Mobil Oil Corporation, Mobil Oil Co., Inc. and Mobil Chemical Company v. Ona Mae Powers

• Court: Court of Appeals of Texas
• Decided: October 6, 2004
• Docket: 10-02-00277-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-02-00277-CV

Mobil Oil Corporation,

Mobil Oil Co., Inc.

and Mobil Chemical Company,

                                                                      Appellants

 v.

Ona Mae Powers,

                                                                      Appellee

From the 60th District Court

Jefferson County, Texas

Trial Court # B-126986-Y

MEMORANDUM  Opinion

          Mobil Oil Corporation appeals[1] from the grant of a summary judgment on its counterclaim seeking indemnity from Ona Mae Powers under a Release and Indemnity Agreement she signed in 1994.  Finding that the trial court did not err in granting the summary judgment, we affirm.  DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999) (interpret the contract as a matter of law); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548‑49 (Tex. 1985) (standard of review); Rucker v. Bank One, 36 S.W.3d 649, 652-53 (Tex. App.—Waco 2000, pet. denied) (review is de novo).

PER CURIAM

Before Justice Vance,

Justice Reyna, and

Judge McGregor[2] (Sitting by Assignment)

Affirmed

Opinion delivered and filed October 6, 2004

[CV06]

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   [1]  This case was transferred to us from the Ninth Court of Appeals by order of the Supreme Court of Texas.

   [2]  F. B. (Bob) McGregor, Jr., Judge of the 66th District Court of Hill County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to section 74.003(h) of the Government Code.  See Tex. Gov=t Code Ann. ' 74.003(h) (Vernon Supp. 2004).

Schronk testified that Sloane exhibited two of the six clues for intoxication.

          Sloane and his wife testified on Sloane’s behalf.  They both testified that Sloane used a hand sanitizer because of his job and that he had a bottle with him at the time of the accident.  They both also testified that Sloane had not been drinking and did not abuse alcohol.  A friend of Sloane’s testified that he had seen Sloane at a store prior to the accident and that Sloane was not intoxicated.  Sloane’s wife testified that Sloane’s father had recently died, and that they had just returned home from the funeral the day before.  Sloane admitted that he was speeding and that he was passing several slow moving cars.  He stated he swerved to avoid hitting a blue Mustang.  Sloane testified that his astigmatism and injuries from a prior accident contributed to his poor performance on the sobriety tests.  He also stated that he refused a breathalyzer test at the jail because he was angry.

          We have reviewed all the evidence in a neutral light and find it was within the province of the jury to choose between reasonably equal competing theories of the case.  The determination turns on the credibility of the witnesses, and we will not disturb it.

          Sloane’s first issue is overruled.

Opinion Testimony

          Sloane also complains that the trial court erred by permitting John Plemmons, an eye witness to the accident, to testify that he thought Sloane was intoxicated.  Specifically, Sloane contends that because Plemmons is a former police officer, this was improper expert testimony. 

A complaint about the admission of evidence is reviewed under an abuse of discretion standard.  Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990).  If evidence is admissible for any purpose, we will sustain the trial court’s ruling even if that purpose was not asserted at trial and even if the court gave the wrong reason for admitting the evidence.  Najar v. State, 74 S.W.3d 82, 86 (Tex. App.—Waco 2002, pet. dism’d).  “Rule of Evidence 701 permits the admission of lay opinion testimony when the witness’s opinion is ‘(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.’”  Webster v. State, 26 S.W.3d 717, 724 (Tex. App.—Waco 2000, pet. ref’d); Tex. R. Evid. 701.

Plemmons testified that he thought Sloane was intoxicated because of what he had witnessed:  Sloane speeding, “clipping a vehicle, jumping a curb, rolling three times, getting out…pushing a nurse away after an accident, having slurred speech, and stumbling around.”  Although Plemmons did have law enforcement training, his opinion was not offered as expert testimony.  Nothing in the record suggests that the trial court abused its discretion by allowing this lay opinion testimony.

Sloane’s second issue is overruled.

Conclusion

Having overruled both issues for review, the trial court’s judgment is affirmed.

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

(Justice Vance dissents with a note:  “In my view, Sloane has demonstrated that, although it may preponderate in favor of the jury’s finding, the evidence on the element of ‘the introduction of alcohol into the body’ does not meet the beyond-a-reasonable-doubt standard when viewed in a neutral light.  Zuniga v. State, No. 539-02, 2004 WL 840786 *7 (Tex. Crim. App. April 21, 2004).”).

Opinion delivered and filed July 28, 2004

Do not publish

[CR25]