Texas Judiciary = Online

O P I N I O N

=20

=20 In his appeal of this product liability case, Xavier = Benavides asks=20 that we reverse a judgment on a jury verdict in favor of appellee, = Cushman, Inc. = Benavides, a=20 golf course groundskeeper, sued Cushman for injuries he sustained = when a=20 sand trap rake=97a three-wheeled vehicle manufactured by = Cushman=97overturned=20 while he was driving it. = On=20 appeal, Benavides contends the trial court erred in (1) excluding = evidence=20 of prior similar incidents, (2) excluding expert testimony = regarding=20 failure to warn, (3) admitting cumulative expert testimony, and = (4)=20 admitting an incident report written by Benavides=92s supervisor = at the golf=20 course. We conclude = that none=20 of the trial court=92s evidentiary rulings warrant reversal and = therefore=20 affirm.

I. FACTS

=20 Benavides worked at the Battle Ground Golf Course in Deer = Park,=20 Texas. In June = 2000,=20 Benavides=92s supervisor instructed him to groom the course=92s = sand traps=20 with Cushman=92s Groom Master sand trap rake. As Benavides exited a = sand trap on=20 the eleventh hole, he noticed a furrow in the sand. Although Benavides was = heading=20 downhill, he attempted to reverse course so as to re-enter the = trap and=20 smooth the furrow. = As he=20 began to turn, the left wheel of the Groom Master kicked = upward. Benavides attempted to = jump from=20 the machine before it overturned but was unsuccessful. After the impact, he = scooted out=20 from underneath the Groom Master and walked to the twelfth hole to = seek=20 medical assistance. = Benavides=20 subsequently underwent two surgeries for injuries to his neck and = lower=20 back.

II. PROCEDURAL=20 HISTORY

=20 Benavides brought claims against Cushman for design defect, = manufacturing defect, and negligence. The case initially = proceeded to=20 trial in November 2003. = Due=20 to Cushman=92s violation of a motion in limine, however, the trial = court=20 granted Benavides=92s motion for a new trial. The jury in the second = trial found=20 that the Groom Master did not have a design defect, that Cushman = was not=20 negligent, and that Benavides was one hundred percent responsible = for the=20 accident.[1] This appeal=20 followed.

III.=20 ANALYSIS

A.=20 Standard of=20 Review

=20 The admission and exclusion of evidence is committed to the = trial=20 court=92s sound discretion. =20 City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 = (Tex.=20 1995). To obtain = reversal of=20 a judgment based on error in the admission or exclusion of = evidence, an=20 appellant must show that the trial court=92s ruling was erroneous = and that=20 the error was calculated to cause, and probably did cause, = =93rendition of=20 an improper judgment.=94 = Tex. R. App. P. = 44.1(a)(1);=20 Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 = (Tex.=20 1998). In making = this=20 determination, we review the entire record. Alvarado, 897 = S.W.2d at=20 754. Reversible = error does=20 not usually occur in connection with evidentiary rulings unless = the=20 appellant can demonstrate that the whole case turns on the = particular=20 evidence admitted or excluded. =20 Id. at 753=9654; GT & MC, Inc. v. Tex. City = Ref.,=20 Inc., 822 S.W.2d 252, 257 (Tex. App.=97Houston [1st Dist.] = 1991, writ=20 denied).

B. Prior Similar=20 Incidents

=20 In his first issue, Benavides contends the trial court = abused its=20 discretion in excluding evidence of earlier similar = incidents. Specifically, Benavides = proffered=20 his expert witness, Dr. Robert Wright, to testify about five = rollover=20 accidents involving the Truckster, a different three-wheeled turf = vehicle,=20 also manufactured by Cushman. =20 In the first trial, the court granted Cushman=92s motion in = limine=20 prohibiting Benavides from introducing evidence regarding the = Truckster=20 rollover accidents. = At the=20 second trial, Benavides asked the trial court to revisit its = ruling on the=20 motion in limine, but it declined to do so. Benavides made an offer = of proof=20 through Dr. Wright, who testified that the prior Truckster = incidents were=20 similar because Cushman designed both vehicles for golf courses = and the=20 Truckster has a similarly high center of gravity when loaded. The trial court rejected = Benavides=92s offer of proof and refused to allow Dr. Wright to = testify=20 about previous Truckster rollover accidents during Benavides=92s=20 case-in-chief.

