Opinion

Opinion issued July 1,

2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00109-CV

———————————

JOHNNY

GONZALES AND ROBERT MILLER , APPELLANTS

V.

PEARLINE KELLEY, INDIVIDUALLY

AND AS REPRESENTATIVE OF THE ESTATE OF DARYL DWAYNE KELLEY, DECEASED , APPELLEE

On Appeal from the 334th District

Court

Harris County, Texas

Trial Court Case No. 2008-02201

MEMORANDUM OPINION

Appellants,

Johnny Gonzales and Robert Miller, appeal the trial court’s interlocutory order

denying their motion for summary judgment based on official immunity. See Tex. Civ. Prac. & Rem. Code Ann . §

51.014(a)(5) (Vernon 2008). Because appellants

carried their burden of proving their affirmative defense of official immunity

as a matter of law and appellee, Pearline Kelley, individually and as representative

of the estate of Daryl Dwayne Kelley, deceased, failed to meet her

corresponding summary-judgment burden, we reverse and render judgment that

appellee take nothing by her claims against appellants.

Background

The

underlying suit arises from the death of 29-year-old Daryl Dwayne Kelley (“Daryl”)

on January 13, 2006. At the time of his

death, Daryl was incarcerated in the Harris County Jail and suffered from

bipolar disorder.

Daryl had been arrested on December

30, 2005 for unauthorized use of a motor vehicle and booked into the Harris

County Jail. On January 12, 2006, Daryl had

not eaten or taken his medication for two days.

The Harris County Sherriff’s deputies, who work as correctional officers

at the jail, also had observed Daryl banging his head on the door and on the walls

of his cell. A determination was made

that Daryl should be moved to the jail clinic for an evaluation.

Due to the inmate’s history of mental

illness and his large size—Daryl weighed approximately 300 pounds—a team of

four deputies was assembled to move Daryl to the clinic. The move proved to be difficult. When the team entered his cell, Daryl struck

one of the deputies and charged out of the cell. The deputies grabbed Daryl and struggled with

him. Daryl continued to resist aggressively

and struggle with the deputies. The

deputies ultimately placed leg shackles and handcuffs on Daryl. They transported him on a stretcher to the

clinic. Daryl stayed overnight in the

jail infirmary in a padded cell.

The next day, January 13, 2006, a

determination was made that Daryl should be transferred to the Mental Health

and Mental Retardation Assessment (“MHMRA”) unit for observation. Appellant, Johnny Gonzales, a sergeant with

the Harris County Sherriff’s Office, was assigned to supervise the team that

would move Daryl. Gonzales’s superior

advised him that Daryl had been difficult to move the previous day.

Gonzales

assembled an emergency response team of five deputies to assist in Daryl’s

transfer. Among the team was appellant,

Robert Miller, a deputy with the Harris County Sherriff’s Office. Gonzales assigned to Miller the

responsibility of using a taser device if necessary to subdue Daryl during the

cell transfer. No other team member

carried a taser during the transfer.

At approximately 2:22

p.m., the team lined up outside Daryl’s cell.

Gonzales ordered Daryl to turn around and lie face down. Daryl did not comply. Instead, Daryl took an aggressive stance, shouted

obscenities, and said, “Come on and kill me.”

As Gonzales opened the cell door, Miller pointed the taser at Daryl to

encourage him to comply with Gonzales’s commands. Daryl raised his hands in a combative manner,

and Miller deployed the taser. The taser

probes did not make good contact with Daryl’s body, and Daryl continued to

resist the team’s efforts to subdue him.

Miller then disengaged the probe cartridge

from the taser to enable him to use the device in the “drive stun” mode. In this mode, the taser operator discharges

the device directly against the body of the subject rather than shooting the taser’s

probe projectiles into the subject’s body.

After the

initial taser deployment, Daryl continued to struggle with the deputies, and Miller

“drive stunned” Daryl two times with the taser.

The deputies restrained Daryl with handcuffs and leg irons and placed

him on a gurney. As the deputies

transported him, Daryl continued to struggle.

