NO. 01-14-00013-CV

In the Court of Appeals

For the First Supreme Judicial District of Texas

at Houston, Texas

Marcus B. Patterson, individually, as Independent Administrator of

the Estate of Diane Patterson, 

and as next friend of Daniel Patterson and Danae Patterson, 

and Danae Patterson and Daniel Patterson (now 18 years old), 

Appellants

v.

Brewer Leasing, Inc., Appellee

On Appeal from the 334 Judicial District Court th

of Harris County, Texas

The Honorable Judge Ken Wise presiding

APPELLANTS’ MOTION FOR REHEARING

HARRY HERZOG

State Bar No. 09548200

DAVID A. CARP

State Bar No. 03836500

HERZOG & CARP

P.O. Box 218845

Houston, Texas 77218-8845

713-781-7500 Telephone

713-781-4797 Facsimile

HHerzog@hcmlegal.com

Lead Counsel for Appellants

DOROTHEA “DOTTY” L. VIDAL

State Bar No. 20578100

GEARY, PORTER & DONOVAN

16475 Dallas Parkway, Ste. 400

Addison, Texas 75001-6837

972-931-9901 Telephone

972-931-9208 Facsimile

dvidal@gpd.com

Co-Counsel for Appellants

ACCEPTED

01-14-00013-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/15/2015 3:38:10 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/15/2015 3:38:10 PM CHRISTOPHER A. PRINE Clerk
ii

TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

I. Brewer Leasing is liable as the undisputed owner of the never

leased Heil trailer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. With respect to the tractor the Court’s opinion reverses statutory

law, the burden of proof, and incorrectly construes cited case 

authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. This Court’s opinion judicially reverses the 1956 

Congressional statute and parallel Texas legislation, 

together with the federal and Texas regulatory schemes. . . . . 2

B. This Court’s opinion incorrectly construes cited case 

authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. There was no lease from Brewer Leasing to Texas Stretch. . 15

1. There was no consideration.. . . . . . . . . . . . . . . . . . . . . 15

2. We looked for consideration. . . . . . . . . . . . . . . . . . . . . 15

3. The reason for no consideration. . . . . . . . . . . . . . . . . . 16

4. This Court also errs on the burden of proof and

jury questions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

5. The criminal wrongdoing clause in 49 USC § 

30106(a)2 precludes any liability shifting away 

from Brewer Leasing. . . . . . . . . . . . . . . . . . . . . . . . . . . 18

6. The big picture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

III. A factual error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
iii

INDEX OF AUTHORITIES

U.S. SUPREME COURT

American Trucking Ass’ns. v. U.S., 344 U.S. 298, 302-306; 

73 S. Ct. 307 (1953). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

U.S. COURT OF APPEALS

Empire Fire & Marine Insur. Co. v. Guaranty National Insur. Co., 

868 F.2d 357, 362 (10 Cir. 1989). ..............................

th 3

Jackson v. O’Shields, 101 F.3d 1083, 1086 (5 Cir. 1996).............

th 3

Price v. Westmoreland, 727 F.2d 494, 496 (5 Cir. 1984). . . . . . . . . . . . . th 3

White v. Excalibur Ins. Co., 599 F.2d 50, 52 (5 Cir. 1979), th

cert. denied, 444 U.S. 965 (1979).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

TEXAS SUPREME COURT

Berry v. Golden Light Coffee Company, 

327 S.W.2d 436, 439 (Tex. 1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

TEXAS COURT OF APPEALS

Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 884-5 

(Tex. App. – Dallas 2006, no pet.). .............................. 5

Hooper v. Torres, 790 S.W.2d 757, 759 

(Tex. App. – El Paso 1990, writ den’d)........................... 17

In re Brewer Leasing, 255 S.W.3d 708 

(Tex. App. – Hou 1 2008, mandamus den’d).. . . . . . . . . . . . . . . . . . . . .

st 15

Morris v. JTM Materials, Inc., 78 S.W.3d 28, 38 

(Tex. App. – Ft. Worth 2002, no pet).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
iv

OTHER COURTS

Hunt v. Drielick, 852 N.W.2d 562 (Mich. 2014). . . . . . . . . . . . . . . . . . . . . 13

Jones Express, Inc. v. Watson, 871 F.Supp. 719, 728-734 

(quotes at 734)(M.D. Tenn. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Luizzi v. Pro Transport, 2013 WL 3968736 (E.D. NY, 2013). . . . . . . . 11, 12

Paul v. Bogle, 484 N.W.2d 728, 731, 735 (Mich. Ct. App. 1992). ....... 7

Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011 

(Ct. App. – Indiana 1 , 1986, trsf den’d, cert. den’d 107 S.Ct. 1571). ....

st 4

Shimko v. Jeff Wagner Trucking, 2014 WL 7366190 

(W.D. Wisc. 2014).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Wilson v. Riley Whittle, 701 P.2d 575 (Ariz. Ct. App. 1984). . . . . . 9, 10, 13

FEDERAL STATUTES

49 USC § 11107. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10, 16

49 USC § 31135. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

49 USC § 30106. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 14, 15, 17, 18

CODE OF FEDERAL REGULATIONS

49 C.F.R. § 376. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 11, 12, 15, 16

49 C.F.R. § 1057 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10

OTHER

TRCP 279. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Texas Penal Code § 37.09(a)1, 37.09(d)1, 37.08. . . . . . . . . . . . . . . . . . . 18
1

MOTION FOR REHEARING

The Patterson family moves for rehearing on two grounds: (1) the

Court’s opinion erroneously fails to hold Brewer Leasing liable as the

undisputed owner of the Heil trailer with no testimony of any oral lease to

Texas Stretch, and (2) the Court’s opinion reverses statutory law, the burden

of proof, and incorrectly construes cited case authorities with respect to any

oral lease of the Peterbilt tractor, thereby erroneously allowing an oral lease

to evade liability.

I.

Brewer Leasing is liable as the undisputed owner 

of the never leased Heil trailer.

The reason this court gave for exonerating Brewer Leasing does not

apply to the Heil trailer. The legal principle underlying the Court’s liability

analysis on the tractor (an oral lease can shift liability away from Brewer

Leasing pursuant to 49 USC § 30106) does not apply as there was no oral

lease of the Heil trailer. The opinion correctly reflects the Patterson family’s

theory of liability on the trailer but then skips it in the analysis. Brewer

Leasing undisputably owned the Heil trailer, there is no written lease, and

there is also no testimony of any oral lease of the Heil trailer. Therefore
2

nothing the Court wrote absolving Brewer Leasing of liability for the Peterbilt

tractor applies to the Heil trailer. 

II.

With respect to the tractor the Court’s opinion reverses statutory law,

the burden of proof, and incorrectly construes cited case authorities.

A. This Court’s opinion judicially reverses the 1956 Congressional

statute and parallel Texas legislation, together with the federal and

Texas regulatory schemes.

Between 1935 and 1956 trucking abuses were alarmingly frequent,

threatening both the industry and public safety. American Trucking Ass’ns.

v. U.S., 344 U.S. 298, 301-306; 73 S. Ct. 307 (1953); White v. Excalibur Ins.

Co., 599 F.2d 50, 52 (5 Cir. 1979), cert. denied, 444 U.S. 965 (1979). th

Relationships before a collision were consistently concealed after a wreck.

Owners or lessees of vehicles magically produced oral leases to uninsured

companies. It takes a lot to get any Congress off dead center, but the

unending stream of perjurious testimony to evade trucking liability moved

Congress in 1956 to end the existence of oral leases to evade liability. 

From 1956 until this Court’s opinion no case in America allowed any oral

lease to evade liability. Courts have detailed the history and policy decisions

that forced Congress to act. As the Ft. Worth Court of Appeals correctly

summarized, “. . . protecting the public from accidents, preventing public
3

confusion about who was financially responsible if accidents occurred, and

providing financially responsible defendants” were three goals of the 1956

Federal Motor Carrier Safety Act Amendments. Morris v. JTM Materials, Inc.,

78 S.W.3d 28, 38 (Tex. App. – Ft. Worth 2002, no pet); accord Empire Fire

& Marine Insur. Co. v. Guaranty National Insur. Co., 868 F.2d 357, 362 (10th

Cir. 1989); Price v. Westmoreland, 727 F.2d 494, 496 (5 Cir. 1984). As the th

Fifth Circuit noted: 

“Under the authority of 49 U.S.C. § 11107, the

Interstate Commerce Commission regulates leases of

equipment used in interstate commerce. See 49

C.F.R. § 1057.1 et seq. One of the primary purposes

of the ICC’s leasing regulations is to ensure that

carrier-lessees take control of and responsibility for

leased equipment during the term of a lease.” 

Jackson v. O’Shields, 101 F.3d 1083, 1086 (5 Cir. 1996). Jackson was th

another classic case of the round robin of finger pointing by carriers, lessors,

owners, drivers and insurers. Jackson, 1081. The Jackson decision correctly

notes that the failure to comply with trucking regulations “does not and should

not insulate a carrier-lessee from liability.” Jackson, 1089.

“The stringent regulations also eliminate the difficulty

faced by an injured plaintiff in determining who

controlled the vehicle; the purpose upon which the

vehicle was embarked at the time of the accident; and

the questions of agency, employee or independent
4

contractor status, frolic and detour, and borrowed

employee.”

Rediehs Exp., Inc. v. Maple, 491 N.E.2d 1006, 1011 (Ct. App. – Indiana 1 , st

1986, trsf den’d, cert. den’d 107 S.Ct. 1571). Rediehs contains some of the

country’s most cited and quoted language on the history of the 1956

amendments and the end of delegating responsibility, evading responsibility,

abrogating responsibility, and eliminating fly-by-night contracting. This Court’s

reliance on an oral lease to evade liability returns trucking law to its pre-1956

wild west condition.

Texas Stretch spent three years denying any affiliation with Charles

Hitchens and evading liability since Brewer Leasing was the lessee under a

written lease. At the last minute they admitted employing Charles Hitchens

(Appendix 8, 20). Now, at the last minute, Brewer Leasing denies being the

lessee and in a classic example of statutorily precluded finger pointing claims

Texas Stretch was the oral lessee. The 1956 Act and “stringent regulations”

designed to prevent this insanity are neutered by this Court’s acceptance of

the claim of an oral lease.

Courts have consistently ruled that a company cannot evade liability by

non-compliance with the 1956 statute or regulations. For example,
5

“The purpose of the amendments was to ensure that

interstate motor carriers would be fully responsible for the

maintenance and operation of the leased equipment and

the supervision of the borrowed drivers, thereby protecting

the public from accidents, preventing public confusion about

who was financially responsible if accidents occurred, and

providing financially responsible defendants. Id. The

Interstate Commerce Commission later issued regulations

that required a certificated interstate carrier who leases

equipment to enter into a written lease with the equipment

owner providing that the carrier-lessee shall have exclusive

possession, control, and use of the equipment, and shall

assume complete responsibility for the operation of the

equipment for the duration of the lease. See 49 C.F.R. §§

376.11-12 (2005). These regulations are known as the

Federal Motor Carrier Safety Regulations.”

***

“One of the purposes of amending the Interstate Common

Carrier Act to include specific lease requirements was to

prevent the type of confusion we have here as to financial

responsibility. Simply because Higgins and MTR failed to

enter into a lease agreement, thereby creating this

confusion, Higgins should not be allowed to hide behind the

protection of the federal regulations and insulate

themselves from liability if they had practical control over

Jackson at the time of the collision.”

Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 884-5 (Tex. App. –

Dallas 2006, no pet.).

Finding a trucking company “was in violation of both the letter and the

spirit” of the written lease requirements with respect to policy limits, the

deductible, and insurance disclosure, one court concluded the trucking
6

company “is estopped from enforcing the Lease indemnification provision...”

Jones Express, Inc. v. Watson, 871 F.Supp. 719, 728-734 (quotes at

734)(M.D. Tenn. 2012). The court reversed its first holding in favor of the

violative trucking company, fixing their error by concluding the unlawful and

hidden insurance obligation violated the letter and the spirit of the Truth-inLeasing regulations (49 CFR § 376) and “to allow Jones Express to pass

liability for this loss on to Watson defeats the very purpose of the federal

regulations.” Jones Express, 734. The same analysis applies in our case.

To allow Brewer Leasing to pass liability for this loss off to Texas Stretch

through the even more violative act of an oral lease defeats every purpose of

the federal and Texas laws and regulations.

The laws and regulations do several things to eliminate the 1935-1956

shenanigans.

1. Any lease must be written.

2. Any lease must contain about a dozen things.

3. The lessee must be adequately insured.

4. The vehicle must be properly marked.

5. The lease must be terminated in writing.

6. Possession must be terminated with a written receipt.

7. Possession must be terminated with removal of the

markings.

Not a single one of these seven was done under the phantom oral lease from

Brewer Leasing to Texas Stretch. Instead the mythological oral lease
7

contradicts the written lease, Texas Stretch had no insurance for either

vehicle, the oral lease contradicts the tractor markings in all four places, and

there is no written termination of the lease or receipt for surrendering

possession. Others have tried similar tricks, but because the policy and

purpose of the 1956 Act was to stop all the oral foolishness after the collision

the tricks don’t work. Paul v. Bogle, 484 N.W.2d 728, 731, 735 (Mich. Ct.

App. 1992)(finding written lease never terminated as a matter of law due to

lack of receipt for termination and lack of removal of placards, disregarding

contradictory oral claims). 

By giving effect to a claimed oral lease and using that oral lease to

eviscerate Brewer Leasing’s statutory liability this Court’s opinion defeats

every purpose of the law from 1956 to today. The effect of this Court’s opinion

is a judicial repeal of the entire purpose and policy of the 1956 Act, parallel

Texas legislation, and the federal and state regulations.

This Court’s opinion also judicially repeals 49 USC § 31135. Congress

provided that:

“Two or more motor carriers, employers, or persons shall

not use common ownership, common management,

common control, or common familial relationship to enable

any or all such motor carriers, employers, or persons to

avoid compliance, or mask or otherwise conceal noncompliance, or a history of non-compliance, with regulations
8

prescribed under this subchapter or an order of the

Secretary issued under this subchapter.” 49 USC § 31135.

Brewer Leasing and Texas Stretch shared the same President and

General Manager. Both companies operated out of the same location. Texas

Stretch owned 100% of the stock in Brewer Leasing (a fact perjuriously

concealed for eight years). This is a classic example of two carriers with

common ownership, management, and control. This Court’s decision to allow

an oral lease between them to avoid liability to the Patterson family

eviscerates any effect of 49 USC § 31135.

What Brewer Leasing is trying to do, and this Court’s opinion

erroneously allows, is to be the only company with legal authority to operate

the Peterbilt tractor on June 15, 2006, then improperly orally delegate those

rights to uninsured parent company Texas Stretch and thereby dodge liability.

The law precludes operation in this fashion. In addition to 49 USC § 31135,

“It further seems well settled that one holding a certificate

or permit authorizing him to operate a motor carrier over the

highways of the State may not delegate to another the

rights conferred by such certificate or permit and then

release himself from liability to those injured by the

negligence of the wrongfully delegated party.” 

Berry v. Golden Light Coffee Company, 327 S.W.2d 436, 439 (Tex. 1959).
9

B. This Court’s opinion incorrectly construes cited case authority.

Trucking laws are designed to protect the public from accidents, prevent

public confusion, set responsibility when accidents occur, and provide for

financially responsible defendants. This Court’s erroneous analysis of cited

case authorities subverts all four goals and lets Brewer Leasing benefit from

violations. This Court leaves the Patterson family as unprotected as possible,

confuses everyone, evades responsibility, and eliminates financial

responsibility for the only insured company. None of the cases cited at pages

27-28 of the opinion allowed a trucking company to evade liability through an

oral lease. This Court confused the ability of a plaintiff to use an oral lease

to create liability versus the statutory and regulatory inability of a defendant

to use an oral lease to evade liability. In chronological order:

Wilson v. Riley Whittle, 701 P.2d 575 (Ariz. Ct. App. 1984) is a collision

death case with the reverse of our facts. The trucking company, Riley Whittle,

owned its own vehicles and employed its own drivers. A cranberry juice load

needed to be moved. An independent trucker, Meyer, called Riley Whittle

looking to see if he could haul a load for them. Riley Whittle agreed and

instructed Meyer “to have a trip lease signed for the load.” Meyer never

obtained a trip lease but he obtained the cranberry juice. When Meyer’s
10

tractor broke down Riley Whittle sent $600 for repairs. Meyer drove on, made

some stops, ate, drank some beer, and within spitting distance of the Riley

Whittle facility had a fatal collision with Wilson. (All facts from Wilson, 576-7).

The court realized that a trucking company cannot benefit from

violations of the law. Riley Whittle tried to claim a written lease was an

essential requirement for their liability, but the court correctly declined to allow

the purpose of the law to be flipped. Wilson, 578. After citing the policy

reasons for the law the court refused to allow Riley Whittle to immunize itself

from liability based on an oral lease that violated the law. “The cases are

uniform in holding that absence of a written trip lease is legally irrelevant.”

Wilson, 578-9. Thus the plaintiff could use an oral lease to create additional

liability. The court correctly reflected: 

“The public policy expressed by 49 U.S.C. § 11107and 49

C.F.R. § 1057 would be wrongfully frustrated if we were to

allow Riley Whittle to evade the liability imposed upon it by

the federal statute and regulations by asserting that a

written trip lease was a condition precedent to any contract

between the parties and to responsibility on its part.

Instead, that policy demands a holding that Riley Whittle is

liable as a matter of law.” Wilson, 579.

The case holds an oral lease can create liability, but this Court’s opinion uses

an alleged oral lease to evade liability. Saying “I orally leased the truck” to

evade liability is exactly what the 1956 Act ended.
11

Luizzi v. Pro Transport, 2013 WL 3968736 (E.D. NY, 2013) is an

insurance coverage case. There was no oral lease, there was a written lease.

Luizzi sued Sanchez over a collision, Sanchez sued State National, and then

State National sued Green Mountain who placed the coverage. The court

held the vehicle involved was a covered auto. Luizzi settled for $1,100,000

and State National tried to force Green Mountain to reimburse due to

negligently failing to properly terminate the policy.

“The question currently before the Court is whether the

Policy, which was in effect on the day of the Luizzi-Sanchez

accident, provided coverage to Pro Transport and/or

Sanchez for the Luizzi-Sanchez accident . . . the Court finds

that State National has proven by a preponderance of the

evidence that the Sanchez vehicle was a “covered auto”

and that the Policy provided coverage to both Pro Transport

and Sanchez for the underlying accident.”

In analyzing the facts and legal issues the trial court reviewed a oneyear written lease, exhibit 44. The parties debated whether the written lease

fully complied with all legal requirements. The court found it “was a valid

contract under New Jersey law,” but was missing many provisions required

by 49 CFR § 376.12.

The case contains an excellent summary of the principles of federal

trucking policies and then applies them. “Given that the public policies

governing motor carriers are a driving force behind the analysis in the instant
12

case . . .” The opinion contains a discussion of courts’ unwillingness to allow

carriers to hide behind defective or ineffective leases to deny compensation

to innocent members of the public injured in collisions. Policy considerations

caution against a carrier benefitting from its own failure to comply with the

regulatory scheme. A motor carrier that fails to enter into a proper written

lease cannot hide from liability for that reason. Oral leases, or defective

written leases, can’t be used to evade responsibility to injured members of the

public. Concluding that any contrary rule would create perverse incentives to

create defective leases, the court held the lease “valid and enforceable in this

case.”

This Court’s opinion flips the reasoning and result of Luizzi. This Court’s

opinion creates the perverse incentive to claim to create an oral lease in an

effort to shift liability off to an uninsured carrier so that an injured citizen is

denied a recovery. Contrary to Luizzi, this Court’s opinion uses a defective

oral lease to deny compensation. 

Luizzi held that noncompliance with 49 FCR § 376.12 did not render the

lease unenforceable, but did so for the express purpose of applying public

policy and the goals of the regulatory scheme to create liability and deprive

a company of the ability to evade liability by noncompliance. This Court’s
13

opinion does the reverse: uses an alleged oral lease to defeat the statutory

goals and policies by evading liability through noncompliance.

Hunt v. Drielick, 852 N.W.2d 562 (Mich. 2014) is an irrelevant wrongful

death collision case involving “the interpretation and application of an

insurance policy.” Hunt, 565. Procedurally, the case involved writs of

garnishment. Hunt, 564. Several leases and events are involved. Empire

Fire and Marine Insurance Co. only insured Drielick Trucking for bobtail use

(a tractor with no trailer). Corey Drielick was driving a tractor without a trailer,

but Empire denied coverage and refused to defend.

The plaintiffs settled with Sargent Trucking and GLC, then entered into

consent judgments with Corey Drielick and Drielick Trucking. All the court did

was hold the bobtail portion of the policy was fulfilled and remand for

evaluation of the existence of a leasing agreement between Drielick Trucking

and GLC “as contemplated by the business-use exclusion’s leasing clause.”

Hunt, 569.

Nothing in Hunt directly applies to our case. This Court’s opinion quotes

footnote 9 (which provided guidance to the trial court on remand), but footnote

9 is just a reference to the Wilson case. Our facts are very different. No

policy exclusion or policy lease language is in issue. The quote from Wilson
14

is erroneously applied to our case. “The absence of a written trip lease is

legally irrelevant” is true when applied to eliminate the ability of a trucker to

distort public policy and evade liability, but it is not true when an oral lease is

used to try to evade liability and defeat the purpose of the legislation and

regulatory scheme.

The cited case this Court relied on most heavily is Shimko v. Jeff

Wagner Trucking, 2014 WL 7366190 (W.D. Wisc. 2014), but the case does

not involve any collision (and several cases cited by this Court in the key

erroneous paragraph emphasize the importance of that distinction). The pro

se litigants lost a motion for summary judgment in a dispute between a trucker

and a trucking company. The trial court found fact questions on dual

ownership and the existence of an oral lease.

Although this Court’s opinion quotes extensively from Shimko, nothing

in Shimko supports the conclusion that an oral lease can be used to shift

liability under 49 USC § 30106, thereby allowing Brewer Leasing to benefit

from violating federal and Texas laws and regulations.

There is a huge difference between creating liability and evading

liability. The purpose of the 1956 law was to eliminate post-collision evasion

techniques. While it is true that the absence of a written lease is legally
15

irrelevant in extending liability because an oral lease can create liability, it is

also true that one of the key pillars of the 1956 Act was the elimination of oral

leases to evade liability. 

C. There was no lease from Brewer Leasing to Texas Stretch.

1. There was no consideration.

49 USC § 30106 uses the defined term “leases.” 49 CFR §

376.2(e) defines a lease to include the requirement of consideration. It is over

nine years since Diane Patterson died and no one has ever testified in answer

to interrogatories, deposition, or two jury trials to any consideration for a lease

from Brewer Leasing to Texas Stretch. No document has ever been marked

as an exhibit in either jury trial reflecting any consideration. The lack of

consideration defeats the existence of a lease by definition.

2. We looked for consideration.

In 2007 the Patterson family requested the relevant banking

records of Brewer Leasing and Texas Stretch. Brewer Leasing objected to

the discovery. The trial court ordered production, denied a Motion for

Rehearing, this Court denied a mandamus effort to conceal the bank records,

and the Supreme Court also denied the mandamus effort. In re Brewer

Leasing, 255 S.W.3d 708 (Tex. App. – Hou 1 2008, mandamus den’d). st
16

There is no proof of payment from Texas Stretch to Brewer Leasing for an

oral lease of the Peterbilt tractor on June 15, 2006.

3. The reason for no consideration.

There is no consideration because there is no oral lease from

Brewer Leasing to Texas Stretch. That’s why Texas Stretch never insured the

tractor. Mr. A. B. Brewer, the President of Brewer Leasing and Texas Stretch,

is an elderly gentleman with a lifetime of trucking experience. (6 RR, 79-80).

Mr. Lonnie Box, the General Manager of Brewer Leasing and Texas Stretch

with 25 years of experience, had a side company that did trucking company

compliance. (4RR, 138-140). They knew all the legal requirements, and they

met all the legal requirements by virtue of a written lease from Texas Stretch

to Brewer Leasing. (4RR, 148-151; 6RR, 80-91; Appendix 9).

To conclude there was an oral lease from Brewer Leasing to

Texas Stretch this Court has to do all of the following:

1. Find consideration,

2. Decide when Brewer Leasing did not own the tractor it was

the lessor,

3. Decide when Texas Stretch owned the tractor it was the

lessee,

4. Decide both companies can violate 49 USC §§ 11107,

13906, 14102; 49 CFR § 376; and 37 Tx Admin Code 4.11,

5. Ignore four signs painted on the tractor contradicting the

oral lease, and 
17

6. Find termination of the written lease from Texas Stretch to

Brewer Leasing.

4. This Court also errs on the burden of proof and jury questions. 

To evade liability Brewer Leasing must prove the unplead

affirmative defense of shifting liability by virtue of a lease, thus they must

obtain a jury finding in their favor. This Court’s opinion incorrectly moves that

burden to the Patterson family. As the court correctly notes, “It was

incumbent upon the party with the burden on the issue to request a correct

issue which was raised by the evidence and obtain a favorable answer in

order to prevail upon that part of the case...” Hooper v. Torres, 790 S.W.2d

757, 759 (Tex. App. – El Paso 1990, writ den’d). 

Brewer Leasing was the party with the burden on this issue. “We

are not liable because we just owned the tractor” was Brewer Leasing’s

argument. As the owner Brewer Leasing was liable unless they proved

compliance with 49 USC § 30106. Compliance was not conclusively

established so it was waived by Brewer Leasing’s failure to request and obtain

a jury finding of a lease to Texas Stretch.

As the party arguing (1) ownership of (2) a leased tractor with (3)

no criminal wrongdoing, Brewer Leasing had the burden to obtain those jury

findings. With no jury finding on any element, Brewer Leasing’s independent
18

ground of defense is waived pursuant to Texas Rule of Civil Procedure 279.

Brewer Leasing never even argued this defense or cited the relevant statute.

The Patterson family briefed it out of completeness, and at pages 29-30 this

Court confuses our briefing with Brewer Leasing’s burden of proof and burden

of jury submission and findings. 

Brewer Leasing never argued they complied with 49 USC §

30106, probably because they knew they did not. Brewer Leasing also never

requested or obtained any jury finding pursuant to 49 USC § 30106. 

5. The criminal wrongdoing clause in 49 USC § 30106(a)2 precludes

any liability shifting away from Brewer Leasing.

