Matthew V. Esparza, Jose R. Davila and Edward Mendoza v. Bexar County, Texas--Appeal from 131st Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-02-00841-CV
Matthew ESPARZA, Jose R. Davila, and Edward Mendoza,
Appellants
v.
BEXAR COUNTY, TEXAS,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-10438
Honorable David Peeples, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 24, 2003

AFFIRMED

Appellants Matthew V. Esparza, Jose Davila, and Edward Mendoza, former Bexar County Detention Officers, appeal their terminations in six issues. We overrule all issues and affirm the judgment of the trial court.

Background

On June 17, 1999, Michael Zamora was arrested for driving while his license was suspended and for an outstanding theft warrant. During the booking process, Zamora failed to follow Officer Paulo Perez's instructions. As a result, Zamora and Perez had a brief physical altercation. Zamora was quickly restrained and handcuffed. Zamora then lunged at Perez in an attempt to bite Perez's ear. Because Zamora was handcuffed and leg-shackled, he fell back down to the floor instead. Later, when Zamora was taken to the clothing room to be strip-searched, Esparza, Davila, and Mendoza allegedly assaulted Zamora in retaliation for the earlier incident.

After an investigation of the alleged assault, Esparza, Davila, and Mendoza were charged with violating several Bexar County Sheriff's Civil Service Rules. On September 14, 1999, Sheriff Ralph Lopez dismissed them for violating paragraph 9.02 of the Rules for Bexar County Sheriff's Civil Service Commission by (1) being dishonest, (2) performing their job poorly, (3) physically or verbally abusing a person in custody of the Sheriff's Office, (4) violating a statute, civil service rule, regulation or Commission order, (5) conducting themselves in a manner or committing an act that seriously impairs job effectiveness, and (6) conducting themselves in a manner that has proven to be detrimental or has had an adverse effect on the Sheriff's Office. Additionally, Sheriff Lopez cited them for violating the following paragraphs of the Bexar County Sheriff's Office Manual of Policy and Procedure: "5.01 General Discharge of Duties," "5.18 Language and Behavior," "5.30 Conduct Unbecoming an Officer," and "5.53 Bringing Discredit."

Esparza, Davila, and Mendoza appealed their dismissals to the Bexar County Sheriff's Civil Service Commission. After several days of hearings, the commission upheld the sheriff's decision to dismiss them. Esparza, Davila, and Mendoza appealed the commission's decision to district court. After reviewing the commission record, the trial court upheld the commission's decision. Esparza, Davila, and Mendoza now appeal to this court.

Discussion

A decision by a civil service commission is subject to the "substantial evidence rule." Tex. Loc. Gov't Code Ann. 158.037 (Vernon 1999). Under this standard, the petitioner has the burden to show that the commission's decision was not based on substantial evidence. Arreaga v. Bexar County Sheriff's Dep't, 90 S.W.3d 899, 901 (Tex. App.--San Antonio 2002, no pet.); Bexar County Civil Serv. Comm'n v. Casals, 63 S.W.3d 57, 59 (Tex. App.--San Antonio 2001, no pet.). Substantial evidence is more than a mere scintilla, but less than a preponderance of the evidence. Arreaga, 90 S.W.3d at 901; Casals, 63 S.W.3d at 59. Thus, the evidence supporting the commission's order may preponderate against the commission's decision and still amount to substantial evidence. Arreaga, 90 S.W.3d at 901; Casals, 63 S.W.3d at 59. The reviewing court, whether the district court or the court of appeals, may not set aside the commission's decision because it would reach a different conclusion; it may only reverse if that decision was made without regard to the facts or the law and as such, was unreasonable, arbitrary, or capricious. Arreaga, 90 S.W.3d at 901; Casals, 63 S.W.3d at 59-60.

