Harrison v. Texas Employers Insurance Ass'n

suрra, Appeals, Finding in of Criminal points the Court no error m the of review three, five, rejects concept merely by giving numbered four and the same that requires are overruled. the instruction warrants 81(b)(2) provides: egregious TEX.R.APP.P. leap to the conclusion that harm actually has resulted. It must be borne in “(2) Criminal Cases. appellate If the object that mind not to in error in record a criminal case reveals and, parole complete below, law instruction proceedings appellate has conceded to candor, he claim judgment court shall reverse the under on reversal must be based review, appellate unless thе court deter- ‘'fundamental error”. This, beyond has failed to mines a reasonable doubt error made no contribution to the do. punishment.” conviction or to the Clinton, Judge writing Sam Houston setting applied this rule out the Judge opinion, joined part by lead Dun- error in criminal criteria reversible can, telling it concluded recоrd, determine, Under this we cases. parole could consider the law instruction doubt, beyond a reasonable the error phase punishment infected the cal- complained of made no contribution deny right culated to an accused to a Therefore, punishment. conviction or the on issue of impartial fair and trial are af- and sentence below Nevertheless, punishment. majority “the firmed. view, i.e., concurring opinions (Judges AFFIRMED. Onion, Miller, Campbell) Teague, dicta, dissenting opinions in indicated Almanza, analysis 686/157 harm employed majority should ... Anew

found that the error was not sufficient fair appellant

find that had not had a impartial hearing punishment. The con-

sequence majority is that while а finds HARRISON, Appellant, James Z. instruction, also giving error it holds Sig- not the error does call reversal.” v. of Criminal nificant Decisions the Court EMPLOYERS INSURANCE TEXAS 16, January Appeals, 1987—December ASSOCIATION, Appellee. 1987,1988 Conference, by Regional Judicial No. 09-87-105 CV. Jr., Judge, Tex- Campbell, Hon. Charles F. Austin, Tex- Appeals,

as Court of Criminal Appeals of Court of Huntsville, February as, Conference held in Beaumont. 10-12, 1988. 10, 1988. March Sanchez compelling Of interest Rehearing ‍‌​‌‌​‌​​‌​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌​‌​‌‌‌‌​‍Denied March State, (Tex.App S.W.2d . —Dal ref’d), recites: pet. which case las duty short, it is not our “In we hold that where places in the record

to locate the Instead, ap- egregious harm is buried. pellants must show the locale no reversal State must convince us that appel- If an may area. be found burden, overrule fails meet his lant Almanza’s pertaining points of error case, the present fundamental error. appellant’s appellant failed. We overrule theirs) point first of error.” Bush, Townsley, Bush,

Don Lewis & Beaumont, Ramsey, appellant. for Stevеns, Weller, Lyn R. Wheelus & Green, Beaumont, appellee.

OPINION

BROOKSHIRE, Justice. compensation previ- Worker’s case. Our opinion February ous with- opinion drawn. This is substituted. The workman-Appellant recovered a against Employers Texas Insurance Associ- general injury. ation [T.E.I.A.] jury’s verdict found: injury