Any analysis of obstruction of justice compared to Brewer

Leasing’s concealment of the reports of 43,444 nanograms of cocaine

metabolite they received but hid from the police, assistant district attorney,

lawyers and litigants, and trial judge compels the conclusion there was

criminal wrongdoing on the part of Brewer Leasing. Texas Penal Code §§

37.09(a)1, 37.09(d)1, 37.08; Appendix 3, 4, 5, 6, 13; 11 RR, PX 503, 517,

520, 521, 522.

6. The big picture.

Texas Stretch and Brewer Leasing lied for 1,000 days about who

employed Charles Hitchens. (Appendix 8, 12, 20). We pierced that lie. 
19

They simultaneously concealed and lied about Charles Hitchens’

cocaine level. We pierced that lie and fraud. (Appendix 3, 4, 5, 6, 13). 

They lied about who owned Brewer Leasing: “Mr. Brewer owns

100% of Brewer Leasing” turned into Texas Stretch owned 100% of Brewer

Leasing. (4 RR, 141; 6 RR, 69-70; Appellee’s Brief). That successful lie

precluded us from proving Brewer Leasing’s liability as a single business

enterprise with Texas Stretch. 

The fourth big lie is the classic after the wreck fabrication of an

oral lease. In this case, an oral lease that would:

• be impossible, as Texas Stretch owned the tractor on the

date of the alleged lease to Texas Stretch

• be impossible, as Brewer Leasing did not own the tractor on

the date of the alleged lease by Brewer Leasing 

• be violative of federal statutes

• be violative of federal regulations

• be violative of Texas statutes

• be violative of Texas regulations

• create a lessee with no liability insurance

• contradict and reverse a written lease

• contradict and reverse four painted placards on the tractor
20

• contradict the entire theory and purpose of the 1956 Act

and companion Texas law.

Brewer Leasing testimonially admitted liability for a reason. (4 RR

138-40, 151; 6 RR 70). No lawyer for Brewer Leasing ever filed any

document with any court claiming an oral lease evades statutory liability for

a reason. But this Court’s opinion revives the legal theory that an oral lease

can be used to shift liability, driving a stake through the 1956 federal law’s

heart and the parallel Texas legislation.

III.

A factual error.

The opinion contains one factual error. It is minor, but if it created an

unfavorable impression it needs to be corrected. At page four the Court

writes “the jury was then dismissed,” but that is erroneous.

On Monday, April 6, the April 4 settlement with Texas Stretch was

implemented. The venire panel then answered the jury questionnaire, oral

voir dire was conducted, the jury was seated, and a jury trial progressed for

more than a week. During the second week, shortly before the Patterson

family called their last damage witnesses, Ray Bellew & Sons settled.

Charles Hitchens had already stipulated to 100% fault and invoked his

privilege against self-incrimination. At that point Charles Hitchens waived the
21

jury with the Patterson family’s agreement. Evidence was concluded and

closing arguments were then given to the court without a jury.

CONCLUSION

This Court should withdraw its opinion of June 30, 2015, delete the

erroneous paragraph at pages 27-28, and reverse and render judgment

against Brewer Leasing for the negligent driving of Charles Hitchens while

operating a Heil trailer owned by Brewer Leasing with no lease, or while

operating a Peterbilt tractor that Brewer Leasing is estopped to deny owning

with no written lease to any other company combined with Brewer Leasing’s

criminal wrongdoing.

Respectfully Submitted,

HERZOG & CARP, P.C.

By: /S/Harry Herzog 

Harry Herzog

State Bar No. 09548200

P.O. Box 218845

Houston, Texas 77218-8845

(713) 781-7500 Telephone

(713) 781-4797 Facsimile

HHerzog@hcmlegal.com

COUNSEL FOR APPELLANTS
22

By: /S/Dorothea Vidal 

Dorothea “Dotty” L. Vidal

State Bar No. 20578100

dvidal@gpd.com

Geary, Porter & Donovan, P.C.

One Bent Tree Tower

16475 Dallas Parkway, Suite 400

Addison, Texas 75001-6837

P.O. Box 700248

Dallas, Texas 75370-0248

972-349-2211 Telephone

972-931-9901 Facsimile

CO-COUNSEL FOR APPELLANTS

CERTIFICATE OF SERVICE

This is to certify that in accordance with the Texas Rules of Appellate

Procedure a true and correct copy of the above and foregoing Brief of

Appellants has been sent to all parties and/or counsel of record listed below

via electronic filing and email on July 15, 2015.

George W. Long

Attorney at Law

2000 East42nd Street, Suite G110

Odessa, Texas 79762

george.long.mexico@gmail.com 

 /S/ Harry Herzog 

 Harry Herzog
23

CERTIFICATE OF COMPLIANCE

This brief complies with the typeface and length requirements of Texas

Rule of Appellate Procedure 9.4 because:

(1) This brief complies with typeface and the type style requirements

of Rule 9.4(e) because the brief has been prepared in a

conventional typeface using WordPerfect with Arial 14-point font.

(2) This brief complies with the length requirements of Rule

9.4(i)(2)(D) because it contains 4,445, excluding the parts of the

brief exempted by Rule 9.4(i)(1).

 /S/Harry Herzog 

Harry Herzog 

Attorney for Appellants
24

APPENDIX

Appendices 3-6, 8, 9, 12 and 13 were in the original Appellants’ Brief.

Appendix 20 contains PX 335, referred to in Appendix 8.

3 Brewer Leasing test results to HPD (PX 263)

4 DA report declining prosecution (CR 75)

5 Mr. Patterson’s affidavit on fraud (Supp CR 82)

6 Mr. Herzog’s affidavit on fraud (Supp CR 75)

8 Who employed Charles Hitchens (Summary of exhibits)

9 Brewer Leasing lease to Texas Stretch (PX 302)

12 Mr. Herzog’s two affidavits on pleadings

13 Plaintiffs’ Fourth Amended Petition (CR 29)

20 Supplemental Response of Texas Stretch to

Plaintiffs’ Motion for Partial Summary Judgment (PX 335)
Appendix

 3
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Comments: 

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Houston, T~~ 77093 

713-691-2779 

Fvc. 713·691-6883 

Date: 

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92 of 252 

Fl•etSc:reen. Ltd. 

15000 Westem Place 

Sul!e 480 

For1 Worth. Texaa 76107 

ATTENTION: 

Bulch Brewer 

Te>ras Stretch. Inc. 

2103 Skinner Road 

Houston. TX 7709J 

Record Starvs: Neg alive 

Te>st T1-pe Pr~·Emproyment 

Colleetion DateTTim(Ji§¥20.le~ 

BolCh 10: 20060502 

Soeclmen 10: 45213879 

Dare COC RecelveG: 05102/2006 

Sample Type: Urrne 

Participant: Charles A Hitchens 

PartJc:rpant 10: 337 --166!:1 

Results of DOT Controlled Subs.unce Test 

Let>oralory LebOne. Inc. 

10101 Renner Boul..-:~111 

Leneu, KS 66219-9752 

CollectJon Sile Tnaa StreiCh, me. 

2103 Skinner Road 

Hou&ton. TX 77003 

Specimen Collector. Douglns A Schopp~ 

Sub~nceJ~ ~ 

Cocaine Negalive 

0Ptales Nogarive 

Submns;e Testl!d Result 

Amphflamin~s Negat~~~e 

1\Aariju:ma Negative 

Pheneyt;lidine Negative 

----------~~--~-----~------------------------------------------------~ In aceordonc;e wilh epplrcable I=P.det:~l requirement&. my determrnationr'vllrrlic:~llon is as Gbave 

5/212006 

Garrett R Tucker Ill. MO. MPH Venfic;ation Date 

Results ror Cherie!$ A 1-lorchens. l'el'tielpent 10: 337 ••••• -'865) Primed an 51212006 ar 4·42:36PM 

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Fl~tScreen, Ud. 

6000 Western Place 

Su•te 480 

Fort Worth. Texas 76107 

ATTENTION: 

3uteh 8ro:wer 

Texas Sir~. '"'· 

2103 Sklnl'er Road 

HouliiDn, l'X n093 

f I . 

RKord S:"all.ls. Posltwe 

Test Type Post-3cc:rfent T~>St 

Colleet1on OaleiTrm~~~~ 

Batch 10. 20060621 

Specimen 10· 36839345 

Oate COC Received: 001201'20C6 

S•tnple Type· U11ne 

Sub5Qnct T~stv<J RHult 

Amph~mr11n Nevati,.. 

ManjuatU N409ative 

Phencyc'oelim Negative 

Ga11etr R. Tucker Ill. MO. MPH 

P;~rti,ipant: Charle$ Hitcl'lem 

PartrcipaniiO. 337 

SSN:-888S 

Results of OOT Contr~lled Substance Test 

Laboratory: LabOnc!,lnc. 

10101 Renner Boul~ard 

Lenexa. KS 66219-9752 

Collection Srte. Teqs Slrutch. Inc. 

2 I 03 SIU,.er Road 

~u~f!Oft. TX 77093 

SPecimen Collector DOUGLAS 4 SCHOPPE 

Substanc;• Tesl~ ~ 

CocaillCI POSITIVE 

Opiates Nel!B"M 

Verilicalion Dete 

P.esults for Charlc-; Hitcnem:. P:zr1icr;,:ant 10· 337 •••• l-00651 P<~r:led 01"1 6/21/2006 .:t! 9 4~ 14AM 

00115 
SYSTEM ADVISORY: REPORT ENTERED USING PERSONAL COMPUTER VER-5.00-W 

******************************************************************* 

* * 

* 

ENTRY DEVICE: MOTOROLA MW-520 736SDL0504 345 

ENTRY FROM DATK-062906 TIME-1345 TO DATE~062906 

TRANSFER DEVICE: COMPAQ TOWER 220614 S77 WIN2000 

TRANSFER DATE-062906 TIME-1656 LOAD DATE-070206 

LOCATION OF OFFENSE: POLICE DISTRICT-DISTRICT 20 

TIME-1444 * 

* VER. 5.00-W* 

* TIME-1019 * 

* DIST-20 * 

******************************************************************* 

EVIDENCE WAS TAGGED-N LATENT PRINTS WERE LIFTED AT A SCENE-N 

Supplement entered by = 89942 

No-0002 

Offense- DEATH DUE TO TRAFFIC ACCIDENT 

Street location information 

Number- 14800 Name-KATY Type-FWY SuffixApt no- Name-HWY 6 Type- Suffix-N 

Date of offense-06/15/06 Date of supplement-07/27/06 

Compl(s) L~st-PATTERSON First-DIANE Middle-YARBROUGH 

Recovered stolen vehicles information 

Recovery location- District- Beat- 00 

Stored- byOfficer1-D.L. HARWELL Emp#-085506 Shift-1 Div/Station-MOBILITY 

SUPPLEMENT NARRATIVE 

JFFICER HARWELL DOING A FOLLOW-UP ON FATALITY ON 14800 KATY FWY ON 7/26/06. 

JFFICER HARWELL CALLED TEXAS STRETCH TRUCKING COMPANY ON 7/26/06 AND TALKED TO 

:.L. BREWER.HE FAXED ME THE TOXICOLOGY REPORT OF CHARLES HITCHENS FOR HIS 

PRE-EMPLOYMENT AND POST ACCIDENT URINE TEST. THE PRE-TEST SHOWED NEGATIVE ON ALL 

3UBSTANCES WHICH INCLUDE: AMPHETAMINES, MARIJUANA-, PHENCYCLIDINA, COCAINE·, AND 

)PlATES. THE POST-ACCIDENT TEST SHOWED POSITIVE ON COCAINE. OFFICER TALKED TO 

:HIEF INTAKE DA J. ORTIZ IF WE SHOULD SUBPOENA THE LAB RECORDS TO GET THE 

2UANTITY OF COCAINE IN HIS SYSTEM. HE TOLD ME TO CONTACT THE LAB AND SEE IF 

rHERE WERE QUANTITATIVE RESULTS. I CONTACTED LABONE INC AT 1-913-888-8397 AND 

rHEY SAID THERE ARE QUANTITY RESULTS IF THE ACCOUNT IS SET UP FOR IT. I WAS TOLD 

ro TALK TO DON HAHN AT 1-800-728-4064 X1632 TO PURCHASE A LITIGATION KIT FOR 

~200.00. I WILL TALK TO THEDA TOMORROW AND SEE IF THEY WANT TO PURSUE THIS 

:..ITIGATION KIT. TALKED TO METRO PD, OFF GOODNIGHT ABOUT THE SCALE DRAWING. HE 

;TATED OFF PORTER HAS JUST COME BACK TO DUTY AND HAS NOT FINISHED THE SCALE 

120 of 252 
Appendix

 4
75

03/08/2013 03:57:29 PM 

Case Decline Report 

FURTHER INVESTIGATION NEEDED 

Defendant First: -Charles 

Date of Off!nse: 6115'2GO'f'-'C.-t::> ~ 

Offllnsa: Intoxication Manslaughles: 

Officer First: DL 

713-755-1451 

Defendant Last: Hitcnens 

Date of Reject: 611:1/'ZJXJT 

Officer Last: Harwell 

Agency: HOUSTON POUCE DEPARTMENT 

Witness Rrst: Diane 

ADA First: Warren 

OR#: 92975406 

Reason: 

VATS REVIEWED CASE 

Witness Last: Patterson 

ADA Last: Dlepraam 

The defendant was driving a tractor trailer eastboUnd in the 148:10 block of the Katy Freeway 

just west of HigtMray 6. Sever.ll Precinct Feu de~ies had stopped freeway traffiC because 

they were escorting an Clllef$ize load. The defendant was not able to see the stq:Jped traffic 

ahead of him foe some unknown reason. He drove into sever.~l cars that had stopped. The 

complainant's vehicle caught fire and she was kiHed. 

The sole act of negligence so far in the case is failing to maintain a proper lookout. 

HONeYer, the defendant has not given a complete statement abaJt why he was looking 

doNn. hoN long he was looking doW'n, etc. 

In a case d this nature, speed is aitical. The HPD has been unable to determine as~ of 

the defendanrs tractoc trailer prior to impact. 1 tis l.l'lki"'INTT if this vehicle had satellite -

trackill;J capablity that wuold be r:1 assistance. Of the fifteen witnesses that HPD spoke to 

(II'ICI!dng the C4 deputies), only a couple cJ them mention speed. Their opinions on speed 

should be more extensively investigated. 

The defent:IMt, due to federal ~tory reqlirements, sltmitted to a uir&ysis -wnich 

tested positive fer cocaine. It Is a.r«nown whether or not the private lab tested for actual 

cocaine, cocaine metabolites, cr quantifted the amourt. Asrl today, tlis lnfamation has not 

been obtaned. Therafore, it is UOOlc:w1 whether the ill'l'lOI.ri rl cocaine is a large dose 

three days ago. s small dose two days cg:~, etc. Additionally, officers at the scene ncted no 

sigr6 rl impairment on the defendant. This means that either they missed the signs d 

cocaine use or that the cocaine CJJ31'1Uty was insufficient to cause impairment. That 

Questioo, hoNever, can't be answered until the adual amounts are obtained by HPD. 

lastly, altho.Jgh this office is a pmsecutorial- off.ce a'ld not an investigatiVe office, the report 

and photos were submitted to a ~vale reconstructionis t for review. Fran the information 

provided to him, he was unable to answel' the above questions. 

Page 33/57 

EXHIBIT 

E. I 
Appendix

 5
82

02/28/2012 04:32:32 PM 713-755-1451 

CAUSE NO. 2011-64488 

MARCUS BRENT PATTERSON, 

INDIVIDUALLY, AS INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF 

DIANE PATTERSON, AS NEXT 

FRIEND OF DANIEL PATTERSON, 

DANAEPATTERSON,oodDANffiL 

PATTERSON (now 18 years of age), 

Plaintiffs, 

v. 

BREWER LEASING, INC. 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

AFFIDAVIT 

STATE OF TEXAS § 

§ 

COUNTY OF HARRIS § 

Page 71 /75 

IN THE DISTRICT COURT 

3341

h JUDICIAL DISTRICT 

HARRIS COUNTY, TEXAS 

BEFORE ME, the undersigned authority, on this day personally appeared Marcus Brent 

Patterson. After being duly sworn Mr. Patterson stated under oath as follows: 

1. Backa:round. 

"My name is Marcus Patterson. I am over the age of 18 and have never been 

convicted of a crime. Every statement contained in this affidavit is true ood correct. 

I was married to Diane Patterson for 21 years before her death. We adopted two 

children at birth, Daniel Patterson and Danae Patterson. 

On June 15, 2006 my wife was killed in a multi-vehicle collision on Interstate I 0, 

just west of Highway 6. I first learned of the collision when I was called by the 

medical examiner to assist them in gaining dental records to verify the identity of my 

wife. 

After the wreck I heard a rumor, not verified at the time, that the driver of one of the 

vehicles involved in the collision was using cocaine or tested positive for cocaine. 

Page 1 of 4 

EXHIBIT 10 
83

02/28/2012 04:32:32 PM 713-755-1451 Page 72/75 

In January or February of2007 the Houston Police Department finally released their 

report with regard to the collision. The Houston Police Department report reflects 

that Mr. Charles Hitchens, driving a Brewer Leasing vehicle, used an illegal 

substance, and the use of that illegal substance was a factor in the collision. Before 

I received the Houston Police Department report of the collision I had no other 

written documentation with regard to who had used an illegal substance in the 

collision. 

2. My personal knowlede-e. 

I have personal knowledge of the following: 

From the time I first read the Houston Police Department report through the time of 

trial, which began April6, 2009 and ended the following week, I never learned the 

quantity or amount of cocaine that was used, and I never learned of any scientific 

evidence in respect to the cocaine level in Mr. Hitchens at the time of the collision. 

We attempted to ascertain this information, and we discussed this in one or more 

phone calls with law enforcement personnel, but we were never able to learn the 

amount of cocaine that was in Mr. Hitchens' system at the time of the collision. In 

discussions that Mr. Herzog and I had with law enforcement personnel Mr. Herzog 

told the law enforcement personnel that he also still did not know the amount of 

cocaine in Mr. Hitchens' system at the time ofthe collision. 

At some point in 2008 (I do not recall the date) we finally got the sworn testimony 

of Mr. Hitchens, but Mr. Hitchens decided to decline to answer questions and 

invoked his right against self-incrimination. Therefore, we were unable to learn from 

Mr. Hitchens when he had ingested cocaine, how much he ingested, and what his 

level of cocaine was at the time of the collision. 

At some point before the trial Mr. Herzog showed me a Motion that Brewer Leasing 

had filed with the Court (I believe in conjunction with other defendants, including 

Mr. Hitchens) to exclude the evidence from the Houston Police Department 

investigation that Mr. Hitchens had cocaine in his system at the time of the collision. 

We had no evidence that indicated the amount of cocaine in Mr. Hitchens' system. 

Brewer Leasing was contending in writing in the document filed with the Court that 

there was no evidence or quantification as to how much cocaine was in his system, 

and that without that evidence we could not show that the cocaine had any relevance 

to his driving behavior. We were unable to dispute the Motion. 

Starting Friday afternoon April3 and continuing most ofthe day Saturday, April4, 

2009, a variety of settlement discussions were initiated by individuals other than me. 

During this time I had no information that indicated the quantity or specific level of 

cocaine in Mr. Hitchens' system at the time of the collision. 

Page 2 of 4 
84

02/28/2012 04:32:32 PM 713-755-1451 Page 73/75 

In April2009, before trial, during settlement discussions, and during the trial I never 

knew when Mr. Hichens ingested cocaine, how much cocaine he ingested, or what 

the level of cocaine was in his system at the time of the collision. 

In privileged discussions relating to filing this suit I learned for the first time that Mr. 

Hitchens had a level of 43,444 nanograms. I also learned for the first time that 

Brewer Leasing and its lawyers knew this information as early as February of2007, 

discussed the information between themselves and the insurance carrier in February 

and March of2007, concealed it for two years, and lied to the Court in writing when 

they filed the Motion just before trial to exclude the evidence of cocaine. I was 

furious at the abuse of the judicial system. I still am shocked and angry at their 

conduct. 

If I had known that Brewer Leasing was concealing the truth for two years and had 

lied to the judge, to me, my children, my lawyer, and other parties and lawyers in the 

written document that they filed with the Court, I would not have entered into an 

agreement with them to not execute on their assets or take an assignment in the future 

of their rights. 

Brewer Leasing's failure to tell me the truth, and their specific false written 

statements with regard to Mr. Hitchens cocaine level, were essential ingredients in 

obtaining my consent to not execute against the assets of Brewer Leasing and were 

essential ingredients to my agreement to later step into the shoes of Brewer Leasing 

in its dispute with its insurance carrier, Home State County Mutual Insurance 

Company. I would never have agreed, signed, or allowed my lawyer to negotiate the 

Covenant to Not Execute and Agreement to Assign Claims in the future that were 

negotiated and agreed to that weekend if I had known then what I know now with 

respect to the truth concerning Mr. Hitchens' cocaine level and the truth with respect 

to Brewer Leasing's concealment of that cocaine level for over two years. 

Now I am in a position of having to continue the lawsuit process, regardless of its 

turmoil and cost, to get at the truth of what happened. Brewer Leasing cheated me, 

my children, our lawyer, the other injured people, their lawyers, Williams Brothers 

and Bellew & Sons, and their lawyers." 

Further Affiant sayeth not. 

Page 3 of 4 
85

02/28/2012 04:32:32 PM 713-755-1451 Page 74/75 

SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand and seal 

of office on the a 1 tf.-day of r~ f u ({ 

Page 4 of 4 
Appendix

 6
75

02/28/2012 04:32:32 PM 713-755-1451 

CAUSE NO. 2011-64488 

MARCUS BRENT PATTERSON, 

INDIVIDUALLY, AS INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF 

DIANE PATTERSON, AS NEXT 

FRIEND OF DANIEL PATTERSON, 

DANAE PATTERSON, and DANIEL 

PATTERSON (now 18 years of age), 

Plaintiffs, 

v. 

BREWER LEASING, INC. 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

AFFIDAVIT 

STATE OF TEXAS § 

§ 

COUNTY OF HARRIS § 

Page 64/75 

IN THE DISTRICT COURT 

334th JUDICIAL DISTRICT 

HARRIS COUNTY, TEXAS 

BEFORE ME, the undersigned authority, on this day personally appeared Harry Herzog. 

After being duly sworn Mr. Herzog stated under oath as follows: 

"My name is Harry Herzog. I am over the age of 18, of sound mind, and have never 

been arrested, charged, or convicted of any crime. I have personal knowledge of 

every statement contained in this affidavit. Every statement in this affidavit is true 

and correct. 

I. Backeround. 

I was hired by Marcus Patterson to represent his family with regard to the death of 

his wife, Diane Patterson. Despite many efforts on our part we were unable to 

ascertain precisely who was responsible for the collision, or begin a comprehensive 

and detailed investigation of who was responsible for the collision, until the Houston 

Police Department accident report was released. In January or February of 2007 the 

police report was finally released relating to the collision that killed Diane six or 

seven months earlier. 

Page 1 of 7 

EXHIBIT Cj 
76

02/28/2012 04:32:32 PM 713-755-1451 Page 65/75 

The HPD accident report indicates Mr. Hitchens was responsible for the collision and 

an illegal substance contributed to the collision. (See Exhibit 3, second page, factors 

22 and 68). In the course of the next two years I engaged in a variety of conduct in 

an effort to ascertain exactly what illegal substance Mr. Hitchens consumed, what the 

level of the substance was, and to obtain proof that the substance impaired his driving 

behavior. 

I was able to learn that Mr. Hitchens tested positive for cocaine. (Exhibit 4). 

However, we were never able to learn before the April 6, 2009 trial what the level or 

quantification of cocaine was. Mr. Elwood, a skillful and capable attorney working 

with Mr. Ramey on behalf of defendant Ray Bellew & Sons, attempted to obtain lab 

testing results by a Deposition on Written Questions. He failed. Since then I have 

spoken with the responsible individual at the deposition company who advised me 

that the lab refused to comply with the Deposition on Written Questions and refused 

to provide any information. Mr. Elwood has confirmed for me on several occasions 

that he was unable to obtain any satisfactory response to his Deposition on Written 

Questions. 

While I was working with Mr. Elwood in an attempt to ascertain the level of cocaine 

I was also working with a variety of skillful and experienced plaintiffs counsel 

representing various injured individuals. None of us were able to obtain the 

infonnation that quantified the level of cocaine. 

In addition to working with other plaintiffs counsel and with Mr. Elwood on behalf 

of a defendant, I also attempted to ascertain the cocaine level by communicating with 

the Harris County Assistant District Attorney, Warren Diepraam, who was the point 

person with respect to the criminal investigation of Mr. Hitchens. Mr. Diepraam 

assured me that he had been unable to ascertain the level or quantification of cocaine 

in Mr. Hitchens' system, and without that infonnation he was unable to charge Mr. 

Hitchens with homicide. 

Brewer Leasing filed a document with the Court in which Brewer Leasing contended 

that there was "no evidence that Mr. Hitchens was impaired," that there was "no 

quantification as to the amount of cocaine" in Mr. Hitchens' system, that there was 

"no information" as to whether the substance tested was cocaine or a cocaine 

metabolite, and that since there was no quantification on the amount of cocaine, no 

information as to whether it was cocaine or cocaine metabolite, and there was no 

evidence that Mr. Hitchens was impaired, the positive drug test on Mr. Hitchens for 

the presence of cocaine should not be admitted into evidence at the trial of the case. 

With great reluctance Mr. Elwood and I agreed to the proposed Order since we had 

no information that contradicted these claims by Brewer Leasing. 

Page 2 of 7 
77

02/28/2012 04:32:32 PM 713-755-1451 Page 66/75 

II. No neelieence. 

The claims by Home State that I was negligent with regard to failing to discover the 

cocaine level of Mr. Hitchens, and that I learned of the cocaine level of Mr. Hitchens 

in August of2010, are completely false and unsupported by any facts. 

I spent a significant amount of time and a great deal of effort trying to investigate and 

prove the cocaine level of Mr. Hitchens. My efforts, and the efforts of the other 

lawyers, exceeded ordinary care. In light of the efforts by Brewer Leasing and its 

counsel to conceal the truth I do not know how any lawyer representing any plaintiff 

or any defendant could have obtained the truth. I am not an expert on criminal 

procedure so I do not know what the limits are with regard to the subpoena power of 

an Assistant District Attorney or a grand jury, but it appears that the only way anyone 

could have overcome the efforts to conceal the cocaine level would have been for the 

District Attorney's office or a grand jury to subpoena the records from the testing 

service. 

