*1 public place operating a motor vehicle intoxicated, that in reason of
while
toxication, injury to bodily serious cause[d] by driving his vehicle
[complainant] motor causing guard it to collide with a
into and assault person A commits intoxication
rail.” mistake,
“if or person, accident while aircraft, watercraft, motor
operating an intoxicated, place while public in a
vehicle intoxication in
reason of that causes serious
jury to another.” Tex. Penal Ann. Code (Vernon 1994). § We hold that 49.07 plainly “by accident and
language mistake”
dispenses with mental element. See 6.02(b); § Ann. Tex. Penal Tex. Penal Code (Vernon (ef Supp.1998) § 49.11 Code Ann. 1,1995) September (“Notwithstanding
fective 6.02(b), proof culpable mental
Section required for conviction of an
state is not chapter.”); see also Ex
offense under (Tex.Crim. Ross,
parte (criminal
App.1975) or unlawful intent driving while intoxicat
essential element State,
ed); v. also Chunn see 1996,pet. (Tex.App . —Houston
ref'd) (relying on section 49.11 to conclude no DWI). required state for a
culpable mental overrule the second of error.
We judgment. affirm the DANIEL, Appellant,
Reba OIL CORPORATION
KELLEY Kelley, Individually,
David
Appellees.
No. 01-96-00461-CV. Texas, Appeals
Court (1st Dist.).
Houston
7,May *2 Brannan, O’Brien, R.
Michael Peter Hous- ton, Appellant. for Martin, Schble, Houston, G.
Kevin J. Neil Appellee. for MOTION
OPINION ON FOR REHEARING HEDGES, Justice. majority grant
A Court voted to appellant’s rehearing motion en for banc. opinion This Court’s issued on March opinion dissenting 1998 and the from denial of en banc on the same review issued date withdrawn, hereby opinion and this and dissenting opinion are substituted their stead.
EN BANC OPINION appeals Reba Daniel from an order strik- pleadings granting her a take-noth- ing judgment appellees, favor David Kelley, (Kelley), individually Oil Corporation. We affirm.
FACTS appellees alleging Daniel sued sexual harassment, discrimination, and retaliation. During discovery, Daniel revealed that she an had audio cassette Kelley. her conversation between She produce recording, asserting refused to privileged that it was and undiscoverable as attorney Appellees product. work filed a joint quash motion for sanctions and to ad- taped mission of the conversations. After regarding authenticity evidence recording, court found intentionally that Daniel had fabricated false plead- struck evidence. The trial court her her, ings, against costs assessed fees and nothing against appel- ordered that she take lees. error, points
In three Daniel asserts (1) that the trial court abused its discretion striking her (2) evidence, claims, opinions tacitly ap other have violated the standard set forth Powell, proved procedure. At the sanctions Natural Gas TransAmerican (Tex.1991) hearing, the court entitled to (orig.proeeeding) weight penalty” witnesses and imposing so-called “death Press, (3) testimony. their tion, See San Antonio process rights violated her due *3 64, Mach., 66 Inc. v. Bilt 852 S.W.2d Custom her claims. writ); 1993, City (Tex.App. Antonio no — San Cox, 701, 793 724-25 Dallas v. S.W.2d FACT FINDING AUTHORITY 1990, writ); Vaughn (Tex.App. no v. — Dallas We address the threshold issue Comm’n, Employment Texas authority the trial court had the to whether 139, 1990, (T ex.App.—Houston [1st Dist.] 142 determine the context dis writ). no hearing that the was pute sanctions Blackmon, 827 Daniel relies v. three, In Lanfear part of error as fabricated. 87, (Tex.App. Corpus 91 Christi S.W.2d process argument, argues Daniel — of her due 1992, proceeding), support her con orig. “credibility that her should have been tested erroneously adju tention the trial court that and at the when her lawsuit was tried not merits of the based on testi dicated the case hearing.” mony Lanfear, the hearing. In a sanctions disagree. A trial court both has stating, against practice, court this advised implied express powers manage con “Otherwise, trial court at time could Eichelberger troversies it. v. Eichel before proceeding trial if it believed interrupt a (Tex.1979). 395, 582 398-99 berger, S.W.2d untruthful, simply en being witness was Clearly express the trial has the au against party procuring ter a default discovery disputes thority to arbitrate for that reason.” Id. at 91. We do witness appropriate wrongdo out sanctions for mete issue not believe Lan/earcontrols Implied under P. 215. within ing Tex.R. Civ. First, accept appeals before us. the court of authority is express grant of finding testi ed the trial court’s of untruthful power findings the factual court’s to make mony as the factual “assume[d] correct necessary legislatively man carry out its by the court below....” conclusions found State, v. prerogative. 