Document RKqmgj3Meq8MKmV6Vv8DRrmE

TO: '<* W. E. OOUGHER, #82 K. C. WEIS, #20 FROM: R. L._ McCLURE, #42 JUDICIAL APPEALS COURT RULING -- SHELL VS. WAXLER (ATTACHED) Do you see that our contract administration guidelines are in harmony with the attached Appeals Court pronouncements? Do we need to consider changing anything we're now doing in light of this ruling? Should we ask Legal for a re-review of our guidelines (opposite this ruling)? RLM/bdr Attachment (16.11) DUP 0501774 DU 001478 VJ&tT re. wrc 454 Tex. 652 SOUTH WESTERN REPORTER, 2d SERIES SHELL OIL COMPANY, Appellant brought on to the land, and maintained, and controlled by the contractor. V. Mitchell V. WAXLER. Appellee. No. i)i_a?_nni(k_rv. Court of Appeals of Texas, Houston. 3. Matter and Sen-ant =*319 Where .a dangerous activity is undap the sole control of the independent contrac tor, any danger arising from that activity is the responsibility of the contractor, not the landowner. March 3, 1983. Rehearing Denied May 12, 1983. Independent contractor's employee sued oil company to recover for personal injuries sustained while working on oil com* pany premises. The 61st District Court, Harris County, Shearn Smith. J., rendered judgment on jury verdict for the employee, and oil company appealed. The Court of Appeals, Evans, CJ., held that: (1) evi dence warranted inference that oil company had assumed joint responsibility with the contractor for safety procedures to be fol lowed by contractor's employees; (2) em ployee was not required to show that oil company failed to warn of the dangerous condition; (3) questioning of oil company's safety representative regarding his duties and whether oil company was obliged to provide employee with a safe plaee to work was not objectionable as calling for legai conclusion; and (4) it was not error to refer jury to the original written instructions in response to inquiry whether contractor and ' oil company were the same. Affirmed. Cohen, J., filed concurring opinion on Motion for Rehearing. L Appeal and Error =*930(3), 989 Tn reviewing no*evidence point, the Court of Appeals considered only the evi dence. and inferences therefrom, which tended to support th judgment ri;,-*. garded all evidence and inferences to the contrary. 2. Negligence 54 As' a general rule, a landowner has no duty to protect employees of an indepen dent contractor from a dangerous condition 4. Negligence =*32(2.8) Landowner has a duty to use reasona bleicare^to^wgT^gSm^^^STOTTiusiness invitees. 5. Negligence 32(2.10) Where a landowner interferes with or intermeddles in a dangerous activity con ducted by an independent contractor, he may be held liable to the contractor's em ployees for injuries resulting therefrom. 6. Negligence-o32(2.10) Where a landowner undertakes joint control with his contractor over a dangerous activity, he may be held responsible, as a joint tort-feasor, to an injured employee of the contractor, even though his control is not exclusive. 7. Negligence =*32(2.10) Oil company was liable for injuries which independent contractor's employee sustained when he was trampled and in jured by eoemployees as they were leaving job site where oil company assumed joint responsibility with contractor lor safety procedures to be followed bv latter*s em ployees working on former's premises. <---------- 8. Appeal and Error *989 In reviewing a no-evidence point, the Court of Appeals does not consider testimony of witnesses which is contrary to~5T~' inconsistent with the jury's findings 9. Negligence =*52, 66(2) Warning of existence of dangerous con dition is not a complete bar ter a plaintiff i recovery in a negligence case and giving of such warning bears only on issue of contributory negligence. 10. Negl Oil ind^enc gerccs i exodcs resaiee it oscld ries bas< the end IL Erid Test, resextat! COBCUSuj called fej not pert tual reh tor, es; eonuaa\ tha af 1 12. Erid Ter engtseer cocuc ha reetdyir marrai.ny prer legal ec only wit. sued for empiore discover It Wit h quesaor had bi firaari 14-Tria Tri- in grria saris: it givag- s three o *gs=st fact-fininra^ IS. Tri TrLtiarifyii a DUP 0501776 DU 001479 Vanned, and ty is under ent contrucst activity is ctor, not the use reaaonasafe for bus;- 1 | ; i( it feres with or activity conontractor, he itractor's emig therefrom. dertakes joint iver * dangerresponsible, as ured employee h his control is le for injuries tor's employee impled and iny were leaving assumed joint :tor for safety by latter's ems premises. 