Ivo Nabelek v. The Court of Criminal Appeals et al., No. 03-06-00256-CV (Tex.App.- Austin, May 15, 2008)(Opinion by Justice Waldrop) (suit against judge, clerks, court; dismissal for want of jurisdiction, res judicata) (Before Justices Patterson, Pemberton and Waldrop)
Ivo Nabelek v. The Court of Criminal Appeals, The Supreme Court of Texas, The Hon. Louise Pearson, The Hon. Blake Hawthorne, The Honorable Denise Collins, and The Hon. Debbie Stricklin
Appeal from 353rd District Court of Travis County
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-GN-05-001784, HONORABLE WILLIAM E. BENDER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Ivo Nabelek, proceeding pro se, (1) appeals from the district court's order dismissing his claims against appellees for want of jurisdiction. He contends that (1) the trial court erred in failing to wait until his written response to the appellees' motion to dismiss was filed; (2) the grounds stated in appellees' motion to dismiss, including the lack of a justiciable controversy, do not support the dismissal; and (3) the trial court refused to explain why it dismissed his claims "without prejudice." We affirm.
Nabelek's complaints in this cause filed in Travis County arise from the handling and disposition of other causes of action in the Harris County district courts, the Texas Court of Criminal Appeals, the Texas Supreme Court, and the United States Supreme Court. Nabelek alleges generally that lawsuits in which he was a party in the district courts of Harris County were improperly handled by the clerk (2) and that his rights were prejudiced by a lack of adequate procedures as well as inaction or incorrect action by the district judges presiding. His complaints in this cause arise from his previous suits for clemency, nunc pro tunc reformation of a judgment, DNA testing, and writs of habeas corpus and mandamus in Harris County. He challenged the denial of relief in the Harris County suits, in some instances, to the extent of seeking a writ of certiorari in the United States Supreme Court. He asserts in this cause that his rights to due process, access to the courts, equal protection, and pro se representation were violated in the prior cases by clerical failures to file pleadings, pass the pleadings along to the judges, and failure to forward the pleadings to appellate courts, as well as by the judges' failures to consider or properly rule on his pleadings. Nabelek also contends that, when denying his habeas applications, the trial courts improperly failed to make findings of fact, issued only conclusions of law, and made additional recommendations that the court of criminal appeals "then adopted blindly."
Nabelek complains about the judges of the court of criminal appeals and clerk. (3) He contends that they denied him due process by failing to stay his original habeas actions pending results in a DNA suit. He complains that he was denied access to that court by those judges' refusal to grant him leave to file a petition for writ of mandamus that would order the Houston trial court to entertain his motion to issue a judgment nunc pro tunc. Nabelek also complains that the limited space available on the court of criminal appeals's prescribed habeas application form did not allow him to explain why his more than seventy additional claims could not have been brought in his original petition. He contends that the form incorrectly requires that he state the "reasons" he could not have brought the claims previously, instead of meeting the law's requirement of a statement of "facts" as to why they could not have been presented. Nabelek also contends that the rule prohibiting the clerk from filing habeas applications that are not on the prescribed form is unconstitutional. See Tex. R. App. P. 73.2.
Nabelek also complains that the Texas Supreme Court and its clerk (4) improperly classified a case in which he had filed a petition for review as a criminal action. He contends that this misclassification led the court to err by transferring the petition to the court of criminal appeals, thus depriving him of access to the Texas Supreme Court and of the opportunity to have the merits of his claim considered. He also complains about the United States Supreme Court's decree (over Justice Stevens's dissent) that he must pay a $300 docketing fee and comply with Supreme Court Rule 33.1 before he can pursue any non-criminal relief at that court. He asserts that the Supreme Court justices (other than Justice Stevens) are denying him access to that court.
Nabelek requested that the Travis County District Court issue injunctions requiring and prohibiting certain actions by the clerks, judges, and justices of the Harris County District Court, the Texas Court of Criminal Appeals, the Texas Supreme Court, and the United States Supreme Court. In his prayer for relief, Nabelek requested a declaratory judgment declaring his rights and whether they had been violated in addition to the injunctive relief requested above.
The appellees filed a plea to the jurisdiction. They contended that Nabelek's petition did not present a justiciable controversy. They argued that, because the district court was not empowered to require courts of equal or higher authority to do anything, the relief requested would not resolve the controversy between the parties. They further contended that Nabelek's petition is barred by res judicata because a federal district court had already resolved the claims involving judges Collins and Stricklin and the judges of the court of criminal appeals by dismissing them for failure to state a claim. The appellees also urged that Nabelek's claims are impermissible collateral attacks on decisions made in other suits. The district court granted the plea to the jurisdiction.
