# Marcus Brent Patterson, Individually, as Independent Administrator of the Estate of Diane Patterson, and as Next Friend of Daniel Patterson and Danae Patterson, and Danae Patterson and Daniel Patterson (Now 18 Years of Age) v. Brewer Leasing, Inc. > Texas Court of Appeals, 1st District (Houston) · July 15, 2015 URL: https://www.frixlaw.com/law-library/cases/4062512 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** July 15, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4062512 ## How later opinions describe it (automated extraction) - finding written lease never terminated as a matter of law due to lack of receipt for termination and lack of removal of placards, disregarding contradictory oral claims ## Opinion text ACCEPTED 01-14-00013-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 7/15/2015 3:38:10 PM CHRISTOPHER PRINE CLERK NO. 01-14-00013-CV In the Court of Appeals FILED IN 1st COURT OF APPEALS For the First Supreme Judicial District of Texas HOUSTON, TEXAS 7/15/2015 3:38:10 PM at Houston, Texas CHRISTOPHER A. PRINE Clerk Marcus B. Patterson, individually, as Independent Administrator of the Estate of Diane Patterson, and as next friend of Daniel Patterson and Danae Patterson, and Danae Patterson and Daniel Patterson (now 18 years old), Appellants v. Brewer Leasing, Inc., Appellee On Appeal from the 334th Judicial District Court of Harris County, Texas The Honorable Judge Ken Wise presiding APPELLANTS’ MOTION FOR REHEARING HARRY HERZOG DOROTHEA “DOTTY” L. VIDAL State Bar No. 09548200 State Bar No. 20578100 DAVID A. CARP GEARY, PORTER & DONOVAN State Bar No. 03836500 16475 Dallas Parkway, Ste. 400 HERZOG & CARP Addison, Texas 75001-6837 P.O. Box 218845 972-931-9901 Telephone Houston, Texas 77218-8845 972-931-9208 Facsimile 713-781-7500 Telephone dvidal@gpd.com 713-781-4797 Facsimile HHerzog@hcmlegal.com Co-Counsel for Appellants Lead Counsel for Appellants TABLE OF CONTENTS Page INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii I. Brewer Leasing is liable as the undisputed owner of the never leased Heil trailer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. With respect to the tractor the Court’s opinion reverses statutory law, the burden of proof, and incorrectly construes cited case authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. This Court’s opinion judicially reverses the 1956 Congressional statute and parallel Texas legislation, together with the federal and Texas regulatory schemes. . . . . 2 B. This Court’s opinion incorrectly construes cited case authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 C. There was no lease from Brewer Leasing to Texas Stretch. . 15 1. There was no consideration.. . . . . . . . . . . . . . . . . . . . . 15 2. We looked for consideration. . . . . . . . . . . . . . . . . . . . . 15 3. The reason for no consideration. . . . . . . . . . . . . . . . . . 16 4. This Court also errs on the burden of proof and jury questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 5. The criminal wrongdoing clause in 49 USC § 30106(a)2 precludes any liability shifting away from Brewer Leasing. . . . . . . . . . . . . . . . . . . . . . . . . . . 18 6. The big picture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 III. A factual error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 ii INDEX OF AUTHORITIES U.S. SUPREME COURT American Trucking Ass’ns. v. U.S., 344 U.S. 298, 302-306; 73 S. Ct. 307 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 U.S. COURT OF APPEALS Empire Fire & Marine Insur. Co. v. Guaranty National Insur. Co., 868 F.2d 357, 362 (10th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Jackson v. O’Shields, 101 F.3d 1083, 1086 (5th Cir. 1996). . . . . . . . . . . . . 3 Price v. Westmoreland, 727 F.2d 494, 496 (5th Cir. 1984). . . . . . . . . . . . . 3 White v. Excalibur Ins. Co., 599 F.2d 50, 52 (5th Cir. 1979), cert. denied, 444 U.S. 965 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 TEXAS SUPREME COURT Berry v. Golden Light Coffee Company, 327 S.W.2d 436, 439 (Tex. 1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 TEXAS COURT OF APPEALS Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 884-5 (Tex. App. – Dallas 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Hooper v. Torres, 790 S.W.2d 757, 759 (Tex. App. – El Paso 1990, writ den’d). . . . . . . . . . . . . . . . . . . . . . . . . . . 17 In re Brewer Leasing, 255 S.W.3d 708 (Tex. App. – Hou 1st 2008, mandamus den’d). . . . . . . . . . . . . . . . . . . . . . 15 Morris v. JTM Materials, Inc., 78 S.W.3d 28, 38 (Tex. App. – Ft. Worth 2002, no pet).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 iii OTHER COURTS Hunt v. Drielick, 852 N.W.2d 562 (Mich. 2014). . . . . . . . . . . . . . . . . . . . . 13 Jones Express, Inc. v. Watson, 871 F.Supp. 719, 728-734 (quotes at 734)(M.D. Tenn. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Luizzi v. Pro Transport, 2013 WL 3968736 (E.D. NY, 2013). . . . . . . . 11, 12 Paul v. Bogle, 484 N.W.2d 728, 731, 735 (Mich. Ct. App. 1992). . . . . . . . 7 Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011 (Ct. App. – Indiana 1st, 1986, trsf den’d, cert. den’d 107 S.Ct. 1571). . . . . 4 Shimko v. Jeff Wagner Trucking, 2014 WL 7366190 (W.D. Wisc. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Wilson v. Riley Whittle, 701 P.2d 575 (Ariz. Ct. App. 1984). . . . . . 9, 10, 13 FEDERAL STATUTES 49 USC § 11107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 16 49 USC § 31135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 49 USC § 30106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 15, 17, 18 CODE OF FEDERAL REGULATIONS 49 C.F.R. § 376. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 11, 12, 15, 16 49 C.F.R. § 1057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10 OTHER TRCP 279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Texas Penal Code § 37.09(a)1, 37.09(d)1, 37.08. . . . . . . . . . . . . . . . . . . 18 iv MOTION FOR REHEARING The Patterson family moves for rehearing on two grounds: (1) the Court’s opinion erroneously fails to hold Brewer Leasing liable as the undisputed owner of the Heil trailer with no testimony of any oral lease to Texas Stretch, and (2) the Court’s opinion reverses statutory law, the burden of proof, and incorrectly construes cited case authorities with respect to any oral lease of the Peterbilt tractor, thereby erroneously allowing an oral lease to evade liability. I. Brewer Leasing is liable as the undisputed owner of the never leased Heil trailer. The reason this court gave for exonerating Brewer Leasing does not apply to the Heil trailer. The legal principle underlying the Court’s liability analysis on the tractor (an oral lease can shift liability away from Brewer Leasing pursuant to 49 USC § 30106) does not apply as there was no oral lease of the Heil trailer. The opinion correctly reflects the Patterson family’s theory of liability on the trailer but then skips it in the analysis. Brewer Leasing undisputably owned the Heil trailer, there is no written lease, and there is also no testimony of any oral lease of the Heil trailer. Therefore 1 nothing the Court wrote absolving Brewer Leasing of liability for the Peterbilt tractor applies to the Heil trailer. II. With respect to the tractor the Court’s opinion reverses statutory law, the burden of proof, and incorrectly construes cited case authorities. A. This Court’s opinion judicially reverses the 1956 Congressional statute and parallel Texas legislation, together with the federal and Texas regulatory schemes. Between 1935 and 1956 trucking abuses were alarmingly frequent, threatening both the industry and public safety. American Trucking Ass’ns. v. U.S., 344 U.S. 298, 301-306; 73 S. Ct. 307 (1953); White v. Excalibur Ins. Co., 599 F.2d 50, 52 (5th Cir. 1979), cert. denied, 444 U.S. 965 (1979). Relationships before a collision were consistently concealed after a wreck. Owners or lessees of vehicles magically produced oral leases to uninsured companies. It takes a lot to get any Congress off dead center, but the unending stream of perjurious testimony to evade trucking liability moved Congress in 1956 to end the existence of oral leases to evade liability. From 1956 until this Court’s opinion no case in America allowed any oral lease to evade liability. Courts have detailed the history and policy decisions that forced Congress to act. As the Ft. Worth Court of Appeals correctly summarized, “. . . protecting the public from accidents, preventing public 2 confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants” were three goals of the 1956 Federal Motor Carrier Safety Act Amendments. Morris v. JTM Materials, Inc., 78 S.W.3d 28, 38 (Tex. App. – Ft. Worth 2002, no pet); accord Empire Fire & Marine Insur. Co. v. Guaranty National Insur. Co., 868 F.2d 357, 362 (10th Cir. 1989); Price v. Westmoreland, 727 F.2d 494, 496 (5th Cir. 1984). As the Fifth Circuit noted: “Under the authority of 49 U.S.C. § 11107, the Interstate Commerce Commission regulates leases of equipment used in interstate commerce. See 49 C.F.R. § 1057.1 et seq. One of the primary purposes of the ICC’s leasing regulations is to ensure that carrier-lessees take control of and responsibility for leased equipment during the term of a lease.” Jackson v. O’Shields, 101 F.3d 1083, 1086 (5th Cir. 1996). Jackson was another classic case of the round robin of finger pointing by carriers, lessors, owners, drivers and insurers. Jackson, 1081. The Jackson decision correctly notes that the failure to comply with trucking regulations “does not and should not insulate a carrier-lessee from liability.” Jackson, 1089. “The stringent regulations also eliminate the difficulty faced by an injured plaintiff in determining who controlled the vehicle; the purpose upon which the vehicle was embarked at the time of the accident; and the questions of agency, employee or independent 3 contractor status, frolic and detour, and borrowed employee.” Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011 (Ct. App. – Indiana 1st, 1986, trsf den’d, cert. den’d 107 S.Ct. 1571). Rediehs contains some of the country’s most cited and quoted language on the history of the 1956 amendments and the end of delegating responsibility, evading responsibility, abrogating responsibility, and eliminating fly-by-night contracting. This Court’s reliance on an oral lease to evade liability returns trucking law to its pre-1956 wild west condition. Texas Stretch spent three years denying any affiliation with Charles Hitchens and evading liability since Brewer Leasing was the lessee under a written lease. At the last minute they admitted employing Charles Hitchens (Appendix 8, 20). Now, at the last minute, Brewer Leasing denies being the lessee and in a classic example of statutorily precluded finger pointing claims Texas Stretch was the oral lessee. The 1956 Act and “stringent regulations” designed to prevent this insanity are neutered by this Court’s acceptance of the claim of an oral lease. Courts have consistently ruled that a company cannot evade liability by non-compliance with the 1956 statute or regulations. For example, 4 “The purpose of the amendments was to ensure that interstate motor carriers would be fully responsible for the maintenance and operation of the leased equipment and the supervision of the borrowed drivers, thereby protecting the public from accidents, preventing public confusion about who was financially responsible if accidents occurred, and providing financially responsible defendants. Id. The Interstate Commerce Commission later issued regulations that required a certificated interstate carrier who leases equipment to enter into a written lease with the equipment owner providing that the carrier-lessee shall have exclusive possession, control, and use of the equipment, and shall assume complete responsibility for the operation of the equipment for the duration of the lease. See 49 C.F.R. §§ 376.11-12 (2005). These regulations are known as the Federal Motor Carrier Safety Regulations.” *** “One of the purposes of amending the Interstate Common Carrier Act to include specific lease requirements was to prevent the type of confusion we have here as to financial responsibility. Simply because Higgins and MTR failed to enter into a lease agreement, thereby creating this confusion, Higgins should not be allowed to hide behind the protection of the federal regulations and insulate themselves from liability if they had practical control over Jackson at the time of the collision.” Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 884-5 (Tex. App. – Dallas 2006, no pet.). Finding a trucking company “was in violation of both the letter and the spirit” of the written lease requirements with respect to policy limits, the deductible, and insurance disclosure, one court concluded the trucking 5 company “is estopped from enforcing the Lease indemnification provision...” Jones Express, Inc. v. Watson, 871 F.Supp. 719, 728-734 (quotes at 734)(M.D. Tenn. 2012). The court reversed its first holding in favor of the violative trucking company, fixing their error by concluding the unlawful and hidden insurance obligation violated the letter and the spirit of the Truth-in- Leasing regulations (49 CFR § 376) and “to allow Jones Express to pass liability for this loss on to Watson defeats the very purpose of the federal regulations.” Jones Express, 734. The same analysis applies in our case. To allow Brewer Leasing to pass liability for this loss off to Texas Stretch through the even more violative act of an oral lease defeats every purpose of the federal and Texas laws and regulations. The laws and regulations do several things to eliminate the 1935-1956 shenanigans. 1. Any lease must be written. 2. Any lease must contain about a dozen things. 3. The lessee must be adequately insured. 4. The vehicle must be properly marked. 5. The lease must be terminated in writing. 6. Possession must be terminated with a written receipt. 