9 dence point, the consider testimo- contrary to or i findings. jf dangerous cott ar to a plaintiff* ase and giving of a issue of ccntrib- SHELL OIL CO. v. WAXLER ausus.wad<M (TtaAcp. i nix- ison Tex. 455 10. Negligence *52 in response to jury inquiry as to whether oil Oil company was not required to warn company and independent contractor were independent contractor's employee of dan one and the same for purpose of suit by gerous condition existing due to hurried contractor's employee for injuries sustained exodus of contractor's employees through on oil company premises as the original restricted areas at end of work day before charge did not contain any glaring errors or it could be held liable for employee's inju confusing instructions. ries based on theory of failure to remedy IS. New Trial as65 the condition. A court is not authorized to set aside a 1L Evidence <^471(28) jury verdict even though the verdict may Testimony of oil company's safety rep have oeen the result of a misinterpretation resentative w-as not objectionable'as a legal of the evideaoe or the charge. conclusion where although some questions called for legal conclusions, the answers did not pertain so much to employer's contrac tual relationship with independent contrac David B. Weinstein, Houston, for appel lant tor, employee of whom was injured on oil John Milutin, Jack Martin, Houston, for company's premises, as to witness' percep appellee. tion of his own job responsibilities. 1Z Evidence 471(30) Testimony of independent contractor's Before EVANS, CJ., and DOYLE and COHEN, JJ. engineer, in response to what oil company could have required contractor to do about rectifying a dangerous condition being OPINION EVANS, Chief Justice: maintained by the contractor on oil compa ny premises, was not objectionable as a legal conclusion where witness testified only with respect to action the oil company, tied for injuries sustained by contractor's Shell Oil Company appeals from a judg ment entered for the plaintiff, Mitchell V. Waxier, in an action to recover damages for personal injuries sustained while working on Shell's premises. The plaintiff, an em employee, would have taken in event it discovered a safety violation. 11 Witnesses 372(2) It was not improper for counsel to question advene witness about whether he had knowledge that his employer had a financial interest in the lawsuit. 14. Trial <*312(1) ' Trial court haj considerable discretion In giving the jury additional instructions to assist it in its fact-finding process and in ployee of Brown Root, Inc., was injured in November 1977, while doing construction work for Brown & Root at a refinery plant owned by Shell in Deer Park, Texas. Shell had contracted with Brown & Root to con struct a portion of the expanded refinery improvements, and Brown & Root had em ployed Waxier as a heavy equipment opera tor. Waxler's complaint against Shell is that it negligently failed to protect him against a dangerous condition on its premises, resulting in his being trampled and se- giving such aid, the court must balance the verely injured by his co-employees as they threat of possible effect of such instructions against its efforts to assist the jury in its fact-finding rale and the court must not invade the jury's fact-finding process. were leaving the Shell job site. Shell filed a cross action against Brown k Root, seeking contribution and indemnity, but took a non-suit of that action prior to 15. Trial 0*312(2) trial. In response to special issues, the jury Trial court was not required to give clarifying instruction, rather. than_direct jury's attention to the original instructions, found that Shell failed to exercise ordinary care in making the premises a safe place for Waxier to work and in failing to inspect the j ' * DUP 0501777 DU 001480 456 Tex. 652 SOUTH WESTERN REPORTER. 2d SERIES premises. The jury also found that such required to enter and exit the job site omissions constituted a proximate cause of through these lanes. Because of the width the occurrence in question; that the man of the lanes, only two employees could enter ner in which the workmen exited the job and exit through a particular lane at the site created a dangerous condition, which same time. Shell maintained; and that Shell either knew, or in the exercise of ordinary care, should have known of its dangerous nature. Th jury further found that Shell had not exercised ordinary care to remedy the dan Upon entry through the specified pas. sageway, each employee would pick up a numbered brass token, which coincided with the number