Texas Public Education Watchdog Authority

Prison Does Not Fit the Crime! The Child Learns not to make a mess when he realizes he is going to be the One to Clean Up The mess. Common Sense!!

2010-10-10T04:03:00.000-07:00

Race: County Court-at-Law No. 5
Republican Chesney, Democrat Shamsie seek post

* Posted October 9, 2010 at 7:03 p.m., updated October 9, 2010 at 7:07 p.m.

Chesney
Shamsie

CORPUS CHRISTI — The court handles a caseload of mostly Child Protective Services cases that involve the removal and placement of children as a result of abuse, neglect or abandonment.

Adoptions, guardianships and juvenile cases from throughout Nueces County also are handled by the court.

Commissioners appointed Terry Shamsie, a Democrat, to the bench in 2008 to serve out the remainder of the late Judge Carl Lewis’ unexpired term.

Shamsie, a former county judge, is running for a full four-year term against Republican Brent Chesney, a city councilman, for the seat.

The position pays about $139,000 annually.

Terry Shamsie

Age: 47

Occupation: Judge

Experience: As judge I have handled over 400 cases affecting more than 900 children who were victims of child abuse and neglect, over 300 juvenile cases and more than 100 guardianship cases, 2008 to present. With bipartisan support, I was unanimously elected chair of the Juvenile Board of Judges. As county judge, I presided over Commissioners Court and a $100 million budget, 2003-06.

I practiced law handling adult criminal cases, juvenile cases and family law and civil cases, 1991-2002. As assistant county attorney, I handled civil litigation including some CPS, protective orders and family violence cases, 1989-91. I was on the Law Review’s staff at South Texas College of Law, received awards for academic achievement/American Jurisprudence and graduated with a bachelor’s degree in accounting from St. Ambrose College.

What makes you the best person for this office?

My parents raised me to value honesty, education and a strong work ethic. During my about 23 years of practicing law, I have handled the most difficult criminal, juvenile and complex family law cases, earning the trust of prosecutors and child advocates who work to fix broken families. I utilize evidence-based research to provide effective long-term solutions to the tough cases facing this court daily. My unique qualifications make me the best fit for this position.

What is the most troubling type of crime juveniles commit in Nueces County, and what would you do/have done to help as judge?

The use and distribution of drugs, especially in school, constitutes the most serious offenses committed by juveniles. Consumption of drugs, both legal and illegal, is an underlying and contributing factor to the commission of more serious offenses including family violence, burglary of homes and vehicles. These offenders get assessed and placed in drug court or a long-term secured drug treatment facility. I meet with these juveniles on the second and fourth Thursday of each month.

What is your judicial philosophy?

Knowing that of the 4,000 children that come through the juvenile justice system annually, there are only enough funds to place 10 children in long-term treatment. I must, therefore, administer the law exercising common sense with an eye toward holding the line on our dollars and cents. I make decisions based on the best interest of the child and in juvenile cases, what it takes to rehabilitate the child despite ever-shrinking tax dollars.

Brent Chesney

Age: 47

Occupation: Attorney

Experience: I have practiced family law, Child Protective Services cases and criminal matters in Nueces County since 1996. I have also practiced in the area of guardianships. I have tried combined somewhere in the range of 75 cases to a judge or jury. I have never lost a jury trial that I was lead counsel on.

What makes you the best person for this office?

Nueces County needs a judge who really cares about the youth and families of this community that this court serves. I have the experience and dedication to be that judge. Nueces County needs a judge who will not overspend taxpayer dollars as my opponent has (an estimated $500,000 during his two years on bench.) I believe we need a judge who will not be soft on crime as my opponent has been. I have been endorsed unanimously by law enforcement.

What is the most troubling type of crime juveniles commit in Nueces County, and what would you do/have done to help as judge?

Felony offenses and the large number of graffiti offenses that are not being addressed by my opponent are troublesome. Nueces County needs a judge who will not continue to let the offenders go as my opponent has. We need a judge who will work to take these repeat juvenile offenders off the street. As parents, sometimes we must have the courage to administer “tough love.” The judge of this court must have that same courage.

What is your judicial philosophy?

My philosophy is to be firm but fair with everyone. I believe a judge is there to administer the law and not make law. If someone wants to make law, then they should run for the Legislature. I believe you must leave your personal agendas and policymaking ideas at the door. You must take each case one by one. No two cases are the same, nor should they be judged as such.

© 2010 Corpus Christi Caller Times. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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* October 9, 2010
* 7:58 p.m.
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ridley writes:

Let me see, Brent Chesney, Isn't he the city councilman who promised not one more inch of beach, then came back the next week and wanted double. He supported that beach closure to the end, he did finish that.
Last time after he got on city council he found out the advantages of getting a job with a title company american title. then through that little synergy he became a local star so they promoted him to dallas where he moved but refused to give up his seat on the council flying in for meetings. Then when they discovered he wasnt quite as successful in dallas, (maybe because he wasnt on the city council there) he came back to corpus and had to buy his old house back.
Now off the city council and no longer working for american title. so he runs again and based on the usual white low turnout in city elections and good name recognition he gets elected again. Then we find out through the caller times that he has signed a contract with american title to go back to work for them, if he wins the election!
Now the title and real estate business being what it is, with most of the work straigtening out titles on foreclosures there isn't a lot of growth in the market.
So brent decides he now is tough on crime and wants to send graffiti painters to boot camp. Does he know that TYC is practically closing all its facilities because, 1) they are not as cheap or 2)as effectives supervised probation and treatment or group homes. One of other reasons is that little TYC scandal that ended up finding out that a third of the kids in TYC had been sexually abused while in the facities by other kids and staff.

* October 9, 2010
* 8:25 p.m.
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Smoke writes:

Now this is a lose-lose situation,one is totally useless,and the other is completely worthless.Brings to mind KBH running against Perry,you lose either way.

* October 9, 2010
* 8:31 p.m.
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ridley writes:

The ct should report on the factual basis of the two statements. Carl Lewis requested an increase in attorneys fees from $40/hr out of court and $60/hr in court to $60 & $80 shortly before he died. that is still 30% less than adult court and half of what federal appointments pay. that alone would increase the budget's biggest non stable item, attorney fees.

Lewis' budget in the two years between 1999-2001 (in 2000-2001 $590,000)would have been signficantly higher than shamsies had the attorney fees been what they were when shamsie took office thats not accounting for any inflation in the rest of the budget in ten years.
the budget is largely driven by caseload, when the recession hit the cps caseload went up 30%, the majority of them children from 0-2 years old, with lots of medical and other problems. thats expensive. The caseload jumped to 400 kids in care, with 50 or so turning over every month.

Notice the county has ten slots for highly secure care such as tyc, group care, intensive long term drug treatment, and brent wants to use them for putting graffiti kids in boot camp. maybe they will drag them around behind a van like the SA boot camp did that 15year old girl. Most kids who go to tyc come out worse, they are mixed with much sicker kids that come from even worse environments.

Ultimately, the job is about what to do to help a young person get on the right track. the vast majority of the children are there because of abuse and neglect, brent didnt mention what he would do about those. kids with lots of love and support dont usually end up in these situations. Juvenile court is for intervention and treatment not punishment. the law, science, religion, philosophy, criminology psychology all agree children are fundamentally not mature enough to make good decisions for themselves and when they make bad ones it is because they have not been loved, been abused, or neglected, including their socialization and development.

I understand the cops frustration with juveniles you cant treat them like adults. Cops always want everyone thrown in jail for as long as they can get them there, but any old lawman will tell, you cant arrest and and jail your way free of crime because it doesnt deal with the causes.

He thinks the most important problem is graffiti and Shamsie thinks it is alcohol and drugs in families and kids. Hmmm...Brent Chesney was appointed in three cases to represent children in the County Court of Law 5, three times he was a no show one time he didnt even know where the child was. He was probably too busy texting.

* October 9, 2010
* 8:37 p.m.
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haceunano writes:

That Chesney, it ain't right. He confused some people because first they thought he was going to run for Commissioner and ends up running for Judge. I wonder how many applications this guy is going to submit (RTA, City Manager), oh boy!

wackenThe decedent's parents brought a wrongful death action along with the survival action, and the trial court

2009-06-30T01:14:00.000-07:00

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NUMBER 13-06-00692-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

WACKENHUT CORRECTIONS CORPORATION

AND WARDEN DAVID FORREST, Appellants,

v.

GREGORIO DE LA ROSA, SR., ET AL., Appellees.

On appeal from the 404th District Court of Willacy County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Garza and Benavides

Opinion by Justice Benavides

This case involves the horrific and gruesome death of Gregorio de la Rosa, Jr. ("Gregorio"). Gregorio, an honorably discharged former National Guardsman, was serving a six-month sentence at a prison operated by Wackenhut Corrections Corporation for possession of less than 1/4 grams of cocaine. A few days before his expected release, Gregorio was beaten to death by two other inmates using a lock tied to a sock, while Wackenhut's officers stood by and watched and Wackenhut's wardens smirked and laughed.

Gregorio's estate and his family members (1) (collectively "the family") brought survival and wrongful death claims against Wackenhut and its warden, David Forrest, alleging that they negligently caused Gregorio's death and acted with malice and gross negligence. Wackenhut also either lost or destroyed key evidence in this case, prompting the trial court to give a spoliation instruction. The jury found that Wackenhut and Warden Forrest were negligent and acted with gross negligence or malice, and it awarded actual damages to Gregorio's parents and children and punitive damages to Gregorio's estate. The trial court rendered judgment on the verdict, and it also awarded funeral and emergency medical services ("EMS") expenses to Gregorio's estate, though these were not awarded by the jury.

On appeal, Wackenhut and Warden Forrest (collectively "Wackenhut") raise twelve issues attacking nearly every facet of the judgment. We reverse and render judgment dismissing the claims of the estate of Gregorio's father, Gregorio de la Rosa, Sr. ("Gregorio, Sr."), for lack of subject-matter jurisdiction. We also reverse the trial court's award of $7,000 for funeral expenses to Gregorio's estate. However, we affirm the remainder of the judgment.

I. Background The family brought suit against Wackenhut after Gregorio was brutally attacked by two other inmates, resulting in his death, at the Wackenhut facility in Willacy County on April 26, 2001. (2)

A. The Assault

The inmates at Wackenhut live in separate dormitories or "housing" facilities. A "crash gate" guards the walkway leading away from the housing facilities. The crash gate is made out of cyclone fencing material and is closed unless prisoners are passing through the gate. A guard is posted at the crash gate to monitor the prisoners passing through the gate.

On the crash gate's other side, in between the housing unit and the support building, is a 100-yard-long walkway known as the "bowling alley." It is a large sidewalk that is, for the most part, an open area with no buildings immediately adjacent to it. A chain-link fence runs along one side of the sidewalk. There are no guards posted along this walkway.

Wackenhut contracts with the State of Texas to operate the prison, and it is required to follow the State's policies in operating the prison. One such policy is the crash gate "post order," which, according to Warden Forrest, is an order that "gives the officer general guidelines and duties to go by in that particular area." Warden Forrest stated that the guard at the particular post should follow the post order. The crash gate post order stated, "The officer shall conduct pat-searches of inmates before permitting entrance or exit to or from any department within the area of responsibility." (Emphasis added). Warden Forrest testified that the purpose for searching inmates was to discover contraband, including weapons. The procedures are in place to safeguard the inmates.

Corrections Officer Raul Hernandez (3) was stationed at the crash gate on April 26, 2001. Gregorio and several other inmates, including inmates Pedro Equia and Daniel Sanchez, passed out of their housing facility and through the crash gate on their way to the support building for "pill call." (4) Officer Hernandez testified that he checked the inmates' "passes" to ensure they were allowed to leave the housing unit, but he admitted that he did not pat search Equia or Sanchez. (5) Officer Hernandez stated that if he had searched the inmates, he would have found the lock.

After traveling about half the distance to the support building, Equia and Sanchez attacked Gregorio from behind. At least one of the two inmates possessed a lock tied to a sock and used this as a weapon, striking Gregorio on the head. (6) Officer Hernandez testified that he saw one of the inmates hit Gregorio on the head with the sock, and Gregorio fell to the ground and did not fight back--he "didn't have a chance at all." While Gregorio crouched on the ground, Equia and Sanchez were kicking him, and blood was splattering on the ground.

Officer Juan Cortez, another Wackenhut corrections officer, testified that he was standing near the door next to Central Control (7) waiting for inmates to arrive at the education department. He stated that he could see down the "bowling alley" all the way to the housing units through a glass window pane in the door. The officers inside Central Control could also see the "bowling alley" through glass windows. He stated that he saw inmates coming out of the housing unit and that he noticed that the crash gate officer did not pat-search them. He claimed that he knew something was "wrong" when he saw the inmates pass through the crash gate without being pat-searched.

Officer Cortez testified that he saw Gregorio walking down the "bowling alley," and two inmates came up from behind. He saw one inmate take out a sock, swing it, and hit Gregorio on the right side of his head. Gregorio then "bounce[d] down to the floor." The inmate tried to hit Gregorio with the sock again while he was on the ground, and then both inmates began kicking him all over his body. Officer Cortez testified that Gregorio did not respond or fight back because the first hit with the sock knocked him out. (8)

Officer Cortez testified that the beating itself lasted fifteen to twenty minutes before officers arrived and halted the assault and that it took another hour and fifteen minutes for medical personnel to arrive, even though these medical personnel were employed by Wackenhut and were present at the facility at the time. (9) Officer Cortez claimed that Warden Forrest and Assistant Warden Elberto Bravo first arrived approximately forty-five minutes later. He claimed that he saw Warden Forrest standing right inside the door next to Central Control laughing about the incident. Assistant Warden Bravo was also laughing, and another officer, Rodriguez, was smirking. Officer Cortez opined that many of Wackenhut's officers were corrupt. He believed the assault was a "hit" on Gregorio and that Wackenhut's employees knew it was going to happen.

Maria Juanita Marroquin testified she was formerly employed at Wackenhut and was present at the facility on April 26, 2001. (10) Upon hearing the "code black" over the radio about the fight, she went to the door by Central Control. She saw Gregorio on the ground in the "bowling alley," and two inmates were beating him. One was swinging a sock at him.

She also stated that the beating lasted fifteen to twenty minutes. (11) She opined that the actions taken would have been different if a guard was being assaulted and that Wackenhut did not value the inmates' lives. She also stated that she saw Assistant Warden Bravo smirking and laughing after the incident. She testified that Warden Forrest had a look on his face like "that's one less Mexican he had to worry about."

B. Meaning of the Crash Gate Post Order

Warden Forrest testified that the inmates have a right to a safe facility, and the inmates depend on the wardens to ensure that a safe living environment is provided. He stated that the State promulgates the post order policies and mandates that Wackenhut follow them, and the procedures are imposed to safeguard the inmates. Warden Forrest acknowledged that he owes a duty and obligation to the inmates to follow all policies and procedures. He admitted that breach of the policies and procedures will jeopardize the unit's integrity and the inmates' security. Furthermore, he agreed that if Wackenhut failed to follow the State's procedures, the inmates can suffer serious injuries. He admitted that the best way to stop a beating is to prevent it from occurring in the first place.

Nevertheless, Wackenhut disputed the meaning of the crash gate post order at trial. All the witnesses agreed that the post order's plain language was mandatory--stating that the crash gate officer "shall" pat-search the inmates. However, Wackenhut's witnesses testified that only random searches were required at the crash gate because the order only applied when inmates were entering or exiting from a "department" within the officer's area of responsibility.

Warden Forrest testified that neither the housing unit nor the "bowling alley" were "departments." Thus, because Gregorio, Equia, and Sanchez were not entering or exiting a "department" within the crash gate officer's area of responsibility, the crash gate officer was not required to search every inmate. Major Steve Sangster, the head of security at the Wackenhut facility, testified that the officer working the crash gate was required to follow the crash gate post order. However, he also claimed that neither the housing unit nor the "bowling alley" were "departments," so only random searches were required.

Warden Forrest explained that it was impractical to search all the inmates passing through the crash gate because the officers must keep the inmates moving to avoid congestion at the gate. Warden Forrest was trained to send the inmates through the gate in a group, but he admitted that groups traveling together are dangerous. Nevertheless, he claimed that congestion at the gate could also be dangerous, and it would cause the inmates to be late to their appointments in education and elsewhere. Wackenhut's expert, Gary Johnson, echoed these concerns.

Major Sangster testified that locks are available at the commissary for purchase so that the inmates can lock away their personal items. Major Sangster testified that pat-searches are not 100 percent accurate, and he claimed that even if a pat-search had been conducted, it is not certain that a lock and a sock would have been discovered. However, he agreed that if all the inmates had been searched, the lock probably would have been detected.

Furthermore, he stated that even if the lock had been detected, it may not have been confiscated by the officers if the inmate provided a good explanation for possessing the lock. For example, Warden Forrest testified that if an inmate had purchased a lock and needed to return it to the commissary for some reason, he would be allowed to do so. On the other hand, Officer Cortez testified that the crash gate post order meant that "you had to search all, each and everybody, coming out of their housing before they got to crash gate . . . ." He testified that every inmate had to be searched because "you don't know within that time frame whether somebody was going to pass contraband or whatever." He claimed that the proper procedure was to search the inmates and let them out of the gate one at a time, with time separating the exit of each inmate:

Well, I think, start off with, when these people came out of the housing to go to education, okay, first they should have searched the first inmate, give him a little bit, two, three, four minutes, let him walk, then check the other one, give him another two, three minutes like that there's a far walking distance between these people. If something is going to happen that gives time for the officer up front or whoever is in the back to get a glimpse of what's going to happen. You don't send two inmates after one another. You don't do that. It's against policy. I mean, Wackenhut, the employees knew about it. They went against their own rules.

Officer Cortez further testified that if a search had been conducted, the lock would have been discovered, and neither Equia nor Sanchez would have been permitted to pass through the gate at that time:

Q: (By Mr. Rodriguez) You know how to do pat[-]searches, right?

A: Yes.

Q: You would have found--you would have found that lock if they would have tried--

A: Oh, yes. Oh, yes.

. . . .

Q: And in your opinion, do you think that would have made a difference in the outcome of De La Rosa?

. . . .

A: Oh, yes. He'd be alive.

Q: And why is that?

A: Because the simple reason that I would have taken out the contraband from the inmate. I would have dropped him right there. Tell him to drop himself or, you know, we do it. And I would call, you know, my supervisor, which was Warden Rodriguez at the time, let him know that I have a situation at [the] crash gate. I have an inmate with contraband, you know, a weapon. As to what he's going to do with it, I don't know. See, everything would have ceased right there. There would be nobody coming out, but we would have taken care of the situation right there before it led to where it led. In this case, that did not happen.

. . . .

Q: Had that happened, in your opinion, was that De La Rosa would be alive today?

A: Yes, he would.

Officer Hernandez, who was manning the crash gate on the day of the incident, further agreed that if he had pat-searched Equia and Sanchez, he would have discovered the lock, and Gregorio would likely be alive.

Although Marroquin was working as a substitute teacher in education on the day of the incident, she later was trained and became a corrections officer at Wackenhut. Marroquin testified that the post order required every inmate leaving the housing units to be searched for contraband and weapons. She testified that had a proper search been conducted, she expected that the searching officer would have discovered the lock. If she discovered a lock during a pat-search and the lock was not broken, she stated that she would have considered it a weapon.

The family introduced into evidence the State's security audits of the Wackenhut facility. Major Sangster testified that, in 2002 and 2003, Wackenhut was cited for failing to conduct pat-searches as the inmates were leaving the housing facility.

C. Previous Assaults at the Wackenhut Facility

Both Warden Forrest and Major Sangster testified that other assaults had occurred in the "bowling alley" area, which was not manned by guards. The trial court admitted four reports offered by the family detailing other incidents at Wackenhut where locks had been used in an assault on an inmate. Major Sangster admitted that he had knowledge of these reports prior to Gregorio's assault.

More importantly, Warden Forrest testified that Equia had assaulted another inmate just a few months before the assault on Gregorio. On January 3, 2001, while at another facility, Equia and another inmate assaulted a fellow inmate by kicking and hitting him. Equia was transferred to the Wackenhut facility at the beginning of February 2001. Apparently, the TDCJ database was updated on February 8, 2001, after Equia was transferred to the Willacy County facility, to note the assault. Warden Forrest stated that he was not aware that the computer system had been updated because the system does not provide notice of updates. He admitted, however, that he had access to this information at any time after February 8, 2001, and before Gregorio was assaulted on April 26, 2001.

D. Gregorio's Injuries and Death

Gregorio suffered severe injuries as a result of the beating. Officer Valentin Martinez testified that he escorted Gregorio to the medical department. He testified that Gregorio was "messed up," with blood all over his face and bumps on his head.

The medical department called an EMS team, and Gregorio was taken to the hospital. Foster Frank Edwards, a Willacy County EMS paramedic, testified that he was dispatched to the jail. He stated that Gregorio's face was swollen and deformed. Gregorio was suffering pain in his abdomen, face, back, and neck. Gregorio refused to lie flat on the stretcher because of the pain he was suffering. He stated that Gregorio told him that he was about to be released from jail, that things were going to be good for him then, and that he was looking forward to seeing his family.

Robert Sims, M.D., testified that he is an emergency room physician at Valley Baptist Medical Center and that he treated Gregorio. He is board certified in internal and emergency medicine. He testified that Gregorio was very seriously injured. Gregorio was talking, but his clarity was impaired. Gregorio's blood pressure was low and was dropping, and he had facial bruising, black eyes, broken ribs, and a partially collapsed lung. Sims performed a quick bedside ultrasound and found blood inside Gregorio's abdominal cavity, which indicated that an internal organ was damaged. By the time he examined Gregorio, between one-fifth and one-fourth of Gregorio's blood had already spilled into his body cavity.

Gregorio died during surgery. Sims testified that the beating caused Gregorio's death, based on a reasonable degree of medical probability. He testified that the death resulted from multiple blows to the body and that all the blows were important.

Ruben Lopez, M.D., who performed the surgery on Gregorio, testified he was 100 percent certain that the beating proximately caused Gregorio's death, based on a reasonable degree of medical probability, and he opined that had Gregorio not received the beating, he would be alive. The autopsy report determined that the cause of death was "multiple vascular lacerations, due to: Beating."

E. The Spoliated Evidence

Warden Forrest testified that there were video cameras along the facility's perimeter, and the cameras were linked to video recording equipment in Central Control. He testified that the State of Texas required him to ensure that the cameras were in good working condition. These cameras, Warden Forrest explained, could pan and tilt, and they were mounted on perimeter posts to get a "bird's eye view." The cameras were adjustable from Central Control and were always on.

At trial, the family contended that a videotape existed that showed the beating but that this video had been lost or destroyed by Wackenhut. Warden Forrest testified during his deposition that there was a video camera on one of the perimeter posts that was focused down on the beating. In his sworn testimony, he admitted to seeing a tape of the beating and described the video and the beating in detail. His stated that the video showed "that one inmate had beat another inmate with a sock filled with a lock," and it showed an inmate kicking and punching Gregorio.

After reviewing his deposition, however, Warden Forrest changed his testimony, claiming that the video never existed. At trial, he admitted to describing the video in his deposition testimony, but he claimed that his prior testimony describing the video was "based on all the information that I received regarding that incident over and over receiving information." He explained that he had created his "own little movie" in his mind:

I did that based on all the information that I received regarding that incident over and over receiving information. I put that picture--painted that picture in my head that I believed that's what I saw, and that's what I testified to, and I corrected it that day and at a later date. . . . I described what I thought I saw based on the information of everyone telling me what happened. I painted a picture of that incident in my mind, and I played it over in my mind many, many times since then.

Officer Cortez testified that during his training, he learned that every department had a video camera that was constantly recording in Central Control, and there should have been a camera pointing to the crash gate area. He testified that at the end of the third shift every day, the videotapes were taken to the warden's office, and the warden maintained custody of them. He opined that Wackenhut's wardens destroyed the tapes of Gregorio's beating.

Warden Forrest also admitted that the facility owned and used several handheld cameras to record the use of force by officers when necessary. Officer Cortez testified that after the fight ended, Assistant Warden Bravo recorded Gregorio with a handheld camera and followed Gregorio all the way to the medical department. Officer Cortez testified that the videotape would have shown Gregorio's injuries. Officer Cortez testified that he saw Warden Bravo leave the medical department with the tape in his hand and, later that day, take the video to his vehicle in the parking lot. When asked what he believed Warden Bravo intended to do with the tape, Officer Cortez testified, "I mean, the only thing I can think about what he did with the tape, you know, make sure nobody got a hold of it." This videotape was never produced.

Representatives from the Office of Inspector General of the Texas Department of Criminal Justice arrived at the Wackenhut facility approximately six hours after the beating. Warden Forrest testified that he turned over all the evidence and videotapes to these representatives. (12) Warden Forrest admitted that six hours was plenty of time to destroy, remove, or alter the videotapes, had he so desired.

F. Pretrial Rulings on Spoliation

The family filed its original petition on August 29, 2001. On August 16, 2004, the family filed the first of many motions for default judgment and sanctions based on the missing evidence. On September 12, 2005, the parties appeared for a hearing. The court gave Wackenhut thirty days to produce the missing videotapes. No videotapes were produced, so the family moved the court to render a default judgment, which the court granted on October 25, 2005. A hearing was set on damages for November 4, 2005. Before the hearing on damages, Wackenhut produced several videotapes and persuaded the court to reconsider the default judgment and, instead, give a spoliation instruction. (13)

G. The Trial Court's Judgment

The case was tried to a jury. The jury found that Wackenhut and Warden Forrest were negligent and acted with malice or gross negligence, assigning 75 percent of the responsibility to Wackenhut and 25 percent to Warden Forrest. The jury awarded $47.5 million in damages as follows:

o •Gregorio's estate received zero damages for pain and suffering, disfigurement, and mental anguish; $20 million in punitive damages against Wackenhut; and $500,000 in punitive damages against Warden Forrest.

o •Catalina, Sr. (Gregorio's mother) received $2.5 million for past mental anguish, $2.5 million for future mental anguish, $2.5 million for past loss of companionship and society, and $2.5 million for future loss of companionship and society.

o •Gregorio, Sr.'s estate (Gregorio's father) received $2.5 million for past mental anguish and $2.5 million for past loss of companionship and society.

o •Catalina, Jr. (Gregorio's oldest daughter) received $2 million for future mental anguish and $2 million for future loss of companionship and society.

o •Cynthia, Jr. (Gregorio's middle daughter) received $2 million for future mental anguish and $2 million for future loss of companionship and society.

o •Priscilla (Gregorio's youngest daughter) received $2 million for future mental anguish and $2 million for future loss of companionship and society.

After trial, the trial court rendered judgment on the verdict and also awarded Gregorio's estate $7,511 for funeral and EMS expenses, finding that these damages were conclusively established by the evidence. This appeal ensued.

II. Charge Errors in the Liability Questions

By its sixth issue, (14) Wackenhut argues that Questions 1, 2, and 3 in the jury charge--the liability questions--failed to submit the correct negligence standard applicable to prisons. Comparing the family's negligence claim to a premises liability claim, Wackenhut argues that the family waived its negligence claim by failing to secure findings on all the necessary elements. See, e.g., Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528-29 (Tex. 1997) (holding plaintiff waived premises defect claim by failing to submit Corbin elements). Thus, Wackenhut argues that we must reverse and render judgment that the family takes nothing. Id. We hold that Wackenhut waived this argument by failing to sufficiently make the arguments it now makes on appeal known to the trial court.

A. The Charge Submitted to the Jury

The charge presented three liability questions based on negligence. (15) Question 1, the "general negligence question," asked, "Did the negligence, if any, of any party named below proximately cause the injuries to and death of Gregorio de la Rosa Jr.?" The jury was presented with three lines to answer the question with respect to Wackenhut, Warden Forrest, and Gregorio. The jury answered "yes" to Wackenhut and Warden Forrest and "no" to Gregorio.

Question 2, the "assumed duty question," asked the same general negligence question as in Question 1 but then provided the following instructions:

For this question a party named below was negligent if--

a. A party named below undertook to perform services they knew or should have known were necessary for the protection of Gregorio de la Rosa Jr., and

b. A party named below failed to exercise reasonable care in performing those services, and

c. Performance of these services by a party named below increased the risk of harm to Gregorio de la Rosa Jr.

Again, the jury answered "yes" to both Wackenhut and Warden Forrest and "no" to Gregorio.

Finally, Question 3, the "failure to control question," also asked the same general negligence question as in Questions 1 and 2 but provided the following instructions:

For this question a party named below was negligent if--

a. A party named below knew or should have known Equia or Sanchez were likely to cause bodily harm to others if not controlled; and

b. A party named below failed to exercise reasonable care to control Equia or Sanchez and such failure proximately caused the injuries to and death of Gregorio de la Rosa Jr.

The jury answered this question the same way it answered the first two questions.

B. Wackenhut's Arguments

On appeal, Wackenhut argues that these three liability questions submitted an incorrect duty or standard of care owed by a prison operator. Specifically, it argues that a prison operator's standard of care is as follows:

The general rule gathered from the cases which have considered the question as to liability of an officer in charge of the jail or prison for an injury inflicted by one prisoner upon another prisoner is that, in order to hold the officer liable for such injuries, there must be knowledge on the part of such officer that such injury will be inflicted or good reason to anticipate danger thereof, and negligence in failing to prevent the injury.

Browning v. Graves, 152 S.W.2d 515, 519 (Tex. Civ. App.-Fort Worth 1941, writ ref'd). Wackenhut argues that the liability questions were inadequate or incomplete because they did not instruct the jury that to find the defendants liable, the defendants must know or have reason to believe that an injury will likely be inflicted on another prisoner and thereafter be negligent in failing to take steps to prevent the injury. Wackenhut argues it objected to these errors and requested an instruction containing the appropriate standard. Wackenhut argues that its proposed instruction comported with Browning, and the trial court erred when it refused the tendered instruction. Id. Likening this case to a premises liability claim, Wackenhut argues that the family waived its negligence claim by failing to submit all the necessary elements of that claim.

With respect to Question 2, Wackenhut argues that the assumed duty theory has never been applied to a prison operator and is wholly inapplicable. It argues that there was no reason to create an assumed duty because the duty that applies is the Browning standard. With respect to Question 3, Wackenhut likewise argues that this "failure to control" theory has never been applied in these specific circumstances, and the Browning standard should have been applied.

C. The Family's Response

In response, the family argues that Wackenhut waived these arguments by agreeing to the form of the charge. Specifically, the family argues that after a two-day charge conference during which the parties "horse-traded" their jury questions and instructions, Wackenhut agreed to the charge's form and merely reserved its right to make no-evidence objections to the charge. Accordingly, the family contends that Wackenhut is estopped from claiming that the questions were erroneous. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (holding that a party cannot seek a ruling from the trial court and then complain that trial court erred by making the ruling); Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (holding that a party cannot request submission of jury issue and then object to its submission); Am. Nat'l Petroleum Co. v. Transcon. Gas Pipe Line Corp., 798 S.W.2d 274, 278 (Tex. 1990) (holding that a court may hold parties to charge agreements).

The family further argues that Wackenhut's proposed instruction did not preserve error because it also included improper theories of liability, including a standard requiring proof of intentional, willful, or wanton conduct. The family argued that Wackenhut was commingling improper instructions. See Tex. R. Civ. P. 278. Furthermore, the trial court did not sign the instruction as refused. See id. at R. 276. In any event, the family argues that the applicable law supported each question.

D. The Charge Conference

Unfortunately, we cannot explain the basis of our holding without explaining, in detail, the proceedings and arguments made below. (16) On September 14, 2006, the trial court began the arduous process of crafting the jury charge in this case. The parties had been working together to whittle down the remaining charge disagreements. At the beginning of the hearing, the parties presented the court with three documents, which the court reporter labeled "Court's Charge Exhibits" numbers 1, 2, and 3. Charge Exhibit 1 was an e-mail between the parties discussing their ongoing negotiations, and attached to that e-mail was a document titled, "Defendants' Additions to Proposed Jury Charge." Charge Exhibit 2 was a document titled, "The Parties' Jointly Proposed Court's Charge." It became apparent, early in the hearing, that Charge Exhibit 2 did not contain language that both parties fully agreed to submit. Nevertheless, Charge Exhibit 2 became the basis for the parties' discussion at that hearing. (17)

Initially, Wackenhut argued to the court that Questions 2 and 3, the assumed duty and failure to control questions, should not be submitted because the family should only "go to the jury on one negligence question and that's it." Wackenhut argued that the family would be getting multiple "bites at the apple" by submitting several negligence theories. A short time later, Wackenhut objected "to both the submission of a broad form negligence and the specific granulated form." The trial court stated, "No. Do one or the other." We note that neither of these objections pointed out the specific problem that Wackenhut now argues with respect to these questions, and in fact, created confusion as to what, exactly, Wackenhut believed was the proper form of the negligence submission. Up to this point, it appeared that the parties agreed that a general negligence question should be submitted. Later, Wackenhut reurged these objections with respect to Questions 2 and 3, arguing that the theories of liability were subsumed within Question 1's general negligence inquiry.

When further pressed by the court, Wackenhut lodged the following objections to Question 1, the general negligence question:

[Wackenhut]: I'm sorry, Your Honor. There is more. It includes within it--Of course, as we mentioned earlier, negligence requires evidence of the standard of care. It's unquestioned in this case that the standard of care took place in a prison environment and it involves balancing the risks of a prison environment in a way that is outside the common experience of the average layperson. As such, as a black letter matter of law, it requires expert testimony as to the standard of care as well as the breach. Absent that testimony, that question simply isn't proper for submission to the jury. I would object on that ground.

The Court: Are you finished?

[Wackenhut]: In the alternative, Your Honor, I would argue that the only evidence that there has been or will be, after Mr. Johnson testifies by deposition, is that the standard of care involves adherence to the TDCJ mandated policies that have been already presented as evidence in this case. In that event, I would ask that the jury simply be instructed that that is the standard of care because there isn't any competing evidence in the case.

At this point, Wackenhut asked the court to apply the State of Texas's policies as the general standard of care. (18) The court did not rule on the objection at that time.

With respect to Questions 2 and 3, Wackenhut again argued that these theories of liability would be subsumed under Question 1 and would be redundant. As against Question 2, Wackenhut argued that the assumed duty question would allow the jury to find that Wackenhut committed "medical negligence," which would be an impermissible ground of recovery. Furthermore, as against Question 3, Wackenhut argued that there was no evidence that Sanchez had a history of a predisposition to cause bodily harm. Wackenhut did not make any further objections to Questions 2 or 3 at that time.

The parties then moved through the remaining charge issues and discussed various instructions. After addressing all the questions in Charge Exhibit 2, Wackenhut directed the court to Charge Exhibit 1, which contained several instructions that Wackenhut sought to include in the jury charge. First, Wackenhut requested an instruction it called "prison environment":

It is important that in your deliberations you be aware that this action arises in a penal institution. All inmates assigned to the Willacy County State Jail are convicted felons. In view of the unique nature of the jail environment, jail officials such as the Defendants are given broad discretion in the execution of policies and procedures that, in their judgment, are needed to maintain the internal security, order, and discipline of the jail, and broad deference must be given to their management decisions.

You are further instructed that, because state jail facilities are occupied by convicted felons, who are either ineligible for or found to be unworthy of release into society, by its very nature, the operation of such a jail is a dangerous task. The reasonableness of Defendants' actions, therefore, must be determined against the backdrop of the jail environment.

You are further instructed that prison officials are not expected to prevent all inmate-on-inmate violence. (19)

Wackenhut argued that it wanted this instruction at the beginning of the charge to give the jury guidance about what ordinary care means in the circumstances of the case. At the time, the court did not rule on whether the "prison environment" instruction would be given or on Wackenhut's TDCJ policy arguments.

Next, Wackenhut requested "an instruction under negligence that comes from Texas Government Code section 497.096." (20) It argued that the Government Code sets the appropriate burden of proof and the "standard that is required to impose civil liability in this case." Wackenhut's counsel then read the complete instruction he was requesting:

You are instructed that an employee of a private prison is not an insurer of the personal safety of the inmates under his supervision and control; the law requires only that the employees in actual charge of the prison exercise ordinary care to prevent prisoners in their custody from harming one another. In order for David Forrest or the Wackenhut Corrections Corporation to be liable under Texas law, the employees must know or have reason to believe that injury will likely be inflicted or he must have reason to anticipate the danger thereof and therafter be negligent in failing to take steps to prevent the injury.