Because the existence of subject-matter jurisdiction is a question of law, we review de novo the trial court's ruling on a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). Unless a defendant pleads and proves that allegations in a plaintiff's petition were fraudulently made, we take as true the facts pleaded in the petition to determine whether those facts support jurisdiction in the trial court. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). If necessary, we may review the entire record to determine if the trial court had jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000). A judgment may be reversed only for an error that either probably caused the rendition of an improper judgment or probably prevented the appellant from presenting his appeal. Tex. R. App. P. 44.1(a).
Nabelek initially complains in this appeal that the district court erred by failing to wait to rule on the plea to the jurisdiction until his response was filed. The plea to the jurisdiction was filed on July 26, 2005. Nabelek contends that, due to his incarceration, he did not receive the plea until July 29, 2005. Although he mailed his response on August 4, 2005, the trial court signed the order granting the plea on August 8, 2005--after the hearing (in which Nabelek participated by telephone), but two days before Nabelek's response was filed in the trial court on August 10, 2005. Nabelek complains that he did not have a reasonable chance to receive the plea, research his response, and have his mailed response received by the court before it ruled.
Nabelek has not shown that the district court's failure to wait for his written response to the plea to the jurisdiction before granting the plea probably resulted in an improper decision. He participated in the hearing by telephone and presented his arguments orally before the trial court granted the plea to the jurisdiction. Further, the district court had Nabelek's written response for twenty-eight days while it had plenary power to reconsider and withdraw its order. The district court did not do so. See Tex. R. Civ. P. 329b(d). The court's action has not affected Nabelek's ability to present his arguments on appeal. Because we review Nabelek's complaints as a matter of law--the same standard applicable in the district court--Nabelek's arguments to the district court can be considered on appeal without any prejudice. Nabelek's response is in the record before us, and we will consider his arguments therein to the extent that he presents them on appeal. We are not persuaded that the timing of the district court's hearing and ruling is the source of any reversible error in this cause.
Nabelek contends that the district court erred in finding that his claims do not present a justiciable controversy. A justiciable controversy exists where there is a real and substantial controversy involving a genuine conflict of tangible interests and not merely a theoretical dispute. Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). A district court has the power to issue injunctions and other writs necessary to protect its jurisdiction. Tex. Gov't Code Ann. § 24.011 (West 2004). A district court also has the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. Tex. Civ. Prac. & Rem. Code Ann. § 37.003 (West 1997). A declaratory judgment is appropriate only if a justiciable controversy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. Bonham State Bank, 907 S.W.2d at 467.
We conclude that the court did not err by concluding that Nabelek's claims do not present a justiciable controversy. The Texas Supreme Court has held that "[o]ne court has no power to enjoin official action by the judge of another court of co-ordinate power and jurisdiction." Lord v. Clayton, 352 S.W.2d 718, 723 (Tex. 1961); Flores v. Peschel, 927 S.W.2d 209, 212 (Tex. App.--Corpus Christi 1996, orig. proceeding). If a court cannot enjoin its peers, it cannot enjoin official action by justices, judges, and clerks of courts that are superior to it in the judicial hierarchy. We find and are cited to no authority to the contrary. Thus, if the Travis County District Court had issued the requested injunctions, they would have been void. See Lord, 352 S.W.2d at 723. Nabelek's requested declarations are linked with the injunctive relief because he asserts that the officials' actions (or failures to act) that he wishes were restrained (or compelled) violated his rights. Further, the requested injunctions and declarations appear to relate to causes that have been litigated to final judgment or dismissal. (5) Therefore, ordering the court clerk to present documents or include them in a record in such a case over which the court no longer has plenary power would not vest the judges and justices with the power to alter the result in those cases. This would not resolve the underlying controversy. Because the controversy would not have been resolved by the requested injunction or declaration, the disputes presented were not justiciable before the district court. The district court correctly dismissed Nabelek's claims as failing to present a justiciable controversy.