The claim that I first learned of the cocaine level in August 2010 is a false fantasy. 

In August 201 0 for the first time Mike Hays and his finn made available to me "the 

file" of George Jackson with regard to the underlying case. But the reality was that 

the documents I was shown were limited. I did not see the February 2007letter from 

Mr. Hays, the investigator's report, or the initial report of defense counsel. In 

addition, numerous other boxes containing numerous other documents were not 

revealed to me. None of Mr. Jackson's emails were provided (many are still not 

produced), his letter to the mediator was not provided (and still has not been 

provided), his notes from his first meeting with me were not provided (and still have 

not been provided), and various other documents were not revealed to me. 

I first saw Mike Hays'letter ofFebruary 2007 and George Jackson's initial defense 

attorney status report either the last week of October or the first week of November 

2010. I saw them from one of two sources. First, Home State finally produced 

documents responsive to a Request for Production many, many weeks after the 

responses were due. Their lawyer gave me a disc with thousands of pages of 

documents on it at the conclusion of a court hearing that took place on Friday, 

October 22, 2010. In addition, Home State sent Requests for Production which 

compelled the production of various documents from Mr. Hays' firm, including Mr. 

Jackson's file. I immediately complied with the Request for Production and tried to 

produce documents within a week, rather than waiting thirty days. When I went to 

Mr. Hays' office to coordinate the production and to meet with Mr. Nick Morrow (an 

attorney for Home State who decided not to attend), I learned for the first time that 

Mr. Hays had additional boxes of documents that he was "now producing." I 

watched in amazement as box after box were gradually brought to me, all of which 

had been concealed from me in August. I, of course, rapidly scanned through the 

Page 3 of 7 
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boxes and had the material in the boxes copied. 

The materials that revealed the cocaine level were produced in late October 2010 

from Home State and from Mr. Hays. I have vivid memories of my shock, anger, and 

disgust when I first saw the information. 

Another false claim (made with no evidentiary support) was that I designated Mr. 

Garrett Tucker as an expert because I knew the results of Mr. Hitchens' cocaine test. 

The reality is Mr. Tucker never spoke with me. He refused to speak with me or 

anyone in my office (other than to say he would not speak with us). I designated Mr. 

Tucker as an expert solely to open the possibility that if I learned what the cocaine 

level in Mr. Hitchens system was I would have a witness who could testify to the jury 

at the time of trial. 

With regard to the filing of the Bill of Review, we tried to place the case in the 334'11 • 

We sent a cover sheet noting for the clerk that the case had to be in the 3341

h due to 

its nature as a Bill of Review, with the underlying judgment having been issued from 

the 3341

h. (See Exhibit 11). 

Between early November 2010 and the filing of the Bill ofReview lawsuit in October 

2011 a variety of activity occurred. It would be accurate to characterize the activity 

as follows: first, shock, anger, and dismay at the concealment of the cocaine level 

of Mr. Hitchens. Second, an investigation, as best as we could conduct, with regard 

to how the matter was concealed and how the truth could be proven. This involved, 

in part, the deposition of Mr. Jackson. The deposition of Mr. Jackson was delayed 

and moved, at his request or at his counsel's request, to June of2011. Third~ without 

waiving the attorney client privilege or the work product exemption, it is accurate to 

say that after the investigation was completed the matter had to be discussed among 

the various individuals involved on our team and with Mr. Patterson. The decision 

had to be made whether to file the Bill of Review, and that decision was certainly not 

made lightly. 

III. Inducement. 

In 1 anuary 2009 this case seemed incapable of settlements. 

On January 28, 2009 I was diagnosed with cancer. I delayed treatment to get the 

Patterson case resolved. With the courteous assistance of opposing counsel and 

Judge McCally, the trial setting was adjusted from a two week docket of March 30---

April 10 to a preferential setting to start April 6, 2009: this allowed me to schedule 

surgery with a level of comfort that I would not be in trial after April 24. 

On the afternoon of Friday, April 3, 2009, I received an unexpected call from 

Page 4 of 7 
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Amanda Hilty. She was lead counsel for Sagamore Insurance in their suit against 

Texas Stretch (Hitchens' employer) seeking to deny any coverage or duty to defend. 

For the first and only time Sagamore made a realistic, legitimate settlement offer. 

Thus began 24 hours of unanticipated, complex, multi-party settlement discussions. 

At no time during these discussions did I know that the Joint Motion to exclude Mr. 

Hitchens' positive drug test result (Exhibit 8) was full of lies, false 

misrepresentations, and concealment of the truth. 

I, my wife, and my son had been friends with Marcus, Diane, Daniel, and Danae 

Patterson for many years when Diane was killed. Marcus trusted me and relied on 

my legal advice as we navigated the maze that became the legal landscape of the 

dispute. The wreck generated three lawsuits involving the Patterson family, with over 

a dozen parties and dozens of witnesses, at that time. I never would have advised 

Marcus to accept an assignment of claims in the future or foreclose his ability to 

recover uninsured punitive damages from the assets of Brewer Leasing if I had 

known the truth about Mr. Hitchens' cocaine level. I was deceived by Brewer 

Leasing in this regard. 

IV. Gross neflliJ:ence. 

Without proof of a cocaine level Icouldnotprove Mr. Hitchens operated the 79,940 

pound vehicle while impaired by cocaine, and without proof of impairment I did not 

think gross negligence could be proven by clear and convincing evidence to all 

twelve jurors selected. 

I had been a licensed attorney for over 26 years at the time of the trial. I had been 

board certified in civil trial law for 20 years and civil appellate law for 16 years. I 

had recovered punitive damage awards ten times for plaintiffs, and my clients had 

been hit for punitive damages four times, so I had significant trial and appellate 

experience on all sides of the punitive damages debate. One of the driving reasons 

for accepting the two agreements with Brewer Leasing and then dropping the claim 

for punitives (which was not part of any agreement) was the inability to prove 

cocaine impairment. 

While it is impossible to perfectly predict the behavior of an opposing lawyer or a 

jury, I believe any human being with knowledge of the whole truth has to agree that 

Mr. Hitchens' driving that almost killed Sheryl Skinner and then did kill Diane 

Patterson was grossly negligent behavior. No one can seriously claim that driving 

79,940 pounds at highway speed while impaired by 4 3, 444 nanograms of cocaine so 

that on a flat highway for a mile, on a clear morning, they don't see eight stopped 

vehicles blocking all lanes of traffic, one or two motorcycle escort vehicles with 

emergency flashing lights in operation, and an 198,000 pound, 160 feet long, 50 

wheeled vehicle approaching is not grossly negligent. 

Page 5 of 7 
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V. Exhibits. 

Attached to the Motion for Partial Summary Judgment are true and correct copies of 

the following documents: 

1. LabOne form reflecting Charles Hitchens' specimen collected June 15, 2006 

at 1:29pm (produced by defendants in collision case)~ 

2. Tx.DOT form reflecting Charles Hitchens' speimen collected June 15,2006 

at 1:24pm (produced by defendants in collision case); 

3. HPD collision report (verified by HPD in deposition of investigating officer 

Dane Harwell); 

4. FleeScreen results ofTxDOT test (produced by defendants in collision case); 

5. Mike Hays' letter to Geroge Jackson dated February 12, 2007 (produced by 

Mike Hays); 

6. George Jackson's February 26, 2007 Initial Status Report to Home State 

(produced by Home State); 

7. Harris County Case Decline report (produced by Brewer Leasing); 

8. Joint Motion to Exclude drug test (filed by Brewer Leasing); 

9. This affidavit (the original); 

10. The affidavit of Marcus Patterson (the original); 

11. Civil Case Information Sheet which I signed; 

12. Aerial photo of scene on June 15, 2006 (produced by HPD); 

13. Photo of Brewer Leasing vehicle at scene (produced by Williams Brothers); 

and 

14. Photo of Diane Patterson's Ford Expedition at scene (produced byTxDOT)." 

Further Affiant sayeth not. 

Harry Herzog 

Page 6 of 7 
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02/28/2012 04:32:32 PM 

DQtN. .ENI£ DIC1(SON 

MY COMMISSION exPIRES 

Qlillllel' 17, 2015 

713-755-1451 Page 70/75 

Page 7 of 7 
Appendix

 8
Who employed Charles Hitchens?

In the first case Texas Stretch spent 1,000 days denying employing

Charles Hitchens while Brewer Leasing implied they were the employer. The

documentary evidence conclusively proved the opposite. Charles Hitchens

applied for a job with Texas Stretch (PX 307), signed an employment

agreement with Texas Stretch (PX 308), received Texas Stretch trucker

policies (PX 309), gave his time to Texas Stretch (PX 310), was paid by

Texas Stretch (PX 311), and was dispatched on June 15, 2006 by Texas

Stretch (PX 324; AB p. 109) while hauling a load for Texas Stretch (PX 325).

After the General Manager of both companies testified that the lawyerly

position was ludicrous and that Texas Stretch employed Charles Hitchens,

then and only then – the week before the first trial – Texas Stretch finally

admitted it employed Charles Hitchens. (PX 335). 
Appendix

 9
LEASEAGR.EEHENT 

TRACTOR OWNE:R.'-LT-ri"-::x_A_s_S_0_~_t_.:._j(_c....:_)l__..,:.~_n~_c_s. s. No. ______ _ 

ADnREss_----'1-!)r-/...::::...o-=s--:..S-!-/c-=-J-=-N-!.../L~' c.::.:...:::f(_ ___ PHONE No. 713 6 11 J.. I '7 7 

f/aU.>/onJ 1~ 'l7o9J 

::::~_S_NAH:E __ ====/:z:\-r1-z:~:z=:7=~~::_ -_ -_ -_ -_ -_-_ -_ -: _ __:___;:~0~ ::~================= . B IJ..£"wl;-12. LH-}S;..Jfr '£1VC • 1 ocated at: :J../ 0 J S /C:.J/V/VEIC J-ioo..('/0 IV ;I,X 7.7093 

herein after referred to as lessee and TE){/)5 STR.ETCJ.i :f:/'!IC. • 

~a~/0~3~5_/C_I_N~~~E~~~f{~a~U~-~CT!~O~A-/~J~~/~/~Zud~~9~3 __ -___________ . ______ ~~--, herein after-referred to as Lessor. do hereby enter into this agreement for the 

1ease of the fo1lowing equipment under the e~ress terms and condit~ons set forth 

be:lmt: 

In ~onslderation of the provisions and covenants herein contained, it is mutually 

agreed as foll~s: 

1. The Lessor's rate of pay shall be 2Q_ percent: for power nnit and .36 

percent for tractor trailer combinations of the Revenue on freigbt moved all Tar±ff. 

2. Th.at Lessee t.rill place signs on said equiplllent shawing that: this equipment 

is leased to and operated by lessee and that. upon termination of this contract by 

either party such signs vil1 be removed by Lessor, And Lessor agrees the fai1ure to 

remove such signs will result: in damages to Lessor. 

3. 'That Lessor will equip said equipment vit:h lights and reflectors as re-

,quired by the Interstate Co~rce Commission and provide all accessorial equipment 

as required by rules and regulations on said equipment at All t.ime.s when in use of 

Lessee, and keep the equipment up to the ~nimum ~echanical requiremencs as se~ forth 

~n the rules and regulations. lessee reserves the right to inspect said equipment at 

any time or place while in its use to assure compliance with such pro~ions. 

4. That tessoT will obtain and pay for all necessary state license tags and 

registrations and affix same to said equipment and pay for and supply all gasoline. 

oil, tires, repairs, and supplies necessary t.o JJaintain operating efficiency. 

Further, Lessor shall p.ay all mileage, fuel, and hi.gbway taxes and post all bonds 

necessary and required by various states. 

5. 1bat ~t is exp~essly understood by the parties hereto tba~ all drivers. 

helpers and/or agents of Lessor used to fulfill thi.s contract are employees of 

Lessor and Lessor assumes responsibili f g ~bese dc!Qets, helpers. 

• • . per a n n~ to hou-rs of 

service -and ma~ntenance of e~u~p~nc and shall as~ure that all drivers maintain a 

da~ly log as required aud forward to Lessee said log sheets daily . 

. · !. PLAINTIFF'S § EXHIBIT 

w 

\;( ~02... 

~ 
6. Lessee does not agree to furnish physical damage insurance for Loss. 

7. That Lessor will furnish Lessee with a doctor's physi~al examinat~on 

certificate on any and all driveYs of said equipment in accordance vith the Rules 

aud 'Regulations of I.C.C. 

8. That Lessee assumes and will be responsible for and agrees to furnish 

adequate protection to the public and the shipper.R for sutomobLle bodily injury, 

praperty damage, and cargo liability. 

9. That during the tenns of this agreement, Lessor will fun:dsn adequate 

protection as to render L9ssee ha~less from claims arising from dama~e or injury 

to any third party resulting from bobtailing of Lessor's equipment. 

10. That during the terms of this agreement, said equipment will be made 

available to and controlled by Lessee at all times. and all drivers and other 

employees of Lessor used in connect~on witn this contract will also be under full 

control, direction and supervision of Lessee, or its agent. 

l.L That Les.sot" agrees that equipment herein described i.s to be used exclusively by Lessee and in t:he event said Lesso-r, his driver. eD~ployee. or agent 

shall (ieviat:e from the t:e:nns of this contract. by t:b.e transport:at:ion of freight 

for another, either gratuitously, or foy hire, or by deviation fro~ other terms. 

then rhis contract is automatically suspended until the equip~nt is returned to 

service of Lessee, and that Lessee shall be harmless fr~ such deviation. 

11. That this agreement sh<lll be :in full force and effect until terminated 

by either party hereto, but not less than 30 days. by vritten notice delivered by 

either party signatory heYeto in person if an individual, or to any officer 

t:hereofsaid party is a corporat1on. Said agreement also may be cancelled or term-

~nated by depos~ting in the U.S. Mail a notice of such cancellation. properly addressed. pn~ted. and that said party or officer hereof is evidenced by the return 

registered receipt or upon the said refusal of said addressee to accept deL~very 

thereo£. and upon termination of this agreement, Lessor agrees co return to Lessee 

all equipment, suppl~es, permits, and other property of ~ssee to the nearest 

teTminal within S days. or be charged thirty (30) cents per mile for retrieving 

of such propert)' by Lessee. 

13. That :l.f Lesaoy or his ageut is unable to deliver ca.rg,o hauled under this 

agteement to the destination upon an agreed time. Lessor ~ill immediately notify 

Lessee, or the consignee of such cargo of the probable delay, and chat failure to 

give such notifications will be construed a$ negligence on the part of the Lessor. 

14. That Lessee shall be impovered to charge Lessor all claims foY shortages, 

losses, or damage to cargo 'Which are uot the result of accident: i.nvo~v1.ng the 

equipment covered by this agreement. 

15. That Lessee will charge the first $~00.00 Q£ any cla~m for public liability 

or property damage due to negligence of Lessor, his driver, or agent, and furtheY 

the lessee will charge Lessor for all damages to cargo caused by negligence of 

~ssor. h~s dr~ver. or agent. 
16. The Lessor ~ill be responsible to Lessee for damag~ to Lessee's equipment 

or property damages as a result of Lessor's Gtr:iking any viadnc:t:., lev overhead, or 

other s~at~onaTy object through carelessness or neglect of Lessor, his dr~ver, or 

agent. 

17. That: ·Lessor shall not be paid for any load vrecked or dam.aged in transit: 

and returned to origin point. 

18. The Lessee shall charge Ikssor in full for any aml all water damage to 

cargo caused by neglect of LeBaor, his driver, or agent. 

19. The Lessee will hold from the Lessor's earnings a total of $200.00. The 

said $200.00 less any clai~s. to be refunded to Lessur or Lessee v~thin a per~od 

of not less than thirty day~ and not to exceed ninety days of the termination of 

the lease by either party. 

20. The Lessor shall reimburse the ~essee for any fines or penalties pa~d by 

tbe Lessee ae a result of illegal or criminal acts committed by the Lessor. his 

driver, or agent. 

21. All iusurange, payroll taxes, state employment taxes shall be paid by 

Lessee and charged back to Lessor. Any ~ncrease in above will be charged or any 

decrease vill be adjusted in cost • 

. · 
Appendix

 12
CAUSE NO. 2011-64488 

MARCUS BRENT PA TIERSON, et al § 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

Plaintiffs, 

v. 334th JUDICIAL DISTRICT 

BREWER LEASING, INC. 

Defendant. HARRIS COUNTY, TEXAS 

AFFIDAVIT 

STATE OF TEXAS § 

§ 

COUNTY OF HARRIS § 

BEFORE ME, the undersigned authority, on this day personally appeared Harry 

Herzog. After being duly sworn Mr. Herzog stated under oath as follows: 

"My name is Harry Herzog. I personally wrote this affidavit and the Motion 

to which the affidavit is attached. I have always been the lead counsel of 

record for the Patterson family members in all five district court lawsuits 

involving this wreck (two of them are suits against them), was the lead 

counsel in the recent trial of this case, and personally prepared every 

pleading on behalf of the family. I therefore have personal knowledge of 

everything in this affidavit. All statements in this affidavit are true and correct. 

I have been a licensed attorney for almost 32 years. I have been Board 

Certified in Civil Trial Law for almost 24 years and Civil Appellate Law for 

almost 20 years. 

I have reviewed our pleadings files. We filed all of the following pleadings in 

the first case: 

Plaintiffs' Original Petition on December 1, 2006; 

Plaintiffs' 1st, 2nd, 3rd, 4111, and 5111 Amended Petitions. 

In this case we filed: 

Plaintiffs' Original Petition on October 24, 2011; 

Plaintiffs' 18

1, 2nc:t, 3rd, and 4th Amended Petitions. 

In response to those eleven pleadings I recall no Special Exceptions by 

Brewer Leasing, I show none in my files, and I have no reason to believe any 

were ever filed." 

1016 
Further Affiant sayeth not. 

Harry Herzog 

SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand 

and seal of office on the 18th day of October, 2013. 

Page 2 of 2 

1017 
CAUSE NO. 2011-64488 

MARCUS BRENT PATTERSON, 

INDIVIDUALLY, AS INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF 

DIANE PATTERSON, AS NEXT 

FRIEND OF DANIEL PATTERSON, 

DANAE PATTERSON, and DANIEL 

PATTERSON (now 18 years of age), 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

Plaintiffs, 

v. 3341

h JUDICIAL DISTRICT 

BREWER LEASING, INC. 

Defendant. HARRIS COUNTY, TEXAS 

AFFIDAVIT 

STATE OF TEXAS § 

§ 

COUNTY OF HARR.IS § 

BEFORE ME, the undersigned authority, on this day personally appeared Harry 

Herzog. After being duly sworn Mr. Herzog stated under oath as follows: 

"My name is Harry Herzog. I am over 21 and personally wrote this affidavit 

and the Reply to which the affidavit is attached. I have always been the lead 

counsel of record for the Patterson family members in all five district court 

lawsuits involving this wreck (two of them are suits against them), was the 

lead counsel in the recent trial of this case, and personally prepared every 

pleading on behalf of the family. I therefore have personal knowledge of 

everything in this affidavit. All statements in this affidavit are true and correct. 

I have been a licensed attorney for almost 32 years. I have been Board 

Certified in Civil Trial Law for almost 24 years and Civil Appellate Law for 

almost 20 years. 

After I was hired we attempted to get the police report from the Houston 

Police Department. It had not been released so I could not obtain a copy. 

In August 2006 I wrote a letter to a company I believed to be acting in 

conjunction with Brewer Leasing's insurer. (PX 490). I later turned out to be 

correct. The letter addressed Brewer Leasing's responsibility for the driver 

in this collision. No one ever replied to my letter. 

On December 1, 2006 I filed suit for the family members who hired me 

against Brewer Leasing (and others), claiming Brewer was liable for the 
driver's negligence in the collision. (Exhibit 1 to this Reply). I attached 

discovery with that suit. 

In February 2007 several things occurred that are relevant to the matters in 

issue at this time. HPD released the collision report. Two defendants 

surfaced and answered. I renewed my efforts to hold each company 

responsible for the driver's negligence, and I tried to settle quickly with each 

defendant. 

Who employed Charles Hitchens? 

On March 1, 2007 I received the first discovery responses. (PX 527). Brewer 

Leasing produced the driver file/ personnel file for Charles Hitchens. There 

was no explanation then, later, or through today, as to why Brewer Leasing 

was producing his driver file in light of the fact that every document in it 

relevant to the issue showed he applied for a job from Texas Stretch ("TS"), 

was hired by TS, signed an employment agreement with TS, gave his time 

records toTS, received every paycheck from TS, and there was no paper in 

the file that mentioned Brewer Leasing. 

Sagamore ln~urance, which sold a policy toTS, sued TS claiming there was 

no insurance coverage for this wreck. (PX 506). They later amended and 

also sued the Pattersons. During the course of the case Sagamore claimed 

that Brewer Leasing, not TS, hired and employed Charles Hitchens. 

TS repeatedly denied employing Charles Hitchens. 

In later discovery we obtained transcripts of recorded statements, given by 

Butch Brewer (AB's brother)(PX 519) and Doug Schoppe (the GM of both TS 

. and Brewer Leasing)(PX 509) in which it was claimed that Brewer Leasing 

employed Hitchens. 

In light of this cacophony of misdirection and confusing positions on who 

employed Hitchens I made sure that every pleading we filed alleged both TS 

and Brewer Leasing were responsible for Hitchens' negligent actions. 

(Exhibits 2, 3, 4, 5, and 6 to this Reply). There has never been a pleading 

filed by us that does not seek to hold Brewer Leasing liable for everything 

Charles Hitchens did negligently on June 15, 2006. 

In March of 2009 I was finally able to depose Mr. Lonny Box (the GM of both 

companies) and Mr. A. B. Brewer (the 100% owner and President of both 

companies). Mr. Box testified with firmness and clarity that TS employed 

Hitchens, only TS employed Hitchens, and that any lawyer that said 

otherwise was wrong. TS filed a document with this court a few days before 

trial in which they finally admitted Hitchens was their employee. (PX 335). 

Page 2 of 7 
That admission was filed within seven days of trial so I did not amend our 

pleading out of concern that our preferential trial date and trial assignment 

could be lost (and also my delayed cancer surgery possibly re-scheduled). 

Cocaine. 

On March 1, 2007 Brewer Leasing also produced a one page lab report 

showing Hitchens "positive: cocaine" on the post collision drug test of June 

15, 2006. (PX 501, 527). Brewer Leasing never explained how they could 

have his drug test result if they were not his employer. Brewer Leasing has 

also never explained, to this day, how they could fail to produce his other 

drug test results that show the exact, precise, scientifically verified level of 

43,444 Ng of cocaine metabolite. Nor has Brewer Leasing ever explained, 

to this day, how they could fail to produce those 43,444 Ng results in light of 

these requests (either from us or a co-defendant, Ray Bellew and Sons): 

"2. All documents received from LabOne, with respect to 

the post-accident DOT Controlled Substance Test of 

Charles Hitchens. 

3. All documents that reflect the level of cocaine detected 

in Mr. Hitchens in the June 15, 2006 Post-Accident 

DOT Controlled Substance Test of Charles Hitchens. 

4. All documents that reflect the amount of cocaine 

ingested by Charles Hitchens on or before June 15, 

2006 that was detected in his system in the June 15, 

2006 post-accident DOT Controlled Substance Test." 

(PX 530, pp. 3 and 4 ). 

"22. Please produce Charles Hitchens' employment file. 

24. Please produce the test results from any drug and/or 

alcohol tests given to Charles Hitchens following the 

accident in question. 

25. Please produce all test results for all drug and/or 

alcohol tests given to Charles Hitchens." 

(PX 532, pp. 10 and 11 ). 

Page 3 of 7 
Trucking law. 

Beginning in 2007, and continuing through last week, I have on numerous 

days performed legal research on federal and state legislative and 

administrative trucking laws, regulations, and case law. I have become very 

conversant in liability theories under those laws. I have attended trucking 

liability seminars and read many scholarly articles on the subject. Lawyers 

who work with me on this case have also done significant legal research in 

this area and then shared their results with me. I have consulted with many 

lawyers outside my firm and outside our formal Patterson team in an effort 

to leave no stone unturned and be certain I have found everything there is 

to find on the subject. For about a decade before she died Diane was my 

friend, Marcus was my friend and for a year or two my Sunday school 

teacher, our children were friends and playmates, and I have tried extremely 

hard to leave nothing undone in my efforts to resolve this case. Thus at all 

times, in all ways, I have tried to make sure that Brewer Leasing was liable 

for the driving negligence of Charles Hitchens. 

Pleadings. 

With respect to our pleadings, I always tried in the first case to have all the 

wiggle room r needed as they played their "who employed Hitchens" shell 

game. I did not think there was any real doubt in light of his personnel file, 

but I wanted to take no chances. Brewer Leasing never Specially Excepted 

to any of our six pleadings filed between December 2006 and March 2009. 

In this Bill of Review case, in my pleadings I relied in large part on the clear, 

convincing, uncontradicted testimony of Lonny Box and A. B. Brewer with 

regard to the lease, the fact that all relevant documents showed TS owned 

the tractor at the time of the lease to Brewer Leasing, the fact that both fuel 

tanks on both sides of the vehicle said "Leased to Brewer Leasing" with the 

company logo and TxDOT number 00580014 7C, the cab card (carried in the 

vehicle and given to HPD), and the fact that Brewer Leasing admitted the 

existence and applicability of the lease on June 15, 2006. 

Brewer Leasing's ambush of us. 

I began to suspect a surprise was coming in September 2012. I amended 

our pleadings. Among other things, I made sure that I made reference to the 

trailer repeatedly. When Brewer Leasing failed to participate in the 

preparation of, or file anything with, the Pre-Trial Order in compliance with 

the court ordered deadline of Oct 1, 2012, I was certain a surprise was 

coming. I did not know what it was or could be, but I knew danger was 

lurking. No one, nevertheless extremely capable lawyers like Mr. Hays and 

Mrs. Banks/Thompson, openly flouts a court ordered deadline for a PTO and 

Page 4 of 7 
ignores it for months unless they think they have a surprise worth the 

potential judicial wrath of non-compliance. They waited for over five months 

to file their first portions of the PTO, and those materials contained no 

surprises. I remained convinced a surprise was coming, but felt we were 

ready for it. 