You are further instructed that a person is not required to anticipate the negligent or unlawful conduct of another.

You are further instructed that Wackenhut Corrections Corporation and David Forrest cannot be held liable if their act or failure to act was not intentional, willfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others. (21)

Wackenhut's counsel did not orally state where in the charge the Government Code instruction should be placed. However, in Charge Exhibit 1, this instruction was labeled, "To be included with negligence Question A," which ultimately became Question 1. Wackenhut never argued that this instruction should be included with Questions 2 and 3 or should be placed at the beginning of the charge, to be applicable to all the liability questions.

The family objected that the Government Code instruction was erroneous in whole and in specific parts, particularly the instruction's last two paragraphs, which appeared to require a showing of intentional or grossly negligent conduct. The family argued that the Government Code provision did not apply. In response, Wackenhut argued:

Brief response, Your Honor. Just that what this does is redefine the standard under these circumstances. Anybody who is taking care of prisoners--This was passed before the legislature gave the executive branch the authority to contract with private enterprises like Wackenhut. We think that what it really does is immunize anybody performing those functions that are listed, in effect, taking care of prisoners. It changes the background law and provides a new standard. It kind of eliminates the negligence standard and puts this new standard in. . . .

(Emphasis added). Thereafter, the court stated that it was refusing the additional Government Code instruction but agreed to take the" prison environment" instruction under advisement.

The hearing, however, continued. Later, the court stated that it would refuse the "prison environment" instruction subject to "anything you bring me tomorrow." At the end of the hearing that day, Wackenhut's counsel handed the judge a stack of papers containing all of its requested instructions. However, signed copies of these requests noting the judge's refusal to incorporate the "prison environment" and Government Code instructions do not appear in the record.

The next day, September 15, 2006, trial continued. After the last witness testified, the parties and the court continued the charge conference. Wackenhut informed the court that the parties had "come to an agreement on a number of issues on the charge," but that there were a few unresolved issues. Wackenhut's counsel informed the court that "we are still asking for the submission of some of the instructions we gave you yesterday. I'm not sure about the list, if we have them there, but we can go through what we have agreed upon."

Wackenhut's counsel informed the court that he was still pursuing the prison environment instruction. In response, the family argued that the appropriate standard of care in a prison case was set out in Browning, which applied a "common law negligence standard" and which was submitted "on a negligence question." The family argued that the Browning standard was merely an application of the general negligence standard to a prison case and that it was subsumed in ordinary negligence instructions. Wackenhut's counsel then stated that the Government Code "established a different standard of care for the prisons" and that "the standard of care should be what is set out under that provision of the Government Code." He asserted that Wackenhut was entitled to the "higher, willful or wanton standard of care." The court again stated it would not give the requested instructions.

The family then noted that Wackenhut continued to "disagree with the applicability of these three theories. They are still reserving that objection." Wackenhut's counsel explained,

Well, Your Honor, other than the objections we made yesterday to those, the only thing I would add is that in regards to Question No. 2--Question No. 1 is the general negligence question. Other than the argument we had about standard of care, we have no objection to the wording of that . . . straight from the Pattern Jury Charge. . . . No. 2 is a products liability standard. It's from a products liability case. . . . I just don't think we have that, Your Honor. We would disagree that this is even a proper theory to submit to the jury on this issue.

After more arguments about the rest of the charge, the court recessed for lunch.

Upon return, the family's counsel informed the court that the parties had almost completely agreed on the charge's contents:

We've been working on the charge all day. I spent the last two hours with [counsel for Wackenhut] on the charge. And of the seven issues, we are very--I think we've only got maybe one or two issues that we haven't agreed to, that this charge is the correct charge.

The big hangup at this point is the instructions that they have requested the court to submit on prison environment. Okay. What I've done is I've offered to drop the conspiracy claim and to give them the new and independent cause instruction if they would submit to me some reasonable language on what they think the standard of care is, assuming that it's different from a person of ordinary prudence, if they would just tell me in one sentence what they think the standard really ought to be instead of that, because that seems to be what they are saying.

Wackenhut's counsel did not disagree with the family's assertion that the only issue in dispute was the "prison environment" instruction. Rather, he stated that the parties "attempted to see if we could come to a resolution on this," but they "weren't able to." He further stated, "At this point, we are not willing to waive the objections that we've put in the record." After a short break, Wackenhut was allowed to make its no-evidence objections to the charge.

E. Analysis

As noted above, the family first argues that Wackenhut agreed to the charge's contents and cannot complain now. The record, however, does not show that Wackenhut agreed to the form of the liability questions. A stipulation is "'an agreement, admission, or concession made in a judicial proceeding by the parties or their attorneys, respecting some matter incident thereto.'" Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 734 (Tex. App.-Corpus Christi 1994, writ denied) (quoting Nat'l Union Fire Ins. Co. v. Martinez, 800 S.W.2d 331, 334 (Tex. App.-El Paso 1990, no writ)). When construing a trial stipulation, we must determine the parties' intent from the language used in the entire agreement "'in the light of the surrounding circumstances, including the state of the pleadings, the allegations therein, and the attitude of the parties in respect of the issues.'" Id. (quoting Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 886-87 (Tex. App.-El Paso 1993, orig. proceeding)). Stipulations that are ambiguous and uncertain in their terms should be disregarded. Id. For a stipulation made in open court to be binding, the parties must dictate all material terms into the record and express their assent to those terms. Id.

Throughout the hearing, on both days, Wackenhut repeatedly argued against the form of the liability questions. At the end of the two-day hearing, Wackenhut explicitly informed the trial court that it was not willing to waive the objections it had placed into the record. Thus, we hold that the record does not support the family's assertion that the charge's liability questions were submitted by agreement. See id. (holding counsel's remarks were insufficient to constitute binding stipulation because they were uncertain and did not recite the terms of any stipulation). (22)

Nevertheless, Wackenhut's arguments below were not sufficiently clear that we can conclude with confidence that the trial court understood its arguments, and its complaints on appeal do not comport with the arguments that it made in the trial court. To preserve error for appeal, an appellant must have made a

timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and (B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure.

Tex. R. App. P. 33.1(a)(1)(A)-(B) (emphasis added). Texas Rule of Civil Procedure 274 further explains the requirements for preserving an objection to the jury charge:

A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections. When the complaining party's objection, or requested question, definition, or instruction is, in the opinion of the appellate court, obscured or concealed by voluminous unfounded objections, minute differentiations or numerous unnecessary requests, such objection or request shall be untenable. No objection to one part of the charge may be adopted and applied to any other part of the charge by reference only.

Tex. R. Civ. P. 274 (emphasis added). With respect to instructions, rule 278 provides that the "[f]ailure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment." Tex. R. Civ. P. 278 (emphasis added). Thus, in every manner of pointing out errors in the charge, the appellant is required to make the trial court sufficiently aware of its complaints. Furthermore, objections to the charge and requests for instructions must comport with the arguments made on appeal. See Isaacs v. Bishop, 249 S.W.3d 100, 113 n.13 (Tex. App.-Texarkana 2008, pet. denied); Coke v. Coke, 802 S.W.2d 270, 275 (Tex. App.-Dallas 1990, writ denied).

In the trial court, Wackenhut argued different standards of care at different times. First, it argued that the TDCJ policies should dictate the standard of care. Second, it proposed the Government Code instruction. The Government Code instruction, however, contained conflicting standards. Initially, the instruction appeared to define ordinary care in a prison environment in accordance with Browning. See 152 S.W.2d at 519. However, a completely inconsistent standard of care was included at the end of the instruction, which the Browning decision does not require. See id. The instruction included an admonition to the jury that it could not find the defendants liable unless their acts or failure to act were "intentional, willfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others." This part of the instruction was drawn from the government code and used language that would have required the jury to find that Wackenhut acted intentionally or was grossly negligent, which would have been improper. See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(10) (Vernon 2008) (defining gross negligence as an act or omission "of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others"); see also Burk Royalty Co. v. Walls, 616 S.W.2d 911, 916-20 (Tex. 1981) (examining history of gross negligence and the historical use of these terms in gross negligence definitions); Wheeler v. Yettie Kersting Mem'l Hosp., 866 S.W.2d 32, 50 n.25 (Tex. App.-Houston [1st Dist.] 1993, no writ) (stating that the terms "heedless and reckless disregard," "willful act or omission," or "willful and wanton disregard" are synonymous with gross negligence).

Importantly, Wackenhut never argued the instruction's two parts in the alternative. In fact, Wackenhut never emphasized the instruction's Browning portion, even though the family's counsel pointed to the Browning standard as merely a restatement of general negligence principles. Rather, Wackenhut adamantly emphasized the intent and gross negligence standard on both days of the charge conference. In contrast, on appeal, Wackenhut ignores its gross negligence arguments and now asserts that it only intended to include the Browning portion of the instruction.

Wackenhut argues that because its proposed instruction included the Browning standard, the trial court should have recognized that all the charge questions were erroneous. Wackenhut argues that a trial court is not entitled to refuse all of an appellant's requested instructions just because they are included in one document with other possibly incorrect instructions. See Lester v. Logan, 907 S.W.2d 452, 453 (Tex. 1995). In Lester, the supreme court, in denying an application for writ of error, disapproved of the court of appeals' holding that the trial court was not required to sort through a multitude of requests to determine which requests were proper and improper. Id. Wackenhut cites several other cases that it claims rejected the argument that a request for an instruction is waived if it is buried in a multitude of requests. See Alaniz v. Jones & Neuse, Inc., 907 S.W.2d 450, 451 (Tex. 1995); Samedan Oil Corp. v. Intrastate Gas Gathering, Inc., 78 S.W.3d 425, 453 (Tex. App.-Tyler 2001, pet. granted, judgm't vacated w.r.m.); Tex. Natural Res. Conservation Comm'n v. McDill, 914 S.W.2d 718, 724 (Tex. App.-Austin 1996, no writ).

In Lester, the supreme court relied on its decision in State Department of Highways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). In Payne, the court made it clear that the ultimate test for preservation of charge error is not necessarily whether the appellant strictly complied with the Texas Rules of Civil Procedure's complex procedures for objecting to and requesting items in the charge; rather, the test should be "whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling." Payne, 838 S.W.2d at 241.

For example, in Alaniz, the supreme court held that the plaintiff preserved his request for a question on future lost profits even though the requested instruction was presented as part of the plaintiff's complete proposed charge, which contained numerous other requests. 907 S.W.2d at 451. The trial court submitted a page from the plaintiff's proposed charge that had included the references to future lost profits, but it had redacted the future lost profits references. Id. The plaintiff objected to the omission during the charge conference. Id. The court of appeals held that the plaintiff failed to comply with the rules because he (1) included his request as part of a complete charge instead of separately, (2) submitted the request before trial and not after the charge was submitted to the parties, and (3) failed to make his request separate from his objections. Id. The court of appeals acknowledged that under Payne, the plaintiff's error was likely preserved because the trial court was obviously aware of the complaint. Id. Nevertheless, the court of appeals held the objection was waived. Id. The supreme court reversed. Id. It held that the rules must be applied in a common sense manner and must be interpreted with an eye towards preserving errors in the charge as long as it appears that the appellant made the trial court sufficiently aware of the issue and obtained a ruling. Id.

We believe that Alaniz and the other cases cited by Wackenhut do not support its arguments. We agree that under Lester and Alaniz, a submission of instructions en masse or in a complete proposed charge may be sufficient in a given case to alert the trial court to a potential problem in the charge ultimately given. (23) However, in the cases relied on by Wackenhut, there was no indication that the appellant submitted multiple, inconsistent theories to the trial court without arguing them in the alternative or clearly specifying to the trial court which of the theories it believed was correct. See id. (holding that the trial court was sufficiently made aware of the complaint); see also Samedan Oil Corp., 78 S.W.3d at 453 (holding that error was preserved on a specific theory of damages without indicating that a contrary or inconsistent theory had been proposed by appellants); McDill, 914 S.W.2d at 724 (holding that eleven requests were not too many to conclude that trial court was not alerted to complaint because of en masse submission). Given the apparent initial agreement that a general negligence question was proper, Wackenhut's vacillating and inconsistent definitions of the standards of care, and its repeated emphasis of the incorrect intentional or gross negligence standard, we cannot conclude that Wackenhut sufficiently alerted the trial court to the complaints that it now makes on appeal. See Payne, 838 S.W.2d at 241; see also Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex. 1986). With respect to Questions 2 and 3, Wackenhut never objected that these questions did not include the Browning standard. Wackenhut's written request indicated that the Government Code instruction was intended to accompany Question 1, and Wackenhut never asked that the instruction be included at the beginning of the charge with the generally applicable instructions. Additionally, Wackenhut never argued that Questions 2 or 3 relied on standards that had never been applied in the circumstances of this case, as it now argues on appeal. Thus, with respect to all the liability questions, Wackenhut's arguments on appeal do not comport with the issue it raised in the trial court. See Isaacs, 249 S.W.3d at 113 n. 13; Coke, 802 S.W.2d at 275. Accordingly, Wackenhut's arguments with respect to the liability questions are not preserved for our review, and we overrule its sixth issue. (24)

III. Charge Errors in the Apportionment Question

In its eighth issue, Wackenhut argues that at least one of the liability questions was improper because the questions submitted incorrect theories of liability or were not supported by the evidence. It argues that even if one of the questions was properly submitted, the judgment cannot be affirmed based on the jury's answer to a proper question because the apportionment of liability question was conditioned on an affirmative finding in any one of the liability questions. (25) Thus, it argues that we must reverse because the jury's answers to the apportionment question could have been influenced by an improper theory. (26) See Romero v. KPH Consol., Inc., 166 S.W.3d 212 (Tex. 2005).

We have already determined that Wackenhut waived its challenges to the form of the liability questions. Wackenhut did, however, assert no-evidence objections to all three liability questions. (27) Assuming that at least one liability question was not supported by the evidence, Wackenhut must show that the error in the apportionment question was preserved and that it was harmed by the submission. Texas Rule of Appellate Procedure 44.1(a) provides that a properly preserved error in the trial court merits reversal of the judgment on appeal if it "(1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals." Tex. R. App. P. 44.1(a). We disagree that Wackenhut's argument has been preserved or that it has shown harm.

On the last day of the charge conference, the following exchange occurred:

[The family]: Question No. 4 is the comparative question. [Wackenhut's counsel] and I have agreed to move it from Question No. 7 and move it up to Question No. 4.

The Court: If you have agreed upon it, that's fine.

[Wackenhut]: Okay.

[The family]: We've agreed to hook it on question--to an affirmative answer to Question 1, 2, or 3, because those are negligence questions and so we are comparing negligence in this question. This is where the comparative question is going to go.

The Court: Okay.

[The family]: We agree to that.

When the court stated it was approving the agreement if Wackenhut agreed, Wackenhut's counsel responded, "Okay." Wackenhut never objected or asked for separate comparative questions at the charge conference, and it never alerted the trial court that the apportionment question commingled valid and invalid theories. See In re B.L.D., 113 S.W.3d 340, 349-50 (Tex. 2003) ("This Court has recently emphasized that complaints of error in broad-form submission must be preserved by objection at trial."); In re A.V., 113 S.W.3d 355, 363 (Tex. 2003) ("Because Puig did not make a specific and timely objection to the broad-form charge, he did not preserve a claim of harmful charge error."); Gerdes v. Kennamer, 155 S.W.3d 523, 534 (Tex. App.-Corpus Christi 2004, pet. denied) (holding that appellant waived objection to trial court's failure to include proper conditioning instruction by failing to either object or tender proper conditioning instruction). (28)

Wackenhut does not dispute that it did not raise this specific issue with the trial court. Rather, it argues that in Romero, the supreme court held that an objection to the form of an apportionment question is not necessary if the appellant properly objects that one of the liability questions is not legally tenable. See Romero, 166 S.W.3d at 229. We disagree with Wackenhut's reading of Romero.

In Romero, the trial court submitted a negligence claim and a malicious credentialing claim. Id. at 219. The jury was then instructed that if it found liability under either theory, it should answer a single apportionment of damages question. Id. The jury found both negligence and malicious credentialing and then assigned percentages of responsibility. Id. On appeal, the defendant argued that there was no evidence to support the malicious credentialing claim, and the supreme court agreed. Id. at 224-25. Thus, the court then considered whether the judgment could be sustained on the jury's negligence finding--in other words, whether the defendant was harmed by the submission of the malicious credentialing claim. Id. at 225. The court held that it was possible that the jury considered the improper malicious credentialing claim in apportioning responsibility. Id. It likened the case to Crown Life Insurance Co. v. Casteel (29) and Harris County v. Smith, (30) holding that the error prevented the defendant from demonstrating harm. Id. at 226.

The plaintiffs in Romero argued that, despite the above analysis, the defendant did not preserve its complaint in the trial court. Id. at 228. The supreme court reviewed the record to determine whether the trial court was sufficiently aware of the issues being raised on appeal. Id. The court noted that during the first day of the charge conference, the trial judge pointed out the problem with submitting a single apportionment question and suggested multiple apportionment questions. Id. Then, on the second day of the conference, the defendant specifically objected to the submission of a single apportionment question and argued that it would prevent the defendant from showing harm. Id. However, the defendant also argued that submitting two apportionment questions would constitute a comment on the weight of the evidence, so it objected to submitting two separate questions. Id. Thus, the plaintiff argued that the defendant did not make it clear to the trial court that it wanted two apportionment questions, which would have corrected the problem in the charge. Id. at 229.

The supreme court held that the error was preserved. Id. The court reasoned:

[T]he Romeros' argument simply ignores the fact that Columbia's objection to the malicious credentialing question was correct, and had the trial court sustained it, there would have been no problem with the apportionment question. The overruling of that objection created the problem in the single apportionment question that the Romeros requested, to which Columbia also objected, also correctly. No more was required of Columbia to preserve its complaints.

Id. (emphasis added). Wackenhut points to this language and asserts that an objection that a question is not supported by evidence also preserves an objection to any question that is later conditioned on the question, because "there would be no problem with the apportionment question if the unsupported theory had not been submitted." See id. However, in Romero, the court further noted that it did not need to decide whether the defendant "was required to object not only to the lack of evidence for the malicious credentialing claim but also to the form of the apportionment question that included the claim because it did both." Id. (emphasis added). Thus, the error was preserved. Id.

Obviously, that is not what we have in this case. Although Wackenhut did object that all the liability questions were not supported by the evidence, it never pointed out to the trial court that the conditioning instruction in Question 4 created a problem, and in fact, it expressly agreed to the conditioning instruction in Question 4. The ultimate test is whether the trial court was made sufficiently aware of the complaint, (31) and Wackenhut cannot meet that standard because there is nothing in the record that demonstrates the trial court was ever made aware of the problem Wackenhut now raises. This is in stark contrast to the facts in Romero, where the trial court itself raised the problem with the apportionment instruction. See id. at 228. Accordingly, Wackenhut failed to preserve its complaint and has failed to show harm. We overrule its eighth issue.

IV. Legal and Factual Sufficiency of the Evidence Supporting Negligence and Proximate Cause

By its seventh issue, Wackenhut argues that the evidence was legally and factually insufficient to support the jury's answers to the liability questions; specifically, Wackenhut argues that the family did not meet its burden to prove both negligence and proximate cause under the various theories of negligence presented to the jury. The family submitted multiple theories of negligence based on Wackenhut's conduct. (32) Because Wackenhut failed to preserve its challenges to the form of the liability and apportionment questions, we may sustain the judgment if any of the theories is supported by legally and factually sufficient evidence. See Harris County v. Smith, 96 S.W.3d 230, 232 (Tex. 2002) (holding that where broad-form objection is not preserved, legal sufficiency challenge is limited to the verdict as a whole) (discussing Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995)). We hold that the evidence was legally and factually sufficient to support the jury's finding of negligence and proximate cause based on Wackenhut's failure to search the inmates at the crash gate, which allowed Equia and Sanchez to pass through the gate with a weapon. This negligent failure proximately caused Gregorio's death. Accordingly, we need not address the other theories of liability. See Tex. R. App. P. 47.1. We will now turn to Wackenhut's specific arguments.

A. Standards of Review

When conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether the evidence at trial would allow reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. We will sustain a challenge to the legal sufficiency of evidence only if: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Id. at 810. More than a scintilla of evidence exists, and the evidence is legally sufficient, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence. Lee Lewis Constr. Co. v. Harrison, 70 S.W.3d 778, 782-83 (Tex. 2001). However, "'when the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.'" Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

In conducting a factual sufficiency review, we do not substitute our judgment for that of the jury; rather, we view all the evidence in a neutral light to determine whether the evidence is so weak or the finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. City of Keller, 168 S.W.3d at 826; Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Villagomez v. Rockwood Specialties, Inc., 210 S.W.3d 720, 749 (Tex. App.-Corpus Christi 2006, pet. denied).

B. Negligence

Wackenhut raises several arguments against the jury's finding of negligence. First, Wackenhut argues that the family was required to present expert testimony to establish negligence in a prison environment. Second, Wackenhut makes specific challenges to the evidence presented, including that: (1) there is no evidence that the prison or its officials knew that the attackers planned to assault Gregorio, Jr; (2) the crash gate post order did not require searches of all inmates; and (3) even if the post order required a search of all the inmates at the gate, the breach of that policy does not constitute negligence. We disagree.

1. Expert Testimony

Wackenhut first argues that the family was required to present expert testimony to establish negligence. Wackenhut argues that because this case involves a prison environment that is outside the common understanding of lay jurors, expert testimony was required to show that its conduct amounted to negligence in the prison environment. We disagree, and furthermore, we hold that Wackenhut invited the error of which it now complains.

The determination of whether expert testimony is required is a question of law that we review de novo. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004). Expert testimony is only necessary when the alleged negligence is not within the experience of laymen. Id.; see Melody Home Mfg. Co. v. Barnes, 741 S.W.3d 349, 355 (Tex. 1987). In other words, expert testimony is required when specialized knowledge is necessary to the determination of the issue. Fulgham, 154 S.W.3d at 90. We disagree that specialized knowledge was required to show Wackenhut had a duty to search the inmates passing through the crash gate or that the failure to search the inmates violated this duty. (33)

Wackenhut conceded that it had a duty to ensure the inmates' safety at its facilities. Furthermore, it was undisputed that Wackenhut had a duty to prevent inmates from securing weapons and using them against other inmates. Those issues were never contested at trial. (34) The only issue at trial was how these duties were required to be fulfilled--in other words, how far Wackenhut had to go to detect the possession of weapons by inmates. Specialized knowledge was not required to show that a search should be performed on some or all inmates at a given time. The jury was presented with simple explanations of Wackenhut's reason for not searching every inmate at the crash gate, including preventing inmate congestion that could lead to assaults. The jury was fully able to understand these arguments. We hold that expert testimony was not required to establish a duty or its breach in this case.

Furthermore, Wackenhut successfully excluded the family's expert on negligence by arguing that expert testimony was not required to establish that Wackenhut negligently failed to search the inmates at the crash gate, and we will not allow Wackenhut to switch its position now when it suits it. A party cannot complain on appeal that the trial court took a specific action the complaining party requested. Tittizer, 171 S.W.3d at 862. "The invited error doctrine applies to situations where a party requests the court to make a specific ruling, then complains of that ruling on appeal." In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009). "For a party to be estopped from asserting a position in an appellate court based on actions it took in the trial court, the party must have 'unequivocally taken a position in the trial court that is clearly adverse to its position on appeal.'" Id. (quoting Tittizer, 171 S.W.3d at 862).

The family offered the expert testimony of Juan Garza, a former sheriff, regarding whether Wackenhut took reasonable steps to search the offenders and whether it negligently failed to implement the crash gate post order. In response, Wackenhut argued that "[t]he jury is perfectly able to interpret what our policy was and how it should have been applied." The trial court agreed, stating:

To me, your expert needs to give information to the jury that they would not normally have. All of that information has been brought to them. They can make a common sense decision, you know, hey, you know, if they would have patted everybody like they should, like the statute says right there, that they would have caught it. You have argued that point very well, and I think you have already gotten that point across to the jury.

Having successfully convinced the trial court to exclude the family's expert testimony by arguing that expert testimony was not necessary to assist the jury, Wackenhut cannot now complain that such expert testimony was necessary because the issue was beyond the jury's common experience. Id. Accordingly, we hold that the family was not required to present expert testimony regarding whether Wackenhut's failure to search the inmates at the crash gate constituted negligence.

2. Actual Knowledge of Plan to Assault Gregorio

Wackenhut next argues that the evidence is legally insufficient because, under Browning, the family was required to prove that Wackenhut knew that Equia and Sanchez planned to assault Gregorio. That is not what Browning says. In fact, Browning states that a prison operator can be liable for injuries inflicted on one prisoner by another if the prison knew that such an injury will be inflicted or had "good reason to anticipate danger thereof." Browning, 152 S.W.2d at 519; see also Miller v. Jones, 534 F.2d 1178 (5th Cir. 1976). Wackenhut is switching positions again--the instruction that Wackenhut submitted, which it argues to this Court was erroneously refused, included language that would have allowed the jury to find Wackenhut negligent not only if it had actual knowledge that Equia and Sanchez planned to assault Gregorio, but also if it found that Wackenhut had "good reason to anticipate" the danger that Equia and Sanchez would assault Gregorio. Accordingly, we reject this argument.

3. Evidence Supporting the Verdict

In Browning, an inmate named Graves was killed by other inmates in a jail who were in possession of deadly weapons. 152 S.W.2d at 519. The jury found that the sheriff and his deputies negligently caused Graves's death. Id. On appeal, the sheriff and the deputies argued that the trial court should have directed a verdict in their favor--a legal sufficiency challenge--because there was no evidence that the sheriff and his deputies knew or should have known that Graves would be injured if he was placed in the cell with the other inmates. Id. The court held that the duty required of a jailer in this type of case is to "exercise ordinary care to prevent those confined together from having in their possession weapons with which they might inflict serious injuries upon another prisoner." Id. The court held that the evidence was legally sufficient to show a breach of that duty because: (1) the inmates that killed Graves possessed deadly weapons; (2) the officer knew the weapons had been found among those prisoners during prior searches of the compartment; (3) it was not unreasonable to assume that the prisoners would again make and possess the weapons; and (4) the officer had not searched the compartment for a week or ten days prior to Graves's death. Id. The court held that "[i]f a jailer whose duty it was to care for and protect his prisoners from harm, would have, in the exercise of ordinary care, discovered the presence of these weapons and removed them, and thus prevent the tragedy that resulted in Graves' death, he, with his principal, the sheriff, would be responsible in damages for having failed." Id. We hold that equivalent evidence existed in this case, and that such evidence was legally and factually sufficient to support the judgment.

a. Spoliation Instruction

Initially, as proof that Wackenhut was aware or had good reason to anticipate that Equia and Sanchez would assault Gregorio, the family points to the spoliation instruction, which it argues allows an inference that the destroyed videotape would have shown (1) that Equia and Sanchez had bulges in their clothes or had the weapons in plain view, (2) that Equia and Sanchez acted nervously, or (3) other indicia of an imminent assault. In response, Wackenhut argues that the spoliation instruction did not relieve the family's burden to prove its case. It further argues that the inferences the family asserts may not be drawn from the missing videotape because there is no evidence or reason to believe that the missing tapes would have shown any of the facts allegedly inferred. See State ex rel. State Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002).

Wackenhut argues that the trial court gave the least severe spoliation instruction available, and it did not "relieve the nonspoliating party of the burden to prove each element of its case." Trevino v. Ortega, 969 S.W.2d 950, 960-61 (Tex. 1998) (Baker, J., concurring). Wackenhut argues that the spoliation instruction, by itself, is not sufficient proof of the fact inferred.

Justice Baker, in his concurrence in Trevino, explained that there are two types of spoliation instructions typically given by trial courts, each with different effects. Id. First, he referred to the most severe type as a "rebuttable presumption":

The trial court should begin by instructing the jury that the spoliating party has either negligently or intentionally destroyed evidence and, therefore, the jury should presume that the destroyed evidence was unfavorable to the spoliating party on the particular fact or issue the destroyed evidence might have supported. Next, the court should instruct the jury that the spoliating party bears the burden to disprove the presumed fact or issue.

Id. at 960. This instruction shifts the burden of proof on the issue to the spoliating party, and it "will enable the nonspoliating party to survive summary judgment, directed verdict, judgment not withstanding the verdict, and factual and legal sufficiency review on appeal." Id. (emphasis added). Justice Baker recognized a second, less severe type of spoliation instruction. Id. This instruction allows, but does not require, the jury to presume that the evidence would have been unfavorable to the nonspoliating party. Id. This is the type of instruction the trial court gave in this case.

We agree that the instruction given in this case does not completely relieve the nonspoliating party of its burden of proof. Id. However, Wackenhut essentially invites us to conclude that because the family retained the burden of proof, the spoliation instruction has no effect whatsoever in our review of the record. This is contrary to well-established law that the spoliation instruction at least allows an inference to support the facts that the missing evidence would have established. See Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 724 (Tex. 2003) ("Because the instruction itself is given to compensate for the absence of evidence that a party had a duty to preserve, its very purpose is to 'nudge' or 'tilt' the jury."); Trevino, 969 S.W.2d at 952 ("In other words, within the context of the original lawsuit, the factfinder deduces guilt from the destruction of presumably incriminating evidence.") (emphasis added); id. at 960-61 (Baker, J., concurring) ("The presumption itself has probative value and may be sufficient to support the nonspoliating party's assertions."). We decline Wackenhut's invitation.

Allowing a spoliation instruction to hold probative value and constitute evidence is intended to place the nonspoliating party in the same position as if it had the missing evidence. Johnson, 106 S.W.3d at 724. If a spoliation instruction had no evidentiary effect, then its purpose would not be fulfilled by the instruction. See id. We hold that the less severe spoliation instruction allows a nonspoliating party to withstand a legal sufficiency challenge to the elements that the spoliated evidence would have proved, because the instruction itself allows an inference of the facts the evidence would have proved. Id.

We do not believe that this holding is inconsistent with Justice Baker's statement that the instruction does not relieve the plaintiff of its burden of proof. Trevino, 969 S.W.2d at 960-61 (Baker, J., concurring). A plaintiff's burden is to present both legally and factually sufficient evidence. As Justice Baker explained, a spoliation instruction of this type "is simply another factor used by the factfinder in weighing the evidence." Id. at 961. Thus, while the spoliation instruction given in this case will allow the family to survive a legal sufficiency challenge, it will not, by itself, prevent a successful factual sufficiency challenge, which is intended to prevent a party from recovering when the evidence supporting a finding is so weak or the evidence contrary to the finding is so overwhelming such that the verdict is manifestly unjust, shocks the conscience, or clearly demonstrates bias. See City of Keller, 168 S.W.3d at 826; Jackson, 116 S.W.3d at 761; Pool, 715 S.W.2d at 635. In a factual sufficiency challenge, the spoliation presumption is merely one factor that we must consider in reviewing the evidence for factual sufficiency. Trevino, 969 S.W.2d at 61 (Baker, J., concurring).

As stated above, the family argues that the spoliation instruction allowed an inference that the destroyed videotape would have shown that Equia and Sanchez had bulges in their clothes or had the weapons in plain view, that Equia and Sanchez acted nervously, or other indicia of an imminent assault. Wackenhut argues that these inferences may not be drawn from the missing videotape because there is no evidence or reason to believe that the missing tapes would have shown these things. See Gonzalez, 82 S.W.3d at 330. Again, we disagree.

At trial, Warden Forrest denied that a videotape ever existed that showed the beating. However, that testimony was impeached by Warden Forrest's deposition testimony, where he unequivocally stated that there were surveillance cameras along the prison's perimeter that were focused down on the beating. In his deposition, he testified to the beating's details based on the video. Although he later claimed that the "video" he was referring to was a picture that he painted in his head based on information relayed to him, the jury was entitled to believe that the earlier deposition testimony was true and that a videotape existing showing the beating. (35) Warden Forrest testified that the perimeter cameras were mounted on poles to get a "bird's eye view," and these cameras could pan and tilt to different angles. He admitted that these cameras are always on.

We hold that this evidence was sufficient to support the inferences that the family claims resulted from the missing evidence. The cameras were always on and could be panned and tilted; thus, it was reasonable to infer that the camera was pointed at the crash gate area where Equia and Sanchez passed through with a lock and then followed them along the "bowling alley" to record the fight. It is also reasonable to infer that the videotape would have shown conduct by Equia and Sanchez that either alerted or should have alerted Wackenhut to the danger that Equia and Sanchez would assault Gregorio. We hold that this evidence was legally sufficient to show that Wackenhut was aware that Equia and Sanchez planned to assault Gregorio.

b. Testimony at Trial

Nevertheless, even without the spoliation instruction and the resulting inferences, the evidence was legally and factually sufficient to support a finding that Wackenhut had good reason to anticipate the danger that Equia and Sanchez posed to Gregorio, and that Wackenhut was negligent in failing to take steps to prevent the injury.

Warden Forrest admitted that it was Wackenhut's duty to ensure the inmates' safety in the prison. (36) On the day of the incident, Gregorio, Equia, and Sanchez left their housing unit and passed through the crash gate into the "bowling alley." The "bowling alley" was a walkway approximately 100 yards long that was not guarded, except at the gates leading to other areas, and there had been other assaults along the "bowling alley" in the past.

It was undisputed that Equia and Sanchez used a deadly weapon--a lock tied to the end of a sock--to kill Gregorio. (37) Warden Forrest and Major Sangster admitted that locks were available at the commissary, and prior to Gregorio's beating, several other fights at the prison had involved the use of locks. Both testified that it was foreseeable that locks could be used as weapons in the future. (38) Nevertheless, it was undisputed at trial that the officer manning the crash gate post, Officer Hernandez, did not search Equia or Sanchez for locks or other contraband. (39)

Warden Forrest and Major Sangster admitted that a "post order" was in place at the crash gate and that the crash gate officer should follow the order. The crash gate post order stated, "The officer shall conduct pat-searches of inmates before permitting entrance or exit to or from any department within the area of responsibility." Warden Forrest testified that the purpose for searching inmates was to discover contraband, including weapons, to safeguard the inmates. Warden Forrest conceded that the post order was mandated by the State of Texas and that Wackenhut was required to follow the policy. He admitted that a breach of State-mandated policies and procedures will jeopardize the unit's and the inmates' security and integrity, leading to inmate injuries.

Officer Cortez testified that the crash gate post order meant that "you had to search all, each and everybody, coming out of their housing before they got to crash gate . . . ." He testified that the reason every inmate had to be searched was because "you don't know within that time frame whether somebody was going to pass contraband or whatever." Both he and Marroquin testified that had the inmates been searched, the lock would have been discovered. Major Sangster admitted that if no search is conducted, the chances of finding contraband and weapons is "zero." He agreed that if the crash gate officer had searched every inmate that passed through the day of the incident, the officer probably would have detected the lock. (40)

Warden Forrest also testified that Equia had been involved in a fight with another inmate on January 3, 2001, before Gregorio's assault. Although Warden Forrest denied specific knowledge of this incident, Warden Forrest admitted that the information was in the TDCJ database as early as February 8, 2001, and was available to him on the computer well before Gregorio's assault. Warden Forrest admitted that he could have accessed Equia's file and determined that Equia had been involved in another attack against an inmate. See Garrett v. United States, 501 F. Supp. 337, 338-39 (N.D. Ga. 1980) (noting that an inmate's file, which was transferred with the inmate to a new facility and demonstrated his prior history of violence in prison against other inmates, was sufficient to put the prison on notice of inmate's dangerous propensities).

Officer Cortez testified that he believed that the attack was "a hit" on Gregorio and that Wackenhut knew it was going to happen. Moreover, both Marroquin and Officer Cortez testified that they saw Warden Forrest and Assistant Warden Bravo smirking or laughing while Gregorio was being beaten to death. We hold that all this evidence, taken together with the spoliation inferences, constitutes legally and factually sufficient evidence that Wackenhut either had actual knowledge that Equia and Sanchez intended to assault Gregorio or good reason to anticipate the danger thereof and then acted negligently by failing to take steps to prevent the injury.

