In re Michael W. Jewell (Tex.App.- Austin, Jan. 18, 2008)(Waldrop)
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
M E M O R A N D U M O P I N I O N
Michael W. Jewell petitions this Court for a writ of mandamus ordering the judge of the 126th District Court of Travis County to act on motions filed in cause number GN500303, which is pending in that court. Jewell states that the petition was filed in January 2005, citation was served in February 2005, and a motion to dismiss was filed in July 2006. Jewell complains that the district court has taken no action in this matter, but he does not offer documentary support for this complaint or allege that he has ever sought a hearing.
The petition for writ of mandamus is denied without prejudice to refile.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Filed: January 18, 2008
MOTION OR WRIT DENIED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00570-CV
In re Michael W. Jewell--Appeal from 126th District Court of Travis County
Saturday, January 19, 2008
Probate: Will Contest Fails, no forgery, no absence of testamentary capacity
Mark Seth Tomlinson v. The Estate of Jesse Lawhon Theis, Deceased, No. 03-07-00123-CV Tex. App. - Austin, Jan. 17, 2008) (Opinion by Justice Henson) (will contest, multiple wills, claims of forgery, lack of testamentary capacity)
M E M O R A N D U M O P I N I O N
This is an appeal from a summary judgment in a will contest. Eddie L. Albin and Kim Albin applied to probate the last will of Jesse Lawhon Theis, executed in 2004 (the "2004 will"). (1) Appellant Mark Seth Tomlinson filed a contest to the Albins' application and applied to probate an earlier will that Theis had executed in 2000 (the "2000 will"). The issue is whether the trial court erred in granting summary judgment in favor of the 2004 will proponents, Eddie and Kim Albin. On appeal, Tomlinson argues that he had raised genuine issues of material fact by bringing evidence that (1) the 2004 will offered by the Albins was a forgery, (2) Theis lacked testamentary capacity when he executed the 2004 will, and (3) the 2004 will was the result of undue influence. Because summary judgment was properly granted, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Mark Seth Tomlinson appeals the trial court's order granting the motion for summary judgment of appellees Eddie L. Albin and Kim Albin, proponents of a will that Tomlinson contested below. The Albins applied to probate the will of Jesse L. Theis naming them the primary beneficiaries and appointing Eddie Albin as independent executor of Theis's estate. Tomlinson opposed the application on the grounds that the will offered by the Albins was invalid, that Theis lacked testamentary capacity when he executed the will, and that the will was the result of undue influence. Tomlinson then offered for probate an earlier will that Theis had purportedly executed, wherein Tomlinson was made a beneficiary. The trial court ruled in favor of the Albins, granting them summary judgment on all issues. Tomlinson appealed.
Theis died on March 23, 2006. At the time of his death, he was divorced and unmarried. He never had children of his own, but he apparently remained in contact with his ex-wife's sons, David Savanich and Rodney Savanich. In a will executed April 30, 2000, Theis bequeathed to Tomlinson all of his real property located in Schleicher County, Texas, and he devised 65 acres of real property located in Kendall County, Texas to David Savanich and Rodney Savanich. Theis left his residual estate to the three of them in equal shares and appointed Tomlinson as independent executor. In subsequent codicils dated August 30, 2001 and January 29, 2002, Theis removed David and Rodney as beneficiaries and named Word B. Sherrill, Jr., independent executor in place of Tomlinson.
From 2003 to 2004, Theis contemplated further modifications to his will. The record reflects that Theis desired to create a trust "for the preservation of ranch life," leaving all of his property now owned "or hereafter transferred or acquired" to the 4H Club of Texas in honor of his family, "who has for five generations ranched in Texas." (2) At the same time, Theis began negotiating the sale of his 4,877-acre Schleicher County ranch for $2.9 million. (3) Eddie Albin, Theis's real estate agent, was the associate broker representing Theis in the deal.
On October 28, 2004, Theis was admitted to Schleicher County Medical Center exhibiting signs of pneumonia. Theis had previously been diagnosed with and treated for chronic obstructive pulmonary disease and other chronic respiratory problems including emphysema, hypoxemia, and bronchitis, as well as coronary artery disease. When he was admitted, his oxygen saturation was poor and he had difficulty breathing. Theis underwent treatment for pneumonia and remained under observation for several days.
The day after he was admitted, Theis executed a durable power of attorney in favor of Eddie Albin; a medical power of attorney in favor of Kim Albin, who was trained as an emergency medical technician; an advance directive to physicians; and a declaration of guardian designating Kim Albin as guardian of his person and Eddie Albin as guardian of his estate.
On November 2, 2004, while he was still hospitalized and undergoing breathing treatments, Theis requested an absentee ballot to vote in the national and local elections. That same day, Theis signed the closing papers for the sale of the Schleicher County ranch.
On the morning of November 3, 2004, Theis met with attorney James Ash to discuss making a new will. During their four-hour conversation, Theis described in detail his family history, the beneficiaries and gifts made under his previous will, the recent sale of his Schleicher County ranch, his plans to buy replacement property for the purpose of avoiding capital gains tax on the ranch sale through a 1031 exchange, an inventory of his real and personal property, and the arrangements Theis wished to be made for his memorial service, including his desire that Jim Reeves's "Adios, Amigo" be played at his funeral.
That afternoon, a new self-proved will was executed. The 2004 will deleted Tomlinson as a beneficiary; established an educational trust of $500,000 in favor of the children of David Savanich, Rodney Savanich, and Eddie and Kim Albin; and bequeathed the residuary estate to Eddie and Kim Albin in equal shares. It appointed Eddie Albin as independent executor. Present at the execution of the 2004 will were three witnesses, a notary, and Ash.
Also on November 3, Theis entered into an oil and gas lease with the buyer of his Schleicher County ranch, retaining the executive rights on a 1,200-acre parcel.
Two days later, November 5, 2004, Theis was discharged from the hospital.
Sixteen months after he executed the 2004 will, Theis died. Soon afterward, in March of 2006, Eddie Albin applied to probate the 2004 will, attaching the original 2004 will to his application. Albin's application was opposed by Tomlinson, David Savanich, and Rodney Savanich, who alleged that the 2004 will was not a valid and lawful will because (1) Theis did not execute the 2004 will with the formalities required by law; (2) Theis lacked testamentary capacity when he executed the 2004 will; (3) the 2004 will was not executed with testamentary intent; and (4) the 2004 will was a result of undue influence.
Tomlinson then filed an application for probate of the 2000 will and issuance of letters testamentary. (4) In his application, Tomlinson declared that the 2000 will was never revoked but that the original 2000 will had been lost or could not be located. Attached to his application was a photocopy of the 2000 will.
Eddie and Kim Albin moved for summary judgment on the basis that the 2004 will was self-proved under the probate code and no further proof of its due execution was necessary. (5) They alleged that there was no evidence that Theis lacked testamentary capacity and that in fact, the evidence conclusively established that Theis did have testamentary capacity when he executed the 2004 will. They further alleged that there was no evidence of undue influence. In support of their motion, they attached extensive affidavit and deposition testimony from Theis's treating physician and nurses, the three attesting witnesses and the notary present at the signing of the 2004 will, the attorney who drafted the 2004 will, Tomlinson, and David and Rodney Savanich.
In response to the Albins' motion for summary judgment, Tomlinson argued that the 2004 will did not meet the requirements of section 59 of the probate code and was therefore invalid as a matter of law. He also argued that he had raised genuine issues of material fact as to whether the document now offered by the Albins was in fact the document executed by Theis on November 3, 2004. He further alleged that he had produced more than a scintilla of evidence that Theis was not capable of making or executing his will on November 3 because of the seriousness of his medical condition, and that Theis therefore lacked testamentary capacity to execute the 2004 will. Tomlinson did not, however, renew his argument that the 2004 will was the result of undue influence, and he presented no evidence in support of that claim.
The trial court ruled in favor of the Albins on all issues, making the following findings: (1) there was no evidence that the Last Will and Testament signed by Jesse Lawhon Theis on November 3, 2004, is not a valid and lawful will; (2) there was no evidence that the 2004 will failed to comport with the formalities required by law; (3) there was no evidence that the 2004 will was altered or modified after its execution and before its submission to probate; (4) there was no evidence that Theis lacked testamentary capacity at the time the 2004 will was executed; (5) there was no evidence that the 2004 will was the result of undue influence, and furthermore, Tomlinson had conceded this fact; and (6) all prior wills and codicils were revoked as a matter of law by the 2004 will, including the will and codicils offered by the contestant.
On appeal, Tomlinson argues that the trial court erred in granting the Albins' motion for summary judgment, raising points of error with respect to the 2004 will's authenticity, Theis's testamentary capacity, and undue influence.
DISCUSSION
Tomlinson's motion to strike appellees' brief
We address as a preliminary matter Tomlinson's complaint that the Albins' brief violates the rules of appellate procedure for referring to evidence outside the appellate record and including facts that are unsupported by the record.
Page three of the Albins' brief begins, "Although not relevant to the legal analysis before the trial court or this Court, the facts included in the preceding paragraph are taken from Eddie Albin's videotaped deposition testimony, part of which the summary-judgment motion incorporates by reference." In response to Tomlinson's motion to strike their brief, the Albins acknowledge that this Court should ignore the facts included on page three because they were taken from a portion of Eddie Albin's deposition that was not contained in the summary-judgment evidence.
We agree that the background information recited on page three of the Albins' brief is unsupported by the summary-judgment record, and we will therefore strike that page of the Albins' brief. Having reviewed the remainder of the Albins' brief and found it is otherwise in substantial compliance with the rules of appellate procedure, we deny Tomlinson's motion to strike the Albins' brief in its entirety and to order them to rebrief. See Tex. R. App. P. 38.9 ("substantial compliance with this rule is sufficient"). (6)
Standard of review
We review the trial court's grant of summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper only when the movant establishes that there are no genuine issues of material fact to be decided and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a; see also Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 240 (Tex. App.--Austin 2007, pet. denied). In reviewing the grant of summary judgment, we take as true all evidence favorable to the nonmovant, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant's favor. Spiegel, 228 S.W.3d at 240.
A no-evidence summary judgment asserts that there is no evidence of one or more essential
elements of claims upon which the opposing party would have the burden of proof at trial. Duvall v. Texas Dep't of Human Servs., 82 S.W.3d 474, 477 (Tex. App.--Austin 2002, no pet.). It is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
In reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the movant to determine whether more than a scintilla of evidence was presented on the challenged elements of the nonmovant's claim. City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005); Perdue v. Patten Corp., 142 S.W.3d 596, 604 (Tex. App.--Austin 2004, no pet.). We affirm a no-evidence summary judgment if, as to an essential element of the claim or defense identified in the motion, "(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." King Ranch, 118 S.W.3d at 751.
Such a motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); see Jackson v. Fiesta Mart, 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Duvall, 82 S.W.3d at 478. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. Jackson, 979 S.W.2d at 71 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
Construction of the motion
Before addressing the merits, we must first consider whether the Albins' motion was solely a no-evidence motion, as Tomlinson contends, or if it was also a traditional motion for summary judgment. We hold that the Albins' motion was partly a traditional motion for summary judgment and partly a no-evidence motion for summary judgment.
A no-evidence summary judgment motion must allege that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). The Albins, as the proponents of the 2004 will, bore the burden of proving that Theis possessed testamentary capacity when the will was executed. See Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983). Therefore, a no-evidence summary judgment could not have been granted on the issue of testamentary capacity. (7)
The Albins point out that while their motion was entitled "Motion for Final Summary Judgment Under Rule 166a(i)," it clearly raised both no-evidence and traditional bases entitling them to summary judgment. They assert that their motion properly identified the specific grounds for summary judgment by stating that "the evidence conclusively establishes that Mr. Theis did have testamentary capacity when he executed the Will on November 3, 2004," and that this was sufficient to give Tomlinson fair notice of the grounds sought. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993) (motion for summary judgment must state specific grounds therefore); see also Dear v. City of Irving, 902 S.W.2d 731, 734 (Tex. App.--Austin 1995, writ denied) (grounds articulated in motion for summary judgment are sufficient if they give nonmovant fair notice of claim being asserted). They further allege that Tomlinson had actual notice that their motion was based on both no-evidence and traditional bases because his response to their motion states, "Applicants have actually attempted to move on a traditional summary judgment."
Our de novo review of the Albins' motion reveals that although it was labeled a no-evidence motion, it was in fact a traditional motion for summary judgment on the issue of testamentary capacity. In substance, it recognized that the Albins bore the burden of proof on the issue of testamentary capacity, included evidence to conclusively establish that Theis had testamentary capacity when the 2004 will was executed, and identified the appropriate standard of review for determining whether Theis had capacity. See Rodgers v. Weatherspoon, 141 S.W.3d 342, 344 (Tex. App.--Dallas 2004, no pet.) (explaining that court should determine standard of proof on summary-judgment motion after considering substance, rather than categorize motion strictly by form or title).
"When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated." Tex. R. Civ. P. 71; see Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). The supreme court has noted that although it is good practice to use headings "to clearly delineate the basis for summary judgment under subsection (a) or (b) from the basis for summary judgment under subsection (i)," the rule does not require it. Binur, 135 S.W.3d at 651. We will therefore treat the Albins' motion as a hybrid motion where, on the issue of testamentary capacity, they met the higher summary-judgment burden under 166a by conclusively establishing that there existed no genuine issue of material fact.
Alteration or modification of 2004 will
Tomlinson's first issue concerns the authenticity of the 2004 will offered for probate by the Albins. (8) He argues that the trial court erred in granting summary judgment because he had raised a fact issue concerning whether the instrument purporting to be the 2004 will was in fact the will that Theis executed on November 3, 2004, and because he had shown that Eddie Albin had motive and opportunity to modify the 2004 will after its execution.
The act of forgery is defined as altering, making, completing, executing, or authenticating a writing so that it purports to be the act of another who did not authorize the act. See Parker v. State, 985 S.W.2d 460, 463 (Tex. Crim. App. 1999); In re Estate of Flores, 76 S.W.3d 624, 630 (Tex. App.--Corpus Christi 2002, no pet.).
There is no dispute that the 2004 will offered by the Albins was self-proved under the probate code. Therefore, no further proof of its due execution was required, see Tex. Prob. Code Ann. § 84(a) (West 2003), and Tomlinson bore the burden of proof on the issue of forgery. See Green v. Hewett, 54 Tex. Civ. App. 534, 118 S.W. 170 (1909, no writ). To defeat the Albins' no-evidence motion, Tomlinson had to produce summary-judgment evidence raising a genuine issue of material fact in support of his claim that the 2004 will offered for probate had been forged. See Tex. R. Civ. P. 166a(i).
Tomlinson asserts that the summary-judgment proof he attached to his response raises a fact issue as to whether the document purporting to be the 2004 will is in fact the same document that Theis executed on November 3, 2004.
As evidence that "[s]uspicious circumstances abound the execution of [the 2004] will," Tomlinson cites Eddie Albin's statement that Albin kept the original of the 2004 will after its execution on the afternoon of November 3, 2004, until he placed it in a safety deposit box the next day. Tomlinson also attached testimony from Jim Ash, the lawyer who drafted the 2004 will and was present at its execution. Ash testified that he was first contacted by Theis from Eddie Albin's cell phone. He also testified at length as to his November 3, 2004 conversation with Theis concerning how Theis wished to devise his property and how the contents of the 2004 will reflected those wishes. He further stated that the pages of the original 2004 will were not stapled together, that he did not have Theis initial each page of the will, and that he delivered the original 2004 will to Eddie Albin after it was executed. (9) Finally, Tomlinson points to the testimony of Cheryl Forlano, one of the three attesting witnesses to the 2004 will, who stated that she thought the will had been stapled together and that Theis had initialed it in a few places. (10)
On this record, the trial court found that there is "no evidence that the 2004 will was altered or modified after being executed by the Testator and before being submitted for probate." We agree.
Our review of the entire record shows that Tomlinson's claim that "Eddie Albin had motive and opportunity to tamper with the will before submitting it to probate" is based on nothing more than Tomlinson's subjective beliefs and suspicion. The testimony Tomlinson cites indicating that Ash drafted the will in the Albins' kitchen, printed the will using the Albins' printer, and was initially contacted by Theis on Eddie Albin's cell phone is not evidence that raises genuine issues of material fact regarding the authenticity of the will the Albins submitted for probate. (11) At most, it amounts to a "mere surmise or suspicion" of forgery and does not constitute more than a scintilla of evidence sufficient to create a fact issue. See Jackson, 979 S.W.2d at 71.
Nor is the discrepancy between Ash's and Forlano's testimony concerning whether the 2004 will had been stapled and initialed sufficient to raise a genuine issue of material fact. Forlano's statements do not support Tomlinson's assertion that she "unequivocally testified that the original document which she signed and which was initialed and signed by Jesse Theis, was stapled together." Rather, Forlano testified that she had no way of knowing whether the pages submitted by the Albins as Theis's 2004 will were the same pages that accompanied the document she had witnessed on November 3, 2004, and that she could "not say for certain" whether Theis had in fact initialed the will.