When we went to the pre-trial conference on July 11, 2013, I was once again 

braced for a surprise. It did not come. 

On Friday afternoon, Aug 2, on the last business day before trial, we 

received the surprise. Without supplementing any discovery, on the literal 

eve of trial, Brewer Leasing was going to argue there was no lease. 

I looked at our pleadings. All of them, in both suits against Brewer Leasing. 

We had one cause of action: negligence. In this case they alleged liability 

for the Heil trailer from Sept 2012 to the present, and I knew the Heil trailer 

was a separate commercial motor vehicle under both federal and Texas law 

and was a separately scheduled, premiumed, insured vehicle under the 

insurance policy. There were never any Special Exceptions. I knew the law 

is clear: if there are no Special Exceptions the pleading is liberally construed 

in favor of the pleader and any defect is waived. I also knew that in addition 

to ignoring their liability as a matter of law for the Heil trailer, Brewer Leasing 

was making the mistake of ignoring their liability for owning the Peterbilt 

tractor if they succeeded in their newest shell game of "who leased the 

tractor?" The existence of the lease was not my sole theory. It was the 

theory plead in the most detail. 

So on Monday, August 5, 2013, when Mike Hays told the panel in voir dire 

that Brewer (I am doing my best to quote him word for word here based on 

my memory and notes) "just owned the tractor'' I thought Mike Hays was 

making a huge mistake. I thought he was arguing something that was no 

defense. I thought he might as well argue Hitchens was wearing a hat or 

black slacks: neither was relevant or a defense. If he succeeded in 

convincing the jury that everything about the lease was wrong, the fuel tanks 

were wrong, all the testimony and documents were wrong, and whatever else 

he wanted to claim, it was a road to defeat for him- not a road to victory. He 

wanted to focus on it. I let him distract himself. 

In my opinion, we tried the claim of liability for the Heil trailer by express 

and/or implied consent. Contrary to Brewer Leasing's claim yesterday, we 

introduced everything we needed to prove without objection. Every single 

document and all oral testimony necessary to prevail on ownership and 

weight was admitted without objection. Some of the evidence was in the form 

of defense exhibits. All of the evidence is detailed in the various documents 

we have filed in the last 45 days. The title to the Heil trailer relates only to 

Page 5 of 7 
this liability and nothing else. The weight of the trailer, both empty and 

loaded, relates only to this liability and nothing else. Starting yesterday 

afternoon, Brewer Leasing is essentially arguing they are surprised by what 

their own exhibits prove and the liability their own exhibits create. 

In my opinion we tried the claim of liability for the Peterbilt tractor by express 

consent. It was Brewer Leasing, and only Brewer Leasing, that argued they 

owned the tractor. Brewer Leasing argued everything needed to establish 

their own liability. In my opinion they are now estopped to deny that 

ownership. If that ownership makes them liable as a matter of law - which 

it does- then so be it. They cannot legitimately slap their surprise on us Aug 

2, run it Aug 5-9, and then complain that there are no pleadings rebutting 

their surprise! If at any time in the seven years earlier they had made the 

claim, then there would have been pleadings addressing it. There had been 

pleadings for years alleging their liability as the owner or lessee of the tractor: 

there is no chance we surprised them, and they cannot legitimately claim 

they are surprised by the legal effect of their ambush. 

In the discovery done from Dec. 1 , 2006 to the present I have never seen 

any document that says it is a lease from Brewer Leasing to anyone (for 

either the tractor or the trailer). In two trials of this matter no defendant has 

ever offered imy document which reads it is a lease of the trailer or tractor 

from Brewer Leasing to anyone. No witness has ever testified that on the day 

of this collision there was a lease of the tractor or of the trailer saying it was 

from Brewer Leasing to anyone. Lonny Box testified - correctly under any 

reading of federal and Texas law- that any such lease has to be in writing. 

So by claiming ownership of the tractor, and by having undenied ownership 

of the trailer, with no written lease of either commercial motor vehicle to 

anyone, and with no other entity insuring either vehicle, the legal conclusion 

I reach is that Brewer Leasing is absolutely, unquestionably, 100% 

vicariously liable for Charles Hitchens' negligent operation of each vehicle. 

One of the fundamental purposes of trucking law, expressed in Texas 

statutory law and case law at all levels, is to provide a solvent defendant in 

trucking collisions. 

Discovery revealed Charles Hitchens had no automobile insurance: he drove 

~is car to work each day uninsured. He was also a paranoid schizophrenic 

and an admitted crack head. 

All parties, and all lawyers involved, agreed that TS had no insurance 

coverage with Sagamore for this collision as neither the Peterbilt tractor nor 

the Heil trailer were scheduled vehicles. (Non-insurance, but a type of 

coverage under Form F or the MCS 90, were heatedly debated). 

Page 6 of 7 
Mr. Brewer admitted in his deposition that TS was essentially gone, out of 

business in March 2009. Brewer Leasing's game of pin the tail on the 

insolvent donkeys (Hitchens and TS} flies in the face of 78 years of federal 

law and a long history of Texas law. It is an old legal trick, for which I refuse 

to fall. 

The only way the vehicles rolled down several Texas highways on June 15, 

2006 in compliance with the law was under the permit and insurance of 

Brewer Leasing. There is no way that having operated the vehicles that way 

on June 15, 2006 that Brewer Leasing is now suddenly surprised that they 

are being held liable. Even their GM, Lonny Box, candidly admitted in 2009 

that Brewer Leasing was responsible for Charles Hitchens' driving on June 

15, 2006. 

Attached to this reply are 10 documents. Each of them is Hyperlinked. Every 

one is a true and correct copy of pages from the original. Some are just 

excerpts of relevant pages for the court's ease and some have been marked 

in places to quickly move the eye to the relevant portion to aid the Court and 

counsel." 

Further Affiant sayeth not. 

Harry Herzog 

SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand 

and seal of office on the 171

h day of September, 2013. 

PAULA JAHNKE 

Notary Public, State of Texas 

My Commission Expires 

October 02, 201 S 

Page 7 of 7 

RY PUBLIC 

STATE OF TEXAS 
Appendix

 13
29

03/08/2013 03:57:17 PM 713-755-1451 

CAUSE NO. 2011-64488 

MARCUS BRENT PATTERSON, 

INDIVIDUALLY, AS INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF 

DIANE PATTERSON, AS NEXT 

FRIEND OF DANIEL PATTERSON, 

DANAE PATTERSON, and DANIEL 

PATTERSON (now 18 years of age), 

Plaintiffs, 

v. 

BREWER LEASING, INC. 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Page 2/13 

Filed 13 March 08 P3:57 

Chris Daniel - District Clerk 

Harris County 

FAX15426354 

IN THE DISTRICT COURT 

3341

h JUDICIAL DISTRICT 

HARRIS COUNTY, TEXAS 

PLAINTIFFS' FOURTH AMENDED PETITION FOR BILL OF REVIEW 

Plaintiffs, Marcus Patterson, in his individual capacity, as independent administrator of the 

estate of Diane Patterson, and as next friend of Daniel Patterson and Danae Patterson, and Daniel 

Patterson (now 18 years of age), complain of Defendant Brewer Leasing, Inc., in this equitable bill 

of review to remedy the fraudulent representations to conceal Charles Hitchens' massive cocaine 

level, and show the following: 

1. This Petition is being filed under Level 2 of Rule 190.1. 

2. Plaintiffs are residents of Harris County, Texas. 

3. Defendant, Brewer Leasing, lnc. has been served with citation, and has answered. 

4. Defendants Charles Hitchens and Texas Stretch, Inc. are both new parties. Both of these new 

parties have previously been released by all members of the Patterson family. Neither of these 

parties were previously affected by this action, by Texas law they do not need to be added to this suit, 

they are not indispensable parties, by adding them to this suit the Patterson family does not rescind, 

Page 1 of 12 
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negate, or disavow their releases, and no service of citation is requested at this time. Part of the 

Patterson family's settlement with Ray Bellew & Sons involved periodic payments from 2011 

through 2022, as set forth in Exhibit A to the Final Judgment in case 2006-7664 7, and nothing in this 

case is designed to affect, revoke, alter, modify, or change that settlement or those structured periodic 

payments in any way. These two new parties are being added solely and exclusively to eliminate an 

invalid argument being raised by Home State on appeal in a simultaneous legal proceeding. 

5. Venue is proper in Harris County, Texas, pursuant to Section 15.002 of the Texas Civil 

Practice and Remedies Code, because the incident which forms the basis of this suit occurred in 

Harris County, Texas, and Plaintiffs and Defendant reside in Harris County, Texas. 

6. The Court has jurisdiction over this controversy because Plaintiffs seek damages within the 

jurisdictional limits of this Court and this Court entered the judgment under attack. 

7. On December 1, 2006, in Cause No. 2006-76647, the Patterson family sued Brewer Leasing, 

Inc. On June 2, 2009 they recovered a judgment against Brewer Leasing. 

8. Plaintiffs obtained a favorable judgment, but were prevented from making a meritorious 

claim for punitive damages and obtaining a full recovery of actual damages by the extrinsic fraud 

of Defendant. Defendant fraudulently concealed knowledge of the massive level of cocaine in 

Charles Hitchens's system at the time the tragic auto collision occurred. Brewer Leasing referred 

to "an allegedly positive drug test." Brewer Leasing hid the massive level ( 43,444nanograms) from 

all plaintiffs and from some former defendants, then falsely claimed in writing to this Court just 

before the trial that there was "no evidence that Hitchens was impaired." Knowing the urine test 

administered two hours after the wreck revealed a precise and massive level of 43,444 nanograms, 

Brewer Leasing falsely wrote that the positive drug test "contained no quantification as to amount 

Page 2 of 12 
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of cocaine found, if any." Brewer Leasing falsely concluded, "since there is no evidence that 

Hitchens was impaired ... ". Brewer Leasing's fraudulent misrepresentations constituted extrinsic 

fraud and a wrongful act. 

9. The extent of the concealment is further revealed by Exhibit E to Brewer Leasing's Motion 

to Exclude the positive drug test. In Exhibit E Assistant District Attorney Warren Diepram recounts 

how neither the Houston Police Department or the Harris County District Attorney had been able 

to obtain the truth a year later, on June 21, 2007. "It is tmknown whether the private lab ... quantified 

the amount. As of today, this information has not been obtained ... " (See Exhibits 1, 2, 3, 4, and 5). 

10. Brewer Leasing knew that 43,444 nanograms was a huge level of cocaine. Case law 

researched by Brewer Leasing's counsel revealed toxicologist testimony that the following levels 

proved impairment: 756, 1194, 1363, over 2000, and 6206 nanograms. Nanograms of 12,500 were 

a "considerably high value," and 26,720 nanograms were "an immense concentration." At 43,444 

nanograms Charles Hitchens was massively impaired, Brewer Leasing knew it, and Brewer Leasing 

chose to conceal this truth and misrepresent the truth. 

11. Plaintiffs were not at fault and were not negligent in failing to discover the truth. Plaintiffs, 

along with other plaintiffs and a defendant in the original proceeding, sent several discovery requests 

to obtain infom1ation about the level of cocaine in Charles Hitchens's system. Brewer Leasing made 

positive assertions to Plaintiffs and this Court that there was no evidence of the level of cocaine in 

Charles Hitchens's system or impairment at the time of the collision. Brewer Leasing fooled the 

Houston Police Department, the Harris County District Attomey, all plaintiffs, two defendants, and 

Judge McCally. 

Page 3 of 12 
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12. Though the Plaintiffs obtained a judgment against Brewer Leasing, they were unable to put 

on evidence of Charles Hitchens's level of cocaine at the time of the collision in order to prove the 

utter disregard for human life and gross negligence when Mr. Hitchens transported 79,940 pounds 

on the highway while impaired under the influence of cocaine. (Exhibit 6). 

13. Plaintiffs have exercised due diligence. Due to Defendant's fraudulent concealment and 

fraudulent misrepresentations, Plaintiffs were not aware that Defendant had knowledge of Charles 

Hitchens's extraordinary cocaine level until concealed documents were reluctantly produced in 

Cause Number 2010-35479, a subsequent Stowers case based on the original proceeding. In the 

Stowers action, Plaintiffs gained access in late October and early November 2010 to information on 

the cocaine level that was previously concealed and that conclusively proved fraudulent 

misrepresentation. This infonnation was not discovered until well after the deadlines for a motion 

for new trial and an appeal had passed in 2006-7664 7. Now that Plaintiffs have discovered the fraud 

against them and this Court, Plaintiffs are seeking this Bill ofReview to correct the injustice inflicted 

by the conscious acts of Defendant. 

14. On Saturday, April4, 2009, just two calendar days before trial was set to begin on April6, 

Brewer Leasing attempted to make a deal with the Patterson family. Those negotiations took place, 

and agreements were reached, by virtue of Brewer Leasing's active ongoing concealment and 

fraudulent misrepresentation of the devastating results of Mr. Hitchens' urine test for cocaine. 

15. On April 4, 2009 Mr. A.B. Brewer, Texas Stretch, Inc., Brewer Leasing, Inc., and Texas 

Stretch's insurer, Sagamore Insurance Company, reached various agreements with the Patterson 

family. The agreements were: 

A. Texas Stretch would be released; 

Page 4 of 12 
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B. Sagamore Insurance Company would dismiss its coverage suit against Texas Stretch 

and the Patterson family; 

C. Texas Stretch would pay $470,000 as follows: 

1. $400,000 by Sagamore Insurance, 

2. $25,000 in cash by Texas Stretch, and 

3. $45,000 over time by Texas Stretch, personally guaranteed by Mr. Brewer; 

D. Brewer Leasing would not be released, as Brewer Leasing was paying nothing and 

was not settling; 

E. Having personally guaranteed $45,000 to be paid by Texas Stretch, Mr. Brewer 

would not be personally exposed to any further payments and therefore Brewer 

Leasing would receive a Covenant to Not Execute; 

F. Brewer Leasing would hire Mr. Herzog to pursue the Stowers claims created by 

Home State's three wrongful denials of settlement demands, and any other claims of 

Brewer Leasing against Home State (breach of duty to defend, Insurance Code, etc.); 

and 

G. Brewer Leasing would agree to assign those claims to the Patterson family later, in 

the future, upon request. 

16. On April6, 2009, the Texas Stretch settlement and the Brewer Leasing agreement without 

settlement were signed. On behalf of Brewer Leasing, Mr. Michael Hays, their personal counsel, 

orally discussed an assignment ofthe Stowers claims after a jury verdict was returned in the Stowers 

case in the future. 

Page 5 of 12 
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17. Misunderstandings later arose. Brewer Leasing disagreed with part of Mr. Herzog's fee 

agreement and, without communicating their disagreement, declined to sign. Mr. Herzog sent a 

statutory demand notice to Home State, on behalf of Brewer Leasing, based on the oral 

understanding that he was hired. Once it became clear that Brewer Leasing would not sign a fee 

agreement, the decision was made that suit could not be filed as originally planned on behalf of 

Brewer Leasing so an oral request for an assignment was made and suit was filed with the Patterson 

family as assignees of Brewer Leasing. Brewer Leasing later signed a written confirmation in 

October 2010 of an assignment of claims. 

18. The Covenant, the agreement to assign claims in the future upon request, and the written 

assignment in October 2010 were all fraudulently induced by the wrongful behavior of Brewer 

Leasing, the consideration for them has failed, and they should be nullified as void ab initio. 

19. After the filing of the Plaintiffs' Original Petition for Bill of Review, with incontrovertible 

and conclusive evidence of Brewer Leasing's wrongful act and Brewer Leasing's extrinsic fraud 

attached as exhibits, Brewer Leasing eventually stipulated and agreed to set aside the Covenant to 

Not Execute, the June 2, 2009 Final Judgment, and all assignment efforts as void ab initio. This 

Court has entered an Order setting all of those aside as void ab initio. 

Liability of Brewer Leasine 

20. On July 26, 2005 Texas Stretch, Inc. was the Lessor of a 2002 Peterbilt Class 8 motor 

vehicle, YIN 1 XPSDB9X220528915, commonly called "a tractor" or "a power unit." (Exhibit 302). 

Brewer Leasing, Inc. was the Lessee. Federal law, Texas law, and paragraph 8 of the Lease make 

Brewer Leasing liable for any injury caused from operation of the vehicle. Paragraph 2 required 

Brewer Leasing, as Lessee, to place signs on the vehicle showing it as leased to Brewer Leasing, Inc.: 

Page 6 of 12 
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Brewer Leasing complied. Paragraph 5 specified that all drivers would be employees of Texas 

Stretch, Inc.: Brewer Leasing complied. 

21. In April2006 Texas Stretch hired Charles Hitchens as a driver. On Thursday, June 15,2006, 

as an employee of Texas Stretch, driving with the permission of Texas Stretch and only Texas 

Stretch, under the dispatch of Texas Stretch, hauling a load for Texas Stretch, Charles Hitchens 

operated the 79,940 pound fully loaded leased vehicle while impaired by and under the influence of 

a massive amount of cocaine ( 43,444 nanograms or more of cocaine metabolite were in his system). 

22. On June 15, 2006 officer Stan Jolly stopped traffic on 1-10 just west ofHighway 6. Visibility 

was perfect and the road was dry. Officer Jolly was in uniform and operating his motorcycle with 

his hazard flashers/emergency lights on. Eight vehicles stopped, blocking all three lanes of traffic. 

A ninth vehicle, operated by Jimmy Bimmage, began to enter I-10. Mr. Bimmage was operating 

with an oversize load permit. His oversized vehicle had approximately 50 wheels, measured about 

160 feet long, and weighed about 198,000 pounds. Officer Robert Norris, also in uniform with his 

motorcycle hazard flashers/emergency lights on, was in the back of the eight stopped vehicles. 

23. Sitting high up in the driver's seat of his Class 8 motor vehicle, impaired by massive 

quantities of cocaine, Mr. Hitchens failed to see a 160 foot long 50 wheeled vehicle approaching 

from his right, eight stopped vehicles in front of him, or Officer Norris' flashers-lights and hand 

signal. Driving at highway speed, without braking, in full view of numerous eyewitnesses who 

watched in horror, Mr. Hitchens slammed into the rear of Diane Patterson's stationary ford 

Expedition and then careened down the highway. 

24. Over the course of the next few minutes Diane Patterson died, nine individuals were burt, 

at least five veh1cles were destroyed, and three more vehicles sustained damage. 

Page 7 of 12 
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25. Mr. Hitchens was negligent, and grossly negligent, in his operation of the vehicle leased by 

Brewer Leasing that displayed the Brewer Leasing logo. That negligence was a proximate cause of 

the collision and the death of Diane Patterson. Brewer Leasing is liable for all actual damages plus 

punitive damages of at most 400% of all actual damages. These actual damages include Diane 

Patterson's pain and mental anguish before her death, funeral and burial expenses, and then for 

Marcus Patterson, Daniel Patterson and Danae Patterson all of the fo11owing in the past and in the 

future: 

A. Pecunimy loss, 

B. Loss of companionship and society, and 

C. Mental anguish. 

Marcus Patterson is also entitled to recover the fair market value of the Expedition destroyed 

in the collision. 

26. Brewer Leasing is liable for Mr. Hitchens' negligent driving behavior for these reasons: 

A. The lease's existence; 

B. The specific provisions of the lease; 

C. The Brewer Leasing logo on both the driver and passenger's side fuel tanks; and 

D. Mr. Hitchens' provision of a Brewer Leasing cab card to the police who investigated 

the collision. 

27. Brewer Leasing is liable for Charles Hitchens' gross negligence because Brewer Leasing 

ratified Charles Hitchens' conduct. Brewer Leasing did or knew all of the following: 

A. Knew a woman was killed in the collision; 

B. Knew Charles Hitchens admitted fault at the scene; 

Page 8 of 12 
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03/08/2013 03:57:17 PM 713-755-1451 Page 10 /13 

C. Knew Charles Hitchens V\'as drug tested about two hours after the collision; 

D. Knew Charles Hitchens admitted to a private investigator the day after the collision 

to recent cocaine use~ 

E. Knew the vehicles driven by Charles Hitchens on June 15,2006 were not scheduled 

vehicles (tractor or trailer) on the Texas Stretch insurance policy with Sagamore 

Insurance Company; 

F. Knew the vehicles driven by Charles Hitchens on June 15, 2006 were scheduled 

vehicles on the Brewer Leasing policy with Home State County Mutual Insurance 

Company; and 

G. Knew Charles Hitchens was an employee of Texas Stretch and never of Brewer 

Leasing. 

Armed with these facts and the resulting fear of no insurance coverage, or inadequate coverage, 

Brewer Leasing took the following actions ratifying Mr. Hitchens' conduct: 

H. Falsely claimed in a recorded call with a Sagamore adjuster that Charles Hitchens 

was a Brewer Leasing employee; 

I. Produced Charles Hitchens' employee file, thereby subtly implying Charles Hitchens 

was their employee; 

J. Implemented a plan to fraudulently misrepresent and conceal the level of cocaine 

revealed by Charles Hitchens' drug test; 

K. Implemented a plan to lie and distort the truth to defraud the injured parties, this 

Court, and the Harris County District Attorney's office, so that their ratification of 

Page 9 of 12 
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03/08/2013 03:57:17 PM 713-755-1451 Page 11 /13 

Charles Hitchens's conduct would have no financial impact or a lesser financial 

impact on Brewer Leasing and their insurance company; and 

L. Conceal their fraud and their cover-up by destroying some of the files relating to 

Charles Hitchens in conjunction with others and concealing the rest of the damaging 

evidence. 

28 . Brewer Leasing's actual, constructive, and extrinsic fraud, and wrongful acts (including all 

acts listed in paragraph 27) also proximately caused damages to the Patterson family, including but 

not limited to expenses incurred that would not have been incurred had the fraud not occurred. In 

addition to obtaining relief in their Bill of Review, in accordance with Texas case law the Patterson 

family seeks a recovery of these actual damages. 

29. For the assistance of this Court and opposing counsel, the current version of the Patterson 

family's proposed Jury Charge is attached reflecting all causes of action and proposed elements of 

damage. 

Jury Trial 

30. Plaintiffs and Defendant request an expedited jury trial, and have paid the jury fee. 

Prayer 

Plaintiffs request that the Court set aside and nullify ab initio for all legal purposes its prior 

judgment dated June 2, 2009 as to Brewer Leasing, Inc., nullify ab initio the April 6, 2009 Covenant, 

nullify ab initio the April 6, 2009 agreement to assign claims in the future, nullify ab initio the oral 

assignment in the summer of 2010, nullify ab initio the October 2010 executed Assignment, and 

enter a new judgment in favor of Plaintiffs for negligence, gross negligence, and fraud with just and 

Page lOof 12 
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fair compensation for all actual damages, punitive damages, and recovery for prejudgment interest, 

post judgment interest, and court costs within the jurisdictional limits of this Court. 

Respectfully submitted, 

HERZOG & CARP 

By: 

Harry Herzog 

State Bar No. 09548200 

P.O. Box 218845 

Houston, Texas 77218-8845 

(713) 781-7500 

(713) 781-4797, fax 

GEARY, PORTER & DONOVAN, P.C. 

By: /14 1/ ;jJ t.i ~ )J..) 

Dorothea "Dotty" L. Vidal 

State Bar No. 20578100 

One Bent Tree Tower 

16475 Dallas Parkway, Suite 400 

Addison, Texas 75001-6837 

P. 0. Box 700248 

Dallas, Texas 75370-0248 

(972) 349-2211, direct 

(972) 931-9901, fax 

ATTORI\EYS FOR PLAINTIFFS 

Page 11 of 12 
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03/08/2013 03:57:17 PM 713-755-1451 Page 13/13 

CERTIFICATE OF SERVICE 

This is to certify that a true and correct copy of the above and foregoing has been sent to all 

parries of record listed below via certified mail, return receipt requested, on this the 8111 day of March, 

2013. 

(Courtesy copy without exhibits viafacsimile and electronic delivery) 

MichaelS. Hays A J_ 

-Ryan M. Gnnt - ~no- IJ#o- S 

Hays, McConn, Rice & Pickering 

400 Two Allen Center 

1200 Smith Street 

Houston, Texas 77002 

(713) 654-1111 

(713) 650-0027, fax 

Attorneys for Brewer Leasing, Inc. 

Harry Herzog 

Pagel2of 12 
41

03/08/2013 03:56:40 PM 713-7 55-1451 Page 1/2 

CAUSE NO. 2011-64488 

Filed 13 March 08 P3:57 

Chris Daniel - District Clerk 

Harris County 

FAX15426354 

MARCUS BRENT PATTERSON, 

INDIVIDUALLY, AS INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF 

DIANE PATTERSON, AS NEXT 

FRIEND OF DANIEL PATTERSON, 

DANAE PATTERSON, and DANIEL 

PATTERSON (now 18 years of age), 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT 

Plaintiffs, 

v. 3341

h JUDICIAL DISTRICT 

BREWER LEASING, INC. 

Defendant. HARRIS COUNTY, TEXAS 

AFFIDAVIT 

STATE OF TEXAS § 

§ 

COUNTY OF HARRIS § 

BEFORE ME, the undersigned authority, on this day personally appeared Marcus Brent 

Patterson. After being duly sworn Mr. Patterson stated under oath as follows: 

My name is Marcus Patterson. I am a Plaintiff in this case. I am over the age of 18, 

have never been convicted of a crime, and have personal knowledge of every 

statement made in this affidavit. Every statement in this affidavit is true and correct. 

I was stunned when I learned that Mr. Hitchens had ingested a massive amount of 

cocaine and the level of cocaine that he ingested was improperly concealed from us 

in the prior lawsuit. I was more than stunned, extremely disheartened bordering on 

furious, when I learned that false statements were made in writing to my lawyer, to 

other lawyers, and to the previous judge of this Court to conceal Mr. Hitchens' 

cocaine impairment. 

I have reviewed the Petition ofthe Bill of Review. Paragraphs 7, 8, 10, 11, 12, 13, 

14, 15, 16 and 18 are, to the best of my understanding of these legal proceedings, true 

and correct. Paragraphs 19- 23 are consistent with all of the information I have 

Pagel of 2 
42

03/08/2013 03:56:40 PM 713-7 55-1451 Page 2/2 

reviewed and all of the information I saw and heard during the previous trial of this 

case. 

Further Affiant sayeth not. 