When reviewing the commission's decision for substantial evidence, the trial court "is confined to the commission record, except that the court may receive evidence of procedural irregularities alleged to have occurred before the commission that are not reflected in the record." Tex. Loc. Gov't Code Ann. 158.0122(d) (Vernon 1999); see id. 158.0371(b). If a party wishes evidence outside of the commission record to be considered by the trial court, that party

may apply to the court to present additional evidence. If the court is satisfied that the additional evidence is material and that there were good reasons for the failure to present it in the proceeding before the commission, the court may order that the additional evidence be taken before the commission on conditions determined by the court. The commission may change its findings and decisions by reason of the additional evidence and shall file the additional evidence and any changes, new findings, or decisions with the reviewing court.

Id. 158.0122(b); see id. 158.0371(b). As such, the trial court is a true reviewing court, not a court that may hear new matters, i.e. those matters not brought to the commission's attention.

A. Motion in Limine

In their first issue, appellants argue that the trial court erroneously denied their motion in limine "to exclude Captain Gabehart's hearsay testimony concerning Inmate Zamora, because such evidence denies [a]ppellants' [right to] [d]ue [c]ourse of [l]aw, as guaranteed by [a]rticle I, [s]ection 19 of the Texas Constitution." Appellants, however, failed to preserve this issue for appeal. First, a ruling on a motion in limine does not exclude evidence, Gutierrez v. Gutierrez, 86 S.W.3d 729, 733 n. 8 (Tex. App.--El Paso 2002, no pet.), nor does it preserve error for appeal. Hiroms v. Scheffey, 76 S.W.3d 486, 489 (Tex. App.--Houston [14th Dist.] 2002, no pet.). Second, when Captain Gabehart testified at the commission hearing about Zamora's statements, appellants did not object to hearsay. Nor did they object to their rights under the Texas Constitution being violated. As such, they have waived error. See Tex. R. App. P. 33.1. We overrule appellants' first issue.

In their second issue, appellants argue that the "trial court erred in denying [a]ppellants' motion in limine to exclude Captain Gabehart's hearsay testimony concerning Inmate Zamora, because such evidence violates the 'just cause' provisions of the Bexar County Sheriff's Civil Service Rules." Again, appellants have failed to preserve this issue for appeal. As noted above, a motion in limine does not preserve error for appeal. Hiroms, 76 S.W.3d at 489. And, when Captain Gabehart testified at the commission hearing about Zamora's statement, appellants did not object to hearsay. Nor did they object to the "just cause" provisions of the Bexar County Sheriff's Civil Service Rules being violated. Appellants have, therefore, waived this issue. See Tex. R. App. P. 33.1. We overrule appellants' second issue.

B. Substantial Evidence

In their third, fourth, fifth, and sixth issues, appellants contend that the commission's decision is not supported by substantial evidence. We disagree. At the commission hearing, Officer Joe Rios, the detention officer assigned to the clothing room at the time of the alleged assault, testified that because of their uniforms, he knew appellants were members of the Special Emergency Response Team or "SERT." (1) If an emergency arose in the clothing room, Rios was trained to use the distress button to call the SERT officers. According to Rios, when Zamora entered the clothing room, he had no apparent injuries. Then, Appellants Davila and Mendoza entered the room and told Rios to leave the room and go sit at the release desk. Rios testified that there had not been an emergency situation and that he had not used the distress button. According to Rios, he followed Davila and Mendoza's order and left the clothing room for about five to ten minutes. Rios then heard someone from the sergeants' area say, "Tell Rios to go back." When Rios returned to the clothing room, Zamora was by himself and had bruising and swelling on his face.

Phyllis Manning, a licensed vocational nurse, testified that she examined Zamora for injuries on the morning of June 17, 1999 and found no injuries. And, according to Manning, Zamora did not appear to be intoxicated or under the influence of drugs.