7. Possession must be terminated with removal of the markings. Not a single one of these seven was done under the phantom oral lease from Brewer Leasing to Texas Stretch. Instead the mythological oral lease 6 contradicts the written lease, Texas Stretch had no insurance for either vehicle, the oral lease contradicts the tractor markings in all four places, and there is no written termination of the lease or receipt for surrendering possession. Others have tried similar tricks, but because the policy and purpose of the 1956 Act was to stop all the oral foolishness after the collision the tricks don’t work. Paul v. Bogle, 484 N.W.2d 728, 731, 735 (Mich. Ct. App. 1992)(finding written lease never terminated as a matter of law due to lack of receipt for termination and lack of removal of placards, disregarding contradictory oral claims). By giving effect to a claimed oral lease and using that oral lease to eviscerate Brewer Leasing’s statutory liability this Court’s opinion defeats every purpose of the law from 1956 to today. The effect of this Court’s opinion is a judicial repeal of the entire purpose and policy of the 1956 Act, parallel Texas legislation, and the federal and state regulations. This Court’s opinion also judicially repeals 49 USC § 31135. Congress provided that: “Two or more motor carriers, employers, or persons shall not use common ownership, common management, common control, or common familial relationship to enable any or all such motor carriers, employers, or persons to avoid compliance, or mask or otherwise conceal non- compliance, or a history of non-compliance, with regulations 7 prescribed under this subchapter or an order of the Secretary issued under this subchapter.” 49 USC § 31135. Brewer Leasing and Texas Stretch shared the same President and General Manager. Both companies operated out of the same location. Texas Stretch owned 100% of the stock in Brewer Leasing (a fact perjuriously concealed for eight years). This is a classic example of two carriers with common ownership, management, and control. This Court’s decision to allow an oral lease between them to avoid liability to the Patterson family eviscerates any effect of 49 USC § 31135. What Brewer Leasing is trying to do, and this Court’s opinion erroneously allows, is to be the only company with legal authority to operate the Peterbilt tractor on June 15, 2006, then improperly orally delegate those rights to uninsured parent company Texas Stretch and thereby dodge liability. The law precludes operation in this fashion. In addition to 49 USC § 31135, “It further seems well settled that one holding a certificate or permit authorizing him to operate a motor carrier over the highways of the State may not delegate to another the rights conferred by such certificate or permit and then release himself from liability to those injured by the negligence of the wrongfully delegated party.” Berry v. Golden Light Coffee Company, 327 S.W.2d 436, 439 (Tex. 1959). 8 B. This Court’s opinion incorrectly construes cited case authority. Trucking laws are designed to protect the public from accidents, prevent public confusion, set responsibility when accidents occur, and provide for financially responsible defendants. This Court’s erroneous analysis of cited case authorities subverts all four goals and lets Brewer Leasing benefit from violations. This Court leaves the Patterson family as unprotected as possible, confuses everyone, evades responsibility, and eliminates financial responsibility for the only insured company. None of the cases cited at pages 27-28 of the opinion allowed a trucking company to evade liability through an oral lease. This Court confused the ability of a plaintiff to use an oral lease to create liability versus the statutory and regulatory inability of a defendant to use an oral lease to evade liability. In chronological order: Wilson v. Riley Whittle, 701 P.2d 575 (Ariz. Ct. App. 1984) is a collision death case with the reverse of our facts. The trucking company, Riley Whittle, owned its own vehicles and employed its own drivers. A cranberry juice load needed to be moved. An independent trucker, Meyer, called Riley Whittle looking to see if he could haul a load for them. Riley Whittle agreed and instructed Meyer “to have a trip lease signed for the load.” Meyer never obtained a trip lease but he obtained the cranberry juice. When Meyer’s 9 tractor broke down Riley Whittle sent $600 for repairs. Meyer drove on, made some stops, ate, drank some beer, and within spitting distance of the Riley Whittle facility had a fatal collision with Wilson. (All facts from Wilson, 576-7). The court realized that a trucking company cannot benefit from violations of the law. Riley Whittle tried to claim a written lease was an essential requirement for their liability, but the court correctly declined to allow the purpose of the law to be flipped. Wilson, 578. After citing the policy reasons for the law the court refused to allow Riley Whittle to immunize itself from liability based on an oral lease that violated the law. “The cases are uniform in holding that absence of a written trip lease is legally irrelevant.” Wilson, 578-9. Thus the plaintiff could use an oral lease to create additional liability. The court correctly reflected: “The public policy expressed by 49 U.S.C. § 11107and 49 C.F.R. § 1057 would be wrongfully frustrated if we were to allow Riley Whittle to evade the liability imposed upon it by the federal statute and regulations by asserting that a written trip lease was a condition precedent to any contract between the parties and to responsibility on its part. Instead, that policy demands a holding that Riley Whittle is liable as a matter of law.” Wilson, 579. The case holds an oral lease can create liability, but this Court’s opinion uses an alleged oral lease to evade liability. Saying “I orally leased the truck” to evade liability is exactly what the 1956 Act ended. 10 Luizzi v. Pro Transport, 2013 WL 3968736 (E.D. NY, 2013) is an insurance coverage case. There was no oral lease, there was a written lease. Luizzi sued Sanchez over a collision, Sanchez sued State National, and then State National sued Green Mountain who placed the coverage. The court held the vehicle involved was a covered auto. Luizzi settled for $1,100,000 and State National tried to force Green Mountain to reimburse due to negligently failing to properly terminate the policy. “The question currently before the Court is whether the Policy, which was in effect on the day of the Luizzi-Sanchez accident, provided coverage to Pro Transport and/or Sanchez for the Luizzi-Sanchez accident . . . the Court finds that State National has proven by a preponderance of the evidence that the Sanchez vehicle was a “covered auto” and that the Policy provided coverage to both Pro Transport and Sanchez for the underlying accident.” In analyzing the facts and legal issues the trial court reviewed a one- year written lease, exhibit 44. The parties debated whether the written lease fully complied with all legal requirements. The court found it “was a valid contract under New Jersey law,” but was missing many provisions required by 49 CFR § 376.12. The case contains an excellent summary of the principles of federal trucking policies and then applies them. “Given that the public policies governing motor carriers are a driving force behind the analysis in the instant 11 case . . .” The opinion contains a discussion of courts’ unwillingness to allow carriers to hide behind defective or ineffective leases to deny compensation to innocent members of the public injured in collisions. Policy considerations caution against a carrier benefitting from its own failure to comply with the regulatory scheme. A motor carrier that fails to enter into a proper written lease cannot hide from liability for that reason. Oral leases, or defective written leases, can’t be used to evade responsibility to injured members of the public. Concluding that any contrary rule would create perverse incentives to create defective leases, the court held the lease “valid and enforceable in this case.” This Court’s opinion flips the reasoning and result of Luizzi. This Court’s opinion creates the perverse incentive to claim to create an oral lease in an effort to shift liability off to an uninsured carrier so that an injured citizen is denied a recovery. Contrary to Luizzi, this Court’s opinion uses a defective oral lease to deny compensation. Luizzi held that noncompliance with 49 FCR § 376.12 did not render the lease unenforceable, but did so for the express purpose of applying public policy and the goals of the regulatory scheme to create liability and deprive a company of the ability to evade liability by noncompliance. This Court’s 12 opinion does the reverse: uses an alleged oral lease to defeat the statutory goals and policies by evading liability through noncompliance. Hunt v. Drielick, 852 N.W.2d 562 (Mich. 2014) is an irrelevant wrongful death collision case involving “the interpretation and application of an insurance policy.” Hunt, 565. Procedurally, the case involved writs of garnishment. Hunt, 564. Several leases and events are involved. Empire Fire and Marine Insurance Co. only insured Drielick Trucking for bobtail use (a tractor with no trailer). Corey Drielick was driving a tractor without a trailer, but Empire denied coverage and refused to defend. The plaintiffs settled with Sargent Trucking and GLC, then entered into consent judgments with Corey Drielick and Drielick Trucking. All the court did was hold the bobtail portion of the policy was fulfilled and remand for evaluation of the existence of a leasing agreement between Drielick Trucking and GLC “as contemplated by the business-use exclusion’s leasing clause.” Hunt, 569. Nothing in Hunt directly applies to our case. This Court’s opinion quotes footnote 9 (which provided guidance to the trial court on remand), but footnote 9 is just a reference to the Wilson case. Our facts are very different. No policy exclusion or policy lease language is in issue. The quote from Wilson 13 is erroneously applied to our case. “The absence of a written trip lease is legally irrelevant” is true when applied to eliminate the ability of a trucker to distort public policy and evade liability, but it is not true when an oral lease is used to try to evade liability and defeat the purpose of the legislation and regulatory scheme. The cited case this Court relied on most heavily is Shimko v. Jeff Wagner Trucking, 2014 WL 7366190 (W.D. Wisc. 2014), but the case does not involve any collision (and several cases cited by this Court in the key erroneous paragraph emphasize the importance of that distinction). The pro se litigants lost a motion for summary judgment in a dispute between a trucker and a trucking company. The trial court found fact questions on dual ownership and the existence of an oral lease. Although this Court’s opinion quotes extensively from Shimko, nothing in Shimko supports the conclusion that an oral lease can be used to shift liability under 49 USC § 30106, thereby allowing Brewer Leasing to benefit from violating federal and Texas laws and regulations. There is a huge difference between creating liability and evading liability. The purpose of the 1956 law was to eliminate post-collision evasion techniques. While it is true that the absence of a written lease is legally 14 irrelevant in extending liability because an oral lease can create liability, it is also true that one of the key pillars of the 1956 Act was the elimination of oral leases to evade liability. C. There was no lease from Brewer Leasing to Texas Stretch. 1. There was no consideration. 49 USC § 30106 uses the defined term “leases.” 49 CFR § 376.2(e) defines a lease to include the requirement of consideration. It is over nine years since Diane Patterson died and no one has ever testified in answer to interrogatories, deposition, or two jury trials to any consideration for a lease from Brewer Leasing to Texas Stretch. No document has ever been marked as an exhibit in either jury trial reflecting any consideration. The lack of consideration defeats the existence of a lease by definition. 2. We looked for consideration. In 2007 the Patterson family requested the relevant banking records of Brewer Leasing and Texas Stretch. Brewer Leasing objected to the discovery. The trial court ordered production, denied a Motion for Rehearing, this Court denied a mandamus effort to conceal the bank records, and the Supreme Court also denied the mandamus effort. In re Brewer Leasing, 255 S.W.3d 708 (Tex. App. – Hou 1st 2008, mandamus den’d). 15 There is no proof of payment from Texas Stretch to Brewer Leasing for an oral lease of the Peterbilt tractor on June 15, 2006. 3. The reason for no consideration. There is no consideration because there is no oral lease from Brewer Leasing to Texas Stretch. That’s why Texas Stretch never insured the tractor. Mr. A. B. Brewer, the President of Brewer Leasing and Texas Stretch, is an elderly gentleman with a lifetime of trucking experience. (6 RR, 79-80). Mr. Lonnie Box, the General Manager of Brewer Leasing and Texas Stretch with 25 years of experience, had a side company that did trucking company compliance. (4RR, 138-140). They knew all the legal requirements, and they met all the legal requirements by virtue of a written lease from Texas Stretch to Brewer Leasing. (4RR, 148-151; 6RR, 80-91; Appendix 9). To conclude there was an oral lease from Brewer Leasing to Texas Stretch this Court has to do all of the following: 1. Find consideration, 2. Decide when Brewer Leasing did not own the tractor it was the lessor, 3. Decide when Texas Stretch owned the tractor it was the lessee, 4. Decide both companies can violate 49 USC §§ 11107, 13906, 14102; 49 CFR § 376; and 37 Tx Admin Code 4.11, 5. Ignore four signs painted on the tractor contradicting the oral lease, and 16 6. Find termination of the written lease from Texas Stretch to Brewer Leasing. 4. This Court also errs on the burden of proof and jury questions. To evade liability Brewer Leasing must prove the unplead affirmative defense of shifting liability by virtue of a lease, thus they must obtain a jury finding in their favor. This Court’s opinion incorrectly moves that burden to the Patterson family. As the court correctly notes, “It was incumbent upon the party with the burden on the issue to request a correct issue which was raised by the evidence and obtain a favorable answer in order to prevail upon that part of the case...” Hooper v. Torres, 790 S.W.2d 757, 759 (Tex. App. – El Paso 1990, writ den’d). Brewer Leasing was the party with the burden on this issue. “We are not liable because we just owned the tractor” was Brewer Leasing’s argument. As the owner Brewer Leasing was liable unless they proved compliance with 49 USC § 30106. Compliance was not conclusively established so it was waived by Brewer Leasing’s failure to request and obtain a jury finding of a lease to Texas Stretch. As the party arguing (1) ownership of (2) a leased tractor with (3) no criminal wrongdoing, Brewer Leasing had the burden to obtain those jury findings. With no jury finding on any element, Brewer Leasing’s independent 17 ground of defense is waived pursuant to Texas Rule of Civil Procedure 279. Brewer Leasing never even argued this defense or cited the relevant statute. The Patterson family briefed it out of completeness, and at pages 29-30 this Court confuses our briefing with Brewer Leasing’s burden of proof and burden of jury submission and findings. Brewer Leasing never argued they complied with 49 USC § 30106, probably because they knew they did not. Brewer Leasing also never requested or obtained any jury finding pursuant to 49 USC § 30106. 