SUBSCRIBED AND SWORN TO BEFORE ME to which witness my official hand and seal 

of office on the~ dayofMarch, 2013. 

~~~.~~- PAULA JAHNKE ~\ Notary Public, State of Texas 

•.• ·~~~ My Commission Expires 

l!j/.,~V October 02, 2016 

Page 2 of 2 
43

713-755-1451 Page 1 /57 

FEDER!-'~ IG TESTING CUSTODY AND CONTROL FORM 

03/08/2013 03:57:29 PM 

• -- ;- :,,_- DDODDDDDDDDDD 1111 ~ rm f 1111/1 lll/ 

36 ~39345 10101 Renner Blva 

1: COMPLETED BY COLLECTOR OR EMPLOYER REPRESENTATIVE 

1p1over Name. Address, LD. No . 

U Lenexa. KS 66219 

SPECIMEN 10 NO. (800) 728-4064 

. ' ..... :~; ' .. 

. -'·- , ·-. 

Jnor SSN_ or Employee LD. No. ~~-~~/., I U [YJ J _:-j I ?II ?fJ ( j b-j ~ason lor Test: 0 Pre-employment 0 Random D Reasonable Suspic•on.'Cause (Q"Post-Accident 

0 Return)O Duly D Follow-up D Other (specify) ____________ _ 

ug Tests to be Perlormed: 0 THC. COC. PCP. OPt. AMP 0 THC & CDC Only 0 Other (speci,y) 

•llection Site Address:___.. ------------ ,, ..... i - .~ I .' 

-- / 

i 

ColleciOr Phone No U [ZJ EJ -IZJ [L] [2J-bJ [2] CJ [LJ 

Conector Fax No [2] [2] W-[ZJ G 0-[ZJ lZJ 0 [] , 2: COMPLETED BY COLLECTOR 

l specimen temperature within 4 minutes. Is temperature Specimen Collection 

een 90" and 100' F? Uves 0 No. Enter Remark [9-'split 0 Single 0 None Provided (Enter Remark) 0 Observed lEnter Remark) 

• 3: conector aftixes bonle seal[s) lo bottlejs). Collector dates seal(s). Donor initials seal(s). Donor completes STEP 5 on Copy 2 (MRO Copy) 

' 4: CHAIN OF CUSTODY· INITIATED BY COLLECTOR AND COMPLETED BY LABORATORY 

1ARKS 

y that the spec.men grven lome by lite donot Identified in the eer'tifir:alion ~er:lion on Copy 2 of ltus lorm was eo/leerei:l, labeled. ~ealed and released to the Delivery SeNice notea in 

Jane~ WJI'tl appliCable Federal requirt>men/s. 

:!or's Name fPAIN~•rst. ~.EJ..,~,- __ --, X.- .- / 

-

.. ,. ClVl~E S.gn•IYJr·Of Conec1ot f:: lr::li II "l !i i~l95L2} ["ti /- :Qil~_J I __:.....___,_••-' ·~L:....._-' -·-__J~IV - ~·-~ _1. ~·j...:___j...::::...__' -· L_..j 

I s~_Eci~~N -~oTTLE_~~) ,~~~-~~s~D ;~= _: Jl Collecti011 T1me o1 Collection 

~ .---,~-~ ~~ ,:'Jl ["Tii?.! 'AM rp,( 6J-LL!L£-!C !~ L.J~ ._:::::.1 :__f__j - _____;M 

) DAY YR HR MIN L___ Name ot 0-eh .... ery Serv1ce Trans:emng: Spec•men to Lab 

:EIVED AT LAB Primary Specimen SPECIMEN BOITLE(S) RELEASED TO: 

Bottle Seal Intact ... S'Qnalure of Ar;e~!i!iiDni!!'J 0 Yes 

ti51"iiNTI Accessooner s Name fFor•t MI. la5tl O;o.te lMo.!OayiYr) ~ 0 No. Enter Remark Below 

;p 5: COMPLETED BY DONOR 

certify that !provided my urine specimen to the collector; mar J nave not adulterated it in any manner: each specimen bottle used was sealed with a tamperviQ.~i seal in my presence: and tfl~t me information provided an this form and an tfle !Hbel affixed to eadl specimen bo!tle is correct. 

- r r·/ /~· ~~ {/; ,.J·-' ;:/ _._..-;'Jio.-,c~/·~· _,. / .- ,- ( ---- · ·· ·-~- ·-· / · ·/'---··---·-- ~-l: / r-.1 - • 1 ''- 1~ • • • '.: / ' /;:_"" -, 

Sqlalutlt of Doner (PAINT I [)ongr's Name 1 F11st loll Las!l O.ote (t.loJOay'Yr I 

>aytime Phone No Evening Phone No_ t""7/ j ( :.· I I ;y\~.,. Date of Birth 7 I 1 - {i • 

Mo. Day Yr. 

:hould the results ot lhe laboratol)' tests lor the specrmen identified by th1s form be ccnlirmed positive. the Medical Review Officer will contact you to ask 

bout prescriptions and over-the-counter medications you may have taken. Therefore, you may want to make a list o' those medical ions tor your own records 

'HIS LIST IS NOT NECESSARY. II you chose lo make a list. do so either on a separate piece of paper or on the back of your copy (Copy 5). - DO NOT 

'ROVIOE TH!S INFORMATION ON THE BACK OF ANY OTHER COPY OF THE FOAM TAKE COPY 5 WITH YOU 

:p 6: COMPLETED BY MEDICAL REVIEW OFFICER· PRIMARY SPECIMEN 

lccordance with applicable Federal requirements, my determination/verification is: 

0 NEGATIVE 0 POSITIVE 0 TEST CANCELED 0 REFUSAL TO TEST BECAUSE: 

0 DILUTE 0 ADULTERATED 0 SUBSTITUTED 

MARKS _______________________________________________________________________________________________ ___ 

!PAINT 1 M~d1cal ~ev•ew Olloee<s Name I Forsl Ml_ las!l 

"EP 7: COMPLETED BY MEDICAL REVIEW OFFICER· SPLIT SPECIMEN 

"Jccordance with applicable Federal requirements. my derermmationlverification for the split specimen (if tested) is: 

[) RECONFIRMED 0 FAILED TO RECONFIRM· REASON------------------------------------
44

03/08/2013 03:57:29 PM 

U.S. Department of"\ 

713-755-1451 

.1sporta tion (DOT) 

. . Alcohol ·.t _ _.ting Form ..,. (The msrrucrronsfor completing rhisfonn ar·e on 1he back ofCopl 3) 

STEP 1: TO BE COMPLETED BY ALCOHOL TECHNICIAN 

,\: Employ~Name • -uA£je£ /9. Iii rc..b eNI 

rf>rintl CFi:'J.-/'~~- / i.("-' • • r/ (/6

, ~ _ B: SSN or Employee ID No. ~_:;. ~ ..:> ;;' II 

C: Employer Name ~f.L;x.t> .)TRI!Tc.H J:;...LStreet 

City, Sf ZIP 

DERNamtand 

Telephone No. 

DER Na!M DER (A.rra Code & Phone Number) 

D: Rea50n for Test: OJUndom 0Rononabl• SUip. ~l·Acddml 0Rrtum to Out~ 0Foll-o,.·up Drrr·cmploym~nl 

STEP 2: TO BE COMPLETED BY EMPLOYEE 

Date Month Da~ I Yur 

STEP 3: TO BE COMPLETED BY ALCOHOL TECHNICIAN 

(lr the lechnkian conductio~ the screening lesl is not the same technician "'ho will be conducling the 

confirmation lest. each technician must complete their own form.) I certif~· !hat I ha•·e conducted alcohol testing 

ltn the abo,·e named indi•idual in accordance with the procedures established in the U.S. Oeputment of 

Tral'lsporlation regula1ion. 49' CFR Pari 411. lhat I am qualified to opcra)e 1he luting d~•icr!sl id~nlilied, and 

I hat lh~ resull~ are as recorded. 

TECH~ICIAN:Ccl1hT OSTI DE\'ICE: OSALJ\'A [)J1(REATH• 15-MinuteWait: DYes 0Nol 

SCREENmG TEST: (For BREATH DEl' ICE' ~>rtre 1111he space /:>elo .. · Q!1b. rf liu: tesmrg de1•ice '-' wu designed Ill a.ti!JJ..I 

Test fl Rosull 

CONFIRMATION TEST: Resulrs MJ1SI be affixed ro e"cl' copy of thiS jomr or pr!nted d1r~ctly onto the form. 

REMARKS=-----------------------------------------------------------

Pllone l'oumber tA.re-4 Codr & Nurnber) 

' Is~ oL 

Datr !\1unlh o .. ~ I \' ~ar 

STEP 4: TO BE COMPLETED B'f EMPLOYEE lF TEST RESllL TIS O.fJZ OR HIGHER 

)1'1!nif) tllat I ha~e submitled to the alcohol test. the rrsults nr which are accurately recorded on this form. l 

understand lhal I musl not drh·c. perform safrt:r-so:nsith·e dulit!S. or operate he:wy equipment because the 

results art' ().0~ or greater. 

Date ,\lonlh 

Page 2/57 .. ··--- ......... ___ ......... -.. --..... ---~ 

__..- ...... -~ _,.... 

00~ r:::tUTO 0 1 · 2:4 ;_~dY~----------

3 :;, ~ :. 

.. : 1. ... .... ~- ;_.. ::. 

:; 

::::: 

~~. 

..... 

-!::: 

•: 

··. ;~ 

~-

' '" 

~": 

,:;-

~ ... 

~ 

-~a 

.. -
45

U,j/UO/LUl~ u;:s:o/:29 PM j..r,;;r•• ...,I ..... -. ,~ .....-. 11U\,.1'114C:I -. 1 ...... 713-755-1451 ...,.-.,p, 1'"-VVU 1\..1 1--, r->.'""' • - -·- Page 3/57 

FleetScreen, Ltd. 

6000 Western Place 

Suite 480 

Fort Worth, Texas 76107 

ATTENTION; 

Butch Brewer 

Te:ns Stretch, Inc. 

2103 Skinner Road 

Houston, TX 77o93 

Record Status: Positive 

Test Type: Post-accident Test 

Colle<;tion Date/Time: 0611512006 1:29PM 

Batch 10: 20060621 

SpecimeoiD: 36639345 

Date COC Received: 0612012006 

Sample Type: Urine 

Substance Tested B.!ru!.!l 

Amphetamines Negative 

Marijuana Negative 

Phei"IC)'Ciidine Negative 

Participant Charles Hitchens 

Participant ID: 337 

SSN: 463-45·8865 

Results of DOT Controlled Substance Test 

Laboratory: labOne, Inc. 

10101 Renner Boulev.ud 

Lenexa, KS 66219-9752 

Collection Site: Texas Sbetch, Inc. 

2103 Skinner Road 

Houston. TX 7709'3 

Specimen Collector: OOUGLAS A SCHOPPE 

Substance Tested ~ 

Cocaine POSITIVE 

Opiates Negative 

In accordance with applicable Federal requirements, my determination/Verification is as above. 

: ~ : . .Jtlll"" 

..............-

Garrett R. Tucker Ill, MD, MPH 

Results for Cnari.:'S Hitchens. Participant I D. 337 lSSN 4oJ-45-3&ci5) 

612112006 

Verification Date 

ExHIBIT (b) 
46

03/08/2013 03:57:29 PM 713-755-1451 ~ . : 

HAYS I McCONN 

Arrorneys or low 

~lli<CHA-EL 5. HAVS 

l::jO~RD C::=t7!~d~c·- PrqsO,...AL I NJURV T~l"''- LAW 

TC::X.A,S 80A-Fi!D OF LEGA ... $PECIALI2:ATJON 

DIRECT LINE P13J 752-8300 

llro'IIHAYS@HAY'5MCCONf'III.COM 

www T '"'AI.YSMCCONPt.C:OM 

George T. Jackson 

Burck, Lapidus & Lanza, P.C. 

5177 Richmond, Suite 850 

Houston, Texas 77056 

February 12, 2007 

FEB 16 Z007 

Re: No. 2006-76647; Marcus Brent Patterson, Individually and as Next Friend of 

Daniel Patterson and Danae Patterson v. Brewer Leasing, Inc., Texas Stretch, 

Inc. and Charles Hitchens, Individually; In the 3341

h Judicial District Court of 

Harris County, Texas. 

Dear George: 

As a follow-up to our conversation, I am providing to you the following: 

1. The initial investigation conducted by Charles Pollard. Mr. Pollard was retained 

by Mr. Johnson to conduct this investigation. 

2. The personnel file for Charles A. Hitchens. 

3. The title to the vehicle being driven by Mr. Hitchens showing it is owned by 

Brewer Leasing, Inc. 

4. The dispatch records for 6115/06. 

I have talked to the drug tester. He indicated there was cocaine in the system of Mr. 

Hitchens and he gave me the number of 43,444 nanograms. I am not sure what a nanogram is. 

When I talked to him, he did not offer any opinion as to whether Mr. Hitchens would or would 

not have been impaired. If you take what Mr. Hitchens said to Mr. Pollard, he apparently did use 

cocaine 6 or 7 days before this accident. It could be that this measurement in nanograms is so 

small it might not render him driving under the influence. We need to get a toxicologist to read 

for us the entire drug screen so we can see whether or not an argument can be made to exclude 

any type of drug activity by Mr. Hitchens because it did not cause or contribute to the cause of 

the accident. 

HAYS. MCCONN. RICE&. PICKERING 

A Prc>[eHIOnal Corporation 

400 Two Allen Cenler I 1200 5milh 51reel I Hou$ron, Texo$ 77002 

T&lo>nhn"• 711 .... ~4 11' I I Fnnimil .. 711 ... ~n nrn7: hnv<mrrnnn com 
47

03/08/2013 03:57:29 PM 

;ebruary 12, 2007 

Page 2 

713-755-1451 Page 5/57 

As a response to your letter concerning contact with Brewer Leasing, Inc., I feel thrs is in 

the best interest of Texas Stretch and Brewer Leasing. Since both companies are Mr. Brewer's 

companies, we need to make sure when you are requesting information for Brewer Leasing, you 

are only getting infonnation from Brewer Leasing. 

MSH/bgf 

Enclosure 

Sincerely, 

rrys, McC01m, Rice & Pickering 

i]!'\.. .......... ---..-

\ ichael S. Hays 
48

03/08/2013 03:57:29 PM 713-755-1451 Page 6/57 

Cltarles Pollard 

Private Investigations 

June 22. 2006 

Mr. John Johnsen 

Atty at Law 

55 VIJaugh Dr #505 

Houston, Tx 77007 

P. 0. Box 5163 

Kingwood, Texas 77325 

(281) 361- 6079 office 

(281) 361- 6089 fax 

Re: Your client: Texas Stretch Trucking 

Plaintiff: Marcus Patterson 

My file: Q 049 

Dear Mr. Johnson: 

State Lieense # f-.5894 

Per the instructions I rac..:;!ived, ! am reporting tc you what l have found out about 

ths June i 5, 2006 accident that involved 8 vehicles on I "I 0 near the Hw; 6 

overpass in western Harris County, Tx. 

I started my investigation by meeting with Butch Brewer of Texas Stretch, at his 

office on June 16. I secured from Butch Brewer a photo CD of scene pictures he 

took at the accident scene the day of (he accident, before the vehicles were 

moved. That CD is attached for your inspection, marked ''Butch Brewer Scene 

Pictures". I had the pictures developed off the CD, see accompanying pictures. 

Note: Butch took pictures at the scene on the day of the accident and then a day 

later returned and shot some pictures of the entrance ramp area and a 55 mph 

sign about a quarter mile west of the accident scene. 

At the time of my meeting with Butch Brewer, I got some of the deta~ls about the 

accident. He explained that the Texas Stretch driver, Charles Anthony Hitchens, 

had been to Mfnera! Resource Technologies, near La Grange, 24 miles off! 10, 

and picked up a ioad of fly .ash \Nhich he was delivering to Campbsll Concrete at 

their southv~··ast Houston bcBt:!on. P!e::!se find attached the Bill of lading, control 

numbar 10152994, attachsd. !t shO'NS Hitchens loaded out at 1 Q am and that his 

foad, truck, end trailer weight \'.!as 79.940, which !s just under the 80,000 ib !oad 

H:ntt. Butd1 exptarnad that Hifchenr 'A'Z:S on a direct route back to the HoliSton 

EXHIBIT ifl_ 
49

03/08/2013 03:57:29 PM 

h!tr. Johr: Johnson 

Juns 22, 2006 

Pa:gs 2 

713-755-1451 Page 7/57 

ar-ea ::t the time of the accident, lJVhich was somewhere ~ro:.md 11 am so far as 

we knew right now. Butch made it to the scene about 1 pm, h;;ving been delayed 

because of the traffic and shot the pictures. He did not talk to rnany people 

er.cspt his driver, Hitchens. Doug Shoppe, dispatcher. also made the accident 

scene in a_ separate vehicle that day. Shoppe took the drug and alcohol sample 

from Hitchens at that time. Butch talked to HPD officer Barr{ Balthrop at the 

scene and thought Balthrop was in charge of the investigc:tion. Balthrop and 

another officer asked about Hitchens, how long he worked fo:· them, what 

condition the truck was in, etc. Butch explained to me that Texas Stretch does 

their own maintenance work and have their own mechanics, headed out by 

Robert Burns, a long time, very experienced mechanic. The truck is an 02 

Peterbuilt, their truck #r 330 and the trailer is #55. Brewer Leasing owns all the 

equipment (trucks and trailers). The trailer is a cement tanker type trailer. Butch 

said Hitchens told him at the scene that he was t;aveling around 55 mph and that 

an the three lanes ahead of him were stopped with traffic. Hitchens hit his brakes 

and was trying to stop but was unable and hit a car and was trying to dodge other 

vehicles as he came to a stop but did hit some other vehicles. 

Hitchens met me at the Texas Stretch office on June 16. Hitchens advised that 

h~? i~ Chark~s Anthony Hitchens, 7250 Colton, Houston, TY 77016, cell phone 832 

858 8378. He 3aid he has worked for Te;;:as Stretch about 3 months_ He said he 

made his pickup at the Fayette Power Co. near La Grange, Tx on the day of the 

a~cident and was headed back to Houston, eastbound on I 10, traveHng the 

speed limit, 65 to 70 mph. As he approached where the accident happened he 

slowed a bit down to 55 to 60 and was in the left hand lane of traffic on I 10. He 

said the Ford Expedition, driven by Diane Patterson, was the first car ahead of 

him in his lane of traffic. He was behind Patterson about 25 yards, when 

suddenly he saw her brake lights come on and she began to stop. Hitchens hit 

the brakes and tried to stop but was unable and rear ended Patterson. He talked 

about how her car went up in the air on impact. Hitchens then recalls 

sideswiping the white Cyclone Cylinder truck in the center lane of traffic and then 

going on past the Cyclone truck and sideswiping the long foad truck which was 

, just entering the freeway at the entrance ramp. Hitchens then went left and hit a 

Dodge Durango and pinned the Durango against the center guard rail where he 

stopped. He said the long load driver drove on a ways after impact and stopped 

up ahead. After stopping, Hitchens got out of his truck and c~uld see the 

Expedition burning, up against the guard rail. He talked about a wrecker driver 

v1ho was a!ready on the scene, using a fire extinguisher, but the wrecker driver 

cot)d r-rot put cut the fire. Hit~hens said "He !os.t it at this time" meaning he lost 

control of his emotions. He said when he was near the E){peditfon he could not 

hear c:nyone screaming and had no idea if the occupantE- were out of the vehfde 

-:-:- not Hrt.chens sard prtor to the accident hrG truck was opemting properly. He 
50

03/08/2013 03:57:29 PM 

r·!ir. John Johnson 

June 22, 200& 

Page 3 

713-755-1451 Page 8/57 

recalled talking to a Sgt. VVashington of HPD at the accident scene and how 

'~\fashington put him in his patrol car for a while. Hitchens denies receiving any 

tickets from the accident. Hitchens recal!s writing out a short stc.:tament at the 

scene, about how the accident happened, but does not have a copy. The DOT 

inspector who came to the scene got Hitchens !og book. 

Hitche11s said he had no alcohol prior to the ac:;ident, had not had any in 40 days 

or so; but he does admit to doing cocaine the Friday and Saturday before the 

accident {5 or 6 days prior to the accident). He said he has a good driving 

record, his last ticket was in Gregg County, Tx for failure to control speed when 

he jackknifed his trucK and trailer back in 02. As far as any criminal record, he 

said he was arrested in Georgia back in 1997 when he had a box cutter in his 

pocket, spent one day in jail. In Houston he had a possession of marijuana 

conviction 25 years ago and an unlawfully carrying weapon charge also about 25 

years ago {which was not a conviction). 

I have spent some time on the computer doing research about the accident. 

At1ached is a KHOU (TV Channel 11) article on the accident, a Houston 

Chronicle article on the accident and the Obituarf about Diane Patterson. it 

sh~u!d be noted the KHOU a!so has a 6 minute uncut version of their video ta!1>en 

.::::t the scene, from a helicoptor, that was on their website. Although I captured it 

on my computer, I can't put it on a CO. It does show the scene and the layout of 

the wrecked vehicles following the accident pretty well. Much of the video deals 

with the burning Ford Expedition. The Expedition is damaged so badly that you 

can't make out what kind of car it is. \f.Jhen I saw the car later, I could not tell 

what color it was from a distance because all the paint was burned off. 

I have prepared a diagram which is attached, which shows the vehicles involved 

in the accident. It shows where they ended up. It is certainly not to scale but I 

believe fairly accurate. The confusing part is "How did the Expedition end up in 

front of Pankey's and Valdez' vehicle?" Could it be that Pankey and Valdez piled 

up in a separate accident, behind our accident, or were they ·part of our accident? 

On June 20, Butch Brewer and I went over to the storage lot called KTC, located 

at 1700 Brittmore, Houston, Tx phone 713 468 4242, where tr"le Texas Stretch 

truck is located. On arrival, we were allowed to look at our truck but told not to 

look at any other vehicles involved in the accident We saw from a distance, 

severa.l cf the vehicles. It appears that maybe ail the vehicles are there, except 

the long bad which was drivable from the scene. Vve did not see the iong toad 

tru~k or the motorcycle (but !t lil\e!y wes there also). VVe did see from a distance 

the Cyc!ons CyHnder truck, the silve-r car (Pan!~ey), the 'IIVhtte van \-fatdez:), z.nd 
51

03/08/2013 03:57:29 PM 

f

1

Jir. John Johnson 

June 22, 2006 

Page4 

713-755-1451 Page 9/57 

the burned Expedition (Patterson). I shot some picturas of the Te~~as Stretch 02 

Peterbuilt and the van and car (from a distance}. My photos are attached on a 

CD marked Pollard pictures and the developed pictures from the CD It should 

be noted that I saw blue paint on the left front of the Peterbuilt and on the right 

fmnt but at a glance it did not appear the same color blue as the Durango. Butch 

and I believe the Expedition was also blue but can't be sure. Butch tool~ some 

additional photos inside the Peterbuilt at that time. 

I have also spent some time tr{ing to contact people connected to the case, in 

hopes of finding out what happened. I found John Pankey's home at 23730 

Hopewell Dr, Katy, Tx 77493 and left a business card with his wife. Pankey 

responded by phone and gave me phone 281 727 6886. Pankey says he was 

traveling I 10 in the left hand lane of traffic and encountered the motorcycle cop 

stopping traffic on eastbound I 10 for the long load that the cop was escorting. 

Pankey stopped in the left lane as he thought he was supposed to, and was the 

first car in the left lane of traffic. He said the white van driven by Valdez was 

stopped behind Pankey. Pankey said our truck rear ended the Expedition, the 

Expedition was knocked into Valdez, and Valdez was knocked into Pankey. 

Pankey then claims that our truck then pushed the Expedition on down the road 

vJhere it began to burn. Pankey said he was alone :n his Chrysler car and has 

scme injuries. 

I also talked by phone to Sgt. Stan Jolly, Harris County Constable Pet. 4 deputy, 

phone 281 376 3472, 6831 Cypresswood, on June 19. He was back at work that 

date and said he had some injuries but was back to work. He did go to a hospital 

from the accident scene. Jolly said he was driving his own motorcycle and he 

and another officer were escorting two long loads on I 1 0, on feeder road 

eastbound. He said he had his red lights and emergency siren going and that he 

was leading the convoy. He got up on 110 and stopped traffic in the right two 

lanes of traffic. He did not intend for the far left lane to stop but they did also. He 

said all three eastbound lanes of traffic were stopped without any problems. The 

first tong load truck entered the freeway at the entrance ramp and went on 

through with no problems. The second long load was just feeding up onto the 

freeway wher. Jolly heard the crash. Jolly was near the Cyclone Cylinder truck 

and saw the Cyclone truck being pushed towards Jolly. Jolly then felt an impact 

which he thought was a vel1icle but it turned out to be the smoke stack from the 

Texas Stretch truck. Jolly estimates he had the traffic stopped for about 15 

seconds when the accident happened. just after Jolly was hit he looked over 

and saw the Exped\tion on flra. He said our truck after hitting Jolly, went ahead 

and struck the long load truckltrai!er in the rear. He said all three lanes of traffic 

were stopped and t11at our truck just came along and stacked them afl up, 

causing the whole 8-ccident. 
52

03/08/2013 03:57:29 PM 

f1.fJr. Johrt Johnson 

June 22, 2006 

Page 5 

713-755-1451 Page 10 /57 

I checked Hitchens' criminal record on vi/hat I call the Texas Statewide search, 

and it was negative, see attached document I then did a 25 year search in 

Harris County on Hitchens and found the possession of marijuana back on Jan 

22, 1985, which was a conviction. got 3 days in jail and a fine. Also on 9-18-83 

Hitchens was charged with unlawfully carrying a weapon but it was dismisssd. 

VVhile there at Harris County, I also checked Pankey and Diane Patterson and 

found nothing. 

I also spent some time on the phone trying to contact the insurance carrier for 

Texas Stretch. The company adjuster at 888 389 0598 X 739, Kenton Kaplan, 

gave me claim# 000470329131 for the case, and said he had assigned it to 

independent adjuster Mike Alton. Crocker Claims, phone 832 593 0766 in 

Houston. I called Alton and gave him some details on the case s!nce he was 

getting a late start. 

r also made a trip down to the Houston P·:>lice Department, the Accident Division, 

81 Reisner, Houston. I learned that HPO officer Dane or Dale Harwell is the 

main investigating officer. Another offic-er named Rene Paloma {a male) to!d me 

the case was still under investigation and it would take a 1Nhile before the report 

was ready. He mer1tioned that the District Attorney was involved in the case. 

From my experience, it is going to be several weeks, possibly a month, before 

the report is ready_ 

My file is open pending further instructions. twill follow up with HPD for the 

report when it is ready. 
53

03/08/2013 03:57:29 PM 713-755-1451 Page 11 /57 

CAUSE NO. 2006-76647 

MARCUS BRENT PATTERSON 

INDIVIDUALLY AND AS NEXT 

FRIEND OF DANIEL PATTERSON 

AND DANAE PATTERSON 

V. 

BREWER LEASING, INC., TEXAS 

STRETCH, INC. AND CHARLES 

HITCHENS, INDIVIDUALLY 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HARRJS COUNTY, T EX A S 

334th mDICIAL DISTRICT 

Joint Motion of Defendants Brewer Leasing, Inc., Texas Stretch, Inc. and Charles Hitchens 