In claims or defenses supported only by meager circumstantial evidence, the evidence does not rise above a scintilla if the fact-finder would have to guess whether a vital fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). When the circumstances are equally consistent with either of two facts, neither fact may be inferred. City of Keller, 168 S.W.3d at 813. In such cases, we must view each piece of circumstantial evidence, not in isolation, but in light of all the known circumstances. Id. at 813-14. When the circumstantial evidence of a vital fact is meager, "a reviewing court must consider not just favorable but all the circumstantial evidence, and competing inferences as well." Id. at 815.
For the fact-finder to arrive at the conclusion that the 2004 will offered by the Albins is a forgery, he would have to guess that the Albins removed the 12 pages comprising the testamentary provisions of the will, made changes to the bequests that Theis had originally intended to make under that instrument, and then reattached the forged pages to the pages that Theis and the other witnesses had signed. There is no evidence in the record that would support such a hypothesis. Furthermore, Forlano's remarks are equally consistent with a conclusion that she could not in fact remember whether the 2004 will had been initialed and incorrectly believed it to have been stapled as with an inference that the Albins had committed forgery. The court had no evidence before it suggesting that the Albins had committed any wrongdoing or that the Albins had motive to alter the will that Theis executed on November 3, 2004.
On the contrary, Ash's uncontroverted testimony established that the property dispositions Theis expressed to him on November 3 were accurately reflected in the 2004 will that the Albins offered for probate. Ash testified that he met with Theis for several hours on the morning of November 3, and that during that conversation, Theis said that he wanted to give his property to Eddie and Kim Albin and name Eddie Albin as administrator and trustee in his will. Ash also testified that Theis wanted to create an educational trust of $500,000 for the Savanich and Albin children. These are the very same testamentary gifts contained in the instrument offered for probate by the Albins.
In light of these circumstances, Forlano's testimony cannot support a reasonable inference that the Albins altered or modified the original 2004 will because it does not rise above a scintilla. Tomlinson, by piecing together what he personally views as "suspicious circumstances" before and after the execution of the 2004 will, has not met his burden of bringing forward evidence that raises a genuine issue of material fact. As the supreme court has declared, "some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence." King Ranch, 118 S.W.3d at 755 (quoting Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993)).
Therefore, even after viewing all of the evidence in the record in the light most favorable to Tomlinson, we are not convinced that his assertion of forgery is based on anything more than conjecture, and we hold that the trial court did not err in granting summary judgment on this ground.
Testamentary capacity
In his second issue, Tomlinson argues that the trial court erred in granting summary judgment on the ground that Theis had testamentary capacity when he executed the 2004 will. We consider whether the trial court erred in granting the Albins' motion on this issue in light of our de novo standard of review. Essentially, the question we must decide is whether the trial court properly recognized that the Albins' motion was in fact a traditional summary-judgment motion on this issue, although the judgment states, "There is no evidence that at the time of the execution of the will that Mr. Theis lacked testamentary capacity." We hold that summary judgment was properly granted because, as to Theis's testamentary capacity, the Albins established that there were no genuine issues of material fact to be decided and that they were entitled to judgment as a matter of law.
Tomlinson brings several challenges to the trial court's finding that there was no evidence that Theis lacked testamentary capacity when he executed the 2004 will. Specifically, he alleges that (1) no-evidence summary judgment was improper because the Albins had the burden of proof on the issue of testamentary capacity; (2) the evidence the Albins offered could not be considered in a no-evidence motion; (3) testamentary capacity is not an issue that can be conclusively established as a matter of law because opinion testimony cannot establish a material fact; and (4) more than a scintilla of evidence exists regarding Theis's lack of testamentary capacity. However, the only argument Tomlinson raised prior to this appeal was his assertion that he had presented more than a scintilla of evidence creating a genuine issue of material fact that Theis lacked testamentary capacity. The record demonstrates that Tomlinson failed to present all but this argument to the trial court, and therefore his other arguments are waived for the purposes of appeal. See Perez v. Blue Cross Blue Shield of Tex., Inc., 127 S.W.3d 826, 835 (Tex. App.--Austin 2003, pet. denied).
The Albins' motion aptly recognized that they bore the burden of proof on this issue, and they attached to their motion extensive evidence that Theis had testamentary capacity in order to establish that they were entitled to judgment as a matter of law.
Dr. James Lucas, Theis's treating physician in 2004 and 2005, testified that when Theis was admitted to the hospital on October 28, 2004, his neurological condition was evaluated and he was found to be alert and oriented when he entered the hospital. Dr. Lucas stated that, for the duration of his hospital stay from October 28 to November 5, 2004, Theis was never found to be disoriented and that Theis never exhibited dementia, a lack of familiarity with his surroundings, impaired judgment, signs of depression, or a decline in cognitive skills; rather, Theis appeared to be mentally alert at all times. Dr. Lucas also testified that, as a sufferer of emphysema and chronic lung disease, Theis had become acclimated to functioning with less oxygen, and that on November 3, 2004, Theis's condition "had improved considerably." He testified that Theis's oxygen saturation as of November 3 was 82 percent, which "is considered good, especially in Jesse's case."
Cheryl Forlano, a nurse at Schleicher County Medical Center who observed Theis and regularly checked his status, testified that Theis was alert and oriented at all times during his 2004 hospitalization. She further testified in her capacity as an attesting witness that on November 3, 2004, Theis was mentally alert and seemed to fully understand that he was executing his will.
The two other attesting witnesses, Jeanne Snelson and Helen Brame, and the notary present at the execution of the 2004 will, Vera Bradshaw, all stated that Theis was mentally alert and appeared competent to execute his will on November 3.
James Ash, the attorney who prepared the 2004 will, testified as to Theis's behavior and alertness during their conversation when they discussed Theis's property and affairs and during the actual execution of the 2004 will. Ash noted that while he was with Theis in the hospital room on November 3, Theis's ranch foreman came to ask Theis for directions concerning the management of the ranch, and Ash stated that he believed Theis was still conducting the business of the ranch from his hospital room. Ash testified that, during their conversation on the morning of November 3, Theis discussed his family history, his assets, the nature of his estate, and his testamentary wishes for the disposition of his real and personal property. (12) Ash recalled that during the afternoon when the 2004 will was executed, Theis appeared to be in good health and was sitting upright and talking, Theis recognized each of the witnesses and engaged in conversation with them, and Theis stayed focused on the conversation the entire time and remained interested in what was going on.
Ash further testified that, in the presence of the witnesses, he asked Theis the following questions: Is anyone forcing you to do this will? Does the will do exactly what you want to do? Could anyone force you to sign a will you do not want to sign? Do you still manage your affairs and your property? Are you aware of the objects of your estate and the people who might inherit under your will? Ash then stated, "With regard to the first question, anyone -- is anyone forcing you to do this will, he responded no. Does this will do exactly what you want to do, his response was yes. Could anyone force you to sign a will you do not want to sign, he responded no. You still manage your affairs and your property, he said yes. And are you aware of the -- the persons, the objects that would inherit from you, he said yes."
The Albins also attached to their motion Mark Tomlinson's deposition, wherein he stated that he was aware Theis had entered into a contract to sell his ranch in Schleicher County, he had no objection to that sale, and he felt Theis had the mental capacity to enter into that agreement.
This evidence supports a conclusion that on November 3, 2004, Theis had testamentary capacity because he possessed sufficient mental faculties to understand he was making a will, the effect of making a will, the general nature and extent of his property, and the natural objects of his bounty, and he possessed the ability to consider the business to be transacted and to form a reasonable judgment about it. See Reding v. Eaton, 551 S.W.2d 491, 492 (Tex. Civ. App.--Austin 1977, no writ); see also Bracewell v. Bracewell, 20 S.W.3d 14, 19 (Tex. App.--Houston [14th Dist.] 2000, pet. denied); Chambers v. Chambers, 542 S.W.2d 901, 906 (Tex. Civ. App.--Dallas 1976, no writ).
In response to the Albins' motion for summary judgment, Tomlinson presented testimony from Carolyn Savanich, David Savanich's wife, who stated that following Theis's discharge from the hospital, "something was not right with Jesse that week." She said that Theis called her on November 8 and told her to "send David now." She responded that David was at work, to which Theis said, "You don't understand, Carolyn. I sold the ranch. I signed the paper." And further, "I sold the ranch. They brought me more papers to sign. I'm afraid I signed them. Everything is furry, everything is blurry, and I am all confused. Send someone now."
Tomlinson also submitted an affidavit from Dr. Michael R. Arambula, M.D., Pharm.D., and certified forensic psychiatrist. Dr. Arambula testified that, after reviewing Theis's medical records, admission summaries, and discharge summaries dating back to 2003, he was of the opinion that Theis's cognitive function was impaired on November 3, 2004. In his report, he concluded that Theis "was not compliant with his treatment regimen even if it jeopardized his health and convalescence." His conclusions before the trial court are as follows:
From a mental health perspective, the information in Mr. Theis' medical records infer how impaired his cognitive function was. Records repeatedly describe that he was unable to follow basic treatment recommendations which would have alleviated his uncomfortable and sometimes dangerous symptoms. His actions - or lack of - call attention to the likelihood that he could not attend to, retain, and put into use the information which would have diminished his distress. The ability to do something - by cause and effect - in order to alleviate physical discomfort is one of the most basic cognitive tasks an individual can exercise. Mr. Theis' apathetic responsiveness therefore implies that he had significant Executive Dysfunction. Executive Function is akin to Frontal Lobe Function in the brain. Therein lays the heart of decision-making. Amidst this backdrop of significantly compromised Frontal Lobe function, I therefore do not believe that Mr. Theis would have possessed sufficient cognitive skills coincident with testamentary capacity, or to resist the coercive influence of others who did not have his best interests at heart.
The Albins objected to Dr. Arambula's report, asserting that it was not competent summary-judgment proof because it was simply a conclusory affidavit lacking the essential requirements necessary to be admissible evidence. Specifically, they complained that his affidavit failed to set forth such facts as would be admissible in evidence to affirmatively show that the affidavit is competent to the matters stated therein.
The trial court granted the Albins' summary judgment motion on the ground that Theis had testamentary capacity when he executed the 2004 will.
In reviewing whether the trial court erred in determining that Theis possessed testamentary capacity, our inquiry is focused on "the condition of the testator's mind on the day the will was executed." See Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968). If there is no direct testimony of acts, demeanor, or condition indicating that the testator lacked testamentary capacity on the date of execution, the testator's mental condition on that date may be determined from lay opinion testimony based upon the witnesses' observations of testator's conduct either prior or subsequent to the execution. Id. However, that evidence has probative force only if some evidence exists demonstrating that the condition persisted and had some probability of being the same condition that existed at the time the will was made. Id. Thus, to successfully challenge a testator's mental capacity with circumstantial evidence from time periods other than the day on which the will was executed, the will contestants must establish that (1) the evidence offered indicates a lack of testamentary capacity; (2) the evidence is probative of the testator's capacity (or lack thereof) on the day the will was executed; and (3) the evidence provided is of a satisfactory and convincing character, because probate will not be set aside on the basis of evidence that creates only a suspicion of mental incapacity. See Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.--Fort Worth 1998, no pet.).
Here, the Albins did present direct testimony of Theis's acts, demeanor, and condition on the day his will was executed. Dr. Lucas, Theis's treating physician, testified that Theis's neurological condition was examined, and he determined that Theis did not suffer from any disorientation or confusion on the day he executed his will or at any other time during his hospitalization. He also explained that, in spite of Theis's breathing difficulties when Theis was first admitted to the hospital, his oxygen saturation was much improved by November 3. Nurse Forlano's testimony also indicated that Theis was mentally alert and aware of what was going on while he was in the hospital, as did the testimony of the other witnesses to the execution of the 2004 will. James Ash testified that on the morning he met with Theis to discuss drafting a new will, Theis appeared to be healthy and was able to discuss with him the nature and extent of his estate, identify all of his surviving relatives, and indicate who stood to inherit from him.
Furthermore, Ash stated that when it came time to execute the will, Theis was alert and conscientious of what was taking place, and he recognized each of the witnesses and engaged in conversation with them. Theis was also apparently competent to continue managing his business affairs and to execute several legal documents on or around the day he executed the 2004 will--including the $2.9 million real estate contract, which Tomlinson agreed Theis was mentally competent to execute on November 2, the day before Theis executed the 2004 will.
Having failed to rebut the testimony of Dr. Lucas, James Ash, or any of the disinterested witnesses to the signing of the 2004 will, Tomlinson instead cites to the testimony of Carolyn Savanich, who was not present in the hospital when the will was executed. She testified that, according to a phone conversation she had with Theis five days after the will's execution, Theis was "confused" about what he had done. Theis purportedly told Carolyn that he "sold the ranch" and "signed the paper," apparently referring to the real estate deal that Theis entered into on November 2. Having already conceded that Theis had the capacity to execute the real estate contract, however, it is unclear how Carolyn's statement is evidence indicating that Theis subsequently lacked testamentary capacity when he executed his will the day after the ranch sale. Moreover, five days had elapsed between the time that Theis contacted Ash and asked him to draw up a new will and the time at which Theis told Carolyn, "They brought me more papers to sign. I'm afraid I signed them." Tomlinson did not establish how this latter statement is probative of Theis's capacity when he executed the will five days earlier.
Even taking Carolyn's testimony as true and indulging every reasonable inference that can be drawn from Theis's statements to her, at most we can conclude that on November 8, Theis was confused or mistaken about what he had done prior to that date. This is not evidence, however, that Theis lacked testamentary capacity on November 3, and if he did indeed suffer from any later bouts of confusion, he appears to have executed the 2004 will during an episode of clarity. "Even people of admitted unsound mind may have lucid intervals, and in such lucid interval be possessed of testamentary capacity." Estate of Grey, 279 S.W.2d 936, 939 (Tex. Civ. App.--El Paso 1955, writ ref'd n.r.e.).
The trial court also reviewed the affidavit of Dr. Arambula, which Tomlinson claims is evidence that Theis lacked testamentary capacity when he executed the 2004 will. The court examined Dr. Arambula's affidavit and determined that "Dr. Arambula's opinions are merely conclusions lacking in essential requirements necessary to be admissible evidence."
A conclusory statement of an expert witness is insufficient to create a question of fact to defeat summary judgment. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003). Indeed, Dr. Arambula's affidavit draws a conclusion that Theis had "significant [e]xecutive [d]ysfunction," but fails to establish which records "repeatedly describe" Theis's inability to follow basic treatment recommendations, which action or inaction by Theis calls attention to his impaired cognitive function, and upon what factual basis he determined that Theis exhibited "apathetic responsiveness."
"If an expert's opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded." City of Keller, 168 S.W.3d at 813. Evidence that fails to meet reliability standards is rendered not only inadmissible but incompetent as well. Id. Thus, "evidence that might be 'some evidence' when considered in isolation is nevertheless rendered 'no evidence' when contrary evidence shows it to be incompetent" and such contrary evidence cannot be disregarded. Id.
In our review of the record, we have found only the following evidence upon which we could assume Dr. Arambula's conclusions are based: (1) Dr. Lucas's testimony that when Theis received breathing treatments "at 2 liters a minute through nasal prongs," sometimes Theis "would leave [the nasal prongs] on and sometimes he wouldn't. And when he wouldn't, the nurses would go in, get after him, put it on. He'd take [them] off during the night, sometimes during the day. He just didn't like to wear [the nasal prongs]"; (2) testimony from nurse Cheryl Forlano, who stated that Theis "was somewhat noncompliant about his health care, so he had -- you know, he was frequently in the hospital because he smoked"; and (3) the affidavit of Word Sherrill, Jr., a real estate broker who had done business with Theis, who stated that Theis "did not take good care of himself."
To hold that this evidence is sufficient to raise a fact question would lead to the absurd result of calling into question the testamentary capacity of anyone who acts in contravention to his doctor's orders. The fact that Theis continued to smoke, despite suffering from chronic pulmonary disease and emphysema, or that he removed his nasal prongs because he did not like to wear them, does not support a conclusion that Theis suffered significant executive dysfunction, particularly in light of the evidence presented by the Albins showing that Theis did in fact have testamentary capacity when he executed the 2004 will. The legal effect of Dr. Arambula's affidavit is that it constituted no evidence of Theis's lack of testamentary capacity.
We hold that the trial court did not err in granting summary judgment on the ground that Theis had testamentary capacity when he executed his will on November 3, 2004.
Undue influence
In his final issue, Tomlinson argues that the no-evidence motion cannot support the judgment as a matter of law because it fails to list any element of undue influence on which the Albins contend there is no evidence. Tomlinson did not present this issue to the trial court for ruling, but instead he raises it for the first time on appeal.
When a summary judgment is attacked as lacking specificity, a special exception is required. Franco v. Slavonic Mut. Fire Ins. Ass'n, 154 S.W.3d 777, 784 (Tex. App.--Houston [14th Dist.] 2004, no pet.); see also McConnell, 858 S.W.2d at 342 (stating in dictum that "an exception is required should a non-movant wish to complain on appeal that the grounds relied on by the movant were unclear or ambiguous"). The excepting party must obtain a ruling on the special exception to preserve the issue for appeal. Franco, 154 S.W.3d at 784. Because Tomlinson failed to do so, we cannot consider his complaint on appeal as grounds for reversal. See id. at 784-85. Furthermore, Tomlinson presented no evidence that the 2004 will was the result of undue influence, and in fact he conceded that Theis was not unduly influenced in executing the 2004 will before the trial court. We therefore hold that summary judgment was properly granted on the issue of undue influence.