Nabelek also complains that the district court failed to explain why it dismissed his claims "without prejudice." He contends that this left him uncertain about how to proceed, although he acknowledges that the district court could not advise him. We, too, cannot issue an advisory opinion. Wessely Energy Corp. v. Jennings, 736 S.W.2d 624, 628 (Tex. 1987). We are limited to resolving those issues necessary to the disposition of the appeal, and can reverse only for harmful errors. See Tex. R. App. P. 44.1(a), 47.1. We are not persuaded that either the dismissal without prejudice or the failure to explain probably led to an improper decision or probably prevented Nabelek from properly presenting his appeal. See id. 44.1(a).
Affirmed.
G. Alan Waldrop, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: May 14, 2008
1. Nabelek is incarcerated in Texas state prison.
2. Nabelek also sued Harris County District Clerk Charles Bacarisse in this cause. However, the claims against Bacarisse are not before us because they were severed and transferred to Harris County pursuant to Bacarisse's motion to transfer venue.
3. Nabelek sued Troy C. Bennett, Jr. in his official capacity as clerk of the court of criminal appeals. Because Bennett has been replaced as clerk of the court of criminal appeals by Louise Pearson, she has been substituted as defendant/appellee. See Tex. R. App. P. 7.2(a).
4. Nabelek sued Andrew Weber in his official capacity as supreme court clerk. Because Weber has been replaced as clerk by Blake Hawthorne, Hawthorne has been substituted as defendant/appellee. See id.
5. These include a request for recommendation of pardon or commutation of sentence filed in 2005 in which the pleadings were rejected as an improper ex parte communication, a 2004 motion for judgment nunc pro tunc in a case tried in 1994, a habeas application filed in 1999 and heard in 2001, a successive habeas application filed and dismissed in 2003, a motion filed in 2004 to reopen both the 1999 and 2003 habeas applications, a petition for review filed in 2003, and several successive "replacement" petitions filed thereafter.
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Monday, May 19, 2008
Monday, May 12, 2008
Rodriguez v. TDFPS (Tex.App.- Austin, May 8, 2008)
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services, No. 03-07-00467-CV (Tex.App.- Austin, May 8, 2008)(Opinion by Justice Waldrop) (TDFPS suits, SAPCR, supervised vistiation, limited access, pro se litigants) (Before Chief Justice Law, Justices Pemberton and Waldrop)
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services--Appeal from 421st District Court of Caldwell County
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 06-FL-018, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Mark Rodriguez and Carmen Rodriguez appeal from the final order in this suit affecting the parent-child relationship with their daughter, B. R. (1) The order appointed the Department of Family and Protective Services (FPS) as the permanent managing conservator and appointed both appellants as possessory conservators with limited visitation rights. Appellants complain that the trial court relied on hearsay, as well as fraudulent and unsubstantiated evidence. They also assert that the court made erroneous decisions and incorrectly required Mark Rodriguez to undergo sex offender therapy. We affirm.
The record on appeal consists only of the clerk's record. Appellants did not request the preparation of a reporter's record. They assert that no reporter was present during the final set of hearings, but that the judge presiding recorded proceedings on her laptop computer. Appellants assert that the clerk's record provides adequate evidence to support their complaints, rejecting FPS's argument that the absence of a reporter's record prevents this Court from reversing the order because we cannot review the evidence admitted at the trial.
Appellants also filed a Motion for Appellate Court to Provide Alternatives to Court Reporter's Record if Court Reporter Record is Required by Appellate Court, which this Court denied. In that motion, they asserted that, although they did not request a reporter, the absence of a reporter was a denial of their right to a fair hearing. They asserted that the clerk's office failed to include exhibits as requested. (2) The motion states that, despite the absence of these exhibits:
Appellants believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions. The undersigned requests that should the Appeals
Court mandate a transcript of the final hearing, then the Appellants request either:
• The Appeals Court to utilize the digital recording available from the Caldwell County court or
• Allow the Appellants' discretion on a partial transcription of the final hearing day of the six day trial.
Appellants asserted in the motion that preparation of the full reporter's record would be several thousand dollars and beyond their financial resources.
We overruled appellants' motion because their motion essentially asked this Court to decide for appellants how to pursue this appeal. This Court is a neutral arbiter and cannot direct a party's strategic decisions. (3) Under the rules, appellants have the burden of making many decisions, including what issues to present, what relief to request, what portions of the trial court record to request be included in the record on appeal, and how to craft a brief that best serves their interest. See Tex. R. App. P. 34.6(b), 38.1. The appellate court does not "mandate" a reporter's record absent the party's request and the reporter's failure to provide it. Appellants chose not to request the reporter's record, stating that they "believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions." Appellants have chosen to rely on materials in the clerk's record to support their issues presented, as is their prerogative. See Tex. R. App. P. 37.3(c).
