*1 verdict,” to or destroys integrity dissent from the verdict....” of a we Tex.R. 606(b). Evid. granting affirm trial court’s order for Garza’s motion new trial. that, argues The State also “[hjaving error, themselves, any, created the attorney,
[Garza] and his with a combined thirty-three years of criminal defense ex-
perience, may not claim now that error is However,
reversible.” none of the cases by cited the State considered the defen- attorney situation, dant’s status as an in a Garza’s, like in which the defendant’s trial CHAVEZ, Appellant, attorney was in performing ineffective his client, duty to his deficiency under-
mined confidence in the outcome of the Monique Lisa DAVILA Juan trial, attorney and the later admitted his Ortega, Appellees. requires ineffectiveness.3 Strickland a de- fendant to No. deficiency show 04-03-00377-CV. prejudice; we decline to hold Garza to a higher stan- Texas, Appeals Court of Strickland, 687, dard. See 466 U.S. at San Antonio. S.Ct. 2052. improper juror
Because destroys 2, “[o]ne June 2004. integrity verdict,” we hold the trial Rehearing Overruled June court did not abuse its discretion in implic- itly concluding that there was a reasonable
probability that presence Adams on the jury undermined confidence in the out-
come of Garza’s trial.
Conclusion Affirmative evidence supports the trial that, finding by court’s permitting Adams to remain jury, on the Garza’s trial counsel
rendered ineffective assistance of counsel. Accordingly, since juror improper “[o]ne Green, se”); State,
3. See United States pro 882 F.2d Linson v. No. 04-00-00632- * (5th Cir.1989) CR, (holding that trial (Tex.App.-San counsel 2002 WL 17, 2002, (not failing was not ineffective July designat to file a notice pet.) Antonio attorney, publication) (holding because defendant was an ed for that trial counsel notice, aware of the need to file failing and did was not ineffective in to move for a notice); rely attorney open on his tried to file the mistrial because defendant stated in State, (Tex.Crim.App.1984), mistrial; Neal v. did he not wish to move for a denied, may t. 474 U.S. and “defendant not create reversible er cer (1985) (considering S.Ct. by manipulation”); L.Ed.2d 53 ror his own State v. Oli ver, experienced, App.3d defendant’s status as "an knowl 101 Ohio 656 N.E.2d (1995) edgeable lawyer” deciding (considering whether defendant’s status as attorney deciding "knowing there had been a "valid waiver of [the defen whether he sought ly intelligently dant’s] to counsel at the time he waived his to testi permission appear fy”). and obtained the court’s
OPINION ANGELINI,
KAREN Justice. *3 from appeals on granting based brings of limitations. the statute appeal, complaining on seven issues in striking the trial court erred two summary judg- in granting affidavits and and Monique in favor of Lisa Davila ment court’s We affirm the trial Ortega. Juan judgment. BackgRound
Factual PROCEDURAL 23, 2000, injured On March Chavez was years in an accident. automobile Over two later, 19, 2002, brought April Davila, against action the driv- negligence er of the other vehicle involved negli- Ortega accident. She sued for Ortega gent entrustment. Davila and filed summary judgment a motion for based on the affirmative defense of limitations Ortega on the lack evidence that negligent theory.2 hable on a entrustment responded by asserting limitations claim statute of did not bar her legal- was incapacitated “[she] Hugo Santos, Xavier De Attorney Los ly being disabled due to her of unsound Law, Antonio, TX, At Appellant. San for mind as a direct result of the motor vehicle Bordini, P. Mario Frank R. Rivas & subject is accident that of this ac- Associates, Antonio, TX, Appellee. San argument, tion.” of her Cha- along
vez attached own affidavit LÓPEZ, Sitting: ALMA L. Chief Billy Ryan Dr. Dana affidavits of Justice, Justice, GREEN, PAUL W. object- Ortega Lea Comstock. Davila and ANGELINI, KAREN Justice. ed to three affidavits. The trial these 16.001(b) 3.Chavez on section of the relied Practices Code Texas Civil and Remedies person provides which "[i]f entitled legal bring personal dis- action is under a accrues, ability the cause of when action disability in a time of the is not included only complains 2. On of the period.” Tex Civ. limitations Prac. & Rem.Code granting on limi- based 16.001(b) (Vernon 2002). § Section Ann. therefore, tations; she has waived her 16.001(a)(2) provides is of who complain ruling of the trial court’s with re- disability. legal unsound mind is under a gard negligent to her claim entrustment 16.001(a)(2). against Ortega. denied). tolling pro- objections Austin court sustained the entered “as in section 16.001 of the excluding an order affidavit vision contained for the is expert opinion evidence reason Practice and Code Civil Remedies Billy Ryan unqualified is render protecting legally for the dis- purpose mind.” that same persons who have access to the abled ruled that order the those persons’ courts and to insure “shall admitted for the not be precluded by running bring suit is not lay opinion about her purpose giving her re- before the it has alleged Conoco, mind’ as not been ‘unsound moved. Ruiz v. *4 is qualified Chavez (Tex.1993).