CONCLUSION
Because Tomlinson failed to raise a genuine issue of material fact that the 2004 will was a forgery, that Theis lacked testamentary capacity when he executed the 2004 will, or that the 2004 will was the result of undue influence, the trial court did not err in granting summary judgment in favor of the Albins. We therefore affirm the judgment of the trial court.
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: January 18, 2008
1. Eddie L. Albin is the independent executor named in the 2004 Last Will and Testament of Jesse Lawhon Theis. Although the record filed in this Court does not indicate that the 2004 will was admitted to probate, the Albins responded as appellees on behalf of the Estate, and the filings of the parties represent that they are entitled to do so.
2. James Kosub, the lawyer who drafted Theis's 2000 will and its subsequent codicils, was also retained to create the trust in favor of the 4H Club providing that Theis's property would continue to be operated as a ranch "for as long as possible" after Theis passed away. However, despite numerous drafts and extensive revisions, the charitable trust was never executed.
3. The contract provided that Theis would be assigning the property to an intermediary in order to perfect a non-simultaneous, tax-free exchange under section 1031 of the Internal Revenue Code.
4. The original application for probate of the 2000 will was filed by Tomlinson, David Savanich, and Rodney Savanich. However, the amended application to probate the 2000 will and the amended opposition to probate the 2004 will omitted David Savanich and Rodney Savanich as parties, and they are not parties to this appeal.
5. A dispute exists as to whether the Albins filed solely under Texas Rule of Civil Procedure 166a(i) or whether they also filed a traditional motion for summary judgment. We address this issue in the discussion below.
6. Our review of the record further reveals that a number of statements in Tomlinson's brief are likewise unsupported by the record and in some instances contradict the summary-judgment evidence that Tomlinson cites in support of his position. Accordingly, we will disregard any and all unsupported and erroneous conclusions that either party invites us to make in determining the issues Tomlinson now raises on appeal.
7. Tomlinson raises this argument for the first time on appeal. In his response to the Albins' motion for summary judgment, Tomlinson argued only that the Albins bore the burden of proving that the 2004 will was validly executed. He did not argue that the Albins also bore the burden of proof on the issue of testamentary capacity, thereby precluding them from moving for no-evidence summary judgment on that issue.
8. In response to the Albins' motion for summary judgment, Tomlinson had challenged both the 2004 will's authenticity and its compliance with section 59 of the probate code. On appeal, he no longer contests whether the 2004 will complies with the probate code on its face, but argues only that the will is "invalid" because there is more than a scintilla of evidence that the 2004 will is a forgery. Therefore, we understand his only challenge to the 2004 will's "validity" to be his assertion that "the document Albin submitted for probate as Theis's Last Will and Testament of November 3, 2004, is not the same document that Theis signed while he was in the hospital."
Tomlinson also complains within his challenge to the "validity" of the 2004 will that the Albins did not attach a copy of the 2004 will to their motion for summary judgment. He cites Hudson v. Hopkins, 799 S.W.2d 783 (Tex. App.--Tyler 1990, no pet.) for the proposition that where parties dispute the validity of a will not admitted to probate, a copy of the will should be attached to the motion for summary judgment as evidence. However, the Hudson court actually held that because a copy of the contested will in that case was on file with the trial court at the time of the summary-judgment hearing, the trial court could properly use the will as evidence for the summary judgment, and the movant was not required to attach a copy of the will to the motion for summary judgment. Hudson, 799 S.W.2d at 785. In this case, both parties have stipulated that the 2004 will was filed with Eddie Albin's application in March of 2006, and therefore it need not have been separately attached to the Albins' motion for summary judgment.
9. Tomlinson incorrectly cites the record as indicating that Ash delivered the original document to Albin, but that Ash "did not maintain a copy" himself. In fact, the undisputed summary-judgment evidence demonstrates that Ash kept the electronic version of the will on his laptop computer, and he delivered the signed original to Eddie Albin--at Theis's request--for Albin to place in a safety deposit box. Nor did Ash testify that he drafted the will on Albin's computer, as Tomlinson claims; rather, Ash stated that he drafted the will on his own laptop computer in Albin's kitchen after meeting with Theis at the hospital and then printed the will for signature on Albin's printer. These facts do not support Tomlinson's assertion that "therefore any modifications by Mr. Albin would have been in the exact same type as the original."
10. Forlano testified as follows:
[On cross-examination]
Q. And then after the papers were arranged, is that when [Ash] handed the document to Mr. Theis for him to page through?
A. Yeah. When he was ready, he -- he handed [the will] to Jesse, and Jesse looked through it, initialed a few places, and I believe he signed it at that time. And then he handed it -- set it back on the table and showed us all where to sign. And we filed through and signed where we were supposed to.
Q. Do you remember whether or not the papers that composed the will that -- that you signed were stapled together?
A. Yes, they were.
Q. And were they stapled with a single staple?
A. I can't say. Probably, but...
. . .
[On recross-examination]
Q. Mrs. Forlano, you -- you don't know, do you, whether or not the first twelve pages of that instrument were attached to the last three pages on the day that Mr. Theis signed it, do you?
A. Well, I know that when we -- when we signed it, they were -- you know, the whole will was stapled together, but I mean I couldn't verify that --
. . .
Q. And your initial recollection when you were asked about whether or not Mr. Theis initialed pages was that he had in two or three places; is that correct?
A. That is correct. I'm trying to remember. I'm trying to think about what went on that day. I remember him paging through it. I believe he initialed it in a couple of places, but I cannot say for certain. . . .
11. Tomlinson includes additional factual allegations in his brief that we need not consider, either because they are not supported by the record or contradict the evidence in the summary-judgment record. See Tex. R. App. P. 38.1(f). Among these are assertions that "Theis's long-time acquaintances had never heard of Eddie Albin," that Tomlinson was Theis's "lifelong friend and mentee," that Eddie Albin "presumably earned less than a 1% commission" on the sale of Theis's Schleicher County ranch, and that Ash prepared the 2004 will "using software both he and Albin had access to."
12. Ash's testimony as to his conversation with Theis was extensive. He recalled that, after visiting with Theis about the engagement letter to make sure that Theis understood Ash was representing him, he and Theis spent the next four hours discussing matters related to Theis's new will. He testified at length as to Theis's statements regarding his adopted family, including the Theis family history going back to the 1860s; the specific gifts Theis wished to make to the Savanich and Albin children, as well as his niece in Florida (which, later in the conversation, he decided to revoke in favor of creating an educational trust for the children, excluding his niece); Theis's failed attempt to set up a charitable trust in favor of the 4H Club aimed at carrying on the ranching tradition of his family; and the 1031 exchange he was in the process of perfecting to avoid capital gains tax on the sale of his Schleicher County ranch.
AFFIRMED: Opinion by Justice Henson (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00123-CV
Mark Seth Tomlinson v. The Estate of Jesse Lawhon Theis, Deceased
Appeal from County Court of Schleicher County
M E M O R A N D U M O P I N I O N
This is an appeal from a summary judgment in a will contest. Eddie L. Albin and Kim Albin applied to probate the last will of Jesse Lawhon Theis, executed in 2004 (the "2004 will"). (1) Appellant Mark Seth Tomlinson filed a contest to the Albins' application and applied to probate an earlier will that Theis had executed in 2000 (the "2000 will"). The issue is whether the trial court erred in granting summary judgment in favor of the 2004 will proponents, Eddie and Kim Albin. On appeal, Tomlinson argues that he had raised genuine issues of material fact by bringing evidence that (1) the 2004 will offered by the Albins was a forgery, (2) Theis lacked testamentary capacity when he executed the 2004 will, and (3) the 2004 will was the result of undue influence. Because summary judgment was properly granted, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Mark Seth Tomlinson appeals the trial court's order granting the motion for summary judgment of appellees Eddie L. Albin and Kim Albin, proponents of a will that Tomlinson contested below. The Albins applied to probate the will of Jesse L. Theis naming them the primary beneficiaries and appointing Eddie Albin as independent executor of Theis's estate. Tomlinson opposed the application on the grounds that the will offered by the Albins was invalid, that Theis lacked testamentary capacity when he executed the will, and that the will was the result of undue influence. Tomlinson then offered for probate an earlier will that Theis had purportedly executed, wherein Tomlinson was made a beneficiary. The trial court ruled in favor of the Albins, granting them summary judgment on all issues. Tomlinson appealed.
Theis died on March 23, 2006. At the time of his death, he was divorced and unmarried. He never had children of his own, but he apparently remained in contact with his ex-wife's sons, David Savanich and Rodney Savanich. In a will executed April 30, 2000, Theis bequeathed to Tomlinson all of his real property located in Schleicher County, Texas, and he devised 65 acres of real property located in Kendall County, Texas to David Savanich and Rodney Savanich. Theis left his residual estate to the three of them in equal shares and appointed Tomlinson as independent executor. In subsequent codicils dated August 30, 2001 and January 29, 2002, Theis removed David and Rodney as beneficiaries and named Word B. Sherrill, Jr., independent executor in place of Tomlinson.
From 2003 to 2004, Theis contemplated further modifications to his will. The record reflects that Theis desired to create a trust "for the preservation of ranch life," leaving all of his property now owned "or hereafter transferred or acquired" to the 4H Club of Texas in honor of his family, "who has for five generations ranched in Texas." (2) At the same time, Theis began negotiating the sale of his 4,877-acre Schleicher County ranch for $2.9 million. (3) Eddie Albin, Theis's real estate agent, was the associate broker representing Theis in the deal.
On October 28, 2004, Theis was admitted to Schleicher County Medical Center exhibiting signs of pneumonia. Theis had previously been diagnosed with and treated for chronic obstructive pulmonary disease and other chronic respiratory problems including emphysema, hypoxemia, and bronchitis, as well as coronary artery disease. When he was admitted, his oxygen saturation was poor and he had difficulty breathing. Theis underwent treatment for pneumonia and remained under observation for several days.
The day after he was admitted, Theis executed a durable power of attorney in favor of Eddie Albin; a medical power of attorney in favor of Kim Albin, who was trained as an emergency medical technician; an advance directive to physicians; and a declaration of guardian designating Kim Albin as guardian of his person and Eddie Albin as guardian of his estate.
On November 2, 2004, while he was still hospitalized and undergoing breathing treatments, Theis requested an absentee ballot to vote in the national and local elections. That same day, Theis signed the closing papers for the sale of the Schleicher County ranch.
On the morning of November 3, 2004, Theis met with attorney James Ash to discuss making a new will. During their four-hour conversation, Theis described in detail his family history, the beneficiaries and gifts made under his previous will, the recent sale of his Schleicher County ranch, his plans to buy replacement property for the purpose of avoiding capital gains tax on the ranch sale through a 1031 exchange, an inventory of his real and personal property, and the arrangements Theis wished to be made for his memorial service, including his desire that Jim Reeves's "Adios, Amigo" be played at his funeral.
That afternoon, a new self-proved will was executed. The 2004 will deleted Tomlinson as a beneficiary; established an educational trust of $500,000 in favor of the children of David Savanich, Rodney Savanich, and Eddie and Kim Albin; and bequeathed the residuary estate to Eddie and Kim Albin in equal shares. It appointed Eddie Albin as independent executor. Present at the execution of the 2004 will were three witnesses, a notary, and Ash.
Also on November 3, Theis entered into an oil and gas lease with the buyer of his Schleicher County ranch, retaining the executive rights on a 1,200-acre parcel.
Two days later, November 5, 2004, Theis was discharged from the hospital.
Sixteen months after he executed the 2004 will, Theis died. Soon afterward, in March of 2006, Eddie Albin applied to probate the 2004 will, attaching the original 2004 will to his application. Albin's application was opposed by Tomlinson, David Savanich, and Rodney Savanich, who alleged that the 2004 will was not a valid and lawful will because (1) Theis did not execute the 2004 will with the formalities required by law; (2) Theis lacked testamentary capacity when he executed the 2004 will; (3) the 2004 will was not executed with testamentary intent; and (4) the 2004 will was a result of undue influence.
Tomlinson then filed an application for probate of the 2000 will and issuance of letters testamentary. (4) In his application, Tomlinson declared that the 2000 will was never revoked but that the original 2000 will had been lost or could not be located. Attached to his application was a photocopy of the 2000 will.
Eddie and Kim Albin moved for summary judgment on the basis that the 2004 will was self-proved under the probate code and no further proof of its due execution was necessary. (5) They alleged that there was no evidence that Theis lacked testamentary capacity and that in fact, the evidence conclusively established that Theis did have testamentary capacity when he executed the 2004 will. They further alleged that there was no evidence of undue influence. In support of their motion, they attached extensive affidavit and deposition testimony from Theis's treating physician and nurses, the three attesting witnesses and the notary present at the signing of the 2004 will, the attorney who drafted the 2004 will, Tomlinson, and David and Rodney Savanich.
In response to the Albins' motion for summary judgment, Tomlinson argued that the 2004 will did not meet the requirements of section 59 of the probate code and was therefore invalid as a matter of law. He also argued that he had raised genuine issues of material fact as to whether the document now offered by the Albins was in fact the document executed by Theis on November 3, 2004. He further alleged that he had produced more than a scintilla of evidence that Theis was not capable of making or executing his will on November 3 because of the seriousness of his medical condition, and that Theis therefore lacked testamentary capacity to execute the 2004 will. Tomlinson did not, however, renew his argument that the 2004 will was the result of undue influence, and he presented no evidence in support of that claim.
The trial court ruled in favor of the Albins on all issues, making the following findings: (1) there was no evidence that the Last Will and Testament signed by Jesse Lawhon Theis on November 3, 2004, is not a valid and lawful will; (2) there was no evidence that the 2004 will failed to comport with the formalities required by law; (3) there was no evidence that the 2004 will was altered or modified after its execution and before its submission to probate; (4) there was no evidence that Theis lacked testamentary capacity at the time the 2004 will was executed; (5) there was no evidence that the 2004 will was the result of undue influence, and furthermore, Tomlinson had conceded this fact; and (6) all prior wills and codicils were revoked as a matter of law by the 2004 will, including the will and codicils offered by the contestant.
On appeal, Tomlinson argues that the trial court erred in granting the Albins' motion for summary judgment, raising points of error with respect to the 2004 will's authenticity, Theis's testamentary capacity, and undue influence.
DISCUSSION
Tomlinson's motion to strike appellees' brief
We address as a preliminary matter Tomlinson's complaint that the Albins' brief violates the rules of appellate procedure for referring to evidence outside the appellate record and including facts that are unsupported by the record.
Page three of the Albins' brief begins, "Although not relevant to the legal analysis before the trial court or this Court, the facts included in the preceding paragraph are taken from Eddie Albin's videotaped deposition testimony, part of which the summary-judgment motion incorporates by reference." In response to Tomlinson's motion to strike their brief, the Albins acknowledge that this Court should ignore the facts included on page three because they were taken from a portion of Eddie Albin's deposition that was not contained in the summary-judgment evidence.
We agree that the background information recited on page three of the Albins' brief is unsupported by the summary-judgment record, and we will therefore strike that page of the Albins' brief. Having reviewed the remainder of the Albins' brief and found it is otherwise in substantial compliance with the rules of appellate procedure, we deny Tomlinson's motion to strike the Albins' brief in its entirety and to order them to rebrief. See Tex. R. App. P. 38.9 ("substantial compliance with this rule is sufficient"). (6)
Standard of review
We review the trial court's grant of summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper only when the movant establishes that there are no genuine issues of material fact to be decided and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a; see also Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237, 240 (Tex. App.--Austin 2007, pet. denied). In reviewing the grant of summary judgment, we take as true all evidence favorable to the nonmovant, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant's favor. Spiegel, 228 S.W.3d at 240.
A no-evidence summary judgment asserts that there is no evidence of one or more essential
elements of claims upon which the opposing party would have the burden of proof at trial. Duvall v. Texas Dep't of Human Servs., 82 S.W.3d 474, 477 (Tex. App.--Austin 2002, no pet.). It is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
In reviewing a no-evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the movant to determine whether more than a scintilla of evidence was presented on the challenged elements of the nonmovant's claim. City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005); Perdue v. Patten Corp., 142 S.W.3d 596, 604 (Tex. App.--Austin 2004, no pet.). We affirm a no-evidence summary judgment if, as to an essential element of the claim or defense identified in the motion, "(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." King Ranch, 118 S.W.3d at 751.
Such a motion is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); see Jackson v. Fiesta Mart, 979 S.W.2d 68, 70-71 (Tex. App.--Austin 1998, no pet.). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Duvall, 82 S.W.3d at 478. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. Jackson, 979 S.W.2d at 71 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
Construction of the motion
Before addressing the merits, we must first consider whether the Albins' motion was solely a no-evidence motion, as Tomlinson contends, or if it was also a traditional motion for summary judgment. We hold that the Albins' motion was partly a traditional motion for summary judgment and partly a no-evidence motion for summary judgment.