4. Breach of the Post Order

Wackenhut argues that the post order did not apply, and even if it did require a search of all the inmates at the gate, the breach of that policy does not prove negligence. Warden Forrest insisted that the post order did not require Wackenhut to search every inmate that passed through the crash gate--rather, it only required Wackenhut to randomly search inmates. Warden Forrest claimed that the post order only applied to require searches when an inmate is entering or exiting from a "department." He claimed that the housing unit, from which the inmates were exiting, and the "bowling alley," which the inmates were entering, are not "departments." Thus, the policy did not apply. This interpretation was reiterated by Gary Johnson, Wackenhut's expert, who testified that it was not reasonable to expect every offender going through the crash gate to be searched. Moreover, Wackenhut argues that a mere breach of policy is not evidence of negligence, citing Walden v. State, 430 So. 2d 1224, 1227 (La. Ct. App. 1983) and Entex Division of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 10 & n.19 (Tex. App.-Houston [14th Dist.] 2002, pet. denied). (41)

First, by expecting this Court to credit its evidence regarding its interpretation of the post order, Wackenhut inverts the legal sufficiency standard of review. We must "credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." City of Keller, 168 S.W.3d at 827. Wackenhut, however, asks this Court to ignore all the favorable evidence and to credit the evidence it has cherry-picked from the record.

All of Wackenhut's witnesses conceded that the post order states that the officers "shall" search the inmates, and that the policy does not say the officers may "randomly" search the inmates. The jury could read the policy itself and figure out what it meant. Additionally, Officer Cortez, a former corrections officer at Wackenhut, testified that the post order required every inmate to be searched when passing through the crash gate. Wackenhut does not explain or argue why the jury was not entitled to credit this evidence, which supports the verdict. See id. At most, Wackenhut merely raises a conflict in the evidence, and it is emphatically within "the province of the jury to resolve conflicts in the evidence." Id. at 820.

Next, Wackenhut argues that even if the policy required it to search every inmate, a breach of policy does not prove negligence. As a general proposition, we agree; however, in this case, the crash gate post order embodied the applicable legal standard of care because the order was "designed to prevent injury to the class of persons to which the injured party belongs." See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985); Browning, 152 S.W.2d at 519. The cases cited by Wackenhut do not require a different conclusion. See Walden, 430 So.2d at 1227 (holding prison policy of not allowing two inmates out of their cells at the same time, which was violated and which allowed two inmates the opportunity to fight, did not demonstrate that the prison knew or had reason to know that harm would ensue and failed to exercise ordinary care to prevent the harm); see also Gonzalez, 94 S.W.3d at 10 & n.19 (holding internal safety procedures did not create a legal duty where none otherwise would exist). When considering both the evidence presented and the spoliation inferences, the evidence supporting Wackenhut's position was not so overwhelming that it requires this Court to hold that the family's evidence was factually insufficient.

C. Causation

As with negligence, Wackenhut argues that expert testimony was required to prove causation and that the family's evidence was legally and factually insufficient. We disagree.

1. Expert Testimony

Wackenhut argues that this case is similar to a medical negligence case, which requires proof that the defendant's negligence caused the plaintiff's death within a reasonable degree of medical probability. See, e.g., Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). Specifically, Wackenhut argues that the family had the burden to present "probative evidence," not "mere conjecture or guess," that an act or omission was a substantial factor in bringing about Gregorio's death, which would not otherwise have occurred. Exxon Corp. v. Quinn, 726 S.W.2d 17, 21 (Tex. 1987). Wackenhut argues that no expert witness testified that Gregorio probably would have survived had all of the inmates passing through the gate been searched.

All of the cases that Wackenhut cites for the proposition that expert testimony is required to prove causation are medical negligence cases. See, e.g., Milo, 909 S.W.2d at 511; Phillips v. Bramlett, 258 S.W.3d 158, 165 (Tex. App.-Amarillo 2007), rev'd on other grounds, No. 07-0522, 2009 WL 567889 (Tex. Mar. 6, 2009); Arguelles v. UT Family Med. Ctr., 941 S.W.2d 255, 258 (Tex. App.-Corpus Christi 1996, no writ); McDole v. San Jacinto Methodist Hosp., 886 S.W.2d 357, 360-61 (Tex. App.-Houston [14th Dist.] 1984, no writ). However, the family's theory that Wackenhut's failure to search the inmates for weapons caused Gregorio's death is not a theory based on medical negligence, which is without a doubt an entirely different sort of claim.

Proximate cause consists of both foreseeability and cause in fact. Nixon, 690 S.W.2d at 549. "Cause in fact denotes that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred." Id. In contrast, "[f]oreseeability means that a person of ordinary intelligence can reasonably anticipate the dangers that his negligent act or omission created for others." City of Waco v. Hester, 805 S.W.2d 807, 814 (Tex. App.-Waco 1990, writ denied).

We agree with the family that common sense and ordinary experience is all that is required to evaluate cause in fact under these circumstances. See id. It does not take specialized knowledge to determine whether negligently failing to search inmates for weapons is a substantial factor in bringing about an injury to an inmate when a weapon goes undetected and then is used to injure another inmate. Nor does it take specialized knowledge to evaluate whether harm would have occurred absent the failure to search the inmates.

With regard to foreseeability, the Waco Court of Appeals has held that "[b]ased on common sense and experience, one can reasonably foresee that a jailer's negligent act may result in an inmate being physically attacked by another prisoner." Id. We agree that foreseeability under these circumstances is also within the jury's common knowledge and experience. Id. Accordingly, we hold that expert testimony was not required to establish causation.

2. Evidence Supporting the Verdict

Next, Wackenhut argues that the evidence is legally and factually insufficient to prove proximate cause because there is no evidence that Gregorio probably would have survived had it searched all of the inmates passing through the crash gate. Wackenhut asserts that no witness testified that searching all the inmates would have prevented the death because the lock could have been missed in a search or it could have been previously hidden in the "bowling alley." Wackenhut presents several theories, arguing that (1) inmates were allowed to have locks; (2) had the lock been discovered, Equia or Sanchez may have claimed that he just purchased it or was returning it to the commissary; (3) the lock did not actually cause much damage; (4) even without the lock, Equia and Sanchez could have attacked and killed Gregorio; and (5) it is more likely that the fatal blow to the spleen area was caused by a kick rather than a blow with the lock.

Again, Wackenhut asks this Court to ignore all the favorable evidence and to credit the evidence it has cherry-picked from the record. At most, Wackenhut merely raises a conflict in the evidence, which the jury was entitled to and did resolve in the family's favor. City of Keller, 168 S.W.3d at 820.

In any event, Wackenhut's arguments are not supported by the record. With regard to cause in fact, Robert Sims, M.D., opined within a reasonable degree of medical probability that Gregorio's death was caused by the injuries he received during the assault. He testified that Gregorio died not as a result of any one particular blow, but as a result of numerous blows by the assailants. Furthermore, the spoliated evidence included a missing videotape that could have shown the entire fight. Thus, it permits an inference that the death-causing blow came from the lock instead of a kick by Equia or Sanchez.

Officer Cortez testified that the post order required every inmate leaving the housing units to be searched for contraband and weapons. Both Officer Cortez and Marroquin testified that had a proper search been conducted, the searching officer would have discovered the lock. Officer Hernandez agreed that if he had searched Equia and Sanchez, he would have discovered the lock. Furthermore, Officer Cortez testified that had the lock been discovered, neither Equia nor Sanchez would have been permitted to pass through the gate. Officer Cortez and Officer Hernandez both stated that had the inmates been searched, Gregorio would be alive. We hold that this evidence was legally sufficient to support a finding of cause in fact because it creates a reasonable basis for the jury to conclude that, had Wackenhut searched all the inmates passing through the crash gate, this crime would not have taken place, and Gregorio would be alive. See Harrison, 70 S.W.3d at 782-83. Wackenhut has ignored this evidence in the record, and it has not provided this Court with any valid reason requiring the Court to disregard this evidence. The contrary evidence--that a search might not have turned up the lock and that the inmates could have beaten Gregorio anyway even without the lock--is not so overwhelming as to render the evidence supporting the judgment factually insufficient.

We also hold that the evidence was legally and factually sufficient to support a finding of foreseeability. Wackenhut could certainly anticipate that failing to search inmates could result in inmates possessing weapons and using them on other inmates. Warden Forrest and Sangster both testified that they were aware that socks combined with a lock could be used as a weapon and had been used as weapons at Wackenhut in the past. See Nixon, 690 S.W.2d at 550 ("The evidence is replete with instances of prior violent crimes occurring at Chalmette Apartments. This record certainly provides evidence that further acts of violence were reasonably foreseeable."). In fact, Warden Forrest and Sangster both agreed that it was foreseeable that locks could be used again in the future. See id. Warden Forrest admitted that the purpose of searching inmates was to uncover contraband and weapons. Both testified that fights had occurred in the "bowling alley," where no guard is posted to protect the inmates, and Wackenhut had information that Equia had previously been involved in a fight with another inmate. This evidence was legally and factually sufficient to support the foreseeability element. We overrule Wackenhut's seventh issue.

V. Recovery of Damages by Wrongful Death Beneficiary's Estate

By its first issue, Wackenhut argues that the trial court erroneously awarded $5 million to Catalina Sr. as the administrator of Gregorio, Sr.'s estate. Gregorio, Sr. brought suit as a wrongful death beneficiary and sought damages for past mental anguish and loss of companionship arising from his son's death. See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.001-.012 (Vernon 2008) (the "Wrongful Death Act"). Before trial, however, Gregorio, Sr. passed away. Wackenhut argues that a wrongful death claim does not survive a beneficiary's death; thus, Gregorio, Sr.'s estate lacked standing to recover damages as a wrongful death beneficiary.

In response, the family argues that Wackenhut waived its right to challenge the estate's ability to recover. First, the family argues that the estate's ability to recover is an issue of capacity, not standing, and Wackenhut waived a capacity challenge by failing to file a verified denial. See Tex. R. Civ. P. 93(1); Pledger v. Schoellkopf, 762 S.W.2d 145, 146 (Tex. 1988) (holding failure to file verified denial when required by rule waives defense). Second, the family argues that Wackenhut agreed to submit Gregorio, Sr.'s damages to the jury and should not be heard to complain now. Finally, the family argues that Wackenhut's destruction of evidence resulted in lengthy delays in bringing the case to trial, and had Wackenhut complied with its duties to preserve and disclose evidence, Gregorio, Sr. would have likely been alive at the time of trial and able to recover for his injuries. The family reasons that Wackenhut should not be rewarded for the delay by a reduction in the damage award.

We agree with Wackenhut that a wrongful death claim does not survive a beneficiary's death; thus, Gregorio, Sr.'s estate lacked standing. We further hold that because this argument affects the trial court's subject-matter jurisdiction, it is properly before this Court.

A party must have both standing to sue and capacity to sue. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). The standing inquiry "focuses on whether a party has a sufficient relationship with the lawsuit so as to have a 'justiciable interest' in its outcome, whereas the issue of capacity 'is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.'" Id. (quoting 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1559, at 441 (2d ed.1990)). "A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy." Id. at 848-49 (citing Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996)). The distinction is of primary importance in this case because standing affects the trial court's subject-matter jurisdiction and may be raised for the first time on appeal, while capacity must be raised by a verified denial in the trial court. Id. at 849.

The Texas Supreme Court has held that an estate's standing to pursue a decedent's claim depends on whether the claim survives the death. Id. at 850 ("Because a decedent's survival claim becomes part of her estate at death, it follows that the estate retains a justiciable interest in the survival action."); see also Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 786 (Tex. 2006) ("Because legal malpractice claims survive in favor of the decedent's estate, the estate has a justiciable interest in the controversy sufficient to confer standing."). Thus, we must determine whether Gregorio, Sr.'s wrongful death claim survived his death in order to determine whether his estate has standing. See Belt, 192 S.W.3d at 786.

There is no common-law right to recover for the death of another. See Coffey v. Johnson, 142 S.W.3d 414, 417 (Tex. App.-Eastland 2004, no pet.). The Wrongful Death Act provides a statutory cause of action for wrongful death. See Tex. Civ. Prac. & Rem. Code Ann. § 71.004; Coffey, 142 S.W.3d at 417; see also Carter v. Van Meter, 495 S.W.2d 583, 585 (Tex. Civ. App.-Dallas 1973, writ dism'd). Section 71.004 expressly states that a cause of action for wrongful death is for the "exclusive" benefit of the decedent's surviving spouse, children, and parents. Tex. Civ. Prac. & Rem. Code Ann. § 71.004. This language indicates that the Texas Legislature intended a cause of action for wrongful death to be personal to the beneficiary. Carter, 495 S.W.2d at 586. For this reason, several courts have held that a claim for wrongful death does not survive the beneficiary's death. See Coffey, 142 S.W.3d at 417; Johnson v. City of Houston, 813 S.W.2d 227, 229-30 (Tex. App.-Houston [14th Dist.] 1991, writ denied); Carter, 495 S.W.2d at 586-87; Huntington v. Walker's Austex Chili Co., 285 S.W.2d 255, 258 (Tex. Civ. App.-Waco 1955, writ ref'd). Furthermore, the Wrongful Death Act provides that the damages awarded by the jury must be divided "among the individuals who are entitled to recover and who are alive at that time." Tex. Civ. Prac. & Rem. Code Ann. § 71.010(b); see Carter, 495 S.W.2d at 585. Thus, the legislature expressly contemplated that a beneficiary's right to recover would terminate upon the beneficiary's death. See Carter, 495 S.W.2d at 585. Nevertheless, the family argues that Gregorio, Sr. suffered mental anguish, and this claim was preserved by the Texas Survival Statute. See Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (Vernon 2008). We disagree. In Huntington v. Walker's Austex Chili Co., an infant and his parents were in an automobile accident, and the parents predeceased the infant by ten minutes. See 285 S.W.2d at 256. The infant's estate brought a wrongful death action, arguing that the infant's wrongful death claim for his parents' death survived his own death and passed to his estate. Id. The estate relied on the survival statute. Id. at 258. The court of appeals disagreed. Id.

The court interpreted the Texas Revised Civil Statutes article 5525. (42) It looked at the survival statute's language and distinguished between an estate's claim for damages the deceased suffered prior to his death and a wrongful death beneficiary's claim for damages:

The cause of action that survives is for damages for injuries received by the injured party . . . , which, if he lives, may be recovered by him, but, if he dies from the injuries, then his heirs and legal representatives have the right to recover the same damages that the injured party, had he lived, could have recovered. That is, his right to recover damages because of the injuries which he has suffered up to the time of his death, survives to his heirs and legal representatives.

The cause of action which Terry Wayne Huntington had by virtue of his parents' death and which is involved herein, was a new cause of action created by the Death Statute, and was for damages suffered by himself--loss of nurture, support and education--by virtue of his parents' death. This new cause of action was for damages not recoverable at common law, but recoverable only by virtue of the Death Statute and for the sole and exclusive benefit of himself.

Id. at 258. The court held that the survival statute only provides for survival of the deceased's cause of action for the deceased's personal injuries and death, not for the survival of a wrongful death beneficiary's cause of action. Id. The Texas Supreme Court refused the application for writ of error in this case, making the case's authority as binding as an opinion from the supreme court itself. See Carter, 495 S.W.2d 586.

In 1985, the legislature repealed Texas Revised Civil Statutes article 5525 and codified the provision as section 71.021 of the Texas Civil Practice and Remedies Code. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, §§ 1, 9, 1985 Tex. Gen. Laws 3242, 3242, 3297, 3322 (codified at Tex. Civ. Prac. & Rem. Code Ann. § 71.021). The current statute has not changed in any significant respect. (43) In fact, when article 5525 was repealed and imported into the newly created Texas Civil Practice and Remedies Code, the legislature expressly stated that "no substantive change in the law is intended by this Act." See id. § 10, 1985 Tex. Gen. Laws 3242, 3322. Thus, Huntington is still binding on this Court, and we hold that a wrongful death beneficiary's claim for the wrongful death of another does not survive the beneficiary's death. Carter, 495 S.W.2d 586; Huntington, 285 S.W.2d at 258.

Because Gregorio, Sr.'s claim did not survive his death, it follows that his estate lacked standing to pursue the claim. See Belt, 192 S.W.3d at 786. Wackenhut's failure to raise this issue in the trial court and its agreement to submit Gregorio, Sr.'s damage claim to the jury did not waive its arguments, which affect the trial court's subject-matter jurisdiction. Lovato, 171 S.W.3d at 849. We also cannot ignore the defect in the trial court's subject-matter jurisdiction because of Wackenhut's spoliation of evidence below. "While we are sympathetic to the inequity caused by limiting the group of beneficiaries, and are fully aware of the purpose of the statute, we cannot legislate or decline to follow the prior decisions of the Texas Supreme Court." Johnson, 813 S.W.2d at 230. Accordingly, we sustain Wackenhut's first issue and reverse the trial court's award of $5 million to Catalina, Sr. as administrator of the estate of Gregorio, Sr., and we render judgment dismissing this claim for lack of subject-matter jurisdiction. VI. Mental Anguish and Loss of Companionship and Society Damages

By its tenth, eleventh, and twelfth issues, Wackenhut challenges the damage awards to Gregorio's children and his mother. (44) First, Wackenhut argues that the children's future damages awards cannot be sustained because the jury failed to award them past mental anguish and loss of companionship damages. Second, Wackenhut argues that the evidence was legally and factually insufficient to support the damage awards to the family. We disagree and hold that the evidence is legally and factually sufficient to support the awards to the family.

A. Future Damages in the Absence of Past Damages

Wackenhut first argues that the children's awards of future mental anguish and loss of companionship and society damages cannot stand because the jury failed to award past damages. Wackenhut argues that "[g]enerally, when a family member dies the grief or mental anguish that a person experiences diminishes over time. If, as the jury found, the children had no compensable mental anguish or loss of companionship during the five years after their father's death, then there is no reasonable basis for the jury to find that the children would suffer any such damages in the future."

For support, in its brief Wackenhut cited YMCA of San Antonio v. Adams, a decision by the San Antonio Court of Appeals, which has since been reversed by the Texas Supreme Court. See 220 S.W.3d 1 (Tex. App.-San Antonio 2006), rev'd, 265 S.W.3d 915 (Tex. 2008). In that case, the jury awarded future mental anguish damages, but not past mental anguish damages, to a 9-year-old child who was sexually abused by a summer camp counselor. 265 S.W.3d at 916. The court of appeals reversed the award because there was no evidence of future mental anguish and because a presumption of future mental anguish could not be applied given that the jury found no compensable damages in the past. Id.

The supreme court reversed, holding that the evidence was legally sufficient to support an award of future damages. Id. at 917-18. The court noted that the testimony indicated that children who are sexually abused do not always process the injury immediately, and the issue will have to be dealt with at a time when the child is ready. Id. at 917. Occasionally children suppress their distress for many years. Id. The court held that the jury's failure to award past mental anguish "does not mean that they found no injury to [the child] in the past . . . ." Id. Rather, the "jury's allocation of damages was entirely consistent with the testimony presented that [the child] was coping well by repressing his intense distress, which would inevitably surface in the future." Id. at 917-18. The court held that Texas law permits a jury to award future damages to an injured child even if the jury finds that at the time of trial, the child is coping with the injury by suppressing his emotions. Id. at 918. Based on this holding, we reject Wackenhut's argument that future mental anguish and loss of companionship damages are prohibited as a matter of law because the jury failed to award past damages, and we will proceed to determine if legally and factually sufficient evidence supports the damage awards. (45) We overrule Wackenhut's tenth issue.

B. Legal and Factual Sufficiency of the Evidence Supporting the Children's Awards

Wackenhut argues that the awards of future mental anguish and loss of companionship and society to Gregorio's children are not supported by legally and factually sufficient evidence. To recover damages for future mental anguish, a plaintiff must present evidence demonstrating a reasonable probability that the plaintiff will suffer compensable mental anguish in the future. Id. at 916. Typically, this requires a showing that in the future, the plaintiff will suffer "'a high degree of mental pain and distress' that is 'more than mere worry, anxiety, vexation, embarrassment, or anger.'" Id. at 916-17 (quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995)). In the context of a wrongful death case, mental anguish is concerned "not with the benefits [the beneficiaries] have lost, but with the issue of compensating them for their harrowing experience resulting from the death of a loved one." Moore v. Lillebo, 722 S.W.2d 683, 688 (Tex. 1986). A loss of consortium claim, on the other hand, compensates for "a loss of positive benefits which flowed to the family from the decedent's having been a part of it." Id.

As the supreme court has explained, "wrongful death actions are predicated on the proposition that a wrongful death necessarily destroys any pre-existing family relationship. In most death cases, the emotional impact of the loss of a beloved person 'is the most significant damage suffered by surviving relatives.'" Id. at 685. Thus, in wrongful death cases, proof of a familial relationship is some evidence that the surviving family members suffered mental anguish as a result of the death. Id. Juries considering mental anguish and loss of companionship and society damages are instructed to consider: "(1) the relationship between husband and wife, or a parent and child; (2) the living arrangements of the parties; (3) any absence of the deceased from the beneficiary for extended periods; (4) the harmony of family relations; and (5) common interests and activities." Id. at 688. The jury was so instructed in this case.

Wackenhut argues that there must be direct evidence of the nature, duration, or severity of a plaintiff's anguish, and the plaintiff must establish a substantial disruption in his or her daily routine, or there must be other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. See Parkway, 901 S.W.2d at 444. We disagree that to survive a legal sufficiency challenge, a plaintiff must make this strong of a showing in a wrongful death case, in which the familial relationship supports an inference of mental anguish to support an award of these damages. Id. at 445 ("As we have noted, historically, some types of disturbing or shocking injuries have been found sufficient to support an inference that the injury was accompanied by mental anguish. As a general matter, though, qualifying events have demonstrated a threat to one's physical safety or reputation or involved the death of, or serious injury to, a family member.") (emphasis added); see Hawkins v. Walker, 238 S.W.3d 517, 526 (Tex. App.-Beaumont 2007, no pet); Whipple v. Deltscheff, 731 S.W.2d 700, 703 (Tex. App.-Houston [14th Dist.] 1987, writ ref'd n.r.e.).

However, the lack of such evidence may require the reviewing court to find that the evidence is factually insufficient to support the award's amount, given that the award must "fairly compensate" the victim for the loss. It appears that many courts have approved large mental anguish awards if there is evidence of severe mental anguish, while smaller awards have been affirmed when the evidence merely showed a close familial relationship. See Hawkins, 238 S.W.3d at 526-32 (discussing cases involving large and small mental anguish awards and the quantum of evidence necessary to sustain each). While there is a presumption of some mental anguish from the death of a family member, that presumption does not also require the court to find that the evidence is factually sufficient to support an extremely large award. Id. at 531-32.

The evidence in this case not only showed a close familial relationship between Gregorio and his children, but it also showed severe mental anguish that was likely to continue into the future. Catalina, Sr. testified that Gregorio was an honorable man who was responsible for his children. Catalina, Sr. testified that Gregorio's daughters "were his life." He wanted to do the right thing by his children. He tried to be a good provider. Catalina, Sr. testified that Gregorio knew he had made some mistakes, but he was going to be a good father and was going to correct those mistakes. "He loved his daughters very much[,] and he wanted them to move forward." Catalina testified that Gregorio's daughters will suffer in the future, for example, when they get married. Gregorio will not be there to walk them down the aisle, and that will be painful for them. She testified that Gregorio's children miss him a lot.

Cynthia, Gregorio's widow, admitted that she and Gregorio had some marital problems, but she explained that it never affected the way her children loved their father or how Gregorio loved his daughters. She testified that he was a "stand-up guy," and he was very proud to have served in the National Guard. He never tried to avoid his obligations.

She and Gregorio lived together in Rio Bravo after their marriage. Gregorio was very excited to have children. He told everyone about their first pregnancy. Catalina, Jr., nicknamed "Cat," was born premature. Gregorio would go to work and then go straight to the hospital to visit his tiny daughter. Zulema Salazar, Gregorio's sister, testified that Gregorio stayed by Cat's side the entire time she was in the hospital. Cynthia stated that Gregorio would caress her through the incubator, and he was the first one to hold her. When Cat was a little older, Gregorio would always play with her in the living room and would carry her around. He would take her outside when she was able to walk. He was proud when he took her to her first day of school.

When Gregorio found out Cynthia was pregnant again, he was very happy. They named this child Cynthia, Jr., but nicknamed her "Lulu." Cynthia testified that Lulu was a "daddy's girl." Wherever Gregorio went, Lulu wanted to go. Their youngest daughter, Priscilla, was a surprise. Gregorio was again very happy. Cynthia testified that Gregorio named all three of the children. On the weekends, the family would go out to eat dinner, and Gregorio would take the kids to Wal-Mart to buy new toys. On Sundays, the family would barbeque and have family gatherings.

Cynthia and Gregorio separated three years after Priscilla was born, which was approximately one year before his death. Nevertheless, there was no doubt in Cynthia's mind that Gregorio loved his children. After the separation, Cynthia moved away, first to Harlingen and then to Corpus Christi. She took the children with her, stating that she "needed a chance to be alone, to evaluate my life, my marriage . . . ." Gregorio then began living with his parents.

The children did not have contact with their father once Cynthia moved to Corpus Christi. However, Cynthia also testified that she never told Gregorio where she had moved. It was her decision not to keep in contact--it was not Gregorio's fault that he could not get in touch with his children.

The children missed Gregorio very much while they were in Corpus Christi, and they wanted to see him. Cynthia testified that for that reason, a few weeks before he passed away, she tried to contact Gregorio so that she could take the children to visit him in prison. Gregorio told her that he did not want the children to see him in jail, so he would visit with them either at his mother's house or he would travel to Corpus Christi to visit after his release. Cynthia testified that she and Gregorio were going to try to reconcile.

When she found out that Gregorio had passed away, she went to Cat's school and removed her from class. Cat was a junior high school student at the time. When Cynthia told Cat what had happened, Cat cried. Cat then helped her mother explain to Lulu and Priscilla what had happened. Cynthia took the children to the home of Gregorio's parents and attended the funeral.

Cynthia testified that the children were very sad and cried a lot. They did not understand why their father was gone, and they wanted their father back. After the funeral, the children struggled with their father's death. Cynthia testified that it was still very hard on them, and the children would cry when they remembered him.

Regarding Cat, Cynthia testified that she was sad when she attended her senior prom because Gregorio was not there. Cynthia testified that regardless of the marital problems she had with Gregorio, she had no doubt that Gregorio would have been there for all the important moments in their children's lives. Cynthia testified that the pain that she and her children will suffer will "last until we die."

Gregorio's sister Zulema also testified that the little girls were traumatized. Cat tattooed the name of her father on herself because "she doesn't want to let go." After Gregorio's death, Lulu did not want to play with her cousins. Zulema testified that Priscilla was very young at the time of Gregorio's death.

Cat testified that she was eighteen years old at the time of trial. She remembered her father and loved him very much. She testified that "[i]t hurts a lot because I just graduated[,] and he wasn't there for me. He was there my first day of school, but when I walked across that stage to receive my diploma, he wasn't there. . . . It made me feel very sad." She testified that she will miss him at important times during her life, such as when she gets married and has a child. She stated that the pain will never go away. She knew there were problems between her parents, but she stated that it never changed her feelings for her father or the way he felt about her.

Lulu testified to several memories she had of her father spending time with her. She loved her father and was very attached to him. She will always miss him, and she does not think the pain will ever stop. She stated that she cried when she missed him. She stated that she was confused when she went to his funeral. She did not understand why her father had died. Priscilla was nine at the time of trial. She testified that she loved her father, and he loved her. She will miss him and will always remember him.

We hold that all the above evidence demonstrates both a close familial relationship and severe mental anguish that will likely continue into the future. Wackenhut nevertheless makes several arguments against the awards. First, Wackenhut argues that the parties' living arrangements did not support the awards. It argues that because Cynthia separated from Gregorio a year before his death, there is no basis for the jury to believe that Gregorio would ever live with his children again. It also argues that presumably Gregorio would have lived with his parents in Laredo after his release. Thus, Gregorio would have to travel from Laredo to Corpus Christi to visit the children, which is a long distance, and it is not likely he would ever visit them. Second, Wackenhut argues that Gregorio was absent from the children for extended periods during the separation and that there is no evidence that they had regular or frequent visits, and the children never visited Gregorio in prison.

We note, however, that Cynthia testified that she had no doubt that Gregorio would be involved in the children's lives after his release from prison. She also testified that she and Gregorio intended to discuss reconciliation upon his release. Furthermore, even though Cynthia prevented Gregorio from having contact with the children during the year before his death, she also testified that it was her decision to keep their location hidden--it was not because Gregorio did not love his children or want to see them. She stated that because the children missed Gregorio so much, she contacted him a few weeks before his death to schedule a visit. Gregorio asked Cynthia to wait so that his children would not see him incarcerated. (46) Essentially, Wackenhut seeks to visit the mother's sins upon the children, who were minors and were unable to take any action on their own to visit their father. We will not oblige. There is nothing in the record to support Wackenhut's argument, which we find is pure speculation.

Next, Wackenhut argues that there is no evidence that Gregorio had any common interests or activities with his children. We disagree. The testimony was clear that Gregorio was a doting father and that his children enjoyed spending time with him. Again, Wackenhut's arguments are based on pure speculation.

Finally, incredibly, Wackenhut argues that because the children were making good grades in school, strong evidence exists that these children were not suffering severe mental anguish or would not suffer severe mental anguish in the future. We disagree. We commend the children for remaining studious and will not overturn an award of future damages merely because the children remained responsible in their school work. Even those who suffer severe mental anguish can remain responsible for their studies. Wackenhut has not provided any evidence to the contrary. Accordingly, we hold that the evidence is legally and factually sufficient to justify the awards to Gregorio's children. We overrule Wackenhut's eleventh issue.

C. Mental Anguish and Loss of Companionship to Gregorio's Mother

As we stated above, proof of a strong familial relationship is legally sufficient evidence to sustain an award of mental anguish damages in a wrongful death case, and evidence of severe mental anguish will provide factually sufficient evidence to support a large damage award. The evidence showed that Catalina, Sr. enjoyed a close familial relationship with Gregorio and that she suffered severe mental anguish, establishing her right to past and future mental anguish and loss of companionship and society.

Catalina, Sr. testified that Gregorio was her second child and that he was an obedient child and a good son. He always told her that he loved her. She testified that she was very proud of Gregorio for serving in the National Guard. He wrote letters to his parents and sent pictures while he was in the service. She testified that the family was "very united." They would always spend holidays together and were very happy together. Cynthia also testified that the de la Rosa family was very close and that Gregorio loved his mother and father. Whenever his mother wanted help with something, Gregorio was always there for her.

Zulema testified that the family was close-knit. They went to church every Sunday and would barbeque with the family. She stated that Gregorio had "a lot of love and a lot of respect" for their mother. She testified that they shared a loving bond.

Catalina, Sr. testified that Gregorio named his first-born child after her. Cynthia testified that it was Gregorio's idea to name their first daughter after his mother--"He wanted his daughter to carry her name." Cynthia testified that when they were first allowed to bring Cat home from the hospital, they went straight over to Gregorio's parents' house so his parents could meet her.

Catalina, Sr. stated that she was very happy when Gregorio had his first baby. She testified that she and Gregorio's father visited the family after their first daughter was born, and that when she arrived, Gregorio "ran and hugged us, and he told us that we have a daughter." Catalina, Sr. stated that she and her husband would visit Gregorio and his children every opportunity they had.

She testified that when people ask her about her son, she feels very sad. She said that Wackenhut took away her dreams for her life. She feels emptiness from the loss. She testified that she first heard about Gregorio's injury at 4:00 a.m. on April 27, 2001. The prison's chaplain had called them by phone. He informed her that her son was injured and that she needed to come immediately. She testified that they left immediately, and Gregorio's brother and Zulema accompanied them.

Zulema testified that they first went to the prison, and the chaplain came outside and told them to go to the hospital. She said that when they arrived at the hospital, they went to the receptionist and asked to see Gregorio. They were made to wait, and Catalina, Sr. was in a state of panic. The hospital chaplain finally told the family that Gregorio was dead. She testified that all the family members began to cry.

They were not able to see Gregorio in the hospital because his body had already been moved to a funeral home. The first time they were able to see him after the injury was when he was in the funeral home. Zulema said that at first, she was not sure that the body she viewed was Gregorio because he was "beaten up beyond recognition." Zulema stated that Catalina, Sr. did not believe the person she viewed was Gregorio because she could not recognize him. Zulema testified that her mother was incredulous at the funeral home, and her mother cried during the entire funeral. Catalina, Sr. tried to get up to look at the coffin, but her legs were trembling, and she had to sit back down.

Zulema stated that both her parents became very sick over their son's death. They were in a "very depressive state" and constantly crying. They did not want to eat. She stated that Gregorio's death "tore us apart." Zulema opined that her mother is not as strong as she used to be. During the days and weeks that followed Gregorio's death, her mother would hug a picture of Gregorio and cry. Zulema testified that even at the time of trial, her mother would cry at night and say, "Where is my child? Where are you my son?" Zulema testified that since Gregorio, Sr. passed away, her mother cries and says, "Come for me, my son and my husband," and "I feel that death steps are upon me . . . . I really wish I could go with my loved ones"--essentially wishing for her own death.

Catalina, Sr. said it was "terrible, terrible, terrible" to see him at the funeral home. She said the pain will be with her for "the rest of [her] life . . . to see him the way they left him." She said the pain was terrible then, and it is still the same. The pain from losing her son "took her husband," as well. Her husband could not accept the pain, and he "couldn't survive." She said that Gregorio's death "has affected the whole family . . . . And for me, it's going to be a very strong pain, very strong. Nothing will revive it. Nothing will revive it." She said that she "can't stand this pain." She stated that there was "not an instant, not a moment in my life that [Gregorio's] presence is not with us." She missed him very much.

Wackenhut ignores most of this evidence. Rather, it argues first that the parties' living arrangement did not support an award of mental anguish or loss of companionship and society. It argues that at the time of his death, Gregorio was not living with his mother but was in prison. Next, it argues that there is no evidence that Gregorio shared any common interest and activities with his mother. It is true that Gregorio was in prison at the time of his death; however, prior to his incarceration, Gregorio had moved in to his parents' home while he was separated from Cynthia. The testimony also established that the family spent holidays and weekends together. Gregorio named his first daughter after his mother, and the family had a strong bond. Wackenhut's arguments are contrary to the evidence at trial.

Next, Wackenhut argues that in reviewing the award, we should compare the award with those approved by other courts in comparable litigation. It points to awards ranging from $150,000 to $15 million. See Sanchez ex rel. Estate of Galvan v. Brownsville Sports Ctr., Inc., 51 S.W.3d 643 (Tex. App.-Corpus Christi 2001),vacated w.r.m. sub nom., Honda Motor Co. V. Sanchez, No. 01-1040, 2003 Tex. LEXIS 8 (Tex. Feb. 6, 2003) ($15 million to each parent for death of child); Page v. Fulton, 30 S.W.3d 455 (Tex. App.-Beaumont 2000, pet. denied) ($150,000 to parent). First, we note that Wackenhut points to a jury award that is even larger than the one at issue here. See Sanchez, 51 S.W.3d at 653. We find, however, that we are not conclusively bound by a previous jury award because the facts of a given case may justify a higher award. Moreover, the evidence here is certainly strong enough to justify the award of $10 million in this case.

As detailed above, Catalina, Sr. was very close to her son and enjoyed a strong relationship with him--so much so that he named his first-born child after her. The family spent weekends together and family holidays, and Catalina, Sr. was particularly proud of her son, a former National Guardsman. She suffered severe emotional distress due to the brutal murder of her child in the custody of, and at the hands of, those who were charged with his protection. The testimony showed that the wardens smirked and laughed while Gregorio was beaten to death, and Gregorio was beaten so badly that Catalina, Sr. did not recognize him when he was being identified at the funeral home. The testimony showed that Catalina, Sr. clung to Gregorio's picture and cried every night, wishing that her own death would come sooner so that she can join her son. Given the brutal manner in which Gregorio died, the disgusting display of conduct by Wackenhut, the closeness between Gregorio and his mother, and the severe emotional distress she exhibited, we cannot say that the jury award in this case was excessive or that the evidence was legally or factually insufficient. Wackenhut's twelfth issue is overruled.

VII. Entitlement to Exemplary Damages

The jury did not award any actual damages to Gregorio's estate. However, the jury found that Gregorio's injuries and death resulted from the malice or gross negligence of Wackenhut and Warden Forrest, and it awarded Gregorio's estate $20 million in exemplary damages against Wackenhut and $500,000 in exemplary damages against Warden Forrest. The jury did not award any of the other plaintiffs exemplary damages. After the verdict, the trial court awarded Gregorio's estate $7,511 for funeral and EMS expenses, finding that the evidence conclusively established these damage elements. It awarded the punitive damages found by the jury.

