*1 typically negligence is The determination of jury. Ray v. Farmers question
fact for the Hart, Bank (Tex.1979). one question The becomes can draw but
of law when reasonable minds id. reasonable
one conclusion. See TU was could differ as to whether
minds or it exercised reasonable
negligent whether dangers protect from the
care to children involved, light arcing in of the risk
electrical summary judg question
a fact remains and Hatley, improper.
ment is Kassen (Tex.1994); Ray, 576 S.W.2d at
609. Point two sustained.
Causation
Finally, Timmons that TU in Bil conclusively negate causation
did not establishing negligence that his
ly’s by death previous As sole cause of his death.
was the discussed, questions
ly Timmons raised negligence. regarding Causation is
fact TU’s minds could question, and reasonable fact Billy’s
differ as to the cause causes Poole, Corp. El
death. Chico (Tex.1987). Point three is sustained. reversed, summary judgment a trial.
the cause is remanded for RODRIGUEZ, Appellant,
Jesus Manuel Texas, Appellee. STATE
No. 07-95-0195-CR.
Amarillo.
Rehearing March Overruled
years Department in Texas confinement the Justice, of Criminal Institutional Division. error, point In of single appellant a sentencing the court in him tends trial erred confinement, twenty years arguing to he was to entitled be sentenced under the 1993 amendment to section 481.115 of the Health possessed Code because less than one gram possession of cocaine and such is now only jail felony.1 a We Appellant committed the offense of possession gram of less than one of cocaine 23, 1992, January on and the trial court adjudicated guilt, punishment his was as sessed, imposed, and his was sentence on report February police 1995. The of the underlying pos appellant offense shows that grams on January sessed 0.4 of cocaine Dallas, Keck, Jeffrey appellant. B. for error, point appellant 1992. In his sole of Sandlin, Michael J. Ass’t. District Attor- assessing pun now faults trial court for the Dark, ney, Attorney, Robert Ass’t. District degree felony, ishment as a second contend Vance, Dallas, Attorney, John Crim. District ing that he was entitled to the benefit of the Huttash, Prosecuting Attorney, Robert 1993 amendment of section 481.115 of the Austin, appellee. for Code, provides Health possessing which that gram cocaine of than one less C.J., REYNOLDS, Before and DODSON However, felony. appellant recognizes, QUINN, and JJ. of section 481.115 the Health Code did 1, 1994, September become effective until DODSON, Justice. appellant which was over 18 months after plea From a of pursuant nolo contendere underlying By the offense. plea bargain, appellant Jesus Manuel provisions, applies the section to of Rodriguez pleaded guilty possession to of fenses committed on and after its effective twenty-eight grams less than of cocaine. date. Wilson trial substantiating court found evidence (Tex.App . -Amarillo appellant’s guilt, honoring plea the bar- Therefore, appellant because committed the gain, fine, adju- and deferred $750 offense before the of guilt. placed dication appellant court jail felony, lowered the trial court probation on years, for four upon conditioned correctly punished appellant as a de second his proba- observance of certain enumerated gree Brady felon. tionary terms. pet. pending). . -Amarillo subsequently proceed Appellant The State moved to states that our in decision Wil adjudication (1) with guilt, citing wrong an his viola- son v. mis- because we 311.031(b) probationary tion ten conditions. At a characterized section of the Texas motion, hearing general on the appellant savings State’s as a Government Code (2) pleaded clause; allegations. true to nine of the ten we should have determined that motion, 311.031(b) hearing savings After the the trial court the clause in section probationary specific found he had violated ten condi- Code is more than the Government tions, pronounced adjudication legislation amending the his clause (3) guilt, Code; twenty and assessed his at section 481.115 the Health Safety Supp.1996). All references to section 481.115 the Health Code Annotated Code are to that section Texas Health and Justice, concurring. savings clause of we determined con of the Government Code section 311.031 Brady v. As author of amending savings clause of the flicts with the 1995, pet. pending), . —Amarillo Disagreeing appellant’s with legislation. *3 majority wholeheartedly agree with the I contentions, anal and follow our we reaffirm Yet, I write to disposition of the case. Wilson, appeals courts of ysis in as other ar illustrate the baselessness further State, Delgado 317 v. 908 have done. S.W.2d appellant makes here. gument 1995, h.); pet. no (Tex.App. Paso Cas — El State, (Tex.App. jail provisions felony punishment 911 773 taneda v. S.W.2d The state h.); Antonio, 1995, Perry pet. solely jail no v. Tex.Pen. apply to state felonies. —San 1994). State, 162, 12.35(a) Yet, § 163 902 S.W.2d Ann. Code . —Hous ref'd.); 1995, pet. by appellant also not a Dist.] ton see [1st the offense (Tex. Moreover, State, 655, 664-65 felony v. committed. Davis when App. argue not the various does — Texarkana retroactively changed the status clauses punishment Appellant also that the Thus, jail- felony. I his crime the federal and Texas assessed violated punishment re- logically fathom how cannot cruel and un- against prohibitions stitutional jail felony be used to can stricted punishment. We usual therefore, and, jail felonies address non-state cannot. must conclude that it Where, here, the defendant as grounds for re serts several constitutional separate federal appeal, he should
versal on issues, provide substantive ar
and state analysis separate ground.
gument or on each give appellant does sufficient consti state and federal
distinction between point of is multi grounds, the error
tutional State, v.
farious. Smith v. (Tex.Cr.App.1995); Heitman Texas, Appellant, The STATE (Tex.Cr.App.1991). 690-91 n. 23 S.W.2d v. Further, nothing preserved for be review severity raise the appellant failed to cause ANDERSON, Appellee. Adam punishment was assessed his sentence when 14-94-00976-CR. No. Chapman a new trial motion. [1st . —Houston Moreover, pet.). no since the Dist.] (14th Dist.). Houston statutory is within the in effect punishment of the statute underlying offense when he committed amendment, statutory and before plainly was not so dis
punishment assessed of hu as to shock the sense
proportionate cruel and un and thus constitute
mankind prohibited by the federal
usual Samuel
and state constitutions. (Tex.Cr.App.1972); see also at 664-65. Con
Davis point of error
sequently, appellant’s sole
overruled. judgment is affirmed.
Accordingly, the J., concurs.