to Exclude Evidence: Positive Drug Test and Old Weapon Charge Not Admissible 

COME NOW, Defendants BREWER LEASING, INC. ("Brewer Leasing") and TEXAS 

STRETCH, INC., ("Texas Stretch") and CHARLES HITCHENS ("Hitchens"), 

INDIVIDUALLY in the above-entitled and numbered cause, and file this Motion to Exclude a!] 

evidence and testimony regarding a positive drug test and an old weapon charge of Charles 

Anthony Hitchens ("Hitchens") and would shows the Court as fol1ows: 

I. 

Background 

This matter involves a multiple car collision which took place on Interstate Highway 10 

in Texas. Hitchens drove an 18 wheeler that was involved in an accident. After the accident, 

Hitchens cooperated with the police, was alert and was not impaired. Later, Hitchens tested 

positive on a urine test for the presence of cocaine. In addition, the police accident report 

includes information concerning prior weapon charges that have no bearing on any matter in 

dispute here. 

EXHIBIT _ill_ 
54

03/08/2013 03:57:29 PM 713-755-1451 

II. 

Any Testimony Concerning Drug Testing 

or Alleged Drug Use Should Be Excluded 

A. Evidence of Drug Consumption is Inadmissible. 

Page 12 /57 

Evidence of alcohol or drug consumption is inadmissible in a case involving an 

automobile accident unless there is further evidence of impairment that caused the accident. See, 

Trans-State Pavers, Inc. v. Haynes, 808 S.W.2d 727 (Tex. App.--Beaumont 1991, writ denied); 

Bedford v. Moore, 166 S.W.3d 454 (Tex. App. Fort Worth 2005, no pet.); Dorman v. 

Langlinais, 592 S.W.2d 650 (Tex.Civ.App.-Beaumont 1979, no writ); Rampel v. JVascher, 845 

S. W.2d 918 (Tex. App. San Antonio 1992 writ denied). 

For example, in Bedford v. Moore, Edwin Bedford was involved in a motor vehicle 

accident with Rita Elaine Moore. Mr. Bedford died as a result of the accident. Following the 

accident, Moore tested positive in a drug screen for methamphetamines. See Bedford v. Moore, 

166 S.W.3d 454 (Tex. App. Fort Worth 2005, no pet.). The Plaintiff in the Bedford case 

attempted to offer the testimony of Dr. Daniel Drew, a physician retained by the Department of 

Transportation who had analyzed the drug screen conducted on Moore. Upon objection, Dr. 

Drew was not allowed to testify about the correctness of the examination and the effects 

methamphetamine can have on an individual. Mr. Bedford also attempted to offer the lay 

testimony of witness Ronald G. Curry that Moore appeared to be under the influence of drugs at 

the time of the accident and that she appeared to be "hyper." The trial court excluded all 

evidence concerning the drug screen and its results. /d. 

The Court of Appeals affirmed the trial court's ruling, holding: 

[E]vidence of drug usage must provide some explanation for the 

negligence and improper conduct. However, this was not present 

under our facts because Dr. Drew could not tie the presence of 

methamphetamines in Moore's body to impairment at the time of 
55

03/08/2013 03:57:29 PM 713-755-1451 Page 13/57 

the accident, and therefore could not connect the presence of the 

drug to causation. · ld at 465 (emphasis added). 

The Court of Appeals liltimately held that because Mr. Bedford presented no evidence 

that the drugs actually impaired Moore at the time of the accident: "there was no evidence that 

the presence of the drug was a causative factor in the accident. We hold that the trial court did 

not abuse its discretion by excluding the testimony of Dr. Drew or Mr. Curry." ld at 465. 

B. There is No Evidence that Hitchens Was Impaired. 

In this case, none of the many pol ice officers at the scene noted any impairment on the 

part of Hitchens during the investigation. In fact, the investigating officer, Officer Harwell 

stated that no officer at the scene stated that Hitchens was impaired. (See, deposition excerpts of 

Officer Harwell, attached as Exhibit "A"). Moreover~ in the field note section of the police 

accident report, Officer Harwell noted that, 

[Hitchens] did not appear to be intoxicated or under the influence of drugs at 

the scene. The suspect stayed to himself at the accident scene and was on his 

cell phone most of the time. 

(See excerpt from the complete HPD accident file, Exhibit #3 to the deposition of Dean Harwell, 

attached as Exhibit "B"). 

The scene supervisor, Sergeant LA Washington, confirmed that he did not observe 

Hitchens to be impaired, and none ofthe officers investigating the scene reported to Washington 

that Hitchens was impaired or that they suspected Hitchens was impaired. (See, deposition 

transcripts of Sergeant Washington, attached as Exhibit ··c"). 

In addition, one of the constables involved in the escort duty who was at the scene, 

Officer Norris, had special training in being able to spot drug or alcohol impairment, and he did 

not observe any impairment on the part ofHitchens. (See, deposition excerpts from Officer 

Norris, attached as Exhibit "D"). 
56

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Finally, the District Attorney's office declined to prosecute Hitchens for two reasons. 

First, the positive drug test obtained on the date of the accident, which was apparently only a 

screen for any detectible level, provided no information as to whether the substance obtained 

was actual cocaine or a cocaine metabolite, and contained no quantification as to amount of 

cocaine found, if any. Second, 

... officers at the scene noted no signs of impairment on the defendant. This 

means either they missed the signs of cocaine use or that the cocaine quantity 

was insufficient to cause impairment. 

(See "Case Decline Report" paragraph 4, excerpted from Exhibit #3 to the Deposition of Officer 

Harwell, attached as Exhibit "E"). 

Since there is no evidence that Hitchens was impaired, or that his alleged impairment 

caused or contributed to the accident, this Court must exclude any evidence or testimony 

regarding the positive drug test from the trial ofthis case. 

C. Evidence of Drug Consumption is Highly Preiudicial. 

In deciding whether evidence should be excluded, the court must weigh the probative 

value of the evidence against its potential for unfair prejudice or confusion, and must examine 

the necessity and probative effect of the evidence. See Tex.R. Evid. 403. Evidence is unfairly 

prejudicial if it would tend to persuade a jury to determine an issue on an improper basis such as 

emotion or bias. Olivarez v. Doe, 164 S.W.3d 427, (Tex. App. Tyler 2004, no pet.) 

\¥hen a party objects to admission of evidence as unfairly prejudicial; the trial court must 

conduct balancing test, weighing the danger of prejudice against the probative value of evidence. 

See Tex.R. Evid. 403; Campbell v. State, 118 S.W.3d 788 (Tex. App.··Houston (14th Dist.] 

2003, no pet.). 
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In this case, the highly prejudicial effect ?f the positive test substantially outweighs the 

probative value of the positive test. Because no causal link between any alleged consumption of 

the cocaine and any impairment of Hitchens has been established, this Court must exclude all 

evidence of a positive test or of alleged cocaine use by Mr. Hitchens. This would include any 

testimony or evidence not supported by scientific evidence. Guesses or suppositions that do not 

establish the necessary causal link between the alleged presence of cocaine in Hitchen's system 

and the level of impairment necessary and required by the case law. 

III. 

Any Testimony Concerning Old 

Weapon Charge Should Be Excluded 

A. Police Accident Report Refers to a 1983 Weapon Charge. 

The complete HPD accident file, Exhibit #3 to the deposition of Dean Hanvell, contains a 

Criminal History Report on Charles Anthony Hitchens that states: "Caution 7 Suspect known 

to carry a weapon," and goes on to describe a 1983 weapon charge, as well as a prior traffic 

violation (See "Criminal History Report," excerpted from Exhibit #3 to the Deposition of Officer 

Harwell, attached as Exhibit "F"). 

There is no evidence of a conviction on either matter, and neither matter mentioned in the 

criminal history report has any bearing on the causation or liability in this current litigation. 

B. Evidence of Old Weapon Charge is Highly Prejudicial 

As noted above, in deciding whether evidence should be excluded, the court must weigh 

the probative value of the evidence against its potential for unfair prejudice or confusion, and 

must examine the necessity and probative effect of the evidence. See Tex. R. Evid. 403. 

Evidence is unfairly prejudicial if it would tend to persuade a jury to determine an issue on an 

improper basis such as emotion or bias. Olivarez v. Doe, 164 S.W.3d 427, (Tex. App. Tyler 
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2004, no pet.) 

When a party objects to admission of evidence as unfairly prejudicial, the trial court must 

conduct balancing test, weighing the danger of prejudice against the probative value of evidence. 

See Tex.R. Evid. 403; Campbell v. State, 118 S.\V.3d 788 (Tex. App.--Houston [14th Dist.] 

2003, no pet.). 

In this case, the highly prejudicial of old weapon charge and a prior traffic ticket have 

absolutely no probative value in this present litigation and should be excluded. See Tex. R. 

Evidence 402 and 403. In addition, the alleged weapon charge occurred more than 25 years 

before trial and should be excluded under Tex. R. Evid. 609 because (a) Plaintiffs have not given 

Defendants sufficient advance written notice of intent to use such evidence, (b) there is no 

evidence of a conviction and (c) the alleged offense occurred more than ten years ago. 

Prayer 

For the reasons stated, Brewer Leasing, Inc., Texas Stretch, Inc., and Charles Anthony 

Hitchens, Individually, pray this Court grant the Motion to Exclude and for all other relief, 

general or special, at law or in equity, to which they may show themselves justly entitled. 

Respectfully submitted, 

BURCK, LAPIDUS & LANZA, P .C. 

LAW OFFICE OF MARVIN PETERSON 
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B 

Ma in B. Peterson 

TBN: 15846000 

Mary Ann Starks 

TBN: 19071300 

Page 17 /57 

4611 Montrose Blvd., Suite A210 

Houston, Texas 77006 

Tel:713-222-0004 

Fax:713-222-0166 

Attorneys for Defendant 

Texas Stretch, Inc. 

::srr~z.LS. WilliamS. Bush, Jr. =~ 

TBN: 03497500 

24 Greenway Plaza, Suite 1700 

Houston, Texas 77046 

Tel: 713-626-1555 

Fax: 713-622-8077 

Attorney for Defendant 

Charles Anthony Hitchens, lndi vidually 

Certificate of Service 

I hereby certify that a true and correct copy of the foregoing has been forwarded to all 

known counsel of record as indicated below on this the ~day of March, 2009: 

Harry Herzog 

Herzog & Carp, P.C. 

P.O. Box 218845 

Houston, Texas 77218-8845 

George Jackson 

Burck, Lapidus & Lanza, P.C. 

5177 Richmond Avenue, Suite 850 

Houston, Texas 77056 

William S. Bush 

Bush & Ramirez, LLC 

24 Greenway Plaza, Suite 1700 

Houston, Texas 77046 

ViaFax: 713-781-4797 

And Ordinary Mail. 

Via Fax: 713-622-8054 

And Ordinary Mail 

Via Fax: 713-622-8077 

And Ordinary Mail 
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03/08/2013 03:57:29 PM 

Lorin R. George 

Jim Adler & Associates 

3D/International Tower 

713-755-1451 

1900 West Loop South, 20th Floor 

Houston, Texas 77027-3214 

Robert L Ramey 

John Elwood 

Ramey, Chandler, McKinley & Zito 

One Bering Park, 750 Bering, Suite 600 

Houston, Texas 77057 

Via Fax: 713-781-2514 

And Ordinary Mail 

Via Fax: 713-266-1064 

And Ordinary Mail 

Charles W. Lyman Via Fax; 713-652-2419 

Lyman, Twining, Weinberg & Ferrell, P.C. And Ordinary Mail 

3600 One Houston Center 

1221 McKinney Street 

Houston, Texas 77010-2009 

Michael S. Hays Via Fax: 713-650-0027 

And Ordinary Mail 

Page 18/57 

Hays, McConn, Rice & Pickering 

1233 West Loop South, Suite 1000 

Houston, Texas 77027 

·~~.A-,_._~· MARY ANN-81' ARKS 
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Exhibit A 

Exhibit B 

Exhibit C 

Exhibit D 

Exhibit E 

Exhibit E 

713-755-1451 Page 19/57 

Attachments 

Deposition Testimony, Officer Dane Harwell 

Excerpt from HPD Accident File (Harwell Exhibit #3) 

Deposition Testimony, Officer L.A. Washington 

Deposition Testimony, Sgt. Robert Norris 

District Attorney's Office "Case Decline Report from HPD 

Accident File (Harwell Exhibit #3) 

Criminal Background History from HPD Accident File 

(Harwell Exhibit #3) 
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1 I 

DANE t .. HARWELL ' ' 12/2212008 PAITERSON v. BREWER LEASING, INC. 

Page 1 

CAUSE NO. 2006-76647 

MARCUS BRENT PATTERSON, ) IN THE DISTRICT COURT 

INDIVIDUALLY AND AS NEXT 

FRIEND OF DANIEL PATTERSON) 

AND DANAE PATTERSON ) 

Plaintiff } 

) 

VS. ) HARRIS COUNTY, TEXAS 

) 

BREWER LEASING, INC. , 

TEXAS STRETCH, INC. AND 

. CHARLES HITCHINS, 

INDIVIDUALLY ) 

Defendants ) 334TH JUDICIAL DISTRICT 

ORAL VIDEOTAPED DEPOSITION OF 

DANE L. HARWELL 

December 22, 2008 

ORAL VIDEOTAPED DEPOSITION OF DANE L. HARWELL, 

produced as a witness· at the instance of Defendant 

and duly sworn, was taken in the above-styled and 

numbered cause on December 22, 2008, from 10:22 a.m. 

to 1:47 p.m., ·before Laurie Carlisle, Certified 

Shorthand Reporter "in and for the State of Texas, 

reported. by computerized· machine shorthand, 

offices of Hays, McConn, Rice & Pickering, 

at the 

1233 West 

Loop South, Suite 1000, · Houston, Texas, pursuant to 

the Texas Rules of Civil Procedure and the provisions 

stated on the record or attached hereto. 

CARLISLE REPORTING 713.864.4443 

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EXHIBIT 

A 
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DANE L. HARWELL 12-22-2008 PATTERSO~ v. BREWER LEASING1 INC. 

1 

2 

.3 

4 

5 

6 

7 

B 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Page 21 

Q. And up a third it says supervisor on scene, 

Sergeant L.A. Washington. Then _it says suspect 

Hitchens, Charles Anthony. Says, .. The suspect did 

not appear to be intoxicated or under the influence 

of drugs at the scene. The suspect stayed to himself 

at the accident scene and was on his cell phone most 

of the time. •• 

Do you know who wrote that portion of 

this report? 

A. Looks like what I wrote. 

Q. And how can you tell that it would be 

something that you wrote?· 

A. Because this looks like the original 

report. 

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D/>.NE L. HARWELL 12-22-2008 PATTERSON v. BREWER LEASING, INC. 

1 

2 

3 

4 

5 

6 

7 

a 

9 

10 

11 

12 

1] 

14 

15 

16 

17 

' 

18 

19 

20 

21 

22 

23 

24 

25 

Page 141 

Q. Is it fair to say that even if Mr. Hitchens 

tested positive, that that·doesn't necessarily mean 

that he was impaired because of a positive test, does 

it? 

A. No. It just means he has cocaine in his 

blood. 

Q. And just be~ause he tests -- or the test 

came back positive, it does not necessarily mean that 

that positive test actually caused or contributed to 

this incident, does it? 

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DANE L. HARWELL ~2-22-2008 PATTERSON v. BREWER LEASING, INC. 

1 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

Page 142 

A. No: 

Q. So this listing of a 68 under factor that 

may have caused or contributed, that has no basis, 

either from your opservatibns of Mr. Hitchens' or 

anybody' s observa t.ions of Mr. Hitchens at the scene. 

True? 

A. Well, it goes from the toxicology report 

that drugs were in his system. That•s where it's in 

the form. 

Q. I understand that the toxicology report 

came back with a positive result. 

A. Yes. 

13 Q. What I'm saying is there's nothing that·' s 

14 inherent about simply having a positive result that 

15 necessarily caused or contributed to the accident. 

16 True? 

17 A. 

18 

19 

20 

21 

22 

23" 

24 

25 

Could be true, yes. 

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: •• T- • 1:1 Jl t '! '!i ., ' !I U a.,. -, ' ' U' 11) ' U 1J ,. U a, J , U 1) IJ ' , If., U' ' } ' ' .,. ,. "! a' fL II'· U 'f 1L II II' , II it ' ': It H U' !I~ tl t U' ) 'S ': u' n II I 

~cideiit' no~ 0':3:2975405 A CURRENT INFORNATION REPORT . . PAGE 2. 010 

!! It II ' ~ ' ,._ ' ; U .ll _, ' ,. J L1 ' l.J J ' 1i J ., n U ' , ' n ' j ' ' U .J •u l ' j ' 7 t ~ ; 1l J H U ; U ' U. U U , ' n_ n ' U U II 11 !I II ~ ~i ' i~ ,. ~ ~ ' u ' H II 1 . ; . ~ . -

Hf:'!LT AND ·1 t~ENT AROUND. HIM TO THE LEFT AND HE STARTED PUSHING PIE INTO THE WALL. 

I DIDN'T SEE-THE ACCIDENT I HEARD ABOUT IT LATER. 

DOA ··AT SCENE: DECEASED PATTERSON, DIANE YARBROUGH 

uRI VER VEHICLE #2 - . 

MEDICAL EXAMINER. ROXANNE MENA #9011 BODY CAR 9033 

fiE CASE:# ML06 1823 

ME TOok ANY· ~Ru~cRiY OR .WAS BURNED IN VEHICLE. OFFICER HARWELL TOOK TDL#200401~ 

IN 

AID 

FILE. 

SUPERVISOR ON SCENE: SGT L.A. WASHINGTON 051675 1Z008D.· 

SUSPECT: HITCHENS, CHARLES ANTHONY TDL #eJ6832242 DOB 07/13/63 

THE SUSPECT DID NOT APPEAR TO BE INTOXICATED OR UNDER THE INFLUENCE OF 

THE SCENE. THE SUSPECT STAYED TO HIMSELF AT THE ACCIDENT SCENE AND WAS 

CELL PHONE MOST OF THE TIME. 

TDL RECORD: 03/11/84 NO LIABILITY INSURANCE MUN p HOUSTON 

01/29/88 NO LtABILITY INSURANCE MUN B HOUSTON 

IZIB/27 /01 OtJER 34, 000 LBS TANDEM AXLE Ct•lV NAVARRO CO 

10/05/~f ACCIDENT CMV YES CITATION YES INJURY 

12/23/02 ACCIDENT CMV YES CITATION YES NO INJURY 

07/16/03 ACCIDENT CMV NO CITATION NO NO INJURY 

05/14/05 DENY RENEWAL LTR~1-FTA 

07i11/05 DENY RENEWAL LTR*2-FTA 

09/07/05 DENIED RENEWAL - FTA 

09/08/05 DENIAL LIFTED - FTA 

11/02/05 DUTY STATUS NOT CURRENT CMV CMV HAZ NO CASS CO 

DRUGS A" 

ON HIS 

JUT OF .STATE: 

07/09/97 SPEEDING 

SHOW/USE 

SPEEDING 

SPEEDING 

01-10 MPH OVER SPEED LIMIT CMU SOUTH 

IMPROP-OPERRTOR'S LOG CMV WASHINGTON 

Ct"'V CALIFORNIA 

CAROLINA 

:R.J;MINAL 

10/20/98 

08/1211/02 

09/02/02 CMV CALIFORNIA 

HISTORY: 

09/18/03 

09/18/03 

ARRESTED CARRY PROHIBIT WEAPON CCCL#12/TERRACINA $800 BONl 

TRAFFIC VIOLATIONS MUN CT $81 BOND 

********* LAt-.JGUAGE TRANSLATOR ********* 

:Ot<fP-#:01 PATTERSON, DIANE YARBROUGH WF056 - NO 

ITN-#01 VALDEZ, JAVIER EDG~R WM~29 - SPANISH 

ITN:---#:02 PANKEY, JOHN C WM037 - I'JO 

ITN--03 COFIELD JR.,· TIMOTHY BM027- NO 

ITN-#04 JOLLY, STANLEY DURAN WM043 - NO 

ITN-#05 BiiT1AGE, JIMMY Dl>-JAYNE BNJ.!:154 - NO 

ITN-#06 ALLEN, WILLIE JOHN WM035 - NO 

-N-ift217 GOFFNEY~ LARRY CHARLES BM031 - NO 

-fN~#08 NORRIS, ROBERT WM000 -NO 

ITN-#€19. HARTLEY, . CHAD AAHON .WM034 - NO 

ITN-#10 LYNCH, GR~HAM RANDALL WM032 - NO ~~-EX--=B-..IBIT- I 
67

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- -... 

L.A. WASHINGTON1 JR. 2-27-2009 

CAUSE NO. 2006-76647 

MARCUS BRENT PATTERSON . ) IN THE DISTRICT COURT OF 

INDIVIDUALLY AND AS NEXT ) 

FRIEND OF DANIEL PATTERSON) 

AND DANAE PATTERSON- } - ) 

Vi! • ) HARRIS COUNTY I TEXAS 

) 

BREWER LEASING, INC., ) 

TEXAS STRETCR, I~C., AND ) 

CHARLES HITCHENS, ) 

INDIVIDUALLY ) 334TH JUDICIAL DISTRICT 

ORAL VIDEOTAPED DEPOSITION 

L.A. WASHINGTON, JR. 

February 27, 2009 

ORAL VIDEOTAPED DEPOSITION OF L.A. WASHINGTON, 

JR., produced as a witness at the.instance of the 

Defendant and duly sworn, was taken in the 

above-styled and numbered cause on February 27, 2009, 

from 11:53 a.m. to 12:59 p.m., before Terrilyn Paul, 

Certified Shorthand Reporter in and for the State of 

Texas, reported by computerized machine shorthand, at 

the offices of Burck, Lapidus & Lanza, P.C., 5177 

Richmond, Suite 850, Houston, Texas, pursuant to the 

Texa~ Rules of Civil Procedure and the provisions 

stated on the record·or attached hereto. 

Page 25/57 

PATTERSON v. BREWE-R 

EXHIBIT 

G 

CARLISLE REPORTING 713.864.4443 

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'b .A: WASHINGTON I JR. 2-27-2009 PATTERSON v. BREWER 

1 

2 

3 

4 

5 

6 

7 

8 

5 

10 

11 

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13 

14 

15 

lG 

17 

18 

19 

20 

:n 

22 

23 

24 

25 

Page 23 

Q. You understand that there's a DOT 

requirement for a post-accident drug screen to take 

place, correct? 

A. Yes. 

Q. You·also understand that simply because 

someone tests positive for the presence of some type 

of drug, whether it's cocaine or whatever it might 

be, the mere fact that they test positive does not 

necessarily mean that they 1 re impaired, correct? 

A. That's correct. 

Q. And that's one of the reasons that trained 

officers will try to make a determination in the 

field as to whether or not somebody is impaired. 

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·~~A; WASHINGTON, JR. 2-27-2009 PATTERSON v. BREWER 

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2 

3 

4 

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6 

7 

a 

9 

10 

11 

12 

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14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

Page. 24 

True? 

A. That's true. 

Q. And in this case none of the officers that 

were out in the field that spoke to Mr. Hitchens ever 

told you while this investigation was going on that 

Mr. Hitchens appeared impaired to them, did they? 

A. Not as I can recollect. 

Q. In fact, if an officer felt as though or 

suspected that Mr. Hitchens was impaired at the scene 

of the accident, they would have had an obligation to 

report that to you. Is that fair to say? 

A. They would have. 

Q. They would have had a duty to report that 

to you, correct? 

A. Yes. 

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'.'t,, ... 

L.A. WASHINGTON, JR. 2-27-2009 PATTERSON v. BREWER 

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2 

J 

4 

5 

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7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

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Page 25 

Q. But I guess my question is: There was 

\ 

nothing to indicate at the scene of the accident that 

you were aware o~ or that you were made aware of that 

Mr. Hitchens was under the influence of any kind of 

·drugs to the point where he was impaired, correct? 

A. ·That's correct. 

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DEPOSITION OF ROBERT NORRIS 

0001 

1 CAUSE NO. 2006-76647 

2 MARCUS BRENT PATTERSON,) THE CIVIL DISTRICT COURT 

INDIVIDUALLY and AS NEXT) 

3 FRIEND OF. DA~EL ) 

PATTERSON and·DANAE ) 

4 PATTERSON ) 

) 

5 ) 

VS. ) 334TH JUDICIAL DIS'rRICT 

6 ) 

) 

7 BR:E~WER LEASING, INC., ) 

TEXAS STRETCH, INC., and) . 

8 CHARLES HITCHENS ) HARRIS COUNTY, TEXAS 

·9 

10 

******************************************************* 

11 

l2 

i3 

VIDEOTAPED AND ORAL DEPOSITION OF 

SGT. ROBERT NORRIS 

DECEMBER 16; 2008 

14 ******************************************************* 

15 

16 VIDEOTAPED AND ORAL DEPOSITION OF SGT. 

17 ROBERT NORRIS, produced as a witness at the instance of 

18 the Defendant and duly S9.!orn, was taken in the 

19 above-styled and numbered cause on the 16th of · 

20 December, 2008, from 10:07 a.m. to 1:44 p.m., before 

21 RHONDA RUSSO, CSR, in and for the State of Texas, 

22 reported by Machine Shorthand, at the Law Offices of 

23 Hays, McConn, Rice & Pickerln1, 1233 West Loop South, 

24 Suite 1000, Houston, Texas, pursuant to the Texas Rules 

25· of Civil Procedure. 

0002 

1 

2 

3 

A P P. E A R A N C E S : 

Counsel for Robert Norris and Stanley Jolly: 

4 LAW OFFICES OF R. BURTON SPRINGER 

3605 Katy Freeway 

5 Suite 210 

. Houston, Texas 77007 

6 

7 

Office: 713.227.2677 Fax: 713.802.0517 

BY: R. BURTON "BURT11 SPRINGER, Esq. 

Page 1 EXHIBIT 

1) 
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DEPOSITION OF ROBERT NORRIS 

2 · · Q~ That ~ .. I understand that. Let's back up for 

3 a second. You have a llf:etime career in law 

4 enforceDlent, correct? 

5 A. Yes, sir. 

· 6 Q. And I think during one of the breaks I 

7 overheard you telling us you have a lengthy history In 

8 narcotics enforcement. Is that correct? 

9 · A. No, sir. 

10 Q. Did you not have a dog or som~thlng that you 

11 were involved with? 

12 · A. No, sir. 

13 Q. Tell us your background, then, in dealing with 

14 people who appear to be Impaired, 