1. That the received James 21, 1985, May Harrison on or about producing any cause of total incapacity; the beginning IA. That date of total July 16, 1985; incapacity was ending IB. That date the dura- incapacity tion of total was November 2. That injury May received on 21,1985, producing was a cause of partial incapacity; beginning par- 2A. That the date of 21,1985; tial was November partial ‍‌​‌‌​‌​​‌​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌​‌​‌‌‌‌​‍injury only compensаtion 2B. That the duration of inca- such for the permanent; pacity was subsequent injury would have the injured employee entitled average weekly That had there 2C. Harrison’s earning previous provided capacity, during partial injury; inca- $514.80; there shall created as pacity, was a fund known Fund,’ Injury the ‘Second hereinafter de- daily average wage 3. That Harrison’s scribed, employee from which an who during actually the days earned subsequent injury shall be year immediately in has suffered a pre- the worked 21, 1985, $120; compensated ceding incapaci- the combined May for resulting injuries....” ties both injury, 4. That Harrison’s back which from added) (Emphasis 1982, August, on or about occurred incapacity. the contribute to provides legislative specifically This dictate injury 5. That Plaintiff’s back of Au- only compensation the to which the 1982, gust, to the has contributed inca- subsequent the injury would have entitled in pacity percentage the of 70%. receive, employee to there had previоus injuries, injury or is recoverable. by Appellant’s recovery was reduced Clearly Injury pays the Fund” “Second 70%, upon jury’s finding of based the con- incapacities compensation for the combined injury to his a general tribution because of present resulting prior injuries from prior, compensable injury. Appellant’s The Furthеr, incapacity. Appel- the brief of the candidly brief concedes: primary the position lant takes the appeal on the re- “This focuses evidence, issue, this on came from garding prior compensable inju- Ralph Mancini. Dr. L.C. ry....” thrust, support major carrier’s its The upon major, The frontal attack made 8306, defense, Art. sec. 12c stressed is upon reduction 70% 1982, injury. August, effects of support that there was “no evidence to said clearly Appellant’s upon attack is The finding.” clearly This is a Question reading: 5 point. Jury No. any, percentage, Find the “5. Harrison, Appellant, had sustained sever- 1982, August, injury Plaintiff’s back working employer, al his injuries while incаpacity found has contributed his injured He had North Star Steel. back (Answer percent- a March, 1984, by you. by giving 1982; August, in job on the 1985, age.)” May, there some other were or, injuries, job, perhaps, instances Answer: “5. 70%” aggravated the condition periodically was: are conceded his low back. These facts Q any way Doctor is therе by Appellant. attributing give a benefit can 1985, May, injury the basis of 80 percentage of the or 90 any sort compensation. suit worker’s part you major clas- percent or whatever pleaded under TEX.REV. carrier a defense sify that as? (Ver- 12c Art. sec. CIV.STAT.ANN. stated, things just I “A on the Based con- requesting non a credit for Supp.1988), pеrcent say of75, I would excess arising prior compensable inju- ditions from more. problem, probably his 12c, entitled “Sub- ries. Article sec. “Q injury? Is related Fund”, pro- sequent injury; Injury Second so, yes, think sir. “A would vides: is on reasonable And that based (a) has employee 12c. If who “Sec. probability? previous injury shall suffer suffered a Yes, added) (Emphasis “A sir.” in сon- subsequent which results injury treating physician of Mancini was the inju- incapacity dition of both Au- that the contributed, Appellant. He testified ries their effects greatest single, gust, injury was the because association shall liable any Mabra, factor Company v. Appellant. (Tex. was: There, wrote, page the court at 707: Is Dr. statеment “In recovery order to reduce the of a deposition, that in excess of 75 to 80 previous injury workman because of a percent, more, is related to the statute, under the above the insurance August, injury agreement ’82 with (1) prove carrier must previous that the your opinion, August, injury ’82 injury (2) compensable contributed singlе greatest factor in inca- present (3) to the incapacity, and pacity Mr. Harrison has? or percentage amount such contribu- aside, “A The numbers it concurs tion. added) (Emphasis ...” my opinion single with as to the great- was, course, The “above statute” Art. est. All that means is greater it’s than 8306, sec. 12c. percent.” added) that, upon It is correct cross-examina- Then, Dr. Mancini testified further: tion, Dunlop put Dr. conceded that to you agree, But do "... your based on exact mathematical percentage would knowledge Harrison, of Mr. that due to guesswork speculation, amount to or but the herniated disk that he suffered in Dunlop, neverthelеss, Dr. maintained and August, you agree '82 —do with Dr. Dun- major portion insisted that a present of the lop’s professional opinion, incapacity Appellant of due August the herniated disk he suffered in original to the injury, referring inju- to the of ’82 contributed percent at least 75 ry August of testimony, of 1982. This we present incapacity he has? determine, weight went to the of Dr. Dun- lop’s opinion.