5. The criminal wrongdoing clause in 49 USC § 30106(a)2 precludes any liability shifting away from Brewer Leasing. Any analysis of obstruction of justice compared to Brewer Leasing’s concealment of the reports of 43,444 nanograms of cocaine metabolite they received but hid from the police, assistant district attorney, lawyers and litigants, and trial judge compels the conclusion there was criminal wrongdoing on the part of Brewer Leasing. Texas Penal Code §§ 37.09(a)1, 37.09(d)1, 37.08; Appendix 3, 4, 5, 6, 13; 11 RR, PX 503, 517, 520, 521, 522. 6. The big picture. Texas Stretch and Brewer Leasing lied for 1,000 days about who employed Charles Hitchens. (Appendix 8, 12, 20). We pierced that lie. 18 They simultaneously concealed and lied about Charles Hitchens’ cocaine level. We pierced that lie and fraud. (Appendix 3, 4, 5, 6, 13). They lied about who owned Brewer Leasing: “Mr. Brewer owns 100% of Brewer Leasing” turned into Texas Stretch owned 100% of Brewer Leasing. (4 RR, 141; 6 RR, 69-70; Appellee’s Brief). That successful lie precluded us from proving Brewer Leasing’s liability as a single business enterprise with Texas Stretch. The fourth big lie is the classic after the wreck fabrication of an oral lease. In this case, an oral lease that would: • be impossible, as Texas Stretch owned the tractor on the date of the alleged lease to Texas Stretch • be impossible, as Brewer Leasing did not own the tractor on the date of the alleged lease by Brewer Leasing • be violative of federal statutes • be violative of federal regulations • be violative of Texas statutes • be violative of Texas regulations • create a lessee with no liability insurance • contradict and reverse a written lease • contradict and reverse four painted placards on the tractor 19 • contradict the entire theory and purpose of the 1956 Act and companion Texas law. Brewer Leasing testimonially admitted liability for a reason. (4 RR 138-40, 151; 6 RR 70). No lawyer for Brewer Leasing ever filed any document with any court claiming an oral lease evades statutory liability for a reason. But this Court’s opinion revives the legal theory that an oral lease can be used to shift liability, driving a stake through the 1956 federal law’s heart and the parallel Texas legislation. III. A factual error. The opinion contains one factual error. It is minor, but if it created an unfavorable impression it needs to be corrected. At page four the Court writes “the jury was then dismissed,” but that is erroneous. On Monday, April 6, the April 4 settlement with Texas Stretch was implemented. The venire panel then answered the jury questionnaire, oral voir dire was conducted, the jury was seated, and a jury trial progressed for more than a week. During the second week, shortly before the Patterson family called their last damage witnesses, Ray Bellew & Sons settled. Charles Hitchens had already stipulated to 100% fault and invoked his privilege against self-incrimination. At that point Charles Hitchens waived the 20 jury with the Patterson family’s agreement. Evidence was concluded and closing arguments were then given to the court without a jury. CONCLUSION This Court should withdraw its opinion of June 30, 2015, delete the erroneous paragraph at pages 27-28, and reverse and render judgment against Brewer Leasing for the negligent driving of Charles Hitchens while operating a Heil trailer owned by Brewer Leasing with no lease, or while operating a Peterbilt tractor that Brewer Leasing is estopped to deny owning with no written lease to any other company combined with Brewer Leasing’s criminal wrongdoing. Respectfully Submitted, HERZOG & CARP, P.C. By: /S/Harry Herzog Harry Herzog State Bar No. 09548200 P.O. Box 218845 Houston, Texas 77218-8845 (713) 781-7500 Telephone (713) 781-4797 Facsimile HHerzog@hcmlegal.com COUNSEL FOR APPELLANTS 21 By: /S/Dorothea Vidal Dorothea “Dotty” L. Vidal State Bar No. 20578100 dvidal@gpd.com Geary, Porter & Donovan, P.C. One Bent Tree Tower 16475 Dallas Parkway, Suite 400 Addison, Texas 75001-6837 P.O. Box 700248 Dallas, Texas 75370-0248 972-349-2211 Telephone 972-931-9901 Facsimile CO-COUNSEL FOR APPELLANTS CERTIFICATE OF SERVICE This is to certify that in accordance with the Texas Rules of Appellate Procedure a true and correct copy of the above and foregoing Brief of Appellants has been sent to all parties and/or counsel of record listed below via electronic filing and email on July 15, 2015. George W. Long Attorney at Law 2000 East42nd Street, Suite G110 Odessa, Texas 79762 george.long.mexico@gmail.com /S/ Harry Herzog Harry Herzog 22 CERTIFICATE OF COMPLIANCE This brief complies with the typeface and length requirements of Texas Rule of Appellate Procedure 9.4 because: (1) This brief complies with typeface and the type style requirements of Rule 9.4(e) because the brief has been prepared in a conventional typeface using WordPerfect with Arial 14-point font. (2) This brief complies with the length requirements of Rule 9.4(i)(2)(D) because it contains 4,445, excluding the parts of the brief exempted by Rule 9.4(i)(1). /S/Harry Herzog Harry Herzog Attorney for Appellants 23 APPENDIX Appendices 3-6, 8, 9, 12 and 13 were in the original Appellants’ Brief. Appendix 20 contains PX 335, referred to in Appendix 8. 3 Brewer Leasing test results to HPD (PX 263) 4 DA report declining prosecution (CR 75) 5 Mr. Patterson’s affidavit on fraud (Supp CR 82) 6 Mr. Herzog’s affidavit on fraud (Supp CR 75) 8 W ho employed Charles Hitchens (Summary of exhibits) 9 Brewer Leasing lease to Texas Stretch (PX 302) 12 Mr. Herzog’s two affidavits on pleadings 13 Plaintiffs’ Fourth Amended Petition (CR 29) 20 Supplemental Response of Texas Stretch to Plaintiffs’ Motion for Partial Summary Judgment (PX 335) 24 Appendix 3 713&91&81:lJ Q7/25/2666 21:46 71 36'316883 TEYAS ·.;TPETQ-1 21 03 SkJnner IQad Houston, T~~ 77093 713-691-2779 Fvc. 713·691-6883 Attention: Date: Off'te~ Locadon: I Fax Number· Phone Number. 0 Urgent a ReplyASAP Q Plcuc comment ,~ Plccue Revtew )"~;/or. your Information Total pages. Including cnver: 2 Comments: T -~e"'f- ~(rJ). Jl/s h/A-e /1> -t es J- Of)j Pssl acc/Je,f Te £' ;f- 7 Z, )~ Jc11fA ' 193 of 252 00158 87/2~'~0eG 21:~0 n :t&9l&IJBJ Pil.GE eJ Fax sent tly I.!Sin9 OP Informer vt 0 0510212006 A 51·04 Pl\A P 4 of 8 Fl•etSc:reen. Ltd. 15000 Westem Place Sul!e 480 For1 Worth. Texaa 76107 ATTENTION: Bulch Brewer Te>ras Stretch. Inc. Participant: Charles A Hitchens 2103 Skinner Road Houston. TX 7709J --166!:1 PartJc:rpant 10: 337 Results of DOT Controlled Subs.unce Test Record Starvs: Neg alive Let>oralory LebOne. Inc. Te>st T1-pe Pr~·Emproyment 10101 Renner Boul..-:~111 Colleetion DateTTim(Ji§¥20.le~ Leneu, KS 66219-9752 BolCh 10: 20060502 CollectJon Sile Tnaa StreiCh, me. Soeclmen 10: 45213879 2103 Skinner Road Dare COC RecelveG: 05102/2006 Hou&ton. TX 77003 Sample Type: Urrne Specimen Collector. Douglns A Schopp~ Submns;e Testl!d Result Sub~nceJ~ ~ Amphflamin~s Negat~~~e Cocaine Negalive 1\Aariju:ma Negative 0Ptales Nogarive Pheneyt;lidine Negative ----------~~--~-----~------------------------------------------------~ In aceordonc;e wilh epplrcable I=P.det:~l requirement&. my determrnationr'vllrrlic:~llon is as Gbave 5/212006 Garrett R Tucker Ill. MO. MPH Venfic;ation Date Results ror Cherie!$ A 1-lorchens. l'el'tielpent 10: 337 • • • • • -'865) Primed an 51212006 ar 4·42:36PM 00114 92 of 252 ; i ~··~·-- -· -~~·-~--··------,.·-~ ; 71 ::{,'H{,88J PAGE J::!:.' ~.;n ~.enl by :.~~ng OP ln:o=e~ vi 0 06/21~006 10 J6 1A AM 9 2 or 2 Fl~tScreen, Ud. 6000 Western Place Su•te 480 Fort Worth. Texas 76107 ATTENTION: 3uteh 8ro:wer P;~rti,ipant: Charle$ Hitcl'lem Texas Sir~. '"'· 2103 Sklnl'er Road PartrcipaniiO. 337 HouliiDn, l'X n093 SSN:-888S Results of OOT Contr~lled Substance Test RKord S:"all.ls. Posltwe Laboratory: LabOnc!,lnc. Test Type Post-3cc:rfent T~>St 10101 Renner Boul~ard Colleet1on OaleiTrm~~~~ Lenexa. KS 66219-9752 Batch 10. 20060621 Collection Srte. Teqs Slrutch. Inc. Specimen 10· 36839345 2 I 03 SIU,.er Road Oate COC Received: 001201'20C6 ~u~f!Oft. TX 77093 S•tnple Type· U11ne SPecimen Collector DOUGLAS 4 SCHOPPE Sub5Qnct T~stv ~ Date of Reject: 611:1/'ZJXJT Offllnsa: Intoxication Manslaughles: Officer First: DL Officer Last: Harwell Agency: HOUSTON POUCE DEPARTMENT Witness Rrst: Diane Witness Last: Patterson ADA First: Warren ADA Last: Dlepraam OR#: 92975406 Reason: VATS REVIEWED CASE The defendant was driving a tractor trailer eastboUnd in the 148:10 block of the Katy Freeway just west of HigtMray 6. Sever.ll Precinct Feu de~ies had stopped freeway traffiC because they were escorting an Clllef$ize load. The defendant was not able to see the stq:Jped traffic ahead of him foe some unknown reason. He drove into sever.~l cars that had stopped. The complainant's vehicle caught fire and she was kiHed. The sole act of negligence so far in the case is failing to maintain a proper lookout. HONeYer, the defendant has not given a complete statement abaJt why he was looking doNn. hoN long he was looking doW'n, etc. In a case d this nature, speed is aitical. The HPD has been unable to determine as~ of the defendanrs tractoc trailer prior to impact. 1tis l.l'lki"'INTT if this vehicle had satellite - trackill;J capablity that wuold be r:1 assistance. Of the fifteen witnesses that HPD spoke to (II'ICI!dng the C4 deputies), only a couple cJ them mention speed. Their opinions on speed should be more extensively investigated. The defent:IMt, due to federal ~tory reqlirements, sltmitted to a uir&ysis -wnich tested positive fer cocaine. It Is a.r«nown whether or not the private lab tested for actual cocaine, cocaine metabolites, cr quantifted the amourt. Asrl today, tlis lnfamation has not been obtaned. Therafore, it is UOOlc:w1 whether the ill'l'lOI.ri rl cocaine is a large dose three days ago. s small dose two days cg:~, etc. Additionally, officers at the scene ncted no sigr6 rl impairment on the defendant. This means that either they missed the signs d cocaine use or that the cocaine CJJ31'1Uty was insufficient to cause impairment. That Questioo, hoNever, can't be answered until the adual amounts are obtained by HPD. lastly, altho.Jgh this office is a pmsecutorial- off.ce a'ld not an investigatiVe office, the report and photos were submitted to a ~vale reconstructionis t for review. Fran the information provided to him, he was unable to answel' the above questions. I EXHIBIT E. 75 Appendix 5 02/28/2012 04:32:32 PM 713-755-1451 Page 71 /75 CAUSE NO. 2011-64488 MARCUS BRENT PATTERSON, § IN THE DISTRICT COURT INDIVIDUALLY, AS INDEPENDENT § ADMINISTRATOR OF THE ESTATE OF § DIANE PATTERSON, AS NEXT § FRIEND OF DANIEL PATTERSON, § DANAEPATTERSON,oodDANffiL § PATTERSON (now 18 years of age), § § Plaintiffs, § § v. § 3341h JUDICIAL DISTRICT § BREWER LEASING, INC. § § Defendant. § HARRIS COUNTY, TEXAS AFFIDAVIT STATE OF TEXAS § § COUNTY OF HARRIS § BEFORE ME, the undersigned authority, on this day personally appeared Marcus Brent Patterson. After being duly sworn Mr. Patterson stated under oath as follows: 1. Backa:round. "My name is Marcus Patterson. I am over the age of 18 and have never been convicted of a crime. Every statement contained in this affidavit is true ood correct. I was married to Diane Patterson for 21 years before her death. We adopted two children at birth, Daniel Patterson and Danae Patterson. On June 15, 2006 my wife was killed in a multi-vehicle collision on Interstate I 0, just west of Highway 6. I first learned of the collision when I was called by the medical examiner to assist them in gaining dental records to verify the identity of my wife. After the wreck I heard a rumor, not verified at the time, that the driver of one of the vehicles involved in the collision was using cocaine or tested positive for cocaine. Page 1 of 4 EXHIBIT 10 82 02/28/2012 04:32:32 PM 713-755-1451 Page 72/75 In January or February of2007 the Houston Police Department finally released their report with regard to the collision. The Houston Police Department report reflects that Mr. Charles Hitchens, driving a Brewer Leasing vehicle, used an illegal substance, and the use of that illegal substance was a factor in the collision. Before I received the Houston Police Department report of the collision I had no other written documentation with regard to who had used an illegal substance in the collision. 2. My personal knowlede-e. I have personal knowledge of the following: From the time I first read the Houston Police Department report through the time of trial, which began April6, 2009 and ended the following week, I never learned the quantity or amount of cocaine that was used, and I never learned of any scientific evidence in respect to the cocaine level in Mr. Hitchens at the time of the collision. We attempted to ascertain this information, and we discussed this in one or more phone calls with law enforcement personnel, but we were never able to learn the amount of cocaine that was in Mr. Hitchens' system at the time of the collision. In discussions that Mr. Herzog and I had with law enforcement personnel Mr. Herzog told the law enforcement personnel that he also still did not know the amount of cocaine in Mr. Hitchens' system at the time ofthe collision. At some point in 2008 (I do not recall the date) we finally got the sworn testimony of Mr. Hitchens, but Mr. Hitchens decided to decline to answer questions and invoked his right against self-incrimination. Therefore, we were unable to learn from Mr. Hitchens when he had ingested cocaine, how much he ingested, and what his level of cocaine was at the time of the collision. At some point before the trial Mr. Herzog showed me a Motion that Brewer Leasing had filed with the Court (I believe in conjunction with other defendants, including Mr. Hitchens) to exclude the evidence from the Houston Police Department investigation that Mr. Hitchens had cocaine in his system at the time of the collision. We had no evidence that indicated the amount of cocaine in Mr. Hitchens' system. Brewer Leasing was contending in writing in the document filed with the Court that there was no evidence or quantification as to how much cocaine was in his system, and that without that evidence we could not show that the cocaine had any relevance to his driving behavior. We were unable to dispute the Motion. Starting Friday afternoon April3 and continuing most ofthe day Saturday, April4, 2009, a variety of settlement discussions were initiated by individuals other than me. During this time I had no information that indicated the quantity or specific level of cocaine in Mr. Hitchens' system at