Larry MASON, Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee.
No. 01-93-00169-CV.
Court of Appeals of Texas, Houston (1st Dist.).
Dec. 8, 1994.
Rehearing Overruled Jan. 5, 1995.
115
Id. (Citations omitted).
In the case before us, the record is silent regarding the failure of appellant‘s trial counsel to question the venire about antihomosexual sentiment. In light of that record, we cannot disregard the strong presumption mandated by Strickland in favor of a determination of sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. We need not speculate about what that trial strategy might have been.
We recognize that only in a rare and egregious circumstance would a record on direct appeal suffice to rebut the presumption of sound trial strategy. We agree with Justice Maloney‘s concurrence in Jackson, 877 S.W.2d at 772, in which he stated that “as a general rule one should not raise an issue of ineffective assistance of counsel on direct appeal.” He wrote that, as a general proposition, a trial record is insufficient to address claims of ineffective assistance of counsel in light of the “strong presumption that (trial) counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. An appellate court reviews a trial court record, which is directed to the issues of guilt or innocence and punishment with an eye toward errors allegedly committed in relation to those issues. Performance of counsel cannot generally be adequately examined based on a trial court record. In order to properly evaluate an ineffective assistance claim, a court needs to examine a record focused specifically on the conduct of trial counsel. Such a record is best developed in the context of a hearing on application for writ of habeas corpus or motion for new trial. Judge Maloney cited Ex parte Menchaca, 854 S.W.2d 128, 130 (Tex.Crim.App.1993) as a paradigm of how such a record should be developed.
Even if this record rebutted the Strickland presumption of sound trial strategy, appellant has not demonstrated that trial counsel‘s performance prejudiced the defense. Therefore, she has not met the second prong of the Strickland test.
We overrule point of error one.
We affirm the judgment of the trial court.
Harding J. Rome/Christiana Dijkman, Houston, for appellee.
Before O‘CONNOR, HEDGES and DUGGAN, JJ.
OPINION
DUGGAN, Justice.
Appellant, Larry Mason, appeals from a take-nothing judgment. Mason asserts that the trial court erred by refusing to submit proper jury instructions, and that the jury‘s finding on negligence is not supported by the evidence. We affirm.
Mason sued his employer, Southern Pacific Transportation Company (Southern Pacific), under the Federal Employers’ Liability Act (FELA),
Point of error one
In point of error one, Mason contends that the trial court improperly instructed the jury in its charge on the duty to inspect the job site. The jury was given the following instruction:
The Plaintiff, Mr. Mason, was also under a duty, constant and continuing to exercise ordinary care to inform himself of the proper methods of doing his work, to inform himself of his surroundings, and of any condition which might create any danger or hazard to him and to use such care to avoid injury from it.
Although the jury was given a general definition of negligence, the jury was not given any specific definition or instruction regarding Southern Pacific‘s duty similar to the instruction regarding Mason‘s duty. The record shows that Mason did not submit an
[Mason‘s attorney]: Plaintiff objects to Instruction No. 1 as contained in the Court‘s charge in that the imposition contained in Instruction No. 1 of the duty constant and continuing to exercise ordinary care to inform himself of his surroundings and of any condition which might create any danger or hazard to him and to use such care to avoid injury from it, ... is an instruction which imposes a unilateral duty upon Mr. Mason where the federal law is, in fact, that the duty is mutual, that the Southern Pacific Company has a like duty to exercise care and that that duty, likewise, is constant, continuing in connection with the same matters that are stated in Instruction No. 1. And to instruct the jury that Mr. Mason has such a duty without also instructing the jury at a very minimum that the Southern Pacific Company has such a duty is, we believe, indeed error.
In his objection, Mason stated that the duty of care under FELA is mutual between an employer and employee, and that to instruct the jury on Mason‘s duty but not Southern Pacific‘s duty, was error.
A party is required to request and tender to the trial court a substantially correct instruction in writing when the trial court omits the instruction from the jury charge.
Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.
(Emphasis added). Although Mason made an objection to the trial court that the charge omitted an instruction on Southern Pacific‘s duty of care, he did not comply with
The dissent relies on State Dept. of Highways & Public Transportation v. Payne, 838 S.W.2d 235 (Tex.1992) to support its argument that Mason‘s objection was sufficient to preserve error. In Payne, the State submitted in writing a question on an element omitted from the plaintiff‘s jury question. Id. at 239. The plaintiff argued that the State had waived its jury charge complaint because it was required to object to the omitted element rather than tender a written question to the trial court. The supreme court held that the written request by the State, which did not have the burden of proof, was sufficient to serve as an objection. Id. at 240.
However, the holding in Payne does not work in reverse. Mason, as the complaining party, had an obligation under
The dissent also relies on Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.1994). In Spencer, the supreme court held that while a jury question was defective, it was not immaterial; therefore, the trial court erred in disregarding the jury‘s answer. The supreme court found that Eagle Star properly objected to the defective question and was entitled to a new trial. Id. Spencer is not relevant to the facts of this case.