shown Furthermore, per- 755 mind.” opinion render an on unsound only disability of mind’s is not son trial court entered an order ex- The also courts, the the lack of access to but expert Dr. affidavit cluding Comstock’s “as control, in, or inability participate the reason that Dana opinion evidence for progression disposition understand the has failed to show that she Lea Comstock Generally, of the lawsuit. an qualified competent is render synonymous is considered unsound mind on mind.” opinion person. Hargraves an insane Foods, 547 Armco 894 S.W.2d summary granted The trial court then writ). 1995,no (Tex.App.-Austin judgment and denied Chavez’s motion trial. new
Affidavits REVIEW STANDARD OP issues, urges two her first appeal on The standard of review Dr. striking in that the trial erred judgment is summary whether traditional Ryan’s evi- opinion Dr. Comstock’s and showing movant carried the burden Specifi- dence forth in their affidavits. set issue material genuine
that there
trial court
cally,
complains
that the
granted
and that
should be
fact
erroneously
experts unqualified
found
matter of
KPMG Peat Marwick
as a
law.
opinions
to whether
expert
to render
as
County
Harrison
Hous. Fin.
Chavez was of
(Tex.1999);
see
Crv.
Tex.R.
expert’s
party offering
The
166(a)(c).
P.
proving testimony has the burden of
trial court’s
We review the
decision
Rule of
qualified under Texas
witness is
grounds
to strike the affidavits on
702:
Civil Evidence
qualified
testify
experts
were not
technical,
scientific,
special-
If
or other
under an abuse of discretion standard.
knowledge will
the trier of
ized
assist
P.C.,
Davis,
Ersek v. Davis
&
or to
fact to understand the evidence
de
(Tex.App.-Austin
issue,
qual-
a fact in
a witness
determine
Heise,
nied);
see Broders v.
skill,
by knowledge,
expert
ified as an
(Tex.1996).
148, 151
education,
training,
may
experience,
opinion
in the form an
testify thereto
and the
Mind
Statute
Unsound
or otherwise.
op
Limitations
Tex.R. Evid. offering
The
An
mind tolls the stat
party
expert
testimony must “establish
ute of limitations.
Tex. Civ.
& Rem.
Prac.
(Vernon 2002);
skill,
expert
‘knowledge,
experience,
16.001
Grace
has
Ann.
Code
Colorito,
spe-
(Tex.App.-
training,
regarding
or education’
chiropractic
cifie issue
the court which
will continue to need
treat-
before
would
qualify
give
opinion
an
of her
ment for the remainder
life. He
Broders,
subject.”
particular
suffers from anxi-
also states that Chavez
(citations omitted).
S.W.2d at 153
ety
depression
per-
consistent with a
son of an unsound mind.