Another

team member, Deputy Hazeslip, rode on top of the gurney to secure Daryl’s legs

during the transport. Daryl continued to

resist and nearly threw Deputy Hazeslip from the gurney. Deputy Miller again drive stunned Daryl with

the taser.

Sergeant

Gonzales told Deputy Miller to give the taser to another team member, Deputy

Doyle, who was positioned differently than Deputy Miller relative to Daryl. Deputy Doyle also deployed the taser. Once they arrived at the MHMRA unit, a nurse injected

Daryl with Benadryl, Haldol, and Ativan.

The gurney on

which the deputies were transporting Daryl would not fit through the door of the

cellblock on the MHMRA unit. To get

through the door, the deputies lifted the mattress from the gurney with Daryl

on it. Daryl continued to struggle. Gonzales obtained the taser from Deputy Doyle

and discharged it twice in the drive stun mode into Daryl’s shoulder.

The team ultimately placed Daryl in

his new cell. A short time later, a nurse

assessed Daryl’s medical condition and found that his pulse was thready. Daryl was transported to the hospital where he

died at 4:16 p.m.

An autopsy

revealed Daryl’s cause of death to be “psychotic delirium associated with

hypertensive cardiovascular disease.”

The medical examiner found the manner of death to be “natural.”

Daryl’s

mother, Pearline Kelley (“Ms. Kelley”), sued Sergeant Gonzales and Deputy

Miller for civil assault. Ms. Kelly

alleges that the deputies used “excessive force, namely the multiple shocks . .

. with the taser gun,” which caused her son’s dea t h. Ms. Kelley also sued Harris County and Taser,

Inc. for various causes of action.

Sergeant

Gonzales and Deputy Miller (“appellants”) answered and filed a motion for

summary judgment. Appellants asserted

that they were entitled to summary judgment on Ms. Kelley’s assault claim based

on the affirmative defense of official immunity. To support summary judgment, Sergeant

Gonzales and Deputy Miller each offered his own affidavit.

Ms. Kelley responded

by asserting that each appellant had not acted in good faith—a necessary

element of official immunity—when he had tasered her son. In support of her response, Ms. Kelley

offered the affidavits of three jail inmates. The inmates had witnessed Daryl’s first

transfer from his cell to the infirmary on January 12, 2006, the day before the

incident made the basis of this suit. Ms.

Kelley’s summary judgment evidence also included the affidavit of Otis Ricks,

an employee of MHMRA, who had been present when the deputies brought Daryl to

the MHMRA unit on January 13, 2006.

The trial

court denied appellants’ motion for summary judgment. Appellants filed this interlocutory appeal to

challenge the trial court’s ruling. [1] Appellants contend in three issues that the

trial court erred when it denied their motion for summary judgment based on

official immunity.

Summary

Judgment and Official Immunity

A. Governing

Legal Principles

A movant

seeking traditional summary judgment on an affirmative defense has the initial

burden of establishing entitlement to judgment as a matter of law by

conclusively establishing each element of his affirmative defense. See Chau

v. Riddle , 254 S.W.3d 453, 455 (Tex. 2008); see Tex. R. Civ. P.

166a(b), (c). A matter is conclusively

established if reasonable people could not differ as to the conclusion to be

drawn from the evidence. See City of Keller v. Wilson , 168 S.W.3d

802, 816 (Tex. 2005).

If the

movant meets his burden, the burden shifts to the nonmovant to raise a genuine

issue of material fact precluding summary judgment. See Centeq

Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of fact

if reasonable and fair-minded jurors could differ in their conclusions in light

of all of the summary-judgment evidence. Goodyear

Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007).

On appeal,

we review de novo a trial court’s summary-judgment ruling. See Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848

(Tex. 2009). In our review, we consider

all the evidence in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not. See Mack Trucks, Inc. v. Tamez , 206 S.W.3d

572, 582 (Tex. 2006).

Official

immunity under common law is based on the necessity for public servants “to act

in the public interest with confidence and without the hesitation that could

arise from having their judgment continually questioned by extended

litigation.” Ballantyne v. Champion Builders, Inc ., 144 S.W.3d 417, 424 (Tex. 2004).