=20 During Cushman=92s case-in-chief, however, Benavides = introduced this=20 evidence. While=20 cross-examining Cushman=92s expert witness, Ralph Barnett, he = covered the=20 other incidents extensively. For = example:

Q. =20 [Benavides=92s counsel]: = Okay. Let me hand you what = we=92ve marked=20 for identification as Plaintiff=92s Exhibit = 241.

A. =20 [Barnett]: =20 Yes.

Q. = This is a=20 lawsuit by a gentleman named Jimmy T. Dickerson,=20 correct?

A. =20 Yes.

Q. = And in this=20 incident on May 11, 1993, the Plaintiff Dickerson and Hutton were=20 operating a Cushman three-wheeled turf Truckster,=20 correct?

A. =20 Yes.

Q. = And they=20 were operating it on a slope at an army post,=20 correct?

A. =20 Yes.

Q. = And they=20 were traveling about two miles per hour --

A. =20 Yes.

Q. = -- along=20 the right of way of --

A. =20 Yes.

Q. = -- Road,=20 correct?

. . . .

Q. = And then=20 the subject vehicle hit a small indentation about the size of a = pie plate=20 and approximately one to two inches deep and it caused the truck = to=20 overturn, correct?

A. = That=92s what=20 it says under Statement of Facts.

Q. = Yes. And then the allegations = that were=20 made were that the three-wheel Truckster was unstable and unfit = for its=20 intended use, correct?

A. =20 Yes.

Q. = And they=20 also claim that it lacked rollover protection systems,=20 correct?

A. =20 Correct.

Q. = And the=20 rollover protection systems included the lack of a seat belt,=20 correct?

A. = Yes,=20 because if it=92s a system, it will be also a lack of seat belt=20 [sic].

Q. = And that=20 was May 11th, 1993, correct?

A. =20 Yes.

Benavides=92s counsel = read=20 petitions or incident reports discussing each of the other = Truckster=20 incidents to the jury and asked Barnett to comment. After this evidence, the = trial=20 court admitted as an exhibit a list of the dates of the Truckster = rollover=20 accidents and the names of the individuals involved. The exhibit also notes = that, in two=20 of the incidents, the involved driver died.

=20 In his brief, Benavides acknowledges that the trial court = admitted=20 evidence concerning the prior similar incidents but asserts that = he =93was=20 denied the ability to effectively prosecute his case by = introducing the=20 incidents through his own expert.=94 =20 After the trial court allowed the evidence, however, = Benavides did=20 not seek to recall Dr. Wright to discuss the Truckster rollover=20 accidents. Instead, = Benavides=20 rested at the conclusion of Cushman=92s = case-in-chief.

=20 Given that the jury heard extensive evidence concerning the = other=20 incidents, we hold that Benavides could not be harmed by error, if = any, in=20 the trial court=92s ruling earlier in the trial excluding Dr. = Wright=92s=20 testimony. See = Bryant v.=20 Transcon. Gas Pipe Line Corp., 821 S.W.2d 187, 188=9689 (Tex.=20 App.=97Houston [14th Dist.] 1991, writ denied) (holding that any = error in=20 excluding certain admissions was harmless where =93[t]he bulk of = the=20 excluded evidence was before the jury through [another] exhibit=94 = and other=20 statements admitted into evidence =93relate[d] the same = information=94 as was=20 contained in excluded admissions); Monsanto Co. v. A.A. = Pruitt, 571=20 S.W.2d 561, 562=9663 (Tex. Civ. App.=97Houston [14th Dist.] 1978, = no writ)=20 (holding that trial court=92s ruling on motion in limine excluding = portions=20 of contract relating to insurance was harmless where entire = contract was=20 later admitted into evidence); see also Stergiou v. Gen. Metal=20 Fabricating Corp., 123 S.W.3d 1, 5 (Tex. App.=97Houston [1st = Dist.]=20 2003, pet. denied) (where two timelines were essentially = identical,=20 holding that any error in excluding appellant=92s timeline was = harmless=20 because appellant did not show how excluded timeline substantially = differed from properly admitted one); Wilson v. John Frantz = Co.,=20 723 S.W.2d 189, 194 (Tex. App.=97Houston [14th Dist.] 1986, writ = ref=92d=20 n.r.e.) (=93If there was any error in excluding the evidence = proffered by=20 the appellee, the error was harmless because other evidence that = was=20 admitted revealed the [same] facts . . . .=94). Moreover, Benavides did = not seek=20 to recall Dr. Wright after the trial court=92s reversal of its = previous=20 ruling, and thus cannot support his contention that the trial = court denied=20 him the ability to prosecute his case. [2]