on his hardhat. The employee would keep this brass token with him gerous condition and that its failure to do throughout the day, and would use it to so was also a proximate cause of the occur check out and return the tools necessary for I rence. The jury answered "no" to the issue his work. At the end of each work day, the inquiring whether Shell had failed to give employees were required to exit the job site the plaintiff a warning of the dangerous premises through their designated lanes and 1 condition. In response to the contributory return the brass tokens by placing them in 1 negligence issues, the jury found that Wax a receptacle provided for that purpose. In ier-had been negligent and that his negli this manner Brown & Root was able to g gence was a proximate cause of the occur audit its payroll and account for the daily i rence. The jury also found that Waxler's whereabouts of its employees. This entry, *)1 percentage of negligence was 40% and exit system was called the "Brass Alley" or Shell's was 60%. Based on the jury's ver "Bras* Shacks". i dict, the trial court awarded Waxier the Waxier tatified that the Brown & Root sum of $260,458.14, representing the total employees working at the OP-3 job site a amount of his damages, reduced by 40% of were not permitted to exit through the such sum, and by $29,341.86 which the court Brass Shacks until the whistle signaled the awarded to the intervenor, Texas Employ end of the working day. They were further ers' Insurance Association, on its claim for instructed to remain on the other side of a subrogation benefits. railroad track located some distance from [1] In its first two points of error. Shell the Brass Shacks, until they heard the whis challenges the legal sufficiency of the evi tle According to Waxier, there were at dence, contending that there was no evi least a thousand Brown ic Root employees dence showing that it owed a legal duty to then working at the OP-3 job site, U of protect the plaintiff from the t.vpe of inju whom left the premises at the ame time ries suffered. In reviewing these points of each day. Upon hearing the whistle, this error, we consider only the evidence, and great crowd of people customarily ran from ' )! inferences therefrom, which tend to support the railroad track to the Brass Shacks, the judgment and disregard all evidence through their respective lanes, out through 1 and inferences to the contrary. Gam v. the main gate and into the parking lot. AIviar, 395 S.W.2d 821 (Tex.1965). Waxier testified that on the day in ques At the time of Waxler's injury, he was tion, he started running with the other em working on a construction project at the ployees toward the Brass Shacks, but just Shell OP-3 plant. In order to reach the job before entering his lane, he hesitated to site, Waxier and his co-employees left their automobiles on Shell's parking lot and en tered the plant premises through a gale in a chain link fenc*. A short distance inside avoid colliding with a co-worker who crossed in front of him. This delay caused him to be knocked down by the mass of co-workers trying to get through* the"Brass the gate, Brown & Root had erected and Shack lanes. He was dragged by momen was maintaining seven small buildings or tum of the crowd through the Brass Shacks shacks, separated by lanes about 4 feet in and was trampled by his coworkers between width. All Brown & Root employees were the Brass Shacks and the front gate. He finalFy ir of the w fence, i feredat ities. Waste time be site, he employe* plex kn< Brown , quired fc wsy of E ler, the from tha the CPS quired E orderly K the guar play". V eurity g location, of emplo it was ; i employee I Mr.Hri contractc sdverse that it \ injuries : tractors Shell's e jobs safe project total re: project, running end that ning, he the situa how he h ployees r they exi contact the cone practice d the e tractor t Anothi to make Premises 'S V DUP 0501778 DU 001481 > r 3 1- & h ft m to or ie u r.d in In to iiy ryor oot iite the the her >f a om his: it >'*** 1 of time this `rom scks, ough lot. ques em- just id to who jused ,55 of Bras* jm*n* .hacks tween i. He SHELL OIL CO. v. W'AXLER Qt* u (SI iW-24 454 (TtwAop. I DUC IJ431 Tex. 457 finally managed to drag himself up and out were implementing pro|>cr safety programs. of the way by holding on to the chain link He said that Shell was interested in seeing fence. As a result of this incident, he suf that anything constructed on its premises fered a broken hip and other serious disabil was used in a safe