Cresthaven Nursing Residence v. Deborah Freeman

Opinion

NO. 07-02-0011-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MAY 19, 2003

______________________________

CRESTHAVEN NURSING RESIDENCE; CANTEX

HEALTHCARE CENTERS D/B/A CRESTHAVEN

NURSING RESIDENCE; BRATEX, INC.; GAMTEX,

INC.; MEDCO MEDICAL SERVICES; ONTEX, INC.;

AMLON U.S.A., INC., APPELLANTS

V.

DEBORAH FREEMAN, INDIVIDUALLY, AND ON BEHALF

OF THE ESTATE OF WANDA GRANGER, ET AL., APPELLEES

_________________________________

FROM THE 60^TH DISTRICT COURT OF JEFFERSON COUNTY;

NO. B155491; HONORABLE GARY SANDERSON, JUDGE

_______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J. ⁽¹⁾

ON MOTION FOR REHEARING

Appellants Cresthaven Nursing Residence, Cantex Healthcare Centers d/b/a Cresthaven Nursing Residence, Bratex, Inc., Gamtex, Inc., Medco Medical Services, Ontex, Inc., and Amlon U.S.A., Inc. have filed a motion for rehearing of our February 5, 2003 opinion in this cause.

In their motion, without waiving their right to seek review by the supreme court of all the issues they presented and which we discussed in our prior opinion, they present two issues for our decision. Those issues are:

1. Whether the court's opinion conflicts with the Texas Supreme Court's holding in Columbia Hospital Corporation v. Moore, 92 S.W.3d 470 (Tex. 2002) that prejudgment interest on damages subject to the limitation on civil liability for damages under section 11.02(a) of article 4590i of the Texas Revised Civil Statutes, is included within that damages cap.

2. Whether the cap amount is calculated by adjusting the $500,000 statutory limitation by the Bureau of Labor Statistics' consumer price index identified as "CPI-W," the index for urban wage earners and clerical workers, rather than the consumer price index identified as "CPI-U," the consumer price index for all urban consumers, pursuant to section 11.01 of article 4590i.

We have also asked for, and received, a response to appellants' motion from appellees. See Tex. R. App. P. 49.2.

Because our disposition of appellants' first issue does conflict with the decision of the supreme court in Columbia Hospital Corporation, which was decided after this appeal was perfected, we are obligated to answer both the questions affirmatively. Accordingly, appellants' motion for rehearing is granted to that extent. The parties have agreed that if this motion is granted, the adjusted damage cap applicable to the judgment would be $1,413,008.13. They have also agreed that the amount of $1,413,008.13 was calculated by adjusting the $500,000 statutory limitation by the Bureau of Labor Statistics' consumer price index identified as "C.P.I.-W," the index for urban wage earners and clerical workers, rather than the consumer price index identified as "C.P.I.-U," the consumer price index for all urban consumers, pursuant to section 11.01 of article 4590i.

We remain satisfied with the disposition and discussion of the issues presented in this appeal, with the exception of that portion of the opinion to which the motion for rehearing was directed. Accordingly, we grant appellants' motion for rehearing as provided above.

A portion of the decretal provision of the judgment of the trial court is modified to provide that appellees recover damages in the amount of $1,413,008.13 from appellants Cresthaven Nursing Residence; Cantex Healthcare Centers d/b/a Cresthaven Nursing Residence; Bratex, Inc.; Gamtex, Inc., Medco Medical Services; Ontex, Inc.; and Amlon U.S.A., Inc., jointly and severally, in the amount of $1,413,008.13, together with interest thereon at the rate of 10% per annum from August 30, 2001, until paid. Tex. R. App. P. 43.2. As modified, the judgment of the trial court is affirmed.

John T. Boyd

Senior Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

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NOS. 07-10-00408-CR, 07-10-00409-CR, 07-10-00410-CR

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 29, 2011

DERRICK LACY, APPELLANT

THE STATE OF TEXAS, APPELLEE

 FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;

NO. 1188762D, 1188764D, 1188765D; HONORABLE RUBEN GONZALEZ, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

            Appellant, Derrick Lacy, entered pleas of guilty, and pleas of true to allegations of prior convictions, without benefit of a plea bargain, to theft of property under the value of $1,500,[1] possession of a controlled substance, oxycodone, of one gram or more but less than four grams,[2] enhanced by allegation of one prior felony conviction,[3] and possession of a controlled substance, morphine, of less than one gram.[4]  After receiving the pre-sentence investigation (PSI), the trial court assessed appellant’s punishment at two years in a State Jail Facility on the theft and possession of morphine charges.  At the same time, appellant was assessed a term of confinement of six years in the Institutional Division of the Texas Department of Criminal Justice on the possession of oxycodone charge.  All terms of confinement were ordered to run concurrently.  Appellant has perfected his appeal contending that the trial court abused its discretion by assessing a disproportionate punishment under the Eighth Amendment to the United States Constitution.  We affirm.

Factual and Procedural Background

            Appellant does not contest the sufficiency of the evidence to sustain his pleas of guilty.  Neither does appellant contest the procedural aspects of his plea of guilty without benefit of a plea bargain.  The record reflects that appellant entered his pleas of guilty to each of the indicted offenses on June 9, 2010.  At the conclusion of the pleas, the trial court ordered a PSI prepared.  Subsequently, on the 27^th of August, 2010, the trial court conducted a punishment hearing.  The only evidence received at that hearing was the PSI.  After receiving the PSI, the trial court assessed appellant’s punishment as set forth above.  A motion for new trial was filed by appellant that contained only one allegation, “[T]hat the verdict is contrary to the law and the evidence which was presented in these cases.”  Appellant now contends that the punishment set forth violates his due process rights under the United States Constitution.  See U.S. Const. amend VIII.  We disagree and will affirm the trial court’s judgment.

Preservation of Error

            Before we can begin any analysis, we must determine if appellant’s complaint has been preserved for appellate review.  See Tex. R. App. P. 33.1(a)(1).[5]  Appellant couches his argument in terms of a due process violation.  However, the Texas Court of Criminal Appeals has ruled that allegations of due process violations are subject to the requirement of preservation by an objection or motion filed with the trial court.  See Anderson v. State, 301 S.W.3d 276, 279-80 (Tex.Crim.App. 2009).  Our review of the record reveals that appellant lodged no objection to the trial court’s sentences at the time of the punishment hearing.  Further, the subsequently filed motion for new trial contains no reference to appellant’s due process argument.  A fair reading of the motion for new trial does not lead us to the conclusion that appellant’s current argument was apparent from the context of the motion.  Rule 33.1(a)(1).  Accordingly, appellant’s issue has not been preserved for review and is therefore waived.  Anderson, 301 S.W.3d 279-80.  Appellant’s sole issue is overruled.

Conclusion

            Having overruled appellant’s only issue, the judgments of the trial court are affirmed.

                                                                                                Mackey K. Hancock

                                                                                                            Justice

Do not publish. 

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[1] See Tex. Penal Code Ann. § 31.03(b), (e)(4)(D) (West 2011). (No. 07-10-0408-CR).

[2] See Tex. Health & Safety Code Ann. § 481.115(a), (c) (West 2010). (No. 07-10-0409-CR).

[3] See Tex. Penal Code Ann. § 12.42(a)(3) (West 2011).

[4] See Tex. Health & Safety Code Ann. § 481.115(a), (b). (No. 07-10-0410-CR).

[5] Further reference to the Texas Rules of Appellate Procedure will be by reference to “Rule ___.”