TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00021-CV
Anthony Garza, Appellant
v.
Fesco Distributors, Appellee
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-23-001560, THE HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING
MEMORANDUM OPINION
Anthony Garza, appearing pro se before the trial court and this Court, appeals
from the trial court’s final judgment granting Fesco Distributors’ no-evidence motion for
summary judgment on Garza’s products-liability claim.1 For the following reasons, we affirm
the judgment.
BACKGROUND
In his live petition, Garza sought monetary damages for physical injuries he
sustained allegedly resulting from Fesco’s negligent design and manufacturing for sale a “Charge
Worx” USB phone charger. Garza alleged that the charger caused him bodily harm when it
1 We hold pro se litigants to the same procedural standards as we do litigants represented by counsel to avoid giving pro se litigants an unfair advantage. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). However, we will read the briefs liberally so as to obtain a just, fair, and equitable adjudication of the parties’ rights. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). caught on fire in his bedroom, causing him to lean out of bed to try to extinguish the fire, which
caused him to fall out of bed and severely injure his shoulder and neck. Garza alleged that he
purchased the charger from HEB and had his phone connected to the charger, which was plugged
into a power strip that was plugged into an AC adapter at a wall outlet.
Fesco filed an answer and general denial and later filed a no-evidence motion for
summary judgment in which it asserted that, after an adequate time for discovery, Garza had
produced no competent summary-judgment evidence that the USB charger (a) was negligently
designed, manufactured, or sold by Fesco; (b) was defective in any way; or (c) caused the fire.
See Tex. R. Civ. P. 166a(i); see Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385,
387 (Tex. 1991) (setting out elements required to prove defective product, including that it was
unreasonably dangerous as manufactured or designed or due to having inadequate warnings or
instructions); Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 376 (Tex. 1978) (noting that
plaintiff has burden of proving causal connection between defective product and injuries); see
also Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (setting out elements of
design-defect claim, including that defect was producing cause of injury).
Garza filed a response to the motion, to which he attached several photographs
and exhibits, all of which were unauthenticated by affidavit or otherwise. Cf. Tex. R. Civ.
P. 166a(f) (requiring documents submitted as summary-judgment proof to be sworn to or
certified); Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex. App.—San Antonio 1997, pet. denied)
(“Unauthenticated or unsworn documents, or documents not supported by any affidavit, are not
entitled to consideration as summary judgment evidence.”); see also Tex. R. Evid. 901(a) (“To
satisfy the requirement of authenticating or identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims it
2 is.”). The photographs depicted the allegedly burned portion of Garza’s USB charger (without
indication of the product brand or manufacturer), a singed power strip, a singed wall adapter, an
unopened package containing a USB charger imprinted with the brand “Charge Worx,” and the
side of a USB charger package imprinted with the brand “Charge Worx” and the text “Designed
by Fesco, Brooklyn, NY.” The other documents included summaries of recurring nightmares
Garza has allegedly suffered since the fire and apparent printouts from the United States
Consumer Product Safety Commission’s website noting that Target had recalled the “heyday”
brand of USB chargers due to shock and fire hazard. In its reply to Garza’s response, Fesco
filed a motion to strike most of Garza’s evidence for being irrelevant and lacking any probative
value. After a non-evidentiary hearing, the trial court granted Fesco’s motion, and Garza then
perfected this appeal.
DISCUSSION
A no-evidence motion for summary judgment is essentially a motion for pretrial
directed verdict, requiring the nonmoving party to present evidence raising a genuine issue
of material fact supporting each element contested in the motion. Timpte Indus., 286 S.W.3d
at 310. In reviewing a no-evidence summary judgment, the appellate court must review the
evidence presented in response to the motion in the light most favorable to the party against
whom the summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.
Id. A no-evidence motion is properly granted if the nonmovant fails to bring forth more than a
scintilla of probative evidence to raise a genuine issue of material fact as to an essential element
3 of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial.
