Texas Tech University Health Sciences Center v. Apodaca

• Decision Date: 16 February 1994
• Docket Number: No. 08-93-00045-CV,08-93-00045-CV
• Parties: TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, Appellant, v. Luis J. APODACA, Appellee.
• Court: Texas Court of Appeals

Page 402

876 S.W.2d 402

TEXAS TECH UNIVERSITY HEALTH SCIENCES CENTER, Appellant, v. Luis J. APODACA, Appellee.

No. 08-93-00045-CV.

Court of Appeals of Texas El Paso.

Feb. 16, 1994.

Rehearing Overruled May 4, 1994.

Dan Morales, Atty. Gen. of Texas, Austin, Gordon Gunter, Joseph A. Pitner, Asst. Attys. Gen., of Texas, Tort Litigation Div., Austin, for appellant.

Mark Pierce, J. Morgan Broaddus, III, Atty. and Counselor at Law, El Paso, for appellee.

Before BARAJAS, C.J., and KOEHLER and LARSEN, JJ.

OPINION

BARAJAS, Chief Justice.

This is an appeal from a judgment rendered against Texas Tech Health Sciences Center, Appellant, for the sum of $250,000 plus costs, following a jury trial of a negligence case. In six points of error, Appellant attacks the judgment of the trial court. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

Luis Apodaca, Appellee, was admitted to R.E. Thomason General Hospital in El Paso, Texas on March 6, 1987 with symptoms of a stroke. He was placed under the care of Dr. Mazhar Hussein Lakho, an employee of Appellant, and was restrained in his bed with wrist restraints. Appellee remained under the care of Dr. Lakho at all relevant times. Two days after his admission into the hospital, Appellee suffered a seizure. Dr. Lakho ordered an intravenous injection of the drug Valium to stop the seizure and sedate Appellee. At the time he prescribed the injection of the drug and its administration, which was around midnight on March 8, 1987, Dr. Lakho gave no further orders or instructions regarding the observation of Appellee.

Approximately two hours after the injection of the Valium, Appellee began showing signs of being agitated with the wrist restraints. A nurse at the hospital reported this development to Dr. Lakho, who ordered by telephone the restraints removed. Again, no further orders or instructions regarding the observation of Appellee were given by Dr. Lakho. Approximately two hours after the restraints were removed, Appellee was found on the floor of his hospital room with a serious injury to his right eye. The injury resulting from the fall from his hospital bed required surgery and resulted in total blindness in that eye. The surgery was performed by Dr. Rosen, also an employee of Appellant.

Appellee brought suit against Appellant for the injuries he sustained from the fall. The jury found that the negligent use by Appellant of tangible personal property was a proximate cause of Appellee's injuries. Based on the jury's verdict, the trial court rendered judgment for Appellee, with the total amount of the judgment reduced to Appellant's limit of liability under the Texas Tort Claims Act.

II. DISCUSSION

In Point of Error No. One, Appellant asserts that the trial court erred in overruling its Batson motion based on Appellee's use of peremptory strikes as being racially motivated.

In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the United States Supreme Court held that the due process clause of the 14th Amendment is violated if prospective jurors are excluded from service in criminal trials on the basis of race or ethnicity. This holding has been extended to civil cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991).

In Edmonson, the U.S. Supreme Court emphasized that "[r]acial discrimination has no place in the courtroom, whether the proceeding is civil or criminal," and holding that "courts must entertain a challenge to a private litigant's racially discriminatory use of peremptory challenges in a civil trial." Edmonson, 500 U.S. at 629, 111 S.Ct. at 2088. Texas has affirmed the extension of Batson challenges to civil cases in Powers v. Palacios, 813 S.W.2d 489 (Tex.1991).

We consider the appropriate procedures utilized by the trial courts to implement the Edmonson and Powers decisions. In Edmonson, the United States Supreme Court adopted the Batson approach in determining whether peremptory challenges in a civil lawsuit were exercised for racially discriminatory reasons. Edmonson, 500 U.S. at 631, 111 S.Ct. at 2088. The evidentiary rules for making this determination were left to the states to develop. Id. at 631, 111 S.Ct. at 2088. We are cognizant of the fact that after the Batson decision, the Texas Code of Criminal Procedure was amended to incorporate the Batson holding. TEX.CODE CRIM.PROC.ANN. art. 35.261 (Vernon 1989). As of the date of this opinion, this Court is not aware of any similar proposal to amend the Texas Rules of Civil Procedure. Therefore, we rightfully look to the criminal jurisprudence of our state for guidance, and will apply those principles to civil litigation. See Lott v. City of Fort Worth, 840 S.W.2d 146 (Tex.App.--Fort Worth 1992, no writ); Pierson v. Noon, 814 S.W.2d 506, 507-08 (Tex.App.--Houston [14th Dist.] 1991, writ denied).