“Q Doctor, you ques- can answer the tion? Bearing in mind Art. sec. 12c “A I really question can’t answer the Transport Company, Insurance su any differently than before. His esti- pra, decide testimony that Dr. reasonable, mate is but I don’t care to probative was admissible and had force. рut percentage a on it.” testimony Dr. Mancini’s does not eviscerate Dr. or other evidence “Q Dunlop’s pro- Do defer to Dr. concerning the case this issue. Remember opinion, fessional medical since he was ing clearly presents treating physician beginning same, point, we overrule the through present ’82 timе or having applied proper of standards re through ’85, September of to the relative analyzing view. In our the “no evidence” percentage Mr. Harrison point, duty it is our to view the evidence in may regard August have to the ’82 light, its considering only most favorable injury? the evidence and reasonable inference to bе “A willing put percentage He’s in support jury drawn therefrom of a find I do think that a on it. I am not. ing. Transport Company, Insurance su person patient who has seen the over pra. contrary We are not to consider the span might time be in a better Alviar, Garza evidence. 395 S.W.2d 821 position myself than to commit him- Estate, (Tex.1965); ‍‌​‌‌​‌​​‌​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌​‌​‌‌‌‌​‍King’s In re 150 Tex. self. Potter v. Gar (1951); 244 S.W.2d 660 Now, Doctor, Okay. you. Thank ner, (Tex.Civ.App. Tyler — “ your opinions are you’ve expressed n.r.e.); Calvert, ‘No writ ref’d R. opinions you’re going to me and the to Evidence’ and Evidence’ ‘Insufficient express to me based on reasonable medi- Error”, Points 38 TEXAS L.REV. 361 cal probability? Question (1960); Garwood, “The In W. “A Yes, added) sir.” Appeal”, Evidence on TEX sufficient (1952). brief, en- AS L.REV. 803 In we con both counsel were Transport deavoring special Insurance follow clude the issues submitted were jury witnesses, respect to determine. did so the situation of the with error; parties, subject overturn them. to the and to without we cannot matter of litigation as well as witness’ inter- Aрpellant argues court that the trial est, bias, motives, preju- inclinations and refusing permit he de- erred what obtaining dices and his means of accurate scribes as a “full cross-examination of Dr. knowledge of the facts to which testifies Dunlop regarding meetings ‘informal’ with and the manner in which he uses these attorney.” defendant’s The main thrust of RAY, means. 1 R. TEXAS LAW OF EVI- Appellant’s argument is Dun- DENCE AND CRIMINAL Sec. 600 CIVIL informal, lop parte, had several ex meet- (Texas 1980). Practice 3rd ed. ings attorney in with the carrier’s Nevertheless, purpose since the chief confidential, physician-patient privileges accuracy cross-examination is to test were violated. Nеither the nor witness, credibility it is Further, Appel- attorney present. obvious that the manner cross-exami- says Dunlop lant that Dr. did not have nation and its extent must rest in the carry authorization to on such discussions. judge. sound discretion of the trial 1 R. excluded is: RAY, TEXAS LAW OF EVIDENCE CIVIL youDo a medical release from (Texas AND CRIMINAL Sec. 592 Practice Mr. Harrison to discuss his treatment 3rd ed. with Mr. Stevens? Dunlop openly was referred to “A I if I I would don’t know do not. frequency “company with some as the doc- through have to search these. don’t fact, tor” at trial. I do or not. know whether “company called the doctor” and was de- Doctor, you “Mr. I will Stevens: save company the doctor for North scribed as you I the time. don’t think have a company Star Steel and also the doctor for release. companies. Appellant hundreds of The tes- I “The Witness: haven’t seen one. requested permission tified that he had company his low see the doctor for back was seen at the Beaumont conditiоn. He just trying you I am to find out Dunlop, doctor Industrial Clinic Dr. any authority permission had or from employer. Dunlop of his Dr. recommended Mr. Harrison to do that. Appellant go to and see a Houston “A I I—” don’t recall. specialist, Ralph Dr. Mancini. Several My point ... is that had no Dunlop was exhibits demonstrated that permission writing my from client оr physician for treating as the orally to sit down with the insurance Steel, employer. North Star Harrison’s company’s this attorney and discuss judgment, case off the record. Is that correct? To a reversal of a obtain of a trial upon alleged based error “A That’s correct.” testimony, court in the exclusion of scоpe of cross-examination has Because first show that the trial must been, is, traditionally, broad and wide- was, fact, Next, ruling in error. court’s ranging perceive why we do not error was Appellant must show that testimony not this cross-examination proba cause and reasonably calculated to RAY, placed jury. 1 R. TEXAS beforе improper of an bly did cause a rendition AND CRIMI- LAW OF EVIDENCE CIVIL judgment in the case. Hernandez v. Her (Texas 3rd ed. NAL Sec. 600 Practice nandez, (Tex.Civ.App.— practice Generally, the Texas has been 1981, writ); Bristol-Myers San Antonio scope and extent of cross-examination Gonzales, 548 (Tex.Civ. 416 Co. S.W.2d open permits is wide the cross-exami- 1976), othеr App.—Corpus Christi rev’d on relevant to matter to extend nation (Tex.1978). 801 grounds, 561 S.W.2d only is one the issues. limitation of summary, we decide that relevancy relevancy concepts and the was er- exclusion of this evidence permit inquiry into court’s extended to