manner and that if a ities. Waxier further testified that prior to the time he began working at the OP-3 job dangerous condition existed, Shell would have ,ivt rectified. Mr. Hruska admitted that he had carlier- in his deposition site, he had worked as a Brown & Root that Shell could order a contractor or con-i employe. .no**, area in the Shell com- tractor's employee off the job for a safety! plex known as CPS. At this location, violation. w---^ Brown & Root employees were also re- Mr. Hruska also testified that Shell secur- quired to enter and leave the job site by " ity guards were charged with closing and way of Brass Shacks, but according to Wax opening the gates that lead to the parking ier, the situation was entirely different area and that Brown & Root employees from that existing at the OP-3 job site. At were required by Shell's security guards to the CPS location, Shell security guards re form orderly lines when exiting the CPS quired Brown & Root employees to form project. He said that he had observed orderly lines while existing the job site, and Brown & Root employees running through the guards prohibited running and "horse the Brass Shacks at quitting time, but that play". Waxier said that although Shell se he had not seen them do this at the OP-3 curity guards were present at the OP-3 area. location, they did not try to control the flow of employees exiting the job site, and that it was an every day occurrence for the employees to run through the Brass Shacks (2,3] As a general rule, a landowner has no duty to protect the employees of an independent contractor from a dangerous condition brought on to the land, and main Mr. Hruska, a Shell safety representative contractor, was called to testify under the advene party rule. This witness stated that it was his duty to keep track of all tained, and controlled by the independent contractor. Strakas v. Gehring, 360 S.W.2d 787 (Tex.1962); She/I Chemical Co. v. Umb. 493 S.W.2d 742 (Tex. 1973). Thus, where a injuries sustained by the employees of con tractors working for Shell and to see that Shell's contractors were performing their dangerous activity is under the sole control of the independent contractor, any danger arising from that activity is the responsibili jobs safely. He said that Shell also had a project engineer on the job site who had total responsibility for all facets of the project, including safety. He stated that running was considered a safety violation, and that if he had observed employees run ning, he would have taken steps to remedy the situation. By way of example, he told how he had once noticed a contractor's em ployees riding two to three on a bicycle as they exited the plant He said that he contacted the employing contractor and told the contractor that Shell considered this practice to be unsafe and that Shell expect ed the contractor to control it. The con tractor then remedied the problem. ty of the contractor, not the landowner. Abtloa v. Oil Development Co. of Texas, 544 S.W.2d 627 (Tex.1976). [4-6] However, a landowner does have a duty to use reasonable care to keep the premises safe for business invitees. Smith v. Henger, 14S Tex. 456. 226 S.W.2d 425 (Tex.1950). Where a landowner interferes with or intermeddles in a dangerous activi ty conducted by an independent contractor, he may be hold liable to the contractor's employees for injuries resulting therefrom. Remuda Oil & Gas v. Sobles, 613 S.W.2d 312 (Tex.Civ.App.--Fort Worth 1981, no writ). Also, where a landowner undertakes joint control with his contractor over a dan " Another part of Mr. Hruska's duties was to make periodic inspections of the job site Premises and to see that the contractors gerous activity, he may be held responsible, as a joint tort feasor, to an injured employ ee of the contractor, even though his con- DUP 0501779 DU 001482 458 Tex. M2 SOUTH WESTERN REPORTER, 2d SERIES trol is not exclusive. See, Baca v. Sand, ages, as measured by the jury's findings on /ns., 600 S.W.2d 840 (Tex-App.