We overrule point of error one.
Point of error two
In point of error two, Mason contends that the trial court erroneously refused his instruction to the jury that an employee does not assume the risk of his employment under FELA. Mason objected to the trial court‘s failure to include in the charge an instruction on assumption of the risk and dictated into the record such an instruction. However, dictating the instruction into the record was insufficient to preserve error on appeal. Woods, 693 S.W.2d at 379; Hartnett v. Hampton Inns, Inc., 870 S.W.2d 162, 165 (Tex.App.-San Antonio 1993, writ denied); James v. Hill, 753 S.W.2d 839, 840 (Tex.App.-Fort Worth 1988, no writ). Mason did not submit a written instruction to the trial court and therefore, did not comply with
We overrule point of error two.
Point of error three
In point of error three, Mason complains that there was no evidence or insufficient evidence for the jury to find him 100 percent negligent and therefore, to deny him a damage award.
We must limit our review to the legal sufficiency of the evidence. Any review of the factual insufficiency of the jury verdict on liability is precluded under FELA. Rogers v. Missouri Pac. R.R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Texas and Pac. Ry. v. Roberts, 481 S.W.2d 798, 800 (Tex.1972). In Roberts, the supreme court held that “a jury‘s verdict on liability issues in F.E.L.A. cases, whether for the employer or employee, cannot be reviewed on appeal using local ‘weight and sufficiency standards.‘” 481 S.W.2d at 801. Therefore, we have no authority to decide whether the jury finding on liability was against the great weight and preponderance of the evidence.
We find Mason‘s challenge to the legal sufficiency of the evidence to be without merit. Mason argues that the jury found him 100 percent negligent, which, therefore, deprived him of a damage award. However, Mason misrepresents the jury verdict regarding negligence.
The jury was asked whether the negligence, if any, of Southern Pacific or Mason caused Mason‘s back injury. The jury was then asked to assign percentages of negligence to Southern Pacific and Mason if both were negligent. The jury answered that neither Southern Pacific nor Mason were negligent and did not answer the question regarding percentages of negligence. Because the jury did not affirmatively answer the negligence question, it did not answer the damage question that followed. Therefore, the jury concluded that Mason‘s injury, if any, was not caused by his or Southern Pacific‘s negligence.
The jury did not find Mason negligent. Therefore, no error asserted by Mason under this point exists.
We overrule point of error three.
We affirm the trial court‘s judgment.
O‘CONNOR, J., dissenting.
OLIVER-PARROTT, C.J., requested a vote to determine if the case should be heard en banc, pursuant to
DUGGAN, COHEN, HUTSON-DUNN, MIRABAL, and HEDGES, JJ., voted against en banc consideration. WILSON, J., did not participate.
OLIVER-PARROTT, C.J., and O‘CONNOR and ANDELL, JJ., dissented from the denial of en banc consideration and OLIVER-PARROTT, C.J., joins O‘CONNOR‘S, J., dissent.
Instead of reaching the merits of Mason‘s objections to the charge, the majority holds he waived his objections. I disagree. In State Dept. of Highways & Public Transportation v. Payne, 838 S.W.2d 235, 241 (Tex.1992), the Supreme Court said:
There should be but one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.
By its opinion in Payne, the Supreme Court indicated a major policy shift. The Court said:
The flaws in our charge procedures stem partly from the rules governing those procedures and partly from caselaw applying those rules. Last year we asked a special task force to recommend changes in the rules to simplify charge procedures, and amendment are under consideration. Rules changes must await the completion of that process; we do not review our rules by opinion.... We can, however, begin to reduce the complexity that caselaw has contributed to charge procedures.
Instruction on duty of care
In point of error one, the majority holds that Mason did not preserve the error in the charge. Mason‘s attorney could not have made his objection any clearer. He argued that the jury was not given any specific definition or instruction regarding Southern Pacific‘s duty similar to one given regarding Mason‘s duty. In his objection, Mason stated that the duty of care under FELA is mutual between an employer and employee, and that to instruct the jury on Mason‘s duty but not Southern Pacific‘s duty, was error.
The error in Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.1994), was similar to the one here. In Spencer, Mr. Spencer complained on appeal that the question submitted to the jury did not specify for which actions Eagle Star could be liable. Id. In that case, the Supreme Court said “an objection is sufficient to preserve error in a defective instruction. A request of substantially correct language is not required.” Following Spencer, we should reverse for retrial because the instruction accompanying the question was defective and Mason objected to it.
Today‘s opinion increases the complexity that caselaw has contributed to the charge procedures. I would sustain point of error one.
OLIVER-PARROTT, C.J., joins this dissenting opinion.