A no-evidence summary judgment motion must allege that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). The Albins, as the proponents of the 2004 will, bore the burden of proving that Theis possessed testamentary capacity when the will was executed. See Croucher v. Croucher, 660 S.W.2d 55, 57 (Tex. 1983). Therefore, a no-evidence summary judgment could not have been granted on the issue of testamentary capacity. (7)
The Albins point out that while their motion was entitled "Motion for Final Summary Judgment Under Rule 166a(i)," it clearly raised both no-evidence and traditional bases entitling them to summary judgment. They assert that their motion properly identified the specific grounds for summary judgment by stating that "the evidence conclusively establishes that Mr. Theis did have testamentary capacity when he executed the Will on November 3, 2004," and that this was sufficient to give Tomlinson fair notice of the grounds sought. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993) (motion for summary judgment must state specific grounds therefore); see also Dear v. City of Irving, 902 S.W.2d 731, 734 (Tex. App.--Austin 1995, writ denied) (grounds articulated in motion for summary judgment are sufficient if they give nonmovant fair notice of claim being asserted). They further allege that Tomlinson had actual notice that their motion was based on both no-evidence and traditional bases because his response to their motion states, "Applicants have actually attempted to move on a traditional summary judgment."
Our de novo review of the Albins' motion reveals that although it was labeled a no-evidence motion, it was in fact a traditional motion for summary judgment on the issue of testamentary capacity. In substance, it recognized that the Albins bore the burden of proof on the issue of testamentary capacity, included evidence to conclusively establish that Theis had testamentary capacity when the 2004 will was executed, and identified the appropriate standard of review for determining whether Theis had capacity. See Rodgers v. Weatherspoon, 141 S.W.3d 342, 344 (Tex. App.--Dallas 2004, no pet.) (explaining that court should determine standard of proof on summary-judgment motion after considering substance, rather than categorize motion strictly by form or title).
"When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated." Tex. R. Civ. P. 71; see Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004). The supreme court has noted that although it is good practice to use headings "to clearly delineate the basis for summary judgment under subsection (a) or (b) from the basis for summary judgment under subsection (i)," the rule does not require it. Binur, 135 S.W.3d at 651. We will therefore treat the Albins' motion as a hybrid motion where, on the issue of testamentary capacity, they met the higher summary-judgment burden under 166a by conclusively establishing that there existed no genuine issue of material fact.
Alteration or modification of 2004 will
Tomlinson's first issue concerns the authenticity of the 2004 will offered for probate by the Albins. (8) He argues that the trial court erred in granting summary judgment because he had raised a fact issue concerning whether the instrument purporting to be the 2004 will was in fact the will that Theis executed on November 3, 2004, and because he had shown that Eddie Albin had motive and opportunity to modify the 2004 will after its execution.
The act of forgery is defined as altering, making, completing, executing, or authenticating a writing so that it purports to be the act of another who did not authorize the act. See Parker v. State, 985 S.W.2d 460, 463 (Tex. Crim. App. 1999); In re Estate of Flores, 76 S.W.3d 624, 630 (Tex. App.--Corpus Christi 2002, no pet.).
There is no dispute that the 2004 will offered by the Albins was self-proved under the probate code. Therefore, no further proof of its due execution was required, see Tex. Prob. Code Ann. § 84(a) (West 2003), and Tomlinson bore the burden of proof on the issue of forgery. See Green v. Hewett, 54 Tex. Civ. App. 534, 118 S.W. 170 (1909, no writ). To defeat the Albins' no-evidence motion, Tomlinson had to produce summary-judgment evidence raising a genuine issue of material fact in support of his claim that the 2004 will offered for probate had been forged. See Tex. R. Civ. P. 166a(i).
Tomlinson asserts that the summary-judgment proof he attached to his response raises a fact issue as to whether the document purporting to be the 2004 will is in fact the same document that Theis executed on November 3, 2004.
As evidence that "[s]uspicious circumstances abound the execution of [the 2004] will," Tomlinson cites Eddie Albin's statement that Albin kept the original of the 2004 will after its execution on the afternoon of November 3, 2004, until he placed it in a safety deposit box the next day. Tomlinson also attached testimony from Jim Ash, the lawyer who drafted the 2004 will and was present at its execution. Ash testified that he was first contacted by Theis from Eddie Albin's cell phone. He also testified at length as to his November 3, 2004 conversation with Theis concerning how Theis wished to devise his property and how the contents of the 2004 will reflected those wishes. He further stated that the pages of the original 2004 will were not stapled together, that he did not have Theis initial each page of the will, and that he delivered the original 2004 will to Eddie Albin after it was executed. (9) Finally, Tomlinson points to the testimony of Cheryl Forlano, one of the three attesting witnesses to the 2004 will, who stated that she thought the will had been stapled together and that Theis had initialed it in a few places. (10)
On this record, the trial court found that there is "no evidence that the 2004 will was altered or modified after being executed by the Testator and before being submitted for probate." We agree.
Our review of the entire record shows that Tomlinson's claim that "Eddie Albin had motive and opportunity to tamper with the will before submitting it to probate" is based on nothing more than Tomlinson's subjective beliefs and suspicion. The testimony Tomlinson cites indicating that Ash drafted the will in the Albins' kitchen, printed the will using the Albins' printer, and was initially contacted by Theis on Eddie Albin's cell phone is not evidence that raises genuine issues of material fact regarding the authenticity of the will the Albins submitted for probate. (11) At most, it amounts to a "mere surmise or suspicion" of forgery and does not constitute more than a scintilla of evidence sufficient to create a fact issue. See Jackson, 979 S.W.2d at 71.
Nor is the discrepancy between Ash's and Forlano's testimony concerning whether the 2004 will had been stapled and initialed sufficient to raise a genuine issue of material fact. Forlano's statements do not support Tomlinson's assertion that she "unequivocally testified that the original document which she signed and which was initialed and signed by Jesse Theis, was stapled together." Rather, Forlano testified that she had no way of knowing whether the pages submitted by the Albins as Theis's 2004 will were the same pages that accompanied the document she had witnessed on November 3, 2004, and that she could "not say for certain" whether Theis had in fact initialed the will.
In claims or defenses supported only by meager circumstantial evidence, the evidence does not rise above a scintilla if the fact-finder would have to guess whether a vital fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). When the circumstances are equally consistent with either of two facts, neither fact may be inferred. City of Keller, 168 S.W.3d at 813. In such cases, we must view each piece of circumstantial evidence, not in isolation, but in light of all the known circumstances. Id. at 813-14. When the circumstantial evidence of a vital fact is meager, "a reviewing court must consider not just favorable but all the circumstantial evidence, and competing inferences as well." Id. at 815.
For the fact-finder to arrive at the conclusion that the 2004 will offered by the Albins is a forgery, he would have to guess that the Albins removed the 12 pages comprising the testamentary provisions of the will, made changes to the bequests that Theis had originally intended to make under that instrument, and then reattached the forged pages to the pages that Theis and the other witnesses had signed. There is no evidence in the record that would support such a hypothesis. Furthermore, Forlano's remarks are equally consistent with a conclusion that she could not in fact remember whether the 2004 will had been initialed and incorrectly believed it to have been stapled as with an inference that the Albins had committed forgery. The court had no evidence before it suggesting that the Albins had committed any wrongdoing or that the Albins had motive to alter the will that Theis executed on November 3, 2004.
On the contrary, Ash's uncontroverted testimony established that the property dispositions Theis expressed to him on November 3 were accurately reflected in the 2004 will that the Albins offered for probate. Ash testified that he met with Theis for several hours on the morning of November 3, and that during that conversation, Theis said that he wanted to give his property to Eddie and Kim Albin and name Eddie Albin as administrator and trustee in his will. Ash also testified that Theis wanted to create an educational trust of $500,000 for the Savanich and Albin children. These are the very same testamentary gifts contained in the instrument offered for probate by the Albins.
In light of these circumstances, Forlano's testimony cannot support a reasonable inference that the Albins altered or modified the original 2004 will because it does not rise above a scintilla. Tomlinson, by piecing together what he personally views as "suspicious circumstances" before and after the execution of the 2004 will, has not met his burden of bringing forward evidence that raises a genuine issue of material fact. As the supreme court has declared, "some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence." King Ranch, 118 S.W.3d at 755 (quoting Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993)).
Therefore, even after viewing all of the evidence in the record in the light most favorable to Tomlinson, we are not convinced that his assertion of forgery is based on anything more than conjecture, and we hold that the trial court did not err in granting summary judgment on this ground.
Testamentary capacity
In his second issue, Tomlinson argues that the trial court erred in granting summary judgment on the ground that Theis had testamentary capacity when he executed the 2004 will. We consider whether the trial court erred in granting the Albins' motion on this issue in light of our de novo standard of review. Essentially, the question we must decide is whether the trial court properly recognized that the Albins' motion was in fact a traditional summary-judgment motion on this issue, although the judgment states, "There is no evidence that at the time of the execution of the will that Mr. Theis lacked testamentary capacity." We hold that summary judgment was properly granted because, as to Theis's testamentary capacity, the Albins established that there were no genuine issues of material fact to be decided and that they were entitled to judgment as a matter of law.
Tomlinson brings several challenges to the trial court's finding that there was no evidence that Theis lacked testamentary capacity when he executed the 2004 will. Specifically, he alleges that (1) no-evidence summary judgment was improper because the Albins had the burden of proof on the issue of testamentary capacity; (2) the evidence the Albins offered could not be considered in a no-evidence motion; (3) testamentary capacity is not an issue that can be conclusively established as a matter of law because opinion testimony cannot establish a material fact; and (4) more than a scintilla of evidence exists regarding Theis's lack of testamentary capacity. However, the only argument Tomlinson raised prior to this appeal was his assertion that he had presented more than a scintilla of evidence creating a genuine issue of material fact that Theis lacked testamentary capacity. The record demonstrates that Tomlinson failed to present all but this argument to the trial court, and therefore his other arguments are waived for the purposes of appeal. See Perez v. Blue Cross Blue Shield of Tex., Inc., 127 S.W.3d 826, 835 (Tex. App.--Austin 2003, pet. denied).
The Albins' motion aptly recognized that they bore the burden of proof on this issue, and they attached to their motion extensive evidence that Theis had testamentary capacity in order to establish that they were entitled to judgment as a matter of law.
Dr. James Lucas, Theis's treating physician in 2004 and 2005, testified that when Theis was admitted to the hospital on October 28, 2004, his neurological condition was evaluated and he was found to be alert and oriented when he entered the hospital. Dr. Lucas stated that, for the duration of his hospital stay from October 28 to November 5, 2004, Theis was never found to be disoriented and that Theis never exhibited dementia, a lack of familiarity with his surroundings, impaired judgment, signs of depression, or a decline in cognitive skills; rather, Theis appeared to be mentally alert at all times. Dr. Lucas also testified that, as a sufferer of emphysema and chronic lung disease, Theis had become acclimated to functioning with less oxygen, and that on November 3, 2004, Theis's condition "had improved considerably." He testified that Theis's oxygen saturation as of November 3 was 82 percent, which "is considered good, especially in Jesse's case."
Cheryl Forlano, a nurse at Schleicher County Medical Center who observed Theis and regularly checked his status, testified that Theis was alert and oriented at all times during his 2004 hospitalization. She further testified in her capacity as an attesting witness that on November 3, 2004, Theis was mentally alert and seemed to fully understand that he was executing his will.
The two other attesting witnesses, Jeanne Snelson and Helen Brame, and the notary present at the execution of the 2004 will, Vera Bradshaw, all stated that Theis was mentally alert and appeared competent to execute his will on November 3.
James Ash, the attorney who prepared the 2004 will, testified as to Theis's behavior and alertness during their conversation when they discussed Theis's property and affairs and during the actual execution of the 2004 will. Ash noted that while he was with Theis in the hospital room on November 3, Theis's ranch foreman came to ask Theis for directions concerning the management of the ranch, and Ash stated that he believed Theis was still conducting the business of the ranch from his hospital room. Ash testified that, during their conversation on the morning of November 3, Theis discussed his family history, his assets, the nature of his estate, and his testamentary wishes for the disposition of his real and personal property. (12) Ash recalled that during the afternoon when the 2004 will was executed, Theis appeared to be in good health and was sitting upright and talking, Theis recognized each of the witnesses and engaged in conversation with them, and Theis stayed focused on the conversation the entire time and remained interested in what was going on.
Ash further testified that, in the presence of the witnesses, he asked Theis the following questions: Is anyone forcing you to do this will? Does the will do exactly what you want to do? Could anyone force you to sign a will you do not want to sign? Do you still manage your affairs and your property? Are you aware of the objects of your estate and the people who might inherit under your will? Ash then stated, "With regard to the first question, anyone -- is anyone forcing you to do this will, he responded no. Does this will do exactly what you want to do, his response was yes. Could anyone force you to sign a will you do not want to sign, he responded no. You still manage your affairs and your property, he said yes. And are you aware of the -- the persons, the objects that would inherit from you, he said yes."
The Albins also attached to their motion Mark Tomlinson's deposition, wherein he stated that he was aware Theis had entered into a contract to sell his ranch in Schleicher County, he had no objection to that sale, and he felt Theis had the mental capacity to enter into that agreement.
This evidence supports a conclusion that on November 3, 2004, Theis had testamentary capacity because he possessed sufficient mental faculties to understand he was making a will, the effect of making a will, the general nature and extent of his property, and the natural objects of his bounty, and he possessed the ability to consider the business to be transacted and to form a reasonable judgment about it. See Reding v. Eaton, 551 S.W.2d 491, 492 (Tex. Civ. App.--Austin 1977, no writ); see also Bracewell v. Bracewell, 20 S.W.3d 14, 19 (Tex. App.--Houston [14th Dist.] 2000, pet. denied); Chambers v. Chambers, 542 S.W.2d 901, 906 (Tex. Civ. App.--Dallas 1976, no writ).
In response to the Albins' motion for summary judgment, Tomlinson presented testimony from Carolyn Savanich, David Savanich's wife, who stated that following Theis's discharge from the hospital, "something was not right with Jesse that week." She said that Theis called her on November 8 and told her to "send David now." She responded that David was at work, to which Theis said, "You don't understand, Carolyn. I sold the ranch. I signed the paper." And further, "I sold the ranch. They brought me more papers to sign. I'm afraid I signed them. Everything is furry, everything is blurry, and I am all confused. Send someone now."
Tomlinson also submitted an affidavit from Dr. Michael R. Arambula, M.D., Pharm.D., and certified forensic psychiatrist. Dr. Arambula testified that, after reviewing Theis's medical records, admission summaries, and discharge summaries dating back to 2003, he was of the opinion that Theis's cognitive function was impaired on November 3, 2004. In his report, he concluded that Theis "was not compliant with his treatment regimen even if it jeopardized his health and convalescence." His conclusions before the trial court are as follows:
From a mental health perspective, the information in Mr. Theis' medical records infer how impaired his cognitive function was. Records repeatedly describe that he was unable to follow basic treatment recommendations which would have alleviated his uncomfortable and sometimes dangerous symptoms. His actions - or lack of - call attention to the likelihood that he could not attend to, retain, and put into use the information which would have diminished his distress. The ability to do something - by cause and effect - in order to alleviate physical discomfort is one of the most basic cognitive tasks an individual can exercise. Mr. Theis' apathetic responsiveness therefore implies that he had significant Executive Dysfunction. Executive Function is akin to Frontal Lobe Function in the brain. Therein lays the heart of decision-making. Amidst this backdrop of significantly compromised Frontal Lobe function, I therefore do not believe that Mr. Theis would have possessed sufficient cognitive skills coincident with testamentary capacity, or to resist the coercive influence of others who did not have his best interests at heart.
The Albins objected to Dr. Arambula's report, asserting that it was not competent summary-judgment proof because it was simply a conclusory affidavit lacking the essential requirements necessary to be admissible evidence. Specifically, they complained that his affidavit failed to set forth such facts as would be admissible in evidence to affirmatively show that the affidavit is competent to the matters stated therein.
The trial court granted the Albins' summary judgment motion on the ground that Theis had testamentary capacity when he executed the 2004 will.
In reviewing whether the trial court erred in determining that Theis possessed testamentary capacity, our inquiry is focused on "the condition of the testator's mind on the day the will was executed." See Lee v. Lee, 424 S.W.2d 609, 611 (Tex. 1968). If there is no direct testimony of acts, demeanor, or condition indicating that the testator lacked testamentary capacity on the date of execution, the testator's mental condition on that date may be determined from lay opinion testimony based upon the witnesses' observations of testator's conduct either prior or subsequent to the execution. Id. However, that evidence has probative force only if some evidence exists demonstrating that the condition persisted and had some probability of being the same condition that existed at the time the will was made. Id. Thus, to successfully challenge a testator's mental capacity with circumstantial evidence from time periods other than the day on which the will was executed, the will contestants must establish that (1) the evidence offered indicates a lack of testamentary capacity; (2) the evidence is probative of the testator's capacity (or lack thereof) on the day the will was executed; and (3) the evidence provided is of a satisfactory and convincing character, because probate will not be set aside on the basis of evidence that creates only a suspicion of mental incapacity. See Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.--Fort Worth 1998, no pet.).
Here, the Albins did present direct testimony of Theis's acts, demeanor, and condition on the day his will was executed. Dr. Lucas, Theis's treating physician, testified that Theis's neurological condition was examined, and he determined that Theis did not suffer from any disorientation or confusion on the day he executed his will or at any other time during his hospitalization. He also explained that, in spite of Theis's breathing difficulties when Theis was first admitted to the hospital, his oxygen saturation was much improved by November 3. Nurse Forlano's testimony also indicated that Theis was mentally alert and aware of what was going on while he was in the hospital, as did the testimony of the other witnesses to the execution of the 2004 will. James Ash testified that on the morning he met with Theis to discuss drafting a new will, Theis appeared to be healthy and was able to discuss with him the nature and extent of his estate, identify all of his surviving relatives, and indicate who stood to inherit from him.