Dr. Dana Lea
affidavit
Com-
stock, Ph.D., along with her curriculum
argues that
On
vitae and status
indicate that she
Ryan
education and
specialized
has
is a self-employed licensed counselor. She
training
rat-
impairment
counseling
holds a doctorate in
and has
ing,
give
opinion
he
an
qualified
professional
as
experience
a counselor and
injuries
concerning
disability.
university professor
the field of counsel
nothing,
There is
ing.
Her status
indicates that
vitae to
or curriculum
indicate
she met with
November
qualified
give
that he is
toas
history
Chavez,
took a
from
and whether
Chavez is
unsound mind.
developed
concluded that
sig
Thus,
in striking
the trial court did not err
*5
psychiatric
nificant
difficulties following his affidavit.
the accident. Nowhere does Dr. Comstock
first and
We overrule Chavez’s
second
give any
that she is qualified
indication
to
appeal.
issues on
give
an
as to whether Chavez is of
unsound mind.
Burden
Mind
of Proof
to Show Unsound
argues
appeal
Chavez
that Dr.
remaining
Chavez’s
issues on appeal,
Comstock
qualified
was
to render an opin
Ortega’s
she claims that it
Davila and
was
ion as to whether
Chavez was
prove
burden to
Chavez was of unsound
by
mind
virtue of the fact that she is
mind.
argues
She also
even
“learned,
educated
trained in ‘mental
Bryan
affidavits of Dr.
and Dr.
Comstock
health’.” She
qualifica
recites
various
testimony,
are not considered as
tions listed in Dr. Comstock’s curriculum
judgment evidence taken as
vitae,
degrees,
including her
licensing
her
a whole shows
was of
credentials,
work,
university
her
her
And,
by grant-
mind.
Chavez states
writing.
fails,
She
to show how a
ing summary judgment, the trial court vio-
counselor,
licensed
particularly
Dr.
constitutionally protected
lated her
Comstock, is
to
qualified
testify to whether
to access to the courts.
an individual is of unsound
An
mind.
ex
pert
opinion given by
medical
a witness
that the
argues
trial court
who is not
to
requisite
shown
have the
erroneously placed the burden on Chavez
expertise
Grace,
probative
has no
effect.
prove
to
she was of unsound mind when
record,
at
S.W.3d
769. Under this
we are
been on
burden should have
Davila and
say
unable to
the trial court abused its Ortega
prove
to
was of sound
discretion in
Dr.
striking
Comstock’s affi mind.
on three cases to
Chavez relies
davit.
support
position: Jennings Burgess,
(Tex.1996),
Corp.
[We have] affidavits, and Dr. Comstock’s by pleas tween the non-movant which however, fail to raise fact issue as to limitations, challenge existence here, Chavez’s unsound mind. Without show- such as involved those which defense, ing Ryan challenge that Dr. Comstock and were do not the limitations competent give expert opinion na- but are affirmative defenses subject of confession and avoidance. In the of whether Chavez was ture instance, mind, opinions upon latter the non-movant does the facts which their raising have the fact issue were could serve as evidence based And, respect with his affirmative defense. Chavez was affidavit, own it was as (citations at Zale by correctly stricken the trial be- omitted). into the This case falls “latter qualified cause did not show she was she category, requiring instance” Grace, 4 testify. at 769. See raising the burden of a fact bear issue respect to the of unsound mind. issue she Finally, argues Furthermore, recently, more several constitutionally protected denied her appeals that in courts of have held order to to the courts when the access *6 on an judgment avoid summary judgment. support, For granted theory, pro the must mind non-movant Conoco, Inc., she v. 868 S.W.2d cites Ruiz show she specific duce evidence to did (Tex.1993). Ruiz, however, 752 concerned pursue litiga mental to capacity have the the a of unsound person issue of whether produce for a definite period, tion time mind, brought (thereby he has suit once a to that expert opinion fact-based effect. courts), to the continues to insuring access Medtronic, No. v. 08-02- See Chavez tolling protection have of the statute the (Tex. CV, 309303, 2004 at *4 00332 WL during of time in which the suit periods 2004, pet.); Paso no Freeman v. App.-El supreme the According was dismissed. to Co., 710, Am. Motorists Ins. 53 S.W.3d 713 court, of of unsound the 2001, no (Tex.App.-Houston Dist.] [1st mind limited to lack of access to is not the Colorito, 765, pet.); v. 4 S.W.3d 769 Grace inability courts, the the but also includes denied). Thus, (Tex.App.-Austin control, in, or understand the participate case, in this Chavez had the burden to Chavez, however, at 755. lawsuit. Id. statute tolled show the of was argument authority to support cites no mind, she was of unsound and she plaintiff the placing that the burden on that failed to meet burden. of mind to avoid produce evidence the consti denies her argues, that And, court. right of access to the tutional affidavits, her expert even without she Thus, none. overrule we found we have produced nevertheless evidence raise remaining appeal. issues on on the of fact issue issue produced opin Chavez states she both Conclusion and lay
ion evidence statements concern discussion, In with the above her state of mind which amounted accordance ing judgment of the court. of we affirm the summary judgment evidence
157
“
LÓPEZ,
Justice,
presumptions and
‘[t]he
ALMA L.