Official immunity is an affirmative defense

that shields government employees from personal liability for the employee’s

performance (1) of discretionary duties, (2) within the scope of the employee’s

authority, (3) undertaken in good faith. See

Univ. of Houston v. Clark , 38 S.W.3d 578 , 580–81 (Tex. 2000); City of Lancaster v. Chambers , 883

S.W.2d 650, 653 (Tex. 1994). To obtain

summary judgment on the basis of official immunity, the government employee

must prove conclusively each of these elements. Clark ,

38 S.W.3d at 580 . When determining

whether the summary-judgment proof conclusively establishes an

official-immunity defense, we must consider the existence of disputed facts

material to these elements. See Telthorster v. Tennell , 92 S.W.3d

457, 461 (Tex. 2002).

In this case, the parties do not dispute that each

appellant performed a discretionary duty within the scope of his authority. Instead, the parties contest whether each appellant

acted in good faith in his use of force against Daryl, more particularly, in his

use of the taser device against Daryl.

To determine whether a public official acted in

good faith, we determine whether a reasonably prudent official, under the same

or similar circumstances, could have believed that his conduct was justified

based on the information he possessed when the conduct occurred. Ballantyne ,

144 S.W.3d at 426 ; Telthorster v. Tennell ,

92 S.W.3d at 465 . The standard of good

faith as an element of official immunity is not a test of carelessness or

negligence, or a measure of an official’s motivation. Ballantyne ,

144 S.W.3d at 426 . We measure good faith

in official immunity cases against a standard of objective reasonableness,

without regard to the official’s subjective state of mind. See id.

The official need not prove that it would have

been unreasonable to take different action, nor that all reasonably prudent

officials would have acted as he did. See Telthorster , 92 S.W.3d at 465 . The good faith test is not what a reasonable

person would have done, rather it is

what a reasonable official could have

believed. See Ballantyne , 144

S.W.3d at 426 ; Telthorster , 92 S.W.3d

at 465 . In other words, an official must prove

only that a reasonably prudent officer, under similar circumstances, might have

reached the same decision . Telthorster , 92 S.W.3d at 465 .

Thus, to be

entitled to summary judgment, an official must conclusively show that a

reasonably prudent official might have believed the action taken was

appropriate. See Perry v. Greanias , 95 S.W.3d 683, 697 (Tex. App.—Houston [1st

Dist.] 2002, pet. denied). Once an official

meets this burden, to defeat summary judgment, the plaintiff must offer

evidence to show that no official in

the defendant’s position could have believed the facts justified his conduct. See Telthorster ,

92 S.W.3d at 465 ; Perry , 95 S.W.3d at

697 .

B. Good

Faith in This Case

1. The Officers’ Proof

We first must examine the summary

judgment proof to determine whether Sergeant Gonzales and Deputy Miller conclusively

established that a reasonably prudent officer, under the same or similar

circumstances, could have believed that his use of force, namely the use of the

taser device, was justified. To show

good faith, Sergeant Gonzales and Deputy Miller each testified by affidavit in

support of summary judgment. The officers

recounted the events surrounding the transfer of Daryl from the infirmary to

the MHMRA unit on January 13, 2006.

Each

officer indicated in his affidavit that he had been made aware that Daryl had a

history of being aggressive and uncooperative with staff. Sergeant Gonzales testified that, when the

team arrived at the cell, he ordered Daryl to turn around and lie face down. Daryl refused and became “verbally aggressive,”

stating, “What the fuck is this?” and “Come on and kill me.” Sergeant Gonzales again ordered Daryl to turn

around and lie down, but he refused. When

the team entered his cell, Daryl “raised his hands” in a combative manner, and

Deputy Miller then deployed the taser.

Deputy

Miller similarly testified that Daryl would not comply with Sergeant Gonzales’s

repeated orders to turn around and lie down.