15 A. Okay. I am a DWI specialist,· sir, and I deal 

16 with alcohol and drug related incidents where people 

17 are driving while impaired. And as such I am a drug 

18 recognition expert which is not -to recognize drugs 

19 · themselves but it'~ to recognize drug cat~gories where 

20 Individuals who have taken some type or aubstance and 

21 e:qtered Into the body causing them to be impa~d. 

22 · Q. Okay. You are an expert in assessing an 

23 individual and evaluating whether they are In any way 

24 impaired at the time that you were talking and 

25 Interacting with them, correct? 

opgo. 

1 A. Mast of the time~' yes~' sir. 

2 Q. I know .that your time period or speaking to 

3 Mr. Hitchens was brief as you testified today. Is that 

4 correct? 

5 

6 

7 

8 

9 

A. Yes, sir. 

Q. But at the time you talked with him, you had 

taken notice or him because in your opinion he was the 

vehicle that had gone passed you and had struck the 

SUV, correct? 

Page 54 

Page 30/57 
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03/08/2013 03:57:29 PM 713-755-1451 

DEPOSITION OF ROBERT NORRIS 

10 A. Yes, sir. 

11 Q. In other words, In simple terms your radar was 

12 up and you were looking at h.im real close? 

.. 13 A. I was looking a:t hi.m real close as bein& the 

14 at fault vehicle in a traffic accident, sir. 

15 Q. At the time that you interacted with 

16 Mr. Hitchens, you haci. formed the opinion as a law 

17 enrorcement officlal that he was the vehicle at :fault 

18 for what was obviously a very maJor traffic accident, 

19 correct? 

20 A. Yes, sb:. 

21 Q. And as such you were observing him very, very 

22 closely? 

23 A~ Not as an individual, sir. . 

24 Q. How would you -- how would you observe him 

25 other than as an indiviclual? 

0091 

1 A. Sir, what ·I was doing I had entered the 

2 situation at the· time. I had -- as you said it was a 

3 major accident, several entities involved. My main 

4 concern on any traffic accident., my first concern is 

5 ror the imjured and also to make sure I don.•t lose 

6 potential witnesses~ suspects. And what I do, I check 

7 everybody and try to obtain some type of identification 

8 if possible. In this case I think I may have obtained 

9 an identification. I can't recall If I did or not fram 

10 him. I may have and may not. I don,'t recall. But I 

11 know my main concern at that time was --.is to identify 

Page 31 /57 

.·12 who I have out there to a point to find out do I have 

13 inJuries, what resources 1•m going to need to respond, 

14 ambulances, fir49, police and so forth and I was on to 

15 the 911 system aud advising them exactly what equlpmeDt 

16 I was going ·to need when it occurred. 

17 Q. I understand that your first, duty and 

18 responsibility out there Ia to make sure that no one 

. · 19 else gets hurt. Seeonc:lly that the people who may be 

20 injured, to try and provide them with care, comfort, 

21 and assistance and those are what you're trying to do 

22 Immediately after an accident, correct? 

23 A. Yes, sir. 

24 Q. And in the process of that, though, you had at 

25 least some interaction with Mr. Hitchens. You spoke 

0092 

1 with him, you got close to him, and may or may not have 

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~ I •I " 

DEPOSITION OF ROBERT NORRIS 

2 obtained identification from him, correct? 

3 A. Correct. 

4 Q. Considering the severity of the accident, if 

.. 5 you had had even the slightest indication in any way 

6 that he was impaired, you would. have brought that to 

7 the attention of the other investigating officers, 

8 wouldn't you? 

9 A. Yes, sir . 

. 10 Q. So, we can assume and know that because you 

11 did not bring that to anyone's attention because you 

12 didn't speak to anyone,. you didn't identify 

13 Mr! Hitchens as being possibly impaired, that there was 

14 nothing about his demeanor in the short perioct of time 

15 that you talked to him that In any way lndicat~d to you . 

16 that he was Impaired in any way? · 

17 A. Nothing that ahi.rmed me at that particular 

18 time, sir. 

Page 56 

Page 32/57 
75

03/08/2013 03:57:29 PM 

Case Decline Report 

FURTHER INVESTIGATION NEEDED 

Defendant First: -Charles 

Date of Off!nse: 6115'2GO'f'-'C.-t::> ~ 

Offllnsa: Intoxication Manslaughles: 

Officer First: DL 

713-755-1451 

Defendant Last: Hitcnens 

Date of Reject: 611:1/'ZJXJT 

Officer Last: Harwell 

Agency: HOUSTON POUCE DEPARTMENT 

Witness Rrst: Diane 

ADA First: Warren 

OR#: 92975406 

Reason: 

VATS REVIEWED CASE 

Witness Last: Patterson 

ADA Last: Dlepraam 

The defendant was driving a tractor trailer eastboUnd in the 148:10 block of the Katy Freeway 

just west of HigtMray 6. Sever.ll Precinct Feu de~ies had stopped freeway traffiC because 

they were escorting an Clllef$ize load. The defendant was not able to see the stq:Jped traffic 

ahead of him foe some unknown reason. He drove into sever.~l cars that had stopped. The 

complainant's vehicle caught fire and she was kiHed. 

The sole act of negligence so far in the case is failing to maintain a proper lookout. 

HONeYer, the defendant has not given a complete statement abaJt why he was looking 

doNn. hoN long he was looking doW'n, etc. 

In a case d this nature, speed is aitical. The HPD has been unable to determine as~ of 

the defendanrs tractoc trailer prior to impact. 1 tis l.l'lki"'INTT if this vehicle had satellite -

trackill;J capablity that wuold be r:1 assistance. Of the fifteen witnesses that HPD spoke to 

(II'ICI!dng the C4 deputies), only a couple cJ them mention speed. Their opinions on speed 

should be more extensively investigated. 

The defent:IMt, due to federal ~tory reqlirements, sltmitted to a uir&ysis -wnich 

tested positive fer cocaine. It Is a.r«nown whether or not the private lab tested for actual 

cocaine, cocaine metabolites, cr quantifted the amourt. Asrl today, tlis lnfamation has not 

been obtaned. Therafore, it is UOOlc:w1 whether the ill'l'lOI.ri rl cocaine is a large dose 

three days ago. s small dose two days cg:~, etc. Additionally, officers at the scene ncted no 

sigr6 rl impairment on the defendant. This means that either they missed the signs d 

cocaine use or that the cocaine CJJ31'1Uty was insufficient to cause impairment. That 

Questioo, hoNever, can't be answered until the adual amounts are obtained by HPD. 

lastly, altho.Jgh this office is a pmsecutorial- off.ce a'ld not an investigatiVe office, the report 

and photos were submitted to a ~vale reconstructionis t for review. Fran the information 

provided to him, he was unable to answel' the above questions. 

Page 33/57 

EXHIBIT 

E. I 
76

03/08/2013 03:57:29 PM 

... 

713-755-1451 

· HOUSTON POL! CE DEP,QRTMENT 

CRIMINAL HISTORY REPORT 

Page 34/57 

PAGE: 0Qt1 

H Jl l ' ' ' ., '1 II ' " II ' Ji ., , ' ' ' Ui ' U H ' , U ' ' ' ' ' ., ! l ' ' , ' 5 7 7 ' !: U ' U H ' U 1 n U U ~ ~ II U J tt II U U ' U ' U. !II II ' ; ' l U ~ ll U ·n U . 

ME: HITCHENS _, CHRRL~S ANtHONY MID#:0000232210 " II ' J J .. ' J ' U ' J II ' II , , t ,. ' II , II II t , II t t , ' ' J t , t t , ' ,. 7 ,_ J t U ' II U ' II ' U If IT ' ' II n ' II 11 i1 II t U 7 II ' 10 S j t , u ' 11 If U H 

UTION --------> SUSPECT 1-~NOWN TO CRRRY A ~..JEAPON 

*********************** IDENTIFYING INFORMATION . ************************* 

:E-B SEX-M HGT-505 l.JGT-130 HAIR-BLK EYES~BRO 

PLACE OF 

Cot•1P-MED 

fE OF BIRTH - 07/13/63 BIRTH - TX 

f********************** 

<********************** 

LICif-6832242 

14/t>19R00015 

S9UD0013 

********************** 

ATIVE NAME 

SCARS, MARKS, TATOOS 

IDENTIFYING NUMBERS 

STATE-TX 

SI D44-IZL3254239 

LAST-PHOT0-09/lB/83 

PALMS-Tt='IKENRELATIVE INFORMATION 

ADDRESS 

************************* 

************************* 

SOCIAL-SECURITY#- 4E.3-45-8055 

FBI#-315554CA4 

NCIC-CLASS-15 61 C0 P0 15 

1!Zt 15 13 17 12 

************************* 

PHONE 

HER ANNETTE PEALS 7038 RICHWOOD 7136456245 

********************** ALIAS INFORMATION ************************* 

AS NAME R/S DOB ·DRIVER-LICENSE# SOC-SECt~ 

:HENS ! CHARLIE I 071363 

~********************* ARREST INFORMATION. ************************* 

TORY#: 001 ARREST DATE: 09/18/83 JAIL BOOKING#: CB24142 

=:: ADDR: 7038 RICHI·JOOD 

:UPATION: CLERK - OFFICE 

~ST LOCRTI0~:3600 UNKNOWN 

=-sTING OFFICERS: NO#' 071538 

DISPOSITION: RELEASED ON BOND/MADE BOND JAIL DISPOSITION DATE:09/18/~3 

:.'NSE-1: CARRY PROHIBIT t--JEf:u:ioN . 56438883 

~GE •..•• :CARRY WEAPON(729709)IN CCCL#12/TERRRCINA, 

)OSITION: 

INCIDENT#: 

$800 BOND 

~NSE-2:. TRAFFIC VIOLATIONS <OTHER) 

mE ••••• :TRAFFIC IN i•1UN CT, $81 BOND 

EXHIBIT 

F 
77

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By • 

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CAtJS!; NO, 200&-76847 

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BIUNJBJt 1&\rSlNO, INO., 1'EXAS 

S'niiElCH. INC. AND ORARLB:S 

~. JNDIVD)tL\LLY 

CIIIJlle Cll\ tor antl Zle""'Dg tho Joh\-t Motlon otDcfendants mewet' Leutng', 

Inc., TeAS Stra~ tnc. BDcl Cbadee Hit.ebcna to Ex:cluda Bvtdonae~ Poalttvc Drug 

Teat ~d Old Weapon Cba.qe Not.Admll.slble, a:Ad the C()u.rt.. ha'YUlg ~sldeied 

the motion. rea,~ II.D.d argu:trlent rd' coun.set. ftnd• that the matlaa. hU merit 

and eb.ould ba gnm.ted. It :IS., thet~. 

OR:D'US'iD fhatall evi.dcnl:!e and teatlmony CDillcenx!D.I tbofoDawmgma.t~s 

$ball b!: C11C01udll4 frOXIl tho hoB:dng t.ftbe Jmy 1\.t 'tbc trtal ot th1a cause: 

(a) Cb.ull.es .Antbony Hltclwur posmw dn1g tcsti 

!bl .Alleged tWO at 4r'u&\il or cocame by CJJanes Anthaay lf:i;tcbc:n8: 

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(C) lm;ywtQPO.ll obatP, fl4a!nat ~ ~ U\'tchlms; 

.... rliiJiii 1£ 4iiili! 4sft•I''tlk WI=; :JJ-"))-

F I L-."~ ~~ da;vof_.-··- ~ .:aooe. . ~Ja~n -

Dlltr!ct Clerk / 

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EXHIBIT& 
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f50 'Bertag. 9Ulte 600 

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03/08/2013 03:57:29 PM 

I, Loren Jackson, District Clerk of Harris 

County, Texas certify that this is a n-ue and 

correct copy of the original record filed and or 

recorded in my office, electronically or hard 

copy, as it appears on this date 

Witness my official hand and seal of office 

this Anril 4, 2009 

713-755-1451 

Certified Document Number: 4162~552 Total Pa~cs: 3 

._.. ~ .:~ 

•• ~. • •• •• ~o; ' • 

< •. , .• y. __ ;..,r / ....... . 

LOREN JACKSON, DISTRICT CLERK 

HARRIS COt:NTY, TEXAS 

Page 38/57 

In accordance with Texas Govetnment Code 406.013 eled.ronically transmitted authenticated 

documents are valid. lfthere Is a questlon regarding the validity of this document and or seal 

please e~mail support@hcdistrictclerk.com 
81

3/08/2013 03:57:29 PM 

713-755-1451 Page :j~ 1 or 

LEASEA.GR.EEHENT 

TRACTOR Clr1NF:B. T/.~XAS ST12t [c}l ::r n1 c s. s. No •. ______ _ 

ADDK.ESS_~/)r-/..:...0-=-3___:;:.5..!_/c......:../.:...._/I}...L_f'L.:::._:' L=-::f?.___:___ PRotm NO.7 J 3 6 t I /).. 17 7 

f/OUSTOnJ /J;¥. 77o9J 

::::_S_NAKE_:===,:z:1:;:~:z::?=..,.~-~~===========;~~ ::~================== 

herein after·referred to as Lessor. do hereby eater 1nto this agreement for the 

1ease of the fo~lowing equipment under the axp~ees eerms and condit~ons set forth 

be lew~ 

HAKE !l.<>o:l. fa/! SElUAL uolke!JD8.9X:l.:J..pS2.89/.5- LICENSE N0.!2JJ!t 3 7'-/ 

• 

In ~orusideration of the pt'ovi.sic:ms and covenants herein cant ained, 1 t is urut:\13.~ly 

ag~eed as foll~s: 

1. The lessor's rate of pay shall be '/A percent for power tmit and 3() 

perceut for tractor trailer combinations of~Revenue on treignt ~ed all Tar±ff. 

2. That I.enee uill pl.ace &igns on said equip'Dient shoving tbat this equipment 

is leased to and operated by Lessee and that upon tena.ina.tion of this contract by 

ei.tber pau.y auch IJir;ns v1~l. be removed by Lessor • .and Lessor agrees t.be failure ~o 

remove such a1gn3 will xesul~ in damagem to Lessor. 

3. 'That Le:~~•or vill equi.p said equipment Vich ligbts and reflectors as re-

.quired by th@ Interstate Comaaerce Coma:islilion aud prortde all accessorial equipment 

as requir~ by rules and re.p1.at:10DJJ oa said equip111ea.t at all times vbe.n ia. use of 

Lessee. and k.eep the equ:lp111eut up to the llini~~Nm .nechanical n~quire.ment:.11 as. set forth 

in the :rules ltllld regulatious. Lessee re~terves the xight: to :tnspect sai.d equipment at 

any c:bne or place while 1n ita use ca assure compliance with auch proviai.ons • 

. · 4. 'fbat l.essoT vill obtain and paJ foT all necusary state license tags and 

registrations and affix same to said cquipmeot and pay for and supply all gasolinet 

oil. tiTes, repairs, and suppl1u necessary co aai:nt:ain operating effic~eacy. 

Purthcn:·. 't..ot!uor shall pay aU -.i1eage • f11el.. and bighway t:axes and post a 11 bcmds 

necessaTy and required by various sta~es. 

S. 'l'hat 1t is expre:ss1y u.nderctood by the part:ies hereto that: all drivers. 

helpers BDd}or agent:• of Le~sor used to fulfill this coa~ract are employees of 

Lessor and lessor assumes respoueibili g f;a••~ cfc hecs, helpers r 

. • . per a n ~ to hours of 

servt~~ ·and ma~neeoance of equ~p~n~ aud eh~ll as&ure that all drive~s Maintaia a 

daily log as required aud forward co Les5ee &aid log sheets daily. 

~ PLAINTIFFS 

~ EXHIBIT 

li ) OL ~ ) 

~ 
82

,JOB/2013 03:57:29 PM 

713-755-1451 page q.u' ':' 

6. Lessee does not agree to furnish physical damage insurance for Loss. 

7. That Lessor will furnish Lessee with a doctor's physical examin4C~on 

cer:t ificate oo any and tll~ drivers of sa.1.d equipment in accordance with t:he Rules 

aud lte.gulat:l.ons of I .C. C. 

8. 'that Lessee aa:sumes and will be respon&i.ble. far snd agrees co furnish 

adaquate protection to the p~bl~c and the shipper~ for automob~le bodily 1nj~ry. 

P~Dperty d~ge, and cargo liab1l~ty. 

9. That dur1ng the terms o! this agreement, 'U!&sor vill furuis"h adequate 

protect~ou as to Ieoder Leas~e harale5s fram clai~s ar1s~nz from daua~e or ~njury 

to any thi~d party resulting from bobtail1ng of Lessot's equipbent. 

10. ~ac during the te~ of this agrecmeot, eaid equipment w~11 be made 

avail.able to and cont'rolled 'by Lessee at all times, and all drivers and other 

employees of Lessor US:I!!d in connection \litli this contract will also be under full 

control. direction and supervision pf Lessee, or ~~s agent. 

11. l'bat l.e.tlsor ag1:ces t:h.at equipment herein described :1s t:o be u.sed e:xelusively by Lessee and in a;he event said Lessor • his driver, employee, or agent 

£hal1 ileviate from tbe t:.et'1116 of this contract • by the transportat:ion of freight: 

for ano~her, e~ther gratuitously, or for hi~~, or by deviation fro~ oa;her terms, 

then ch~s contract is auto~tically suspended until the equip~nt is returned to 

service of Lessee~ end that Le.Gsee sball be hannless fioe~~ suc.h deviation. 

U_ That t:his Agreement shall be in full force and effect until terminated 

by either party hereto, but not leGs than 30 days~ by vritten nctice delivered by 

eithe~ party signatory hereto in person if an individual, or to any offLcer 

~hereofsaid party is a ~orporation. Said agreemenc also may be cancelled or term1nat:e.d by depos1.ticg in t:hc U.S. Mail a not1.ce of such caneellat:icrn. properly addre~sed. po~ted. and that said party or offiter bereof is evidenced by che return 

registered receipt or upon cbe said Tefusal of sa~d addTeasee to aecept delivery 

thereof. and upon te.radnati.on of th::ls agreemenr. Lessor ag-r:ec:o 'to -ret:urn to Le.ssee 

all equ~p0ent, supplie.s. pe~1.ta, •nd o~h~r pTaperty of Lessee to che nearest 

te~inal wt~h~n S days. or be charged thirty (30) ceots per mile for retrieving 

of such property by Lessee. 

13. 'l'ba.t :if Le:saor or 1ds ageut. i.s nnA.ble to deliver car)to hauled uu.der t:his 

~gTeement to the destination upon an agreed time, Lessor vill ~diately notLfy 

Lessee. o~ the ~onsignee of such cargo of the probable delay. and ~hat faiLure to 

give such not1f1cacions will be construed a~ negligence on the part of the Lessor. 

14. That. Lessee t~h.all be illlpovered to cha.tge Lessor all _claims for shortages. 

losse.s. or damage to cArgo which are not the result: of a.cc.i.de.u1:. 1.nvo~v1.nJC; tllc 

equ'1.p~~~enr coveted by t.bi.s agree.eeut. 

15. !hat Le3see will charge the fLr&t $100.00 of any ela~m for public liab~liey 

oT property damege due to negligence of Le$SO~. his dr~ver. or agent, and fu~the~ 

the lessee vil1 cbaTge Lesso~ for all dalll&ges to cargo cause.d by neRli~ence of 

Lassor. his dr~~er. or &Je~t • 

. · 
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16 • The Le&oor vill be responsi.ble to Le,.;s-ee for ds.rnag~ to Le.:s :!lee' a equipment 

or propert-y d8..11lages as a result of Lessor 1 9 6tri.king any vi.aduc:t, lav overhead, or 

other 3~a~1onary objec~ thrnugh caTelessness or neglect of Lessor, his driveT. or ~tent. , 

17. Th•u:·LessoT shall not: br: paid for acy load vrecked e>r damaged ia t:ransit 

and returned to origin point. 

18. The Lessee shall charge Lessor in full fot' any ~ml all water dat~~S.Rc t.o 

cargo ceused by neglect of Lessor, his driver, or agent. 

19. The Lessee ~111 hold from the Lessor's earnings a total of $ZOO.OO. The 

said $200.00 less any clai~s. ro be refunded to Lessur or Le&see v~~htn a p~~~od 

of not less than thirty days and not to excead nLaety days of the termination of 

the lease by et~her party. 

20. The Lessor shall ye~urse the ~essee for any fin~s or penalties Faid by 

the lessee aa a re3ult of i~lega1 or criminal acts co~tted by the Lessor. his 

driver~ or agent. 

21- All 1n5urange. Fay~o11 ~axes, state employment taxes 6hal1 be paid by 

~ssee and charged back to Lesso~. Any iucrease in above will be charged or any 

decrea~e 9111 be adjusted in cost. 
84

03/08/2013 03:57:29 PM 713-755-1451 

CAUSE NO. 2011-64488 

MARCUS BRENT PATTERSON, 

INDIVIDUALLY, AS INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF 

DIANE PATTERSON, and AS NEXT 

FRIEND OF DANIEL PATTERSON and 

DANAE PATTERSON, and DANIEL 

PATTERSON (now 18 yearsofage) 

Plaintiffs, 

v. 

BREWER LEASING, INC. 

Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

JURY CHARGE 

MEMBERS OF THE JURY: 

Page 42/57 

IN THE DISTRICT COURT 

334th JUDICIAL DISTRICT 

HARRIS COUNTY, TEXAS 

This case is submitted to you by asking questions about the facts, which you must decide 

from the evidence you have heard in this trial. You are the sole judges of the credibility of the 

witnesses and the weight to be given their testimony, but in matters oflaw you must be governed 

by the instructions in this charge. In discharging your responsibility on this jury you will 

observe all the instructions which have previously been given you. I shall now give you 

additional instructions which you should carefully and strictly follow during your deliberations. 

Do not let bias, prejudice or sympathy play any part in your deliberation. 

In arriving at your answers, consider only the evidence introduced here under oath and 

such exhibits, if any, as have been introduced for your consideration under the rulings of the 

Court, that is, what you have seen and heard in this courtroom, together with the law as given 

you by the court. In your deliberations, you will not consider or discuss anything that is not 

represented by the evidence in this case. 

Since every answer that is required by the charge is important, no juror should state or 

consider that any required answer is not important. 

You must not decide who you think should win, and then try to answer the questions 

accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the 

effect of your answers. 

ExHIBIT '7 
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You will not decide the answer to a question by lot or by drawing straws, or by any other 

method of chance. Do not return a quotient verdict. A quotient verdict means that the jurors 

agree to abide by the result to be reached by adding together each juror's figures and dividing by 

the number of jurors to get an average. Do not do any trading on your answers~ that is, one juror 

should not agree to answer a certain question one way if others will agree to answer another 

question another way. 

You may render your verdict upon the vote of ten or more members of the jury to 

Questions 1, 2, 3 or 6. The same ten or more of you must agree upon all of the answers made 

and to the entire verdict. You will not, therefore, enter into an agreement to be bound by a 

majority or any other vote of less than ten jurors. Questions 4 and 5 may only be answered 

'"Yes" or with a dollar amount if the jury is unanimous. If the verdict and all of the answers 

therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the 

entire jury. If any juror disagrees as to any answer made by the verdict, those jurors who agree 

to all findings shall each sign the verdict. 

These instructions are given you because your conduct is subject to review the same as 

that of the witnesses, parties, attorneys, and the judge. If it should be found that you have 

disregarded any of these instructions, it will be jury misconduct and it may require another trial 

by another jury; then all of our time will have been wasted. 

The presiding juror or any other who observes a violation of the court's instructions shall 

immediately warn the one who is violating the same and caution the juror not to do so again. 
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When words are used in this charge in a sense which varies from the meaning commonly 

understood, you will be a given a proper legal definition which you are bound to accept in place 

of any other meaning. 

A fact may be established by direct evidence, by circumstantial evidence, or by both. A 

fact is established by direct evidence when proved by docwnentary evidence or by witnesses 

who saw the act done or heard the words spoken. A fact is established by circumstantial 

evidence when it may be fairly and reasonably inferred from other facts proved. 

In this case any witness or lawyer may comment on Mr. Hitchens' claim of privilege, and 

you may draw any inference from his refusal to testify that you believe is a reasonable inference. 

Answer questions "'Yes" or '"No" unless otherwise instructed to answer them with 

percentages or dollars. A "Yes" answer must be based on a preponderance of the evidence 

unless otherwise instructed. If you do not find a preponderance of the evidence supports a "Yes" 

answer, then answer "No". 

"Preponderance of the evidence" means the greater weight and degree of credible 

testimony or evidence introduced before you and admitted in this case. Whenever a 

question requires an answer other than '"Yes" or "No", your answer must also be based 

on a preponderance of the evidence. 
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QUESTION NO. 1 

Did the negligence, if any, of any of the people or entities listed below proximately cause 

the occurrence in question? 

"'Negligence" means failure to use ordinary care: that is, failing to do that which a person 

of ordinary prudence would have done under the same or similar circumstances or doing 

that which a person of ordinary prudence would not have done under the same or similar 

circumstances. 

"Ordinary care" means that degree of care that would be used by a person of ordinary 

prudence under the same or similar circumstances. 

"Proximate cause" means that cause which, in a natural and continuous sequence, 

produces an event, and without which cause such event would not have occurred. In 

order to be a proximate cause, the act or omission complained of must be such that a 

person using ordinary care would have foreseen that the event, or some similar event, 

might reasonably result therefrom. There may be more than one proximate cause of an 

event. 

Please answer "Yes" or "No" for each of the following: 

Answer: Charles Hitchens 

Williams Brothers Construction 

Ray Bellew and Sons 
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If you answered "Yes" to Question 1 for more than one of those named below, then answer the 