the time of the collision. Page 2 of 4 83 02/28/2012 04:32:32 PM 713-755-1451 Page 73/75 In April2009, before trial, during settlement discussions, and during the trial I never knew when Mr. Hichens ingested cocaine, how much cocaine he ingested, or what the level of cocaine was in his system at the time of the collision. In privileged discussions relating to filing this suit I learned for the first time that Mr. Hitchens had a level of 43,444 nanograms. I also learned for the first time that Brewer Leasing and its lawyers knew this information as early as February of2007, discussed the information between themselves and the insurance carrier in February and March of2007, concealed it for two years, and lied to the Court in writing when they filed the Motion just before trial to exclude the evidence of cocaine. I was furious at the abuse of the judicial system. I still am shocked and angry at their conduct. If I had known that Brewer Leasing was concealing the truth for two years and had lied to the judge, to me, my children, my lawyer, and other parties and lawyers in the written document that they filed with the Court, I would not have entered into an agreement with them to not execute on their assets or take an assignment in the future of their rights. Brewer Leasing's failure to tell me the truth, and their specific false written statements with regard to Mr. Hitchens cocaine level, were essential ingredients in obtaining my consent to not execute against the assets of Brewer Leasing and were essential ingredients to my agreement to later step into the shoes of Brewer Leasing in its dispute with its insurance carrier, Home State County Mutual Insurance Company. I would never have agreed, signed, or allowed my lawyer to negotiate the Covenant to Not Execute and Agreement to Assign Claims in the future that were negotiated and agreed to that weekend if I had known then what I know now with respect to the truth concerning Mr. Hitchens' cocaine level and the truth with respect to Brewer Leasing's concealment of that cocaine level for over two years. Now I am in a position of having to continue the lawsuit process, regardless of its turmoil and cost, to get at the truth of what happened. Brewer Leasing cheated me, my children, our lawyer, the other injured people, their lawyers, Williams Brothers and Bellew & Sons, and their lawyers." Further Affiant sayeth not. Page 3 of 4 84 02/28/2012 04:32:32 PM 713-755-1451 Page 74/75 SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand and seal of office on the a1tf.-day of r~ f u({ Page 4 of 4 85 Appendix 6 02/28/2012 04:32:32 PM 713-755-1451 Page 64/75 CAUSE NO. 2011-64488 MARCUS BRENT PATTERSON, § IN THE DISTRICT COURT INDIVIDUALLY, AS INDEPENDENT § ADMINISTRATOR OF THE ESTATE OF § DIANE PATTERSON, AS NEXT § FRIEND OF DANIEL PATTERSON, § DANAE PATTERSON, and DANIEL § PATTERSON (now 18 years of age), § § Plaintiffs, § § v. § 334th JUDICIAL DISTRICT § BREWER LEASING, INC. § § Defendant. § HARRIS COUNTY, TEXAS AFFIDAVIT STATE OF TEXAS § § COUNTY OF HARRIS § BEFORE ME, the undersigned authority, on this day personally appeared Harry Herzog. After being duly sworn Mr. Herzog stated under oath as follows: "My name is Harry Herzog. I am over the age of 18, of sound mind, and have never been arrested, charged, or convicted of any crime. I have personal knowledge of every statement contained in this affidavit. Every statement in this affidavit is true and correct. I. Backeround. I was hired by Marcus Patterson to represent his family with regard to the death of his wife, Diane Patterson. Despite many efforts on our part we were unable to ascertain precisely who was responsible for the collision, or begin a comprehensive and detailed investigation of who was responsible for the collision, until the Houston Police Department accident report was released. In January or February of 2007 the police report was finally released relating to the collision that killed Diane six or seven months earlier. Page 1 of 7 EXHIBIT Cj 75 02/28/2012 04:32:32 PM 713-755-1451 Page 65/75 The HPD accident report indicates Mr. Hitchens was responsible for the collision and an illegal substance contributed to the collision. (See Exhibit 3, second page, factors 22 and 68). In the course of the next two years I engaged in a variety of conduct in an effort to ascertain exactly what illegal substance Mr. Hitchens consumed, what the level of the substance was, and to obtain proof that the substance impaired his driving behavior. I was able to learn that Mr. Hitchens tested positive for cocaine. (Exhibit 4). However, we were never able to learn before the April 6, 2009 trial what the level or quantification of cocaine was. Mr. Elwood, a skillful and capable attorney working with Mr. Ramey on behalf of defendant Ray Bellew & Sons, attempted to obtain lab testing results by a Deposition on Written Questions. He failed. Since then I have spoken with the responsible individual at the deposition company who advised me that the lab refused to comply with the Deposition on Written Questions and refused to provide any information. Mr. Elwood has confirmed for me on several occasions that he was unable to obtain any satisfactory response to his Deposition on Written Questions. While I was working with Mr. Elwood in an attempt to ascertain the level of cocaine I was also working with a variety of skillful and experienced plaintiffs counsel representing various injured individuals. None of us were able to obtain the infonnation that quantified the level of cocaine. In addition to working with other plaintiffs counsel and with Mr. Elwood on behalf of a defendant, I also attempted to ascertain the cocaine level by communicating with the Harris County Assistant District Attorney, Warren Diepraam, who was the point person with respect to the criminal investigation of Mr. Hitchens. Mr. Diepraam assured me that he had been unable to ascertain the level or quantification of cocaine in Mr. Hitchens' system, and without that infonnation he was unable to charge Mr. Hitchens with homicide. Brewer Leasing filed a document with the Court in which Brewer Leasing contended that there was "no evidence that Mr. Hitchens was impaired," that there was "no quantification as to the amount of cocaine" in Mr. Hitchens' system, that there was "no information" as to whether the substance tested was cocaine or a cocaine metabolite, and that since there was no quantification on the amount of cocaine, no information as to whether it was cocaine or cocaine metabolite, and there was no evidence that Mr. Hitchens was impaired, the positive drug test on Mr. Hitchens for the presence of cocaine should not be admitted into evidence at the trial of the case. With great reluctance Mr. Elwood and I agreed to the proposed Order since we had no information that contradicted these claims by Brewer Leasing. Page 2 of 7 76 02/28/2012 04:32:32 PM 713-755-1451 Page 66/75 II. No neelieence. The claims by Home State that I was negligent with regard to failing to discover the cocaine level of Mr. Hitchens, and that I learned of the cocaine level of Mr. Hitchens in August of2010, are completely false and unsupported by any facts. I spent a significant amount oftime and a great deal of effort trying to investigate and prove the cocaine level of Mr. Hitchens. My efforts, and the efforts of the other lawyers, exceeded ordinary care. In light of the efforts by Brewer Leasing and its counsel to conceal the truth I do not know how any lawyer representing any plaintiff or any defendant could have obtained the truth. I am not an expert on criminal procedure so I do not know what the limits are with regard to the subpoena power of an Assistant District Attorney or a grand jury, but it appears that the only way anyone could have overcome the efforts to conceal the cocaine level would have been for the District Attorney's office or a grand jury to subpoena the records from the testing service. The claim that I first learned of the cocaine level in August 2010 is a false fantasy. In August 201 0 for the first time Mike Hays and his finn made available to me "the file" of George Jackson with regard to the underlying case. But the reality was that the documents I was shown were limited. I did not see the February 2007letter from Mr. Hays, the investigator's report, or the initial report of defense counsel. In addition, numerous other boxes containing numerous other documents were not revealed to me. None of Mr. Jackson's emails were provided (many are still not produced), his letter to the mediator was not provided (and still has not been provided), his notes from his first meeting with me were not provided (and still have not been provided), and various other documents were not revealed to me. I first saw Mike Hays'letter ofFebruary 2007 and George Jackson's initial defense attorney status report either the last week of October or the first week of November 2010. I saw them from one of two sources. First, Home State finally produced documents responsive to a Request for Production many, many weeks after the responses were due. Their lawyer gave me a disc with thousands of pages of documents on it at the conclusion of a court hearing that took place on Friday, October 22, 2010. In addition, Home State sent Requests for Production which compelled the production of various documents from Mr. Hays' firm, including Mr. Jackson's file. I immediately complied with the Request for Production and tried to produce documents within a week, rather than waiting thirty days. When I went to Mr. Hays' office to coordinate the production and to meet with Mr. Nick Morrow (an attorney for Home State who decided not to attend), I learned for the first time that Mr. Hays had additional boxes of documents that he was "now producing." I watched in amazement as box after box were gradually brought to me, all of which had been concealed from me in August. I, of course, rapidly scanned through the Page 3 of 7 77 02/28/2012 04:32:32 PM 713-755-1451 Page 67/75 boxes and had the material in the boxes copied. The materials that revealed the cocaine level were produced in late October 2010 from Home State and from Mr. Hays. I have vivid memories of my shock, anger, and disgust when I first saw the information. Another false claim (made with no evidentiary support) was that I designated Mr. Garrett Tucker as an expert because I knew the results of Mr. Hitchens' cocaine test. The reality is Mr. Tucker never spoke with me. He refused to speak with me or anyone in my office (other than to say he would not speak with us). I designated Mr. Tucker as an expert solely to open the possibility that if I learned what the cocaine level in Mr. Hitchens system was I would have a witness who could testify to the jury at the time of trial. With regard to the filing of the Bill of Review, we tried to place the case in the 334' 11 • We sent a cover sheet noting for the clerk that the case had to be in the 3341h due to its nature as a Bill of Review, with the underlying judgment having been issued from the 3341h. (See Exhibit 11). Between early November 2010 and the filing of the Bill ofReview lawsuit in October 2011 a variety of activity occurred. It would be accurate to characterize the activity as follows: first, shock, anger, and dismay at the concealment of the cocaine level of Mr. Hitchens. Second, an investigation, as best as we could conduct, with regard to how the matter was concealed and how the truth could be proven. This involved, in part, the deposition of Mr. Jackson. The deposition of Mr. Jackson was delayed and moved, at his request or at his counsel's request, to June of2011. Third~ without waiving the attorney client privilege or the work product exemption, it is accurate to say that after the investigation was completed the matter had to be discussed among the various individuals involved on our team and with Mr. Patterson. The decision had to be made whether to file the Bill of Review, and that decision was certainly not made lightly. III. Inducement. In 1anuary 2009 this case seemed incapable of settlements. On January 28, 2009 I was diagnosed with cancer. I delayed treatment to get the Patterson case resolved. With the courteous assistance of opposing counsel and Judge McCally, the trial setting was adjusted from a two week docket of March 30--- April 10 to a preferential setting to start April 6, 2009: this allowed me to schedule surgery with a level of comfort that I would not be in trial after April 24. On the afternoon of Friday, April 3, 2009, I received an unexpected call from Page 4 of 7 78 02/28/2012 04:32:32 PM 713-755-1451 Page 68/75 Amanda Hilty. She was lead counsel for Sagamore Insurance in their suit against Texas Stretch (Hitchens' employer) seeking to deny any coverage or duty to defend. For the first and only time Sagamore made a realistic, legitimate settlement offer. Thus began 24 hours of unanticipated, complex, multi-party settlement discussions. At no time during these discussions did I know that the Joint Motion to exclude Mr. Hitchens' positive drug test result (Exhibit 8) was full of lies, false misrepresentations, and concealment of the truth. I, my wife, and my son had been friends with Marcus, Diane, Daniel, and Danae Patterson for many years when Diane was killed. Marcus trusted me and relied on my legal advice as we navigated the maze that became the legal landscape of the dispute. The wreck generated three lawsuits involving the Patterson family, with over a dozen parties and dozens of witnesses, at that time. I never would have advised Marcus to accept an assignment of claims in the future or foreclose his ability to recover uninsured punitive damages from the assets of Brewer Leasing if I had known the truth about Mr. Hitchens' cocaine level. I was deceived by Brewer Leasing in this regard. IV. Gross neflliJ:ence. Without proof of a cocaine level Icouldnotprove Mr. Hitchens operated the 79,940 pound vehicle while impaired by cocaine, and without proof of impairment I did not think gross negligence could be proven by clear and convincing evidence to all twelve jurors selected. I had been a licensed attorney for over 26 years at the time of the trial. I had been board certified in civil trial law for 20 years and civil appellate law for 16 years. I had recovered punitive damage awards ten times for plaintiffs, and my clients had been hit for punitive damages four times, so I had significant trial and appellate experience on all sides of the punitive damages debate. One of the driving reasons for accepting the two agreements with Brewer Leasing and then dropping the claim for punitives (which was not part of any agreement) was the inability to prove cocaine impairment. While it is impossible to perfectly predict the