Batson and its progeny require that the complaining party establish a prima facie case of discrimination. A prima facie case is established by a suspect pattern of strikes. Lott v. City of Fort Worth, 840 S.W.2d at 150. In furthering that goal, movant must present evidence that gives rise to a rebuttable presumption of racial discrimination by the striking party in the exercise of its peremptory challenges. If the complaining party carries that burden, then the burden shifts to the striking party to rebut the presumption by a racially neutral explanation for each peremptory challenge exercised against a minority venireperson. Batson, 476 U.S. at 97, 106 S.Ct. at 1723; Keeton v. State, 749 S.W.2d 861, 871 n. 1 (Tex.Crim.App.1988); Lott v. City of Fort Worth, 840 S.W.2d at 150.

Initially, we note that it is incumbent upon the movant, if he is to be successful, to provide a record illustrating that the trial judge's findings are clearly erroneous. See Williams v. State, 804 S.W.2d 95, 101 (Tex.Crim.App.1991), cert. denied, 501 U.S. 1239, 111 S.Ct. 2875, 115 L.Ed.2d 1038 (1991); see also Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992), cert. denied, 506 U.S. 905, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992); Wyle v. State, 836 S.W.2d 796, 797 (Tex.App.--El Paso 1992, no pet.). The trial court's findings regarding whether a prima facie showing has been made are entitled to "great deference" and will not be disturbed on appeal unless clearly erroneous. Hernandez v. New York, 500 U.S. 352, 363, 111 S.Ct. 1859, 1868, 114 L.Ed.2d 395, 408-09 (1991); Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (opin. on reh'g). In the case before us, the trial court overruled the Appellant's objection without reducing his findings of fact and conclusions of law to writing or stating them on the record. In the criminal context, such a ruling has been held to be an implied finding that none of the peremptory challenges at issue were exercised on the basis of the venirepersons' race. Martinez v. State, 824 S.W.2d 724, 726 (Tex.App.--Fort Worth 1992, pet. ref'd.); see also Lott v. City of Fort Worth, 840 S.W.2d at 150. We so find here.

In order to challenge possible discriminatory selection of a venire, the movant must make a prima facie showing that:

(1) he/she is a member of a cognizable racial group;

(2) that opposing counsel has exercised peremptory challenges to remove from the venire members of a minority group ¹; and

(3) these facts, and any other relevant circumstances, raise an inference that opposing counsel excluded the venirepersons from the venire because of their race.

Batson, 476 U.S. at 96, 106 S.Ct. at 1722; see also Henry v. State, 729 S.W.2d 732, 734 (Tex.Crim.App.1987). A prima facie case represents the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true. Tompkins v. State, 774 S.W.2d 195, 201 (Tex.Crim.App.1987), cert. granted, 486 U.S. 1053, 108 S.Ct. 2818, 100 L.Ed.2d 919 (1988), judgment aff'd per curiam, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989), reh'g denied, 492 U.S. 933, 110 S.Ct. 16, 106 L.Ed.2d 630 (1989); Rodriguez v. State, 819 S.W.2d 920, 926 (Tex.App.--Houston [14th Dist.] 1991, no pet.). The burden of establishing a prima facie case is on the movant. ² See Tennard v. State, 802 S.W.2d 678, 680 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1077 (1991); Bean v. State, 816 S.W.2d 115, 117 (Tex.App.--Houston [14th Dist.] 1991, no pet.). Once a prima facie case is established, the movant is entitled to an adversarial hearing in order to challenge opposing counsel's possible discriminatory selection of a venire. ³ Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 87-88; Aguilar v. State, 826 S.W.2d 760, 761 (Tex.App.--Fort Worth 1992, pet. ref'd); see also TEX.CODE CRIM.PROC.ANN. art. 35.261. On the other hand, if the movant fails to establish a prima facie case, the trial court can safely deny the movant's objections that are premised on Batson. ⁴ Should a hearing be held, the burden is on opposing counsel to articulate racially neutral reasons for the peremptory strikes at issue. Dewberry v. State, 776 S.W.2d 589, 590 n. 1 (Tex.Crim.App.1989); Batson, 476 U.S. at 97, 106 S.Ct. at 1723. Once opposing counsel has asserted its racially-neutral explanation for excluding the veniremember, the burden of persuasion rests on the movant to prove by a preponderance of the evidence the invalidity of that explanation. Mock v. State, 848 S.W.2d 215, 226 (Tex.App.--El Paso 1992, pet. ref'd) citing Salazar v. State, 818 S.W.2d 405, 409 (Tex.Crim.App.1991).

We review the record in its entirety by considering the voir dire process including the racial constitution of the venire, where apparent on the record, and the counsel's neutral explanations, where applicable, to determine if the trial court's ruling was clearly erroneous. Whitsey v. State, 796 S.W.2d at 726.

In the instant case, Appellant contends that of the first 27 veniremembers, 6 individuals were of Anglo origin and 1 African-American. Appellant's sole...