Instead, Daryl “took an aggressive stance as the door was opening.” Deputy Miller testified that, when Daryl

“raised his hands,” he had to determine how to respond. Deputy Miller responded by deploying the

taser. Deputy Miller described how Daryl

had turned as he was deploying the taser and how Daryl had then fallen in the

cell. Both officers testified that the

taser probes had not made good contact with Daryl’s body.

With regard to his further use of the

taser, Deputy Miller offered the following testimony:

All team members had difficulty physically securing

Mr. Kelley. Mr. Kelley became extremely

aggressive and violent while the Team attempted to secure him. I had disengaged the cartridge from the Taser

in order to use the drive stun method and not “tase” any of the team members

who were on the wires. Mr. Kelley

displayed such strength that he began to lift members of the Team off the floor

during the struggle. Again, I had to use

my discretion to determine the response to be made to Mr. Kelley’s

combativeness.

I took up a position near

Mr. Kelley’s left shoulder area and deployed the Taser in the drive stun mode

to Mr. Kelley’s left shoulder blade. The

purpose of the “drive stun” mode was to obtain Mr. Kelley’s compliance. Mr. Kelley seemed to calm down long enough for

the team leader, Deputy Tullos, to ask if all team members were secure, meaning

that they were able to control the particular body part of Mr. Kelley to which

they were assigned. However, after each

member of the team had acknowledged that Mr. Kelley was under control, he

became aggressive again by pushing his legs out and thrashing his head from left

to right. Mr. Kelley began yelling

loudly and continuing to resist.

I moved into a different

position beside Mr. Kelley’s right leg using my discretion to determine the

response to be made to Mr. Kelley. I

deployed the Taser system in drive stun mode to Mr. Kelley’s right buttock area

to gain compliance. Mr. Kelley appeared

to temporarily stop the resistance. At

that time, I assisted Deputy Hazeslip in securing Mr. Kelley’s legs by placing

leg restraints on him.

. . . .

Deputy Hazeslip rode on the

top of the gurney, securing both Mr. Kelley’s legs while in transit. As soon as the Team moved around the corner of

the hallway, Mr. Kelley became aggressive by trying to resist. Mr. Kelley’s resistance moved Deputy Hazeslip backwards

and he was almost thrown off the gurney. Again using my discretion to determine the response

to be made to Mr. Kelley’s aggression, I deployed the Taser system by drive

stunning Mr. Kelley’s right buttock. The

purpose of the drive stun was to gain Mr. Kelley’s compliance. I then supported Deputy Hazeslip by holding

on to his belt and the back of his vest. Once Mr. Kelley seemed to take a breath and

calm down. I released my hold on Deputy

Hazeslip.

Sergeant

Gonzales offered the following testimony regarding the events surrounding

Deputy Miller’s use of the taser and his own use of the taser:

After he deployed the Taser,

Deputy Miller entered Mr. Kelley’s cell and tripped as he went in. The rest of the Team continued into the cell,

and attempted to restrain Mr. Kelley, who was violently resisting the Taser and

the use of physical control tactics by the Team. In other words, Mr. Kelley was violently

resisting the officers’ attempts to bring him under control physically so he

could be transported. Deputy Miller

disengaged the Taser cartridge from the Taser and attempted to apply a drive

stun to Mr. Kelley. A drive stun is

applied directly to the subject’s body, without the use of the Taser probes. This is a technique used to bring a subject under

control. The other members of the Team

were struggling with Mr. Kelley and Deputy Miller was unable to apply the drive

stun immediately. Deputy Miller was finally able to move in and apply

approximately three drive stuns in short durations after the initial deployment

of the Taser probe. Mr. Kelley continued

to violently resist the Team, at one point kicking two Team members off him as

they attempted to physically subdue and secure him. The Team continued to use proper pressure

point and control tactics to secure Mr. Kelley, and ultimately, Mr. Kelley was

secured after a few minutes. The Team

sounded off; indicating that all members had control of their assigned body parts.

Once all Team members

sounded off, the restraints were to be applied. I noticed several members were having

difficulty applying the handcuffs at which time I gave the order to double

handcuff Mr. Kelley. A second pair of

handcuffs was applied and secured to each other. Giving the order to double handcuff Mr.