behavior of an opposing lawyer or a jury, I believe any human being with knowledge of the whole truth has to agree that Mr. Hitchens' driving that almost killed Sheryl Skinner and then did kill Diane Patterson was grossly negligent behavior. No one can seriously claim that driving 79,940 pounds at highway speed while impaired by 43, 444 nanograms of cocaine so that on a flat highway for a mile, on a clear morning, they don't see eight stopped vehicles blocking all lanes of traffic, one or two motorcycle escort vehicles with emergency flashing lights in operation, and an 198,000 pound, 160 feet long, 50 wheeled vehicle approaching is not grossly negligent. Page 5 of 7 79 02/28/2012 04:32:32 PM 713-755-1451 Page 69/75 V. Exhibits. Attached to the Motion for Partial Summary Judgment are true and correct copies of the following documents: 1. LabOne form reflecting Charles Hitchens' specimen collected June 15, 2006 at 1:29pm (produced by defendants in collision case)~ 2. Tx.DOT form reflecting Charles Hitchens' speimen collected June 15,2006 at 1:24pm (produced by defendants in collision case); 3. HPD collision report (verified by HPD in deposition of investigating officer Dane Harwell); 4. FleeScreen results ofTxDOT test (produced by defendants in collision case); 5. Mike Hays' letter to Geroge Jackson dated February 12, 2007 (produced by Mike Hays); 6. George Jackson's February 26, 2007 Initial Status Report to Home State (produced by Home State); 7. Harris County Case Decline report (produced by Brewer Leasing); 8. Joint Motion to Exclude drug test (filed by Brewer Leasing); 9. This affidavit (the original); 10. The affidavit of Marcus Patterson (the original); 11. Civil Case Information Sheet which I signed; 12. Aerial photo of scene on June 15, 2006 (produced by HPD); 13. Photo of Brewer Leasing vehicle at scene (produced by Williams Brothers); and 14. Photo of Diane Patterson's Ford Expedition at scene (produced byTxDOT)." Further Affiant sayeth not. Harry Herzog Page 6 of 7 80 02/28/2012 04:32:32 PM 713-755-1451 Page 70/75 DQtN. .ENI£ DIC1(SON MY COMMISSION exPIRES Qlillllel' 17, 2015 Page 7 of 7 81 Appendix 8 Who employed Charles Hitchens? In the first case Texas Stretch spent 1,000 days denying employing Charles Hitchens while Brewer Leasing implied they were the employer. The documentary evidence conclusively proved the opposite. Charles Hitchens applied for a job with Texas Stretch (PX 307), signed an employment agreement with Texas Stretch (PX 308), received Texas Stretch trucker policies (PX 309), gave his time to Texas Stretch (PX 310), was paid by Texas Stretch (PX 311), and was dispatched on June 15, 2006 by Texas Stretch (PX 324; AB p. 109) while hauling a load for Texas Stretch (PX 325). After the General Manager of both companies testified that the lawyerly position was ludicrous and that Texas Stretch employed Charles Hitchens, then and only then – the week before the first trial – Texas Stretch finally admitted it employed Charles Hitchens. (PX 335). Appendix 9 LEASEAGR.EEHENT TRACTOR OWNE:R.'-LT-ri"-::x_A_s_S_0_~_t_.:._j(_c....:_)l__..,:.~_n~_c_s. s. No._ _ _ _ _ __ _ _ _PHONE No. 713 6 11 J.. I '7 7 ADnREss_----'1-!)r-/...::::...o-=s--:..S-!-/c-=-J-=-N-!.../L~'c.::.:...:::f(_ f/aU.>/onJ 11~ 'l7o9J ::::~_S_NAH:E__====/:z:\-r1-z:~:z=:7=~~::_-_-_-_-_-_-_-_-:__ :_ _;:~0~ ::~================= . B IJ..£"wl;-12. LH-}S;..Jfr '£1VC • 1 ocated at: :J../ 0 J S /C:.J/V/VEIC J-ioo..('/0 IV ;I,X 7.7093 herein after referred to as lessee and TE){/)5 STR.ETCJ.i :f:/'!IC. • ~a~/70~3~5_/C_I_N~~~E~~~f{~a~U~-~CT!~O~A-/~J~~/~/~Zud~~9~3__-_ __________ . ______~~--, herein after-referred to as Lessor. do hereby enter into this agreement for the 1ease of the fo1lowing equipment under the e~ress terms and condit~ons set forth be:lmt: In ~onslderation of the provisions and covenants herein contained, it is mutually agreed as foll~s: 1. The Lessor's rate of pay shall be 2Q_ percent: for power nnit and .36 percent for tractor trailer combinations of the Revenue on freigbt moved all Tar±ff. 2. Th.at Lessee t.rill place signs on said equiplllent shawing that: this equipment is leased to and operated by lessee and that. upon termination of this contract by either party such signs vil1 be removed by Lessor, And Lessor agrees the fai1ure to remove such signs will result: in damages to Lessor. 3. 'That Lessor will equip said equipment vit:h lights and reflectors as re- ,quired by the Interstate Co~rce Commission and provide all accessorial equipment as required by rules and regulations on said equipment at All t.ime.s when in use of Lessee, and keep the equipment up to the ~nimum ~echanical requiremencs as se~ forth ~n the rules and regulations. lessee reserves the right to inspect said equipment at any time or place while in its use to assure compliance with such pro~ions. 4. That tessoT will obtain and pay for all necessary state license tags and registrations and affix same to said equipment and pay for and supply all gasoline. oil, tires, repairs, and supplies necessary t.o JJaintain operating efficiency. Further, Lessor shall p.ay all mileage, fuel, and hi.gbway taxes and post all bonds necessary and required by various states. 5. 1bat ~t is exp~essly understood by the parties hereto tba~ all drivers. helpers and/or agents of Lessor used to fulfill thi.s contract are employees of Lessor and Lessor assumes responsibili f g ~bese dc!Qets, helpers. • • . per a n n~ to hou-rs of service -and ma~ntenance of e~u~p~nc and shall as~ure that all drivers maintain a da~ly log as required aud forward to Lessee said log sheets daily . .· !. PLAINTIFF'S § EXHIBIT w \;( ~02... ~ 6. Lessee does not agree to furnish physical damage insurance for Loss. 7. That Lessor will furnish Lessee with a doctor's physi~al examinat~on certificate on any and all driveYs of said equipment in accordance vith the Rules aud 'Regulations of I.C.C. 8. That Lessee assumes and will be responsible for and agrees to furnish adequate protection to the public and the shipper.R for sutomobLle bodily injury, praperty damage, and cargo liability. 9. That during the tenns of this agreement, Lessor will fun:dsn adequate protection as to render L9ssee ha~less from claims arising from dama~e or injury to any third party resulting from bobtailing of Lessor's equipment. 10. That during the terms of this agreement, said equipment will be made available to and controlled by Lessee at all times. and all drivers and other employees of Lessor used in connect~on witn this contract will also be under full control, direction and supervision of Lessee, or its agent. l.L That Les.sot" agrees that equipment herein described i.s to be used ex- clusively by Lessee and in t:he event said Lesso-r, his driver. eD~ployee. or agent shall (ieviat:e from the t:e:nns of this contract. by t:b.e transport:at:ion of freight for another, either gratuitously, or foy hire, or by deviation fro~ other terms. then rhis contract is automatically suspended until the equip~nt is returned to service of Lessee, and that Lessee shall be harmless fr~ such deviation. 11. That this agreement shmen/s. :!or's Name fPAIN~•rst. ~.EJ..,~,- __ --, .- X.- -. / ClVl~E f:: lr::li ·~L:....._-'-·-__J~IV II "l !i i~l95L2}_1.["ti /- :Qil~_J ~·-~ ~·j...:___j...::::...__' I ,. S.gn•IYJr·Of Conec1ot Is~_Eci~~N -~oTTLE_~~) ,~~~-~~s~D ;~=_: __:.....___,_••-' -· - L_..j Jl Collecti011 T1me o1 Collection ~ .---,~-~ 6J-LL!L£-!C ~~ !~ ,:'Jl L.J~ ["Tii?.! ._:::::.1 :__f__j - 'AM rp,( _____;M ) DAY YR HR MIN L___ Name ot 0-eh .... ery Serv1ce Trans:emng: Spec•men to Lab :EIVED AT LAB Primary Specimen SPECIMEN BOITLE(S) RELEASED TO: S'Qnalure of Ar;e~!i!iiDni!!'J ... 0 Yes Bottle Seal Intact ti51"iiNTI Accessooner s Name fFor•t MI. la5tl O;o.te lMo.!OayiYr) ~ 0 No. Enter Remark Below ;p 5: COMPLETED BY DONOR certify that !provided my urine specimen to the collector; mar J nave not adulterated it in any manner: each specimen bottle used was sealed with a tamper- viQ.~i seal in my presence: and tfl~t me information provided an this form and an tfle !Hbel affixed to eadl specimen bo!tle is correct. - r r·/ /~· ~~ {/; ,.J·-' ;:/ _._..-;'Jio.-,c~/·~· _,. / .- ,- ( ---- · ·· ·-~- ·-· / · ·/'---··---·-- ~-l: / r-.1 - • 1 ' ' - 1~ • • • '.: / ' /;:_"" -, Sqlalutlt of Doner (PAINT I [)ongr's Name 1F11st loll Las!l O.ote (t.loJOay'Yr I >aytime Phone No Evening Phone No_ t""7/ j ( :.· I I ;y\~.,. Date of Birth 7Mo. I 1 Day - {i • Yr. :hould the results ot lhe laboratol)' tests lor the specrmen identified by th1s form be ccnlirmed positive. the Medical Review Officer will contact you to ask bout prescriptions and over-the-counter medications you may have taken. Therefore, you may want to make a list o' those medical ions tor your own records 'HIS LIST IS NOT NECESSARY. II you chose lo make a list. do so either on a separate piece of paper or on the back of your copy (Copy 5). - DO NOT 'ROVIOE TH!S INFORMATION ON THE BACK OF ANY OTHER COPY OF THE FOAM TAKE COPY 5 WITH YOU :p 6: COMPLETED BY MEDICAL REVIEW OFFICER· PRIMARY SPECIMEN lccordance with applicable Federal requirements, my determination/verification is: 0 NEGATIVE 0 POSITIVE 0 TEST CANCELED 0 REFUSAL TO TEST BECAUSE: 0 DILUTE 0 ADULTERATED 0 SUBSTITUTED MARKS __________________________________________________________________________________________________ !PAINT 1 M~d1cal ~ev•ew Olloeerintl CFi:'J.- ;_.. ;;' I I6 :; B: SSN or Employee ID No. ~_:;. ~..:> ::::: - ~~. ~f.L;x.t> .)TRI!Tc.H J:;...L- ..... C: Employer Name !::: •: Street ··. ;~ ~- City, Sf ZIP ' '" DERNamtand __..- ...... -~ _,.... ~": Telephone No. 00~ r:::tUTO 0 1 · 2:4 ,:;- ;_~dY~---------- DER Na!M DER (A.rra Code & Phone Number) ...~ D: Rea50n for Test: OJUndom 0Rononabl• SUip. ~l·Acddml 0Rrtum to Out~ 0Foll-o,.·up Drrr·cmploym~nl ~ -~a STEP 2: TO BE COMPLETED BY EMPLOYEE Date Month Da~ I Yur ..- STEP 3: TO BE COMPLETED BY ALCOHOL TECHNICIAN (lr the lechnkian conductio~ the screening lesl is not the same technician "'ho will be conducling the confirmation lest. each technician must complete their own form.) I certif~· !hat I ha•·e conducted alcohol testing ltn the abo,·e named indi•idual in accordance with the procedures established in the U.S. Oeputment of Tral'lsporlation regula1ion. 49' CFR Pari 411. lhat I am qualified to opcra)e 1he luting d~•icr!sl id~nlilied, and I hat lh~ resull~ are as recorded. TECH~ICIAN:Ccl1hT OSTI DE\'ICE: OSALJ\'A [)J1(REATH• 15-MinuteWait: DYes 0Nol SCREENmG TEST: (For BREATH DEl'ICE' ~>rtre 1111he space /:>elo .. · Q!1b. rf liu: tesmrg de1•ice '-' wu designed Ill a.ti!JJ..I Test fl Rosull CONFIRMATION TEST: Resulrs MJ1SI be affixed ro e"cl' copy of thiS jomr or pr!nted d1r~ctly onto the form. REMARKS=----------------------------------------------------------- Pllone l'oumber tA.re-4 Codr & Nurnber) Datr ' !\1unlh Is~ oL o.. ~ I \' ~ar STEP 4: TO BE COMPLETED B'f EMPLOYEE lF TEST RESllL TIS O.fJZ OR HIGHER )1'1!nif) tllat I ha~e submitled to the alcohol test. the rrsults nr which are accurately recorded on this form. l understand lhal I musl not drh·c. perform safrt:r-so:nsith·e dulit!S. or operate he:wy equipment because the results art' ().0~ or greater. 44 Date ,\lonlh U,j/UO/LUl~ u;:s:o/:29 PM 713-755-1451 ..... -. Page 3/57 4 j..r,;;r•• ...,I ,~ 11U\,.1'114C:I -. 1 ...... .....-. ...,.-.,p, 1'"-VVU 1\..1 1--, r->.'""' • - -·- FleetScreen, Ltd. 6000 Western Place Suite 480 Fort Worth, Texas 76107 ATTENTION; Butch Brewer Te:ns Stretch, Inc. Participant Charles Hitchens 2103 Skinner Road Participant ID: 337 Houston, TX 77o93 SSN: 463-45·8865 Results of DOT Controlled Substance Test Record Status: Positive Laboratory: labOne, Inc. Test Type: Post-accident Test 10101 Renner Boulev.ud Colle[eHIOnal Corporation 400 Two Allen Cenler I 1200 5milh 51reel I Hou$ron, Texo$ 77002 T&lo>nhn"• 711 .... ~4 11' I I Fnnimil .. 711 ... ~n nrn7: hnven .::::t the scene, from a helicoptor, that was on their website. Although I captured it on my computer, I can't put it on a CO. It does show the scene and the layout of the wrecked vehicles following the accident pretty well. Much of the video deals with the burning Ford Expedition. The Expedition is damaged so badly that you can't make out what kind of car it is. \f.Jhen I saw the car later, I could not tell what color it was from a distance because all the paint was burned off. I have prepared a diagram which is attached, which shows the vehicles involved in the accident. It shows where they ended up. It is certainly not to scale but I believe fairly accurate. The confusing part is "How did the Expedition end up in front of Pankey's and Valdez' vehicle?" Could it be that Pankey and Valdez piled up in a separate accident, behind our accident, or were they ·part of our accident? On June 20, Butch Brewer and I went over to the storage lot called KTC, located at 1700 Brittmore, Houston, Tx phone 713 468 4242, where tr"le Texas Stretch truck is located. On arrival, we were allowed to look at our truck but told not to look at any other vehicles involved in the accident We saw from a distance, severa.l cf the vehicles. It appears that maybe ail the vehicles are there, except the long bad which was drivable from the scene. Vve did not see the iong toad tru~k or the motorcycle (but !t lil\e!y wes there also). VVe did see from a distance the Cyc!ons CyHnder truck, the silve-r car (Pan!