C. Failure to=20 Warn

=20 In his second issue, Benavides contends the trial court = abused its=20 discretion in refusing to allow testimony by Dr. Wright pertaining = to=20 Cushman=92s failure to warn of the Groom Master=92s propensity to = roll over,=20 if turned on an incline. =20 Benavides made an offer of proof in which Dr. Wright = testified that=20 Cushman should have placed a warning on the Groom Master that = turning it=20 while on an incline could cause the vehicle to roll over. The trial court excluded = Dr.=20 Wright=92s testimony on the ground that Benavides had pleaded a = =93design=20 defect=94=97and not a =93failure to warn.=94 =20 Benavides asserts that the trial court=92s =93ruling was = erroneous=20 because =91failure to warn=92 is only a subpart of a strict = liability claim=20 and is not a cause of action in and of itself.=94 Moreover, Benavides = observes, he=20 testified without objection that he had never received a warning = about the=20 Groom Master=92s potential instability if turned while on a=20 slope.

Marketing Defect = Cause of=20 Action

=20 In Texas, section 402A of the Restatement (Second) of = Torts=20 governs strict liability claims. =20 Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 426 = (Tex.=20 1997). Under = section 402A(1),=20 a =93defective=94 product is one that is =93unreasonably dangerous = to the user=20 or consumer.=94 = Restatement (Second) of = Torts =A7=20 402A(1) (1965); Grinnell, 951 S.W.2d at 426; Sims v. = Washex=20 Mach. Corp., 932 S.W.2d 559, 561 (Tex. App.=97Houston [1st = Dist.] 1995,=20 no writ). A = plaintiff may=20 prove that a product is =93defective=94 if it is (1) unreasonably = dangerous as=20 manufactured, (2) unreasonably dangerous as designed, or (3) = unreasonably=20 dangerous as marketed because adequate warnings or instructions = were not=20 provided. = Grinnell,=20 951 S.W.2d at 426; Sims, 932 S.W.2d at=20 561=9662.

=20 A manufacturing defect exists if a product does not conform = to the=20 design standards and blueprints of the manufacturer, and the flaw = makes=20 the product more dangerous and therefore unfit for its intended or = reasonably foreseeable uses. =20 Sims, 932 S.W.2d at 562. A product with a design = defect=20 complies with all design specifications, but the design = configuration is=20 unreasonably dangerous because the risk of harm associated with = its=20 intended and reasonably foreseeable use outweighs its = utility. Id. In contrast, a marketing = defect=20 occurs if a defendant knows or should know of a potential risk of = harm=20 presented by a product but markets it without adequately warning = of the=20 danger or providing instructions for safe use. = Id.

=20 A marketing defect claim and a design defect claim =93are = clearly=20 distinct and separable. = A=20 marketing defect is found =91if the lack of adequate warnings or=20 instructions renders an otherwise adequate product unreasonably=20 dangerous.=92 A = design defect=20 focuses on a defect in the product itself, and whether safer = designs for=20 the product were available.=94 =20 Smith v. Aqua-Flo, Inc., 23 S.W.3d 473, 480 (Tex.=20 App.=97Houston [1st Dist.] 2000, pet. denied) (quoting = Caterpillar, Inc.=20 v. Shears, 911 S.W.2d 379, 382 (Tex. 1995)); see also = Lemond v.=20 Lone Star Gas Co., 897 S.W.2d 378, 386 (Tex. App.=97Fort Worth = 1994),=20 aff=92d in part and rev=92d in part on other grounds, 897 = S.W.2d 755=20 (Tex. 1995) (=93In marketing defect cases, the defective or = unreasonably=20 dangerous condition of the marketed product arises not from the = product=20 itself, but because the seller fails to warn the user of an = improper use=20 of the product.=94). = Thus, we=20 reject Benavides=92s assertion that =93failure to warn=94=97or a = marketing defect=20 claim=97is =93not a cause of action in and of = itself.=94