Chief
text because
ordinary
dissenting.
proof
for an
or conven
burden
are
to the burden
tional trial
immaterial
I disagree
majority’s
reliance
with
that a movant for
must
Rosenbaum,
Corp.
Zale
520 S.W.2d
”
(quoting
bear.’
Missouri-Kansas-
(Tex.1975), to support
proposition
889
Dallas,
Co. v.
623
City
Texas Railroad
prove
Chavez had
burden to
(Tex.1981)).
Moreover, in
S.W.2d
298
she was of unsound mind.
In Zale
Woods,
commenting
court was
commenting
the court
on a
distinction
proof
regard
discovery
in
to the
Co.,
made Oram General Am.
513
Oil
rule,
expressly
the court
noted is a
which
(Tex.1974).
Oram,
S.W.2d 533
plea in confession and avoidance. 769
proof
noted a different burden of
Therefore,
majority’s
at 518.
S.W.2d
applicable
would be
had
non-movant
on the
made in Zale
reliance
statement
interposed
estoppel
limita
avoid the
Corp.
support
proposition
that Cha
513
tions defense.
S.W.2d at
The
is,
my
vez had the burden of
support
cited two cases
this
misplaced.
opinion,
case,
proposition.
In one
held
the court
that the non-movant was
to come
required
Supreme
repeated
Court
forward
issue
proof raising
a fact
has the
ly stated
the movant
regarding fraudulent concealment. Nich
conclusively negating
tolling provi
(Tex.
Smith,
ols v.
507 S.W.2d
application
sion’s
to show his entitlement
1974).
case,
other
the court held
summary judgment.
v. Westphal,
Diaz
the non-movant had
the burden
(Tex.1997); Jennings
producing evidence to
issue
raise
fact
(Tex.1996);
Burgess,
regarding its promissory estoppel defense.
2;
Woods, 769 S.W.2d at
n.
see also
“Moore” Burger, Inc. v.
Petro
Phillips
Garza,
(Tex.
DeRuy v.
Co.,
(Tex.
leum
936-37
App.-San
pet.);
Antonio
see
1973). None of these cases
Timothy
Summaky Judgments
erally
Patton,
*7
proposition
that
non-movant has the bur
(3rd ed.2003)
(noting
9.04[2]
in Texas
fact,
den of
proving
tolling defense.
defense is
es
conclusively
Supreme
explained
Texas
Court has
until movant
his
tablished
meets
burden
proof
reason the burden of
is different
applicability
negating
of statute
tolls
judgment
context.
limitations).
suspends
running
Mercer, Inc.,
Supreme
explained
Woods v. William M.
The Texas
Court
(Tex.1988),
the burden of
is different
proof
the reason
merits,
noted that
in a trial on
in the
context.
defense,
party asserting
tolling
Woods,
like the
n.
the rule.” noted the court apply this does not in sum mary judgment cases. Id. at n. The explained is re movant conclusively quired negate tolling provision in con