~ey), the 'IIVhtte van \-fatdez:), z.nd 50 03/08/2013 03:57:29 PM 713-755-1451 Page 9/57 f1Jir. John Johnson June 22, 2006 Page4 the burned Expedition (Patterson). I shot some picturas of the Te~~as Stretch 02 Peterbuilt and the van and car (from a distance}. My photos are attached on a CD marked Pollard pictures and the developed pictures from the CD It should be noted that I saw blue paint on the left front of the Peterbuilt and on the right fmnt but at a glance it did not appear the same color blue as the Durango. Butch and I believe the Expedition was also blue but can't be sure. Butch tool~ some additional photos inside the Peterbuilt at that time. I have also spent some time tr{ing to contact people connected to the case, in hopes of finding out what happened. I found John Pankey's home at 23730 Hopewell Dr, Katy, Tx 77493 and left a business card with his wife. Pankey responded by phone and gave me phone 281 727 6886. Pankey says he was traveling I 10 in the left hand lane of traffic and encountered the motorcycle cop stopping traffic on eastbound I 10 for the long load that the cop was escorting. Pankey stopped in the left lane as he thought he was supposed to, and was the first car in the left lane of traffic. He said the white van driven by Valdez was stopped behind Pankey. Pankey said our truck rear ended the Expedition, the Expedition was knocked into Valdez, and Valdez was knocked into Pankey. Pankey then claims that our truck then pushed the Expedition on down the road vJhere it began to burn. Pankey said he was alone :n his Chrysler car and has scme injuries. I also talked by phone to Sgt. Stan Jolly, Harris County Constable Pet. 4 deputy, phone 281 376 3472, 6831 Cypresswood, on June 19. He was back at work that date and said he had some injuries but was back to work. He did go to a hospital from the accident scene. Jolly said he was driving his own motorcycle and he and another officer were escorting two long loads on I 1 0, on feeder road eastbound. He said he had his red lights and emergency siren going and that he was leading the convoy. He got up on 110 and stopped traffic in the right two lanes of traffic. He did not intend for the far left lane to stop but they did also. He said all three eastbound lanes of traffic were stopped without any problems. The first tong load truck entered the freeway at the entrance ramp and went on through with no problems. The second long load was just feeding up onto the freeway wher. Jolly heard the crash. Jolly was near the Cyclone Cylinder truck and saw the Cyclone truck being pushed towards Jolly. Jolly then felt an impact which he thought was a vel1icle but it turned out to be the smoke stack from the Texas Stretch truck. Jolly estimates he had the traffic stopped for about 15 seconds when the accident happened. just after Jolly was hit he looked over and saw the Exped\tion on flra. He said our truck after hitting Jolly, went ahead and struck the long load truckltrai!er in the rear. He said all three lanes of traffic were stopped and t11at our truck just came along and stacked them afl up, causing the whole 8-ccident. 51 03/08/2013 03:57:29 PM 713-755-1451 Page 10 /57 f1.fJr. Johrt Johnson June 22, 2006 Page 5 I checked Hitchens' criminal record on vi/hat I call the Texas Statewide search, and it was negative, see attached document I then did a 25 year search in Harris County on Hitchens and found the possession of marijuana back on Jan 22, 1985, which was a conviction. got 3 days in jail and a fine. Also on 9-18-83 Hitchens was charged with unlawfully carrying a weapon but it was dismisssd. VVhile there at Harris County, I also checked Pankey and Diane Patterson and found nothing. I also spent some time on the phone trying to contact the insurance carrier for Texas Stretch. The company adjuster at 888 389 0598 X 739, Kenton Kaplan, gave me claim# 000470329131 for the case, and said he had assigned it to independent adjuster Mike Alton. Crocker Claims, phone 832 593 0766 in Houston. I called Alton and gave him some details on the case s!nce he was getting a late start. r also made a trip down to the Houston P·:>lice Department, the Accident Division, 81 Reisner, Houston. I learned that HPO officer Dane or Dale Harwell is the main investigating officer. Another offic-er named Rene Paloma {a male) to!d me the case was still under investigation and it would take a 1Nhile before the report was ready. He mer1tioned that the District Attorney was involved in the case. From my experience, it is going to be several weeks, possibly a month, before the report is ready_ My file is open pending further instructions. twill follow up with HPD for the report when it is ready. 52 03/08/2013 03:57:29 PM 713-755-1451 Page 11 /57 CAUSE NO. 2006-76647 MARCUS BRENT PATTERSON § IN THE DISTRICT COURT OF INDIVIDUALLY AND AS NEXT § FRIEND OF DANIEL PATTERSON § AND DANAE PATTERSON § § HARRJS COUNTY, T EX A S V. § § BREWER LEASING, INC., TEXAS § STRETCH, INC. AND CHARLES § HITCHENS, INDIVIDUALLY § 334th mDICIAL DISTRICT Joint Motion of Defendants Brewer Leasing, Inc., Texas Stretch, Inc. and Charles Hitchens to Exclude Evidence: Positive Drug Test and Old Weapon Charge Not Admissible COME NOW, Defendants BREWER LEASING, INC. ("Brewer Leasing") and TEXAS STRETCH, INC., ("Texas Stretch") and CHARLES HITCHENS ("Hitchens"), INDIVIDUALLY in the above-entitled and numbered cause, and file this Motion to Exclude a!] evidence and testimony regarding a positive drug test and an old weapon charge of Charles Anthony Hitchens ("Hitchens") and would shows the Court as fol1ows: I. Background This matter involves a multiple car collision which took place on Interstate Highway 10 in Texas. Hitchens drove an 18 wheeler that was involved in an accident. After the accident, Hitchens cooperated with the police, was alert and was not impaired. Later, Hitchens tested positive on a urine test for the presence of cocaine. In addition, the police accident report includes information concerning prior weapon charges that have no bearing on any matter in dispute here. EXHIBIT _ill_ 53 03/08/2013 03:57:29 PM 713-755-1451 Page 12 /57 II. Any Testimony Concerning Drug Testing or Alleged Drug Use Should Be Excluded A. Evidence of Drug Consumption is Inadmissible. Evidence of alcohol or drug consumption is inadmissible in a case involving an automobile accident unless there is further evidence of impairment that caused the accident. See, Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727 (Tex. App.--Beaumont 1991, writ denied); Bedford v. Moore, 166 S.W.3d 454 (Tex. App. Fort Worth 2005, no pet.); Dorman v. Langlinais, 592 S.W.2d 650 (Tex.Civ.App.-Beaumont 1979, no writ); Rampel v. JVascher, 845 S. W.2d 918 (Tex. App. San Antonio 1992 writ denied). For example, in Bedford v. Moore, Edwin Bedford was involved in a motor vehicle accident with Rita Elaine Moore. Mr. Bedford died as a result of the accident. Following the accident, Moore tested positive in a drug screen for methamphetamines. See Bedford v. Moore, 166 S.W.3d 454 (Tex. App. Fort Worth 2005, no pet.). The Plaintiff in the Bedford case attempted to offer the testimony of Dr. Daniel Drew, a physician retained by the Department of Transportation who had analyzed the drug screen conducted on Moore. Upon objection, Dr. Drew was not allowed to testify about the correctness of the examination and the effects methamphetamine can have on an individual. Mr. Bedford also attempted to offer the lay testimony of witness Ronald G. Curry that Moore appeared to be under the influence of drugs at the time of the accident and that she appeared to be "hyper." The trial court excluded all evidence concerning the drug screen and its results. /d. The Court of Appeals affirmed the trial court's ruling, holding: [E]vidence of drug usage must provide some explanation for the negligence and improper conduct. However, this was not present under our facts because Dr. Drew could not tie the presence of methamphetamines in Moore's body to impairment at the time of 54 03/08/2013 03:57:29 PM 713-755-1451 Page 13/57 the accident, and therefore could not connect the presence of the drug to causation. ·ld at 465 (emphasis added). The Court of Appeals liltimately held that because Mr. Bedford presented no evidence that the drugs actually impaired Moore at the time of the accident: "there was no evidence that the presence of the drug was a causative factor in the accident. We hold that the trial court did not abuse its discretion by excluding the testimony of Dr. Drew or Mr. Curry." ld at 465. B. There is No Evidence that Hitchens Was Impaired. In this case, none of the many pol ice officers at the scene noted any impairment on the part of Hitchens during the investigation. In fact, the investigating officer, Officer Harwell stated that no officer at the scene stated that Hitchens was impaired. (See, deposition excerpts of Officer Harwell, attached as Exhibit "A"). Moreover~ in the field note section of the police accident report, Officer Harwell noted that, [Hitchens] did not appear to be intoxicated or under the influence of drugs at the scene. The suspect stayed to himself at the accident scene and was on his cell phone most of the time. (See excerpt from the complete HPD accident file, Exhibit #3 to the deposition of Dean Harwell, attached as Exhibit "B"). The scene supervisor, Sergeant LA Washington, confirmed that he did not observe Hitchens to be impaired, and none ofthe officers investigating the scene reported to Washington that Hitchens was impaired or that they suspected Hitchens was impaired. (See, deposition transcripts of Sergeant Washington, attached as Exhibit ··c"). In addition, one of the constables involved in the escort duty who was at the scene, Officer Norris, had special training in being able to spot drug or alcohol impairment, and he did not observe any impairment on the part ofHitchens. (See, deposition excerpts from Officer Norris, attached as Exhibit "D"). 55 03/08/2013 03:57:29 PM 713-755-1451 Page 14 /57 Finally, the District Attorney's office declined to prosecute Hitchens for two reasons. First, the positive drug test obtained on the date of the accident, which was apparently only a screen for any detectible level, provided no information as to whether the substance obtained was actual cocaine or a cocaine metabolite, and contained no quantification as to amount of cocaine found, if any. Second, ... officers at the scene noted no signs of impairment on the defendant. This means either they missed the signs of cocaine use or that the cocaine quantity was insufficient to cause impairment. (See "Case Decline Report" paragraph 4, excerpted from Exhibit #3 to the Deposition of Officer Harwell, attached as Exhibit "E"). Since there is no evidence that Hitchens was impaired, or that his alleged impairment caused or contributed to the accident, this Court must exclude any evidence or testimony regarding the positive drug test from the trial ofthis case. C. Evidence of Drug Consumption is Highly Preiudicial. In deciding whether evidence should be excluded, the court must weigh the probative value of the evidence against its potential for unfair prejudice or confusion, and must examine the necessity and probative effect of the evidence. See Tex.R. Evid. 403. Evidence is unfairly prejudicial if it would tend to persuade a jury to determine an issue on an improper basis such as emotion or bias. Olivarez v. Doe, 164 S.W.3d 427, (Tex. App. Tyler 2004, no pet.) \¥hen a party objects to admission of evidence as unfairly prejudicial; the trial court must conduct balancing test, weighing the danger of prejudice against the probative value of evidence. See Tex.R. Evid. 403; Campbell v. State, 118 S.W.3d 788 (Tex. App.··Houston (14th Dist.] 2003, no pet.). 56 03/08/2013 03:57:29 PM 713-755-1451 Page 15/57 In this case, the highly prejudicial effect ?f the positive test substantially outweighs the probative value of the positive test. Because no causal link between any alleged consumption of the cocaine and any impairment of Hitchens has been established, this Court must exclude all evidence of a positive test or of alleged cocaine use by Mr. Hitchens. This would include any testimony or evidence not supported by scientific evidence. Guesses or suppositions that do not establish the necessary causal link between the alleged presence of cocaine in Hitchen's system and the level of impairment necessary and required by the case law. III. Any Testimony Concerning Old Weapon Charge Should Be Excluded A. Police Accident Report Refers to a 1983 Weapon Charge. The complete HPD accident file, Exhibit #3 to the deposition of Dean Hanvell, contains a Criminal History Report on Charles Anthony Hitchens that states: "Caution 7 Suspect known to carry a weapon," and goes on to describe a 1983 weapon charge, as well as a prior traffic violation (See "Criminal History Report," excerpted from Exhibit #3 to the Deposition of Officer Harwell, attached as Exhibit "F"). There is no evidence of a conviction on either matter, and neither matter mentioned in the criminal history report has any bearing on the causation or liability in this current litigation. B. Evidence of Old Weapon Charge is Highly Prejudicial As noted above, in deciding whether evidence should be excluded, the court must weigh the probative value of the evidence against its potential for unfair prejudice or confusion, and must examine the necessity and probative effect of the evidence. See Tex. R. Evid. 403. Evidence is unfairly prejudicial if it would tend to persuade a jury to determine an issue on an improper basis such as emotion or bias. Olivarez v. Doe, 164 S.W.3d 427, (Tex. App. Tyler 57 03/08/2013 03:57:29 PM 713-755-1451 Page 16/57 2004, no pet.) When a party objects to admission of evidence as unfairly prejudicial, the trial court must conduct balancing test, weighing the danger of prejudice against the probative value of evidence. See Tex.R. Evid. 403; Campbell v. State, 118 S.\V.3d 788 (Tex. App.--Houston [14th Dist.] 2003, no pet.). In this case, the highly prejudicial of old weapon charge and a prior traffic ticket have absolutely no probative value in this present litigation and should be excluded. See Tex. R. Evidence 402 and 403. In addition, the alleged weapon charge occurred more than 25 years before trial and should be excluded under Tex. R. Evid. 609 because (a) Plaintiffs have not given Defendants sufficient advance written notice of intent to use such evidence, (b) there is no evidence of a conviction and (c) the alleged offense occurred more than ten years ago. Prayer For the reasons stated, Brewer Leasing, Inc., Texas Stretch, Inc., and Charles Anthony Hitchens, Individually, pray this Court grant the Motion to Exclude and for all other relief, general or special, at law or in equity, to which they may show themselves justly entitled. Respectfully submitted, BURCK, LAPIDUS & LANZA, P .C. LAW OFFICE OF MARVIN PETERSON 58 03/08/2013 03:57:29 PM 713-755-1451 Page 17 /57 B Ma in B. Peterson TBN: 15846000 Mary Ann Starks TBN: 19071300 4611 Montrose Blvd., Suite A210 Houston, Texas 77006 Tel:713-222-0004 Fax:713-222-0166 Attorneys for Defendant Texas Stretch, Inc. ::srr~z.LS. =~ WilliamS. Bush, Jr. TBN: 03497500 24 Greenway Plaza, Suite 1700 Houston, Texas 77046 Tel: 713-626-1555 Fax: 713-622-8077 Attorney for Defendant Charles Anthony Hitchens, lndi vidually Certificate of Service I hereby certify that a true and correct copy of the foregoing has been forwarded to all known counsel of record as indicated below on this the ~day of March, 2009: Harry Herzog ViaFax: 713-781-4797 Herzog & Carp, P.C. And Ordinary Mail. P.O. Box 218845 Houston, Texas 77218-8845 George Jackson Via Fax: 713-622-8054 Burck, Lapidus & Lanza, P.C. And Ordinary Mail 5177 Richmond Avenue, Suite 850 Houston, Texas 77056 William S. Bush Via Fax: 713-622-8077 Bush & Ramirez, LLC And Ordinary Mail 24 Greenway Plaza, Suite 1700 Houston, Texas 77046 59 03/08/2013 03:57:29 PM 713-755-1451 Page 18/57 Lorin R. George Via Fax: 713-781-2514 Jim Adler & Associates And Ordinary Mail 3D/International Tower 1900 West Loop South, 20th Floor Houston, Texas 77027-3214 Robert L Ramey Via Fax: 713-266-1064 John Elwood And Ordinary