In its second and third issues, Wackenhut challenges the trial court's award of funeral and EMS expenses and argues that the exemplary damages awards should be reversed. Wackenhut first argues that the evidence did not conclusively establish the damages for funeral or EMS expenses; therefore, the trial court erroneously awarded these actual damages after the verdict. As a result, according to Wackenhut, there are no actual damages to support an award of exemplary damages, and the damage awards to Gregorio's estate should be reversed. See Tex. Civ. Prac. & Rem. Code Ann. § 41.004(a) (Vernon 2008) ("Except as provided by Subsection (b), exemplary damages may be awarded only if damages other than nominal damages are awarded."); see also, e.g., Doubleday & Co. v. Rogers, 674 S.W.2d 751, 753-54 (Tex. 1984). Additionally, Wackenhut argues that the family affirmatively waived its right to recover for funeral and EMS expenses by withdrawing its jury question that would have asked the jury to award these damages. Furthermore, Wackenhut asserts that the trial court erred in awarding funeral expenses because there was no pleading to support the award.

In response, the family first argues that Wackenhut should not be heard to complain about the lack of actual damages because Wackenhut destroyed videotapes of the beating and of Gregorio's injuries, resulting in the spoliation instruction. The family further argues that the findings of funeral and EMS expenses should be deemed in support of the judgment. Second, the family argues that sufficient evidence supports the trial court's award of funeral and EMS expenses. Third, the family contends that the "zero damage rule" does not apply when a jury finds the defendants acted with malice. Fourth, the family argues that the punitive damages should be allowed because all the family members suffered a legal injury and should be treated as a single unit for purposes of the "zero damage rule."

A. Spoliation

First, we must address the family's argument that because Wackenhut destroyed evidence that would have supported Gregorio's actual damages claim, Wackenhut cannot be heard to complain about the lack of actual damages. We note that the family has not cited any authority for this proposition, nor have we located any.

A spoliation instruction, like the one given in this case, creates an inference that can support the nonspoliating party's claims. See Trevino, 969 S.W.2d at 960-61 (Baker, J., concurring). However, when a jury is given the less-severe spoliation instruction and nevertheless finds against the nonspoliating party, it is incumbent upon the nonspoliating party to preserve its right to complain on appeal by raising a cross-point attacking the negative finding or by filing a cross-appeal. See Tex. R. App. P. 38.2(b)(1); Tex. R. App. P. 25.1(c) ("A party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal. . . . The appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause."); Trevino, 969 S.W.2d at 961 (noting that the burden of proof remains on nonspoliating party). The family has not brought a cross-appeal or raised a cross-point challenging the jury's award of zero actual damages to Gregorio. Thus, we are not at liberty to affirm the punitive damage award by merely relying on the spoliation instruction as some evidence of actual damages, specifically because in this case, Wackenhut has challenged the evidence demonstrating that Gregorio's estate incurred funeral and EMS expenses and that the expenses were reasonable. The fact that Gregorio suffered injuries requiring treatment has no bearing on whether the charges were reasonable. See Dallas Ry. & Terminal Co. v. Gossett, 294 S.W.2d 377, 382 (Tex. 1956) ("While information regarding the nature of the injuries might be of some assistance to the jury in certain cases in determining the need for treatment, we fail to see its materiality on the question of whether the amounts charged for the treatment are reasonable. And the fact that treatment is necessary is not proof, or a circumstance tending to prove, the reasonableness of the charges made therefor."). With that in mind, we will turn to those awards.

B. Standard of Review

After the verdict, although the family did not submit questions on funeral and EMS expenses, the trial court awarded these damages, stating in the judgment that "[t]he uncontroverted evidence showed Gregorio de la Rosa Jr. incurred $7,000 in funeral and burial expenses and $551 in Emergency Medical Service expenses." Wackenhut argues that the trial court was not entitled to render judgment for these expenses in the absence of evidence conclusively establishing the elements of the expenses. We agree. Texas Rule of Civil Procedure 279 governs omissions from the charge. Tex. R. Civ. P. 279. It provides:

Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived. When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment. . . .

Id. (emphasis added). Although the family argues that this rule requires this Court to deem findings on funeral and EMS expenses in support of the judgment, the family does not point us to any element of these damages, "necessarily referable thereto," that was "submitted to and found by the jury . . . without request or objection." Id.

The family cites to Ramos v. Frito-Lay, Inc. to support its argument that a deemed finding is required. 784 S.W.2d 667, 668 (Tex. 1990). In Ramos, the trial court submitted, and the jury found, that Frito-Lay's employee committed an intentional tort, and it awarded exemplary damages. Id. However, the plaintiff did not submit a question asking whether the employee was acting in a managerial capacity and in the course and scope of his employment. Id. The supreme court held that managerial capacity and course and scope constituted elements of the plaintiff's cause of action for exemplary damages and did not constitute an independent ground of recovery. Id. Thus, if evidence supported these elements of punitive damages and Frito-Lay failed to object to the omission, these findings could be deemed in support of the judgment. Id.

That is not the case here. We hold that funeral expenses and EMS expenses are separate grounds of recovery that are not necessarily referable to a cause of action for punitive damages. See Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 655 (Tex. App.-Houston [14th Dist.] 1987, writ denied) (refusing to deem finding of actual damages in tort to support recovery of punitive damages). Moreover, Wackenhut adamantly objected to the inclusion of funeral and EMS expenses in the charge because these claims were not supported by the evidence, and the family withdrew its jury questions on these damages. See id. ("Where, however, issues are omitted which constitute only a part of a complete and independent ground and other issues necessarily referable to that ground are submitted and answered, the omitted elements are deemed found in support of the judgment if no objection is made and they are supported by some evidence."). Thus, in order to sustain the award of funeral and EMS expenses, we must find that the evidence conclusively established the award. See id. ("If an entire theory were omitted from the charge it would be waived."). (47)

Conclusive evidence can take many forms. City of Keller, 168 S.W.3d at 814. Evidence is conclusive of a fact if it is undisputed and permits only one logical inference. Id. For example, undisputed physical evidence that cannot be denied is one type of such evidence. Id. Additionally, undisputed evidence is conclusive if the opposing party admits it is true. Id.

C. Evidence of Funeral Expenses

The trial court awarded Gregorio's estate $7,000 in funeral expenses. Wackenhut argues that the family did not conclusively establish that Gregorio's estate ever paid or incurred any funeral expenses. Wackenhut argues that the only evidence of funeral expenses came from Gregorio's sister, Zulema Salazar, who testified that she made the funeral arrangements and the cost was $7,000. Finally, Wackenhut argues that there was no evidence offered to show that $7,000 was a reasonable amount for funeral services.

To recover funeral expenses, the plaintiff must prove that the amount charged was reasonable. See Edwards Transfer Co. v. Brown, 764 S.W.2d 249, 250 (Tex. App.-Dallas 1987, no writ); Soliz v. Garcia, 702 S.W.2d 668, 671 (Tex. App.-Houston [14th Dist.] 1985, no writ); Monsanto Co. v. Johnson, 675 S.W.2d 305, 312 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.) ("It is generally the plaintiff's burden to offer specific evidence of the reasonableness and necessity of expenses . . . ."); Folsom Invs., Inc. v. Troutz, 632 S.W.2d 872, 876 (Tex. App.-Fort Worth 1982, writ ref'd n.r.e.); see also Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex. 1963) (noting that recovery of "reasonable" funeral expenses is allowed in wrongful death actions); Martinez v. Angerstein, 517 S.W.2d 811, 816 (Tex. App.-Corpus Christi 1974, writ dism'd w.o.j.) (noting that recovery of "reasonable" funeral expenses is allowed in survival actions).

In Troutz, the court of appeals reversed an award of funeral expenses because there was no testimony regarding the reasonableness of the expense. Troutz, 632 S.W.2d at 876. The same is true here--there was no testimony regarding whether $7,000 was a reasonable charge for funeral services. Accordingly, the family did not conclusively establish its right to recover these expenses, and the trial court erred by awarding funeral expenses in the judgment. Id. We sustain Wackenhut's second issue with respect to the award of funeral expenses.

D. EMS expenses

With respect to the EMS expenses, Wackenhut argues that there is no evidence as to the amount of the expenses, that Gregorio's estate ever incurred or paid those expenses, or that the expenses were reasonable. We disagree.

To recover medical expenses, the plaintiff must prove (1) the amount of expense incurred, and (2) that the expense was reasonable and necessary. Tex. Civ. Prac. & Rem. Code Ann. § 41.0105 (Vernon 2008) ("In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant."); see Monsanto Co., 675 S.W.2d at 312; see also Reliance Steel & Aluminum Co. v. Sevcik, 268 S.W.3d 65, 69 (Tex. App.-Corpus Christi 2006), rev'd on other grounds, 267 S.W.2d 867 (Tex. 2008). Medical expense statements can be used to prove the amount of the expense actually incurred, but there must be further testimony establishing that the expense was reasonable. Monsanto Co., 675 S.W.2d at 312.

First, Wackenhut argues that there is no evidence of the amount incurred by Gregorio's estate or that Gregorio's estate ever paid the expenses. We disagree. Samuel Garza testified by deposition that he was the ambulance driver for Willacy County EMS on the day that Gregorio was injured. During Garza's testimony, the family's counsel referred to deposition exhibit 5, and he asked if "[t]his is the billing for Willacy County?" Garza replied that it was the bill. Garza then testified that the services provided were necessary to treat Gregorio. Referring back to that bill, the family's counsel then asked if "these" charges were "reasonable charges based on your current knowledge." Garza replied that they were. Continuing with the questioning, the family's counsel asked if $551.50 is a "reasonable charge for the services . . . provided?" Garza again replied that it was. After the deposition was played to the jury, the family's counsel offered all the deposition exhibits into evidence as plaintiff's exhibit 43; however, deposition exhibit 5 was not included with the documents that ultimately were admitted.

A reasonable reading of this testimony established that the bill was for $551.50. During Wackenhut's cross-examination of Garza, Garza was never questioned whether $551.50 was the amount charged by Willacy EMS or whether the bill was paid. Thus, this evidence was uncontradicted, and it conclusively established that Gregorio incurred these charges. City of Keller, 168 S.W.3d at 814.

Next, Wackenhut argues that the evidence did not conclusively establish that the charges were reasonable and necessary. Wackenhut argues that the family relied on Garza's testimony, and Garza was unqualified to render such an opinion because he was merely the ambulance driver. Wackenhut argues that the trial court erred in finding Garza qualified. Wackenhut, however, ignores Garza's testimony that he was currently employed at Pro-Medic EMS in San Antonio, that his current job was in billing, and that he was familiar with the standard charges, more or less, of a particular call. Wackenhut does not explain why this testimony does not qualify Garza to testify about the reasonableness of the billing. See Medina v. Hart, 240 S.W.3d 16, 22 (Tex. App.-Corpus Christi 2007, pet. denied) (noting that the court could overrule issue by appellant who did not distinguish or explain other evidence in record supporting judgment).

Moreover, Foster Frank Edwards, a paramedic with the Willacy County EMS, also testified by deposition that he administered emergency care to Gregorio. During the deposition, the family's counsel referred to a bill for EMS services. The following exchange occurred:

Q: And basically, it goes through there, the lactated ringers, the oxygen, supplies, and everything else you gave. It says that the total charges here are $551.50. Is this a fair and reasonable amount for the charges that are--

A: Sir, I have nothing to do with the billing or the office. I didn't even know how much they did charge, sir.

Q: That's all right. But certainly, the--the services that were provided were necessary in order to treat him?

A: Yes, sir.

Q: In your opinion?

A: Yes, sir.

Q: All right. And you don't--you've never known the Willacy County EMS to be unreasonable in their charges, have you?

A: No, sir.

Q: All right. So the best you know, that these are reasonable charges for the--

A: Yes.

Q: --services provided, right?

A: Yes, sir.

Q: And they were necessary for the medical services that you provided--

A: Yes, sir.

Wackenhut again ignores this testimony in the record, which constitutes evidence that $551.50 was a reasonable charge for necessary services that were provided to Gregorio. Because Wackenhut has not argued that Edwards' testimony was improperly admitted, it cannot show harm from the admission of Garza's testimony. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989) (holding error in admission or exclusion of evidence is not reversible if the evidence is cumulative of other evidence in the record). Accordingly, we overrule Wackenhut's second issue as it applies to the award of EMS expenses. Furthermore, having found that the award of EMS expenses was proper, we overrule Wackenhut's third issue challenging the award of exemplary damages as not being supported by an award of actual damages.

E. Application of the "Zero Damages Rule" when Jury Finds Malice

Nevertheless, even if the trial court erred in awarding damages for funeral and EMS expenses, we hold that the malice finding precludes the application of the "zero damages rule" in this case. Wackenhut argues that because the jury failed to award actual damages and the trial court's award of funeral expenses and EMS expenses was erroneous, there is no award of actual damages to support the award of punitive damages. See Tex. Civ. Prac. & Rem. Code Ann. § 41.004(a) (Vernon 2008). In response, the family asserts that the "zero damages" rule does not apply to its claim for wrongful death because the jury found that Wackenhut acted with "malice," which supplanted the requirement for actual damages under the applicable, 1995 version of the statute.

At common law, punitive damages were not permitted unless the plaintiff recovered actual damages. See Doubleday & Co., 674 S.W.2d at 753-54. An award of merely nominal damages was insufficient to sustain a recovery of punitive damages. Id. at 754. In 1987, this rule was codified as Texas Civil Practice and Remedies Code section 41.004, and that section was amended in 1995. (48) See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 2.12, 1987 Tex. Gen. Laws 37, 44 (adding Chapter 41 of the civil practice and remedies code); Act of Apr. 6, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Sess. Law Serv. 108, 110 (Vernon). In 1995, it provided:

(a) Except as provided by Subsection (b), exemplary damages may be awarded only if damages other than nominal damages are awarded.

(b) A claimant may recover exemplary damages, even if only nominal damages are awarded, if the claimant establishes by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from malice as defined in Section 41.001(7)(A). Exemplary damages may not be awarded to a claimant who elects to have his recovery multiplied under another statute.

Tex. Civ. Prac. & Rem. Code Ann. § 41.004. Subsection (b) modified the general rule that nominal damages are insufficient to sustain an award of punitive damages, if certain conditions are met. Id.

The 1995 version of Chapter 41 defined "malice" as:

(A) a specific intent by the defendant to cause substantial injury to the claimant; or

(B) an act or omission:

(i) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(ii) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Tex. Civ. Prac. & Rem. Code Ann. § 41.001(7). Question 12 of the jury charge asked whether the jury found by clear and convincing evidence that Gregorio's injuries and death resulted from Wackenhut or Warden Forrest's malice or gross negligence. The charge's definition of "malice" or "gross neglect" tracked the 1995 version's definition of malice exactly. The jury found that both Wackenhut and Warden Forrest acted with malice or gross negligence, and neither Wackenhut nor Warden Forrest has challenged this finding on appeal.

The problem with the family's argument, however, is that the 1995 version of the statute allowed a plaintiff to recover exemplary damages based on a finding of malice "even if only nominal damages are awarded." Tex. Civ. Prac. & Rem. Code Ann. § 41.004; see Bic Pen Corp. v. Carter, 251 S.W.3d 500, 510 (Tex. 2008) ("At the time, this statute also provided that the claimant could recover exemplary damages, even if only nominal damages were awarded, but only if it established by clear and convincing evidence that the harm resulted from malice . . . ."); Waste Disposal Ctr., Inc. v. Larson, 74 S.W.3d 578, 589 (Tex. App.-Corpus Christi 2002, pet. denied) ("Except where there are nominal damages which result from malice and in wrongful death claims involving workers' compensation, exemplary damages may be awarded only if damages other than nominal damages are awarded."); Perez v. Perez, No. 09-05-024-CV, 2005 WL 2092807, at *2 (Tex. App.-Beaumont Aug. 31, 2005, no pet.) (mem. op.). In other words, a malice finding would allow a plaintiff to recover exemplary damages in the absence of actual damages, but only if the jury at least awarded nominal damages. Had we found the award of EMS expenses was erroneous, that would not be the case here. The jury did not award nominal damages to Gregorio.

To remedy this situation, the family argues that if Gregorio's estate is not entitled to recover actual damages, we may consider the jury's award of damages to the wrongful death beneficiaries. The 1995 version of Section 41.001(1) defined "claimant" as

a party, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff, seeking recovery of exemplary damages. In a cause of action in which a party seeks recovery of exemplary damages related to injury to another person, damage to the property of another person, death of another person, or other harm to another person, "claimant" includes both that other person and the party seeking recovery of exemplary damages.

Tex. Civ. Prac. & Rem. Code Ann. § 41.001(1) (emphasis added). The family argues that all wrongful death beneficiaries must be treated together as one "claimant" for purposes of section 41.004's prohibition on exemplary damages. Thus, because the wrongful death beneficiaries recovered at least nominal damages, those damages must be considered when applying section 41.004 to the award to Gregorio's estate.

We agree that the damages awarded to Gregorio's children must be taken into account. (49) "Under section 41.001(1), when a party is seeking exemplary damages for the death of an individual, both the deceased and the persons seeking recovery are defined as a claimant." Gen. Chem. Corp. v. De la Lastra, 852 S.W.2d 916, 923 (Tex. 1993); see Tex. Health Enters., Inc. v. Geisler, 9 S.W.3d 163, 169 (Tex. App.-Fort Worth 1999, pet. dism'd) ("Further, chapter 41 expressly indicates that the actual damages to be quadrupled encompass the actual damage awards to all plaintiffs."). In Drilex Systems, Inc. v. Flores, 1 S.W.3d 112, 122 (Tex. 1999), (50) the supreme court interpreted the definition of "claimant" in the context of a settlement credit under Chapter 33. Chapter 33 defined "claimant" almost exactly as it is defined by Chapter 41. (51)

In Drilex, Jorge Flores was injured, and he and his family asserted claims based on that injury. 1 S.W.3d at 115. When calculating settlement credits, the court concluded that all the plaintiffs, including the injured plaintiff himself, must be considered as a single "claimant" for purposes of applying a settlement credit. Id. at 122 ("All of the Flores family members are seeking recovery of damages for injury to Jorge. Thus, under the plain language of section 33.011(1), the term 'claimant' in section 33.012(b)(1) includes all of the family members."). Under Drilex, regardless of whether the plaintiff is seeking damages for his own injuries, his recovery can be limited by including the derivative plaintiffs in the definition of "claimant." Id. It would be illogical to conclude that under Chapter 33, a party seeking recovery for his own injuries can be combined with derivative plaintiffs for purposes of reducing the injured plaintiff's recovery, but for purposes of ensuring a recovery of punitive damages, the same definition should be applied differently. Accordingly, we hold that the definition of "claimant" includes both Gregorio and his children. (52) Because the legislature stated that a "claimant may recover exemplary damages, even if only nominal damages are awarded, if the claimant establishes by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from malice," and Gregorio's children recovered more than nominal damages, the "zero damages rule" does not apply. See Tex. Civ. Prac. & Rem. Code Ann. § 41.004 (b). (53)

VIII. Statutory Cap on Punitive Damages

In its fourth issue, Wackenhut argues that if exemplary damages were properly awarded, the exemplary damages award should be capped. See Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b). (54) The 1995 version of the statute provided that

exemplary damages awarded against a defendant may not exceed an amount equal to the greater of:

(1) (A) two times the amount of economic damages plus

(B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or

(2) $200,000, whichever is greater.

Id. "Economic damages" was defined as "compensatory damages for pecuniary loss; the term does not include exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society." Id. § 41.001(4) (Vernon 1995)).

The trial court awarded EMS expenses in the amount of $551.50. These are economic damages. See id. The jury awarded $2 million in future mental anguish and $2 million in future loss of companionship and society to each of Gregorio's three children, for a total of $12 million. These damages are noneconomic damages. See id. Thus, if we apply the statutory cap, Gregorio's estate would be limited to recovering $751,103 (55) against each defendant. See id. § 41.008(b) (Vernon 1995); Seminole Pipeline Co. v. Broadleaf Partners, Inc., 979 S.W.2d 730, 752 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (holding cap applied on a per defendant basis and not to the entire award of exemplary damages).

The award against Warden Forrest was within the cap; thus, no reversible error is present with regard to the award against Warden Forrest. See Tex. R. App. P. 44.1(a)(1) (stating appellant must show that error "probably caused the rendition of an improper judgment"). Accordingly, for that reason, we affirm the award of $500,000 in exemplary damages to Gregorio's estate against Warden Forrest. Id. If we apply the statutory cap to the award against Wackenhut, however, the award would be limited to $751,103.

The family argues that Wackenhut waived the statutory cap on punitive damages by failing to plead it, and in any event, Texas law allows for uncapped punitive damages for aggravated assault and malicious wrongful death. Tex. Civ. Prac. & Rem. Code Ann. § 41.008(c)(1), (4). We agree that Wackenhut was required to plead the damage cap, particularly given that during trial the family asserted that the cap needed a supporting pleading and that it was relying on the state of the pleadings in withdrawing issues from the jury.

Texas Rule of Civil Procedure 94 provides:

In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. . . .

Tex. R. Civ. P. 94 (emphasis added). In Shoreline, Inc. v. Hisel, this Court held that "[w]here maximum damages are provided in statutes in Texas, and a defendant wants to rely on the cap, it is considered a defense that must be [pleaded] and proved." 115 S.W.3d 21, 25 (Tex. App.-Corpus Christi 2003, pet. denied). Although in that case we were applying the damage limitation in section 21.2585(d) of Texas Labor Code, we expressly cited Texas Rule of Civil Procedure 94 and the punitive damage cap provision in Chapter 41. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 41.008 (Vernon Supp. 2003)). The Fort Worth Court of Appeals has likewise held that section 41.008's punitive damages cap is an affirmative defense that must be pleaded. Horizon/CMS Healthcare Corp. v. Auld, 985 S.W.2d 216, 233 (Tex. App.-Fort Worth 1999), rev'd in part on other grounds, 34 S.W.3d 887 (Tex. 2000).

Wackenhut argues that Shoreline is distinguishable because Texas Labor Code section 21.2585 requires the defendant to prove the number of employees it has in order to determine the cap amounts. See Tex. Labor Code Ann. § 21.2585(d) (Vernon 2006). (56) In contrast, Wackenhut argues that the cap in section 41.008 does not require any proof to establish its applicability--in other words, because defendants have nothing to prove, there is nothing to plead. See Hall v. Diamond Shamrock Ref. Co., L.P., 82 S.W.3d 5, 22-23 (Tex. App.-San Antonio 2001), overruled on other grounds, 168 S.W.3d 164 (Tex. 2005); Seminole Pipeline Co., 979 S.W.2d at 758-59. We disagree.

First, we note that in applying damage caps under other statutory schemes, where the caps' application did not require any additional proof by the defendant, courts have nevertheless required defendants to plead the caps as an affirmative defense. See Ingraham v. U.S., 808 F.2d 1075, 1079 (5th Cir. 1987) (holding that Texas's "statutory limit on medical malpractice damages is an affirmative defense which must be pleaded timely . . . ."); Webster v. Johnson, 737 S.W.2d 884, 889 (Tex. App.-Houston [1st Dist.] 1987, writ denied) (holding that defendant waived the liability cap in former article 4590i by failing to plead the cap). In fact, this Court held as much in Tsai v. Wells, 725 S.W.2d 271, 275 (Tex. App.-Corpus Christi 1986, writ ref'd n.r.e.). Wackenhut fails to acknowledge or distinguish this controlling authority. (57)

Second, we disagree that the purpose for requiring a defendant to plead a matter of avoidance is solely to allow the plaintiff notice that the defendant intends to offer evidence of a particular fact. In fact, in addition to this purpose, a defendant's pleading of an affirmative defense puts the plaintiff on notice that the affirmative defense needs to be defeated, and it allows the plaintiff to structure his or her case in order to defeat the affirmative defense, if possible. It is well established law that

[t]he purpose of Rule 94 is indicated forcibly by the provision that a party must affirmatively plead certain named defenses, and "any other matter constituting an avoidance or affirmative defense." That purpose is to require the defendant to announce in his pleadings what his defense will be, if it includes any of the matters referred to in the Rule, and to give plaintiff the opportunity of knowing what character of proof he may need to meet the defenses pleaded.

Reid v. Associated Employers Lloyds, 164 S.W.2d 584, 585 (Tex. Civ. App.-Fort Worth 1942, writ ref'd); see Gorman v. Life Ins. Co. of N. Am ., 811 S.W.2d 542, 546 n.8 (Tex. 1991) (quoting Reid, 164 S.W.2d at 585); First Nat'l Bank in Dallas v. Zimmerman, 442 S.W.2d 674, 677 (Tex. 1967); Petroleum Anchor Equip., Inc. v. Tyra, 419 S.W.2d 829, 835 (Tex. 1967) (holding that this rule is "sound" and prevents a defendant from waiting until after a verdict to assert a defense when it is too late for the plaintiff to defeat it); Favaloro v. Comm'n for Lawyer Discipline, 13 S.W.3d 831, 837-38 (Tex. App.-Dallas 2000, no pet.); Garcia v. Rutledge, 649 S.W.2d 307, 310 (Tex. App.-Amarillo 1982, no writ); see also State v. One (1) Red 1988 Chevrolet Silverado, No. 13-00-143-CV, 2001 WL 1002159, at *1 (Tex. App.-Corpus Christi June 14, 2001, no pet.) (not designated for publication).

Contrary to Wackenhut's arguments, the damages cap in section 41.008(b) does not automatically apply in every case. Section 41.008(c) provides several "cap-busting" theories that can apply in a given case:

(c) Subsection (b) does not apply to a cause of action against a defendant from whom a plaintiff seeks recovery of exemplary damages based on conduct described as a felony in the following sections of the Penal Code if, except for Sections 49.07 and 49.08, the conduct was committed knowingly or intentionally:

(1) Section 19.02 (murder);

. . . .

(4) Section 22.02 (aggravated assault)

. . . .

(11) Section 32.46 (securing execution of document by deception)

. . . .

Tex. Civ. Prac. & Rem. Code § 41.008(c). The family was entitled to notice that Wackenhut intended to assert the cap so that its case could be structured to present a "cap-busting" theory. See Reid, 164 S.W.2d at 585; see also Gorman, 811 S.W.2d at 546 n.8; Zimmerman, 442 S.W.2d at 677; Tyra, 419 S.W.2d at 835. Accordingly, we hold that the damages cap in section 41.008 must be pleaded or else it is waived.

Wackenhut argues that the family was not prejudiced by its failure to plead the cap because: (1) the family should have been aware that contrary authority does not require a pleading; and (2) in any event, the family pleaded and unsuccessfully attempted to prove "cap-busting" theories, despite Wackenhut's failure to plead the cap. Under the circumstances of this case, we disagree.

First, we have already held that the "contrary" authority is incorrect based on well-established precedent. Second, we disagree that Wackenhut's failure to plead the cap did not prejudice the family. In fact, we believe that although not technically a violation of counsel's duty of candor to a tribunal, the conduct of Wackenhut's counsel at trial was less than forthcoming. See Texas Lawyer's Creed at III.7, available at http:// www.txethics.org/ reference_creed. asp (last visited Feb. 7, 2009) ("I will not serve motions or pleadings in any manner that unfairly limits another party's opportunity to respond.").

After the family concluded its case in chief, Wackenhut moved for a directed verdict on the family's claims for assault and battery. The family argued that it was asserting penal code violations "for other purposes should they become necessary." The family explained that these theories "could be used for other things, possibly for the punitive damage issues or other things that may come up," but informed the court that the purpose of pleading the penal code provisions was not to obtain the recovery of damages for their violation. Wackenhut did not respond to this argument.

Later in the hearing, Wackenhut moved for a directed verdict on the family's common nuisance theory. The family argued that it was not asserting nuisance as a cause of action that could provide the recovery of damages, but for "other purposes." The court inquired as to what those other purposes were, to which the family's counsel responded:

Well, it's possible that we may be required to prove that under Chapter 41. Chapter 41 concerns punitive damages. It's possible that under some circumstances in the future, we have to prove that to get punitive damages. . . . .

. . . .

Now, the reason why it's important is--and we are trying to cover all our bases here, obviously. I would like to direct the court's attention to two cases, 34 S.W.3d 887, Horizon Healthcare Corporation v. Auld, and 115 S.W.3d 21, Shoreline, Inc. v. Hisel. The Hisel case is a Corpus Christi decision from 2003. I will show these to counsel.

These two cases stand for the unremarkable proposition that in order for a defendant to assert a defense they have to plead it. In this case, the defendants have not pled Chapter 41 of the Civil Practice and Remedies Code as a defense to this case; therefore, they are not entitled to the benefits of Chapter 41 of the Civil Practice and Remedies Code.

The only reason why we are talking about common nuisance is because we are concerned that for some reason they might try to spring this defense on us in the middle of trial. So we would respectfully, you know, point out to the court that since they haven't pled it and it's not an issue in this case and we've relied on their pleadings and the state of their pleadings, this nuisance issue is probably moot.

(Emphasis added).

Wackenhut did not speak up or dispute the family's characterization of its pleadings. Nor did Wackenhut attempt to distinguish our decision in Hisel or argue that under other case law, it was not required to plead the damages cap. Moreover, Wackenhut was expressly notified that the family was relying on the state of the pleadings. Wackenhut could have requested a trial amendment at that point or at any other point during trial when the family retained the opportunity to meet the defense. See Tex. R. Civ. P. 66. (58) However, it did not.

At the end of trial, on the first day of the charge conference, the family proposed a question on securing the execution of a document by deception. Wackenhut argued that this was not a "theory of civil recovery" and that "there is no evidence" to support such a question. In response, the family again stated that it was submitting this question "out of an abundance of caution," but clearly stated that it was likely unnecessary "because there are no pleadings that would support the requirement for us to submit this question." Again, Wackenhut did not dispute the family's construction of Wackenhut's pleadings, did not argue that it was not required to plead the damages cap, or otherwise indicate in any way that it intended to rely on the damages cap.

After the jury verdict, Wackenhut raised the punitive damages cap for the first time in its "Motion to Disregard Jury Findings and for Judgment Notwithstanding the Verdict and Objections to Plaintiff's Motion for Judgment." At that point, it was too late for the family to meet the defense by securing findings on the "cap-busting" theories.

Wackenhut's failure to speak up and to affirmatively assert its reliance on the cap allowed both opposing counsel, and the trial court, to proceed under the assumption that it did not intend to assert the cap. See Am. Paging of Tex., Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 241 (Tex. App.-El Paso 1999, pet. denied) (noting that there are circumstances where counsel's failure to disclose a material fact is the equivalent of an affirmative misrepresentation); see also Texas Lawyer's Creed at III.7. The family specifically informed Wackenhut that it was relying on the state of the pleadings in shaping the rest of its case, and Wackenhut remained silent. The family was surely justified in its reliance on Wackenhut's silence. See Ingraham, 808 F.2d at 1079 (noting plaintiffs' argument that it would have structured its proof differently had it known that medical malpractice damage cap would be asserted, and holding that defendant should not be "permitted to 'lie behind a log' and ambush a plaintiff with an unexpected defense."). Accordingly, we hold that Wackenhut waived its right to impose the cap. See Tyra, 419 S.W.2d at 835. We overrule Wackenhut's fourth issue. (59)

IX. Constitutional Limits on Punitive Damages

By its fifth issue, Wackenhut argues that the award of exemplary damages violates its due process rights under the Fourteenth Amendment to the United States Constitution. See U.S. Const. amend. XIV; BMW of N. Am. v. Gore, 517 U.S. 559, 568 (1996); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 308 (Tex. 2006); Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 45 (Tex. 1998). We disagree.

In BMW of North America v. Gore, the United States Supreme Court held that "[e]lementary notions of fairness enshrined in our constitutional jurisprudence dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose." 517 U.S. at 574. The Court set out three "guideposts" by which we must judge the constitutionality of punitive damage awards. Id. First, we consider the "the degree of reprehensibility" of the defendant's conduct. Id. at 575. Second, we consider the disparity between the harm or potential harm suffered and the punitive damages award. Id. Third, we examine the difference between the punitive damages award and "the civil penalties authorized or imposed in comparable cases." Id. We will address each guidepost in turn.

A. Degree of Reprehensibility of Wackenhut's Conduct

"Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." Id. The Supreme Court explained that this guidepost reflects the notion that "some wrongs are more blameworthy than others." Id. For example, the Court explained that "nonviolent crimes are less serious than crimes marked by violence or the threat of violence," and "'trickery and deceit,' are more reprehensible than negligence." Id. at 576 (citations omitted). Thus, in State Farm Mutual Auto Insurance Co. v. Campbell, the Supreme Court held that when considering the reprehensibility of a defendant's conduct, courts are to examine whether "the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident." 538 U.S. 408, 419 (2003).

Wackenhut does not address this guidepost. It does not argue at any point in its brief that its conduct was not reprehensible. For this reason, the family argues that Wackenhut has waived its due process argument. We disagree that the failure to address this guidepost waives Wackenhut's due process claim; however, it does affect our analysis. In Campbell, the Court explained that "[t]he existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect." Id. (emphasis added). Thus, even if the plaintiff establishes that the conduct is the most reprehensible conduct imaginable, we must nevertheless consider the other "guideposts" to analyze the due process claim, albeit with reference to the reprehensible conduct. See id.

We hold that nearly all the indicators of reprehensible conduct exists in this record. (60) First, the harm caused to Gregorio and his family was physical rather than merely economic. See USA Truck, Inc. v. West, 189 S.W.3d 904, 911 (Tex. App.-Texarkana 2006, pet. denied). This case involves "the most serious injury of all--death to a human being." Id. at 910. Second, the record shows that Wackenhut and Warden Forrest were indifferent to and acted in reckless disregard for Gregorio's safety. For example, Wackenhut repeatedly violated the post order for the crash gate leading to the "bowling alley" by failing to conduct pat-searches of all inmates going through the gate, even though it was aware that locks were available to inmates and could be used as weapons. In fact, other fights had occurred at the Wackenhut facility involving the use of locks in the same manner, and Wackenhut knew about these fights. Additionally, testimony from two witnesses showed that Wackenhut's wardens callously disregarded Gregorio's safety by smirking and laughing while Gregorio was beaten to death. See Malone, 972 S.W.2d at 46.

Furthermore, and no less importantly, the trial court instructed the jury that Wackenhut and Warden Forrest intentionally spoliated evidence. (61) "Evidence of post-act attempts by tortfeasors to cover-up or avoid responsibility for their acts may imply a consciousness that their acts were intentional or willful, and not a mere mistake or accident." Bennett v. Reynolds, 242 S.W.3d 866, 889-90 (Tex. App.-Austin 2007, pet. filed); see Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 273 (Tex. App.-Houston [1st Dist.] 1991, writ denied). Warden Forrest expressly testified in his deposition that he had seen a videotape that showed the beating and Gregorio's injuries, which he described in detail. Amazingly, Warden Forrest amended his deposition to testify that the "video" he testified to seeing was in reality a movie he had "created" in his mind based on information he had learned about the beating. Testimony also showed that while one lock was produced in discovery and claimed by Wackenhut to be the only weapon used in the beating, two lock shanks were found in the "bowling alley," indicating that the inmates passed two locks through the crash gate. The second lock was never produced; thus, the jury was entitled to presume that Wackenhut intentionally destroyed this evidence as well to lessen its liability. These cover-up attempts show "intentional malice, trickery, and deceit." Bennett, 242 S.W.3d at 903.

Punitive damages are intended to punish and deter tortious conduct through the civil justice system. Id. However, Wackenhut's conduct also implicates another important and basic policy underlying punitive damages--"preserving the integrity of [our] courts and the rule of law." Id. By spoliating evidence, Wackenhut attempted to "undermine Texas's civil justice system itself." Id. We find that Wackenhut's conduct was clearly reprehensible and, frankly, constituted a disgusting display of disrespect for the welfare of others and for this State's civil justice system.

B. Disparity Between the Harm or Potential Harm Suffered and the Punitive Damages Award

The second "guidepost" is the "disparity between the harm or potential harm suffered and the punitive damages award." Gore, 517 U.S. at 575. Wackenhut argues that we must compare the award of zero damages to Gregorio's estate or, in the alternative, the trial court's meager award of $7,511 for funeral and EMS expenses, with the award of $20.5 million in punitive damages. Under this theory of the case, Wackenhut asserts that the award of punitive damages is more than 2,633 times the amount of actual damages.