See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
In the two substantive pages of his brief, Garza contends that the trial court
“misunderstood the concept of electricity and how it works,” including “how a short starts and
then wires get hot and a spark turns into fire.” He argues that because the summary-judgment
hearing was conducted virtually, the trial court was unable to get a close look at his exhibits,
some of which were in black-and-white but would have provided a “better look” had they been
in color. He further argues that his expert witness’s report opined that an “electrical short on the
wiring . . . started the fire.” Garza attached to his brief a document signed by his purported
expert witness, Brian Hicks, who opined that the fire was likely caused by a short in the USB
cord, specifically by exposed copper wires. Hicks qualified this opinion, however, by stating
that he could not determine “whether the metal protective ‘wrap’ around the cable penetrated the
wires or . . . was faulty when built, or became faulty due to other circumstances.”
We first observe that although Garza attached Hicks’s half-page report to his
appellate brief, he did not attach it to his response to the summary-judgment motion. Also, while
he discussed Hicks’s report at the summary-judgment hearing, representing that he had filed it
with the court “over the holidays” shortly before the hearing, the record does not reflect that he
filed it with the court at least seven days before the hearing or thereafter on leave of the court or
that the court admitted it at the hearing.2 Cf. Tex. R. Civ. P. 166a(c) (requiring nonmovant to file
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00021-CV
Anthony Garza, Appellant
v.
Fesco Distributors, Appellee
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-23-001560, THE HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING
MEMORANDUM OPINION
Anthony Garza, appearing pro se before the trial court and this Court, appeals
from the trial court’s final judgment granting Fesco Distributors’ no-evidence motion for
summary judgment on Garza’s products-liability claim.1 For the following reasons, we affirm
the judgment.
BACKGROUND
In his live petition, Garza sought monetary damages for physical injuries he
sustained allegedly resulting from Fesco’s negligent design and manufacturing for sale a “Charge
Worx” USB phone charger. Garza alleged that the charger caused him bodily harm when it
1 We hold pro se litigants to the same procedural standards as we do litigants represented by counsel to avoid giving pro se litigants an unfair advantage. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). However, we will read the briefs liberally so as to obtain a just, fair, and equitable adjudication of the parties’ rights. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). caught on fire in his bedroom, causing him to lean out of bed to try to extinguish the fire, which
caused him to fall out of bed and severely injure his shoulder and neck. Garza alleged that he
purchased the charger from HEB and had his phone connected to the charger, which was plugged
into a power strip that was plugged into an AC adapter at a wall outlet.
Fesco filed an answer and general denial and later filed a no-evidence motion for
summary judgment in which it asserted that, after an adequate time for discovery, Garza had
produced no competent summary-judgment evidence that the USB charger (a) was negligently
designed, manufactured, or sold by Fesco; (b) was defective in any way; or (c) caused the fire.
See Tex. R. Civ. P. 166a(i); see Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385,
387 (Tex. 1991) (setting out elements required to prove defective product, including that it was
unreasonably dangerous as manufactured or designed or due to having inadequate warnings or
instructions); Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 376 (Tex. 1978) (noting that
plaintiff has burden of proving causal connection between defective product and injuries); see
also Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (setting out elements of
design-defect claim, including that defect was producing cause of injury).
Garza filed a response to the motion, to which he attached several photographs
and exhibits, all of which were unauthenticated by affidavit or otherwise. Cf. Tex. R. Civ.