Furthermore, Ash stated that when it came time to execute the will, Theis was alert and conscientious of what was taking place, and he recognized each of the witnesses and engaged in conversation with them. Theis was also apparently competent to continue managing his business affairs and to execute several legal documents on or around the day he executed the 2004 will--including the $2.9 million real estate contract, which Tomlinson agreed Theis was mentally competent to execute on November 2, the day before Theis executed the 2004 will.
Having failed to rebut the testimony of Dr. Lucas, James Ash, or any of the disinterested witnesses to the signing of the 2004 will, Tomlinson instead cites to the testimony of Carolyn Savanich, who was not present in the hospital when the will was executed. She testified that, according to a phone conversation she had with Theis five days after the will's execution, Theis was "confused" about what he had done. Theis purportedly told Carolyn that he "sold the ranch" and "signed the paper," apparently referring to the real estate deal that Theis entered into on November 2. Having already conceded that Theis had the capacity to execute the real estate contract, however, it is unclear how Carolyn's statement is evidence indicating that Theis subsequently lacked testamentary capacity when he executed his will the day after the ranch sale. Moreover, five days had elapsed between the time that Theis contacted Ash and asked him to draw up a new will and the time at which Theis told Carolyn, "They brought me more papers to sign. I'm afraid I signed them." Tomlinson did not establish how this latter statement is probative of Theis's capacity when he executed the will five days earlier.
Even taking Carolyn's testimony as true and indulging every reasonable inference that can be drawn from Theis's statements to her, at most we can conclude that on November 8, Theis was confused or mistaken about what he had done prior to that date. This is not evidence, however, that Theis lacked testamentary capacity on November 3, and if he did indeed suffer from any later bouts of confusion, he appears to have executed the 2004 will during an episode of clarity. "Even people of admitted unsound mind may have lucid intervals, and in such lucid interval be possessed of testamentary capacity." Estate of Grey, 279 S.W.2d 936, 939 (Tex. Civ. App.--El Paso 1955, writ ref'd n.r.e.).
The trial court also reviewed the affidavit of Dr. Arambula, which Tomlinson claims is evidence that Theis lacked testamentary capacity when he executed the 2004 will. The court examined Dr. Arambula's affidavit and determined that "Dr. Arambula's opinions are merely conclusions lacking in essential requirements necessary to be admissible evidence."
A conclusory statement of an expert witness is insufficient to create a question of fact to defeat summary judgment. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003). Indeed, Dr. Arambula's affidavit draws a conclusion that Theis had "significant [e]xecutive [d]ysfunction," but fails to establish which records "repeatedly describe" Theis's inability to follow basic treatment recommendations, which action or inaction by Theis calls attention to his impaired cognitive function, and upon what factual basis he determined that Theis exhibited "apathetic responsiveness."
"If an expert's opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded." City of Keller, 168 S.W.3d at 813. Evidence that fails to meet reliability standards is rendered not only inadmissible but incompetent as well. Id. Thus, "evidence that might be 'some evidence' when considered in isolation is nevertheless rendered 'no evidence' when contrary evidence shows it to be incompetent" and such contrary evidence cannot be disregarded. Id.
In our review of the record, we have found only the following evidence upon which we could assume Dr. Arambula's conclusions are based: (1) Dr. Lucas's testimony that when Theis received breathing treatments "at 2 liters a minute through nasal prongs," sometimes Theis "would leave [the nasal prongs] on and sometimes he wouldn't. And when he wouldn't, the nurses would go in, get after him, put it on. He'd take [them] off during the night, sometimes during the day. He just didn't like to wear [the nasal prongs]"; (2) testimony from nurse Cheryl Forlano, who stated that Theis "was somewhat noncompliant about his health care, so he had -- you know, he was frequently in the hospital because he smoked"; and (3) the affidavit of Word Sherrill, Jr., a real estate broker who had done business with Theis, who stated that Theis "did not take good care of himself."
To hold that this evidence is sufficient to raise a fact question would lead to the absurd result of calling into question the testamentary capacity of anyone who acts in contravention to his doctor's orders. The fact that Theis continued to smoke, despite suffering from chronic pulmonary disease and emphysema, or that he removed his nasal prongs because he did not like to wear them, does not support a conclusion that Theis suffered significant executive dysfunction, particularly in light of the evidence presented by the Albins showing that Theis did in fact have testamentary capacity when he executed the 2004 will. The legal effect of Dr. Arambula's affidavit is that it constituted no evidence of Theis's lack of testamentary capacity.
We hold that the trial court did not err in granting summary judgment on the ground that Theis had testamentary capacity when he executed his will on November 3, 2004.
Undue influence
In his final issue, Tomlinson argues that the no-evidence motion cannot support the judgment as a matter of law because it fails to list any element of undue influence on which the Albins contend there is no evidence. Tomlinson did not present this issue to the trial court for ruling, but instead he raises it for the first time on appeal.
When a summary judgment is attacked as lacking specificity, a special exception is required. Franco v. Slavonic Mut. Fire Ins. Ass'n, 154 S.W.3d 777, 784 (Tex. App.--Houston [14th Dist.] 2004, no pet.); see also McConnell, 858 S.W.2d at 342 (stating in dictum that "an exception is required should a non-movant wish to complain on appeal that the grounds relied on by the movant were unclear or ambiguous"). The excepting party must obtain a ruling on the special exception to preserve the issue for appeal. Franco, 154 S.W.3d at 784. Because Tomlinson failed to do so, we cannot consider his complaint on appeal as grounds for reversal. See id. at 784-85. Furthermore, Tomlinson presented no evidence that the 2004 will was the result of undue influence, and in fact he conceded that Theis was not unduly influenced in executing the 2004 will before the trial court. We therefore hold that summary judgment was properly granted on the issue of undue influence.
CONCLUSION
Because Tomlinson failed to raise a genuine issue of material fact that the 2004 will was a forgery, that Theis lacked testamentary capacity when he executed the 2004 will, or that the 2004 will was the result of undue influence, the trial court did not err in granting summary judgment in favor of the Albins. We therefore affirm the judgment of the trial court.
_____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: January 18, 2008
1. Eddie L. Albin is the independent executor named in the 2004 Last Will and Testament of Jesse Lawhon Theis. Although the record filed in this Court does not indicate that the 2004 will was admitted to probate, the Albins responded as appellees on behalf of the Estate, and the filings of the parties represent that they are entitled to do so.
2. James Kosub, the lawyer who drafted Theis's 2000 will and its subsequent codicils, was also retained to create the trust in favor of the 4H Club providing that Theis's property would continue to be operated as a ranch "for as long as possible" after Theis passed away. However, despite numerous drafts and extensive revisions, the charitable trust was never executed.
3. The contract provided that Theis would be assigning the property to an intermediary in order to perfect a non-simultaneous, tax-free exchange under section 1031 of the Internal Revenue Code.
4. The original application for probate of the 2000 will was filed by Tomlinson, David Savanich, and Rodney Savanich. However, the amended application to probate the 2000 will and the amended opposition to probate the 2004 will omitted David Savanich and Rodney Savanich as parties, and they are not parties to this appeal.
5. A dispute exists as to whether the Albins filed solely under Texas Rule of Civil Procedure 166a(i) or whether they also filed a traditional motion for summary judgment. We address this issue in the discussion below.
6. Our review of the record further reveals that a number of statements in Tomlinson's brief are likewise unsupported by the record and in some instances contradict the summary-judgment evidence that Tomlinson cites in support of his position. Accordingly, we will disregard any and all unsupported and erroneous conclusions that either party invites us to make in determining the issues Tomlinson now raises on appeal.
7. Tomlinson raises this argument for the first time on appeal. In his response to the Albins' motion for summary judgment, Tomlinson argued only that the Albins bore the burden of proving that the 2004 will was validly executed. He did not argue that the Albins also bore the burden of proof on the issue of testamentary capacity, thereby precluding them from moving for no-evidence summary judgment on that issue.
8. In response to the Albins' motion for summary judgment, Tomlinson had challenged both the 2004 will's authenticity and its compliance with section 59 of the probate code. On appeal, he no longer contests whether the 2004 will complies with the probate code on its face, but argues only that the will is "invalid" because there is more than a scintilla of evidence that the 2004 will is a forgery. Therefore, we understand his only challenge to the 2004 will's "validity" to be his assertion that "the document Albin submitted for probate as Theis's Last Will and Testament of November 3, 2004, is not the same document that Theis signed while he was in the hospital."
Tomlinson also complains within his challenge to the "validity" of the 2004 will that the Albins did not attach a copy of the 2004 will to their motion for summary judgment. He cites Hudson v. Hopkins, 799 S.W.2d 783 (Tex. App.--Tyler 1990, no pet.) for the proposition that where parties dispute the validity of a will not admitted to probate, a copy of the will should be attached to the motion for summary judgment as evidence. However, the Hudson court actually held that because a copy of the contested will in that case was on file with the trial court at the time of the summary-judgment hearing, the trial court could properly use the will as evidence for the summary judgment, and the movant was not required to attach a copy of the will to the motion for summary judgment. Hudson, 799 S.W.2d at 785. In this case, both parties have stipulated that the 2004 will was filed with Eddie Albin's application in March of 2006, and therefore it need not have been separately attached to the Albins' motion for summary judgment.
9. Tomlinson incorrectly cites the record as indicating that Ash delivered the original document to Albin, but that Ash "did not maintain a copy" himself. In fact, the undisputed summary-judgment evidence demonstrates that Ash kept the electronic version of the will on his laptop computer, and he delivered the signed original to Eddie Albin--at Theis's request--for Albin to place in a safety deposit box. Nor did Ash testify that he drafted the will on Albin's computer, as Tomlinson claims; rather, Ash stated that he drafted the will on his own laptop computer in Albin's kitchen after meeting with Theis at the hospital and then printed the will for signature on Albin's printer. These facts do not support Tomlinson's assertion that "therefore any modifications by Mr. Albin would have been in the exact same type as the original."
10. Forlano testified as follows:
[On cross-examination]
Q. And then after the papers were arranged, is that when [Ash] handed the document to Mr. Theis for him to page through?
A. Yeah. When he was ready, he -- he handed [the will] to Jesse, and Jesse looked through it, initialed a few places, and I believe he signed it at that time. And then he handed it -- set it back on the table and showed us all where to sign. And we filed through and signed where we were supposed to.
Q. Do you remember whether or not the papers that composed the will that -- that you signed were stapled together?
A. Yes, they were.
Q. And were they stapled with a single staple?
A. I can't say. Probably, but...
. . .
[On recross-examination]
Q. Mrs. Forlano, you -- you don't know, do you, whether or not the first twelve pages of that instrument were attached to the last three pages on the day that Mr. Theis signed it, do you?
A. Well, I know that when we -- when we signed it, they were -- you know, the whole will was stapled together, but I mean I couldn't verify that --
. . .
Q. And your initial recollection when you were asked about whether or not Mr. Theis initialed pages was that he had in two or three places; is that correct?
A. That is correct. I'm trying to remember. I'm trying to think about what went on that day. I remember him paging through it. I believe he initialed it in a couple of places, but I cannot say for certain. . . .
11. Tomlinson includes additional factual allegations in his brief that we need not consider, either because they are not supported by the record or contradict the evidence in the summary-judgment record. See Tex. R. App. P. 38.1(f). Among these are assertions that "Theis's long-time acquaintances had never heard of Eddie Albin," that Tomlinson was Theis's "lifelong friend and mentee," that Eddie Albin "presumably earned less than a 1% commission" on the sale of Theis's Schleicher County ranch, and that Ash prepared the 2004 will "using software both he and Albin had access to."
12. Ash's testimony as to his conversation with Theis was extensive. He recalled that, after visiting with Theis about the engagement letter to make sure that Theis understood Ash was representing him, he and Theis spent the next four hours discussing matters related to Theis's new will. He testified at length as to Theis's statements regarding his adopted family, including the Theis family history going back to the 1860s; the specific gifts Theis wished to make to the Savanich and Albin children, as well as his niece in Florida (which, later in the conversation, he decided to revoke in favor of creating an educational trust for the children, excluding his niece); Theis's failed attempt to set up a charitable trust in favor of the 4H Club aimed at carrying on the ranching tradition of his family; and the 1031 exchange he was in the process of perfecting to avoid capital gains tax on the sale of his Schleicher County ranch.
AFFIRMED: Opinion by Justice Henson (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00123-CV
Mark Seth Tomlinson v. The Estate of Jesse Lawhon Theis, Deceased
Appeal from County Court of Schleicher County
Scott Colin Wright v. Rosa Maria Delgado, Individually and as next friend of M. D. and D. D., Minor Children, all within an Interest in the Estate of Jose Alfredo Delgado, Deceased--Appeal from 169th District Court of Bell County
M E M O R A N D U M O P I N I O N
Appellant Scott Colin Wright and appellees Rosa Maria Delgado, et. al., have filed a joint motion to abate this appeal and remand the proceedings to the district court. The joint motion provides that the parties have reached a settlement agreement and that if the trial court approves the settlement, the parties will file a joint motion to dismiss the appeal. Accordingly, we grant the motion, abate the appeal, and permit proceedings in the trial court to effectuate the parties' agreement. See Tex. R. App. P. 42.1(a)(2)(C).
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Abated
Filed: January 18, 2008
January 18, 2008
Civil Causes Decided:
ABATED: Opinion by Justice Pemberton (Before Justices Patterson, Pemberton and Waldrop)
03-06-00630-CV
Scott Colin Wright v. Rosa Maria Delgado, Individually and as next friend of M. D. and D. D., Minor Children, all within an Interest in the Estate of Jose Alfredo Delgado, Deceased--Appeal from 169th District Court of Bell County
M E M O R A N D U M O P I N I O N
Appellant Scott Colin Wright and appellees Rosa Maria Delgado, et. al., have filed a joint motion to abate this appeal and remand the proceedings to the district court. The joint motion provides that the parties have reached a settlement agreement and that if the trial court approves the settlement, the parties will file a joint motion to dismiss the appeal. Accordingly, we grant the motion, abate the appeal, and permit proceedings in the trial court to effectuate the parties' agreement. See Tex. R. App. P. 42.1(a)(2)(C).
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Abated
Filed: January 18, 2008
January 18, 2008
Civil Causes Decided:
ABATED: Opinion by Justice Pemberton (Before Justices Patterson, Pemberton and Waldrop)
03-06-00630-CV
Scott Colin Wright v. Rosa Maria Delgado, Individually and as next friend of M. D. and D. D., Minor Children, all within an Interest in the Estate of Jose Alfredo Delgado, Deceased--Appeal from 169th District Court of Bell County
Anderson v. Texas (Tex.App. - Austin Jan. 18, 2008)
Adam Anderson v. The State of Texas
M E M O R A N D U M O P I N I O N ON REMAND
Adam Anderson appeals his conviction for aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (West Supp. 2007). In his only point of error, he complains that the trial court failed to make the statutorily required findings of fact and conclusions of law regarding the voluntariness of his statement to the police. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West 2005). We overruled this point on original submission, noting that the evidence showed that appellant was not in custody when the statement was made and citing court of appeals authority holding that section 6 applies only to statements made during custodial interrogation. Anderson v. State, No. 03-06-00496-CR (Tex. App.--Austin July 13, 2007) (mem. op., not designated for publication). In so doing, we overlooked the court of criminal appeals's holding in State v. Terrazas (not cited by either party on original submission) that article 38.22, section 6 applies to all cases in which a question is raised as to the voluntariness of a statement by the accused, whether or not the statement was made while the accused was in custody. 4 S.W.3d 720, 727 (Tex. Crim. App. 1999). The court of criminal appeals granted appellant's petition for discretionary review, vacated our judgment, and remanded the case to us for further proceedings. Anderson v. State, No. PD-1213-07 (Tex. Crim. App. Nov. 7, 2007) (not designated for publication).
Appellant filed two motions challenging the admissibility of his statement to the police on the grounds that it was involuntary and taken in violation of article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22. The trial court did not rule on the motions until after this bench trial had begun. After hearing the testimony of the lead investigator to whom the statement was made, the court announced that "the court finds that Mr. Anderson was not in custody when he gave his statement and that the statement was given freely and voluntarily."
The State argues that the trial court's statement quoted above satisfies the requirements of article 38.22, section 6. See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003) (holding that trial court satisfies section 6 when it dictates its findings and conclusions to court reporter and they are made part of reporter's record). We disagree. The court merely stated its conclusion that the statement was voluntary. The court did not dictate into the record "the specific finding of facts upon which the conclusion was based." Tex. Code Crim. Proc. Ann. art. 38.22, § 6.
Alternatively, the State argues that the trial court's failure to comply with section 6 was harmless because appellant does not bring forward a point of error complaining of the admission of his statement. The State cites an unpublished opinion as authority for this argument. Bombasi v. State, No. 01-95-00726-CR, 1996 Tex. App. LEXIS 4302, at *7 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Whatever the merits of the holding in Bombasi, appellant does assert that his statement was involuntary, albeit not in a separate point of error. We also note that the statement at issue in Bombasi was never admitted in evidence before the jury. Id. at *8.