Wackenhut concedes that there is no "bright-line" ratio that will automatically violate due process, but it cites Tony Gullo Motors I, L.P. v. Chapa, where the Texas Supreme Court stated that "'few awards exceeding a single-digit ratio . . . will satisfy due process.'" 212 S.W.3d at 308 (quoting Campbell, 538 U.S. at 425). Wackenhut argues that "'four times the amount of compensatory damages might be close to the line of constitutional impropriety.'" Id. (quoting Campbell, 538 U.S. at 425). In response, the family argues that the second "guidepost" must be determined not only with respect to the actual damages awarded, but with respect to the gravity of the misconduct and the potential harm to both Gregorio and his family. We agree.

The proper inquiry is "'whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually has occurred.'" Gore, 517 U.S. at 581 (quoting TXO Prod. Co. v. Alliance Res. Corp., 509 U.S. 443, 459 (1993) (emphasis in original). In Gore, the Court noted that it had "consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award." Id. at 582 (emphasis added). "Indeed, low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages." Id. For example, "[a] higher ratio may . . . be justified in cases in which the injury is hard to detect or the monetary value of noneconomic harm might have been difficult to determine." Id. The precise amount of the award that is constitutionally permissible necessarily must be judged in light of the defendant's conduct and the actual or potential harm to the plaintiffs. Campbell, 538 U.S. at 425; Bennett, 242 S.W.3d at 905; Baribeau v. Gustafson, 107 S.W.3d 52, 64 (Tex. App.-San Antonio 2003, pet. denied) ("This argument is that the punishment should not fit the conduct, but instead should only fit the damages awarded. Instead, we believe that the penalty should fit the gravity of the misconduct, not simply the actual damages awarded by a jury."). Even where a plaintiff is precluded by law from recovering actual damages against the defendant, Texas courts have held that the failure to recover actual damages does not necessarily result in a finding that an award of exemplary damages is constitutionally infirm. See Universal Servs. Co., Inc. v. Ung, 882 S.W.2d 460, 464 (Tex. App.-Houston [14th Dist.] 1994) (holding that award of exemplary damages was not necessarily excessive because the jury failed to award actual damages in worker's compensation case because actual damages were statutorily prohibited), rev'd on other grounds, 904 S.W.2d 638 (Tex. 1995) (citing Wright v. Gifford-Hill & Co., 725 S.W.2d 712, 714 (Tex. 1987)).

The damages question asked the jury to award damages to Gregorio's estate for (1) physical pain in the past, (2) mental anguish in the past, and (3) disfigurement in the past. Without a doubt, these elements of damages are difficult for juries to calculate, particularly when the person injured is deceased and cannot testify to his own pain and suffering and mental anguish. The jury awarded zero damages for these elements.

We presume that the jury declined to award these damages because the testimony at trial indicated that Gregorio was rendered completely incapacitated upon the first hit with the sock containing the lock. At trial, Officer Cortez testified that he believed that the first hit with the sock knocked Gregorio out because he did not fight back. Officer Hernandez saw the incident, and he reported that after the sock hit Gregorio, he did not fight back.

Dr. Sims, the emergency room doctor who examined Gregorio when he was first brought to the hospital, testified that Gregorio did not appear to be in a lot of pain. Sims stated that Gregorio "may have been a little bit dulled mentally by his--by the seriousness of his acute injury, and he wasn't in pain like a kidney stone patient is in pain, like a gallstone patient is in pain." Sims "presumed" he was in some pain, but could not quantify the amount. Sims also testified that he "could not comment," as a doctor, on whether Gregorio appeared "scared." His "common sense" opinion was that he did not recall that Gregorio looked scared; rather, his appearance was "of someone who was injured." He testified that when a person's blood pressure is beginning to drop, as Gregorio's was, "one may be sort of dulled in a sense that the normal human emotions that one might expect in a certain situation may not be all that evident."

Given that we must consider not only the actual damages the jury awarded, but also the difficulty of calculating particular types of damages and the potential injury to the plaintiff, we hold that Gregorio's death certainly justifies a higher ratio of punitive damages than in a typical case involving only economic damages. Gore, 517 U.S. at 582; Malone, 972 S.W.2d at 46 ("Conduct that endangers a person's health or safety merits more punishment than purely economic harm.); see USA Truck, Inc., 189 S.W.3d at 911. Moreover, Wackenhut should not be permitted to complain that the award is excessive because its victim did not suffer "actual damages," given that its egregious conduct caused an injury so severe and immediate that the victim was rendered senseless and thereby unable to feel the pain and suffering and mental anguish that would logically result from the conduct. See Gore, 517 U.S. at 582.

Even so, in wrongful death actions, when considering the ratio of punitive damages to the actual injury, Texas courts have taken into account (1) the actual damages awarded to the deceased through a survival action, (2) the damages awarded to the wrongful death beneficiaries, and (3) the extent to which a maliciously caused death offends a public sense of justice. See Armstrong v. Randle, 881 S.W.2d 53, 59 (Tex. App.-Texarkana 1994, writ denied); Mo. Pac. R.R. Co. v. Lemon, 861 S.W.2d 501, 526 (Tex. App.-Houston [14th Dist.] 1993, writ dism'd by agr.) ("The jury had many intangible factors to consider in trying to put a price on the loss of human life. The life of a wife, mother, daughter whom the evidence showed was dearly loved and sorely missed."). If we consider the damages awarded to Gregorio's children, a total of $12 million, the ratio of punitive damages to actual damages is less than 2 to 1 with respect to the award against Wackenhut, and less than 1 to 1 with respect to the award against Warden Forrest. These ratios are well within constitutional limits. Malone, 972 S.W.2d at 46-47. (62) Moreover, Wackenhut's conduct in maliciously causing Gregorio's death and thereafter spoliating critical evidence so offends this Court's sense of justice that a high ratio is warranted. Bennet, 242 S.W.3d at 904-05; Armstrong, 881 S.W.2d at 59.

C. The Civil Penalties Authorized or Imposed in Comparable Cases

Finally, we must consider "the civil penalties authorized or imposed in comparable cases." Gore, 517 U.S. at 575; Malone, 972 S.W.2d at 47. The Texas Supreme Court has noted that actions for personal injury or death do not lend themselves to a comparison with statutory penalties. Malone, 972 S.W.2d at 47. In these circumstances, the supreme court has held that "judicial decisions at the time of the misconduct are also relevant under Gore's third prong to ascertain whether a defendant had notice that its misconduct could subject it to a large punitive damages award." Id.

The underlying concern in a substantive due process analysis of a punitive damages award is ensuring that the award of punitive damages is reasonable in relation to the State's legitimate interest in punishing unlawful conduct and in deterring its repetition. Gore, 517 U.S. at 568. The purpose, as Justice O'Connor explained, of ensuring fair notice of the penalty's severity is so that the defendant can structure his conduct to avoid the penalty. See Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 59 (1991) (O'Connor, J., dissenting).

Wackenhut claims that at the most, only four times the amount of actual damages (four times $7,511 or $30,204) should be awarded, as this constitutes the outer boundary of constitutional awards of punitive damages. See Tony Gullo Motors, 212 S.W.3d at 308. However, Wackenhut ignores the Texas Supreme Court's holding that wrongful death cases do not involve the same concerns as, for example, a claim under the DTPA that may allow for double, treble, or quadruple damages. Malone, 972 S.W.2d at 47. Wackenhut's conduct leading to Gregorio's death occurred in April 2001. Prior to that date, the law was well established, by statute and by judicial opinion, that punitive damages could be awarded in survival and wrongful death actions. Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3295 (current version at Tex. Civ. Prac. & Rem. Code Ann. § 71.009 (Vernon 2008)); Hofer v. Lavender, 679 S.W.2d 470, 473 (Tex. 1984) (cause of action for exemplary damages survives death of injured party); see also Malone, 972 S.W.2d at 47 (noting that defendant knew that law provided it could be punished for its conduct through an award of punitive damages.). Wackenhut likewise should have been aware from the relevant case law that calculations of punitive damages included the injuries sustained by both the person injured and by derivative plaintiffs. See Tex. Civ. Prac. & Rem. Code Ann. § 41.001(1) (definition of "claimant" includes both decedent and wrongful death beneficiaries); Gen. Chem. Corp., 852 S.W.2d at 923; Geisler, 9 S.W.3d at 169; Armstrong, 881 S.W.2d at 59; Lemon, 861 S.W.2d at 526. Most importantly, Wackenhut was aware that actions taken maliciously, recklessly, or with gross negligence that resulted in the injury or death of an individual could be punished with a large award of punitive damages. See Horizon/CMS Healthcare Corporation v. Auld, 34 S.W.3d 887, 891 (Tex. 2000) (noting that a jury awarded $90 million in exemplary damages to a plaintiff injured in nursing home through gross negligence of nursing home, which was capped at over $9,000,000, and affirmed by the Texas Supreme Court); Geisler, 9 S.W.3d at 170 (affirming an award of almost $3 million in punitive damages to decedent's estate in survival action); N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 920 (Tex. App.-Corpus Christi 1999, pet. denied) (affirming an award of $1.3 million in punitive damages to decedent's estate in survival action). Given the horrific facts of this case, including Wackenhut's malicious and grossly negligent conduct, the gruesome manner in which Gregorio was killed, and Wackenhut's behavior in attempting to cover up its liability, we hold that all three of the guideposts under Gore support the award of punitive damages in this case, which does not violate due process. We overrule Wackenhut's fifth issue and affirm the award of punitive damages.

X. Conclusion

Because we find that Gregorio, Sr.'s estate lacked standing to recover wrongful death damages, we reverse the award of $5 million to the estate and render judgment dismissing the estate's claim for lack of subject-matter jurisdiction. We also reverse the trial court's award of $7,000 for funeral expenses. Having overruled all of Wackenhut's other issues, we affirm the remainder of the judgment.

________________________________

GINA M. BENAVIDES,

Justice

Opinion delivered and filed this

the 2nd day of April, 2009.

1. The appellees in this case, who were the plaintiffs below, are: (1) Catalina de la Rosa, Sr., who is Gregorio's mother, individually and on behalf of Gregorio's estate; (2) Gregorio de la Rosa, Sr., who was Gregorio's father and who is now deceased; and (3) Cynthia de la Rosa, who is Gregorio's widow, as guardian and next friend of Gregorio's children--Catalina de la Rosa, Jr., Cynthia Deanna de la Rosa, Jr., and Priscilla de la Rosa. Gregorio's widow also sought recovery below on her own behalf. The jury refused to award her damages. She has not appealed that award. Accordingly, in this proceeding, she only appears in a representative capacity on behalf of her minor children.

2. The family presented several theories of liability, several of which, as is explained by our analysis of the issues in this case, need not be discussed in detail. Because the trial transcript is very long and tedious, and so many theories of liability were presented, we will discuss generally the facts surrounding the incident here and will note the additional theories without including all the details. See Tex. R. App. P. 47.1.

3. Officer Hernandez testified at trial. In addition, the family played a videotaped interview of Officer Hernandez taken by the Office of Inspector General shortly after the incident. Officer Hernandez's testimony is drawn from that video and his trial testimony.

4.
Apparently, "pill call" is when the inmates are allowed to leave the housing facility and go to the support building to receive medicine.

5. It was undisputed at trial that neither Equia nor Sanchez were searched.

6.
Only one lock was produced at trial. However, the evidence showed that two lock shanks were discovered at the scene. Officer Juan Cortez testified that after the attack, Wackenhut personnel brought the sock inside and discovered that it contained three locks and two small aluminum cans of food inside. The family theorized that there were two locks, and possibly more, used in the attack, and the other locks were lost or destroyed by Wackenhut.

7.
"Central Control" is the facility's command center and is located at the end of the "bowling alley" in the support building. It is a secure area that houses the facility's keys, different types of weapons or "use-of-force" equipment, video equipment, and the controls for all of the doors to the facility. Two officers are regularly stationed there, and their duties are to control the facility's doors, issue equipment to the officers, manage the video equipment, and respond to radio and phones.

8.
Major Steve Sangster further testified that Gregorio was basically knocked out when he was hit on the head with the lock, and thereafter, Gregorio could not defend himself. Major Sangster testified that if Equia and Sanchez had not passed through the crash gate with the lock, Gregorio would have had a better chance of defending himself.

9.
One of the family's main theories at trial was that Wackenhut's officers unreasonably delayed in stopping the fight and in providing medical attention, which was readily available, to Gregorio. Officer Hernandez testified that he immediately called a "code black," which is the code called over the officers' handheld radios notifying them that a fight is in progress. He testified that he attempted to separate the other inmates from the fighting inmates and ordered Equia and Sanchez to stop the attack. At first, they did not stop. Eventually, Equia stopped and laid down on the ground, but Sanchez had to be restrained by another officer. Warden Forrest testified that the fight only lasted approximately thirty seconds, and medical personnel were immediately called to the scene. Warden Forrest testified that Officer Hernandez's actions were appropriate, and an officer should not intervene in an inmate-on-inmate fight until another support officer arrives to assist.

Wackenhut's expert, Gary Johnson, agreed that if officers allowed a fight to last more than five minutes, that would constitute negligence. Officer Cortez testified when the fight started, he saw Officer Hernandez turn his back on the fight. Officer Cortez pushed a button outside the door to the "bowling alley" so that Central Control would allow him outside to stop the fight. The Central Control officer told him "no," and "it's none of your business." He presumed that the Central Control officer did not open the doors to let him out because she was under orders not to let anyone out. Had the officer opened the door, Officer Cortez testified that he would have gone out and stopped the fight himself, and he could have done so in less than a minute. He asserted that when inmates get in a fight, typically all an officer had to do was order them to stop, and they would stop. For this reason, he could have stopped the fight had he been allowed out of the door. If the inmates disobeyed the order, he would have personally intervened and would not have waited for any back up if it appeared that Gregorio was in imminent danger of death.

10. Wackenhut asserted that Marroquin was not present that day. It introduced employment applications that were dated after April 26, 2001. Marroquin, however, testified that she was allowed to work as a substitute teacher in the education department before she formally applied for a position at Wackenhut because Wackenhut was short-staffed.

11.
Marroquin also claimed that she implored the guards to go outside and help, but Officer Cortez told her that Central Control would not let them outside until more guards arrived. Although this was apparently the explanation given to her and to Officer Cortez, Marroquin stated that there were three guards outside who were standing around watching the fight. She believed that the number of officers was sufficient for a safe intervention. She also testified that it took medical personnel an hour to get to the scene after the fight ended. Finally, Marroquin testified that on occasion the guards would take payment from the inmates to allow a fight to happen. She believed that the guards stood around and did not intervene because they had been paid off.

12.
Texas Ranger Rudy Jaramillo assisted with the incident investigation. He stated that the only videotapes turned over to the investigators were the "use of force" videos, which showed the officers restraining Equia and Sanchez after the fight and taking them to the medical department. One videotape showing the use of force by the officers had been partially erased. Ranger Jaramillo admitted that he relied on Warden Forrest to hand over the videotapes and did not conduct an independent investigation into whether any other tapes existed.

13.
Even though the family filed numerous motions for default judgment arguing that Wackenhut was still hiding evidence, the trial court did not grant any of these motions. Instead, the court instructed the jury that Wackenhut spoliated evidence, as follows:

You, the jury, are instructed that Wackenhut Corrections Corporation and Warden David Forrest destroyed, lost, or failed to produce to this Court material evidence that by law should have been produced as evidence for your deliberations. You are further instructed that you may, but are not required to, presume this material evidence is unfavorable to Wackenhut Corrections Corporation and Warden David Forrest.

Wackenhut has not challenged the trial court's decision to give a spoliation instruction.

14. We will address Wackenhut's twelve issues out of order, for convenience.

15.
The initial instructions to the jury contained definitions pertinent to the entire charge. These included the following:

"Negligence" with respect to Wackenhut Corrections Corporation and Warden David Forrest means failure to use ordinary care, that is, failing to do that which a jailor of ordinary prudence would have done under the same or similar circumstances or doing that which a jailor of ordinary prudence would not have done under the same or similar circumstances.

"Ordinary care" with respect to Wackenhut Corrections Corporation and Warden David Forrest means that degree of care that would be used by a jailor of ordinary prudence under the same or similar circumstances.

16.
Analyzing the charge complaints has been made exceedingly complex due to the record's lack of clarity. On September 14 and 15, 2006, while the trial was ongoing, the trial court held a hearing on the record where the parties discussed their disagreements about the charge. At first, the parties appeared to believe this hearing constituted an informal charge conference during which both parties would attempt to assist the court in crafting the charge. Shortly after beginning the hearing, however, the trial court made it clear that it considered this hearing to be the "formal" charge conference. Due to the numerous disagreements between counsel regarding the charge, this "formal" charge conference was nothing short of chaotic. For example, the trial court interspersed a few of its rulings during the parties' arguments, but it reserved many of its rulings until the end of the hearing, by which time the parties and the court apparently became confused about what rulings had been made or had yet to be made. This resulted in more discussions with the court about issues that one party or the other understood to be previously determined. With that background, and with much chagrin, we proceed to determine whether Wackenhut preserved its complaints about what ultimately became the final charge.

17.
The questions in Charge Exhibit 2 were labeled alphabetically; however, the final charge was labeled numerically. Question A was the general negligence question without any additional instructions, which ultimately became Question 1 in the jury charge. Question D was the general negligence question with the "assumed duty" instructions, which ultimately became Question 2 in the final charge. Question E was the general negligence question with the "failure to control" instructions, which ultimately became Question 3 in the formal charge. This discrepancy in labeling has made our analysis quite complex. For ease of reference, we will refer to the numbers used in the final charge to identify the questions we are discussing.

18.
We will refer to these arguments as the "TDCJ policy" arguments.

19.
This instruction was crafted by Wackenhut by cherry picking language from federal case law analyzing the Eighth Amendment's prohibition on cruel and unusual punishment. See Whitley v. Albers, 475 U.S. 312, 321 (1986) (analyzing cruel and unusual punishment claims); Adames v. Perez, 331 F.3d 508, 512 (5th Cir. 2003) (same); 5th Cir. Pattern Jury Instructions 10.5 (2006) (providing excessive force instructions).

20.
See Tex. Gov't Code Ann. § 497.096 (Vernon 2004). That section provides:

An employee of the Texas Department of Criminal Justice, sheriff, employee of a sheriff's department, county commissioner, county employee, county judge, employee of a community corrections and supervision department, restitution center, or officer or employee of a political subdivision other than a county is not liable for damages arising from an act or failure to act in connection with community service performed by an inmate imprisoned in a facility operated by the department or in connection with an inmate or offender programmatic or nonprogrammatic activity, including work, community service, educational, and treatment activities, if the act or failure to act was not intentional, wilfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others.

Id.

21.
We will refer to this as the "Government Code" instruction.

22.
The family cites In re W.J.H., 111 S.W.3d 707, 711 (Tex. App.-Fort Worth 2003, pet. denied), arguing that a party who jointly drafts a charge and apparently agrees cannot appeal problems it later asserts with the charge. It is true that the Fort Worth Court of Appeals considered the fact that the appellant assisted in drafting the charge and also apparently agreed to its contents. Id. However, the court also held that any error was waived because the appellant did not object or request any different language in the charge. Id. Thus, the court's decision that the error was waived was based on the failure to properly raise the issue with the trial court and the apparent agreement. Id. Here, Wackenhut specifically stated that it was not waiving its objections to the liability questions in the charge.

23. Cf. Hoffman-La Roche, Inc. v. Zeltwanger, 69 S.W.3d 634, 652-53 (Tex. App.-Corpus Christi 2002) (holding that merely submitting a question to the court as part of an en masse request is not sufficient unless the record also showed that the question was otherwise called to the trial court's attention), rev'd on other grounds, 144 S.W.3d 438 (Tex. 2004); Nat'l Fire Ins. Co. of Pittsburgh, Pa. v. Valero Energy Corp., 777 S.W.2d 501, 508 (Tex. App.--Corpus Christi 1989, writ denied) ("The court should not be required to pick through appellant's own tendered issues to construct an instruction to conform to an issue actually submitted; this is the responsibility of the party complaining that a necessary instruction is missing from the court's charge.").

24.
Because we have held that Wackenhut waived its arguments with respect to the liability questions, we need not address the family's argument that no error is shown because the general negligence instructions correctly set out the applicable law. Tex. R. App. P. 47.1.

25.
Specifically, for example, Wackenhut argues that assuming that Question 1 was properly submitted but Questions 2 or 3 were not, it was harmed because Question 4 (the apportionment question) was conditioned on an affirmative answer to the liability Questions 1, 2, or 3.

26.
In its seventh issue, Wackenhut argues that the liability questions are not supported by legally or factually sufficient evidence. Ordinarily, we would first assess the legal sufficiency challenge to the liability questions, as this is a rendition issue instead of a remand issue. However, in the interest of brevity, and because we agree with the family that Wackenhut waived its eighth issue, we will address issue eight first. Because issue eight has been waived, if any one of the liability theories is supported by legally and factually sufficient evidence, the judgment may be affirmed on that theory. See Harris County v. Smith, 96 S.W.3d 230, 232 (Tex. 2002) (holding that where broad-form objection is not preserved, legal sufficiency challenge is limited to the verdict as a whole) (discussing Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex. 1995)).

27.
Wackenhut further argues that the malice and gross negligence question (Question 12) was conditioned on an affirmative finding in Questions 1, 2, or 3, and the exemplary damage questions (Questions 13 and 14) were conditioned on an affirmative answer to the malice and gross negligence question. Wackenhut does not challenge the form of the gross negligence and malice or exemplary damages questions. Although Wackenhut's statement of issues asserts, as its ninth issue, that the malice and gross negligence findings were not supported by legally and factually sufficient evidence, Wackenhut did not brief this issue. See Tex. R. App. P. 38.1(i). Accordingly, we do not address Wackenhut's ninth issue.

28.
Likewise, Wackenhut never alerted the trial court that the malice, gross negligence, or exemplary damages questions were improperly conditioned on invalid theories.

29.
Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000).

30.
See Smith, 96 S.W.3d at 234.

31.
As the supreme court explained,

[i]mportant prudential considerations underscore our rules on preservation. Requiring parties to raise complaints at trial conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds. In addition, our preservation rules promote fairness among litigants. A party "should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time." Moreover, we further the goal of accuracy in judicial decision-making when lower courts have the opportunity to first consider and rule on error. Not only do the parties have the opportunity to develop and refine their arguments, but we have the benefit of other judicial review to focus and further analyze the questions at issue. Accordingly, we follow our procedural rules, which bar review of this complaint, unless a recognized exception exists.

In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (citations omitted). These considerations underscore the court's holding in Payne, where the court held that the ultimate test is whether the trial court understood and ruled on the complaints. State Dep't of Highways v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). We find these considerations to be particularly relevant to this case.

32.
First, the family asserted that Wackenhut should have called the ambulance sooner, and if it had, Gregorio would have survived the attack. Second, the family asserted that Wackenhut unreasonably delayed in stopping the assault that caused Gregorio's death. Third, the family claimed that Wackenhut negligently failed to search the attackers at the crash gate, that a search would have uncovered the lock that was used to kill Gregorio, and that a search would have prevented Gregorio's death. Fourth, the family claimed that Wackenhut's sale of locks to inmates was negligent and that had Wackenhut not sold locks to the inmates, Gregorio's death would not have occurred. Finally, the family asserted that Wackenhut was aware that Equia was a dangerous inmate who had previously been involved in a fight and negligently failed to control him.

33.
We note that Wackenhut does not cite a single case to support its argument that expert testimony is required to prove a prison's negligence because the prison environment is outside the common knowledge of a lay person.

34.
See, e.g., Medina v. Hart, 240 S.W.3d 16, 24 (Tex. App.-Corpus Christi 2007, pet. denied) (holding that defendant doctor admitted standard of care and only issue of fact for jury was whether, as a factual matter, breach occurred).

35.
Wackenhut does not challenge the trial court's admission of Warden Forrest's testimony for all purposes.

36.
See Browning v. Graves, 152 S.W.2d 515, 518 (Tex. Civ. App.-Fort Worth 1941, writ ref'd) ("[I]t is conceded that it is the duty of the officer to use all reasonable efforts to protect his prisoner from harm while in his custody . . . .").

37.
Id. at 519 ("It is undeniably true that the prisoners in cell or tank No. 1 did possess weapons referred to by the witnesses as blackjacks which could be used for the infliction of serious injuries.").

38.
Id. ("[I]t is not unreasonable to assume that the prisoners would again make and possess [the weapons] . . . .").

39.
Id. ("[The officer] had not searched the compartment for a week or ten days prior to Graves' death.").

40.
Id. ("If a jailer whose duty it was to care for and protect his prisoners from harm, would have, in the exercise of ordinary care, discovered the presence of these weapons and removed them, and thus prevent the tragedy that resulted in Graves' death, he, with his principal, the sheriff, would be responsible in damages for having failed.").

41.
We note that, once again, Wackenhut has switched its tactics. During the charge conference, Wackenhut requested that the court instruct the jury that the TDCJ policies constituted the applicable standard of care. Now, it disputes that a breach of these policies can constitute evidence of negligence.

42. At the time, the statute provided:

All causes of action upon which suit . . . may hereafter be brought . . . for injuries resulting in death . . . shall not abate by reason of the death of the person against whom such cause of action shall have accrued, nor by reason of the death of such injured person, but, in the case of the death of either or both, all such causes of action shall survive to and in favor of the heirs and legal representatives and estate of such injured party . . . .

Huntington v. Walker's Austex Chili Co., 285 S.W.2d 255, 257 (Tex. Civ. App.-Waco 1955, writ ref'd).

43.
It provides:

(a) A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury.

(b) A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person. The action survives against the liable person and the person's legal representatives.

(c) The suit may be instituted and prosecuted as if the liable person were alive.

Tex. Civ. Prac. & Rem. Code Ann. § 71.021 (Vernon 2009).

44.
Wackenhut also challenged the award to Gregorio, Sr.'s estate, but we need not address these arguments because we have already held that the estate did not have standing. See Tex. R. App. P. 47.1.

45.
Although Wackenhut argues that generally a person will suffer more intense mental anguish soon after the death of a family member and the pain will ease over time, we disagree that this general principle necessarily applies to all children who have lost a parent. Any parent knows that children process emotional events differently than adults do--often times, in a manner that is illogical and incomprehensible to their adult caretakers. Thus, what may seem like common sense to an adult is not necessarily true when applied to a child. We think it is entirely reasonable that a small child, too young to understand the loss of the parent at the time of death, would suffer more from that loss later in life when they are more able to understand the loss.

46. Although Wackenhut argues that mental anguish damages should be denied because the children did not visit Gregorio in prison, we decline to so hold. The evidence shows that Gregorio refused the visit, not because he did not want to see his children, but because he did not want his children to see him in the prison environment
--a position that we do not regard as avoidance of responsibility.

47.
Wackenhut cites Southwestern Bell Telephone Company v. Delanney, arguing that the failure to secure a jury finding on these damages waived the family's right to recover them. 809 S.W.2d 493, 495 (Tex. 1991). It also cites Walsh v. Hershey for the same proposition. 472 S.W.2d 954, 958 (Tex. Civ. App.-Fort Worth 1971, writ ref'd n.r.e.). We disagree that the family waived its right to recover these damages by withdrawing its questions on these damages in response to Wackenhut's objections at the charge conference. If the evidence conclusively established these damages, there was no need for a question asking the jury to resolve a fact issue. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1970); GuideOne Lloyds Ins. Co. v. First Baptist Church of Bedford, 268 S.W.3d 822, 834 (Tex. App.-Fort Worth 2008, no pet.); Scott v. Sebree, 986 S.W.2d 364, 370 (Tex. App.-Austin 1999, pet. denied) ("Scott did not request the submission of jury questions on these issues, however, so we are authorized to render judgment that he recover those amounts only if the record contains conclusive proof of their reasonableness and necessity."). Neither Delanney nor Walsh involved this situation. See Delaney, 809 S.W.2d at 495; Walsh, 472 S.W.2d at 958 ("The evidence in this case does not establish as a matter of law the reasonable cost of future medical expense Lisa Walsh will in reasonable probability incur after she is twenty-one.").

48. Wackenhut relies on the current version of the Texas Civil Practice and Remedies Code. The family, however, correctly points out that the 1995 version of section 41.004 applies to this case, which was filed on August 29, 2001. See Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 13.05, 23.02(d), 2003 Tex. Sess. Law Serv. 847, 888, 898 (stating that the prior version applied to cases on file prior to the effective date). Accordingly, all further references herein are to the 1995 version of the civil practice and remedies code
.

49. Gregorio's mother, Catalina, Sr., was awarded $10 million in mental anguish and loss of companionship and society damages. Combining her damage awards with the other wrongful death beneficiaries' awards to determine the amount of punitive damages available to Gregorio's estate would violate the Texas Constitution. In General Chemical Corp. v. De la Lastra, the Texas Supreme Court faced a similar issue where a decedent's estate sought recovery of exemplary damages. 852 S.W.2d 916, 923 (Tex. 1993). The decedent's parents brought a wrongful death action along with the survival action, and the trial court combined the actual damages awarded to both the decedent's estate and to the parents in calculating the punitive damage cap. Id. at 922. However, the Texas Constitution prohibits recovery of punitive damages by a deceased's parent. See id. at 922-23 (citing Tex. Const. art. XVI, § 26 (limiting class of persons who can recover exemplary damages for wrongful death)). Thus, the supreme court was called upon to consider whether the constitution prohibited inclusion of the parent's actual damages award in calculating the damages cap. Id. The court held that it did. Id.

50.
Justice Baker's concurrence in Utts v. Short questioned Drilex's correctness. 81 S.W.3d 822, 833 (Tex. 2002) (Baker, J., concurring). However, Drilex has not been overruled and remains the law.

51.
At the time, chapter 33 defined "claimant" as:

a party seeking recovery of damages pursuant to the provisions of Section 33.001, including a plaintiff, counterclaimant, cross-claimant, or third-party plaintiff seeking recovery of damages. In an action in which a party seeks recovery of damages for injury to another person, damage to the property of another person, death of another person, or other harm to another person, "claimant" includes both that other person and the party seeking recovery of damages pursuant to the provisions of Section 33.001.

Act of May 4, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 Tex. Sess. Law Serv. 971, 973 (Vernon), amended by Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 4.05, 4.10(3), 2003 Tex. Sess. Law Serv. 847, 856, 859 (Vernon) (codified as Tex. Civ. Prac. & Rem. Code Ann. § 33.011(1)).

52.
Wackenhut cites our decision in Adolph Coors Co. v. Rodriguez, arguing that when a jury makes findings that a defendant caused actual damages to one plaintiff, but not another plaintiff, the plaintiff who did not obtain a finding of actual damages cannot recover exemplary damages. 780 S.W.2d 477, 478-79 (Tex. App.-Corpus Christi 1989, writ denied). That case, however, did not involve a survival and wrongful death action, for which the term "claimant" is defined differently. See id. Thus, Rodriguez is inapplicable and does not require a different outcome.

53. See Act of Apr. 6, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Sess. Law Serv. 108, 110 (Vernon). We note that under the statute's current version, the same result would not obtain because the legislature subsequently deleted the provision allowing plaintiffs to recover exemplary damages based on an award of nominal damages only when the jury finds malice.
Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 13.05, 2003 Tex. Sess. Law Serv. 847, 888 (Vernon).

54.
Wackenhut correctly asserts that the prior, 1995 version of this statute applies to the family's claim. We note, however, that the statutory amendments since 1995 have not altered the damage cap amounts. Compare Act of Apr. 6, 1995, 74th Leg., R.S., ch. 19, § 1, 1995 Tex. Sess. Law Serv. 108, 110 (Vernon), with Act of May 21, 2001, 77th Leg., R.S., ch. 643, § 3, 2001 Tex. Sess. Law Serv. 1136, 1137 (Vernon ); and Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 13.06, 2003 Tex. Sess. Law Serv. 847, 888 (Vernon); and Act of May 17, 2007, 80th Leg., R.S., ch. 593, § 3.03, 2007 Tex. Sess. Law Serv. 1122, 1132 (Vernon).

55. We arrive at this calculation by doubling the award of EMS expenses and adding it to the $750,000 allowed for non-economic damages.
Tex. Civ. Prac. & Rem. Code Ann. § 41.008(b).

56. The caps in that section are applied based on the number of the defendant's employees:

(d) The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses and the amount of punitive damages awarded under this section may not exceed, for each complainant:

(1) $50,000 in the case of a respondent that has fewer than 101 employees;

(2) $100,000 in the case of a respondent that has more than 100 and fewer than 201 employees;

(3) $200,000 in the case of a respondent that has more than 200 and fewer than 501 employees; and

(4) $300,000 in the case of a respondent that has more than 500 employees.

Tex. Labor Code Ann. § 21.2585(d) (Vernon 2006).

57.
Courts have held that a governmental entity does not waive the liability limits under the Texas Tort Claims Act by failing to plead the limits. However, given that the Tort Claims Act is a limited waiver of sovereign immunity from suit, a court's jurisdiction is necessarily limited to the amounts stated in the Tort Claims Act. See, e.g., State Highway Dep't v. Pinner, 531 S.W.2d 851, 858 (Tex. Civ. App.-Beaumont 1975, no writ) (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.023). These cases have no applicability to the present issue, which does not involve a question of subject-matter jurisdiction.

58.
Rule 66 provides:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading, or if during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. The court may grant a postponement to enable the objecting party to meet such evidence.

Tex. R. Civ. P. 66 (emphasis added).

59.
Because of our holding, we need not address the family's arguments that the findings the jury made were sufficient to support a cap-busting theory. See Tex. R. App. P. 47.1.

60.
We note that one element suggested by the Supreme Court, whether "the target of the conduct had financial vulnerability," does not seem particularly appropriate in the context of a survival and wrongful death action. See USA Truck, Inc. v. West, 189 S.W.3d 904, 911 (Tex. App.-Texarkana 2006, pet. denied). We note, however, that Gregorio certainly was vulnerable in the sense that he relied on Wackenhut to ensure his safety as against the other prisoners.

61.
Wackenhut has not challenged the evidence supporting the jury's findings of malice and gross negligence, and it does not dispute that the jury was entitled to consider the spoliation instruction and the evidence of spoliation when awarding punitive damages. See Bennett v. Reynolds, 242 S.W.3d 866, 901 (Tex. App.-Austin 2007, pet. filed) (noting that defendants had not challenged "factual" validity of punitive damage award and noting that jury was instructed it could consider the defendants' "conduct," which included a subsequent cover-up).

62.
We note that in Tony Gullo, the Texas Supreme Court observed that mental anguish damages often contain a punitive element. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 308 (Tex. 2006). In Campbell, on which Tony Gullo relied, the United States Supreme Court discussed the plaintiffs' award of punitive damages in an action against their insurer for refusing to settle a claim against them within their policy limits and then refusing to pay an excess judgment. State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 413 (2003). The Court noted that the plaintiffs had received $1 million in mental anguish damages, which the Court held likely included a punitive element given that the harm suffered from the conduct was purely economic:

The harm arose from a transaction in the economic realm, not from some physical assault or trauma; there were no physical injuries; and State Farm paid the excess verdict before the complaint was filed, so the Campbells suffered only minor economic injuries for the 18-month period in which State Farm refused to resolve the claim against them. The compensatory damages for the injury suffered here, moreover, likely were based on a component which was duplicated in the punitive award.

Id. (emphasis added). First, Wackenhut does not argue that the punitive damages should not be judged with reference to the awards to Gregorio's children because these awards may contain a punitive element. Second, we do not believe that the statements in Tony Gullo or Campbell were intended to imply that a plaintiff's recovery for mental anguish damages always includes a punitive element. We have already reviewed the awards to Gregorio's children and have determined they were supported by legally and factually sufficient evidence and were not excessive.

CCPD Officer David Mendoza: "If the student would have been swinging, I probably would have shot him"

2008-11-23T03:49:00.000-08:00

HOT OFF THE PRESSES: REFUGIO, TEXAS

DISABLED CHILD RECEIVED SEVERE PADDLING: INJURY TO A CHILD BY ASSISTANT PRINCIPAL RIOS?

WRITTEN BY HOMERO VILLARREAL

In the small historic town of Refugio, Texas there is trouble that could put them in the history books for a very different reason: Suspicion of repeat child abuse through corporal punishment by Assistant Principal Rios. El Defenzor, through its several day investigation has uncovered that law enforcement, hospital personnel, including Dr. Pierce, and school officials of Refugio may have intentionally or negligently delayed a priority one Child Protective Services report which is mandatory for each of these entities to do and has caused an uproar at South Texas CPS facilities.