928 dated Jordan Second, Cf. perjurious statement Id. 90. (former 550, (Tex.Crim.App.1996) 555 S.W.2d controversy, as go did not to the heart places Tex.R.Crim. Evid. 702 trial trial court’s it does here. Id. at The “gatekeeper” role of a who must en that the order on the basis was overturned testimony is not sure that scientific rele severe, not penalty death sanction was too Kohl, vant, rehable); but Lawrence 853 finding could its that the trial court not make (Tex.App. — Houston finding wrong as to fact that the so was (court 1993, writ) pow no has inherent be an of discretion.1 abuse complained to find that the conduct er distinguishes dissenting opinion The legiti significantly interfered with court’s in that case the Vaughn, on the basis that of the enumerated core mate exercise one that death perjury note was admitted. We functions, offending party and sanction when have been assessed Cnty. appropriately); Tate v. Commodore InCox, that court perjury denied. (Tex. Co., Mutual Ins. stated: denied) (a hearing on App. writ — Dallas testimony explaining Although there was nonjury motion for sanctions is “akin requested rec- of some of the absence trial,” placing judge in the of fact- role discovery of other the belated ords and finder). records, court, judge of the as witnesses’ opinion weight of the is the first While ours testimony, could well have believed that a trial court has the specifically states indicating furnished records testimony authority to make a fact fabrication imposed circumstances.” factual tions him under the 1. "The issue whether the conclusions Judge authorize the S.W.2d at 90. Blackmon found appellees’ genuine missing were not At the motion to records suppress, improperly destroyed Daniel denied that the record- were or withheld. any way. if was fabricated or altered give Even the trial court was inclined to She was made doubt, asserted that Dallas the benefit of the the testi- period, during one that she continuous mony of the custodian the furnished (it setting never changed the was on voice suggested records that Dallas’s efforts to activated), never and that she touched the diligent. locate the records were less than it off. recorder until she turned She con- tends that the entire contains con- testimony suggesting There was that the versation between her and from the applicable, written directive was but time she to the time she entered his office the trial court have found that could testi- left, omissions, gaps, with in- no and no *4 mony unpersuasive. tape stances where not record either the did Kelley’s. explained her voice or She at S.W.2d 724-25. stops tape might in the have when occurred Vaughn We believe that was the rare case talking neither was Kelley she nor because in which severe misconduct was admitted. the recorder was voice activation mode. scenario, parties In the deny, common ex Daniel one suggested stated that no had plain, or minimize their misconduct under say Kelley. what she should She denied rule 215. The trial nonetheless retains having previously ever recorded his voice or finding authority his or her fact and the directing anyone his else to record voice. ability judge may to rule. The make the She stated that she not turn the did recorder accordingly, choice rule in and lawyer off immediately until she met her cluding granting the of death sanc recording. making after She denied edit- Cox, 724-25; tions. See at see ing altering tape. attorney or Daniel’s Blackmon, Chrysler Corp. also v. tape also had denied that the been altered or 844, 847, (Tex.1992) 851 n. (orig.proceed edited. order, ing) (vacating a recogniz sanction but testimony appellees’ The court from heard judge’s the trial function resolving Lowe, experts. company two whose Dennis disputed fact issues at a sanctions hearing); authenticity tape evaluates and tests the Hosp. Sys., v. Andras Memorial (1) recordings, tape testified that was (Tex.App. 570-71 [1st Dist.] — Houston (2) edited, machines; multiple perhaps using denied) (where writ the trial judge had analysis layering his not indicated character- to decide whether to claims that believe dis (3) used; particular istic of the recorder and covery sought proprietary was and that recording genuine. was continuous or produced requested had all the it opinion, part, gaps He on based his in the had). tape, speed, changes in variations in time We overrule in point Daniel’s contention Pacun, George expert, frames. Another also error three that court the trial did not have tape stated that not a was continuous authority finding a of fact make recording of a conversation and it had tape was fabricated. disputed been No that the re- altered. one functioning properly.
corder was Daniel affidavit of FINDING OF FABRICATED introduced an her ex- EVIDENCE pert, Al stated that the Yonovitz.2 He one, In point of error Daniel com recording was a continuous made on Daniel’s plains that the trial abused its court discre was no recorder and that there evidence of by striking pleadings tion dismissing her alterations, changes, tape. or edits on the argument, her claims. Based on her we interpret Kelley having error as an attack on admitted to two conversa- mid-July tions court’s was with Daniel: one which made, allegedly fabricated. and anoth- copy purposeful interruptions 2. The on the record also contains of Yonovitz’s accidental or tape. deposition in slates that there were no which he mid-July. weeks Daniel’s DEATH PENALTY er several before SANCTIONS portion referred to a counsel three, points In of error two and Daniel transcript3 recording: complains that the court its abused discretion by striking her slap you I on Male: When did the butt? claims in violation of hothTransAmerican Every by. you Female: walk general Powell Natural and her due Gas slapped you butt Male: haven’t process rights. today. party’s court strikes a When No, haven’t you Female: but walked pleadings and dismisses its action or renders yet, okay, me so deal. I— judgment against it for abuse of the default you Male: You turn around when out walk adjudicates discovery process, here, you. pop I’m going merits; party’s regard claims without to their instead, conduct party’s it focuses not, You Female: better because it took discovery. Sanctions that terminate inhi lot for to come here talk me presentation party’s bit of merits of a you. claims for decision authorized Tex.R. Male: You feel And [unin- nervous? then include Crv. P. exclusion essential telligible]. dismissal, evidence, striking of pleadings, *5 P. choice default. Tex.R. Civ. 215. The of rule to the sanctions under 215 is left sound only slapped your I Male: The reason butt of the trial court. Tex.R. Civ. P. discretion you’ve got pretty is because butt. 215; TransAmerican, at 811 S.W.2d 917. Kelley tape admitted that the voice the the imposition We review the court’s so- tape to be that appeared his. He denied the penalty” under called “death sanction an accurately reflected the conversation and abuse of discretion standard. that he not recall what he said stated could record, the review entire includ We during the He stated that sev- conversation. evidence, counsel, arguments of the mid-July eral weeks before the recorded con- discovery file, and the circum written versation, office, into my “She came [Daniel] surrounding alleged party’s dis stances said, paying she ‘You are not as much Fidelity covery United & abuser States (sic) you prior me for attention to as did ” Rossa, 668, Guaranty 672 Co. you that out that was Jewish.’ found denied). 1992, We (Tex.App. writ are — Waco anything having did not recall else “sufficiency a review not limited to of the conversation, during discussed that been findings; to rath the evidence” discussing not recall Daniel his com- he did er, independent inquiry of the we make an He not re- ments of a sexual nature. did if the court entire to determine record allegedly where he member incident imposing in the sanc abused its discretion Daniel from behind and made grabbed tion. Id. throwing gas about her into the statement are so severe as When these two chamber. Other than conversa- merits, that preclude presentation of the tions, Kelley any private other did not recall that requirement limited discretion is office, either Dan- conversation his about “just.” P. sanctions be Civ. Tex.R. religion iel’s about offensive overtures TransAmerican, 215(2)(b); 811 S.W.2d at allegedly made. he had whether the Four factors determine 917-18. fact findings review We (1) must just: the sanction bear sanctions are on an of discretion standard. abuse conduct; relationship to the offensive direct record, say on this we cannot that the Based excessive; (3) (2) must not be the sanction trial court abused its discretion a less strin impose must first trial court tape was that the manufactured. (4) sanction; court should gent merits, it unless finds deny a trial on overrule of error one. transcript, M F for are as for male and female. In the the voices identified
235
party’s
“justifies
disagree.
that the sanctioned
conduct
to the trial court. We
Exclusion
presumption
its claims or defenses
would have been ineffective as
True,
unjust
punishment.
deprived
lack merit” and that “it would be
it would have
permit
present
authenticating
the substance of her of evidence
her claim.
position
subject
merely
placed
But exclusion would
have
is the
[which
position
discovery]
the same
she had been
before
withheld
before
court.”
849-50;
tape.
she
And she was
Chrysler Corp.,
manufactured
841 S.W.2d at
TransAmerican,
testimony
918; Andros,
still left with her own
and two
S.W.2d
confirming tape
other
recorded conversations
fabricated would be as in evidence justifies presumption a that her claims nature of a by Kelley. “confession” This merit, unjust have no and it would be goes evidence to the heart of proof. her permit prosecute her to her causes of Striking her bears a direct rela- action under the circumstances. tionship to her fabrication of evidence. very fabricating
The
act of
evidence
2. The sanction is not excessive.
strongly suggests
party
legiti-
that a
has no
mate evidence to
her claims. Clear-
offense,
Given the nature of this
the delib-
ly,
presumption
arises therefrom that her
evidence,
spoliation
erate and calculated
claims have no merit.
im-
Meritless claims
the sanction is not excessive.
pose
hardship
opponents,
a terrible
and it
unjust
present-
such
allow
claims to be
required
The trial court was not
to first
ed.
impose
stringent
a less
sanction because
stringent
a less
sanction would not have
We note
a case whose facts are
been effective.
us,
very similar to the record before
sanctions,
argues
penalty
Daniel
that lesser
such Court affirmed death
sanctions in a
tape,
as exclusion of the audio
were available
ease which evidence had been manufac-
Vaughn,
Vaughn,
at 143.
not a case
by
tured.
We
This is
like
relied on
Fcmgfcncontrols.
majority. Vaughn
Employment
believe
v. Texas
Comn’n,
(Tex.App
She made no confession. She was adamant wrongdoing. her denial of At the sanc- necessary rely
tions she found it expert’s
on her deposi- affidavit and written
tion, presented while defendant two live ex- witnesses;
pert that must have hurt her certainly legally
case. The evidence is
factually support sufficient fabricated; however, the evi- legally factually
dence is likewise suffi- opposite
cient finding. Under circumstances,
such death
should not be condoned.
SCHNEIDER, C.J., and O’CONNOR and
ANDELL, JJ., join dissenting opinion. DOTSON,
In re Eric Relator.
No. 01-98-00406-CV. Texas, Appeals
Court of (1st Dist.).
Houston
May Penrice, City,
Robert appellants. Texas for COHEN, Before O’CONNOR and *8 ANDELL, JJ.
OPINION COHEN, Justice.
Relator, Dotson, Eric illegally asserts he is requests corpus restrained and habeas relief by respondent, from an order issued Olsen, Honorable Baker Susan Court, County. 306th District Galveston The granted order the motion for enforcement of ex-wife, child filed relator’s Clar- Rideaux, issa the real in interest.