Evidence of Failure = to=20 Warn

=20 =93[I]t is not . . . proper to admit evidence unless it is = addressed=20 to or bears upon some issue raised by the pleadings.=94 Erisman v. = Thompson, 167=20 S.W.2d 731, 733 (Tex. 1943). =20 To determine whether a pleading includes a particular = claim, we=20 examine the pleading from the perspective of the person against = whom the=20 pleading is made. = Wilson=20 v. Bloys, 169 S.W.3d 364, 369 (Tex. App.=97Austin 2005, pet. = denied)=20 (citing Erisman, 167 S.W.2d at 733). This is because =93[t]he = purpose of=20 a pleading is to provide the defendant with fair notice of the = cause of=20 action and character of evidence that will be raised at = trial.=94 Id.; see also = Crain v.=20 San Jacinto Sav. Ass=92n, 781 S.W.2d 638, 639 (Tex. = App.=97Houston [14th=20 Dist.] 1989, writ dism=92d) (observing that purpose of pleadings = =93is to put=20 the opposing party on notice of the character of evidence that he = will be=20 called upon to meet,=94 and to =93place parameters on the = forthcoming=20 contest=94). In = determining=20 whether the plaintiff has pleaded a particular cause of action, = =93we must=20 be able to determine from the pleadings alone the elements of the = cause of=20 action.=94 = Wilson, 169=20 S.W.3d at 369 (citing Fairdale Ltd. v. Sellers, 651 S.W.2d = 725, 725=20 (Tex. 1982)).

=20 Here, Benavides did not plead either a marketing defect or = a=20 failure to warn; nor does his petition set forth any of the = elements of a=20 marketing defect cause of action. =20 Rather, it states claims for design defect, manufacturing = defect,=20 and negligence, and it also seeks punitive damages.[3] Absent a pleading, the = parties can=20 nonetheless try a claim by consent, or by trial amendment, but = Benavides=20 did not request a trial amendment pertaining to a marketing defect = cause=20 of action. In = addition, the=20 jury charge did not contain a marketing defect issue=97rather, the = trial=20 court submitted to the jury issues involving design defect, = negligence,=20 and damages only. = Benavides=20 neither objected to this charge nor requested that the trial court = submit=20 a marketing defect question to the jury. Marketing defect thus = was not one=20 of Benavides=92s theories of recovery in this case=97neither by = pleading, nor=20 by trial amendment, nor by consent. =20 See JCW Elecs., Inc. v. Garza, 176 S.W.3d 618, 625 = (Tex.=20 App.=97Corpus Christi 2005, no pet. h.) (=93[W]here no element of = a ground of=20 recovery is submitted or requested, and the entire theory is = omitted from=20 the charge, that ground of recovery is waived.=94); Tex. R. Civ. P. = 279. Accordingly, we hold = that the=20 trial court did not abuse its discretion in excluding Dr. = Wright=92s=20 testimony, which was directed at proving the elements of a = marketing=20 defect cause of action.[4]

D. Cumulative Expert=20 Testimony

=20 In his third issue, Benavides contends the trial court = erred in=20 allowing cumulative expert testimony by Barnett that had already = been=20 given by James Berkeley, Cushman=92s corporate = representative. Benavides called = Berkeley as an=20 adverse witness during his case-in-chief. Berkeley testified that, = in his=20 opinion, the Groom Master was not defective. During its = case-in-chief, Cushman=20 called its outside expert, Barnett, to offer opinions about the = safety of=20 the Groom Master. = Benavides=20 objected to Barnett=92s testimony:

Q. = [Cushman=92s=20 counsel]: =20 And have you come to a conclusion or do you have an opinion = about=20 the Groom Master and whether it is a stable vehicle or=20 not?

A. =20 [Barnett]: =20 I do have an opinion.

[Benavides=92s counsel]: Your = Honor,=20 before he gets to the opinion, may we approach real=20 quick?

THE COURT: =20 Yes.

(Bench conference not on the=20 record.)

[Benavides=92s counsel]: Your = Honor, we=20 just want to make an objection, just for the record, that we = object to Mr.=20 Barnett=92s testimony to the extent that it is cumulative and = duplicative of=20 the testimony that also [has] been given by Mr. Berkeley with = regards to=20 the design of rollover protection systems and the need or the lack = of need=20 for the rollover protection systems. =20 Just for the record, Your Honor.