499 ror, point but that exclusion was not reason- error and we affirm cause, ably calculated to below. cause, improper the rendition not of an AFFIRMED. Further,

judgment in this case. we do not judge the trial abused BURGESS, Justice, concurring. excluding discretion in sound the evidence point first majority holds complained of this third ‍‌​‌‌​‌​​‌​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌​‌​‌‌‌‌​‍and last error. I was admissible. respectfully disagree. supreme Our court The conсurrence cites v. Texas Schaefer many has held on occasions that it is the Employers’ Ins. Ass’n. 612 S.W.2d 199 form, testimony, substance of the not its (Tex.1981) and Casualty Western that is determinative. v. Texas Gonzales, Schaefer Surety Company v. 518 S.W.2d Assn., Employers’Ins. 612 S.W.2d (Tex.1975). We think that we have (Tex.1981), Cas. and Sur. Co. v. Western Schaefer, supra deciding followed Gonzales, (Tex.1975). S.W.2d point Appellant. We rec- magic If there is no in the absence of the ognize point ques- this “no evidence” is a probability,” words “reasonable medical and, review, tion of law in our we consider Stodghill Employers see v. Texas Ins. only that infer- evidence reasonable Assn., 102, 105 (Tex.1979),then 582 S.W.2d therefrom, being encеs in their viewed magic there can be no when the are words light support jury most favorable present. apparent It is to this writer that We, finding or answer under attack. using magic simply course, required reject are all evidence words, was, opinion but that his as he or contrary. inferences to the admitted, nothing “guesswork cаndidly but speculation.” am constrained to con As we view Dr. testimo competent cur there because ny, probative the same had force. Western concerning effect from Dr. Mancini Casualty Surety Company, supra. Therefore, injury. the second this is some cross-examination, perceive, did di evidence frоm which the could find the expert minish the doctor’s but percent. Appellant’s point answer of 70 weight went to the given and value to be must, being point error a no evidence there with, follow, agree the same. We fore, Therefore, I be overruled. concur in Ass’n., Stodghill Emp. v. Texas Ins. reasoning. the result but not the (Tex.1979), S.W.2d 102 to the effеct that doctor, testifying expert, as an need not “magical” use the exact words of probability”, if ex

“reasonable pert’s testimony adequate and sufficient

under the total circumstances of his evi

dence to show that was the substance of WILSON, A. Cedar Crest Walter d/b/a stating. what the medical doctor was We Home, Appellant, Funeral conclude against repel the attack would survive al., FERGUSON, Appellees. et Don admissibility expert of his magic even if he had failed to use “the No. 12-86-00169-CV. prov in the

words”. We decide that it was Appeals of Court of ince to determine whether Tyler. magic simply using “the March words”, and, so, value, weight ‍‌​‌‌​‌​​‌​‌​​‌‌​‌‌‌‌‌‌​‌​‌‌‌​​‌​‌​​‌‌‌‌‌​‌​‌‌‌‌​‍even what Rehearing April Denied 1988. credibility given should to Dr. Dun- lop’s testimony. We no reversible error. Appellant’s

overrule last third and

Case Details

Case Name: Harrison v. Texas Employers Insurance Ass'n

Court Name: Court of Appeals of Texas

Date Published: Mar 10, 1988

Citation: 747 S.W.2d 494

Docket Number: 09-87-105 CV

Court Abbreviation: Tex. App.