following question. Otherwise, do not answer the following question. 

Assign percentages of responsibility only to those you found caused or contributed to cause the 

occurrence. The percentages you find must total 1 00 percent. The percentages must be 

expressed in whole numbers. The percentage of responsibility attributable to any one is not 

necessarily measured by the number of acts or omissions found. The percentage attributable to 

any one need not be the same percentage attributed to that one in answering another question. 

QUESTION NO.2 

For each person you found caused or contributed to cause the occurrence, find the 

percentage of negligence attributable to each: 

Answer: Charles Hitchens % ---------------------

Williams Brothers Construction % --------------------

Ray Bellew and Sons % --------------------

Total: 100 % --------~~--------
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If you answered ''Yes" to Question 1, then answer Question 3. Otherwise, do not answer 

Question 3. 

QUESTION NO. 3 

What sum of money would have fairly and reasonably compensated Diane Patterson fora. Pain and mental anguish. 

"Pain and mental anguish" means the conscious physical pain and emotional pain, 

torment, and suffering experienced by Diane Patterson before her death as a result of the 

occurrence in question. 

Please answer in dollars and cents for damages, if any. 

Answer: $ --------------------

b. Funeral and burial expenses. 

"Funeral and burial expenses" means the reasonable amount of expenses for the funeral 

and burial of Diane Patterson reasonably suitable to her station in life. 

Please answer in dollars and cents for damages, if any. 

Answer: $ --------------------
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If you answered "Yes" to Question 1, then answer Question 4. Otherwise, do not answer 

Question 4. 

QUESTION NO. 4 

What sum of money, if paid now in cash, would fairly and reasonably compensate 

Marcus, Daniel, and Danae Patterson for their damages, if any, resulting from the death of Diane 

Patterson? 

Consider the elements of damages listed below and none other. Consider each element 

separately. Do not award any sum of money on any element if you have otherwise, under 

some other element, awarded a sum of money for the same loss. That is, do not 

compensate twice for the same loss. Do not include interest on any amount of damages 

you find. 

Please answer separately in dollars and cents for damages, if any. 

a. Pecuniary loss sustained in the past. 

'"Pecuniary loss" means the loss of care, maintenance, support, services, advice, counsel, 

and reasonable contributions of a pecuniary value, that Marcus Patterson, Daniel 

Patterson and Danae Patterson in reasonable probability would have received from Diane 

Patterson had she lived. 

Answer: Marcus Patterson $ ______________ __ 

Daniel Patterson $ -----------

Danae Patterson $ ----------------

b. Pecuniary loss that, in reasonable probability. will be sustained in the future. 

Answer: Marcus Patterson $--------------~--

Daniel Patterson $ ---------------------

Danae Patterson $ ---------------------

In determining damages for elements c, d, e, and f, you may consider the relationship 

between Marcus, Daniel, and Danae Patterson with Diane Patterson, their living 

arrangements, any extended absences from one another, the harmony of their family 

relations, and their common interests and activities. 
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c. Loss of companionship and society sustained in the past. 

"Loss of companionship and society" means the loss of the positive benefits flowing 

from the love, comfort, companionship, and society that Marcus Patterson, Daniel 

Patterson, and Danae Patterson in reasonable probability would have received from 

Diane Patterson had she lived. 

Answer: Marcus Patterson $~---------------

Daniel Patterson $ _________ _ 

Danae Patterson $ _________ _ 

d. Loss of companionship and society that. m reasonable probability. will be 

sustained in the future. 

Answer: Marcus Patterson $ ________________ _ 

Daniel Patterson $ ----------

Danae Patterson $ -------------

e. Mental anguish sustained in the past. 

"Mental anguish" means the emotional pain, torment, and suffering experienced by 

Marcus Patterson, Daniel Patterson, and Danae Patterson because of the death of Diane 

Patterson. 

Answer: Marcus Patterson $ ________________ _ 

Daniel Patterson $ -------------

Dana.e Patterson $ -----------

f. Mental anguish that. in reasonable probability, will be sustained in the future. 

Answer: Marcus Patterson $ ________________ _ 

Daniel Patterson $ -----------

Danae Patterson $ ------------
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g. The fair market value ofthe Patterson's Ford Expedition on June 15. 2006 before 

physical contact occurred with the Brewer Leasing tractor-trailer. 

"Fair market value" means the amount that would be paid in cash by a willing buyer who 

desires to buy, but is not required to buy, to a willing seHer who desires to sell, but is 

under no necessity of selling. 

Answer: $ --~~~------------
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Answer Question 5 only if you unanimously answered "Yes" to Question 1. Otherwise, do not 

answer Question 5. 

To answer "Yes" to Question 5, your answer must be unanimous. You may answer "No" to 

Question 5 only upon a vote of ten or more jurors. If you cannot unanimously answer "Yes" and 

if you cannot answer "No" upon a vote often or more jurors, please indicate "No Consensus". 

QUESTION NO.5 

Do you find by clear and convincing evidence that the death of Diane Patterson resulted 

from gross negligence attributable to Brewer Leasing, Inc.? 

"Clear and convincing evidence" means the measure or degree of proof that produces a 

firm belief or conviction of the truth of the al1egations sought to be established. 

"Gross negligence" means an act or omission by a driver, 

(a) which when viewed objectively from the standpoint of the driver at the 

time of its occurrence involves an extreme degree of risk, considering the 

probability and magnitude of the potential harm to others; and 

(b) of which the driver had actual, subjective awareness of the risk involved, 

but nevertheless proceeded with conscious indifference to the rights, 

safety, or welfare of others. 

You are further instructed that Brewer Leasing, Inc. may be grossly negligent because of 

an act by Charles Hitchens if, but only if, Brewer Leasing, Inc. ratified or approved the 

act. 

Please answer "Yes" or "No" or "No Consensus": 

Answer: 
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Answer Question 6 only if you unanimously answered "Yes" to Question 5. Otherwise, do not 

answer Question 6. 

QUESTION NO. 6 

What sum of money, if any, should be assessed against Brewer Leasing, Inc. and 

awarded to Diane Patterson's estate, Marcus Patterson, Daniel Patterson, and/or Danae Patterson 

as exemplary damages for the conduct found in response to Question 5? 

"Exemplary damages" means any damages awarded as a penalty or by way of 

punishment but not for compensatory purposes. Exemplary damages includes punitive 

damages. 

You are instructed that you must unanimously agree on the amount of any award of 

exemplary damages. 

Factors to consider in awarding exemplary damages, if any, are-

(a) The nature of the wrong. 

(b) The character of the conduct involved. 

(c) The degree of culpability of the wrongdoer. 

(d) The situation and sensibilities of the parties concerned. 

(e) The extent to which such conduct offends a public sense of justice and 

propriety. 

(t) The net worth of Brewer Leasing, Inc. 

Please answer in dollars and cents, if any. 

Answer: $ --------------------
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If in your answer to Question 6 you entered any amount of exemplary damages, then answer 

Question 7. Otherwise, do not answer Question 7. 

QUESTION NO. 7 

How do you apportion the amount of exemplary damages awarded between Diane 

Patterson's estate, Marcus Patterson, Daniel Patterson, and/or Danae Patterson? 

Answer by stating a percentage for each person named below. The percentages you find 

must total 100 percent. 

Answer: Diane Patterson's estate % --------------------

Marcus Patterson % --------------------

Daniel Patterson % --------------------

Danae Patterson % ---------------------

Total 100 % --------~~---------
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QUESTION NO. 8 

Did Brewer Leasing, Inc. commit fraud against Diane Patterson's estate, Marcus 

Patterson, Daniel Patterson, and/or Danae Patterson? 

Fraud occurs whena. a party makes a material misrepresentation, and 

b. the misrepresentation is made with knowledge of its falsity or made 

recklessly without any knowledge of the truth and as a positive assertion, 

and 

c. the misrepresentation is made with the intention that it should be acted on 

by the other party, and 

d. the other party relies on the misrepresentation and thereby suffers injury. 

"Misrepresentation" means a false statement of fact. 

Answer "'Yes" or "No". 

Answer: 
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If you answered "Yes" to Question 8, then answer Question 9. Otherwise, do not answer 

Question 9. 

QUESTION NO. 9 

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate 

Diane Patterson's estate, Marcus Patterson, Daniel Patterson, and/or Danae Patterson for their 

damages, if any, that were proximately caused by such fraud? 

Consider as damages only expenses incurred that would not have been incurred if no 

fraud took place. Do not include interest on any amount of damages you find. 

Please answer in dollars and cents, if any. 

Answer: $ 

--------------------
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After you retire to the jury room, you will select your own presiding juror. The first 

thing the presiding juror will do is to have this complete charge read aloud and then you will 

deliberate upon your answers to the questions asked. 

It is the duty ofthe presiding jurorto preside during your deliberations, 

to see that your deliberations are conducted in an orderly mmer and in accordance with 

the instructions in this charge, 

to write out and hand to the bailiff any communications concerning the case that you 

desire to have delivered to the judge, 

to conduct all voting on the questions, 

to write your answers to the questions in the spaces provided, and 

to certifY your verdict in the space provided for the presiding juror's signature or to 

obtain the signatures of all the jurors who agree with the verdict if your verdict is less 

than unanimous. 

You should not discuss the case with anyone, not even with other members of the jury, 

unless all of you are present and assembled in the jury room. Should anyone attempt to talk to 

you about the case before the verdict is returned, whether at the courthouse, at your home, or 

elsewhere, please inform the judge of this fact. 

When you have answered all the questions you are required to answer under the 

instructions of the judge and your presiding juror has placed your answers in the spaces provided 

and signed the verdict as presiding juror or obtained the signatures, you will inform the bailiff at 

the door of the jury room that you have reached a verdict, and then you will return into court 

with your verdict. 
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CERTIFICATE 

We, the jury, have answered the above and foregoing questions 1, 2, 3, 4, 5, 6, 7, 8 and 9 

as herein indicated, and herewith return same into court as our verdict. 

(To be signed by the presiding juror if unanimous.) 

Presiding Juror 

(To be signed by those rendering the verdict if not unanimous on either question 1, 2, 3, 4, 8 or 

9) 
Appendix

20
e4te112aa9 12:53 71322213166 LAW MARVIN PETERSON 

CAUSE NO. 2006-76647 

MARCUS BRENT PA ITERSON 

lNDIVIDUALL Y and AS NEXT 

vruENDOFDANrnLPA~ON 

And DANAE PATTERSON 

Plaintiffs, 

vs. 

BREWER LEASING, Il\C .. 

TEXAS STRETCH, INC. and 

CHARLES HITCHENS 

Defendants. 

JAVIER VALDEZ and LARRY C. 

GOFFNEY 

Intervenors 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

IN THE DISTRICT COURT OF 

HAR.RlS COUNTY, TEXAS 

3341!1 JtJDIC!AL DISTRICT 

SupplcmentaJ Response of Texas Stretch, Inc. 

to Plaintiffs' Motion for Partial Summarv Judgment 

PAGE 64/M 

COMES NOW Texas Stretch, Tnc., Defendant in the above-entitled and numbered 

cause, and files its Supplemental Response to Plaintiffs" Motion for Partial Summary 

Judgment as follows: 

I. Introduction 

This is a supplemental response on the issue of whether or not Defendant driver 

Charles Hitchens, Individually, was an employee of Texas Stretch.lnc., at the time of the 

June 15, 2006 multi-vehicle collision made the basis oftlJis suit. 

n. 

The Coll'or ate Representative bas testified that Hitchens was 

the emplovee of Texas Stretch. l nc .. but not of Brewer Leasing. Inc. 

In his deposition on March 13, 2009, the tr.lnseript of which was received after 

the deadline for filing written responses to Plaintiffs' Motion for Partial Summary 

Judgment, General Manager Lonny Box testified by deposition as the corporate 

I 

PLAINTIFF'S 

EXHIBIT 

hs-
64/01/2809 12:53 7132226166 LAW MARVIN PETERSON PAGE 05/0':1 

- representative of Defendant Texas Stretch, Inc. At page 36lines 3 through 12 and at page 

37 lines 19 through 22 of his depositiou Mr. Box testified that Charles A. Hitchens was 

the employee ofTexas Stretch. Inc., and that "any lawyer that says Hitchens is the 

employee of Brewer Leasing, Inc. is wrong." See Exhibit A, excerpts from the 

deposition of Lonny Box. 

Condusion 

Based upon the deposition testimony of its General Manager. Texas Stretch, Inc., 

withdraws its objection to a finding that Defendant Charles A. Hitchens was an employee 

of Texas Stretch, Inc., on June 15, 2006. 

WHEREFORE, PREMISES CONSIDERED, Defendants Texa$ Stretch. Inc. 

respectfully concedes that Defendant Charles A. Hitchens was an employee of Texas 

Stretch, Inc., on June 15, 2006. 

Respectfully submitted, 

LAW OFFICE OF MARVIN PETERSON 

BY: ;:;;~!:;;;-~ TBN: 15846000 

MARY ANN STARKS 

TBN: 19071300 

4611 Montrose Blvd., Suite A2JO 

Houston, Texas 77006 

Tel: 713-222-0004 

Fax: 713-222-0166 

ATTORNEYS FOR DEFENDANT TEXAS 

STRETCH, INC. 

2 
04/ 01/2009 12:53 7132220166 LAW MARVIN PETERSON 

Certificate of Service 

I hereby certify that a true and correct copy of the foregoing has been fozwarded 

to all known counsel of record as indicated below on this the l;t" day of April, 2009: 

Harry Henog 

Herzog & Carp, P.C. 

P.O. Box 218845 

Houston, Texas 77218-8&45 

George Jackson 

Burck, Lapidus & Lanza, P.C. 

5177 Richmond Avenue, Suite 850 

Houston, Texas 77056 

WilliamS. Bush 

Bush & Ramirez, LLC 

24 Greenway Plaza, Suite 1700 

Houston, Texas 77046 

Richard Stucky 

Jim Adler & Associates 

3D/International Tower 

1900 West Loop South, 20th Floor 

Houston, Texas 77027-3214 

Robert L. Ramey 

John Elwood 

Ramey, Chandler, McKinley & Zito 

One Bering Park, 750 Bering, Suite 600 

Houston, Texas 77057 

Mike Hays 

Hays, McConn, Rice & Picketin.g 

1233 West Loop South, Suite 1000 

Houston, Texas 77027 

3 

Via Fax Only: 713-781-4797 

Via Fax Only: 713-622-8054 

Via Fax Only: 713-622-8077 

Via Fax Only: 713-781-2514 

Via Fax Only: 713-266-I 064 

Via Fax Only: 713-650-0027 
04/81/2809 12:53 7132220156 LAW MARVIN PETERSON 

{) \J'-1 \0- I l '1 J I" 

''':~ 

Transcript of the Testimony of 

Lonny Box 

Date: March 13, 2009 

UAR 1 9 2009 

Case: Patterson, et al v. Brewer Leasing, et al · 

' . ·-

HOUSTON REPORTING ~ERVICE 

1010 LAMAR ST., SUITE 1400 

HOUSTON, TEXAS 77002 

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713-739-1421 {FAX) 

Email: houstondepos@earthlink.net 

cc: .honstonproduction@eartblink.net EXHIBIT 

Internet: wwW.houstoncourtreporting.com ~ ft 

. " 

P~Wt 07/ tl':l 
04 / 61 /2069 12:53 7132226166 LAW I•IARVI N PETERSON PAGE 0B/ 09 

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p,.gc 37 Page 39 

Mr. Hit<heru; b an employee C>fBrewer Leesing is wrong. l Q. How much do you gel paid now.M g<r~=l mBnDg<:r? 

Conut1 2 MJUiAYS: Whr.- Jtlstaminutc. Whyis 

MR. PETERSON: Objccti.on, fOtm. 3 that relevant? 

MS. HlLTY: Objection, fonn. I MR. HERZOCT. Well, 1 thi!U und<:r the 600 

MR. IIERZOO: ru - ru change Ute s S<!ries, it's an appropriate question. 

gta.J:nmeT. 6 MIL HAYS: The 600 scri<:s, is that a 

Q. (BY MR. HERZOG) Any lawyer that say• 7 tnlctor or what? Just !cidmng. But why is it relevant? 

Mr. Hitchmu was an employee of B~ Leesine, comma 9 What'•- l'oday. Bccal19Chc doesn't work·· 1 guess .. 

lm>,, is jQst 'l¥l'Cng. Com:ct'l 9 Do you get paid by Texas S!l'elch today'/ 

A. I oan'tan•wcrthat. lO THE WriNESS: y.._ I®. 

Q. Why not? .. ...... Q. (BY MIL HEP..ZOCl) r11 ask that question. Do you 

A. Disruss.ions with my attomcy. 12 get paid by Tt~tes Strct<h now'l 

Q. Okay. 13 A. Yes, I do. 

MR. BAYS: Yon ore free to lll!S....,. anything 14 Q. Hourly? W""""y? Monthly? 

off of document!. I don't wa!ll to lead bim to think ihat 13 A. It'> a yoarly .saluy. 

he can't get a full aoswcr because I don~ wanl him 16 Q. Ol:.ay. And whal is U..t sal3ry? 

filing some motion wit!> tb.c Court. So - l 7 A. llS,OOO. 

• . W111 ~" ··•· ' ? lS Q. Why did Brewa Leasing relinquish m:nc of its 

Q. (BY MR. HERZOG) Sure. Any lawyer that seys 19 operating amhoritr with the United States Department of 

Charles Hitchens was an t131ployec of B!OWer· teax\ng is 20 Transpon.tjrm7 

just wrong? Zl MS. HILlY: Objo:<:tion, form. 

A. C<>nect. 22 A. Ask that, again. pl..ase. 

Q. He was, from lbe day it<> applied for employment 23 Q. (BY MR. HERZOG) Has Brewer Le>sing lost some If 

and ........ hi~ to the day of me wn>ek, an omploycc oi ~ its or rcljnquishc4 scm.c of its opc:nrting authority from 

Texas Stretch? 25 lile United States Department ofTranapoT'o4tion7 

Page 38 Page 40 

MS. HILlY: Objection, form. ~ A,. Brewer Lc:asing didn't have authority with Ute 

J\. Con'ect. z Ullitcd StateS Department ofTnm5ponation. 

Q. (BY MR. HERZOG) Now y<>u indicsted earlier tha 3 Q. Did it bave it with 1X DOT? 

you had goQe back to Texas Snctch en Tuly 26th, 2006. 4 A. Yes. 

That was the da!!o from. your memory? 5 Q. Okay. Has Bnower Leasing :elinquislted some of 

A. That's corn:.ct. & i'-' operating lllllhority witb !X DOT? 

Q. But the 1-9 from for Mr. Hibobcns has you 7 A. Yes, it has. 

sieJ!ing it on behalf of the company and dating it Juoe 8 Q. Why? 

I Oth. Do you sec that? (Hands document) 9 A. Brewer Loosing is a teasin~; company. It was 

MR. PETF •.P..SON: Objection., frmn. 10 formed as a teasing company, and it was my job to go bee 

A. Ycs,ldu. 11 to lhc business plm who! i t wa. CJeaied. It dOCllll't 

Q. (BY MR. HERZOG) Okay. Can you C><PI~in that t 12 n:ed to be o motor carrier. It's tt leasing t:OD'IJ>lUlY· 

mc7 13 Q. Does Texas Stretch still maintl:in an ICC number? 

4.. WeH, 1 was employed at Ametican Water Serviee.s:. 14 A. At this time,. yes. 

I was st:J.r'ting my own compliance n:view company nr.d h 15 Q. Docs Texas Sln:tcn sri!! maintain • Tcltas 

di.sc~$se.d wilh Mr. J:lrnwer ab()Ut doing his eompliancc 16 Department of'l'nuupottation nlltnber? 

J'Cview_ AJ)(I we had entered into an agreement, and l just 17 A. At th~s time, yes. 

began lhat type of work for him. 1 5 Q. /!o.nd do.,. 'tcxos Stretch still m~intain • United 

Q. So yoo were lin employee of Amcrico.n Wal"--r 19 Slates Depfl(tn'lcn.t ofT runsportation nUT1').bq7 

Senriccs in Jane of2006, but you had a side job as a 20 A. At this time. yes. 

eompfia.nee administrator-or comptianoe officer-, and you 21 Q. But Brewer Loosing ha.< given up it3 TX DOT 

were freelancing ro, various companies around town? 22 numbu? 

A. Com:: ct. 23 A. That"; correct. 

Q. Did you make g01ld money a! it? 24 Q. Did Br<wer Leasing hov< a logo, the State of 

A. I didn't -· lt didn't last ve.7 long. 23 Te.><as, with tbo n.amc Brewer Leasing on tOp ofit7 . --· . 

10 (Pages 37 o 40) 

HOUSTON REPORTING SERVICE 

713-739-1400 (FAX) 713-739-1410 
04/01/2009 12:53 7132220166 LAW MARVIN PETERSON PAGE 09/09 

Page 33 

1 Q. Let's take a look at Exhibit I. Do you l 

!?age 35 

Q. ADd you were in-;olved in that? (IDdicating.) 

2 JW)gcizc that? 2 A. TGat's correct. 

3 A. Yes. 3 Q. And 011 behalf of w.hicb company? 

4 Q. What is that? 4 A. T exss Stretch, Inc. 

5 A. ll's llll Application For Employment. 5 Q. Mr. Hilcbens received a Fair Cn:dit Reporting 

5 Q. Bywbo? 5 Act Disclosure Statement 011 April! 0, 2006. 

1 A. Ch8rld Hitcb=. 7 A. Correct. 

9 Q. Who <lid ho want to ~pply for employment with 7 8 Q. Prom which company? 

9 A. T=s Stretch, Incorporated. 9 A. Texas Sftctcb, lac. 

1 o Q. Does &ower Leasing employ any drivm? 10 Q. EverypaycbeckthatMr. aitcb.=~receivc 

was frnm Texas Stretl:b, Jnc. Cotr=? (Indicating.) 

A. C-omd.. 

11 A. No. 11 

12 Q. Does Brewer I..easilla overpay • driver to drive 12 

13 an 18-wbeelerbigrlg? 13 Q. .">ll.d Te.ta9 Stretch, lnc., prepared trunaaction 

14 A. No, notto my knowledgo. l4 reports showing his pl!.}"""..hecka. c~ 

lS Q. Woul.ditbe=ttouythatMr. Rilchcns 15 A. Om-eel. 

16 applied for employrn=l D.ll what dtte? 1 5 Q. On lh~ day of the collision, June IS, 20~, 

Mr. Hitebens was driving a load of fly ash from lhe 

Fayette Power Plant to the Campbdl Concrete in 

Cleve load, T eus. Cornet? (lndicating.) 

1 7 A. 4-10-~. 17 

18 Q. Okay. Aprill0thof2006,Mr. Hitch= applied 18 

19 foremploynu:ntwit~'> TexuS!retth,!nc. Correct? !9 

20 A. Cor=t. 20 A. Com:ct. . 

21 Q. Te:<ai StretCh, Ioc .. die! a preemployment drug 21 Q. ADd according to the bill oflading, who wash 

22 testonJrim. Troe? 22 driving for? 

23 A. Correct. 23 A. Texas Stretch, lm:. 

2 4 Q. Test was done on Aprilll. 2006? 2 4 Q. Ha"" you seen Brewer Leasmg's o.omc in tmy c 

25 A. I dod! aee that. 25 the dot:liDleiJ~ tb.at we jus< discussed with rc&afd to 

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Q. It c:uto£flbe 4, but uy looking right over 1 Mr. Hitcheru' employmc:al? 

!here. flndicatina.) _!2_.........;A~-~N~o:_!.l~i:s:!:ve~not.!!!!:__~-"7"-:-:::----:-:,-- l A. Y cs. ~ Q. Wo-Jb! >""" agr= wilb m.c that 100 perunt of the 

Q. And - ond !hat te.•tsay> dull the eollection ' wrillm documen"'l\on incf.cAtcs !hot Mr. Hil<h<:ni ""''an 

s:ite sddtess w:a& Texas St:n::lch. comma, I.ne:., in 5 cnlf)loyoe ofTexu Srtctch. comme, Inc;.? 

handwritillg, and typed up in Section A, EmployerNamt ~ A. Yeo. 

Corrco:t1 1 MS. HILTY: Objeoti,..,, fonn. 

A. CorreeL a Q. (BY MR. HI!RZOG) Would yo~ agree witll me, os the 

Q. Te<as Streteh did a preemployment license check 9 general mmager of<ho company, thot Mr. Hitchc:.,• was an 

on Mr. B.i«heM. • Motor Vehicle Rocords .. arch. True 10 employu ofTexos Strctc:h, Inc.? A. Com>ot. n MS. Iill. TV: Ol:jeaioo, form. 

Q. A.od it tays the ClU!O!l)et is Texas St7<:t<:b7 LlD2i--~A.nY~ .. 7.1iuiE!I~;c)c;;;;;;;;;;;;;;:-;~-;;;;~ A. Co~Ttct. 13 Q. (BY MR. ) Con you e<plain to me why som. ~ 

Q. Me. Hitchens signed an. Employment Agreement o H peOple. paniculorly lowyers in thio room, have contcndtd 

A.pril10,2006. b lharrighG 15 foryeant:batMr. Hitdl=wucctlmemp~cofTeJW 

A. That's corm:l !6 Srn:IUo, thal m-.1, be wu"" ""'J'I">""' of Browe: 

Q. ADd it S>ys at the top, the very fiutline. :7 Lea1ins? 

Texu St.-eteh, lne. Correct? 18 ~HAYS: Again, to lbo extent that it 

A. Cc.m....:t 19 callt for An)'1t\in.g h•ving communJca1lon;, with the lawyer, 

Q. And witbjn the body of the d:x:umcnt, twice it 20 J jll$lwtntto mmndyro.ycu can~ testify to ic 

refen to Tau Stretch, Inc.? 21 Otherwise, wt.at yw havelook.d 01 u.d what you lt.ve 

A. Correct. 22 rCviewod, youcen on.swc:r. 

Q. Mr. "I:HtchC))S filled out on I-9 Depruttnent of 23 M!l PETERSON: And objoclion, form. 

lU$1ice foan. (Indicating.) Cornet? 24 A. Can't :mswcr. A. Correct. 25 Q. (BY MR. H.ERZOG) Any lawyer that $>J1> 

HOUSTON REPORTING SERVICE 

713-739-14()0 (FAX) 713-739- 1410 

9 (Pages 33 to 36 )