--Houston the comparative negligence issue. (1st Dist.] 1980, writ refd n.r.e.). We hold that the evidence is legally suffi [7,8] There was evidence from which the jury could hive reasonably inferred that Shell had assumed joint responsibility with its contractor for safety procedures to be followed by the contractor's employees working on Shell's premises. Although there was also testimony from which the jury could have decided that the Shell had merely monitored its contractors' safety practices and had tried to enlist their coop* eration in adopting appropriate safety pro grams, we are required to consider only that evidence, and the reasonable inferences therefrom, which tend to support the jury's findings. It was the jury's duty to evaluate all of the testimony, and it was within their province to accept that version of the evi dence which it considered most credible. Thus, in reviewing the record to determine the legal sufficiency of the evidence to sup port the jury's verdict, we do not consider testimony of the witnesses which is con trary to or inconsistent with the jury's find ings. Garza v. Alviar, supra. For this rea son, we disregard the testimony of Shell's safety representative contractor, Mr. Hrus ka, to the effect that the only reason Shell's security guards required Brown & Root em ployees to exit the CPS gate in an orderly fashion was so that the guards could inspect the employees' lunchboxes for stolen arti cles. The jury expressly found that the man ner in which the workmen exited Shell's premises constituted a dangerous condition; that Shell maintained this condition and cient to support the jury's findings, and that based upon such findings, the trial court did not err in concluding that Shell was legally obligated to Waxier for injuries he sustained on its premises. Shell's first two points of error are over ruled. [9,10] In its third point of error Shell contends that the trial court erred in enter ing judgment for Waxier because he did not obtain an affirmative finding to the issue inquiring whether Shell had failed to warn him of the dangerous condition. It is Shell's position that Waxier was required to prove that it failed to remedy the danger ous condition and failed to warn othen of its existence. In the absence of proof that Shell breached its duty boOs to remedy and to warn. Shell contends that Waxier did not meet his burden of proof. In support of its position Shell cites Adam Dante Corpora tion y. Sharpe. 483 S.W.2d 452 (Tex.1972); J. Weingarten Inc. v. Barry, 426 S.W,2d 538 (Tcx.1968); and Hams v. Atchison T. & S. F. P.y. Company, 538 F.2d 582 (5th Cir. 1976). A warning of the existence of a danger ous condition no longer constitutes a com plete bar to the plaintiffs recovery in a negligence case, and the giving of such a warning bears only upon the issue of the plaintiff's contributory negligence. . See. Parker v. Highland Park, 565 S.W.2d 512 (Tex.1978); Farley v. H & H Cattle Co., 529 S.W.2d 751 (Tex.1975). The third point of error is overruled. either knew or should have known of its [11,12] Shell's fourth point of error dangerous nature. The jury also found complains of the trial court's admission in that Shell failed to exercise ordinary care in evidence of the testimony regarding the inspecting its premises and in failing to legal duties and obligations of Shell and rectify the dangerous condition; and that Brown & Root. Under this point Shell ar Shell was negligent in failing to provide a gues that a witness may not testify to safe place for Waxier to work. Shell did not object to the form of submission of these issues, and on the basis of the jury's findings, the trial court properly concluded that Shell was liable to Waxier for dam- legal conclusion, citing Carr v. Radkey, 393 S.W.2d 806 (Tex. 1965); Lindley v. lindley, 384 S.W.2d 676 (Tex. 1964), Shell further asserts that the existence of a legal duty i> ' a question of law. See, Abaloe v. Oil Derel- 1976): Clcai-er -. S.W,2d 479 (Tex.Cl. ref'd n.r.e). Shell's safety reMr. Hruska, wis e.v garding his dudes . Shell had an ofcCga;. tiff with a siit pi. witness, Mr. Steven Brown & Root, wax have required Brow rectifying a stag* maintained by tie <r ty- Although soea of Mr. Hruska by Wjv call for legal coccus, by the witness ad r Shell's contractual re and Root, as to the his own job respccsi.' , Hruska's answers to i to support Shell's tiu [ . monitored its caxzn,' and only made siggtors regarding ways t programs. Shed's c Harris's testimoey a testified only wii , Shell would hare ta discovered a safety v independent cottreet; not constitute a -.ega: that the matters c Shell's fourth porct or reversible error, and overruled. Rule 434. In its fifth poicc of that the trial court, error in permittee- a Beer, Mr. Harris, iu t Root had a finance; , - On cross-examicicu if he was aware tmr financial interest a ts ria stated that he was that he had been a; Shell had a "hold carm he did not understand ; oflhat term. He wa nes did this mean a ;. **st4med Shell's ccjec-. *ad the witness <c ac [13] It was not arc jueation the adverse w be had knowledge tea: financial interest a : furniture Co. v. DUP 0501780 DU 001483 i. i on iffiand tritl Shell una ver- Shell .ter1 not issue warn It is ed to igerrs of that / and d not of its pora1972); d 538 &S. i Cir. r.gereomin a uch a jf the iC5.Wy*| id 512 a., 529 rruled. error sion in ig the ill and teil ary to a ey, indie.'