Confidential sources in the know with the Child Protective Services Department have revealed that 72 hours went by before CPS were informed of the extent of the child’s injuries and the severe injuries to a disabled child were downplayed as a spanking by principal and superior to Joe Rios, Mrs. Lara. These injuries included multiple bruising and elevated welts that left the child reportedly in excruciating pain, severe back pain and cost him a visit to an emergency room. CPS department sources which remain anonymous indicated that the CPS investigators were in a rage that the full extent of the injuries had not been reported by all three entitie: The School, The Hospital and Law Enforcement until a local TV station broke the story. Curiously it was only then that the mother's cries for help received full attention from all of the above Refugio institutions.

What about the student who was tasered by the CCPD Officer David Mendoza?

Look into the facts and not the sensationalized news reported by local media who never spoke to school officials or witnesses to the incident. CCPD Chief Bryan Smit said, "In this case the taser worked beautifully". Officer Mendoza boldly asserted his actions as per CCPD Policy and when questioned by the parent as to if the student was swinging, physically aggressive or a threat to the officer the students or the faculty with the audacity only a fool would mount he said to the Parent, "If he would have been swinging, I probably would have shot him". Will El Defensor investigate? Chief Smith has assured the Family that this incident will be investigated by Internal Affairs however noting the allegations and other information one must question the objectivity of this safeguard division. Chief Smith also agreed to involve the FBI in this investigation as well. There has been no indication of any investigation being conducted as school officials and witnesses inform us that there has been no contact.

Reportedly, the child’s mother did not realize that when she consented to one “lick” in lieu of having her son lose out on several days of suspension for a small altercation with another child, it would lead to physical injuries so substantial that 5 days later, welts and bruises remain and the child remains in pain and reportedly withdrawn and having night terrors.

The mother was quoted as saying, “ Principal Rios should pay for what he did. No child should have to go through that. There is a big difference between a spanking and a brutal beating. That’s what happened here. Assistant Principal Jose Rios should not be near children. Any parent doing that would be in jail right now. He told me at the beginning of the year he knew how to straighten out my son and I told him he had special needs and to let Principal Lara who was familiar with my son's disabilities handle it. Rios did it his way and look what happened. You trust these people to do the right thing and now my son is beaten so severely he can barely sit down days afterward. I discipline my children with or without spankings but you don't leave bruises, welts and damage like this. Principal Rios went crazy on my son. I demand justice for my son. Rios' apologies don't take back the physical child abuse which has happened here."

Corpus Christi Attorneys, for the boy and the mother spoke for the family in front of the major TV networks here in South Texas and echoed the mothers concern, “ This young man was beaten not spanked. There is an old saying, ‘if you hit a man it is assault, if you hit a woman it’s domestic violence, but if you hit a child it’s for their own good.' We need to look at that belief and decide when justified physical discipline becomes brutality. Here we think abuse occurred and injury to a child. Even, the school board and superintendent have not put a restraint level on how many times a child can be struck and leaves much discretion to the person administering corporal punishment and abuse and must be addressed.”

Texas is but a dozen or so states that still allows “spanking” in the schools and leaves it to the discretion of the school board on how to administer the corporal punishment. Many researchers have shown that spankings are controversial and may lead to further aggression and violence, particularly in young men. El Defenzor’s investigation reveals that the young man is named Andy, is 10 years old, four and a half feet tall and weighs about 55 pounds and the principal who gave the “three licks” is about 5’10” and over 200 pounds and was known as Coach Rios before he become assistant principal Rios at the elementary level.

Two citizens of Refugio spoke to us under anonymity and were quoted as saying, “This is not the first time parents have complained about “Coach Rios”. He hit some kids at the high school level with complaints following the beatings, but now he’s gone too far and severely beat a child that we hear is disabled and the police are dragging their feet. I guarantee if it had been a white kid with special disabilities they would never have been touched in this town. He brought his style of discipline from the high school down to the elementary school. You are not paddling 150 pound freshman football players. This was a 10 year old boy that weighed 55 pounds and we saw the result on his behind all over the news. It’s a disgrace to the Refugio school system and it looks bad on the doctors and nurses and teachers and the police who didn’t report it to CPS correctly and officially for 3 days. It took pictures on TV to make them follow the book and not sweep it under the rug.”

Refugio School Board policy is very vague but one thing is certain, the amount of force used by Assistant Principal Rios on a disabled child with ADHD, a heart condition and asthma is being seen by many throughout Texas and nationally (CNN possibly investigating) as criminal and felonious injury to a child. At the very least the school knew or should have known that this man was a threat to children because of past complaints and did nothing about Rios or the situation. Even after the mother discovered the welts and brusing and hematomas while young Andy was undressing for his bath the night of the 17th of November of this year, and reported it to police the Refugio officials apparently dragged their feet and are downplaying it as a spanking. Where is the paddle? Why didn't they report it themselves to CPS in that first 24 hours? Instead they gave the mother a card to call CPS which according to research by El Defenzor is against the law by the police officials, hospital personnel including Dr. Pierce and the school officials themselves. Incredulously, the assistant principal 4 days after the event still has not been removed from duty and based on the severe beating given a disabled child should lead CPS to see him as a danger to children.

The mother of the child, Corina Gonzalez, and the attorneys could not be reached for comment but were quoted on TV as saying that this was clear cut abuse, not a paddling. El Defenzor will be continuing this story in a 3 part edition looking into corporal punishment and the behavior of Joe Rios, the Assistant Vice Principal and whether or not he will be charged with injury to a child by the Refugio County District Attorney.

Homero Villarreal posted by HOMERO VILLARREAL

Justice of the Peace Courts' Jurisdiction in Criminal Proceedings "do not include confinement" So Why Are We being Locked Up? Civil Rights Issue?

2008-11-06T21:18:00.000-08:00

Tuesday, February 13, 2007

Justice of the Peace Courts' Jurisdiction in Criminal Proceedings "do not include confinement"

Dear State Representative Solomon P Ortiz Jr.,

As South Texas and HD #33 remain in anticipation of your response to the email communication regarding Texas Education Code 25.093 specifically and the Texas Education Code 25, another issue has been brought to my attention regarding the JP Courts Jurisdiction in Criminal Proceedings that are punishable by fine only

This is the preface of the JP Court illustrated below in the image entitled Court Structure of Texas according to The Official Website of Texas Courts

Court Structure of Texas

And also according to the The Handbook of Texas Online

Justice of the Peace Courts have jurisdiction over criminal offenses that are
punishable by fine only, and over civil cases in which the amount in
controversy is small (not more than $5,000 in 1995). 


CODE OF CRIMINAL PROCEDURE

TITLE 1. CODE OF CRIMINAL PROCEDURE

CHAPTER 1. GENERAL PROVISIONS

Art. 1.051. RIGHT TO REPRESENTATION BY COUNSEL.

(c)  An indigent defendant is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding
that may result in punishment by confinement and in any other
criminal proceeding if the court concludes that the interests of
justice require representation.  Except as otherwise provided by
this subsection, if an indigent defendant is entitled to and
requests appointed counsel and if adversarial judicial proceedings
have been initiated against the defendant, a court or the courts'
designee authorized under Article 26.04 to appoint counsel for
indigent defendants in the county shall appoint counsel as soon as
possible, but not later than the end of the third working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.  In a county with a
population of 250,000 or more, the court or the courts' designee
shall appoint counsel as required by this subsection as soon as
possible, but not later than the end of the first working day after
the date on which the court or the courts' designee receives the
defendant's request for appointment of counsel.

Please note the limitation operatives under Art. 4.11
JURISDICTION OF JUSTICE (JP) COURTS.

"not consisting of confinement or imprisonment"

and

"do not include confinement"


CODE OF CRIMINAL PROCEDURE

CHAPTER 4. COURTS AND CRIMINAL JURISDICTION

Art. 4.11. [60] [106] [96] JURISDICTION OF JUSTICE
COURTS.  (a) Justices of the peace shall have original jurisdiction
in criminal cases:
(1)  punishable by fine only or punishable by:                             
(A)  a fine;  and                                                          
(B)  as authorized by statute, a sanction not consisting of 
confinement or imprisonment;  or
(2)  arising under Chapter 106, Alcoholic Beverage Code,
that do not include confinement as an authorized sanction.
(b)  The fact that a conviction in a justice court has as a
consequence the imposition of a penalty or sanction by an agency or
entity other than the court, such as a denial, suspension, or
revocation of a privilege, does not affect the original
jurisdiction of the justice court.

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722, eff. Jan. 1, 1966.
Amended by Acts 1991, 72nd Leg., ch. 108, Sec. 4, eff. Sept. 1,
1991;  Acts 1995, 74th Leg., ch. 449, Sec. 1, eff. Sept. 1, 1995;
1997, 75th Leg., ch. 533, Sec. 1, eff. Sept. 1, 1997;  Acts 1997,
75th Leg., ch. 1013, Sec. 38, eff. Sept. 1, 1997.

However, the Justice Courts are punishing by confinement.

The Justice Courts are not appointing Attorneys for indigent defendants involved in adversarial judicial proceedings that are resulting in punishment by confinement.

In Nueces County, the Justice of the Peace Judges are not licensed

attorneys nor is the Justice Court a Court of Record Court.

A Court of Record is defined as:

A court in which the proceedings are recorded, transcribed, and maintained as permanent records.
brandonlclark.com/glossary.html

A court whose acts and proceedings are recorded and preserved.
www.courts.mo.gov/osca/index.nsf/0/8b69295b674dde2186256e15004ea27f

In common law jurisdictions, a court of record is a court that keeps permanent records of its proceedings. Judgments of a trial court of record are normally subject to appellate review. In many jurisdictions, all courts are courts of record. In many jurisdictions, courts that have the power to fine or imprison must be courts of record.
en.wikipedia.org/wiki/Court_of_record

There is no recourse.

There is no accountability.

One other issue is the counting of a certain number of tardies as an absence and the absence is counted towards a truancy absence. There is not a provision for this illegal manipulation so as to prosecute. This prosecution under 25.093 and 25.094 can be easily proven if necessary.

To quote a Nueces County District Judge, "Justice Delayed is Justice Denied" as our HD #33 Representative we ask for emergency intervention and reform of this bad law. This is an appeal to you from South Texas. Do we really need to collect letters and signatures for our South Texas Delegation to take immediate action?

Respectfully,

Anton S Haley

1 comments:

Jaime Kenedeño said...: Dixie Chicks Bus Involved In Accident

08/01/2003 7:00 AM, Yahoo! Music
LAUNCH Radio Networks

(8/1/03, 7 a.m. ET) -- The Dixie Chicks' tour bus was rear-ended by a motorist in the early morning hours on Thursday (July 31), outside San Antonio, Texas. Luckily, only Chick Emily Robison was aboard when the accident occurred, and she was not injured.

The luxury coach was parked alongside a busy highway blocking part of a lane when at around 3:30 a.m. driver Larry Cox rammed the back of the bus. Cox claims he took his eyes off the road for only a moment. Police say the bus driver Ross Ellis is partially to blame for the accident, for not pulling his vehicle all the way onto the side of the road.; 6:10 AM

Links to this post

google yourself corpus christi: ... rob eissler,, chuy hinojosa ...

justice of the peace courts' jurisdiction in criminal proceedings "do not include confinement". dear state representative solomon p ortiz jr., as south texas and hd #33 remain in anticipation of your response to the email communication ...

Posted by The Advocate at 3:50 AM

ccisd: justice of the peace courts' jurisdiction in criminal ...

Non Responsive Legislators Who Have Enabled the School Administration to Blame the Parent When They Allow Children in their Custody to Roam At Large

2008-10-25T22:33:00.000-07:00

Corpus Christi Watchdog Authority: "nobody knows Mikal Watts better than Corpus Christi." But does Mikal Watts know us (the people of Corpus Christi)?

Quantum meruit: Ask no more and give no less than honesty, courage, loyalty, generosity, and fairness

Corpus Christi Watchdog Authority: "nobody knows Mikal Watts better than Corpus Christi." But does Mikal Watts know us (the people of Corpus Christi)?

The Kenedy Pasture Company: A Civil Action in the Making?

2007-07-02

A Civil Action in the Making?

Why must we flex our muscles?

Nueces County, CCISD, 105th Judicial District Attorney; how many kids were locked up without an attorney?

There is no excuse for violating the basic human rights afforded under the United States Constitution.
How many kids were locked up by a court of nonrecord?
Not even with a parent's consent unless the parent has been given the opportunity to consult with counsel.
How many children taken into custody were advised of their Miranda Rights?
Oh yeah, Plaisted and every CCISD kid for whom, he provided service

.

What do we want?

Go do some homework, we want responsive representation with transparent operation.

We want to not be railroaded for tardies or for absences when the District does not practice due diligence in interdicting but is very diligent in recording the events and adamantly prosecutes and collects half of the fine. When the people cant pay the kids are picked up from class and taken in handcuffs to the court of nonrecord. The Parent is contacted and ordered to appear immediately. When the Parent arrives he or she is told to pay or your kid goes to jail and sometimes the parent is threatened and / or locked up as well. I have never seen a kid who has been provided counsel but I have witnessed many a kid go to jail.

And this from non responsive legislators who have enabled the School Administration to blame the parent when they allow children in their custody to roam at large unaccounted for and the District in coordination with the Courts of non record get paid (profit) from it.

Truancy and late to an execution or an education.....

2008-10-12T03:05:00.000-07:00

........which one came first?

could he help his defense? EZ fall guy eh? I mean you would think an alleged "educational expert" would be on hand to speak up.

Yeah right!!!!!!!

What??????? why now?

Life was too long to wait to find out that in 1984 was the last year of innocence in public schools.......

or was it ever? Depends................If i skipped and had the balls to show up at the following class, you were called into the office.

Nowadays, at CCISD at least, no one cares, no one administrator gives a rats ass.

http://stxwatchdog.blogspot.com/

If 'A' has a positive right against 'B', then 'B' must assist 'A' to do 'x' if 'A' is not able to do 'x' without that assistance.

2008-05-16T05:27:00.000-07:00

This is the tragic outcome, parents unable to fight the "delphi technique"

Heaven forbid the truth of Debbie Riddles of the world come out of their "Educated" tiny brain and learn.

What did she was taxpayers state funded "public education":::Significant legislation

In the Eightieth Texas Legislature, Representative Riddle authored House Bill 8, which was the Texas version of Jessica's Law. The bill was signed into law by Governor Rick Perry on June 15, 2007 and will become effective on September 1, 2007.

In the same session, she also authored House Bill 1034, which added the words "one state under God," to the Texas State Pledge. [1]

[edit] Pit of hell speech

In a March 6, 2003 interview with the El Paso Times, Riddle was quoted as saying:

"Where did this idea come from that everybody deserves free education, free medical care, free whatever? It comes from Moscow, from Russia. It comes straight out of the pit of hell. And it's cleverly disguised as having a tender heart. It's not a tender heart. It's ripping the heart out of this country." [1]

The quote came after a Border and International Affairs Committee meeting during the Seventy-eighth Texas Legislature, in which the state faced a budget deficit of $10 billion, [1] and was linked to a discussion Riddle had during the hearing regarding proposed health care cuts. The witness claimed that health care cuts would cause serious damage to border area hospitals, which Riddled countered with the claim that illegal immigrants were responsible for the financial strains. [1]

Riddle was further quoted as saying "In a perfect world, I think it would be wonderful to open our doors to any and all, young and old, for health care. But this isn't a perfect world. We have got to decide if we are going to just open our borders for any and all that come through for health care, education, and services." [1]

The comment was met almost instantly with both opposition and support from both ends of the political spectrum.

Texas Democrats claimed the statement was bigoted and "the product of an antipathy toward non-Anglo inhabitants of the state" and the Harris County Democratic Party called for her to resign from her position on the Border Affairs Committee[2]. The Mexican American Legislative Caucus was also quick to reprimand Riddle for her comments, informing her in a letter that "Our constitutional mandate comes not from the pit of hell. It comes from our state's forefathers." [3]

At the same time, the Unidas Hispanic Women's Club and the Republican National Hispanic Assembly of Harris County praised Riddle for the quote and honored her at a dinner at the conclusion of session. Reggie Gonzalez, chairman for the Republican Hispanic Outreach Committee of Harris County said in a press release: "The liberal opposition to Representative Riddle's comments offends me as a Hispanic citizen. Their opposition only strengthens this negative stereotype of Hispanic immigrants, by implying that they need a lower standard of accountability. This implication is detrimental to the cause of Mexican-Americans everywhere." [4]

Let us not forget::::::

"pit of hell" and prove the Scott Brister definition of "the ring of hell"

....The court of appeals (one justice dissenting) affirmed the summary judgment as to pre-termination conduct, holding Jackson’s affidavits described an “unpleasant and uncomfortable” workplace but not “the ring of hell” required to establish an intentional infliction claim.[5] But the court reversed and remanded for trial her infliction claim based on post-termination conduct.[6] Applying the usual standard of review,[7] we reverse for two of the reasons stated in the defendants’ motion.[8]

http://www.supreme.courts.state.tx.us/Historical/2005/feb/021076.htm

Teaching students the Value Bank a$$ignment of political reassignment.....

2008-05-11T06:03:00.001-07:00

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High School
Carroll principal: Elizondo not reassigned
Players, fans gather to protest volleyball coach's possible exit

By Stuart Duncan (Contact)
Originally published 05:27 a.m., May 8, 2008
Updated 05:27 a.m., May 8, 2008

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Carroll High School head volleyball coach Doris Elizondo currently is not being reassigned, according to one school official. Yet a spokesperson for Elizondo said Wednesday the coach still fears she could be.

Nearly 100 people gathered across the street from Carroll on Wednesday afternoon in support of Elizondo. Many of those were current Tigers volleyball players decked out in "We want Coach E to Stay" T-shirts and holding up banners in support of the coach.

Carroll High School principal Bobby Templeton said Wednesday that "as of today, no final decision has been reached by this school district concerning the reassignment of Coach Elizondo."

"Coach Elizondo, and all other coaches and administrators, are fully aware that reassignment of job duties is a possibility," Templeton added. "Since this is a personnel issue, we cannot comment on specific details. However, issues have been raised by parents, staff and community members concerning her actions, which prompted my investigation into these matters."

Corpus Christi Independent School District superintendent Scott Elliff, CCISD athletic director Brenda Marshall, and Carroll High School athletic director Terry Morris were unavailable for comment Wednesday.

Elizondo referred all questions about her coaching status Wednesday to League of United Latin American Citizens Council No. 1 education chairperson Susie Luna-Saldana.

Luna-Saldana led Wednesday's rally for Elizondo and played a tape recording for those in attendance in which she says that Morris, who she said knew he was being taped, told Elizondo that she would be reassigned in May.

"Unfortunately this is happening because there are certain parents that want coach Elizondo moved," Luna-Saldana said. "Coach Elizondo has never been written up for anything. Up to this point, there have never been any concerns brought to her attention. When you connect the dots, the idea is that (a few Carroll volleyball parents') children are not getting enough playing time."

Carroll High School volleyball Booster Club president Terrie Steen, the mother of Carroll junior volleyball player Melanie Steen,said it will be unfortunate if Elizondo leaves in May because it could hurt the team.

"My daughter wants (coach Elizondo) to come back and I want what my daughter wants and what's best for the team," Terrie Steen said. "If this particular team is going to be successful with Elizondo at this point, then that's what we need to do because this team's on a roll -- just let them play volleyball."

Carroll junior volleyball player Erica Humbach said Elizondo told her and the other Tigers volleyball players that she wants to come back and coach the team next season.

Humbach said it won't sit well with many of Carroll's volleyball players if Elizondo is replaced next season.

"Bringing someone in (to coach the team) that is completely new and who doesn't know us at all -- that will not end up well for us," Humbach said. "We're fighting for coach Elizondo and she knows it. We love her and she loves us."

In six seasons at Carroll, Elizondo has led the Tigers to five straight district titles in Class 5A, including six straight playoff appearances. She's posted a 133-53 coaching record at Carroll and has a 187-115 career volleyball coaching record in 13 seasons.

Contact Stuart Duncan at 886-3792 or duncans@caller.com

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(144) User Comments:
Reply to this Post | Suggest removal
related links Posted by 233913 on May 8, 2008 at 6:37 a.m.

There has been a history of influential parents exerting that influence in the Carroll athletic program and not always for the benefit of all the students in the programs. I'm sure Carroll is not alone in this problem, but it is my belief that those parents are part of the problem, not part of the solution at Carroll!
Reply to this Post | Suggest removal
related links Posted by 260472 on May 8, 2008 at 7:23 a.m.

I've heard its a problem at Ray too. Some parents just need to grow up and stop babying their children when it comes to athletics.
Reply to this Post | Suggest removal
related links Posted by 327075 on May 8, 2008 at 7:37 a.m.

i work for a govt agency and we should all remember that we the public are not privy to all the information that CCISD has. They are going to be unable to give all of the details. i have never seen any type of investigation where there was not at least some truth to it. Dont be surprised when this turns out to be NOT a big conspiracy but something real. My daughter played for King and I know alot about many of the coaches in the area. NONE of them are saints and this one, believe me, is no exception.
Reply to this Post | Suggest removal
related links Posted by 327075 on May 8, 2008 at 8:44 a.m.

I'm certain a coach with a winning team wouldn't be investigated for false claims. Even if she is a coach with a good record in regards to winning, does that mean she should continue to coach if her actions are questionable? As with any coach or teacher, she has to uphold the highest ethical standards. Her supervisors are doing a great job by looking out for the students' best interest. Wouldn't it be nice if all school personnel supervisors did the right thing instead of taking the easy way and doing nothing?
Reply to this Post | Suggest removal
related links Posted by 401151 on May 8, 2008 at 9:17 a.m.

This happens all the time when coaches are replaced ETC..... Get over it and if the Carroll team is THAT good...then they should be able to prevail in any circumstance!!
Reply to this Post | Suggest removal
related links Posted by 711213 on May 8, 2008 at 9:34 a.m.

Volleyball is a club sport, all of these Carroll players play yearround at a tremendous cost to their parents. My dog could coach the Carroll team and it would win district; however, it's when the carroll squad faces teams with the same club experience is when they do not have the same level of success. I have heard several comments from parents whose children have played and graduated from Carroll and they all comment on the negative volleyball experience under Coach Elizondo. Just as a principal has the right to assign teachers to teach different content subjects, they also have the right to assign and reassign coaches which they believe are in the best interest of the school. AFT is in the business of supporting unproductice teachers and employees.
Reply to this Post | Suggest removal
related links Posted by 392620 on May 8, 2008 at 10:15 a.m.

There is so much more to the story....The accusations by the Coach's supporters that this is about RACE or PLAYING TIME is a crying shame ! Why are so many of her former players and their parents against her ?? Surely it isn't about their playing time ! Their careers are OVER ! This is about this Coach's CHARACTER, inappropriate discussions of SEXUAL content, ETHICS, ROLE MODELING, inappropriate and abusive language, and other personal traits and behavioral patterns...Parents/ players have been afraid to speak out because this Coach is so retaliatory .
Reply to this Post | Suggest removal
related links Posted by 463408 on May 8, 2008 at 11:29 a.m.

What about the Carroll girls varsity basketball coach?? my daughter plays basketball (does NOT attend Carroll, THANK GOD) and i have seen behavior i would not tolerate in the gym or outside the court displayed by Canales (i believe is her name?)

The previous posts stating it is parents crying about playing time, I believe it.. i have seen players transfer to other schools to get more playing time.. whether it is basketball, baseball, football etc... ray had a varsity player that came from a 4A school and played varsity basketball... and you can't tell me it was for the academics.... especially with the TAAKS scores for Math down the drain at Ray.

Bottom line these girls will not play professional volleyball, or be in the olympics!!! Sports should be a PART of school/life not your whole life... in 5yrs no one will remember or give a flip who so-and-so was......
Reply to this Post | Suggest removal
related links Posted by 308886 on May 8, 2008 at 11:55 a.m.

The Carroll volleyball and basketball coaches should be made to sit in the gym and everyone who wants to can line up and curse them to their face. Each person will be allowed three minutes to curse the coaches and everyone else can stand back and laugh until it's their turn to curse them. That sounds fair. Chuck Norris hates coaches who curse their players.
Reply to this Post | Suggest removal
related links Posted by 712428 on May 8, 2008 at 12:31 p.m.

If Coaches Elizondo's conduct was SOOO abusive, Why did these past parents allow their children to play for her??? Something doesn't seem right here. If past parents thought she was unfit they should have complained then. Their children don't attend Carroll anymore. BUTT OUT!! Their opinions should not matter, only those attending Carroll now should have any say in what happens. If your children were being abused and you did nothing about it.....SHAME ON YOU!!
My daughter has played for Coach Elizondo and she loves her and feels like she is one of the most motivating coaches she has ever had.
As for as her talking about sexual matters.....SHE TEACHES HEALTH!!! and sex education is part of the curriculum.
As for cursing, I would prefer for coaches not to curse, BUT every coach I know at Carroll curses, so I guess we have to get rid of all of them starting with the AD/head football coach and all the way down.
Reply to this Post | Suggest removal
related links Posted by 712432 on May 8, 2008 at 1:06 p.m.

If there are so many problems with Coach Elizondo, why has she never been written up? No coach is perfect and I've seen the things they (coaches) have to put up with from parents like these few, who throw their money around and think they can buy everything for their kids. GET REAL! If your girls don't have the position they want or the one you want for them, tell them to work harder to try to get that position or stay where they are and do the best they can in the position they have. DON'T try to oust another player when she has worked her tail off and plays her position 150%, and because her parents don't have a lot of money or influence you think you can push her out? SHAME ON YOU! If you are not happy, move your kids to a school where you can buy your kids position on the team, it teaches them that they don't have to work for anything because you parents will get it for them! It's so sad because this has split up the girls on the team and can this be salvaged? Who knows, but I hope Coach Elizondo stays because she is no different than other Carroll Coaches. If she goes, then the head football coach needs to go, we've known and heard things about him for years. The girls basketball coach....same thing. How many coaches have had affairs with students at Carroll? 4 that I know of. BOTTOM LINE...you parents who are causing the problems are doing it so your kids can have more playing time and you want your kids in another position and Coach Elizondo wouldn't budge. There have been so many lies, I was just curious about this whole situation til I heard Coach Morris telling her she was out (recording). He, Carroll, CCISD and these parents who THINK they are influential should be ashamed!
Reply to this Post | Suggest removal
related links Posted by 296404 on May 8, 2008 at 1:07 p.m.

Principals do not have to ability to change the content area of teachers. They must be certified in their teaching field. History teacher can not be assigned to teach science per say.

As for abusive language... How many of you have been to a football game? Or is it because we are talking about coaches who coach ladies? Boys' coaches do it all the time but rarely do we hear about this being an issue with them. I bet (not knowing much about this suitation) she is big fish in lil pond. When this team goes out swimming in open oceans it finds out that their are other fish just as bad as they are.. Playoff record? Not too deep?
Look athletics (minus baseball) in the Coastal Bend is week at best. Coach has potty mouth and bad playoff record and the lighted torches come out.. get real folks..stop wearing yall's emotions on your sleeves....there are things said to athletes that mom and dad do not need to hear.
Reply to this Post | Suggest removal
related links Posted by 296404 on May 8, 2008 at 1:08 p.m.

weak sorry folks
Reply to this Post | Suggest removal
related links Posted by 712430 on May 8, 2008 at 1:19 p.m.

This is not about playing time, winning records, playoff performance, or parents trying to influence coaches and administrators. Common knowledge, those issues don't get investigated by school administators. This is about the actions and events that occured when a teacher was with students. In the gym, on the field, or in the classroom, it is the administration's responsibility to investigate allegations of wrong doing aimed at their staff.

Every parent reporting concerns to the administration is "influential", regardless of their social or economic status in the community. Just because there is no documented history of unacceptable behavior, doesn't mean it has not happened. Perhaps the administration should just ignore parental concerns, and fail to investigate allegations just because the coach has won championships; I think not.

This situation was revealed to the media, public, and school by the parents, students, and Coach Elizondo, not the school or district administration. This situation is not about tape recordings of what might, could or will happen to the job status of Coach Elizondo, it is about investigating the allegations reported. If she has done no wrong, then she will be exonerated. If not, then she will bear the consequences. "The truth shall set you free".
Reply to this Post | Suggest removal
related links Posted by 711213 on May 8, 2008 at 1:21 p.m.

Post 296404 are you going to cry racial discrimination when the principal assigns the biology teacher to teach chemistry. Let the principal do his job and stop playing the race card.
Reply to this Post | Suggest removal
related links Posted by 242334 on May 8, 2008 at 1:32 p.m.

Behavior aside, I believe this is about competent coaching or the lack thereof. Its about winning and having a winning program. These girls are very talented some more than others as it is with every team. This starts by having your BEST players on the floor to give your team the BEST chance at winning. This program should be competing at the regional level and above. The talent is there, they just need someone who can identify it and use it to its full potential. If volleyball season ended with the crowning of a district champ then I would be impressed, since it doesn't I'm not.
Reply to this Post | Suggest removal
related links Posted by 710462 on May 8, 2008 at 1:41 p.m.

There has to be more to this story that we know. Playing the race card is my first clue something must be wrong with this coach. How pathetic! Teachers and principals get reassigned all the time. Get over it!
Reply to this Post | Suggest removal
related links Posted by 308886 on May 8, 2008 at 1:45 p.m.

This is Skip Noe's fault !! He needs to be fired along with the rest of the city council. Well, he actually doesn't have anything to do with this, but fire him anyway...what the hell !! :) Chuck Norris hates it when people don't get fired !! HAHAHAHAHA !!!
Reply to this Post | Suggest removal
related links Posted by 296404 on May 8, 2008 at 1:48 p.m.

Racial... Hell I'm from dallas and have lived with more mexicans and blacks then most that read this paper. It is nothing racial at all from where i stand..

Science in science is not a move freak...

Science to history is a move out of content area..711213
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related links Posted by 296404 on May 8, 2008 at 1:50 p.m.

Nobody comments on other boy sports and how their coaches' speak...

ever wonder why at half time teams get away from the stands?

Potty language people..I'm for the coach hear yall not the other way around....
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related links Posted by 712428 on May 8, 2008 at 1:51 p.m.

The parents who have had negative experiences with Coach Elizondo are the same parents with children who do not play the position they want or as much as they want. The vast majority of current parents and players support Coach Elizondo. The few parents that are complaining are not use to being told NO. Carroll volleyball is extremely competitive and not everyone will play equally or to every parents satisfaction. I have heard some of the complaints and none of them are substantial. If she is re-assigned because of these complaints, then every coach and administrator needs to be re-assigned because they are all guilty of it. She is being singled out because there is an agenda. These few people have already hand picked a new coach of their own choosing.....does that seem fair??
THE VERY PARENTS MAKING THESE ALLEGATIONS WERE FINE WITH COACH ELIZONDO WHEN THEY WERE TRYING TO "WINE AND DINE" HER TO INFLUENCE HER COACHING DECISIONS, AND WHEN SHE DID NOT PLAY THEIR CHILDREN AS THEY THOUGHT THEY SHOULD BE PLAYED, THEY TURNED ON HER.
This type of influence-pedaling is not right and should have no place at Carroll or any other school. These parents not only "wine and dine" coaches, but also principals, athletic directors, the superintendent and school board members. Do you think it is fair to YOUR child to have a few people with money and access controlling your child's future? What kind of lesson are we teaching our kids?? Are we teaching them that hard work and sacrifice pays off to earn a position or that those with the largest pocket book get what they want at any cost!! Make no mistake about it, this has nothing to do with Coach Elizondo's abilities or ethics. This is all about a few parents wanting to control Carroll High School Volleyball.
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related links Posted by 712435 on May 8, 2008 at 1:55 p.m.

What's really sad about this whole deal is the kids. The daughter's of complainers were made to go to the rally by their parents and they stood there and laughed, made rude comments, rolled their eyes and were very disrespecful of the whole rally, they made themselves so obvious.. Their parents should have attended if they wanted to know what they rally was about like some of the other parents who didn't agree. There is such a thing as freedom of speech. Everyone has a side and everyone has a right to their opinion. RESPECT IT!
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related links Posted by 712435 on May 8, 2008 at 2:01 p.m.

712428 WELL SAID. I've seen some of the school board members, CCISD employees, and the school principal in the winer and diner's suite at the Hook's Games. Why??????????
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related links Posted by 238212 on May 8, 2008 at 2:13 p.m.

Either you got it or don't. I'm sure that any school would love to have her with such a winning record. As stated earlier none of these kids are going to make money in the sport they are in. We all know parents take sports very seriously and live their lives thru the kids. Even at the little league level coaches curse as well as parents and unfortunately this is part of the game. How many kids make money as a professional in any sport percentage wise. The books must come first and sports as a side interest so that they can think when their bodies can't play anymore.
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related links Posted by 711216 on May 8, 2008 at 2:28 p.m.

I am a proud hispanic woman and I resent anyone who screams foul because of race. Anyone who does so brings shame on us all. This is not the way it should be done. I respect and support teachers and administrators who try to take a stand against those who should not be around our kids. I am disappointed in LULAC for taking on this issue. I support Mr. Elliff and the good work that he is doing keeping our students safe from teachers (coaches) who do not treat our kids the way they shoule be treated. I will be disappointed in him if he allows this unprofessional behavior to continue.
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related links Posted by 239291 on May 8, 2008 at 2:55 p.m.

Every single time that someone "of color" feels that they are threatened they begin screaming, like Chicken Little, that the sky is falling and play the RACE CARD. Get over it. Coach Morris doesn't have a bigoted bone in his body.
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related links Posted by 329691 on May 8, 2008 at 3:05 p.m.

Sometimes you wonder who is worse, the parents or the kids.
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related links Posted by 711040 on May 8, 2008 at 3:18 p.m.

League of United Latin American Citizens Council No. 1 ???? If that's who is going to answer the questions concerning this ladies job, I say give her her walking papers today! Enough said!

Another way to solve this issue is to move all sports out of the school system and budgets. They do nothing but disrupt the school day, cost tax payers money, give students an excuse for not doing their school work, and create a small group of elites with swollen egos.
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related links Posted by 709493 on May 8, 2008 at 3:30 p.m.

Post 712428--excellent post; you hit the nail right on the head. I heard Mr. and Mrs. Whiner made a sizeable donation to the Carroll baseball program. This was very unusual since their son wont even get to Carroll til next year. This was an obvious attempt by the Whiners to use money to help their son get more playing time when he plays baseball at Carroll next year. I also heard Mr. Whiner also used his luxury box to wine and dine the Carroll baseball coaches. They brought them up, fed em, even introduced them to the Lord God King of Texas Baseball, Nolan Ryan. That's the way it works with these money people--that's how they operate. Ive got a message for these folks: Since neither of you were probably successful athletes, you need to understand that sports is an equalizer. In sports, it doesnt matter what your dad does for a living, what kind of car he drives, what your moms position is with the Carroll PTA, or whether you are a named beneficiary of a trust fund. Dont worry, high school passes in a flash, so it wont be long til you can intervene and set them up academically, professionally and financially. But for now, in sports, the only thing that matters is CAN YOU PLAY!!

If the concerns of these self-proclaimed movers and shakers are so legitimate, then they should go to the next school board meeting and voice their concerns publicly. Dont be cowards and lobby school officials on the phone or in your luxury box--DO IT SO WE CAN SEE WHO YOU ARE AND HOW YOU JUSTIFY THE ACTIONS YOU WANT CCISD TO TAKE AGAINST THIS COACH!!

PS--Memo to Joe Ortiz: What the hell are you doing up there on the stage with Coach and Susie Luna? Knowing you, you are probably there for the sole purpose of fetching all the "chisme" (gossip) first hand, then bringing it all back to "Chisme Central," where Johnny Canales and Henry Medina anxiously await your return. Now A C-T article on how these guys made their money--THAT would be an interesting story. Coach Elizondo can get by this on her own merits, especially her unbelievable winning percentage. I know it's hard for you to resist when someone rolls out a tv camera, but you and your "comadres" need to stay out of it--youre damaging the Coach's credibility!!
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related links Posted by 712435 on May 8, 2008 at 3:45 p.m.

Everyone knows that a donation was made and the coach was TOLD to put Mr. & Mrs. Whiners daughter on varsity. She's held her own, but I bet my kids wish I had that kind of influence, they had to earn their space on varsity sports the old fashioned way. You know, they had to WORK THEIR TAILS OFF! In fairness, we aren't talking about one family here. There is another family with sisters on the team that are just as involved.
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related links Posted by 258638 on May 8, 2008 at 3:55 p.m.