Appellant's point of error is sustained. The appeal is abated, and the trial court is instructed to prepare and file written findings of fact and conclusions of law regarding the voluntariness of appellant's statement to the police. See Green v. State, 906 S.W.2d 937, 940 (Tex. Crim. App. 1995). A supplemental record containing these findings and conclusions shall be tendered for filing no later than thirty days following the date of this opinion. Appellant will thereafter have thirty days to file a supplemental brief raising points of error challenging the trial court's findings and conclusions, and the State will have the same amount of time to file a responsive brief.
___________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Abated
Filed: January 18, 2008
Do Not Publish
ABATED: Opinion by Justice Waldrop (Before Justices Patterson, Pemberton and Waldrop)
03-06-00496-CR
Adam Anderson v. The State of Texas--Appeal from 390th District Court of Travis County
M E M O R A N D U M O P I N I O N ON REMAND
Adam Anderson appeals his conviction for aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (West Supp. 2007). In his only point of error, he complains that the trial court failed to make the statutorily required findings of fact and conclusions of law regarding the voluntariness of his statement to the police. See Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (West 2005). We overruled this point on original submission, noting that the evidence showed that appellant was not in custody when the statement was made and citing court of appeals authority holding that section 6 applies only to statements made during custodial interrogation. Anderson v. State, No. 03-06-00496-CR (Tex. App.--Austin July 13, 2007) (mem. op., not designated for publication). In so doing, we overlooked the court of criminal appeals's holding in State v. Terrazas (not cited by either party on original submission) that article 38.22, section 6 applies to all cases in which a question is raised as to the voluntariness of a statement by the accused, whether or not the statement was made while the accused was in custody. 4 S.W.3d 720, 727 (Tex. Crim. App. 1999). The court of criminal appeals granted appellant's petition for discretionary review, vacated our judgment, and remanded the case to us for further proceedings. Anderson v. State, No. PD-1213-07 (Tex. Crim. App. Nov. 7, 2007) (not designated for publication).
Appellant filed two motions challenging the admissibility of his statement to the police on the grounds that it was involuntary and taken in violation of article 38.22. Tex. Code Crim. Proc. Ann. art. 38.22. The trial court did not rule on the motions until after this bench trial had begun. After hearing the testimony of the lead investigator to whom the statement was made, the court announced that "the court finds that Mr. Anderson was not in custody when he gave his statement and that the statement was given freely and voluntarily."
The State argues that the trial court's statement quoted above satisfies the requirements of article 38.22, section 6. See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003) (holding that trial court satisfies section 6 when it dictates its findings and conclusions to court reporter and they are made part of reporter's record). We disagree. The court merely stated its conclusion that the statement was voluntary. The court did not dictate into the record "the specific finding of facts upon which the conclusion was based." Tex. Code Crim. Proc. Ann. art. 38.22, § 6.
Alternatively, the State argues that the trial court's failure to comply with section 6 was harmless because appellant does not bring forward a point of error complaining of the admission of his statement. The State cites an unpublished opinion as authority for this argument. Bombasi v. State, No. 01-95-00726-CR, 1996 Tex. App. LEXIS 4302, at *7 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Whatever the merits of the holding in Bombasi, appellant does assert that his statement was involuntary, albeit not in a separate point of error. We also note that the statement at issue in Bombasi was never admitted in evidence before the jury. Id. at *8.
Appellant's point of error is sustained. The appeal is abated, and the trial court is instructed to prepare and file written findings of fact and conclusions of law regarding the voluntariness of appellant's statement to the police. See Green v. State, 906 S.W.2d 937, 940 (Tex. Crim. App. 1995). A supplemental record containing these findings and conclusions shall be tendered for filing no later than thirty days following the date of this opinion. Appellant will thereafter have thirty days to file a supplemental brief raising points of error challenging the trial court's findings and conclusions, and the State will have the same amount of time to file a responsive brief.
___________________________________________
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Abated
Filed: January 18, 2008
Do Not Publish
ABATED: Opinion by Justice Waldrop (Before Justices Patterson, Pemberton and Waldrop)
03-06-00496-CR
Adam Anderson v. The State of Texas--Appeal from 390th District Court of Travis County
Shelby v. Texas (Tex.App.- Austin, Jan. 18, 2008)
Shelby F. Starnes v. The State of Texas
M E M O R A N D U M O P I N I O N
In January 2001, appellant Shelby F. Starnes was placed on deferred adjudication supervision for ten years after he pleaded guilty to the aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (West Supp. 2007). On July 27, 2007, a hearing was held on the State's motion to adjudicate, and appellant pleaded true to most of the allegations contained in the motion. The court adjudged him guilty and assessed punishment at thirty years' imprisonment.
Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant received a copy of counsel's brief and was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.
We have reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Counsel's motion to withdraw is granted.
The judgment of conviction is affirmed.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 18, 2008
Do Not Publish
AFFIRMED: Opinion by Justice Pemberton (Before Justices Patterson, Puryear and Pemberton)
03-07-00484-CR
Shelby F. Starnes v. The State of Texas--Appeal from 264th District Court of Bell County
M E M O R A N D U M O P I N I O N
In January 2001, appellant Shelby F. Starnes was placed on deferred adjudication supervision for ten years after he pleaded guilty to the aggravated sexual assault of a child. See Tex. Penal Code Ann. § 22.021 (West Supp. 2007). On July 27, 2007, a hearing was held on the State's motion to adjudicate, and appellant pleaded true to most of the allegations contained in the motion. The court adjudged him guilty and assessed punishment at thirty years' imprisonment.
Appellant's court-appointed attorney filed a brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Appellant received a copy of counsel's brief and was advised of his right to examine the appellate record and to file a pro se brief. No pro se brief has been filed.
We have reviewed the record and counsel's brief and agree that the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. Counsel's motion to withdraw is granted.
The judgment of conviction is affirmed.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 18, 2008
Do Not Publish
AFFIRMED: Opinion by Justice Pemberton (Before Justices Patterson, Puryear and Pemberton)
03-07-00484-CR
Shelby F. Starnes v. The State of Texas--Appeal from 264th District Court of Bell County
DWI Plea bargain precludes appeal
Tracy Eugene Rickerson v. The State of Texas--Appeal from 277th District Court of Williamson County
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 07-478-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Tracy Eugene Rickerson seeks to appeal a judgment of conviction for driving while intoxicated. The trial court has certified that: (1) this is a plea bargain case and Rickerson has no right of appeal, and (2) Rickerson waived his right of appeal. The appeal is dismissed. See Tex. R. App. P. 25.2(a)(2), (d).
___________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed for Want of Jurisdiction
Filed: January 18, 2008
Do Not Publish
DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00677-CR
Tracy Eugene Rickerson v. The State of Texas--Appeal from 277th District Court of Williamson County
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 07-478-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Tracy Eugene Rickerson seeks to appeal a judgment of conviction for driving while intoxicated. The trial court has certified that: (1) this is a plea bargain case and Rickerson has no right of appeal, and (2) Rickerson waived his right of appeal. The appeal is dismissed. See Tex. R. App. P. 25.2(a)(2), (d).
___________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed for Want of Jurisdiction
Filed: January 18, 2008
Do Not Publish
DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00677-CR
Tracy Eugene Rickerson v. The State of Texas--Appeal from 277th District Court of Williamson County
Notice of Appeal was untimely - Dismissed
Daniel Romon Quiroz v. The State of Texas (Tex.App.- Austin, Jan. 18, 2007) (Opinion by Justice Patterson) (Before Justices Patterson, Puryear and Henson)
03-07-00738-CR
Daniel Romon Quiroz v. The State of Texas
Appeal from County Court at Law No. 3 of Travis County
Dispostion: Dismissed for want of jurisdiction
M E M O R A N D U M O P I N I O N
On July 1, 2002, in cause number C-1-CR-01-574616, Daniel Romon Quiroz pleaded guilty to possessing marihuana. The trial court adjudged him guilty and assessed punishment at 120 days in jail. In assessing punishment, the court took into consideration Quiroz's admission of guilt in cause number C-1-CR-01-589507, in which he was accused of deadly conduct. See Tex. Penal Code Ann. § 12.45 (West 2003).
On November 13, 2007, Quiroz filed a pro se notice of out of time appeal in each cause. There is no conviction to appeal in cause number C-1-CR-01-589507. The notice of appeal in cause number C-1-CR-01-574616 was untimely. We lack jurisdiction to dispose of the purported appeals in any manner other than by dismissing them for want of jurisdiction. See Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App.1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996).
The appeals are dismissed.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: January 18, 2008
Do Not Publish
03-07-00738-CR
Daniel Romon Quiroz v. The State of Texas
Appeal from County Court at Law No. 3 of Travis County
Dispostion: Dismissed for want of jurisdiction
M E M O R A N D U M O P I N I O N
On July 1, 2002, in cause number C-1-CR-01-574616, Daniel Romon Quiroz pleaded guilty to possessing marihuana. The trial court adjudged him guilty and assessed punishment at 120 days in jail. In assessing punishment, the court took into consideration Quiroz's admission of guilt in cause number C-1-CR-01-589507, in which he was accused of deadly conduct. See Tex. Penal Code Ann. § 12.45 (West 2003).
On November 13, 2007, Quiroz filed a pro se notice of out of time appeal in each cause. There is no conviction to appeal in cause number C-1-CR-01-589507. The notice of appeal in cause number C-1-CR-01-574616 was untimely. We lack jurisdiction to dispose of the purported appeals in any manner other than by dismissing them for want of jurisdiction. See Slaton v. State, 981 S.W.2d 208 (Tex. Crim. App.1998); Olivo v. State, 918 S.W.2d 519, 522-23 (Tex. Crim. App. 1996).
The appeals are dismissed.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Dismissed for Want of Jurisdiction
Filed: January 18, 2008
Do Not Publish
Retrial after hung-jury mistrial not barred by double jeopardy, Justice Diane Henson writes
Ex parte Edwin Baezotero--Appeal from 403rd District Court of Travis County
M E M O R A N D U M O P I N I O N BY JUSTICE DIANE HENSON
[REMOVED]
Blogmaster's note: At the polite request of the Defendant received Mar. 9, 2008 [as opposed to the threats and accusations that have been made in some comments posted earlier] I have decided to remove the text of the opinion by Justice Henson, pending further consideration of the issue.
For those not familiar with appellate practice and appeals court's conventions and rules, "Do not publish" means do not publish in the South Western Reporter, ( ___ S.W.3d ___) - an evergrowing collection of appellate opinions that are cited as precedent in legal briefs and opinions. These published cases guide consideration and decision of future cases involving similar issues, but "unpublished" cases may now be cited as well, although they do not carry the same weight. Not published or "unpublished" does not not have the literal meaning in this context, as almost all appellate opinions - designated for publication or otherwise - (including this one - as of today) are available on the courts' web sites and through WestLaw and other publishers. Those who have a need to read the opinion I have removed from this blog can access it by alternative channels.
AFFIRMED: Opinion by Justice Henson (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00241-CR
Ex parte Edwin Baezotero--Appeal from 403rd District Court of Travis County
M E M O R A N D U M O P I N I O N BY JUSTICE DIANE HENSON
[REMOVED]
Blogmaster's note: At the polite request of the Defendant received Mar. 9, 2008 [as opposed to the threats and accusations that have been made in some comments posted earlier] I have decided to remove the text of the opinion by Justice Henson, pending further consideration of the issue.
For those not familiar with appellate practice and appeals court's conventions and rules, "Do not publish" means do not publish in the South Western Reporter, ( ___ S.W.3d ___) - an evergrowing collection of appellate opinions that are cited as precedent in legal briefs and opinions. These published cases guide consideration and decision of future cases involving similar issues, but "unpublished" cases may now be cited as well, although they do not carry the same weight. Not published or "unpublished" does not not have the literal meaning in this context, as almost all appellate opinions - designated for publication or otherwise - (including this one - as of today) are available on the courts' web sites and through WestLaw and other publishers. Those who have a need to read the opinion I have removed from this blog can access it by alternative channels.
AFFIRMED: Opinion by Justice Henson (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00241-CR
Ex parte Edwin Baezotero--Appeal from 403rd District Court of Travis County
Ungranting of new trial affirmed because order granting new trial was signed by mistake
Craig Jerry Stepan v. The State of Texas (Tex.App.- Austin, Jan. 17, 2008)
O P I N I O N
Appellant Craig Jerry Stepan was convicted of possessing less than one gram of methamphetamine and sentenced to twenty-one months in state jail. See Tex. Health & Safety Code Ann. § 481.115(a), (b) (West 2003). The trial court subsequently signed an order granting appellant's motion for new trial, but the court later rescinded that order on the ground that it had been signed by mistake. See Tex. R. App. P. 21.8(b) (new trial must be granted by written order). In his only point of error, appellant contends that the trial court was not authorized to vacate or rescind the new trial order. We overrule this contention and affirm the judgment of conviction.
Appellant was tried and sentenced on April 10, 2007. On April 16, his counsel filed a motion for new trial alleging that appellant's guilty plea had been involuntary. Attached to the motion was a prepared order reading, "On ______, 2007, came on to be considered Craig Jerry Stepan's Motion for New Trial and Motion in Arrest of Judgment, and said motion is hereby (Granted) (Denied)." The trial court set a hearing on the motion for new trial for May 2, but the record reflects that the hearing was never held.
On May 9, 2007, the court conducted a hearing on defense counsel's motion to withdraw, which had also been filed on April 16, and orally granted the motion. The court also signed the prepared order attached to the motion for new trial. The court entered the May 9 date and circled the word "Granted."
On June 28, 2007, the court signed a "nunc pro tunc order sua sponte correcting previous order signed by mistake on May 9, 2007." This order reads:
Whereas on May 9, 2007, a hearing was conducted on the Defendant's Attorney's Motion to Withdraw in the above case. At the conclusion of the hearing said motion was granted on the record in open court, but the order was not signed.
On May 9, 2007, no hearing was conducted on Defendant's Motion for New Trial, but the Order granting the new trial was signed. The court mistakenly signed the wrong order.
Now therefore the court enters this Order Nunc Pro Tunc correcting the record to show that the attorney's Motion to Withdraw was and is granted and the Defendant's Motion for New Trial was not heard or ruled upon.
Furthermore, the Order Granting the New Trial signed on May 9, 2007, is hereby vacated and set aside as being mistakenly signed.
On the same date, the court wrote on the face of the May 9 new trial order, "Signed by mistake" and "Intended to sign order granting atty mot. to W/D." Appellant thereafter gave notice of appeal.
Citing Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998), appellant argues that a trial court may set aside an order granting a motion for new trial only during the seventy-five day period prescribed by rule for granting or denying such motions. See Tex. R. App. P. 21.8(a) (court must rule on motion for new trial within seventy-five days after sentence imposed or suspended in open court). June 28, 2007, was the seventy-ninth day after appellant's sentence was imposed. Thus, appellant contends that the trial court's order setting aside the May 9 order granting the motion for new trial is void. In order to understand the holding in Awadelkariem and why we conclude that appellant's reading of it is incorrect, we must review two earlier opinions regarding the finality of an order granting a new trial.
In Matthews v. State, 50 S.W. 368 (Tex. Crim. App. 1899), the trial court granted the defendant's motion for new trial on the day after he was convicted of cattle theft. Id. Later that same day, the trial court signed an order setting aside the new trial order and overruling the motion for new trial. Id. In this later order, the court stated that the previous order had been made "under a misapprehension of the evidence complained of by defendant in his motion." Id. The court of criminal appeals held that the trial court was without authority to set aside its original order: "[T]he action of the court on the motion [for new trial] ought to be regarded as final, and . . . the court would have no authority, after he had granted the motion for new trial, afterwards, on the same day or on some other day of the term, to again call the case up, set the order aside granting the motion, and overrule it." Id. at 369.
The holding in Matthews was reconsidered in English v. State, 592 S.W.2d 949 (Tex. Crim. App. 1980). In English, a visiting judge sitting for the judge who presided over the defendant's trial signed an order granting the defendant's amended motion for new trial. Id. at 955. Three days later, the visiting judge wrote on the face of this order that it "was signed inadvertently and by mistake and the order was not intended to have any legal effect." Id. At a hearing, the following day before the regular trial judge, the visiting judge testified that the order was among a group of papers that had been handed to him (while on the bench) for his signature, he did not intend to grant the defendant a new trial, he knew nothing about the defendant's case, no hearing had been held on the motion for new trial, and he had been under the impression that he was signing an order granting leave to file the amended motion. Id. The regular trial judge found that the order granting the new trial was void. Id. The defendant challenged this ruling, citing Matthews. Id. The court of criminal appeals ruled that Matthews was distinguishable:
In Matthews it appears that the trial court granted the defendant's motion for new trial, then attempted to set aside its order because it had been under a "misapprehension of the evidence complained of by defendant in his motion for new trial." The instant case is distinguishable. The court in this case did not knowingly grant the motion for new trial and then decide to retract its decision. The court was not even aware that it was granting a motion for new trial when it signed the order. No hearing was held in this case; no evidence was adduced from which the court could have knowingly granted a new trial. The signing of an order form is not all there is to granting a new trial.
Further, the court's error in this case does not strike us as a judicial error, as certainly was the case in Matthews. The error here is more akin to clerical error, which can be corrected.
