must matter of this as a on the merits. Gibbs for a the case trial Corp., negligent through or General Motors acts omissions (Tex.1970). omission, or employee. standards that its act Whether applied reviewing directly vicariously, must be when a summa- either or constitutes ry judgment clearly have negligence per mandated negligence Supreme the Texas Court in Nixon v. negligence attaches to that unless it is Management, Property Mr. proximate injuries cause sustained. *3 548: Poole, 306, v. 732 Corp. El Chico S.W.2d (Tex.1987); 549; Nixon, 690
1. The movant for 313 S.W.2d at summary judgment the showing has burden of is Missouri R.R. American that there States Pacific genuine man, 99, (Tex.1977). no of issue material fact and 552 S.W.2d 103 Prox elements, it judgment that is entitled to as a matter imate cause consists of two cause foreseeability. of law. in fact and Both elements be or no must established will at In deciding 2. is whether there a dis- Corp., tach to the defendant. El 732 Chico puted precluding material fact issue sum- 313; Nixon, 549; 690 S.W.2d at S.W.2d at mary judgment, evidence favorable to 552 Missouri S.W.2d at 103. the non-movant will be taken as true. Pacific Every reasonable inference must be assuming, arguendo, that Osh- Even indulged of in favor the non-movant and directly vicariously negligent man’s or was any doubts in its resolved favor. gun, in the of sale Buede’s criminal Property Management Nixon v. Mr. 690 superceding conduct a cause re was that 548-549; at Montgomery v. Kenne liability. lieved of Osh- Oshman’s Once dy, (Tex.1984); 669 S.W.2d 310-11 presented summary judgment man’s as evi Wilcox v. Mary’s University St. San copy dence a of guilty certified Buede’s of Antonio, (Tex. 531 S.W.2d plea and for first conviction 1975). Further, this court must not consid murder, degree appellants could defeat er evidence that favors the movant unless summary judgment Oshman’s motion for it is uncontroverted. Great American Re only by presenting evidence that raises a serve Plumbing Co. v. San Antonio Sup factual as to issue whether Buede’s crimi ply, (Tex.1965). 391 S.W.2d Nixon, nal conduct was foreseeable. S.W.2d at
The
of the trial court can
any grounds
not
specifi
be affirmed on
not
evi
any
record is devoid
cally
in
presented
summary
for
motion
1suggesting
anything
dence
that there was
judgment. City
Houston v. Clear
did,
anything
Buede
or
or
in
said
his behav
Authority,
Creek Basin
589 demeanor,
ior or
that
placed
would have
(Tex.1979). Likewise,
the nonmovants Oshman’s,
Schanfish,
on
employee,
its
objections
writing
in
must have been
and
that,
gun,
if possessed
notice
of the
Buede
before the trial court at
of the
the time
engage in criminal conduct. The
would
hearing
summary
on
motion
judg
to
Chapman
Taurus .357 used
shoot Scott
However,
ment. Id. at 677.
the trial court
purchased
by Osh-
on March
granted
has properly
summary judgment
employee
using
man’s
Neil Schanfish
his
here,
where, as
the defendant has estab
employee
day,
discount.
the same
Later
lished that at least one element of the
personally
Schanfish
sold the
to Bue-
plaintiff’s
matter
cause
action fails as a
testimony,
deposition
de. The
of law.
Corp.,
Gibbs v.
Motors
General
response
in
to
motion for
offered
Because I foreseeability believe that is inherently fact, an issue for the trier I reverse and I would remand for trial. re- spectfully dissent from the of my decision
colleagues. MORALES, Joseph
Andrew III, Appellant, Texas, Appellee. The STATE of *5 No. 01-89-00877-CR. Jr., Batchan, Houston, John appel- Texas, Appeals Court lant. (1st Dist.). Houston Holmes, Jr., John County B. Harris Dist. Atty., June Davies, Lester Blizzard and Carol Houston, Attys.,
Asst. appellee. Dist. BASS, Before SAM O’CONNOR and DUNN, JJ.
OPINION DUNN, Justice. appeal an
This is from the trial’s court finding deadly affirmative of the use a weapon during the commission of the of- Appellant complains fense of murder. (1) making the trial court erred an af- finding deadly firmative use a (2) weapon, holding appellant complainant pair smothered the awith underpants and his hands. complainant,
The Ms. Aguilar, Dionicia was found dead in the bedroom of her home, pair underpants with blue top around the of her neck and chin. Her head, hands were above her bound with pillowcase. police an conducted inves- tigation who per- to determine was the last Aguilar. son They to see Ms. were con- informant, anonymous tacted who appellant Aguilar stated had with Ms.