P. 166a(f) (requiring documents submitted as summary-judgment proof to be sworn to or
certified); Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex. App.—San Antonio 1997, pet. denied)
(“Unauthenticated or unsworn documents, or documents not supported by any affidavit, are not
entitled to consideration as summary judgment evidence.”); see also Tex. R. Evid. 901(a) (“To
satisfy the requirement of authenticating or identifying an item of evidence, the proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims it
2 is.”). The photographs depicted the allegedly burned portion of Garza’s USB charger (without
indication of the product brand or manufacturer), a singed power strip, a singed wall adapter, an
unopened package containing a USB charger imprinted with the brand “Charge Worx,” and the
side of a USB charger package imprinted with the brand “Charge Worx” and the text “Designed
by Fesco, Brooklyn, NY.” The other documents included summaries of recurring nightmares
Garza has allegedly suffered since the fire and apparent printouts from the United States
Consumer Product Safety Commission’s website noting that Target had recalled the “heyday”
brand of USB chargers due to shock and fire hazard. In its reply to Garza’s response, Fesco
filed a motion to strike most of Garza’s evidence for being irrelevant and lacking any probative
value. After a non-evidentiary hearing, the trial court granted Fesco’s motion, and Garza then
perfected this appeal.
DISCUSSION
A no-evidence motion for summary judgment is essentially a motion for pretrial
directed verdict, requiring the nonmoving party to present evidence raising a genuine issue
of material fact supporting each element contested in the motion. Timpte Indus., 286 S.W.3d
at 310. In reviewing a no-evidence summary judgment, the appellate court must review the
evidence presented in response to the motion in the light most favorable to the party against
whom the summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.
Id. A no-evidence motion is properly granted if the nonmovant fails to bring forth more than a
scintilla of probative evidence to raise a genuine issue of material fact as to an essential element
3 of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial.
See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
In the two substantive pages of his brief, Garza contends that the trial court
“misunderstood the concept of electricity and how it works,” including “how a short starts and
then wires get hot and a spark turns into fire.” He argues that because the summary-judgment
hearing was conducted virtually, the trial court was unable to get a close look at his exhibits,
some of which were in black-and-white but would have provided a “better look” had they been
in color. He further argues that his expert witness’s report opined that an “electrical short on the
wiring . . . started the fire.” Garza attached to his brief a document signed by his purported
expert witness, Brian Hicks, who opined that the fire was likely caused by a short in the USB
cord, specifically by exposed copper wires. Hicks qualified this opinion, however, by stating
that he could not determine “whether the metal protective ‘wrap’ around the cable penetrated the
wires or . . . was faulty when built, or became faulty due to other circumstances.”
We first observe that although Garza attached Hicks’s half-page report to his
appellate brief, he did not attach it to his response to the summary-judgment motion. Also, while
he discussed Hicks’s report at the summary-judgment hearing, representing that he had filed it
with the court “over the holidays” shortly before the hearing, the record does not reflect that he
filed it with the court at least seven days before the hearing or thereafter on leave of the court or
that the court admitted it at the hearing.2 Cf. Tex. R. Civ. P. 166a(c) (requiring nonmovant to file
and serve opposing affidavits or other written response no later than seven days before hearing
except on leave of court). However, even had Garza timely filed the report or filed it late with
leave of court, the report does not raise a genuine issue of material fact on the challenged
2 The hearing occurred January 3, 2024. 4 element of causation. Furthermore, none of Garza’s remaining evidence that was timely
submitted in opposition to Fesco’s no-evidence motion was authenticated or raised a genuine
issue of material fact as to causation or as to Fesco’s alleged design, manufacture, or sale of the
subject USB charger. Finally, Garza’s contentions about the trial court’s “misunderstanding” of
electricity and its inability to get a “close look” at the evidence due to the virtual hearing are
not relevant to the controlling issue on appeal: whether Garza’s evidence raised a genuine issue
of material fact on the challenged elements of his claims. See Tex. R. Civ. P. 166a(c), (i).
Accordingly, the trial court did not err in granting Fesco’s no-evidence motion for summary
judgment.
CONCLUSION
Having overruled Garza’s issues, we affirm the final judgment.
__________________________________________ Karin Crump, Justice
Before Justices Theofanis, Crump, and Ellis
Affirmed
Filed: April 24, 2025