* further duty i ' Derel- \ : ' ] i i SHELL OIL CO. v. WAXLER Tex. 459 aitnuas.wjdtM atitApp. i out it optnenC Co. of Texts, 544 S.W.Sd 627 (Tex. (Tex.Civ.App.--Amarillo, 1961, writ refd 1976); Clearer v. Dresser Industries, 570 n.r.e.). The trial court immediately sus S.W.2d 479 (Tex.Civ_4.pp.--Tyler 1978, writ tained Shell's objection to the additional refd n.r.e). question pertaining to the witness' under Shell's safety representative contractor, Mr. Hruska, was extensively questioned re- farding his duties and was asked whether hell had an obligation to provide the plain standing of the legal meaning of a term. There is no indication that the trial court abused its discretion in this respect. Shell's fifth point of error is overruled. tiff with a safe place to work. Another witness, Mr. Steven Harris, an engineer for Brown & Root, was asked what Shell could [14,15] In its final point of error. Shell contends that the trial court erred by its have required Brown- & Root to do about answer to a question received from the jury rectifying a dangerous condition being maintained by the contractor on its proper during its deliberations. The jury sent a note to the trial court, which asked the following question: "Do you see Brown & ty Root and Shell Company as being one and Although some of the questions asked of Mr. Hruska by Waxler's counsel tended to the same or are they separate?*' Over Shell's objection, the trial court sent the all for legal conclusions, the answers given following note back to the jury: "You are by the witness did not pertain so much to instructed to follow the Court's'charge as it Shell's contractual relationship with Brown and Root, as to the witness' perception of has been submitted to poc, and the evidence as you have heard it from the stand." his own job responsibilities. Moreover, Mr. Hruska's answers to these questions tended Shell contends that this note shows that to support Shell's theory that Shell merely monitored its contractors' safety practices and only made suggestions to its contrac tors regarding ways to improve their safety the jury was confused regarding the identi ty of the real party in interest, and it argues that the court should have given the jury a clarifying instruction. programs. Shell's complaint about Mr. Hams's testimony is unfounded because he testified only wi'th respect to the action Shell would' have taken in the event it The trial court has considerable discretion in giving the jury additional instructions to assist it in its fact Hading process. In giving such aid, the court must balance the discovered a safety violation by one of its independent contractors: his testimony did not constitute a legal conclusion. We hold that the matters complained about in threat of the possible effect of such instruc tions against its efforts to assist the jury in its fact finding role. Thus, the trial court must be careful not to invade the jury's Shell's fourth point of error do not present fact finding province. Sirens v. Traveler's reversible error, and that point of error is overruled. Rule 434, Tex.R.Civ.P. ' In its fifth point of error Shell contends that the trial court committed reversible Ins. Co, 563 S.W.2d 223 (Tex.1973). In the instant case the trial court's writ ten charge does not contain any glaring errors or confusing instructions, and it was error in permitting a Brown & Root engi neer, Mr. Harris, to testify that Brown & Root had a financial interest irf the case. not improper for the cost: to refer the jury back to its general written instructions. Id. at 223-229. * On cross-examination. Harris was asked if he was aware that his employer had a financial interest in the lawsuit. Mr. Har ris stated that he was aware to the degree that he had been told by his counsel that Shell had a "hold harmless clause", but that he did not understand the legal implications of that term. He was then asked, "What does did this mean to you? The trial court hatained Shell's objection to the question, ud the witness did not answer. [13] It was not improper for counsel to question the adverse witness about whether h had knowledge that his employer had a financial interest in the lawsuit. Griggs Furniture Co. r. Bulkin, 348 S.W.2ii 867 The specific question asked by the jury did not relate to any error on the face of the charge, and the testimony presented at the hearing on Shell's motion for new trial indicates that the verdict was based solely upon the mental processes and reasoning of the jury. [16] A court is not authorized to set iside a iurv verdict even! t verdict nav have been the result of a misinterore- ation of the evidence or the court's charge. l3amrTTfoustoTT]gS7Jig*^werC^ 58 Tex. 551. 