Id. 955-56. In clarifying its holding, the court in English overruled Matthews to the extent that it could be construed to conflict with its holding. Id. at 956. Thus, under Matthews as modified by English, the rule was established that "a trial court cannot rescind an order granting a new trial absent clerical errors." Ex parte Drewery, 677 S.W.2d 533, 536 (Tex. Crim. App. 1984).
This remained the rule until Awadelkariem. In that case, the defendant, after pleading not guilty, was convicted of the charged offense and sentenced to eight years' imprisonment, probated. 974 S.W.2d at 722. Later that day, the defendant and his counsel approached the trial court and offered to change his plea to guilty if the court would grant him deferred adjudication. Id. at 723. The court agreed and signed an order granting the defendant a new trial. Id. The defendant later reneged on his promise to enter a guilty plea, and the trial court rescinded its new trial order. Id. The court of appeals, citing Matthews, held that the trial court was not authorized to set aside the order granting a new trial that it had knowingly and deliberately signed. Id. (1) The court of criminal appeals, after tracing the history of the Matthews rule through English and other later opinions, and after discussing the practice in other jurisdictions and in Texas civil cases, concluded that "the Matthews rule, having always rested on questionable foundations, is no longer viable." Id. at 728. The court continued:
Nevertheless, . . . [we] conclude that a time limitation must exist on the power to rescind a new trial order. The appellate rules give a trial court 75 days after judgment is imposed or suspended in open court to rule upon a motion for new trial.[ (2)] We hold that an order granting or denying a motion for new trial may be freely rescinded so long as such action occurs within the 75 days provided by the rules (i.e., current Rule 21.8(a) & (c)); to the extent that Matthews and its progeny were held to apply during this time period, they are overruled. However, after the 75 day period expires, an order granting or denying a new trial becomes "final," and Matthews and its progeny control. Id. Because the trial court rescinded its order granting Awadelkariem a new trial within the seventy-five days allowed by rule 21.8, the recision was effective. Id.
In summary, before Awadelkariem, a trial court could not set aside an order granting a new trial that it had knowingly and intentionally signed, even if it had done so under a misapprehension of the pertinent facts or law (Matthews), but a trial court could set aside a new trial order that it had unintentionally and inadvertently signed (English). After Awadelkariem, a trial court may freely set aside an order granting a motion for new trial, regardless of the circumstances under which it was signed, so long as the court acts within the seventy-five day period after sentence is imposed.
Appellant argues that the Awadelkariem opinion should be read to create a bright-line, seventy-five day period within which an order granting a new trial can be changed and outside of which it is final and cannot be altered for any reason. However, contrary to appellant's interpretation of Awadelkariem, the trial court does not lose all authority to revisit an order granting a new trial after the seventy-five day period has expired. Instead, according to Awadelkariem, after the expiration of seventy-five days, "Matthews and its progeny control." Id. We read this to mean that the court of criminal appeals intended to overrule the pre-Awadelkariem rule for the seventy-five day period after sentence is imposed, and then to revert to the pre-Awadelkariem rule after the seventy-five day period ends. This would include not only Matthews, but also English and other post-Matthews "clerical error" opinions discussed in Awadelkariem as the "progeny" of Matthews. Therefore, we believe that the most comprehensive reading of Awadelkariem is that within seventy-five days following the imposition of sentence, an order granting a motion for new trial can be freely revisited and set aside, but after the seventy-five days, an order granting a motion for new trial can be set aside only if it was inadvertently signed as a result of clerical error. Otherwise, we would be reading the phrase "and its progeny" (when referring to Matthews) out of the Awadelkariem opinion. (3)
The circumstances of this case are substantially the same as those presented in English. The trial court never intended to grant appellant's motion for new trial; indeed, for the reasons stated in English, it could be argued that the motion was never actually granted. Instead, it is apparent from the record that the trial court inadvertently signed the May 9 new trial order believing that it was signing an order granting defense counsel's motion to withdraw. We hold that because the May 9 order was signed as a result of clerical error rather than judicial error, the trial court was authorized to set it aside even after the time for acting on the motion for new trial had expired. See State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (stating that trial court may use nunc pro tunc procedure to correct clerical error in order even after expiration of its plenary power).
The point of error is overruled, and the judgment of conviction is affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: January 17, 2008
Publish
1. See Awadelkariem v. State, No. 05-95-00779-CR, 1997 Tex. App. LEXIS 1754, at *10-11 (Tex. App.--Dallas Apr. 4, 1997) (not designated for publication).
2. The court is using the term "judgment" synonymously with the term "sentence." Per Texas Rule of Appellate Procedure 21.8, the time limit begins to run when sentence is imposed or suspended in open court.
3. Had the court of criminal appeals intended a bright-line, seventy-five day cut-off for the trial court's power to revisit an order granting a new trial, there would have been no need to mention the "progeny" of Matthews, i.e. English and following cases. The court would simply have stated that, after the expiration of the seventy-five day period, the rule set out in Matthews controlled. While such a rule of absolute finality is arguably viable, it does not appear to be the rule that the court adopted.
AFFIRMED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00400-CR
Craig Jerry Stepan v. The State of Texas--Appeal from 27th District Court of Bell County
O P I N I O N
Appellant Craig Jerry Stepan was convicted of possessing less than one gram of methamphetamine and sentenced to twenty-one months in state jail. See Tex. Health & Safety Code Ann. § 481.115(a), (b) (West 2003). The trial court subsequently signed an order granting appellant's motion for new trial, but the court later rescinded that order on the ground that it had been signed by mistake. See Tex. R. App. P. 21.8(b) (new trial must be granted by written order). In his only point of error, appellant contends that the trial court was not authorized to vacate or rescind the new trial order. We overrule this contention and affirm the judgment of conviction.
Appellant was tried and sentenced on April 10, 2007. On April 16, his counsel filed a motion for new trial alleging that appellant's guilty plea had been involuntary. Attached to the motion was a prepared order reading, "On ______, 2007, came on to be considered Craig Jerry Stepan's Motion for New Trial and Motion in Arrest of Judgment, and said motion is hereby (Granted) (Denied)." The trial court set a hearing on the motion for new trial for May 2, but the record reflects that the hearing was never held.
On May 9, 2007, the court conducted a hearing on defense counsel's motion to withdraw, which had also been filed on April 16, and orally granted the motion. The court also signed the prepared order attached to the motion for new trial. The court entered the May 9 date and circled the word "Granted."
On June 28, 2007, the court signed a "nunc pro tunc order sua sponte correcting previous order signed by mistake on May 9, 2007." This order reads:
Whereas on May 9, 2007, a hearing was conducted on the Defendant's Attorney's Motion to Withdraw in the above case. At the conclusion of the hearing said motion was granted on the record in open court, but the order was not signed.
On May 9, 2007, no hearing was conducted on Defendant's Motion for New Trial, but the Order granting the new trial was signed. The court mistakenly signed the wrong order.
Now therefore the court enters this Order Nunc Pro Tunc correcting the record to show that the attorney's Motion to Withdraw was and is granted and the Defendant's Motion for New Trial was not heard or ruled upon.
Furthermore, the Order Granting the New Trial signed on May 9, 2007, is hereby vacated and set aside as being mistakenly signed.
On the same date, the court wrote on the face of the May 9 new trial order, "Signed by mistake" and "Intended to sign order granting atty mot. to W/D." Appellant thereafter gave notice of appeal.
Citing Awadelkariem v. State, 974 S.W.2d 721, 728 (Tex. Crim. App. 1998), appellant argues that a trial court may set aside an order granting a motion for new trial only during the seventy-five day period prescribed by rule for granting or denying such motions. See Tex. R. App. P. 21.8(a) (court must rule on motion for new trial within seventy-five days after sentence imposed or suspended in open court). June 28, 2007, was the seventy-ninth day after appellant's sentence was imposed. Thus, appellant contends that the trial court's order setting aside the May 9 order granting the motion for new trial is void. In order to understand the holding in Awadelkariem and why we conclude that appellant's reading of it is incorrect, we must review two earlier opinions regarding the finality of an order granting a new trial.
In Matthews v. State, 50 S.W. 368 (Tex. Crim. App. 1899), the trial court granted the defendant's motion for new trial on the day after he was convicted of cattle theft. Id. Later that same day, the trial court signed an order setting aside the new trial order and overruling the motion for new trial. Id. In this later order, the court stated that the previous order had been made "under a misapprehension of the evidence complained of by defendant in his motion." Id. The court of criminal appeals held that the trial court was without authority to set aside its original order: "[T]he action of the court on the motion [for new trial] ought to be regarded as final, and . . . the court would have no authority, after he had granted the motion for new trial, afterwards, on the same day or on some other day of the term, to again call the case up, set the order aside granting the motion, and overrule it." Id. at 369.
The holding in Matthews was reconsidered in English v. State, 592 S.W.2d 949 (Tex. Crim. App. 1980). In English, a visiting judge sitting for the judge who presided over the defendant's trial signed an order granting the defendant's amended motion for new trial. Id. at 955. Three days later, the visiting judge wrote on the face of this order that it "was signed inadvertently and by mistake and the order was not intended to have any legal effect." Id. At a hearing, the following day before the regular trial judge, the visiting judge testified that the order was among a group of papers that had been handed to him (while on the bench) for his signature, he did not intend to grant the defendant a new trial, he knew nothing about the defendant's case, no hearing had been held on the motion for new trial, and he had been under the impression that he was signing an order granting leave to file the amended motion. Id. The regular trial judge found that the order granting the new trial was void. Id. The defendant challenged this ruling, citing Matthews. Id. The court of criminal appeals ruled that Matthews was distinguishable:
In Matthews it appears that the trial court granted the defendant's motion for new trial, then attempted to set aside its order because it had been under a "misapprehension of the evidence complained of by defendant in his motion for new trial." The instant case is distinguishable. The court in this case did not knowingly grant the motion for new trial and then decide to retract its decision. The court was not even aware that it was granting a motion for new trial when it signed the order. No hearing was held in this case; no evidence was adduced from which the court could have knowingly granted a new trial. The signing of an order form is not all there is to granting a new trial.
Further, the court's error in this case does not strike us as a judicial error, as certainly was the case in Matthews. The error here is more akin to clerical error, which can be corrected.
Id. 955-56. In clarifying its holding, the court in English overruled Matthews to the extent that it could be construed to conflict with its holding. Id. at 956. Thus, under Matthews as modified by English, the rule was established that "a trial court cannot rescind an order granting a new trial absent clerical errors." Ex parte Drewery, 677 S.W.2d 533, 536 (Tex. Crim. App. 1984).
This remained the rule until Awadelkariem. In that case, the defendant, after pleading not guilty, was convicted of the charged offense and sentenced to eight years' imprisonment, probated. 974 S.W.2d at 722. Later that day, the defendant and his counsel approached the trial court and offered to change his plea to guilty if the court would grant him deferred adjudication. Id. at 723. The court agreed and signed an order granting the defendant a new trial. Id. The defendant later reneged on his promise to enter a guilty plea, and the trial court rescinded its new trial order. Id. The court of appeals, citing Matthews, held that the trial court was not authorized to set aside the order granting a new trial that it had knowingly and deliberately signed. Id. (1) The court of criminal appeals, after tracing the history of the Matthews rule through English and other later opinions, and after discussing the practice in other jurisdictions and in Texas civil cases, concluded that "the Matthews rule, having always rested on questionable foundations, is no longer viable." Id. at 728. The court continued:
Nevertheless, . . . [we] conclude that a time limitation must exist on the power to rescind a new trial order. The appellate rules give a trial court 75 days after judgment is imposed or suspended in open court to rule upon a motion for new trial.[ (2)] We hold that an order granting or denying a motion for new trial may be freely rescinded so long as such action occurs within the 75 days provided by the rules (i.e., current Rule 21.8(a) & (c)); to the extent that Matthews and its progeny were held to apply during this time period, they are overruled. However, after the 75 day period expires, an order granting or denying a new trial becomes "final," and Matthews and its progeny control. Id. Because the trial court rescinded its order granting Awadelkariem a new trial within the seventy-five days allowed by rule 21.8, the recision was effective. Id.
In summary, before Awadelkariem, a trial court could not set aside an order granting a new trial that it had knowingly and intentionally signed, even if it had done so under a misapprehension of the pertinent facts or law (Matthews), but a trial court could set aside a new trial order that it had unintentionally and inadvertently signed (English). After Awadelkariem, a trial court may freely set aside an order granting a motion for new trial, regardless of the circumstances under which it was signed, so long as the court acts within the seventy-five day period after sentence is imposed.
Appellant argues that the Awadelkariem opinion should be read to create a bright-line, seventy-five day period within which an order granting a new trial can be changed and outside of which it is final and cannot be altered for any reason. However, contrary to appellant's interpretation of Awadelkariem, the trial court does not lose all authority to revisit an order granting a new trial after the seventy-five day period has expired. Instead, according to Awadelkariem, after the expiration of seventy-five days, "Matthews and its progeny control." Id. We read this to mean that the court of criminal appeals intended to overrule the pre-Awadelkariem rule for the seventy-five day period after sentence is imposed, and then to revert to the pre-Awadelkariem rule after the seventy-five day period ends. This would include not only Matthews, but also English and other post-Matthews "clerical error" opinions discussed in Awadelkariem as the "progeny" of Matthews. Therefore, we believe that the most comprehensive reading of Awadelkariem is that within seventy-five days following the imposition of sentence, an order granting a motion for new trial can be freely revisited and set aside, but after the seventy-five days, an order granting a motion for new trial can be set aside only if it was inadvertently signed as a result of clerical error. Otherwise, we would be reading the phrase "and its progeny" (when referring to Matthews) out of the Awadelkariem opinion. (3)
The circumstances of this case are substantially the same as those presented in English. The trial court never intended to grant appellant's motion for new trial; indeed, for the reasons stated in English, it could be argued that the motion was never actually granted. Instead, it is apparent from the record that the trial court inadvertently signed the May 9 new trial order believing that it was signing an order granting defense counsel's motion to withdraw. We hold that because the May 9 order was signed as a result of clerical error rather than judicial error, the trial court was authorized to set it aside even after the time for acting on the motion for new trial had expired. See State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (stating that trial court may use nunc pro tunc procedure to correct clerical error in order even after expiration of its plenary power).
The point of error is overruled, and the judgment of conviction is affirmed.
__________________________________________
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Affirmed
Filed: January 17, 2008
Publish
1. See Awadelkariem v. State, No. 05-95-00779-CR, 1997 Tex. App. LEXIS 1754, at *10-11 (Tex. App.--Dallas Apr. 4, 1997) (not designated for publication).
2. The court is using the term "judgment" synonymously with the term "sentence." Per Texas Rule of Appellate Procedure 21.8, the time limit begins to run when sentence is imposed or suspended in open court.
3. Had the court of criminal appeals intended a bright-line, seventy-five day cut-off for the trial court's power to revisit an order granting a new trial, there would have been no need to mention the "progeny" of Matthews, i.e. English and following cases. The court would simply have stated that, after the expiration of the seventy-five day period, the rule set out in Matthews controlled. While such a rule of absolute finality is arguably viable, it does not appear to be the rule that the court adopted.
AFFIRMED: Opinion by Justice Waldrop (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00400-CR
Craig Jerry Stepan v. The State of Texas--Appeal from 27th District Court of Bell County
David Disraeli v. Crenshaw Athletic Club, Inc.
M E M O R A N D U M O P I N I O N
David Disraeli appeals a final judgment that was signed on August 17, 2007. Disraeli filed a timely motion for new trial. Because a timely motion for new trial was filed, the notice of appeal was due by November 15, 2007, 90 days from the date the judgment was signed. See Tex. R. App. P. 26.1(a)(1). However, notice of appeal in this case was not filed until December 4, 2007. Disraeli simultaneously filed a motion for extension of time in which to file his notice of appeal. Pursuant to Tex. R. App. P. 26.3, both the notice of appeal and the motion for extension of time are due to be filed within fifteen days of the original deadline for filing the notice of appeal. In the present case, the motion for extension of time and the notice of appeal were filed outside of the additional fifteen-day limit. As a result, the notice of appeal was not timely filed. Accordingly, the motion for extension of time is overruled, and the appeal is dismissed for want of jurisdiction.
____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed for Want of Jurisdiction
Filed: January 15, 2008
DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Henson (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00683-CV
David Disraeli v. Crenshaw Athletic Club, Inc.
Appeal from County Court at Law No. 1 of Travis County
M E M O R A N D U M O P I N I O N
David Disraeli appeals a final judgment that was signed on August 17, 2007. Disraeli filed a timely motion for new trial. Because a timely motion for new trial was filed, the notice of appeal was due by November 15, 2007, 90 days from the date the judgment was signed. See Tex. R. App. P. 26.1(a)(1). However, notice of appeal in this case was not filed until December 4, 2007. Disraeli simultaneously filed a motion for extension of time in which to file his notice of appeal. Pursuant to Tex. R. App. P. 26.3, both the notice of appeal and the motion for extension of time are due to be filed within fifteen days of the original deadline for filing the notice of appeal. In the present case, the motion for extension of time and the notice of appeal were filed outside of the additional fifteen-day limit. As a result, the notice of appeal was not timely filed. Accordingly, the motion for extension of time is overruled, and the appeal is dismissed for want of jurisdiction.