In the absence of a reporter's record from a bench trial, a court must presume that the omitted proceedings are relevant to and support the trial court's judgment. Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 538 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Therefore, this Court must presume that (1) the trial court properly exercised its discretion to hear evidence regarding all of the issues, whether appealed or not, and (2) the trial court heard evidence that is legally sufficient to support its judgment. Id. This standard arguably would require that we affirm the final order without further deliberation. However, because of the importance of the rights at stake in this child custody case and because the clerk's record includes statements and affidavits, we will examine the issues presented in light of the documents in the clerk's record.
The clerk's record contains statements made to law enforcement by Carmen Rodriguez, appellants' children, and a neighbor about specific incidents and general conditions in the Rodriguez home. The taking of statements was apparently prompted by a report to a neighbor by appellants' 19-year-old daughter, J. R., of severe neglect, sexual and physical abuse, and long-term physical and emotional isolation. Authorities were contacted, and the family gave written statements.
In a statement dated January 8, 2006, Carmen recounted an incident in July 2003 in which "Mark was trying to hurt [her older daughters] and [an older son] was protecting [them]. . . . Mark is a violent person and frequently emotionally abusive. I did not know he was molesting my daughter [J. R.] until today."
According to their 25-year-old daughter, Monique, Mark "forces himself" on female family members, which she describes by saying "his presence makes [the girls in the family] and my mom uncomfortable and he will not leave them alone." The altercation Carmen recounted was, according to Monique's statement, prompted by Mark's increasingly heated inquiries into credit card balances. She also reported that "yesterday, January 7, 2005, I found out that [sisters J. R., C. R., and B. R.] were asked by Mark to take off their clothes so he can take pictures of them naked." (4)
Appellants' 28-year-old son, Lorran, corroborated the story about the credit card altercation. He added the detail that, before the altercation, Mark was angry because a friend of Carmen's--who Mark believed was advising her to divorce Mark--had called the house. Lorran also recounted an incident in which Mark asked Lorran and a sibling to get a gun and shoot him. Lorran said that J. R. told him that Mark tried to get the sisters to take nude photographs. Lorran said that his grandmother feared that Mark was going to hurt the remaining children if they stayed with him.
Appellants' 24-year-old daughter, Chantre, gave her account of the credit card altercation. She did not remember the details of the conversation, but she did recall Mark's anger and the tension as their brother attempted to block Mark's path to the daughters' room. She recalled getting between the men and preventing a physical struggle.
Appellants' 21-year-old son, Einnar, stated that Mark showed the three youngest sisters a pornographic magazine in 2000. He also wrote that Mark "reportedly molested them according to my 3 youngest sisters." Einnar stated that Mark tried to get the girls to join a strip club so that Mark could quit his job.
J. R. wrote that Mark physically abused her and her mother and "had been into child pornograp[hy] and molesting children as far back as I remember." She also stated that she and her siblings were victims. She wrote that she had been "forced to do sexual acts with" Mark "since I was 8-16 years old." She stated that he threatened her when she questioned their activities and became violent when she asked him to stop. She also recounted an incident in 2000 during which Mark drove her and her sisters to an isolated area, tied them down, and molested them individually. She wrote about more sexual assaults on her that occurred in 2001. She said that she eventually demanded that he stop, which he did, but that she stayed in the home to protect her sisters. Nevertheless, J. R. stated that Mark "started taking my two younger sisters alone in the van [he] currently has, I suspected he was abusing or molesting them because they would come back fearful & upset, soon later had suicidal thoughts & talk." Her account of the July 2003 incident included her memory that Mark threatened them with a shotgun. She stated, "This man has certainly the stalke[r] personality, that's why all fear him or reporting for help, it needs t[o] stop for my family's sake as well [as] others who are in danger, possibly other children."
Appellants' then-16-year-old daughter, C. R., confirmed that, six years earlier, Mark asked her and her sisters to pose nude for photographs so they could be rich. She testified that, in 2001, she and her siblings opened Mark's bag and found a magazine with pornographic images of 12-year-old girls. Mark was angry when he found the children and yelled at them. He yelled at J. R. and asked her "What did you see?" When she did not answer, he shook her and threw her down. She also recalled the July 2003 altercation, but did not recount a discussion preceding it. She did write that Mark yelled and was choking Lorran, then that Lorran began choking Mark. C. R. also recounted seeing Mark try to touch J. R.'s breast once while he was driving and J. R. was seated next to him in the front seat, and another time while they were watching a movie at home. C. R. stated that she did not see such behavior at other times but that J. R. "has told me it has happened more."