I wonder how many of the kids can read and write? It is time to get the sports out of the schools until academics are up to snuff. This is a waste of taxpayer money.
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related links Posted by 711523 on May 8, 2008 at 4 p.m.

in response to 711040

I completely disagree with you on the issue of taking sports out of school. Imagine all the kids who participate in football, soccer, baseball, volleyball, softball, etc. More than anything these programs teach responsibility, accountability, and teamwork to kids. It's the parents who don't like their kids to be held accountable, who don't believe in teamwork, and are too irresponsible to care that ruin athletics. Besides, if all these kids weren't attending practices after school, do you really think they would be doing homework,..get real, they would be running around looking for something else to do, ie....nothing good probably.
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related links Posted by 711216 on May 8, 2008 at 4:01 p.m.

I have been a teacher for years and I never respond to school issues but this one blows my mind.
Where did it ever become acceptable to call a press conference, play the race card (Im Hispanic) just beccause you did not like the decision your boss made. Imagine what our schools would be like if everyone who was upset because they did not get the exact assignment they wanted did this. If anyone needs to call a press conference and scream discrimination over something like this, they need to go find a job somewhere else.
If she is such a great coach, she should have no trouble finding a new a new position.
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related links Posted by 711762 on May 8, 2008 at 4:26 p.m.

This is what keeps this racist crap stirred up. What does lulac have to do with the school. It must be nice to have someone get and help you keep a job when you are screwing up. A perfect season or winning record are not what this is all about. There are other issues at play here and it is not race based but thats what it is being made out to be.
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related links Posted by 712435 on May 8, 2008 at 4:27 p.m.

Post 711216

I bet you would feel differently if you were railroaded by a posse of parents and I'm sure LULAC got involved because there is so much more to this story, which will hopefully come out in the next few weeks. There will be a lot of surprises. But you sure hit the nail on the head, not everyone does this, and this is not common, so it must be something BIG!
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related links Posted by 464165 on May 8, 2008 at 4:38 p.m.

The "race card" is being "used" here because there is an important issue at hand. It's not the fact that she's hispanic and the administration or principal is white...it's that the parents (aka Mr. and Mrs. Whiner) are white! So you have white parents going against a hispanic coach....is race the only reason they're doing this, no, but it doesn't help!

Unfortunately, Corpus is a very tense place when it comes to race relations. I'm hispanic for your information and I feel that race/ethnicity/gender is a big issue here.

Would the same event be taking place if the coach was white? male? Would this coach have "played along" with mr. and mrs. whiner if she were white or a man? Is it because she's a hispanic that she chose not to play ball with the rich folk? Perhaps these rich white people feel she is beneath them because of her race?

She's got a winning record. An impressive one at that.
Would you like a coach that doesn't play you???
Would you like a coach that doesn't play your kid??

Some parents just go too far.
I don't think race is the only issue here, but I do think it is more in depth than some people care to think.
related links Posted by 351307 on May 8, 2008 at 4:39 p.m.

(This comment was removed by the site staff.)
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related links Posted by 423831 on May 8, 2008 at 4:48 p.m.

I have seen several Carroll Volleyball games in last few years and I have never seen the reps from LULAC, the G I Forum or the NAACP that held the press conference yesterday at any of those games. We need to remember that it is all about the kids. Lets just pray that whatever the outcome of this issue, the welfare of ALL of the young ladies on the team remains the #1 priority for everyone involved.
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related links Posted by 327075 on May 8, 2008 at 5:02 p.m.

Keep the sports.
Send the Coach PACKING!!

Press conferences, character issues, race card...sets a bad example for our kids
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related links Posted by 402661 on May 8, 2008 at 5:27 p.m.

I have been a proud parent of Carroll High School for over 7 years. I have had the privilege of knowing Coach Elizondo and many of the other coaches at Carroll High School as well as the administrators. My children have been involved in sports and other activities as well. Let's get something straight and talk about the real issue and truth. The truth is that a group of parents went to our administrator and complained about Coach Elizondo. Maybe they paid off some administrators, maybe they didn't, but there was some sort of exchange because no administrator in his right mind would have done this without being paid off. The same goes for the administration down at CCISD. Is it true that these parents who complained have money? Yes it is but there are alot of other parents who have children who attend Carroll with alot more money and have not gone to this extreme. These parents just feel that their daughters are better than anyone else, which is false. Coach Elizondo has been very lucky to have such a large group of good players, some better than others. In this case, one girl was put on the varsity team because of what her parents have promised the administration. Is is true that they wine and dine school administrators and directors, yes it is. Go to a Hooks game and check out their box. Coach Elizondo was accused of many wrong doings without ever being given the chance to defend herself. If the principal was a professional, he would have supported her and not the parents. What does that say to every hard working teacher and/or coach out there? This job is her livelihood. Why would she make up some story about being fired if it was not true. The real problem was started by the principal, not the parents and not Coach Elizondo. The principal is lieing to every parent invovled in this no matter what side you are on. He is not being truthful and because of this, many stories and rumors are being told. He tells you what you want to hear to get you out of his office and because of this many people are being hurt. If he would have been a professional to begin with, this matter could have been resolved in a few days. But it has amounted to this, and unfortunately many will be hurt by this no matter what side you are on. I am supporting Coach Elizondo because I believe she has not been given a fair shake on this, and I am also friends with those who have complained, but the bottom line is that the principal needs to resign and admit his wrongdoings and he owes everyone involved an apology.
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related links Posted by 259368 on May 8, 2008 at 5:56 p.m.

POINT BLANK: RACE HAS NOTHING TO DO WITH THE ISSUE!!

I played volleyball under the dictatorship of Doris Elizondo. I have personally filed complaints numerous times about her lack of professionalism on and off the court ie. cursing, demoralization, belittling, favoring, FRATENIZING, and lack of knowledge of the game. I don't know what your idea of a role model is, but that woman is a disgrace to Carroll itself. By keeping Doris Elizondo in the CCISD system is only going to hinder the generations to come. Wow, maybe with a new coach Carroll Volleyball would actually be able to win past the second round in playoffs. Come on girls; don't be afraid of being equal again with a new coach. If you are really the superstars you claim to be, you should not worry about a new coach coming into the picture.
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related links Posted by 260472 on May 8, 2008 at 6:35 p.m.

Okay, now you got me curious.. I think I know who Mr. and Mrs Whiner are, but why doesn't someone just say it... if you have the proof, it shouldn't be a problem. But, I will say this, Carroll isn't the only school that has these problems. EVERY SCHOOL has a coach that fratenizes and EVERY SCHOOL has a parent willing to pay whatever it takes to get their child whatever they want. Unfortunately when they grow up, that all goes away.
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related links Posted by 259368 on May 8, 2008 at 7:29 p.m.

in response to 402661

Paid off administrators? Are you serious? Come on man, you could come up with something better than that. Get you facts straight. People like you are the sole root for the rumors which are uproaring all over the city. People file complaints, adminstration look in the complaints. It's called an investigation. And don't even drag the Principle into this issue. He is handling this situation to the best of his ability. If anything Coach Elizondo needs to resign. And buddy like I said please know what you are talking about before you make a fool of your self on the internet. The principle is just simply doing his job. Grow up.
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related links Posted by 327075 on May 8, 2008 at 7:37 p.m.

Guess what....the principal's wife is Hispanic!!!!!!!! So that makes his kids Hispanic too....so the race thing is absolutely ridiculous!
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related links Posted by 462672 on May 8, 2008 at 8:16 p.m.

Ray High school does not have this problem. Of Course, Ray High School has never had the same varsity volleyball coach 2 years in a row...The good news is... Ray is getting Prudence Farrell next year to coach Volleyball! So anyone who wants to... y'all come on over to Ray!
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related links Posted by 712444 on May 8, 2008 at 9:49 p.m.

FROM A GROUP OF FORMER PLAYERS!

I am sick and tired of people acting like they know what is going on. Why don't you actually ask someone who has been in the program. I have experienced every horrible moment, i am SIMPLY thankful i made it out still sane. This is not a race issue so why even get the NAACP and LULAC involved. For Ms. Luna-Saldana you might want to stop accusing "rich white girls" as the main ones trying to get rid of Elizondo. In fact why dont you take a look at the RICH WHITE GIRLS standing behind her that have already paid her off. I have walked into team mates houses and witnessed Elizondo drinking alcohol with the parents. IS THAT WHAT YOU LIKE TO CALL PROFESSIONAL? What about when she threatened my team mate with her life if she missed a serve? Or when she sabotaged scholarships. Or what about promising players positions before they even try out? Or the countless times she has failed to follow UIL guidelines, that alone can put CCISD in jeopardy.

The only reason the girls are supporting her is because they know they can get what they want out of her. I have sat there and listened to EVERY SINGLE one of her players say how much they cannot stand her. However, her main supporters know that if she leaves a better coach will come along and play the people that actually deserve to be on the court. Wouldn't it be nice to have a coach that knew how to play more than just six girls. Why does elizondo put 17 girls on varsity to have 11 of them sit the bench? Personally, i would of love to have a coach that actually knew what she was talking about and didnt forget about her players during practice.

I would really appreciate it if you people looked at her supporters and realized they are the ones paying ELIZONDO OFF.

Dr. Templeton is simply doing his job. And ps he is married to a mexican so GIVE IT UP about the race issue. Half of carroll's staff is mexican.
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related links Posted by 427586 on May 8, 2008 at 9:49 p.m.

I played for Coach Elizondo this year on varsity and it was one of the worst experiences of my life. Not only is she CLUELESS on the game of volleyball,but she is an all around bad coach. She knew about the harassment and teasing of a player all season and yet she failed to do anything about it- that has to break some code or rule! Another thing, YES I AM ONE OF THOSE WHO "ROLLED THEIR EYES" AT THE PRESS CONFERENCE,. How would you feel if a whole crowd boo'd at you!? And for the record, i wasn't forced to go! Get your facts straight. This coach may have a good winning streak, but credit should not be given to her. She was blessed with all the talent in the world this year, and the only reason we didn't anvance further into playoffs was because of her lack of coaching. Has anyone noticed that NOT ONE senior in the past 6 YEARS (including my own sister) isn't playing college ball when it's only obvious that they should be. Not even Alyssa Endres, Laura Choi, both of the Morenos, and other outstanding players are not playing now. Does that not SCREAM a poor coach!? Another thing! This "coach" has already promised a number of players a starting spot on next year's team. Isn't that what tryouts are for? The players on the team are already dividing themsleves and have been ever since hearing the wonderful news of her beng asked to leave. There have been secret meetings that not every parent or family is invited to and the shirts were the same way. Can't you see the UNITY!? If this coach stays, the team will stay divided for all next year and far past that. As of now , CARROLL VOLLEYBALL HAS TURNED INTO A JOKE. It cannot be taken seriously with a coach who doesnt know the difference between a perimeter and a rotation defense! If you'd like to see all the talent on carroll's team go to waste (YET AGAIN), then go ahead and keep Coach Elizondo.
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related links Posted by 702497 on May 8, 2008 at 9:58 p.m.

Quit bringing up the race card. There is no need for it.

Obviously there is something wrong with the coach. Now wether these complaints have any merit is another question. If she is behaving inappropriately with students then yes, she needs to be reprimanded. If it is a parent or parents that are mad because their little Suzy is not getting enough play time or is not playing the postion she wants then tough ****. Too many parents baby their kids. They need to learn they cannot have everything their way in life. If you continue to do this then you are looking at a nightmare up ahead in life. Your child will have so many problems as an adult. It is time to cut that umbillical cords PARENTS and let your kids learn that life is not always fair and will not always go the way they want it to. To me these parents are nothing but big spoiled brats themselves.
As for the coach...I do not like the fact that coaches cuss so much around the kids. It happens though. You don't see me getting my panties in a wad over it. The kids need to deal with it and know that she is the one looking like a fool to her students.
Someone mentioned that this coach is known to retaliate. Hmmm...okay...can you tell me how she does it? I have never heard anything like this before. If you know something then let it out on here. That is what these forums are for. Let the readers decide after all of the FACTS not OPINIONS are presented.
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related links Posted by 710237 on May 8, 2008 at 10:05 p.m.

I have several things to say:

1. It was a very sad thing to see that the girls were used to be up there at the rally with their special T-shirts. It was very sad that Elizondo encouraged them to participate in order to back her up. And if they didn't, how would she have treated them? If they didn't how would the rest of the team treated them? We should never allow our children to be used in this manner. It's an adult situation and adults should deal with it. This just shows very poor judgement on Elizondo's part. For this, she should be sent packing as someone put it.

2. Anytime I see Susie Luna I know there is trouble. This loud-mouth Atila the Hun is a known liar and exaggerator. Never believe a word that comes out of her mouth. She uses others to benefit her own agenda Jokes on you, Elizondo for allowing Luna to represent you. This makes you a loser.

3. How in the heck did LULAC get involved in something like this? How did they allow Susie Luna to use them in this manner? It appears to me that there is a conflict of interest: why didn't Luna have Elizondo represented by the AFT the organization who pays her salary? Did the AFT not want to represent Elizondo and so then Luna gets LULAC invovled? Something is fishy here.

4. I find fault with any professional who doesn't want to communicate with his/her direct supervisor and work out a situation. I have no respect for Elizondo for hiding behind LULAC to do her fighting for her. What does this teach her girls? Poor judgement again. Very immature behavior from Elizondo.

5. Don't think for one minute that this is all to the story. Because it is a personnel issue some things will have to be kept private and will never surface. Elizondo knows this very well yet she uses LULAC and the team to stir things up that she knows the principal will not be able to respond to in public...only in his office with her. I suggest she do that.

6. Regarding potty-mouths: I suggest everyone clean up their act. We are to be models for our children. Sports does not give anyone the freedom to use language that is abusive, vulgar, or inappropriate. We are better than this and our children need to look up to us. Elizondo if you partake of such language...shame on you.

7. Special gifts from parents or students...I think there is a Code of Conduct that address this issue. Follow it. This also means that the coach should not have accepted Christmas gifts from students/parents.

I'm glad it is near the end of the school year. Let the administration address this issue with Elizondo. What makes her think she can't be moved? Wake up, lady. When you signed your contract it was with the school district...not Carroll High School. I guess you are too young to know that we all can be replaced. Grow up.
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related links Posted by 712444 on May 8, 2008 at 10:08 p.m.

It is incredibly ironic that everyone thinks the people complaining about Doris are babying their kids, and that they need to learn this will get them nowhere in life. WHEN IN FACT the people supporting Doris are actually bribing her for their kids spots, to me that is ten times worse.
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related links Posted by 257671 on May 8, 2008 at 10:10 p.m.

welcome to the world of Miller high school! CCISD will do what they want. no matter who they hurt. Save your breath for something else like mentoring students. Good luck.
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related links Posted by 235951 on May 8, 2008 at 10:22 p.m.

i have some things to say also: thank goodness we do not havethat problem in SOCCER at king
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related links Posted by 444780 on May 8, 2008 at 10:46 p.m.

ALLLLLLLL OF YOU ARE COMPLETELY OUT OF YOUR MINDS IF YOU THINK YOU HAVE ANY RIGHT TO SAY ANYTHING UNLESS YOU PLAYED FOR COACH ELIZONDO!!!!! PARENTS ARE STUPID FOR THINKING THEIR DAUGHTERS DON'T HAVE SELECTIVE HEARING TO COACH'S POINTLESS LECTURES.

I HAVE BEEN AN ATHLETE MY ENTIRE LIFE AND I KNOW ANYTHING AND EVERYTHING THERE IS TO KNOW ABOUT SPORTS AND ATHLETIC POLITICS.

I HAVE PLAYED MULTIPLE SPORTS AT CARROLL HIGH SCHOOL UNFORTUNATELY COULD NOT MOVE FORWARD IN MY VOLLEYBALL AMBITIONS BECAUSE I DID NOT PLAY CLUB. NOT BECAUSE I WASN'T BETTER BUT JUST CAUSE I DIDN'T PLAY CLUB. ANYWAY.....

COACH ELIZONDO IS A HORRIBLE VOLLEYBALL COACH. BUT NOT A BAD PERSON. I ACTUALLY THINK SHE IS PRETTY FUNNY BECAUSE OF THE FACT THAT SHE IS A HORRIBLE COACH BUT TAKES HERSELF SO SERIOUSLY. SHE WATCHES WAAAAAYYYY TO MANY MOVIES AND TELEVISION SHOWS ABOUT COACHING AND I BELIEVE THAT IS THE ROOT OF WHAT PEOPLE ARE SAYING IS HER "BAD BEHAVIOR".

SHE DOESN'T WANT TO LEAVE BECAUSE SHE KNOWS SHE CAN GET AWAY WITH BEING A BAD COACH BECAUSE ALL OF THESE GIRLS PLAY CLUB BALL BECAUSE MOMMY AND DADDY SPOIL THEM ROTTEN AND WASTE THEIR MONEY ON THEIR BRAT DAUGHTERS. BECAUSE THEY PLAY CLUB, ELIZONDO DOESN'T HAVE TO COACH. HENSE THE FIRST ROUND LOSS EVERY YEAR IN PLAYOFFS.

COACH CRAWFORD IS THE BEST VOLLEYBALL COACH IN CORPUS CHRISTI, HANDS DOWN. AND THE GIRLS WHO DON'T WANT HER AS THEIR COACH ARE STUPID SCARED THAT THEY ARE ACTUALLY GOING TO HAVE TO WORK AND PLAY HARD AND BETTER THAN OTHER REAL ATHLETES TO GET THEIR POSITION. IN FACT, WHEN COACH CRAWFORD WAS THE JV COACH, ELIZONDO WOULD TAKE HER AWAY FROM HER JV TEAM SO THAT SHE COULD COACH THE VARSITY. BUT JV STILL WENT UNDEFEATED THAT YEAR DESPITE THE SET BACK! HA.

BUT ANYWAY........

THE FIRST PERSON THAT SHOULD BE FIRED BEFORE ANYONE AT CARROLL HIGH SCHOOL IS COACH CANALES, THE GIRLS BASKETBALL COACH.

TALK ABOUT GETTING TALENT EVERY YEAR. ALTHOUGH SHE DOES ACTUALLY KNOW WHAT SHE IS TALKING ABOUT, UNLIKE ELIZONDO, SHE IS THE MOST HATEFUL, BELITTLING, SARCASTIC, MEAN, INSULTING, RUDE, ANGRY, INAPPROPRIATE COACH IN TEXAS I WOULD HAVE TO SAY.

BUT SORRY THE BASKETBALL PROGRAM DOESN'T HAVE THEIR LOAD OF RICH SPOILED BRATTY GIRLS TO PAY SOMEONE IMPORTANT TO GET HER OUT OF HERE!!!

THIS IS FRUSTRATING, I WILL STOP NOW BEFORE I WRITE A NOVEL.

BUT SERIOUSLY PARENTS AND ADULTS WHO WISH THEY WERE ATHLETES.

STOP LIVING THROUGH YOUR DAUGHTERS, GET A LIFE, AND LET THE GIRLS PLAY.

I SAY BRING IN A NEW COACH, PREFERABLY CRAWFORD, AND LET THE BEST GIRLS EARN THEIR PT.
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related links Posted by 231171 on May 8, 2008 at 10:51 p.m.

This is a joke! Too bad that so many parents don't get this fired up about academics...
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related links Posted by 444780 on May 8, 2008 at 10:52 p.m.

you pass you play.....
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related links Posted by 710669 on May 8, 2008 at 11:04 p.m.

amen post 231171, sports isn't everything..
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related links Posted by 245461 on May 8, 2008 at 11:23 p.m.

Post 235951,

That is because hardly anyone pays attention to soccer.

As a coach in the area, there are many things wrong with this particular situation. However, many have said we will never know the whole story, and they are right. Involving LULAC is ridiculous. There are so many more worthwhile endeavors than the reassigning of a coach. It happens every day across this state in every sport. Representing teachers is what professional teacher organizations are for, not LULAC. Even then, a reassignment of an extracurricular activity is not normally addressed by teacher organizations, only if you are fired.

If parents and players were so outraged and unhappy by Coach's actions, why is this just now emerging. Sounds more like sour grapes.
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related links Posted by 710237 on May 9, 2008 at 12:09 a.m.

Everybody can have their say but at the end of the day it is going to be between Elizondo and her immediate supervisor.

I suggest she do everything in her power to take on a different profile and attitude. She should consider taking a retreat this weekend out of town and think about all of this objectively. She is way off course right now. This weekend, I suggest that she watche "Mr. Holland's Opus" to get herself back to the basics.

If she wasn't going to be moved then, it should be a great consideration now for all the flab she has caused and the way she agreed to have the rally staged. She went too far to make a statement and it's going to come back and bite on her big fat butt.

As a Carroll High School teacher, I find this incident appalling. Just this evening we had one of our teachers highlighted over KIII-3 for his exemplary performance as an algebra teacher and for the fact that he has been in class each day this school year. Now that we are proud of and let it be known that we have a whole slew of staff members who do their job day in and day out without getting our students riled up. In addition, we may not always agree with the administration but we do what is best for the kids and give our very best. Why? Because at the end of the day, we are a team. We are a spoke in that wheel.

I don't think Elizondo acutally understands the "team: concept for the way she has allowed an incident to sully the entire campus and staff. Even within her girls' team she has broken them up literally. These kids should be thinking about final tests, graduation, their friends, and end of school parties rather than Doris Elizondo's mess with her professional life...which is now not so professional.

No, at Carroll High School, we want to be known for outstanding teachers and scores that reflect student hard work. We all work to this end...except for Doris Elizondo who has a personal agenda which is all about her ego. Just who do you think you are, Doris? Understand that another coach will come and take your place. Life will go on. Many of these kids will leave in May and some will leave next year or the next. The kids will get over it. Now, you need to get over it and get over yourself.

Why you would want to remain at Carroll High School is beyond me after this fiasco that has not and will not accomplish anything....because simply you handled yourself in a very bad way. There is no turning back now. This whole thing is already leaving a very bad taste in everybody's mouth.
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related links Posted by 235037 on May 9, 2008 at 12:19 a.m.

To all the parents who are upset about this ... It's just a game people!

To the coach ... Texas is a "right to work" state which means your employer can fire you at anytime for no reason so get over it. Coaches come and coaches go ... they are only as good as their last season.

I want to see the day that teachers make more than coaches and parents care more about grades than sports.
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related links Posted by 712444 on May 9, 2008 at 1:47 a.m.

As a former volleyball player at carroll I would appreciate it if those of you that don't know all the facts would keep your mouths shut. I am lucky to have made it out of that program still sane.

I have a few things on my mind:

1. Ms. Luna- Saldana you should probably stop saying that the "rich white girls" are the only people that want Elizondo reassigned. Take a look at the RICH WHITE GIRLS that are supporting her, I can guarantee their parents have given Elizondo more than she could ever ask for...money wise that is.

2. For those of you who do not know. Elizondo has gone so far as to threaten my friends life if she missed a serve, made girls play hurt...against their parents wishes, sabotaged scholarships, and should i mention the countless times she has not followed UIL guidelines.

3. If anybody wants to talk about professionalism and integrity...you should know that i have gone to a team mates house and walked in to find Elizondo drinking alcohol with that kids parents. Is that what you like to call professional? Just ask Elizondo where she spent most of her free time last summer...you will find it was at a players house.

4. The entire race issue, are you serious? Is that the only way she can save her job?

5. I have to agree with the comment about even a dog could coach this team. Elizondo is very very lucky for the amount of talent that flows through Carroll. She doesn't even have to coach, which is a good thing considering she would not know how. However, this team could have beaten Churchill if a better coach were around.

6. Coach Elizondo has had a history of complaints, so do not go around thinking this is the first time. SHOULD WE MENTION THE UNKNOWN REASONS FOR HER LEAVING SINTON?

7. Dr. Templeton is a great principle and we are so lucky to have him. He is simply doing his job, so lay off.

8. For all of you parents that pay off the coach and drink martinis with her so that your daughter can play, just know that in this thing i like to call "the real world" your daughter will never make it. Believe it or not you cant pay your way out of everything.

9. Also, for the little comments about academics. I will have you know that all of the varsity team at carroll is in the national honor society and 9 out of 10 of us are easily ranked in the top ten percent. So our parents do care about academics.

And for you girls on the team that are actually sticking up for what you believe in.... I commend you. Because anybody who has played on the team knows that EVERY SINGLE one of those girls deep down wants Elizondo gone, i know i have heard them say it. They just know that if a new coach comes along, the people that actually deserve to play will, and they will have to sit the bench because all those martinis their parents paid for will have gone to waist.
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related links Posted by 708421 on May 9, 2008 at 3:50 a.m.

Problems at Carroll Highschool? Tell me it isn't so. And I'm sure the parents don't have a thing to do with huh. Wake up Kitty Cats. Welcome to the real world.
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related links Posted by 710237 on May 9, 2008 at 4:09 a.m.

To 402661

You contradict yourself.

You don't have all the facts straight.

You have emellished some things.

You are clearly out for the principal so you must have another ax to grind because you have lost sight of the problem. Again, you do not have all the facts.

It appears you have been talking to every person that has gone in and out of the principal's office. What are you, the resident spy patrol? And I guess those people have shared every bit of information with you. Right.

You seem to be friends with all parties or so you state. No, you're not. If you think you are, you are a hypicrite and perhaps a back stabber.

No one paid anyone off. Where is your proof? You don't have proof...you are only conjecturing and that's not being truthful.

The Coach has been given a "fair shake." She just didn't like the shake she was given. Too bad. She needs to look into her own behavior with her students especially. Like someone stated...she is far from perfect....you just don't see it because you are blinded by your anger and ax to gind.

I would like to see her start using more respectful language around the students. There is no need for her to curse or to belittle students. That has to stop. As a parent that makes me angry and perhaps I should go and complain directly to the principal about this.
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related links Posted by 427586 on May 9, 2008 at 8:04 a.m.

I would be arrested if I treated my dog the way Coach Elizondo treats our girls. . Parents babying there girls NOT they are trying to teach them they have rights, they have a voice and when someone..no matter who they are treats them disresptfully, abusively, they should be held accountable. Coach Elizondo is a disgrace to CCISD, and Mary Carroll high school and the whole community of CC.
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related links Posted by 711523 on May 9, 2008 at 8:47 a.m.

I personally do not know coach Elizondo, but as a volleyball enthusiast I have spent many nights at the Carroll games this past year. Yeah, the team is great, but I too know that it has nothing to do with Elizondo and everything to do with the girls playing club. In a perfect world, club ball helps players master the basic skills needed to be successfull, and then a good high school coach trains the girls on other, more difficult aspects of the game such as strategy, reading hitters, blockers, and looking through the net at the defenders. I don't know if coach Elizondo would do this or not, but if she didn't then maybe that's another reason they can't get too far past the first couple of rounds.No matter what coach they replace her with the girls need to realize that its not about the coach, but the team and I hope they realize that before it's too late.

The following of volleyball is much higher up north. They have entire sports arenas dedicated for the training, development, and teaching of the sport. I am a club coach and we have a hard time securing a gym for practice because of all the basketball leagues always going on. Take for example, Austin Juniors, which is an AMAZING program and it has a lot to do with the facilities available, the coaching staff, and the age in which the girls start out.
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related links Posted by 231171 on May 9, 2008 at 8:49 a.m.

"And for the little comments about academics"...per 712444
Thank you, 444, for making the point for me...

"Dr. _ is a great principle..."
"will have gone to waist"

Just to cite a couple. I am sick and tired of my tax dollars graduating kids who can barely read and write. I too played sports in high school, but my parents always made it clear that the sports were secondary. I am infuriated that this is getting so much press and yet the drug and violence at ALL local high schools seems to be accepted. Things need to change!
related links Posted by 353542 on May 9, 2008 at 8:51 a.m.

(This comment was removed by the site staff.)
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related links Posted by 259368 on May 9, 2008 at 8:51 a.m.

"this team could have beaten Churchill if a better coach were around"

--AMEN to that statement

DORIS ELIZONDO = WHY WE LOST!!!!!!!!
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related links Posted by 711523 on May 9, 2008 at 9:08 a.m.

in response to 353542

Tasha Wilson is a great coach, she runs good plays and really understands the game. I have played against her 18's team, of which at least three players that I know of will be playing in college, and they are tough. As far as players not getting scholarships or college offers....that is not the high school coach's responsibility. Scouts don't even go to high school games all that much any more, they go to club tournaments were they can see 20-30 teams playing all at once. That is where college players are recruited.
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related links Posted by 711523 on May 9, 2008 at 9:20 a.m.

Man, Churchill is just the tip of the iceberg....the girls need to train to beat teams like Amarillo and Westlake. Those are the big dogs in Texas Volleyball right now.
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related links Posted by 232802 on May 9, 2008 at 9:23 a.m.

Posters, please check your spelling and grammar.
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related links Posted by 234552 on May 9, 2008 at 9:29 a.m.

Where's Coach Slaughter when you need him.....
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related links Posted by 711523 on May 9, 2008 at 9:34 a.m.

in response to 232802

Man, if spelling and grammar anger you that much it is a wonder you even read the Caller Times....it must drive you mad trying to pick through all the spelling and grammar mistakes made by professional writers.
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related links Posted by 260472 on May 9, 2008 at 9:44 a.m.

in response to 711523

I would love to see Tasha at Carroll!!!
Now, she is an excellent coach. It sounds like Elizondo has dug her own grave.
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related links Posted by 335355 on May 9, 2008 at 10 a.m.

First of all, I've tried to talk to coaches and most of the time they are unapproachable. Second, my daughter has told me not to get involved, what for they are only going to do and say what they want and in the end it's the kid that gets hurt. I feel if these girls are going on to play professional volleyball, yeah they have a right to complain.........but what are the odds. Most and I say most, of these girls only are seasonal players and have no intentions to go on and play volleyball or basketball for a career.

My motto is once you step out on that court, you are all business..You have no friends (including the Coach) and you are there to do a job............My daughter stays out of the drama and as parents we need to do the same.

However, on that note. Why does CCISD allow this kind of behavior from Coaches. They can curse, scream, yell, and just not play your kid..........and if you get involved they take it out on your kid. THAT'S FACTS. Some of these kids given a chance would be better students and later on be productive citizens. But when you have teachers and coaches always bringing them down all the time................the respect just went out the door. I could go on and on...........But in the end the teachers, principle and coaches all stick together. WHY? WHY?
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related links Posted by 232861 on May 9, 2008 at 10:31 a.m.

Lulac makes me embarrassed to be Hispanic... give it a rest already!
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related links Posted by 710237 on May 9, 2008 at 10:44 a.m.

After reading the posters, it seems things are not going the way Elizondo would have liked. She has made things worse for herself. What a shame.

The LULAC debacle has blown up in her face.

I hope LULAC is more careful next time in the causes they take on. This clearly was out of their range. Susie Luna misled LULAC and used them in a way that was not within it's mission. This was not a race issue but Luna made it into one. They evidently did not have all the facts. I am upset with LULAC for this very reason...for acting so dumb. Something like this only makes everyone consider the organization weak, out of touch, ineffective, and not having much to do in today's world. Is this all the business they could drum up?

If Elizondo sticks around a bit everyone will find that more posters have more things on her. She should have given that some consideration before going so public. Wait until some of the stuff about her very pesonal life comes out.

I suggest she consider resigning, accepting another position in or out of the district while she has a pick of places to go...but of course, after all of this hoopla who do you think will want her? NO ONE.

I don't see how the district can help her now because as everyone has stated, she has crossed the line in more ways than one. Let's see what type of rally will be held next to try to straighten all of this up. I wonder what next step (or mis-step) Luna is strategizing for Elizondo now.
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related links Posted by 402661 on May 9, 2008 at 11:01 a.m.

to post 259368;

I do have my facts straight and I do know what I am talking about. I don't write things that aren't true. So maybe you don't know your facts. And I am not your "buddy". I am not a backstabber and/or a hypocrit. I know things to be a fact. So before you accuse anyone of writing false information look in mirror.
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related links Posted by 703974 on May 9, 2008 at 11:20 a.m.

Post 232861 = BEST. POST. EVER.
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related links Posted by 232802 on May 9, 2008 at 12:18 p.m.

in response to 711523

You are correct.
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related links Posted by 711216 on May 9, 2008 at 12:36 p.m.

Amen to 232861. Sad but true.
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related links Posted by 454245 on May 9, 2008 at 1 p.m.

I have tried to be silent on this matter but find I cannot.
First, pretty much every post on this thread has some truth to it...some just a scintilla of truth and some are just so truthful it hurts. Lots are intermingled with conjecture and supposition.
All sides have had their opportunity to voice their opinions to Dr. Templeton and some have gone higher up the food chain with their opinions.
It is time for this to stop. This is way bigger than the sum of all of us at this point. Let's hope the admininstration can make a decision that is in the best interest of ALL of our kids. And we need to worry about our kids and the lessons they are learning. My hope is that they can be more mature than their parents, come together and kick some butt in volleyball this fall....regardless of who is the coach. I am confident that my child's abilities will be apparent to any coach.
Nearly beating Churchill is just a start. Our girls have a tiny taste of success in competing with the big kids. Let's remember that volleyball is still in it's infancy in South Texas. What we are experiencing are ugly, nasty growing pains. Girls get college offers from playing club volleyball. Period. Unlike alot of sports, it is hard to be seen unless you play club.
And yes, I am a white parent. My kid is spoiled as much as any other. I have forked over thousands of dollars in club fees. We all have. I suppose it's unfortunate that we have had to but that's what makes this game so competitive and why so many parents feel they can be so vociferous. Ask any player from Austin or SA that will play in college if they played club and they will emphatlcally tell you they did and for alot longer period of time than most of our girls. And surprisingly you don't necessarily have to be rich to play club. A good player will get their club fees subsidized by the club.
This a complicated and very unfortunate matter. CCISD...PLEASE make a decision soon. It is already very late in the year to be looking for a new coach. If you hire a new coach, choose wisely. Dr. T...I'm sorry you got caught in the crossfire on this. I personally think you have very high standards; that is refreshing. I fear CHS will be looking for a new principal next year.
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related links Posted by 342632 on May 9, 2008 at 1:08 p.m.

I think we should hire Chuck Norris as a replacement for her.
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related links Posted by 252401 on May 9, 2008 at 1:15 p.m.

Chuck Norris would keep all of these people in line--players, parents, coaches, adminstrators, and control-freak type booster club members. Give me a C-H-U-C-K. Go CHUCK.
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related links Posted by 232999 on May 9, 2008 at 1:24 p.m.

CCISD will wait untill the summer to move her and no one will know . The smoke will pass and you will have a new coach in the new school year . Tigers get over it it is time to cut the rope and get a new start with a new coach that will respect her players and parents .
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related links Posted by 458038 on May 9, 2008 at 1:54 p.m.

The Carroll Volleyball Girls are starting to heal amongst themselves. They are talking and agreeing that all parents
should not have gotten so involved. They are realizing that
regardless they are a winning team.

As a community, parents, friends, coaches and teachers lets stop and not demoralize them or their families anymore. Lets help them stop bleeding and start healing.

We have to remember they are teenagers. No we don't want them
belittled or treated unfairly, but these girls will soon graduate and
have to face the real world. Give them the tools they need to make
it in the real world. Talk to your daughter today and be a part of
their healing. Lets lift them up and prepare them for what ever happens.

It is out of our hands and in God's.
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related links Posted by 252401 on May 9, 2008 at 1:59 p.m.

If the citizens of Corpus Christi worried as much about academics and student discipline as they do about athletics, our school system might see some improvements.
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related links Posted by 712435 on May 9, 2008 at 2:08 p.m.

in response to 427586

To post 427586

You've given your identity away in your post, but why would you think anyone was booing you? Nobody mentioned your name or anything, do you have something to feel guilty about? If not, you certainly have a right to your opinion as much as anyone else does, just respect that.....but that comes with maturity.
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related links Posted by 233913 on May 9, 2008 at 2:17 p.m.

It wouldn't hurt Carroll to take a hard look at more than just one of their coaches, and what the relationship is between the coach, the players, and the booster clubs. I would like to hope that this time the involvement in the parents is to actually improve the quality of a coach - but I have seen booster clubs stay very quiet as long as their child is playing.... and I have seen (as a parent of an ex-Carroll player) a coach take an active role in trying to demoralize a player and or a team. I don't think Morris will take an active position in policing his own coaches, cause "if it ain't football it ain't important" at Carroll....
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related links Posted by 454245 on May 9, 2008 at 2:26 p.m.

in response to 233913

Amen.
There are lots of coaches at Carroll that need to be worried. If Elizondo isn't a saint or a good coach, she's had excellent role models in negative behavior in the athletic department at CHS.
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related links Posted by 710237 on May 9, 2008 at 2:35 p.m.