THE COURT: = The=20 objection=92s overruled.

Benavides asserts = that the=20 trial court should have excluded Barnett=92s testimony under Texas = Rule of=20 Evidence 403 because his opinion on the issue of rollover = protection=20 systems =93may be understandable from a liability expert but for = the fact=20 that Mr. Berkeley had already given an expert opinion on the same=20 issue.=94

=20 Rule 403 states that relevant evidence =93may be excluded = if its=20 probative value is substantially outweighed by . . . needless = presentation=20 of cumulative evidence.=94 = Tex. R. = Evid.=20 403. We acknowledge = that=20 portions of Barnett=92s testimony are similar to Berkeley=92s = testimony=97for=20 instance, both witnesses testified that the efficacy of rollover=20 protection systems depends on the use of seat belts because the = protection=20 system itself becomes a hazard if the operator is not wearing a = seat belt.=20 Barnett=92s = testimony, however,=20 expounded on Berkeley=92s observations in several respects. Barnett pointed out that = =93[t]he=20 problem [with rollover protection systems] is that none of us in=20 technology have been smart enough to figure out how to make people = wear=20 seat belts.=94 He = then=20 elaborated on the reasons people offer for refusing to wear seat=20 belts. He further = explained=20 that the problem is particularly pronounced for vehicles like the = Groom=20 Master, because the operator is continually dismounting the = machine so he=20 can manually rake the sections of the sand trap the Groom Master = missed.[5] In contrast, Berkeley = merely=20 acknowledged that the effectiveness of rollover protection systems = depends=20 on seat belt use.

=20 Moreover, under Rule 403, =93[t]he test is not merely = whether the=20 evidence to be adduced from the two witnesses is similar, but also = whether=20 the excluded testimony would have added substantial weight to the = offering=20 parties=92 case.=94 = Sims v.=20 Brackett, 885 S.W.2d 450, 454 (Tex. App.=97Corpus Christi = 1994, writ=20 denied). Berkeley = testified=20 as Cushman=92s corporate representative, called adversely by = Benavides;=20 Barnett, on the other hand, was a professor of engineering at the = Illinois=20 Institute of Technology and was not a regular employee of = Cushman. As such, Barnett=92s = testimony=20 concerning rollover protection systems added to Cushman=92s = case. We therefore hold that = the trial=20 court did not abuse its discretion in permitting Barnett to = testify. See id. at = 453=9654=20 (where appellant offered testimony of two expert witnesses, one of = whom=20 was board certified in general surgery only and was appellant=92s = friend,=20 and the other of whom was board certified in internal medicine and = did not=20 know appellant, holding that trial court abused its discretion in=20 excluding second expert=92s testimony as cumulative under Rule 403 = because=20 =93[t]he difference in the two expert=92s [sic] credentials and = [the second=20 expert]=92s lack of a personal relationship with [appellant] in = all=20 likelihood would have enhanced [the second expert]=92s credibility = compared=20 to [the first expert]=92s=94).

E. Incident=20 Report

=20 In his fourth issue, Benavides contends the trial court = abused its=20 discretion in admitting, under the business records exception to = the=20 hearsay rule, an incident report written by Benavides=92s = supervisor,=20 Marshall Lee, on the day of the accident. Benavides asserts that = the=20 incident report contains expert opinions and should not have been = admitted=20 because Cushman did not designate Lee as an expert witness. In the report, Lee = describes the=20 accident and notes that =93[t]he golf course has a lot of steep = hills around=20 the greens where the traps exist. =20 You have to make turns on equipment on level=20 ground.=94

Failure to Request = Limiting=20 Instruction

=20 After the trial court admitted the incident report, = Benavides did=20 not request that the portions of the report containing the = opinions to=20 which he objected be redacted; nor did he request a limiting=20 instruction. = Pursuant to Rule=20 105(a),

[w]hen evidence which is admissible as = to one=20 party or for one purpose but not admissible as to another party or = for=20 another purpose is admitted, the court, upon request, shall = restrict the=20 evidence to its proper scope and instruct the jury accordingly, = but, in=20 the absence of such request the court=92s action in admitting such = evidence=20 without limitation shall not be a ground for complaint on=20 appeal.