314 S.WJM 826 (Tex. 19581. The sixth point of error is overruled. The trial court's judgment is affirmed. DUP 0501781 DU 001484 460 Tex. 652 SOUTH WESTERN REPORTER. 2d SERIES Concurring Opinion on Appellant's Motion for Rehearing COHEN, Justice. Although I consider the appellant's argu ments in point of error one to be strong based on the facts of this case, I concur in the majority opinion because, as it states, we art reviewing "no evidence" points of error and, therefore, we consider only the evidence and inferences therefrom which tend to support the judgment, and disre gard all evidence and inferences to the con trary. Grass v. AMtr, 395 S.WjJd 821. 823 (Tex.1965). If "insufficient evidence" points of error were presented, we would consider and weigh all the evidence, which, in my opinion, might well call for a differ ent result regarding whether Shell assumed joint responsibility for safety procedures on this project. if found guilty; and (3) defendant failed to show ineffective assistance of counsel. Affirmed. 1. Indictment and Information **167 Where person, place or thing necessary to be mentioned in indictment is described with unnecessary particularity, all circum stances must be proven, and cannot be re jected as surplusage, for they are thus made essential to identity. 2. Indictment and Information =*167 If pleader makes unnecessary allega tions descriptive of identity of offense charged, it is incumbent upon state to es tablish such allegations by evidence. 3. Criminal Law 1144.13(2), 1159.2(3) In criminal case. Court of Appeals' re view of evidence must be in light most favorable to verdict; verdict will be sus tained if there is evidence which, if be lieved, shows guilt of accused. William Douglas PETERS, Appellant, T, The STATE of Texas, Appellee. No. 01-82-0205-CR. Court of Appeals of Texas, Houston. March 10, 1983. Discretionary Review Refused July 13,1983. Defendant was convicted in the 230th District Court, Harris County, Joe Kegans, J,, of aggravated assault, and he appealed. The Court of Appeals, Warren, J., hold that: (1) evidence was sufficient to sustain find ings that defendant pointed rifle at victim and that safety was disengaged when rifle discharged; (2) defendant waived error by making no objection to series of statements made by State indicating that probation would be all that defendant would receive 4. Assault and Battery *92(4) Evidence that defendant, convicted of aggravated assault, pointed rifle at victim, and that when tested, rifle would not dis charge with safety on, no matter how hard trigger was pulled, and that rifle did not malfunction when tested, was sufficient to sustain findings that defendant pointed gun at victim and that safety, was disengaged when rifle discharged. V.T.C.A^ Penal Code 22-OlCaKl). 22.02. 5. Criminal Law 723(1) It is improper argument at guilt-inno cence stage, to ask jury to consider punish ment rather than facta. 6. Criminal Law 723(2) In aggravated assault prosecution, de fendant waived error by making no objec tion to any of series of statements by State which indicated that probation would be ail that defendant would receive if found guilty. 7. Criminal Law o41.13(l) "Right to effective assistance of coun-' sel" does not mean errorless counsel, or counsel judged . counsel reason;!! dering reason!- See publics for other ju, definitions. 8. Criminal La Counsel's s* totality of repn of ineffectiverws firmly founded. 9. Criminal Law An attorney best he can w:counsel might h does not show 10. Criminal La' Defendant l assistance of cour strategy, where vestigated and pr witness present : that he did not ct may or may not ) but was calculi'. CA. Const.Amer. ; Prank Follis, K John 5. Holme: for appellee. Before BASS. 1 JJ. ( WARREN, Jus' A jury found ar ted assault; the < ment at 10 years; et three grounds > In his first gr challenges the su: The indictment a! intentionally ar. ly cause(d] bc-i. ise Lipsey, here by shooting th*. with a firearm. DUP 0501782 Du 001485