____________________________________
Diane Henson, Justice
Before Chief Justice Law, Justices Waldrop and Henson
Dismissed for Want of Jurisdiction
Filed: January 15, 2008
DISMISSED FOR WANT OF JURISDICTION: Opinion by Justice Henson (Before Chief Justice Law, Justices Waldrop and Henson)
03-07-00683-CV
David Disraeli v. Crenshaw Athletic Club, Inc.
Appeal from County Court at Law No. 1 of Travis County
Nunc Pro Tunc Order was proper in mother's prosecution for child snatching
In re Vanessa Cherry, No. 03-07-00629-CV (Tex.App. - Austin, Jan. 11, 2008)(Opinion by Justice Pemberton) (child custody dispute, interference) (Before Chief Justice Law, Justices Puryear and Pemberton)
Appeal from 368th District Court of Williamson County
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
M E M O R A N D U M O P I N I O N
Relator Vanessa Cherry filed a petition for writs of mandamus and prohibition, which she subsequently amended, as well as a motion for temporary emergency relief. See Tex. R. App. P. 52.1, 52.10. We will deny the amended petition for writs of mandamus and prohibition and dismiss as moot the motion for temporary relief.
This proceeding is related to Cherry's criminal prosecution for her conduct in a child custody dispute with her ex-husband. (1)
On or about October 18, 2004, Cherry absconded to New York with the couple's only child. She was arrested in New York on or about December 3, 2004, and subsequently indicted in Williamson County for the offense of interference with child custody. On August 15, 2005, Cherry pleaded guilty to the offense in exchange for the State's recommendation that she receive three years' deferred adjudication, a $1,500 fine, and 15 days in jail. Cherry signed a written plea agreement reflecting this recommendation, and acknowledged it on the record in open court. Two additional hearings were held regarding sentencing and conditions of community supervision, after which the district court signed an "Order of Deferred Adjudication; Community Supervision" that, in relevant part, recited the following:
DATE OF JUDGMENT: October 18, 2005
* * *
OFFENSE: Interference with Child Custody
STATUTE FOR OFFENSE: Section 25.03, Penal Code
APPLICABLE PUNISHMENT RANGE: State Jail Felony
DATE OF OFFENSE: October 18, 2004
CHARGING INSTRUMENT: Indictment
TERMS OF PLEA AGREEMENT . . .: 3 Years Deferred Adjudication; $1,500 Fine; 15 Days Jail
PLEA TO OFFENSE: Guilty
* * *
DATE ORDER TO COMMENCE: October 18, 2004
PERIOD OF SUPERVISION: Three (3) years
FINE: $1,500
* * *
Of significance to this proceeding are the order's recitations of the date of the offense (October 18, 2004), the date of judgment (October 18, 2005--exactly one year after the date of the offense), and the date the order was to commence (October 18, 2004, the same date as the date of the offense). Thus, the order literally provided that the three-year period of community supervision for which Cherry had plea-bargained would begin not on the date of judgment, but one year earlier, on precisely the same day she committed her offense, before she was apprehended by law enforcement.
In this proceeding, Cherry seeks to challenge a nunc pro tunc order entered by the district court on November 19, 2007. This nunc pro tunc order is identical to the original "Order of Deferred Adjudication; Community Supervision" except that the commencement date is changed to "October 18, 2005." Cherry cites the established principle that nunc pro tunc is available only to correct the court's records to accurately reflect the judgment actually rendered, not to modify or add provisions to the judgment actually rendered. See In re Hancock, 212 S.W.3d 922, 927 (Tex. App.--Fort Worth 2007, orig. proceeding); Smith v. State, 15 S.W.3d 294, 299 (Tex. App.--Dallas 2000, no pet.); see also Ex parte Dopps, 723 S.W.2d 669, 671 (Tex. Crim. App. 1986) (the "correction can be only as to what was done and not as to what should have been done."). Cherry argues that the sole evidence in the record regarding the date her community service was to begin is the recitation of "October 18, 2004" in the original judgment and that "this is not a case where the record is silent or where the record reveals a contradiction." Thus, Cherry maintains, the original order accurately reflected the judgment actually rendered by the district court.
If the original order did not accurately reflect the judgment the district court had actually rendered, Cherry continues, the discrepancy was the result of a "judicial error," not a mere clerical error.
A nunc pro tunc order may be used only to correct a clerical error--the failure to record or accurately reflect the judgment actually rendered--not a judicial error, one that is the product of judicial reasoning or determination. See In re Hancock, 212 S.W.3d at 927; Jiminez v. State, 953 S.W.2d 293, 295 (Tex. App.--Austin 1997, pet. ref'd). Examples of judicial errors include mistakes of law or judgments based on misunderstandings of underlying facts. In re Hancock, 212 S.W.3d at 927-28 (trial court's modification and "extension" of defendant's ten-year community supervision period to six years, based on misunderstanding that original period had been only five years, "required judicial reasoning" and error was judicial in nature); Smith, 15 S.W.3d at 300 (granting of motion based on mistake of law was in nature of judicial error). Whether an error is clerical or judicial in nature is a question of law. See In re Hancock, 212 S.W.3d at 927.
Based on these premises, Cherry asserts that her three-year period of community supervision expired on October 17, 2007 and that the district court's subsequent nunc pro tunc order is void because "[a] trial court has no jurisdiction to extend a period of community supervision after the period of supervision has expired, unless a motion to revoke is filed and a capias is issued before the period of community supervision ends." In re Hancock, 212 S.W.3d at 928 (citing Tex. Code Crim. Proc. Ann. art. 42.12, §§ 21(c), 22(c) (West Supp. 2007)). It is undisputed that neither event occurred here.
A defendant has the right to appeal from a nunc pro tunc judgment, even if he or she waived the right to appeal the underlying conviction, where the change has the effect of increasing the defendant's punishment. See Ex parte Curry, 712 S.W.2d 878, 880 (Tex. App.--Austin 1986, pet. ref'd); Rabsatt v. State, No. 03-06-00668-CV, 2007 Tex. App. LEXIS 9031, at *2 n.1 (Tex. App.--Austin Nov. 15, 2007, no pet. h.) (mem. op., not designated for publication).
The State maintains that Cherry thus has an adequate appellate remedy and that mandamus, therefore, will not lie. Cherry responds that recent decisions of the Texas Supreme Court hold that where a trial court's order is void, as she asserts the nunc pro tunc order here is, "the relator need not show that it did not have an adequate appellate remedy, and mandamus is appropriate." In re Southwestern Bell Telephone Co., 35 S.W.3d 602, 605 (Tex. 2006) (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)); see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004).
Even if Cherry lacks an adequate appellate remedy, we conclude that the district court did not abuse its discretion in entering the nunc pro tunc order.
The record before us reflects that Cherry entered into a written plea agreement to plead guilty to interference with child custody in exchange for the State's recommendation of "3 years deferred adjudication; $1,500 fine; 15 days in jail." When accepting her plea, the district court inquired of Cherry whether it was her understanding of the agreement that "the State's agreed to recommend three deferred, a $1,500 fine, and 15 days in jail," to which Cherry responded, "Yes, your honor." Consistent with the plea agreement, the original "Order of Deferred Adjudication; Community Supervision" reflected the "terms of plea agreement" as "3 Years Deferred Adjudication; $1,500 Fine; 15 Days Jail"; that Cherry pleaded guilty; and the "period of supervision" of "Three (3) Years." During sentencing, the district court inquired, and Cherry acknowledged, that "the plea agreement called for you to receive three years' deferred, a $1,500 fine, 15 days in jail." These statements are consistent with an expectation by both the district court and Cherry that her community supervision period would be imposed prospectively. Other than the single recitation of "October 18, 2004" as the "date order to commence" in the original order, there is no evidence that the district court somehow could have intended to impose the agreed three-year community supervision period retroactively, to begin a year before judgment, on the date of Cherry's offense, and before Cherry was even apprehended by authorities. This record presents sufficient evidence that the district court actually rendered judgment that Cherry begin her three-year community supervision period on October 18, 2005, not 2004. (2)
We further conclude that the inconsistent recitation in the original order was in the nature of a clerical error, not a judicial error that is the product of judicial reasoning or deliberation. See Rabsatt, 2007 Tex. App. LEXIS 9031, at *2 (omission of deadly weapon finding from original judgment was in nature of clerical error; court had made that finding orally on the record).
Accordingly, we conclude that the nunc pro tunc order challenged by Cherry is not void and that the district did not abuse its discretion in entering it.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Filed: January 11, 2008
1. This underlying custody dispute is the subject of an appeal now pending in this Court. Cherry v. Serio, No. 03-07-00126-CV (Tex. App.--Austin, notice of appeal filed Feb. 28, 2007).
2. We need not address the admissibility or implications of the evidence the State presented at the hearing regarding the challenged nunc pro tunc order.
January 11, 2008
Civil Causes Decided:
MOTION OR WRIT DENIED: Opinion by Justice Pemberton (Before Chief Justice Law, Justices Puryear and Pemberton)
03-07-00629-CV
In re Vanessa Cherry--Appeal from 368th District Court of Williamson County
Appeal from 368th District Court of Williamson County
ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY
M E M O R A N D U M O P I N I O N
Relator Vanessa Cherry filed a petition for writs of mandamus and prohibition, which she subsequently amended, as well as a motion for temporary emergency relief. See Tex. R. App. P. 52.1, 52.10. We will deny the amended petition for writs of mandamus and prohibition and dismiss as moot the motion for temporary relief.
This proceeding is related to Cherry's criminal prosecution for her conduct in a child custody dispute with her ex-husband. (1)
On or about October 18, 2004, Cherry absconded to New York with the couple's only child. She was arrested in New York on or about December 3, 2004, and subsequently indicted in Williamson County for the offense of interference with child custody. On August 15, 2005, Cherry pleaded guilty to the offense in exchange for the State's recommendation that she receive three years' deferred adjudication, a $1,500 fine, and 15 days in jail. Cherry signed a written plea agreement reflecting this recommendation, and acknowledged it on the record in open court. Two additional hearings were held regarding sentencing and conditions of community supervision, after which the district court signed an "Order of Deferred Adjudication; Community Supervision" that, in relevant part, recited the following:
DATE OF JUDGMENT: October 18, 2005
* * *
OFFENSE: Interference with Child Custody
STATUTE FOR OFFENSE: Section 25.03, Penal Code
APPLICABLE PUNISHMENT RANGE: State Jail Felony
DATE OF OFFENSE: October 18, 2004
CHARGING INSTRUMENT: Indictment
TERMS OF PLEA AGREEMENT . . .: 3 Years Deferred Adjudication; $1,500 Fine; 15 Days Jail
PLEA TO OFFENSE: Guilty
* * *
DATE ORDER TO COMMENCE: October 18, 2004
PERIOD OF SUPERVISION: Three (3) years
FINE: $1,500
* * *
Of significance to this proceeding are the order's recitations of the date of the offense (October 18, 2004), the date of judgment (October 18, 2005--exactly one year after the date of the offense), and the date the order was to commence (October 18, 2004, the same date as the date of the offense). Thus, the order literally provided that the three-year period of community supervision for which Cherry had plea-bargained would begin not on the date of judgment, but one year earlier, on precisely the same day she committed her offense, before she was apprehended by law enforcement.
In this proceeding, Cherry seeks to challenge a nunc pro tunc order entered by the district court on November 19, 2007. This nunc pro tunc order is identical to the original "Order of Deferred Adjudication; Community Supervision" except that the commencement date is changed to "October 18, 2005." Cherry cites the established principle that nunc pro tunc is available only to correct the court's records to accurately reflect the judgment actually rendered, not to modify or add provisions to the judgment actually rendered. See In re Hancock, 212 S.W.3d 922, 927 (Tex. App.--Fort Worth 2007, orig. proceeding); Smith v. State, 15 S.W.3d 294, 299 (Tex. App.--Dallas 2000, no pet.); see also Ex parte Dopps, 723 S.W.2d 669, 671 (Tex. Crim. App. 1986) (the "correction can be only as to what was done and not as to what should have been done."). Cherry argues that the sole evidence in the record regarding the date her community service was to begin is the recitation of "October 18, 2004" in the original judgment and that "this is not a case where the record is silent or where the record reveals a contradiction." Thus, Cherry maintains, the original order accurately reflected the judgment actually rendered by the district court.
If the original order did not accurately reflect the judgment the district court had actually rendered, Cherry continues, the discrepancy was the result of a "judicial error," not a mere clerical error.
A nunc pro tunc order may be used only to correct a clerical error--the failure to record or accurately reflect the judgment actually rendered--not a judicial error, one that is the product of judicial reasoning or determination. See In re Hancock, 212 S.W.3d at 927; Jiminez v. State, 953 S.W.2d 293, 295 (Tex. App.--Austin 1997, pet. ref'd). Examples of judicial errors include mistakes of law or judgments based on misunderstandings of underlying facts. In re Hancock, 212 S.W.3d at 927-28 (trial court's modification and "extension" of defendant's ten-year community supervision period to six years, based on misunderstanding that original period had been only five years, "required judicial reasoning" and error was judicial in nature); Smith, 15 S.W.3d at 300 (granting of motion based on mistake of law was in nature of judicial error). Whether an error is clerical or judicial in nature is a question of law. See In re Hancock, 212 S.W.3d at 927.
Based on these premises, Cherry asserts that her three-year period of community supervision expired on October 17, 2007 and that the district court's subsequent nunc pro tunc order is void because "[a] trial court has no jurisdiction to extend a period of community supervision after the period of supervision has expired, unless a motion to revoke is filed and a capias is issued before the period of community supervision ends." In re Hancock, 212 S.W.3d at 928 (citing Tex. Code Crim. Proc. Ann. art. 42.12, §§ 21(c), 22(c) (West Supp. 2007)). It is undisputed that neither event occurred here.
A defendant has the right to appeal from a nunc pro tunc judgment, even if he or she waived the right to appeal the underlying conviction, where the change has the effect of increasing the defendant's punishment. See Ex parte Curry, 712 S.W.2d 878, 880 (Tex. App.--Austin 1986, pet. ref'd); Rabsatt v. State, No. 03-06-00668-CV, 2007 Tex. App. LEXIS 9031, at *2 n.1 (Tex. App.--Austin Nov. 15, 2007, no pet. h.) (mem. op., not designated for publication).
The State maintains that Cherry thus has an adequate appellate remedy and that mandamus, therefore, will not lie. Cherry responds that recent decisions of the Texas Supreme Court hold that where a trial court's order is void, as she asserts the nunc pro tunc order here is, "the relator need not show that it did not have an adequate appellate remedy, and mandamus is appropriate." In re Southwestern Bell Telephone Co., 35 S.W.3d 602, 605 (Tex. 2006) (citing In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)); see also In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004).
Even if Cherry lacks an adequate appellate remedy, we conclude that the district court did not abuse its discretion in entering the nunc pro tunc order.
The record before us reflects that Cherry entered into a written plea agreement to plead guilty to interference with child custody in exchange for the State's recommendation of "3 years deferred adjudication; $1,500 fine; 15 days in jail." When accepting her plea, the district court inquired of Cherry whether it was her understanding of the agreement that "the State's agreed to recommend three deferred, a $1,500 fine, and 15 days in jail," to which Cherry responded, "Yes, your honor." Consistent with the plea agreement, the original "Order of Deferred Adjudication; Community Supervision" reflected the "terms of plea agreement" as "3 Years Deferred Adjudication; $1,500 Fine; 15 Days Jail"; that Cherry pleaded guilty; and the "period of supervision" of "Three (3) Years." During sentencing, the district court inquired, and Cherry acknowledged, that "the plea agreement called for you to receive three years' deferred, a $1,500 fine, 15 days in jail." These statements are consistent with an expectation by both the district court and Cherry that her community supervision period would be imposed prospectively. Other than the single recitation of "October 18, 2004" as the "date order to commence" in the original order, there is no evidence that the district court somehow could have intended to impose the agreed three-year community supervision period retroactively, to begin a year before judgment, on the date of Cherry's offense, and before Cherry was even apprehended by authorities. This record presents sufficient evidence that the district court actually rendered judgment that Cherry begin her three-year community supervision period on October 18, 2005, not 2004. (2)
We further conclude that the inconsistent recitation in the original order was in the nature of a clerical error, not a judicial error that is the product of judicial reasoning or deliberation. See Rabsatt, 2007 Tex. App. LEXIS 9031, at *2 (omission of deadly weapon finding from original judgment was in nature of clerical error; court had made that finding orally on the record).
Accordingly, we conclude that the nunc pro tunc order challenged by Cherry is not void and that the district did not abuse its discretion in entering it.
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Puryear and Pemberton
Filed: January 11, 2008
1. This underlying custody dispute is the subject of an appeal now pending in this Court. Cherry v. Serio, No. 03-07-00126-CV (Tex. App.--Austin, notice of appeal filed Feb. 28, 2007).
2. We need not address the admissibility or implications of the evidence the State presented at the hearing regarding the challenged nunc pro tunc order.
January 11, 2008
Civil Causes Decided:
MOTION OR WRIT DENIED: Opinion by Justice Pemberton (Before Chief Justice Law, Justices Puryear and Pemberton)
03-07-00629-CV
In re Vanessa Cherry--Appeal from 368th District Court of Williamson County
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