Kelley was within the scope of my authority as a sergeant and I exercised my

discretion to issue this order.

A second pair of handcuffs

was applied, and secured to each other. After Mr. Kelley was properly secured, the

Team lined him and placed him on a stretcher. Mr. Kelley continued to struggle

as the Team lifted him, almost causing the Team to drop him.

After Mr. Kelley was placed

on the stretcher, Deputy Hazeslip had to climb on the stretcher and secure Mr.

Kelley’s legs. Mr. Kelley started to

resist once again outside of the cell, and the Team stopped the stretcher and

applied pressure point control tactics as I attempted to calm Mr. Kelley down.

. . . .

Once on the second floor,

the Team had to stop outside of 2C1 for another nurse to administer an

injection of Benadryl, Haldol and Ativan. After the injection was given, Mr. Kelley told

the nurse “Thank you” and the Team was cleared to move him into his new cell assignment.

The stretcher [would] not fit into the

cellblock, so I ordered the Team to use the mattress to lift Mr. Kelley.

As the Team attempted to

lift the mattress and Mr. Kelley, he became violent and started to struggle

with the Team. I secured the Taser from

Deputy Doyle, who had previously secured it from Deputy Miller. I applied two drive stuns in short duration to

Mr. Kelley’s upper left shoulder area. These

drive stuns had little effect on his violent actions, as he continued to struggle.

I exercised my discretion in determining

to utilize a drive stun against Mr. Kelley and applying the drive stun was

within the scope of my authority.

Both

officers further testified that Daryl continued to struggle as the team arrived

at the new cell. According to Deputy

Miller, Daryl was “extremely resistive,” using his legs to throw Deputy

Hazeslip from the stretcher. Deputy

Miller testified that he intervened and attempted to bend Daryl’s legs back

into position by delivering “several hammer fist strikes” to Daryl’s

hamstrings. Despite these efforts, Daryl

“overpowered” Deputy Miller. Similarly,

Sergeant Gonzales testified that Daryl continued to resist and “kick[ed] off

two deputies,” despite being shackled. Each

officer also testified that once inside the cell, Daryl continued to struggle

until the restraints were removed.

Relevant to

the good-faith analysis, appellant’s summary-judgment evidence showed:

·

Sergeant Gonzales and Deputy Miller knew that Daryl had a recent history

of aggression and combativeness toward staff.

·

Daryl showed immediate aggression and resistance toward the team, which

continued throughout the entire transfer;

·

Daryl was a large 29-year-old man, who demonstrated great strength

against the team;

·

The team had difficulty controlling Daryl throughout the transfer;

·

Daryl was able to offer significant resistance to the team despite being

handcuffed and shackled;

·

Each time the taser was deployed, it was directly and immediately responsive

to an aggressive or unruly behavior by Daryl;

·

Deputy Miller’s deployment of the taser resulted in momentary compliance

by Daryl, which permitted the team to physically secure him;

·

After each taser deployment, Daryl sufficiently recovered to physically

resist the team.

In sum, the

officers’ summary-judgment evidence showed that Daryl was a physically large

and strong man with a recent history of aggressive behavior toward staff during

a cell transfer. The evidence also

showed that the officers used the device in response to specific aggressive

acts by Daryl. The testimony showed that

each taser deployment by Deputy Miller resulted in momentary compliance by

Daryl that allowed the team to secure him.

Throughout the transfer, the team had difficulty maintaining control of

Daryl, whose conduct was described by the officers as violent, aggressive, and

combative. Despite being handcuffed and

shackled, Daryl offered significant resistance to the team. During the transfer, Daryl did not exhibit

outward signs of harm from being tasered, as shown by his continued resistance

after each taser deployment.

Based on

the evidence submitted, we conclude that Sergeant Gonzales and Deputy Miller conclusively

established that a reasonably prudent officer, under the same or similar

circumstances, could have believed that his use of force, namely the use of the

taser device, was justified. [2] See Telthorster , 92 S.W.3d

at 465 . We hold that Sergeant Gonzales

and Deputy Miller met their summary-judgment burden to conclusively establish

good faith. See Hidalgo County v.