I don't think it is in the best interest of the kids for the coach to remain at Carroll. Some of the kids will be sad at first but they will get over it. This thing has gone on too far...to the point of no return.

Believe me, life will go on.

I don't care how good you think you are, you leave a position in the school district due to retirement for example, you are replaced, and you are forgotten. That's life.

Elizondo will move on and be forgotten. Unfortunately, the way she mishandled herself will live in her thoughts for a very long time. What she should have done, what she could have done will all haunt her until she can be honest with herself and realize SHE WAS VERY WRONG.

And LULAC...you are an embarrassment to my hispanic culture. You have become a joke. Find real issues, will you? You have lost true substance and integrity to your cause. Do yourselves a favor: I suggest you lose Susie Luna really fast. Do not allow her to intimadate you. Find real leadership.
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related links Posted by 454245 on May 9, 2008 at 2:42 p.m.

I don't really know that much about LULAC...but did they say their presence at Carroll was because of racial discrimination or because of some perceived unfairness in the manner in which Elizondo had been treated? Does the presence of LULAC automatically mean racial discrimination or is that implied?
Just curious.
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related links Posted by 710237 on May 9, 2008 at 2:52 p.m.

PS: the administrators might have said in the article that "no final decision" had been made about Elizondo's reassignment...well, I think a final decision needs to be made pretty soon and not in her favor. I think they have all the information they need.

She is afraid she will get reassigned? You bet. The writing has been on the wall. Smell the coffee,Doris, especially after this past week. What would you expect?

And guess what, Elizondo, YOU CAN be reassigned. Teachers are reassigned all the time especially at the end of the school year due to projected enrollment. Do they like it? No. Do they do it? Yes. Do they run to LULAC and pull the race card? No. Do they allow a rally to held across the street of their school? No. Do they allow their students to get involved? No.

Grow up, Ms. Ellzondo. Get with the program. What do you feel makes you so special? A few wins? A few martinis with the parents? A few late night visits? Hugs from the kids? I think you were made to feel very special and irreplaceable...but sweetie, it wasn't about you...it was about what you could do for particular kids. Makes you feel used, right? Well, you were but you fell into it because it made you feel special. No one is special in this world. I guess you missed the memo.
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related links Posted by 292564 on May 9, 2008 at 3 p.m.

This situation is now out of hand . . . . The Coach cannot stay with all this baggage, right or wrong is not the issue any more, the situation is poison. It's gone too far. What is best for the kids?

Doesn't every employee and teacher sign a contract and they agree to go where they are assigned. It's now time to move on. When one door closes another one opens. For the sake of the kids, a change is required and it must be done quickly.

This coach went way over the line getting the media and political groups all stirred up over a possible transfer. That was wrong and now we have a racial flash point in the works. Is anyone thinking about the kids?

What is the best thing for all at this point in time? CCISD has no choice but to fix this and move some folks around and begin next year with a clean fresh start. If this coach is as good as some folks say, well, she will take her new team to the top and show everyone. Remember, she still has a job.

CCISD must act. Leadership is needed. Make this bad situation HISTORY! Sweep this clean and let's start over . . . . If she stays it won't work and she'll end up leaving anyway, so why delay this?
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related links Posted by 238212 on May 9, 2008 at 3:08 p.m.

in response to 252401

You are right on. Her winning record speaks for herself. If the record was poor everybody would be screaming to get rid of her for that reason. She is obviously getting it done as a winning coach.
Cry baby cry.
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related links Posted by 335355 on May 9, 2008 at 5:26 p.m.

in response to 292564

Are you saying just sweep it under the carpet..............
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related links Posted by 462770 on May 9, 2008 at 6:13 p.m.

I have two Grand Daughters who played for Coach E and she was always teaching the team not only to play well but to play in a sportsmanlike manner. And if you didn't you were benched.. If you didn't work hard not only at Volley Ball but in your academic subjects you were benched... Whats wrong with that ? Its what every coach at any level insists on. If your skills aren't up to par or you can't take the discipline you don't play. Thats true no matter where you go to school and thats as it should be... Parents should be cheering the team on and helping the team through the booster club not trying to ter the team apart through politics....

Just be aware that the previous coach was forced out for the same reason that they are trying to force Coach E. out... Parents who don't understand that all the kids who go out for a sport can't be full time participants... Your kid may be a role player but not suited for full time...

By the way where is the racial baggage in this other than Doris is not anglo. But who the hell cares... My anglo family doesn't !!!!!
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related links Posted by 427586 on May 9, 2008 at 6:56 p.m.

in response to 712435

It wasn't that they said my name specifically , but they DID point to me and the other two girls and say "those THREE girls". That still counts as singling someone out. NO, I'm not guilty of anything except keeping my word and staying true to what I believe in.
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related links Posted by 262411 on May 9, 2008 at 7:24 p.m.

Parents should consider what all this drama does to the kids after they rant and rave. I don't see any good in any of this, except freedom of speech. Parents of players should be the ones that set the example. Let CCISD conduct their investigation and make a decision. We could put other coaches names on here and somebody somewhere will have something negative to say. People like to complain. Most non-winning coaches never get the heat or exposure that the good ones do. I've read the comments that the only reason why this coach wins is because the girls are on club teams and play year-round, that's partly true in my option. However, the Tigers have played and beaten other teams where the other girls have just as much or more club experience. Last year's volleyball team has gone as far as any other High School Volleyball team in CCISD history. They got beat by SA Churchill in a very close game. I got to see that game. They didn't lose because of the Coach, they lost because the other team was better. The girls played at their very best against a team that was slightly more talented. The girls played a strategically coached game. Elizondo inspired that team. Sideliners will disagree. High School Volleyball is in a different playing environment than club ball. In club ball, parents and coaches can pool from the very best talent in the area. High School Coaches are stuck with what comes to that school. Club ball is usually where parents can use their manipulative skills and money to get their daughters more playing time if they suck. This is harder to do at a High School where most coaches and administrators don’t care how much money or influence you have, exception Carroll. Getting past regionals is not a coaching issue but more of a talent issue. Most of these players on other teams at the regional level, go on to play Divison I,II, III or Juno. They are just plain good. You can count on your fingers the girls from here who got signed at colleges, not many. I think this Coach will have a successful season next year, if she's left alone to do her job as she has done the last six plus years.
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related links Posted by 262411 on May 9, 2008 at 7:40 p.m.

I believe some CCISD officials and some parents have circumvented due process. CCISD has stated that she has not been re-assigned, yet there is a recorded conversion of two CCISD officials with Elizondo in two different conversations that state she's been re-assigned and saying the date for her leaving is at the end of May. This is the real sad part. No due process and Elizondo’s supervisors not trying to protect her from accusations that haven’t been proven yet. If this is how it’s going to go down for her, then her supervisors have “crossed the line” and not Elizondo. If there is a new coach, will they have the same type of treatment if they upset a couple of parents because they don't play their kid or yell at players? According to some of the allegations I’ve heard and read, if we hold all coaches to these same standards then we won't have any coaches. I can't believe any body would put up with all of this garbage from these parents. I’m shocked at the level and extent they’ve gone. I’m shocked at this diatribe I’ve written. I won’t be surprised if she just quits. This will be a setback for the girls next year, especially for the returning seniors. What a way to ruin it for them. Damage to this program has been done and is being done. I wouldn't want this job having to deal with all these crazy parents. But my dog might, because anybody can coach this team because the girls have club experience that has been bought and paid for right? No, wait a minute, Carroll needs a better coach who really knows volleyball so they can……win?
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related links Posted by 712475 on May 9, 2008 at 9:54 p.m.

Thanks to the mom in charge of the support Elizondo T-Shirts. I suppose this is what the coach wanted you to do. These T-Shirts truly divided, destroyed, and ruined friendships on this team.
I commend the assistant football/weightroom coach for stepping in and trying to reunite these girls. We need more coaches like him. What was this mom thinking ? Obviously, she didn't have the team's best interest in mind.
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related links Posted by 711381 on May 9, 2008 at 9:55 p.m.

WOW!!!!! This stuff really happens. I heard of it but now It must have some validity. The vb and bb coaches at Carroll need to go sit down and talk to my former coach. I played basketball for Coach Roy Williams at West Oso; (I played vb too). He preached (literally) without all the curse words. He demanded a lot out of us without belittling us. Actually he made us believe we were better than we thought we were. He stressed academics and helped some of my team mates get scholarships. He also helped those who didn't want to play in college acquire academic and other scholaships. He was honest with us about our roles and our playing time. Once you were on Varsity you had to earn your time. When I played J.V. we all played as long as we were in practice but come Varsity you would get a uniform but I had to earn my time on the floor. BUT HE LET US KNOW. He didn't care what a (or my) parents thought. It was our program; the girls, Coach Avery, and our other coaches. NO BOOSTER OR PARENTS OR FACULTY. We all understood that from jump street. Fire the Carroll coaches if you want too but if not send them to talk to him (have some time though-he can preach). He'll teach them about repect for players and how to make a positive difference in their lives six years after they graduate. I guess my team mates and I were very fortunate to have played for Coach Williams; I always knew this but this craziness at Carroll confirms it. Good luck you guys.
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related links Posted by 712435 on May 9, 2008 at 10:53 p.m.

in response to 427586

Sweetie, no one singled out and said "those three girls", it just didn't happen, they said 2 or 3 parents of just a few girls.
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related links Posted by 712435 on May 9, 2008 at 10:55 p.m.

in response to 427586

Oh, and no one POINTED at you!
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related links Posted by 427586 on May 9, 2008 at 11:08 p.m.

i think i would know, i was standing there and you can ask any of the two other girls, they did point at us.
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related links Posted by 702497 on May 10, 2008 at 12:17 a.m.

I don't care about most of the things people are saying about this coach. However, this coach is setting a bad example by drinking in front of her students. I don't care if what she does on her own time is her business. That would be fine if she was nowhere near her students. She is not a professional. She is no better than the parents that want her out. Both parties are sorry excuses for role models.
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related links Posted by 327075 on May 10, 2008 at 7:23 a.m.

If the caoch were so great, most everyone would be behind her, I have seen it happen many times before. I know many faculty members at CHS and every single one of them has told me that they are ashamed by the way this whole "press conference" went down. One of them put it well by saying that the staff wants to be known by academic excellence not coaches with bad character. I suppose this is just another in a long line of Carroll coaches with a less than adequate character. Its too bad too because the shcool has great kids and a great staff overall. I think an even bigger house cleaning is in order.

One more thing, I am Hispanic and have always been proud of that. This is not one of those times. I have supported LULAC in the past...no mas. I now think that less than adequate character is also with the LULAC leadership....at least from the lady I saw talking on the TV.
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related links Posted by 427586 on May 10, 2008 at 7:38 a.m.

in response to 712435

I am the parent of this poster... BACK OFF!..... she has enough to deal with .... as you posted ... everyone has a right to an opinion .. .... so think this is enough! Leave her alone.
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related links Posted by 710462 on May 10, 2008 at 9:38 a.m.

Lulac has lost my allegiance, what a joke they have become. Shameful!
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related links Posted by 709651 on May 10, 2008 at 10:19 a.m.

I am appalled that I ever paid AFT dues to support Susie Luna's salary. She is a disgrace and I hope all of the dedicated teachers who pay hundreds of dollars each year now have a clear idea of who they are allowing to represent their interests. I am proud and grateful to say that this woman will never represent me. How LULAC allows her to use its name is beyond me.
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related links Posted by 712481 on May 10, 2008 at 10:28 a.m.

What qualities make for a good teacher and a good coach? Think on that for a minute! Would a really good leader and role model have put her students on her battlefield? This situation should have stayed between Coach Elizondo and her supervisors. Coach should never, ever have told her "girls" and students about her meeting with her supervisors. She shamelessly and SELFISHLLY brought them into this. She has told them lies and assumptions that have single handedly destroyed friendships and a winning team. Why bring in the race card Coach? Why use and MANIPULATE your "girls" in such and EVIL way? This has never been about RACE, MONEY or PLAYING TIME! So Coach, why bring in LULAC, NAACP and the GI Forum? These girls have never once thought about their color or money before, until YOU brought it to their attention. As for all those parents who griped, complained and spoke against their "beloved" coach to other players parents and to other Carroll Coaches, you know the TRUTH! Coach Elizondo, if you were any kind of decent human being, you would leave with whatever dignity you have left. You don't even have the support of your peers: not teachers, coaches and administrators, why would you want to stay? YOU and YOU alone have successfully destroyed your "girls" by using and manipulating them in such a shameless way. If you really cared about them, how could you do this to them? How could you allow them to be used like this? How could you put them in this situation? Is this the best leader for these students and athletes. I am thankful that my child is no longer a part of this game playing and I am so glad she walked out of that gym with her dignity and esteem in place. Coach, just do what is best for your girls, your parents and your school, go away gracefully!
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related links Posted by 346709 on May 10, 2008 at 10:30 a.m.

in response to 712435

If this business about the Whiners ("whinning" and dining carroll coaches & administrators to influence playing time for spoiled kid), is true---then the gutless vendido coaches and the integrity bankdrupt high school leadership and ccisd, to include superintendent, need to be removed. We need to make this coach who has the guts to stand up to this crap and crappers and make her superintendent today!

There are worse things than a couple of so called bad words, how about morally & ethically bankrupt leadership?
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related links Posted by 245502 on May 10, 2008 at 11:01 a.m.

A show of hands,kids..how many here are surprised that Susie-Luna-Self Promoter would once again seize on a matter that doesn't conern her and has nothing to do with her and use it to get a little more face time on TV?

What is it with this portly shrew that she feels the need to turn everything into a racial issue simply to get a little more self publicity? Between she and Nancy Vera,they've dragged the reputation of an otherwise fine organization like LULAC through the sewer with their shameless race-baiting antics and pathetic need for self-promotion.I used to be an ardent supporter of LULAC but no more..I refuse to support organizations that are "led" by race-baiting publicity hounds who are more interested in where the microphones and cameras are than in doing what's right and just.

Dr. Hector must surely be turning over in his grave over what race mongerers and publicity hounds like Saldana and Vera have done to a once noble organization.A pox on both of them for turning LULAC into a joke and the object of scorn and ridicule..they've destroyed LULAC's credibility simply to make a name for themselves,and in the process,set the cause of civil rights back 20 years with thier blatent pandering and self promotion.

They've cried "wolf" far too often,to the point that people are sick of hearing them,and,as in the children's story,no one will pay attention to them when the "wolf" really does appear.If LULAC still has a shred of the integrity and courage they once had,they'll purge themselves of the likes of these two self serving,shameless publicity hounds.
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related links Posted by 712481 on May 10, 2008 at 11:02 a.m.

What qualities make for a good teacher and Coach? Think on that for a minute! Would a really good leader and role model have put her students on her battlefield? This situation should have remained private between Coach Elizondo and her supervisors. Coach should never, ever have told her students nor her players about what her situation was. She has selfishly and shamelessly
brought her students and players into this. She has told lies and assumptions to these children that have damaged friendships and the chance to have another winning team. Why bring in the race card Coach? Why use and manipulate your "girls" in such an EVIL way? This has never been about RACE, MONEY(who has it and who doesn't) or PLAYING TIME! So Coach, why bring in LULAC, NAACP and the GI Forum? These girls have never once thought about their skin color or their money, until you pointed it out. As for all those parents who griped and complained about their beloved coach last season to other players parents and other Carroll coaches, you know the TRUTH!! Coach Elizondo, if you were any kind of decent human being you would leave Carroll with whatever dignity you have left. You do not even have the support of your peers: teachers, fellow coaches or administrators. Why would you want to stay? YOU and YOU alone have succussfully destroyed your "girls" morale by using and manipulating them in your battle. If you really cared about them, how could you have done this to them? How could you have put them in this situaton? How could you do this???? Is this the leader you parents want? I am so thankful that my daughter walked out of that gym with her dignity and esteem still intact, despite the role model she was given. Coach, why not just bow out gracefully??
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related links Posted by 702497 on May 10, 2008 at 11:14 a.m.

in response to 245502

She is nothing more than another Jesse Jackson. I am Mexican and I hate LULAC. They are nothing more than a club for racists crybabies. They make the rest of us look bad.
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related links Posted by 712481 on May 10, 2008 at 11:51 a.m.

in response to 702497

Don't forget the NAACP and the GI Forum. I am hispanic and I have made a good name for myself both professionally and socially and these groups just obliterate anything that I have ever done for myself. Where is hard work in all of this? Go get a real job would you and promote real Hispanic issues.
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related links Posted by 710686 on May 10, 2008 at 12:59 p.m.

Raising my hand....Susie Luna is a joke. My friends who are teachers have left AFT just because of her. Now that's sad.
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related links Posted by 711842 on May 10, 2008 at 1:27 p.m.

Susie Luna and Joe Ortiz....I have never once seen these two clowns ever, EVER build something or someone up. I have only seen them tear people down. I was also an AFT member who left the organization long ago because of the way they have made us as teachers look like idiots. AFT president Juan Guerra is the icing on the cake.

It is much more than a couple of bad words, poster 346709. A teacher who gets drunk in front of her students, repeatedly intimidates them with the use of the "F" word, and much more...the ends do not justify the means.
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related links Posted by 709651 on May 10, 2008 at 1:58 p.m.

in response to 346709

Based upon their conduct in this situation, I think the phrase "morally & ethically bankrupt leadership" applies more to LULAC and AFT.
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related links Posted by 712482 on May 10, 2008 at 1:59 p.m.

I am incredulous that ANY teacher feels it is acceptable to curse at a student for ANY reason. Unfortunately, many of us are aware that belittlement and humiliation of students by some teachers and staff occur all too frequently in our schools. The enlightened among us also know this behavior has absolutely no redeeming value in society, much less in an educational setting. Over the years, I have heard numerous stories and at times witnessed students being disrespected by faculty, staff, administrators, and I always think, “How on earth can we expect our youth to learn to treat others with respect and dignity if they are not receiving it themselves from some of the most important role models in their lives? What positive lesson can a child possibly glean from sarcastic, spirit-breaking comments?”

We all share responsibility in helping our students grow into caring, compassionate adults. CCISD, for the sake of our community, please view this debacle at CHS as an opportunity to revisit and reopen this imperative dialog, a reminder that we must all continue to be positive role models for our children and for each other.
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related links Posted by 712483 on May 10, 2008 at 2:39 p.m.

If anyone knew the real truth of what was going on, they would know she needs to leave.
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related links Posted by 712483 on May 10, 2008 at 2:50 p.m.

I am dropping my membership to AFT for their role in this. They needed to check their facts before they took sides.
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related links Posted by 712484 on May 10, 2008 at 3:46 p.m.

This is getting ridiculous. If all of the accusations are true, and it does sound like there are plenty of witnesses who are ready and willing, then she needs to do the right thing and resign. Our children have CIVIL RIGHTS to have a coach who knows how to be a PROFESSIONAL, even though she has brainwashed some of them into thinking they can't do it without her. Just because she is the head volleyball coach does not mean she is immune to to following the rules. Every employee of the district signs a contract that says they can be reassigned at any time, but after all the hoopla she's created, who's going to want her or trust her now? By involving these civil rights organizations instead of owning up to her poor judgement, all she has done is created negative publicity for herself. The players would be much better off with a coach who conducts herself/himself in a professional manner. I'm proud of CCISD for standing up for what they know is right in this matter and not being intimidated by her or AFT's scare tactics. Not that AFT has much credibility, but maybe they should be more careful who they chose to represent in the future by getting all the facts first and looking into the history of whoever's requesting their representation. By the way, what are Luna's creditials anyway?
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related links Posted by 710237 on May 10, 2008 at 3:54 p.m.

in response to 245502

I'm raising my hand, too!

Finally you and others are seeing my earlier point when I referred to Luna as "Atilla the Hun." This woman is a disgrace to the AFT and to LULAC. I don't get it. Why do they put up with her? And that goes for her protege, Nancy Vera, who is a younger version of Luna. I guess that makes Vera a "Hunette."

Why do AFT members allow this to go on and allow Luna to be part of the AFT personnel? She proports being a lawyer but guess what? She is another Celis. She doesn't even have a degree! So AFT members how in the world do you allow her to represent you who hold certified degrees? All she does is intimidate by her presence and loud mouth. Is that what you really want?

And for those not in education, let me tell you that Luna does nothing to uphold solid good teaching. She isn't even a teacher!She represents teachers who have had problems in the classroom teaching and are wanting to hold on to their jobs when they should be getting out or fired! I will not work alongside anyone who has the AFT represent them when they do a lousy job. I got out of AFT because of this and I suggest the rest of you who were blindly led to join...get out at the end of this school year. You are better than AFT.

But thankfully, the AFT no longer really holds the power in the district it once had because they are a joke...but they were always a joke.

LULAC, like the AFT, needs new leadership. LULAC has lost it's credibility. The poster is right...they cry wolf too many times. And now when I see someone being protected by LULAC I know immediately the person is a loser. LULAC no longer upholds what is good and fair. I don't even think that Joe Ortiz is smart enough to decide who and how to represent a case for someone who might have a real issue. Ortiz step down and allow someone to take over who can bring LULAC back to it's once stellar era. You probably don't even know what I mean by that, do you?

Anyway, thank you to all the posters who finally came out today to make statements about Luna/AFT/Ortiz/LULAC. I thought I was all alone out there.

I hope Ellizondo realizes how badly she was misled. She was used yet she did allow it.

But I still think she needs to resign gracefully while she still has the opportunity. Just leave quietly with no dust behind you. Start over some place. Make this a hard lesson: Don't drink in front of your players or with their parents; stop cussing around the kids; start finding ways to treat kids with dignity and respect; refuse any type of gifts; if a parent takes you out to dinner, get a separate ticket. If parents want or insist in giving you a gift, tell them to make a donation to the Booster Club in your name. Keep it all clean. I do wish you the best of luck. You deserve another chance but in a different school district.
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related links Posted by 711577 on May 10, 2008 at 3:55 p.m.

This volleyball issue is not now and never was about playing time! That is just a lame excuse to try to make parents who care about their children and their welfare look like they do not have legimate motives. This is also not just about foul language. Although not condoned, the real heart of the issue is about the mistreatment, cruelty, demoralization, and retaliation that has been going on for years now. It is a miracle there are any girls left on the team! Thank you to Terry Morris and the rest of his coaching staff for treating the players with the respect they deserve,being good adult role models, and representing an athletic program we can all applaud! Dr. Templeton is a man of honor and is doing a great job! Carroll High School is lucky to have him!
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related links Posted by 711842 on May 10, 2008 at 4:06 p.m.

With regard to the person who said Coach Elizondo teaches Health, which includes sex education....the sexual references she made / makes to students are not part of the health course, trust me. These are explicit remarks she made / makes regarding when the girls on the team might have lost their virginity, when she lost her virginity, how young men use their sex organs and for what, etc.

Completely inappropriate.
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related links Posted by 710237 on May 10, 2008 at 4:09 p.m.

in response to 712484

Luna was a paraprofessional before she became part of the AFT personnel. Even as a para she was "hell on wheels." When she left to join the AFT personnel, her last two schools threw a party because not only was she divisive on the campus but she was a lousy paraprofessional because she was always busy being the building rep and stirring the pot. I guess she was busy building herself up so she could work at the AFT local office. So, she was never in the classroom where she belonged tending to special needs kids. This was during the busing era.

As a para she might have had some college hours but back then one probably didn't even have to have college hours to be a paraprofessional but just hold a high school diploma.

Luna does not hold a degree yet she represents teachers. How stupid is that?
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related links Posted by 710237 on May 10, 2008 at 4:10 p.m.

in response to 711842

OMG!!!!!!!
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related links Posted by 712483 on May 10, 2008 at 4:18 p.m.

in response to 711842

You are absolutely correct.....even the young men in her classes think she is out of line and have been embarassed by her crude & consistently inappropriate remarks. Students know the difference in moral character and integrity and this has become a sad joke. Where are those three R's on the CCISD poster? There are many outstanding teachers & coaches of the highest moral standards at Carroll High School and this should not be a reflection on any of them!
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related links Posted by 710237 on May 10, 2008 at 4:20 p.m.

Oh, by the way, I think you all should know that there is one school board member who is wined and dined by the AFT year after year and that is LUCY RUBIO.

You can find how involved Lucy Rubio is with the AFT by all her photos on their website.

AFT and Lucy Rubio...great bedfellows.
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related links Posted by 710237 on May 10, 2008 at 4:22 p.m.

in response to 712483

Again:

OMG!!!!!!!!!!!!!!!!!!!!!!

This is outrageous. This woman should not be allowed on campus on Monday. She needs to report to the Supt.'s office.
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related links Posted by 712483 on May 10, 2008 at 4:29 p.m.

in response to 710237

It is all true.......the actual wording she uses to kids and the lies she has spread about children could never even be written on this blog.......there can never be any excuses for it........it is unbelievable!

We must be a community that continues to protect our children in all situations. We must demand that the schools have adults that continue to be positive role models for our children. We must not turn our heads and allow this to continue.
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related links Posted by 709651 on May 10, 2008 at 4:45 p.m.

in response to 711842

This is my understanding -- from both students and colleagues -- also. Her behavior with students has been completely inappropriate and something that should be dealt with by administration as a personnel matter....in spite of AFT and LULAC's attention.

Unfortunately, the teachers who pay dues to AFT thinking it is a professional organization are supporting very unprofessional behavior. Although I was a member, I was also made a target by the very people my membership dues supported.
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related links Posted by 243825 on May 10, 2008 at 5:26 p.m.

No one has stated exactly what the issues are which makes it all seem to be specualtion. If someone knows the exact allegations list them, because it seems obvious that that they weren't listed in a professional evaluation of this coach/teacher and are therefore not in her record. If there is not a mention of any allegations in her record there is no easy way to remove her. Teachers have contracts and as such have due process. The supervisor here does not seem to have followed proper procedures - ie verbal warning, written warning, etc.
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related links Posted by 710686 on May 10, 2008 at 6:32 p.m.

As long as this Luna woman is a part of AFT, everyone should just save their money and not join. Send a message loud and clear.
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related links Posted by 702497 on May 10, 2008 at 7:29 p.m.

I will say this much...I hope this coach is happy now. Look at the mess she has created. Looks as if it backfired on her. If she is making sexual insults to her players and talking inappropiately to her students then she needs to go. I don't want her near my kids. If she was ever to say anything that she is being accused of saying to my children I would raise hell with the district. There is no need for this kind of behavior. There are too many people on here that are complaining about the same thing. It is hard to take this coach's side.
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related links Posted by 454245 on May 10, 2008 at 9:22 p.m.

in response to 711577

I'm sorry...perhaps I misread this? Terry Morris treats players with respect? You have got to be kidding. He is the worst role model that our kids could have.
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related links Posted by 710237 on May 10, 2008 at 9:31 p.m.

in response to 243825

And how should you know? Such information from the direct supervisor is not made public unless Elizondo wants to make it public and this is something she does herself;otherwise, it is a personnel issue and the direct supervisor is not at liberty to address it with the public.

Elizondo evidently has not told you the entire truth or "the rest of the story." I guess she also thought that the flack that has surfaced about her would never hit the news but it has. She under-estimated what the parents and the public will stand from their child's coach. Shame on her!

Susie Luna, her "sponsor, " failed to list the issue/s other than she had something on tape she was so willing to play at the rally. Big deal. If the school's AD told Elizondo she was going to be reassigned, he had every right to do it. The race card was brought up to get attention. It had nothing to do with race. Now, all of this has snowballed and done more harm than good for Elizondo.

I find it very interesting that I have not found one teacher or parent support her in this. The statements in the CT are overwhelmingly negative of her. Please recall the incident with the former Ray High School principal. He had hundreds of positive statements about him. But Elizondo has none and what has been stated is all bad. She needs to go.

By the way, Elizondo was offered due process but she never wanted to meet with her principal to addres or resolve this issue. Again, she received poor advice from Susie Luna.

Now, I feel there are enough comments that now the principal must address them. The entries about the sexual information during the health class needs to be investigated. Perhaps CPS needs to interview the students.

Like many things probably the parents and the students never wanted to bring up because they were afraid of Elizondo and her vindictive behavior towards her players. They kept quiet. Perhaps that is why some of the parents used the other tactic to be nice to her so she would in turn be nice to their kid. Now, everyone feels more at ease to bring these things out...they all need to be investigated and addressed. Please begin with the CPS and her teaching during the health class. I am outraged and am glad she has never taught my child. If she remains at Carroll, I will never never allow her to teach my child.
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related links Posted by 260472 on May 10, 2008 at 9:35 p.m.

It is really time for all of this to end. Its starting to sound like Coach Elizondo may want to just go ahead and resign, before she brings the whole coaching staff at Carroll.
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related links Posted by 260472 on May 10, 2008 at 9:42 p.m.

in response to 260472

Sorry i meant to say: Its starting to sound like Coach Elizondo needs to resign before she brings down the whole coaching staff at Carroll.
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related links Posted by 454245 on May 10, 2008 at 10:05 p.m.

the coaching staff at CHS needs to be brought down....except for a few coaches who really have the best interest of the kids at heart....the athletic staff is a joke. If we want to get into sex...ask Coach Morris and the football staff from several years ago if female students were allowed into the boys' locker room before football games to....you guessed it...have sex....with some of the football players. Elizondo may have made some mistakes. But she is not alone. If she was so terrible and this was going on for so long, why didn't her supervisors take care of it before now? We're that afraid of retaliation? I don't think so.
Coach Morris.... I hope you are afraid for your job. You are not stupid or ignorant. Surely, you have heard these allegations before if they are so pervasive. You turned your head because you didn't want to be bothered. Volleyball is a girl sport. You could not care less.
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related links Posted by 454245 on May 10, 2008 at 10:09 p.m.

in response to 712482

This is the most insightful and intelligent entry on this subject. Thank you 712482. This does not start or end with athletics.
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related links Posted by 710237 on May 11, 2008 at 2:34 a.m.

in response to 454245

Honestly, this is so outlandish. Sex before a game? No way. Everybody knows this is just not done. Who are you, anyway?

Threats for Coach Morris? I don't think so. Unlike Elizondo, he would have a truck load of support and would not need a rally across the school to support him, either.

Even if he did anything, it's already in the past. Give it up, sucker. No one is going to listen. Coach Morris, like Chuck Norris, has nothing to be afraid of.

Probably no one knew about Elizondo's behavior until recently. Evidently, it all came to a head within the last month or so. These things take time and take an investigation which could have been on-going. You don't really know.

Let it be known that I might not have a "past" of a life of crime but if I go and commit murder out of the blue or rob someone, I will have to pay the consequences. No one is going to take into account that my past was clean. Elizondo might have had a "clean past" but the fact remains that she has done something/somethings this semester that merit an IMMEDIATE action and that could be a reassigment; however, it appears that will not be the case. Because this has snowballed she may have to resign or allow herself to be fired. I suggest she resign and just move on.
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CCISD: A Teacher Lost His JOB After Under the Direction of the English Chair Person He Assigned The Article Entitled, "I Want a Wife"

2008-04-04T09:15:00.001-07:00

I Want a Wife


1- I belong to that classification of people known as wives. I am A Wife.
And, not altogether incidentally, I am a mother.

2- Not too long ago a male friend of mine appeared on the scene fresh
from a recent divorce. He had one child, who is, of course, with his
ex-wife. He is looking for another wife. As I thought about him while I
was ironing one evening, it suddenly occurred to me that 1, too, would
like to have a wife. Why do I want a wife?

3- I would like to go back to school so that I can become economically
independent, support myself, and, if need be, support those dependent
upon me. I want a wife who will work and send me to school. And while I
am going to school, I want a wife to take care of my children. I want a
wife to keep track of the children's doctor and dentist appointments. And
to keep track of mine, too. I want a wife to make sure my children eat
properly and are kept clean. I want a wife who will wash the children's
clothes and keep them mended. I want a wife who is a good nurturant
attendant to my children, who arranges for their schooling, makes sure
that they have an adequate social life with their peers, takes them to
the park, the zoo, etc. I want a wife who takes care of the children when
they are sick, a wife who arranges to be around when the children need
special care, because, of course, I cannot miss classes at school. My
wife must arrange to lose time at work and not lose the job. It may mean
a small cut in my wife's income from time to time, but I guess I can
tolerate that. Needless to say, my wife will arrange and pay for the care
of the children while my wife is working.

4- I want a wife who will take care of my physical needs. I want a wife
who will keep my house clean. A wife who will pick up after my children,
a wife who will pick up after me. I want a wife who will keep my clothes
clean, ironed, mended, replaced when need be, and who will see to it that
my personal things are kept in their proper place so that I can find what
I need the minute I need it. I want a wife who cooks the meals, a wife
who is a good cook.  I want a wife who will plan the menus, do the
necessary grocery shopping, prepare the meals, serve them pleasantly, and
then do the cleaning up while I do my studying. I want a wife who will
care for me when I am sick and sympathize with my pain and loss of time
from school. I want a wife to go along when our family takes a vacation
so that someone can continue to care for me and my children when I need a
rest and change of scene.

5- I want a wife who will not bother me with rambling complaints about a
wife's duties. But I want a wife who will listen to me when I feel the
need to explain a rather difficult point I have come across in my course
studies. And I want a wife who will type my papers for me when I have
written them.

6- I want a wife who will take care of the details of my social life.
When my wife and I are invited out by my friends, I want a wife who will
take care of the baby-sitting arrangements. When I meet people at school
that I like and want to entertain, I want a wife who will have the house
clean, will prepare a special meal, serve it to me and my friends, and
not interrupt when I talk about things that interest me and my friends. I
want a wife who will have arranged that the children are fed and ready
for bed before my guests arrive so that the children do not bother us. I
want a wife who takes care of the needs of my guests so that they feel
comfortable, who makes sure that they have an ashtray, that they are
passed the hors d'oeuvres, that they are offered a second helping of the
food, that their wine glasses are replenished when necessary, that their
coffee is served to them as they like it. And I want a wife who knows
that sometimes I need a night out by myself.

7- I want a wife who is sensitive to my sexual needs, a wife who makes
love passionately and eagerly when I feel like it, a wife who makes sure
that I am satisfied. And, of course, I want a wife who will not demand
sexual attention when I am not in the mood for it. I want a wife who
assumes the complete responsibility for birth control, because I do not
want more children. I want a wife who will remain sexually faithful to me
so that I do not have to clutter up my intellectual life with jealousies.
And I want a wife who understands that my sexual needs may entail more
than strict adherence to monogamy. I must, after all, be able to relate
to people as fully as possible.

8- If, by chance, I find another person more suitable as a wife than the
wife I already have, I want the liberty to replace my present wife with
another one. Naturally, I will expect a fresh, new life; my wife will
take the children and be solely responsible for them so that I am left free.

9- When I am through with school and have a job, I want my wife to quit
working and remain at home so that my wife can more fully and completely
take care of a wife's duties.

10- My God, who wouldn't want a wife?



Author: Judy Brady (Syfers)

Literature for Composition, (Third Edition)
Sylvan Barnet, Morton Berman, William Burto, Marcia Stubbs.
Copyright 1993
Publisher: HarperCollins Customs Books
Pages 775-776.

Source info is provided by Kara French.  (Thank you Kara :-)

Corpus Christi Watchdog Authority: A total of $507,500! Lawsuits against DMC by two former College employees and a student were settled out of court

2008-03-28T02:55:00.000-07:00

Corpus Christi Watchdog Authority: Friday, March 28, 2008
A total of $507,500! Lawsuits against DMC by two former College employees and a student were settled out of court

Lawsuits against DMC by two former College employees and a student were settled out of court, for a total of $507,500.

Theresa Cox, former dean of Equal Opportunity/Affirmitive Action, Equity, Access and Compliance was awarded $450,000 after suing the college for wrongful termination, demotion, retaliation, and change in work assignments, according to the suit.

In another settlement stemming from a joint lawsuit against the college, citing civil rights violations, former student Melody Lopez received $7,500 and Alberto Benitez, former criminal justice instructor, received $50,000.

"Upon the advice and recommendation of the College's outside litigation counsel and its risk pool carrier, the lawsuits filed by former student Melody Lopez and former employee Theresa Cox were settled out of court to avoid additional expense and disruption of College business," Auggie Rivera, Counsel to the BOR, said.: