IN THE

TENTH COURT OF APPEALS

No. 10-94-163-CR

     KENNETH DWAYNE JOHNSON,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 195th District Court

Dallas County, Texas

Trial Court # F93-44087-PN

O P I N I O N

      Appellant Johnson appeals from his conviction for aggravated robbery (enhanced by two prior felony convictions), for which he was sentenced to sixty years in the Texas Department of Criminal Justice.

      Appellant robbed Sara Roby, a Dallas school teacher, at gunpoint taking her car, money and personal property. Roby left the school at about 12:30 p.m. on July 2, 1993, and walked across the parking lot to her car. As she closed the door, a man she identified in court as Appellant forced the door open and put a gun in her side. Roby testified Appellant shouted, "Scream and you're dead, bitch," and began pulling off her watch. He took her ring, keys, purse, ripped open her blouse and hit her across the face with the gun. He kicked her out of the car and then drove away in the car. Appellant was also identified by Christopher Holland who witnessed the robbery. Appellant's fingerprints were found on Roby's car after it was recovered.

      The jury found Appellant guilty of aggravated robbery. At the punishment phase, the State called Beatrice French who testified that, in her opinion, Appellant's character for being peaceful and law abiding was bad. The jury also found both alleged felony convictions to be "true," and assessed Appellant sixty years in prison.

      Appellant appeals on one point of error: "The appellant was denied effective assistance of counsel in the punishment phase of the trial when his court-appointed counsel allowed inadmissible reputation testimony to come before the jury."

      The standard for review when ineffective assistance of counsel is alleged in the punishment phase is set out in Ex parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1989); Strickland v. Washington, 466 U.S. 688; and Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). These cases require a showing that counsel's performance was deficient by norms of the community, plus a showing that the deficiency so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result. This is judged by the totality of counsel's representation and not by isolated acts or omissions. Solis v. State, 792 S.W.2d 95, 100 (Tex. Crim. App. 1980). The court must indulge a strong presumption that the challenged action might be considered sound trial strategy. Miniel v. State, 831 S.W.2d 310, 323 (Tex. Crim. App. 1992).

      At the punishment phase, the State called Beatrice French who testified that she came in contact with Appellant on June 15, 1993. Ms. French was asked: "As a result of your contact with [Appellant] back on June 15, 1993, do you have an opinion as to his character as a peaceful and law abiding citizen?" Answer: "Yes." Question: "What is that opinion? Is his character as a peaceful and law abiding citizen good or bad in your opinion?" Answer: "Bad."

      Counsel for Appellant did not object to the introduction of the opinion stated by Ms. French, and did not cross examine her regarding the basis for her opinion. Appellant contends this renders his trial counsel ineffective.

      Tex. R. Crim. Evid. 405(a) provides: "In all cases in which evidence of character or trait of character is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. Provided however that to be qualified to testify concerning the character or trait of character of an accused, a witness must have been familiar with the reputation, or with underlying facts or information upon which the opinion is based, prior to the day of the offense." (Emphasis added).

      French testified her opinion was based on her contact with Appellant on June 15, 1993. The charged offense occurred July 2, 1993, French's testimony was admissible and trial counsel committed no error in not objecting to same. We further conclude that trial counsel did not cross-examine French because he did not want to put the details of the basis of her opinion before the jury.

      Assuming, without deciding, that the testimony of Ms. French was somehow inadmissible, trial counsel's failure to object or cross-examine on same was harmless beyond a reasonable doubt under the record in this case. Tex. R. App. P. 81(b)(2).

      Appellant's point is overruled. The judgment is affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Thomas,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 19, 1995

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ntinued therapy. Neither Dr. Rubin nor Prochera, nor any employee of Horizon saw Ms. MacDonald after she was transferred from Horizon. Ms. MacDonald died at Methodist Medical Center on October 22, 1996. The official cause of death was listed as atherosclerotic heart disease; however appellants offered evidence through their expert, Dr. Arnold Merin, that she died of “the dwindles,” a general medical debilitation that appellants contend began with improper feeding by means of the foley catheter rather than the j-tube, which lead to a fistula and a weakened condition that in turn lead to a nutritional deficiency which caused MacDonald to lose weight and ultimately die.

B. The Standard of Review

      After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; In re Mohawk Rubber Co., 982 S.W.2d 494, 497-98 (Tex. App.—Texarkana 1998, orig. proceeding). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) cmt.; Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex. App.—Austin 1998, no pet.).

      A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999, pet. denied); Moore, 981 S.W.2d at 269. We review the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no-evidence summary judgment is not proper. Moore, 981 S.W.2d at 269. Where, as here, the trial court grants summary judgment in a general order without specifying the ground or grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

      ³ however, they strongly urge us to conclude appellants failed to produce evidence that their treatment was a proximate cause of Ms. MacDonald’s death.

      To establish causation in a personal injury case, a plaintiff must prove that the conduct of the defendant caused an event and that this event caused the plaintiff to suffer compensable injuries. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995). The evidence concerning the issue of proximate cause in the instant record is very much in dispute. Dr. Merin opined that the actions of Dr. Rubin and Dr. Prochera were the proximate cause of Ms. MacDonald’s death. More specifically Merin stated that as a result of using the wrong tube for feeding, a fistula developed which extended from Ms. MacDonald’s intestine to the skin in the site of the foley catheter. This fistula developed as a result of pressure from the feedings through the foley catheter tube, which opened up a tract that allowed bacteria to set in, causing an infection. According to Dr. Merin this fistula did not become manifest until approximately seven weeks after Ms. MacDonald was transferred from Horizon. Merin further stated that Ms. MacDonald died of “the dwindles,” a generalized medical debilitation that was proximately caused by her receiving nutrition through the foley catheter. Similarly, Dr. Rubin and Dr. Prochera provided summary judgment evidence indicating it was reasonable to provide nutrition through the foley catheter and that such action was preferable to risks posed by surgical intervention to replace the j-tube. They also provided summary judgment evidence that Ms. MacDonald tolerated the foley catheter feedings well and subsequently gained weight. In contrast, Dr. Merin stated that it is a “delusion” to believe a patient might be tolerating well a feeding through the foley catheter. The fistula that developed some two months later, according to Dr. Merin, was caused by the foley catheter feeding. Dr. Rubin and Dr. Prochera presented evidence that Ms. MacDonald could have received adequate nutrition subsequent to her transfer from Horizon had her family not refused to allow her nasogastric feeding. Dr. Merin, in contrast, stated that nasogastric feeding was not a viable option because Ms. MacDonald could not have received oral feedings and would have lived in a “vegetative” state. It was not explained by Dr. Merin how his earlier testimony that nasogastric feeding was a preferable option to feeding through the foley catheter after the j-tube became dislodged, but was not a viable feeding option after Ms. MacDonald was transferred from Horizon. However, viewing the evidence in the light most favorable to the appellants, the non-movants, we find appellants produced more than a scintilla of probative evidence establishing a causal connection between the feeding through the foley catheter and Ms. MacDonald’s subsequent death. We hold that because there exists disputed issues of material fact concerning the issues of negligence and proximate cause, summary judgment was not proper as to appellants’ claims against Dr. Rubin and Dr. Prochera.

      The orders granting summary judgment in favor of Horizon, Dr. Rubin, and Dr. Prochera are reversed and the case remanded to the trial court for further proceedings consistent with this opinion.

DAVID L. RICHARDS

                                                             Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Richards (Sitting by Assignment)

Reversed and remanded

Opinion delivered and filed December 18, 2002

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[CV06]