Gonzalez , 128 S.W.3d 788, 795 (Tex. App.—Corpus Christi 2004, no pet.)

(holding that sheriff deputy proved good faith for official immunity purposes in

summary judgment proceeding involving claim that deputy injured plaintiff’s

wrist with handcuffs when deputy transferred plaintiff to mental health

facility); Watt v. Tex. Dept. of Criminal

Justice v. Watt , 949 S.W.2d 561, 566 (Tex. App.—Waco 1997, no writ) (reversing

denial of summary judgment sought on official immunity ground because prison

employees proved that they acted in good faith in using force against inmate in

cell transfer that resulted in inmate’s death).

2. Ms.

Kelley’s Proof

To

controvert appellants’ proof, Ms. Kelley had to show that no reasonable officer in Sergeant Gonzales’s and Deputy Miller’s position

could have believed that the circumstances justified his conduct. See Telthorster , 92 S.W.3d at 466–67. Ms. Kelley failed to meet this burden.

In support of her response to

appellants’ motion for summary judgment, Ms. Kelley offered the affidavit

testimony of Otis Ricks, an MHMRA employee.

Ricks saw the team arrive at the mental health unit with Daryl on January

13, 2006. Ricks testified that he

observed one of the team members use his fist to strike Daryl six times in the

ribs. In her response, Ms. Kelley

contends that appellants’ summary-judgment evidence failed to “explain[] the

need to deliver closed fist body blows to Kelley.” Ricks, however, did not identify either

Sergeant Gonzales or Deputy Miller as the officer who punched Daryl. Ricks testified that he saw six officers

escorting Daryl. Five of the six officers

wore helmets with visors. Ricks stated

that the visors made it difficult to see the faces of the officers.

Ms. Kelley

also offered the affidavit testimony of three inmates of the Harris County Jail. Each inmate testified that he had witnessed a

group of deputies physically and verbally abusing Daryl on January 12, 2006,

the day that Daryl was transferred to the infirmary and the day before the

incident made the basis of this suit. However,

none of the inmates identified Sergeant Gonzales or Deputy Miller as a participant

in the abuse. To the contrary, the

record reflects that neither Sergeant Gonzales nor Deputy Miller was among the

team members who conducted Daryl’s transfer to the infirmary on January 12,

2006.

In her

summary-judgment response, Ms. Kelley also offers the following argument:

The record demonstrates that HCSO Deputy Miller

tasered Kelly four separate times during the same incident for a total of 19

seconds, during the same incident, HCSO Deputy Gonzales tasered Kelley twice

for a total of 7 seconds. In all, Kelley

was tasered for seven times for a total at 31 seconds during the same episode. The multiple Taser deployment on Kelley was

clearly disproportionate to the exigencies of the situation and resulted in

injury to Kelley.

It is patently unreasonable

for Defendants to claim that an “unarmed” Kelley was combative, remained a

threat and was continuing to resist even after he was hand cuffed and leg

shackled. That simply strains all credulity.

As

discussed above, appellants’ evidence showed that a reasonably prudent officer,

under the same or similar circumstances, could have believed that it was

necessary to use the taser in the manner that it was used here. The evidence showed that each taser

deployment immediately followed an aggressive or unruly act by Daryl. The evidence also showed that Daryl was

effective in his resistance against the officers even after he was handcuffed,

shackled, and given sedation. [3]

In

contrast, Ms. Kelley’s response is not supported by any evidence that

controverts appellants’ establishment of good faith. We note that Ms. Kelley offered no expert

testimony to support her assertion that appellants’ conduct was “patently

unreasonable” based on the number of taser deployments and the fact that Daryl

was in restraints and medicated when tasered. In short, Ms. Kelley has failed to meet her

burden to show that no reasonable officer would have acted as appellants did

under the same or similar circumstances.

See Telthorster , 92 S.W.3d at

465 .