Judy Harper, a mental health counselor, testified that she interviewed Zamora at approximately 5:25 p.m. on June 17, 1999. During the interview, she observed Zamora as he sat across a desk from her in a well-lit room for ten to fifteen minutes. According to Harper, Zamora did not appear to be intoxicated or under the influence of drugs. After the interview, she sent Zamora to the clothing room as the next step in the booking process. When she saw him an hour later in the medical area, Zamora looked "like somebody had beat the crap out of him." Zamora told Harper that "some officers in clothing got me."

Officer Paulo Perez, a detention officer assigned to the SERT team, testified that on the morning of June 17, 1999, Zamora was not following his and Officer Vargas's commands. According to Perez, when inmates first come in, they are ordered to keep their hands on the wall unless they are told to take them off. Zamora kept taking his hands off the wall and arguing with Perez and Vargas. Perez took Zamora to a holding cell so that he could talk to Zamora. Zamora was sitting on a bench when he lunged toward Perez with his fist raised. Perez pushed Zamora back down. In restraining Zamora, Perez raised Zamora back up and turned him to face the wall. When Zamora's face was next to Perez's ear, Zamora attempted to bite Perez's ear. Perez was able to avoid the attack and quickly restrained Zamora. According to Perez, Zamora did not have any injuries when he was first brought into the jail. And, according to Perez, he did not receive any injuries as a result of Perez having to restrain him. Whenever an officer has physical contact with an inmate, a nurse must examine the inmate for injuries. As such, Perez testified that he took Zamora to Nurse Manning for an examination. When the next shift of SERT officers arrived, Perez told them to watch Zamora. Perez told Appellant Mendoza that Zamora had tried to bite his ear and had acted aggressively.

Josie Paez, a laundry technician, testified that when Zamora approached her for clothing, his face was injured. When she asked Zamora what had happened, he stated that "he hit a damn turtle and they were upset." Paez explained that SERT members are referred to as "turtles." Similarly, Officer Rene Langley testified that Zamora told him, "I got into [it] with some turtles downstairs." Shortly thereafter, Zamora told Langley that he was having difficulty breathing. Zamora picked up his shirt to show a red mark on the right side of his chest. Langley reported the incident to his sergeant.

Captain Gabehart testified that on the evening of June 17, 1999, he received a call from a unit sergeant who reported an inmate with injuries. Gabehart met with Zamora and observed Zamora's injuries, including swelling, bruises, and black eyes. Zamora told Gabehart that when he was in the clothing room, "some officers in black came in and made him stand up and put his hands on the wall and then they commenced to verbally abuse him and beat upon him." After Gabehart and Zamora walked through the booking area, Zamora informed Gabehart that some of the officers were still there. Zamora identified Davila and Mendoza as two of the officers who assaulted him.

Based on Zamora's statements, Gabehart began an investigation. Gabehart viewed videotapes showing views of the hallways leading to and from the clothing area. The videotapes were admitted in evidence at the hearing without objection. Gabehart testified that the videotapes show that about a minute after Zamora enters the clothing room, Davila walks down the hallway and enters the clothing room. Rios then leaves the clothing room. Davila leads inmates out of the clothing room and places them into nearby holding cells. Esparza then appears in the hallway by the clothing room and immediately begins assisting Davila in taking the inmates out of the clothing room. Zamora was not one of the inmates escorted out of the clothing room. Then, Davila and Esparza enter the clothing room. After a few minutes, Davila, Esparza, and Mendoza leave the clothing room. Zamora is still inside the clothing room by himself.

Davila, Esparza, and Mendoza claimed that they had responded to an incident in the clothing room and that Zamora was acting aggressively. However, Captain Gabehart testified that the videotapes did not show the officers reacting to an emergency: "I see nobody with a wasp in their wig running down the hall, and officers will move quickly if there's a problem." According to Gabehart, if there had been an emergency, the officers would have lined the inmates up against the wall in the clothing room rather than taking the time to walk the inmates out of the clothing room and into an adjacent room. And, in the first reports written by Davila, Mendoza, and Esparza, they made no mention of a problem in the clothing room. Gabehart further testified that almost immediately after Mendoza, Esparza, and Davila left the clothing room, Rios, Paez, and Langley all observed injuries to Zamora. According to Gabehart, it was likely that Davila, Mendoza, and Esparza had taken upon themselves to discipline Zamora for the earlier incident.