Mail Ramey, Chandler, McKinley & Zito One Bering Park, 750 Bering, Suite 600 Houston, Texas 77057 Charles W. Lyman Via Fax; 713-652-2419 Lyman, Twining, Weinberg & Ferrell, P.C. And Ordinary Mail 3600 One Houston Center 1221 McKinney Street Houston, Texas 77010-2009 Michael S. Hays Via Fax: 713-650-0027 Hays, McConn, Rice & Pickering And Ordinary Mail 1233 West Loop South, Suite 1000 ·~~.A-,_._~· Houston, Texas 77027 MARY ANN-81'ARKS 60 03/08/2013 03:57:29 PM 713-755-1451 Page 19/57 Attachments Exhibit A Deposition Testimony, Officer Dane Harwell Exhibit B Excerpt from HPD Accident File (Harwell Exhibit #3) Exhibit C Deposition Testimony, Officer L.A. Washington Exhibit D Deposition Testimony, Sgt. Robert Norris Exhibit E District Attorney's Office "Case Decline Report from HPD Accident File (Harwell Exhibit #3) Exhibit E Criminal Background History from HPD Accident File (Harwell Exhibit #3) 61 03/08/2013 03:57:29 PM 713-755-1451 Page 20 /57 1 I DANE ' t ..' HARWELL 12/2212008 PAITERSON v. BREWER LEASING, INC. Page 1 CAUSE NO. 2006-76647 MARCUS BRENT PATTERSON, ) IN THE DISTRICT COURT INDIVIDUALLY AND AS NEXT FRIEND OF DANIEL PATTERSON) AND DANAE PATTERSON ) Plaintiff } ) VS. ) HARRIS COUNTY, TEXAS ) BREWER LEASING, INC. , TEXAS STRETCH, INC. AND . CHARLES HITCHINS, INDIVIDUALLY ) Defendants ) 334TH JUDICIAL DISTRICT ORAL VIDEOTAPED DEPOSITION OF DANE L. HARWELL December 22, 2008 ORAL VIDEOTAPED DEPOSITION OF DANE L. HARWELL, produced as a witness· at the instance of Defendant and duly sworn, was taken in the above-styled and numbered cause on December 22, 2008, from 10:22 a.m. to 1:47 p.m., ·before Laurie Carlisle, Certified Shorthand Reporter "in and for the State of Texas, reported. by computerized· machine shorthand, at the offices of Hays, McConn, Rice & Pickering, 1233 West Loop South, Suite 1000, · Houston, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto. EXHIBIT CARLISLE REPORTING 713.864.4443 tex.asdepos@sbcglobal.net j A 62 03/08/2013 03:57:29 PM 713-755-1451 Page21/57 DANE L. HARWELL 12-22-2008 PATTERSO~ v. BREWER LEASING INC. 1 Page 21 1 2 .3 4 5 6 7 B 9 10 11 12 Q. And up a third it says supervisor on scene, 13 Sergeant L.A. Washington. Then _it says suspect 14 Hitchens, Charles Anthony. Says, .. The suspect did 15 not appear to be intoxicated or under the influence 16 of drugs at the scene. The suspect stayed to himself 17 at the accident scene and was on his cell phone most 18 of the time. •• 19 Do you know who wrote that portion of 20 this report? 21 A. Looks like what I wrote. 22 Q. And how can you tell that it would be 23 something that you wrote?· 24 A. Because this looks like the original 25 report. CARLISLE REPORTING 713.864.4443 texasdepos@sbcglobal.net d11Belif4-866b-4a2d·a9Db·99f1 0997 4000 63 03/08/2013 03:57:29 PM 713-755-1451 Page 22/57 D/>.NE L. HARWELL 12-22-2008 PATTERSON v. BREWER LEASING, INC. Page 141 1 2 3 4 5 6 7 a 9 10 11 12 1] 14 15 16 Q. Is it fair to say that even if Mr. Hitchens 17 ' tested positive, that that·doesn't necessarily mean 18 that he was impaired because of a positive test, does 19 it? 20 A. No. It just means he has cocaine in his 21 blood. 22 Q. And just be~ause he tests -- or the test 23 came back positive, it does not necessarily mean that 24 that positive test actually caused or contributed to 25 this incident, does it? CARLISLE REPORTING 713.864.4443 texasdepos@sbcglobal.net d1688Sf4-666b·4a2d·a90b·99f109974000 64 03/08/2013 03:57:29 PM 713-755-1451 Page 23/57 DANE L. HARWELL ~2-22-2008 PATTERSON v. BREWER LEASING, INC. Page 142 1 A. No: Q. So this listing of a 68 under factor that 3 may have caused or contributed, that has no basis, 4 either from your opservatibns of Mr. Hitchens' or 5 anybody' s observa t.ions of Mr. Hitchens at the scene. 6 True? 7 A. Well, it goes from the toxicology report 8 that drugs were in his system. That•s where it's in 9 the form. 10 Q. I understand that the toxicology report 11 came back with a positive result. 12 A. Yes. 13 Q. What I'm saying is there's nothing that·' s 14 inherent about simply having a positive result that 15 necessarily caused or contributed to the accident. 16 True? 17 A. Could be true, yes. 18 19 20 21 22 23" 24 25 CARLISLE REPORTING 713.864.4443 texasdepos@sbcglobal.net d18Be5f4·868b-4a2d·a90b·99f109974000 65 03/08/2013 03:57:29 PM 713-755-1451 Page 24/57 : •• T - • 1:1 Jl t '! '!i ., ' !I U a.,. -, ' ' U ' 11) ' U 1J ,. U a, J , U 1) IJ ' , If., U' ' } ' ' .,. ,. "! a' fL II'· U 'f 1L II II' , II it ' ': It H U ' !I~ tl t U' ) 'S ': u' nII I ~cideiit' no~ 0':3:2975405 A CURRENT INFORNATION REPORT . . PAGE 2. 010 !! It II ' ~ ' ,._ ' ; U .ll _, ' ,. J L1 ' l.J J ' 1i J ., n U ' , ' n ' j ' ' U .J •u l ' j ' 7 t ~ ; 1l J H U ; U ' U. U U , ' n_ n ' . U U II 11 !I II ~ ~i i~ , .. ~- ~ ' u ' H II 1 ' . ; ~ Hf:'!LT AND ·1 t~ENT AROUND. HIM TO THE LEFT AND HE STARTED PUSHING PIE INTO THE WALL. I DIDN'T SEE-THE ACCIDENT I HEARD ABOUT IT LATER. DOA ··AT SCENE: DECEASED PATTERSON, DIANE YARBROUGH uRI VER VEHICLE #2 - . MEDICAL EXAMINER. ROXANNE MENA #9011 BODY CAR 9033 fiE CASE:# ML06 1823 ME TOok ANY· ~Ru~cRiY OR .WAS BURNED IN VEHICLE. OFFICER HARWELL TOOK TDL#200401~ IN AID FILE. SUPERVISOR ON SCENE: SGT L.A. WASHINGTON 051675 1Z008D.· SUSPECT: HITCHENS, CHARLES ANTHONY TDL #eJ6832242 DOB 07/13/63 THE SUSPECT DID NOT APPEAR TO BE INTOXICATED OR UNDER THE INFLUENCE OF DRUGS A" THE SCENE. THE SUSPECT STAYED TO HIMSELF AT THE ACCIDENT SCENE AND WAS ON HIS CELL PHONE MOST OF THE TIME. TDL RECORD: 03/11/84 NO LIABILITY INSURANCE MUN p HOUSTON 01/29/88 NO LtABILITY INSURANCE MUN B HOUSTON IZIB/27 /01 OtJER 34, 000 LBS TANDEM AXLE Ct•lV NAVARRO CO 10/05/~f ACCIDENT CMV YES CITATION YES INJURY 12/23/02 ACCIDENT CMV YES CITATION YES NO INJURY 07/16/03 ACCIDENT CMV NO CITATION NO NO INJURY 05/14/05 DENY RENEWAL LTR~1-FTA 07i11/05 DENY RENEWAL LTR*2-FTA 09/07/05 DENIED RENEWAL - FTA 09/08/05 DENIAL LIFTED - FTA 11/02/05 DUTY STATUS NOT CURRENT CMV CMV HAZ NO CASS CO JUT OF .STATE: 07/09/97 SPEEDING 01-10 MPH OVER SPEED LIMIT CMU SOUTH CAROLINA 10/20/98 SHOW/USE IMPROP-OPERRTOR'S LOG CMV WASHINGTON 08/1211/02 SPEEDING Ct"'V CALIFORNIA 09/02/02 SPEEDING CMV CALIFORNIA :R.J;MINAL HISTORY: 09/18/03 ARRESTED CARRY PROHIBIT WEAPON CCCL#12/TERRACINA $800 BONl 09/18/03 TRAFFIC VIOLATIONS MUN CT $81 BOND ********* LAt-.JGUAGE TRANSLATOR ********* :Ot-JAYNE BNJ.!:154 - NO ITN-#06 ALLEN, WILLIE JOHN WM035 - NO -N-ift217 GOFFNEY~ LARRY CHARLES BM031 - NO ~~-EX--=B-..IBIT- -fN~#08 NORRIS, ROBERT WM000 -NO I ITN-#€19. HARTLEY, . CHAD AAHON .WM034 - NO ITN-#10 LYNCH, GR~HAM RANDALL WM032 - NO 66 03/08/2013 03:57:29 PM 713-755-1451 Page 25/57 - - ... L.A. WASHINGTON 1 JR. 2-27-2009 PATTERSON v. BREWE-R CAUSE NO. 2006-76647 MARCUS BRENT PATTERSON . ) IN THE DISTRICT COURT OF INDIVIDUALLY AND AS NEXT ) FRIEND OF DANIEL PATTERSON) AND DANAE PATTERSON- } - ) Vi! • ) HARRIS COUNTY I TEXAS ) BREWER LEASING, INC., ) TEXAS STRETCR, I~C., AND ) CHARLES HITCHENS, ) INDIVIDUALLY ) 334TH JUDICIAL DISTRICT ORAL VIDEOTAPED DEPOSITION L.A. WASHINGTON, JR. February 27, 2009 ORAL VIDEOTAPED DEPOSITION OF L.A. WASHINGTON, JR., produced as a witness at the.instance of the Defendant and duly sworn, was taken in the above-styled and numbered cause on February 27, 2009, from 11:53 a.m. to 12:59 p.m., before Terrilyn Paul, Certified Shorthand Reporter in and for the State of Texas, reported by computerized machine shorthand, at the offices of Burck, Lapidus & Lanza, P.C., 5177 Richmond, Suite 850, Houston, Texas, pursuant to the Texa~ Rules of Civil Procedure and the provisions stated on the record·or attached hereto. EXHIBIT G CARLISLE REPORTING 713.864.4443 texasdepos®sbcglobal.net B88ecbf8·d'!Tc-42 b8-9c6e·b87Bdb15b062 67 03/08/2013 03:57:29 PM 713-755-1451 Page 26/57 'b .A: WASHINGTON I JR. 2-27-2009 PATTERSON v. BREWER Page 23 1 2 3 4 5 6 7 8 5 10 11 12 13 Q. You understand that there's a DOT 14 requirement for a post-accident drug screen to take 15 place, correct? lG A. Yes. 17 Q. You·also understand that simply because 18 someone tests positive for the presence of some type 19 of drug, whether it's cocaine or whatever it might 20 be, the mere fact that they test positive does not :n necessarily mean that they 1 re impaired, correct? 22 A. That's correct. 23 Q. And that's one of the reasons that trained 24 officers will try to make a determination in the 25 field as to whether or not somebody is impaired. CARLISLE REPORTING 713.864.4443 texasdepos®~bcglobal.net 68 B86ecbf8-dT7c-42bS·9c6e-b678db1 !5b062 03/08/2013 03:57:29 PM 713-755-1451 Page 27 /57 ·~~A; WASHINGTON, JR. 2-27-2009 PATTERSON v. BREWER Page. 24 1 True? 2 A. That's true. 3 Q. And in this case none of the officers that 4 were out in the field that spoke to Mr. Hitchens ever 5 told you while this investigation was going on that 6 Mr. Hitchens appeared impaired to them, did they? 7 A. Not as I can recollect. a Q. In fact, if an officer felt as though or 9 suspected that Mr. Hitchens was impaired at the scene 10 of the accident, they would have had an obligation to 11 report that to you. Is that fair to say? 12 A. They would have. 13 Q. They would have had a duty to report that 14 to you, correct? 15 A. Yes. 16 17 18 19 20 21 22 23 24 25 CARLISLE REPORTING 713.864.4443 texasdepos®~bcglobal.net 69 88Gacbf8· d77c-42b8-9c&e·b678db16b082 03/08/2013 03:57:29 PM 713-755-1451 Page 28/57 '.'t,, ... L.A. WASHINGTON, JR. 2-27-2009 PATTERSON v. BREWER Page 25 1 2 J 4 5 Ei 7 8 9 10 11 12 Q. But I guess my question is: \ There was 13 nothing to indicate at the scene of the accident that 14 you were aware o~ or that you were made aware of that 15 Mr. Hitchens was under the influence of any kind of 16 ·drugs to the point where he was impaired, correct? 17 A. ·That's correct. 18 19 20 21 22 23 24 25 CARLISLE REPORTING 713. 8"64. 4443 t~xasdepos®sbcglobal.net 888ecbf8·d77c-42bfl·9clle·b678db15bOS2 70 03/08/2013 03:57:29 PM 713-755-1451 Page 29/57 DEPOSITION OF ROBERT NORRIS 0001 1 CAUSE NO. 2006-76647 2 MARCUS BRENT PATTERSON,) THE CIVIL DISTRICT COURT INDIVIDUALLY and AS NEXT) 3 FRIEND OF. DA~EL ) PATTERSON and·DANAE ) 4 PATTERSON ) ) 5 ) VS. ) 334TH JUDICIAL DIS'rRICT 6 ) ) 7 BR:E~WER LEASING, INC., ) TEXAS STRETCH, INC., and) . 8 CHARLES HITCHENS ) HARRIS COUNTY, TEXAS ·9 10 ******************************************************* 11 VIDEOTAPED AND ORAL DEPOSITION OF l2 SGT. ROBERT NORRIS i3 DECEMBER 16; 2008 14 ******************************************************* 15 16 VIDEOTAPED AND ORAL DEPOSITION OF SGT. 17 ROBERT NORRIS, produced as a witness at the instance of 18 the Defendant and duly S9.!orn, was taken in the 19 above-styled and numbered cause on the 16th of · 20 December, 2008, from 10:07 a.m. to 1:44 p.m., before 21 RHONDA RUSSO, CSR, in and for the State of Texas, 22 reported by Machine Shorthand, at the Law Offices of 23 Hays, McConn, Rice & Pickerln1, 1233 West Loop South, 24 Suite 1000, Houston, Texas, pursuant to the Texas Rules 25· of Civil Procedure. 0002 1 A P P. E A R A N C E S : 2 Counsel for Robert Norris and Stanley Jolly: 3 4 LAW OFFICES OF R. BURTON SPRINGER 3605 Katy Freeway 5 Suite 210 . Houston, Texas 77007 6 Office: 713.227.2677 Fax: 713.802.0517 7 BY: R. BURTON "BURT11 SPRINGER, Esq. EXHIBIT Page 1 1) 71 03/08/2013 03:57:29 PM 713-755-1451 Page 30/57 DEPOSITION OF ROBERT NORRIS 2 · · Q~ That ~ .. I understand that. Let's back up for 3 a second. You have a llf:etime career in law 4 enforceDlent, correct? 5 A. Yes, sir. ·6 Q. And I think during one of the breaks I 7 overheard you telling us you have a lengthy history In 8 narcotics enforcement. Is that correct? 9 · A. No, sir. 10 Q. Did you not have a dog or som~thlng that you 11 were involved with? 12 · A. No, sir. 13 Q. Tell us your background, then, in dealing with 14 people who appear to be Impaired, 15 A. Okay. I am a DWI specialist,· sir, and I deal 16 with alcohol and drug related incidents where people 17 are driving while impaired. And as such I am a drug 18 recognition expert which is not -to recognize drugs 19 · themselves but it'~ to recognize drug cat~gories where 20 Individuals who have taken some type or aubstance and 21 e:qtered Into the body causing them to be impa~d. 22 · Q. Okay. You are an expert in assessing an 23 individual and evaluating whether they are In any way 24 impaired at the time that you were talking and 25 Interacting with them, correct? opgo. 1 A. Mast of the time~' yes~' sir. 2 Q. I know .that your time period or speaking to 3 Mr. Hitchens was brief as you testified today. Is that 4 correct? 5 A. Yes, sir. 6 Q. But at the time you talked with him, you had 7 taken notice or him because in your opinion he was the 8 vehicle that had gone passed you and had struck the 9 SUV, correct? Page 54 72 03/08/2013 03:57:29 PM 713-755-1451 Page 31 /57 DEPOSITION OF ROBERT NORRIS 10 A. Yes, sir. 11 Q. In other words, In simple terms your radar was 12 up and you were looking at h.im real close? . 13 A. I was looking a:t hi.m real close as bein& the 14 at fault vehicle in a traffic accident, sir. 15 Q. At the time that you interacted with 16 Mr. Hitchens, you haci. formed the opinion as a law 17 enrorcement officlal that he was the vehicle at :fault 18 for what was obviously a very maJor traffic accident, 19 correct? 20 A. Yes, sb:. 21 Q. And as such you were observing him very, very 22 closely? 23 A~ Not as an individual, sir. . 24 Q. How would you -- how would you observe him 25 other than as an indiviclual? 0091 1 A. Sir, what ·I was doing I had entered the 2 situation at the· time. I had -- as you said it was a 3 major accident, several entities involved. My main 4 concern on any traffic accident., my first concern is 5 ror the imjured and also to make sure I don.•t lose 6 potential witnesses~ suspects. And what I do, I check 7 everybody and try to obtain some type of identification 8 if possible. In this case I think I may have obtained 9 an identification. I can't recall If I did or not fram 10 him. I may have and may not. I don,'t recall. But I 11 know my main concern at that time was --.is to identify .·12 who I have out there to a point to find out do I have 13 inJuries, what resources 1•m going to need to respond, 14 ambulances, fir49, police and so forth and I was on to 15 the 911 system aud advising them exactly what equlpmeDt 16 I was going ·to need when it occurred. 17 Q. I understand that your first, duty and 18 responsibility out there Ia to make sure that no one . · 19 else gets hurt. Seeonc:lly that the people who may be 20 injured, to try and provide them with care, comfort, 21 and assistance and those are what you're trying to do 22 Immediately after an accident, correct? 23 A. Yes, sir. 24 Q. And in the process of that, though, you had at 25 least some interaction with Mr. Hitchens. You spoke 0092 1 with him, you got close to him, and may or may not have Page 55 73 03/08/2013 03:57:29 PM 713-755-1451 Page 32/57 ~ I •I " DEPOSITION OF ROBERT NORRIS 2 obtained identification from him, correct? 3 A. Correct. 4 Q. Considering the severity of the accident, if . 5 you had had even the slightest indication in any way 6 that he was impaired, you would. have brought that to 7 the attention of the other investigating officers, 8 wouldn't you? 9 A. Yes, sir. . 10 Q. So, we can assume and know that because you 11 did not bring that to anyone's attention because you 12 didn't speak to anyone,. you didn't identify 13 Mr! Hitchens as being possibly impaired, that there was 14 nothing about his demeanor in the short perioct of time 15 that you talked to him that In any way lndicat~d to you . 16 that he was Impaired in any way? · 17 A. Nothing that ahi.rmed me at that particular 18 time, sir. Page 56 74 03/08/2013 03:57:29 PM 713-755-1451 Page 33/57 Case Decline Report FURTHER INVESTIGATION NEEDED Defendant First: -Charles Defendant Last: Hitcnens Date of Off!nse: 0 6115'2GO'f'-'C.-t::> ~ Date of Reject: 611:1/'ZJXJT Offllnsa: Intoxication Manslaughles: Officer First: DL Officer Last: Harwell Agency: HOUSTON POUCE DEPARTMENT Witness Rrst: Diane Witness Last: Patterson ADA First: Warren ADA Last: Dlepraam OR#: 92975406 Reason: VATS REVIEWED CASE The defendant was driving a tractor trailer eastboUnd in the 148:10 block of the Katy Freeway just west of HigtMray 6. Sever.ll Precinct Feu de~ies had stopped freeway traffiC because they were escorting an Clllef$ize load. The defendant was not able to see the stq:Jped traffic ahead of him foe some unknown reason. He drove into sever.~l cars that had stopped. The complainant's vehicle caught fire and she was kiHed. The sole act of negligence so far in the case is failing to maintain a proper lookout. HONeYer, the defendant has not given a complete statement abaJt why he was looking doNn. hoN long he was looking doW'n, etc. In a case d this nature, speed is aitical. The HPD has been unable to determine as~ of the defendanrs tractoc trailer prior to impact. 1tis l.l'lki"'INTT if this vehicle had satellite - trackill;J capablity that wuold be r:1 assistance. Of the fifteen witnesses that HPD spoke to (II'ICI!dng the C4 deputies), only a couple cJ them mention speed. Their opinions on speed should be more extensively investigated. The defent:IMt, due to federal ~tory reqlirements, sltmitted to a uir&ysis -wnich tested positive fer cocaine. It Is a.r«nown whether or not the private lab tested for actual cocaine, cocaine metabolites, cr quantifted the amourt. Asrl today, tlis lnfamation has not been obtaned. Therafore, it is UOOlc:w1 whether the ill'l'lOI.ri rl cocaine is a large dose three days ago. s small dose two days cg:~, etc. Additionally, officers at the scene ncted no sigr6 rl impairment on the defendant. This means that either they missed the signs d cocaine use or that the cocaine CJJ31'1Uty was insufficient to cause impairment. That Questioo, hoNever, can't be answered until the adual amounts are obtained by HPD. lastly, altho.Jgh this office is a pmsecutorial- off.ce a'ld not an investigatiVe office, the report and photos were submitted to a ~vale reconstructionis t for review. Fran the information provided to him, he was unable to answel' the above questions. I EXHIBIT E. 75 03/08/2013 03:57:29 PM 713-755-1451 Page 34/57 ... · HOUSTON POL! CE DEP,QRTMENT PAGE: 0Qt1 CRIMINAL HISTORY REPORT H Jl l ' ' ' ., '1 II ' " II ' Ji ., , ' ' ' Ui ' U H ' , U ' ' ' ' ' ., ! l ' ' , ' 5 7 7 ' !: U ' U H ' U 1 n U U ~ ~ II U J tt II U U ' U ' U. !II II ' ; ' l U ~ ll U ·n U . ME: HITCHENS _, CHRRL~S ANtHONY MID#:0000232210 " II ' J J ..' J ' U ' J II ' II , , t ,. ' II , II II t , II t t , ' ' J t , t t , ' ,. 7 ,_ J t U ' II U ' II ' U If IT ' ' II n ' II 11 i1 II t U 7 II ' 10 S j t , u ' 11 If U H UTION --------> SUSPECT 1-~NOWN TO CRRRY A ~..JEAPON *********************** IDENTIFYING INFORMATION . ************************* :E-B SEX-M HGT-505 l.JGT-130 HAIR-BLK EYES~BRO Cot•1P-MED fE OF BIRTH - 07/13/63 PLACE OF BIRTH - TX f********************** SCARS, MARKS, TATOOS ************************* 19R00015 LAST-PHOT0-09/lB/83 NCIC-CLASS-15 61 C0 P0 15 S9UD0013 PALMS-Tt='IKEN- 1!Zt 15 13 17 12 ********************** RELATIVE INFORMATION ************************* ATIVE NAME ADDRESS PHONE HER ANNETTE PEALS 7038 RICHWOOD 7136456245 ********************** ALIAS INFORMATION ************************* AS NAME R/S DOB ·DRIVER-LICENSE# SOC-SECt~ :HENS ! CHARLIE I 071363 ~********************* ARREST INFORMATION. ************************* TORY#: 001 ARREST DATE: 09/18/83 JAIL BOOKING#: CB24142 =:: ADDR: 7038 RICHI·JOOD :UPATION: CLERK - OFFICE ~ST LOCRTI0~:3600 UNKNOWN =-sTING OFFICERS: NO#' 071538 DISPOSITION: RELEASED ON BOND/MADE BOND JAIL DISPOSITION DATE:09/18/~3 :.'NSE-1: CARRY PROHIBIT t--JEf:u:ioN . INCIDENT#: 56438883 ~GE •..•• :CARRY WEAPON(729709)IN CCCL#12/TERRRCINA, $800 BOND )OSITION: ~NSE-2:. TRAFFIC VIOLATIONS o:l. fa/! SElUAL uolke!JD8.9X:l.:J..pS2.89/.5- • LICENSE N0.!2JJ!t 3 7'-/ In ~orusideration of the pt'ovi.sic:ms and covenants herein cant ained, 1 t is urut:\13.~ly ag~eed as foll~s: 1. The lessor's rate of pay shall be '/A percent for power tmit and 3() perceut for tractor trailer combinations of~Revenue on treignt ~ed all Tar±ff. 2. That I.enee uill pl.ace &igns on said equip'Dient shoving tbat this equipment is leased to and operated by Lessee and that upon tena.ina.tion of this contract by ei.tber pau.y auch IJir;ns v1~l. be removed by Lessor • .and Lessor agrees t.be failure ~o remove such a1gn3 will xesul~ in damagem to Lessor. 3. 'That Le:~~•or vill equi.p said equipment Vich ligbts and reflectors as re- .quired by th@ Interstate Comaaerce Coma:islilion aud prortde all accessorial equipment as requir~ by rules and re.p1.at:10DJJ oa said equip111ea.t at all times vbe.n ia. use of Lessee. and k.eep the equ:lp111eut up to the llini~~Nm .nechanical n~quire.ment:.11 as. set forth in the :rules ltllld regulatious. Lessee re~terves the xight: to :tnspect sai.d equipment at any c:bne or place while 1n ita use ca assure compliance with auch proviai.ons • . · 4. 'fbat l.essoT vill obtain and paJ foT all necusary state license tags and registrations and affix same to said cquipmeot and pay for and supply all gasolinet oil. tiTes, repairs, and suppl1u necessary co aai:nt:ain operating effic~eacy. Purthcn:·. 't..ot!uor shall pay aU -.i1eage • f11el.. and bighway t:axes and post a 11 bcmds necessaTy and required by various sta~es. S. 'l'hat 1t is expre:ss1y u.nderctood by the part:ies hereto that: all drivers. helpers BDd}or agent:• of Le~sor used to fulfill this coa~ract are employees of Lessor and lessor assumes respoueibili g f;a••~ cfc hecs, helpers r . • . per a n ~ to hours of servt~~ ·and ma~neeoance of equ~p~n~ aud eh~ll as&ure that all drive~s Maintaia a daily log as required aud forward co Les5ee &aid log sheets daily. ~ PLAINTIFFS ~ EXHIBIT li~ )) OL ~ 81 page q.u' ':' 713-755-1451 ,JOB/2013 03:57:29 PM 6. Lessee does not agree to furnish physical damage insurance for Loss. 7. That Lessor will furnish Lessee with a doctor's physical examin4C~on cer:t ificate oo any and tll~ drivers of sa.1.d equipment in accordance with t:he Rules aud lte.gulat:l.ons of I .C. C. 8. 'that Lessee aa:sumes and will be respon&i.ble. far snd agrees co furnish adaquate protection to the p~bl~c and the shipper~ for automob~le bodily 1nj~ry. P~Dperty d~ge, and cargo liab1l~ty. 9. That dur1ng the terms o! this agreement, 'U!&sor vill furuis"h adequate protect~ou as to Ieoder Leas~e harale5s fram clai~s ar1s~nz from daua~e or ~njury to any thi~d party resulting from bobtail1ng of Lessot's equipbent. 10. ~ac during the te~ of this agrecmeot, eaid equipment w~11 be made avail.able to and cont'rolled 'by Lessee at all times, and all drivers and other employees of Lessor US:I!!d in connection \litli this contract will also be under full control. direction and supervision pf Lessee, or ~~s agent. 11. l'bat l.e.tlsor ag1:ces t:h.at equipment herein described :1s t:o be u.sed e:x- elusively by Lessee and in a;he event said Lessor • his driver, employee, or agent £hal1 ileviate from tbe t:.et'1116 of this contract • by the transportat:ion of freight: for ano~her, e~ther gratuitously, or for hi~~, or by deviation fro~ oa;her terms, then ch~s contract is auto~tically suspended until the equip~nt is returned to service of Lessee~ end that Le.Gsee sball be hannless fioe~~ suc.h deviation. U_ That t:his Agreement shall be in full force and effect until terminated by either party hereto, but not leGs than 30 days~ by vritten nctice delivered by eithe~ party signatory hereto in person if an individual, or to any offLcer ~hereofsaid party is a ~orporation. Said agreemenc also may be cancelled or term- 1nat:e.d by depos1.ticg in t:hc U.S. Mail a not1.ce of such caneellat:icrn. properly add- re~sed. po~ted. and that said party or offiter bereof is evidenced by che return registered receipt or upon cbe said Tefusal of sa~d addTeasee to aecept delivery thereof. and upon te.radnati.on of th::ls agreemenr. Lessor ag-r:ec:o 'to -ret:urn to Le.ssee all equ~p0ent, supplie.s. pe~1.ta, •nd o~h~r pTaperty of Lessee to che nearest te~inal wt~h~n S days. or be charged thirty (30) ceots per mile for retrieving of such property by Lessee. 13. 'l'ba.t :if Le:saor or 1ds ageut. i.s nnA.ble to deliver car)to hauled uu.der t:his ~gTeement to the destination upon an agreed time, Lessor vill ~diately notLfy Lessee. o~ the ~onsignee of such cargo of the probable delay. and ~hat faiLure to give such not1f1cacions will be construed a~ negligence on the part of the Lessor. 14. That. Lessee t~h.all be illlpovered to cha.tge Lessor all _claims for shortages. losse.s. or damage to cArgo which are not the result: of a.cc.i.de.u1:. 1.nvo~v1.nJC; tllc equ'1.p~~~enr coveted by t.bi.s agree.eeut. 15. !hat Le3see will charge the fLr&t $100.00 of any ela~m for public liab~liey oT property damege due to negligence of Le$SO~. his dr~ver. or agent, and fu~the~ the lessee vil1 cbaTge Lesso~ for all dalll&ges to cargo cause.d by neRli~ence of Lassor. his dr~~er. or &Je~t • .· 82 03/08/2013 03:57:29 PM 713-755-1451 Page 41 /57 16 • The Le&oor vill be responsi.ble to Le,.;s-ee for ds.rnag~ to Le.:s :!lee' a equipment or propert-y d8..11lages as a result of Lessor 1 9 6tri.king any vi.aduc:t, lav overhead, or other 3~a~1onary objec~ thrnugh caTelessness or neglect of Lessor, his driveT. or ~tent. , 17. Th•u:·LessoT shall not: br: paid for acy load vrecked e>r damaged ia t:ransit and returned to origin point. 18. The Lessee shall charge Lessor in full fot' any ~ml all water dat~~S.Rc t.o cargo ceused by neglect of Lessor, his driver, or agent. 19. The Lessee ~111 hold from the Lessor's earnings a total of $ZOO.OO. The said $200.00 less any clai~s. ro be refunded to Lessur or Le&see v~~htn a p~~~od of not less than thirty days and not to excead nLaety days of the termination of the lease by et~her party. 20. The Lessor shall ye~urse the ~essee for any fin~s or penalties Faid by the lessee aa a re3ult of i~lega1 or criminal acts co~tted by the Lessor. his driver~ or agent. 21- All 1n5urange. Fay~o11 ~axes, state employment taxes 6hal1 be paid by ~ssee and charged back to Lesso~. Any iucrease in above will be charged or any decrea~e 9111 be adjusted in cost. 83 03/08/2013 03:57:29 PM 713-755-1451 Page 42/57 CAUSE NO. 2011-64488 MARCUS BRENT PATTERSON, § IN THE DISTRICT COURT INDIVIDUALLY, AS INDEPENDENT § ADMINISTRATOR OF THE ESTATE OF § DIANE PATTERSON, and AS NEXT § FRIEND OF DANIEL PATTERSON and § DANAE PATTERSON, and DANIEL § PATTERSON (now 18 yearsofage) § § Plaintiffs, § § v. § 334th JUDICIAL DISTRICT § BREWER LEASING, INC. § § Defendant. § HARRIS COUNTY, TEXAS JURY CHARGE MEMBERS OF THE JURY: This case is submitted to you by asking questions about the facts, which you must decide from the evidence you have heard in this trial. You are the sole judges of the credibility of the witnesses and the weight to be given their testimony, but in matters oflaw you must be governed by the instructions in this charge. In discharging your responsibility on this jury you will observe all the instructions which have previously been given you. I shall now give you additional instructions which you should carefully and strictly follow during your deliberations. Do not let bias, prejudice or sympathy play any part in your deliberation. In arriving at your answers, consider only the evidence introduced here under oath and such exhibits, if any, as have been introduced for your consideration under the rulings of the Court, that is, what you have seen and heard in this courtroom, together with the law as given you by the court. In your deliberations, you will not consider or discuss anything that is not represented by the evidence in this case. Since every answer that is required by the charge is important, no juror should state or consider that any required answer is not important. You must not decide who you think should win, and then try to answer the questions accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the effect of your answers. ExHIBIT '7 84 03/08/2013 03:57:29 PM 713-755-1451 Page 43/57 You will not decide the answer to a question by lot or by drawing straws, or by any other method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors agree to abide by the result to be reached by adding together each juror's figures and dividing by the number of jurors to get an average. Do not do any trading on your answers~ that is, one juror should not agree to answer a certain question one way if others will agree to answer another question another way. You may render your verdict upon the vote of ten or more members of the jury to Questions 1, 2, 3 or 6. The same ten or more of you must agree upon all of the answers made and to the entire verdict. You will not, therefore, enter into an agreement to be bound by a majority or any other vote of less than ten jurors. Questions 4 and 5 may only be answered '"Yes" or with a dollar amount if the jury is unanimous. If the verdict and all of the answers therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the entire jury. If any juror disagrees as to any answer made by the verdict, those jurors who agree to all findings shall each sign the verdict. These instructions are given you because your conduct is subject to review the same as that of the witnesses, parties, attorneys, and the judge. If it should be found that you have disregarded any of these instructions, it will be jury misconduct and it may require another trial by another jury; then all of our time will have been wasted. The presid [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4062512. Public record. Not legal advice.