We sustain

appellants’ issues.

Conclusion

Appellants’

summary judgment evidence conclusively establishes, and Ms. Kelley fails to

controvert, that Sergeant Gonzales and Deputy Miller each acted in good faith

when he used force, namely using the taser, against Daryl. Accordingly, we reverse the order of the trial

court to the extent that it denies appellants’ motion for summary judgment and

render judgment that Ms. Kelley take nothing against appellants.

Laura C. Higley

Justice

Panel consists of Justices Keyes, Hanks, and Higley.

[1] We have jurisdiction over this

interlocutory appeal because it is an appeal from the denial of a motion for

summary judgment based on official immunity.

See Tex. Civ. Prac. & Rem. Code Ann . § 51.014(a)(5)

(Vernon 2008) (permitting appeal of an order denying a motion for summary

judgment that is based on assertion of immunity by an individual who is an

officer or employee of the state or a political subdivision of the state). In the same instrument as appellants’ motion

for summary judgment, Harris County also filed for summary judgment. When it denied appellants’ motion for summary

judgment, the trial court also denied Harris County’s motion for summary

judgment. The denial of Harris County’s

motion for summary judgment is not part of this appeal.

[2] In her brief, Ms. Kelley asserts that

the principles enunciated in Telthorster do not apply to this

case. Telthorster involved a lawsuit arising from injuries allegedly

inflicted by a police officer making an arrest.

Ms. Kelley points out that the Telthorster

court remarked, “A high risk of liability in such a situation would likely

compel arresting officers to act hesitantly when immediate action is required,

subjecting themselves and the public to unnecessary ‘risks, and seriously

hamper[ing] their efforts to apprehend dangerous criminal suspects.’” Telthorster

v. Tennell , 92 S.W.3d 457, 464 (Tex. 2002) (quoting United States v. Merritt , 695 F.2d 1263, 1274 (10th Cir. 1982)). Ms. Kelley contends, “In the instant case, no

facts exist to suggest immediate action by police officers was required, that

Kelley was a dangerous criminal, and clearly there were no risks to the general

public.” We begin by noting that, in

making the cited remark, the supreme court in Telthorster was determining whether to apply the need/risk analysis,

which had been historically applied when determining good faith in cases

involving high-speed pursuits, to determining an officer’s good faith in cases

in which the injury arose from an arrest.

See id. In any event, considerations similar to

those in Telthorster also exist in

this case. Here, immediate action by the

officers was also necessary. The record

shows that Daryl was a mentally ill man who was being transferred to the mental

health unit for observation. The record

reflects that Daryl had a history of aggressive behavior toward staff and was

in a psychotic state. During the

transfer at issue, Daryl acted aggressively toward the officers from the moment

they approached his cell until the time the team placed him in his new

cell. Under such circumstances, an

officer must be able to act immediately to safeguard himself, his team members,

the inmate, and other inmates, without fear of liability.

[3] On appeal, Ms. Kelley complains of

appellants’ affidavit testimony on the ground that appellants are interested

witnesses whose testimony cannot be readily controverted. She points out that the uncontroverted,

self-serving affidavit from an interested witness may serve as basis for

granting summary judgment only if the evidence is “clear, positive, direct,

otherwise credible, free from contradictions and inconsistencies, and could

have been readily controverted.” See Trico Techs. Corp. v. Montiel , 949

S.W.2d 308, 310 (Tex. 1997). However, an

objection asserting that the affiant is an interested witness is an objection

to a defect in form in the affidavit and must be preserved in the trial court. Ahumada

v. Dow Chem. Co ., 992 S.W.2d 555, 562 (Tex. App.—Houston [14th Dist.] 1999,

pet. denied). Because Ms. Kelley failed

to raise or to obtain a ruling on this objection in the trial court, it has

been waived. See Tex.

R. App. P . 33.1. Moreover, the

law is clear that good faith may be established by the official’s own affidavit. See Barker

v. City of Galveston , 907 S.W.2d 879, 888 (Tex. App.—Houston [1st Dist.] 1995,

writ denied).