Dr. Robert Bux, the deputy chief medical examiner for Bexar County, testified that Zamora's injuries were caused by a blunt object, such as a fist.

On the other hand, appellants emphasize that the videotapes show that two officers, A.C. Perez and Adam Hernandez, were present in the clothing room during the alleged assault and would have seen the assault had it taken place. A.C. Perez testified that when Rios came and sat down across from him, Perez knew that Rios was not supposed to be sitting there. Perez decided to investigate and walked to the clothing room. He entered the room and saw Zamora with his hands on the wall and his head down. Davila and Mendoza were on either side of him. Perez then left. He did not see the officers assault Zamora. Adam Hernandez testified that he heard yelling from the clothing room and went to investigate. When he entered the room, Zamora had his hands on the wall. Esparza was on the left side of the clothing room about ten feet away from Zamora. Mendoza and Davila were about five feet behind Zamora. Because the situation seemed under control, Hernandez walked out. And, according to Hernandez, he noticed some redness on Zamora's face before he went to the clothing room.

Appellants also point out that the time-stamping on the videotapes shows that Zamora enters the clothing room at 5:22 p.m. At 5:23:33 p.m., Mendoza is walking down the hallway towards the clothing room. At 5:25:04 p.m., A. C. Perez enters the clothing room and leaves at 5:25:29 p.m. Hernandez enters the clothing room at 5:25:44 p.m. and leaves at 5:26:04 p.m. Appellants leave the room at 5:26:07 p.m. Thus, according to appellants, if Zamora had been assaulted, these officers would have witnessed it, and they both testified that they did not. And, appellants emphasize that the sheriff did not charge them for allegedly assaulting Zamora.

Under our standard of review, we cannot substitute our judgment for that of the commission. Reviewing the entire record, we cannot find that the commission's decision was made without regard to the facts or the law and as such, was unreasonable, arbitrary, or capricious. Arreaga, 90 S.W.3d at 901; Casals, 63 S.W.3d at 59-60. We hold that there is substantial evidence in support of the commission's decision.

Appellants also argue in their fourth issue that their dismissal was disparate treatment and in violation of the Bexar County Civil Service Rules relating to "just cause." According to appellants, if Zamora had been assaulted, A. C. Perez and Hernandez would have seen the assault. "The fact that neither Deputy Perez nor Hernandez was fired for failing to report the 'truth' constitutes disparate treatment between (1) Perez and Hernandez and (2) Appellants." Appellants, however, failed to bring this argument before the commission or obtain a ruling. As such, they have failed to preserve this issue for appeal. See Tex. R. App. P. 33.1.

In their sixth issue, appellants also complain that the sheriff's order of dismissal failed "to allege the facts constituting an assault of inmate Zamora." Again, appellants failed to bring this complaint before the commission or obtain a ruling and as such, have failed to preserve it for appeal. See Tex. R. App. P. 33.1. Moreover, even if the issue had been preserved, we find that the order of dismissal adequately informs appellants of the allegations with respect to Zamora. Specifically the order of dismissal with respect to each appellant states:

Inmate Zamora stated that one of the officers in the clothing room asked him "if he was the inmate who liked to fight and bite officers?" Inmate Zamora stated that when he turned around a "short guard" hit him in the chest and that when he fell to his knees all three Officers began beating and kicking him in the face, genitals and back.

We overrule appellants' third, fourth, fifth, and sixth issues.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

1. SERT officers on duty wear black uniforms while other officers wear blue ones. Davila and Mendoza were wearing black uniforms. Esparza was wearing a blue one.