Tex.=20 R. Evid. = 105(a).

=20 Here, Benavides objected to three portions of the incident = report=20 that allegedly set forth Lee=92s expert opinions regarding what = Benavides=20 did unsafely, why he did it that way, and what unsafe condition=20 existed. Benavides = did not=20 object to the report in its entirety, and he did not assert that = the=20 report was inadmissible as a business record=97rather, he argued = that=20 =93whether or not this is a business record is immaterial=94 = because the=20 report contains Lee=92s expert opinions and Lee was not designated = as an=20 expert witness.[6]

=20 Even if Benavides is correct that certain portions of the = report=20 were inadmissible, Benavides waived any complaint to general = admission of=20 the report by failing to request that the offending portions be = redacted=20 and by failing to request a limiting instruction. See Birchfield = v.=20 Texarkana Mem=92l Hosp., 747 S.W.2d 361, 365 (Tex. 1987) = (noting that=20 party waives any complaint to general admission of evidence if it = fails to=20 request limiting instruction); Horizon/CMS Healthcare Corp. v.=20 Auld, 985 S.W.2d 216, 225=9626 (Tex. App.=97Fort Worth 1999), = aff=92d in=20 part and rev=92d in part on other grounds, 34 S.W.3d 887 (Tex. = 2000)=20 (holding that appellant waived any complaint to general admission = of=20 investigation reports by failing to request limiting instruction); = cf.=20 Pack v. Crossroads, Inc., 53 S.W.3d 492, 501 (Tex. App.=97Fort = Worth=20 2001, pet. denied) (holding that trial court did not abuse its = discretion=20 in ruling that allegations of abuse and neglect contained in = hospital=20 records were speculative and therefore subject to=20 redaction).

Failure to=20 Object

=20 Benavides also waived any error in the admission of the = incident=20 report by failing to object to the admission of Lee=92s videotaped = deposition, which was played for the jury. During his deposition, = Lee=20 authenticated the incident report and discussed the contents of = the report=20 in the following exchange:

Q: = [Cushman=92s=20 counsel]: =20 What did you indicate [on the = report]?

A: = [Lee]: =20 I indicated it was -- he did this in an unsafe manner. =93Turned machine over = on a steep=20 hill=94 is what he -- he said he turned it over. =93Operator chose to do = it this way=94=20 -- because it has several steps in here that we had to go by on = these=20 reports. And it = says: =93Why=20 was this done this way?=94 = =93Operator chose to do it that = way.=94

Benavides did not = seek or=20 receive a ruling from the trial court about the report when = Cushman=20 offered Lee=92s videotaped deposition into evidence; nor did he = object at=20 trial to the preceding portion of Lee=92s testimony describing the = contents=20 of the incident report. =20 =93[A]ny error in admitting evidence is cured where the = same evidence=20 comes in elsewhere without objection.=94 Schwartz v. Forest = Pharms.,=20 Inc., 127 S.W.3d 118, 124 (Tex. App.=97Houston [1st Dist.] = 2003, pet.=20 denied). Here, = Benavides=20 failed to preserve error by failing to object to Lee=92s = discussion of the=20 contents of the incident report during his videotaped testimony at = trial. Accordingly, = we hold=20 that the trial court did not abuse its discretion in admitting the = incident report.

IV. =20 CONCLUSION

=20 We conclude that (1) Benavides could not be harmed by = error, if=20 any, in the trial court=92s ruling excluding evidence of prior = similar=20 incidents because the jury heard extensive evidence about them = later in=20 the trial; (2) the trial court did not abuse its discretion in = excluding=20 Dr. Wright=92s testimony concerning failure to warn because = marketing defect=20 was not one of Benavides=92s theories of recovery; (3) the trial = court did=20 not abuse its discretion in allowing Barnett to testify about = rollover=20 protection systems because his testimony was not cumulative, and = it added=20 to Cushman=92s case; and (4) Benavides waived any error in the = admission of=20 a workplace incident report by failing to request that it be = limited or=20 redacted and by failing to object to the admission of Lee=92s = videotaped=20 deposition, during which Lee described the contents of the report. = We therefore affirm the = judgment of=20 the trial court.

&nbs= p; = ; = &= nbsp; =20 Jane Bland

&nbs= p; = ; = &= nbsp; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Alcala and Bland.