These allegations prompted authorities to arrest Mark for sexual assault and to ask further questions. Carmen stated that she did not believe J. R.'s accusations of sexual assault. Based on the initial allegations and Carmen's refusal to believe them, FPS removed the then-minor children--16-year-old C. R. and 13-year-old B. R.--from the parents' home.
Family members, including Mark and J. R., filed affidavits in February 2006 that explain, modify, or retract the statements they gave in January 2006.
Mark denied or explained why the allegations in the family's January statements did not support removal of the remaining minor children. He asserted that he did not fit the profile of a sexual abuser and that J. R. did not exhibit behaviors of a victim. He said that she demanded a lot of attention and persuaded the other girls to lie about him on January 7, 2006. He asserted that J. R.'s statement tracked the family code statutes as if a checklist had been used when neighbors assisted her in preparing her statement. Mark said that the July 2003 altercation was the result of financial and marital stress, that no gun was involved, that no choking or fistfight occurred, and that it was simply a wrestling match that was over in a few minutes. He said that the magazine that C. R. reported finding in his bag was not child pornography because that is illegal and not obtainable at the New Braunfels convenience store where the magazine was purchased, and that the photo was of a subject with a child-like face. Mark contended that the allegations were not supported by a preponderance of evidence and did not support removal of the children.
In Carmen's affidavit, she averred that she never saw J. R. show behaviors typical of abuse
victims. Carmen is a registered nurse. She asserted that J. R. is outgoing and has a good relationship with Mark. Carmen stated that she did not know what to say in her written statement, but that the detective who questioned her and her family for five hours insisted that they put something down. She said that her statement that "'[h]e is a violent person' refers to the incident when he damaged a dog kennel during a temper flare up when my daughter [J. R.] disrespectfully said Mark 'ate like a pig' on his birthday in April 2002." Otherwise, she had not seen him be violent. Her statement that Mark was "frequently emotionally abusive" referred only to his insistence on remaining married despite her "constantly asking for us to separate." Since their debts had been discharged in bankruptcy in January 2006, she said the stress had eased and she believed their marriage could work.
Lorran filed an affidavit in which he denied that Mark ever pointed a gun at anyone. He said he had never seen pornography in their house, their vehicle, or computers, nor had he seen Mark naked. He said he generally tends to disregard his grandmother's statements as outlandish. He corroborated Mark's version of the July 2003 altercation as being overreactions by him and his father, and said that no weapons, choking, punching, fist fighting or kicking was involved. Lorran said that, since J. R. told him about Mark's request that the girls be photographed nude, he had watched their interactions. He said he had noticed no unusual or inappropriate affection or conversation between Mark and J. R. Lorran said that J. R. demands attention and is prone to lying. He recounted several of J. R.'s outbursts, including one in which her father was repairing a shower, and J. R. began throwing his tools and screaming "get out," claiming that Mark had beat her cat with tools; Lorran found the cat uninjured. Lorran said that once, when J. R.'s bike got a flat tire, she refused his offer of a ride home, claiming that he had "summoned devils out to cause her tire to go flat."
Monique also elaborated on her statement. She said she mentioned the July 2003 altercation because the detective "insisted we put something down on paper or it would look suspicious." When she said her mother received most of the emotional abuse, she meant that Mark is very persistent about wanting to talk problems out, in contrast to Carmen, who does not like to talk when she is upset. Monique wrote that massive credit card debt was a source of tension. She wrote that her statement that Mark "forces himself on the girls" referred to his persistence in maintaining communication and his desire to spend time with them on his days off. She said she had never seen him with pornography and had never heard the accusations about his desire to take nude photographs of the younger girls before January 2006.
Chantre also averred that she wrote something down in her statement just to appease the detective. She added that Mark never threatened them with a gun. She denied ever seeing her sisters with unexplained injuries. She said that J. R. was always very vocal and would have complained had something been wrong. Chantre wrote that J. R. was very emotional and susceptible to uncontrolled emotional outbursts over trivial events. Chantre wrote that she had never seen or heard any sexual abuse and had not seen her father naked.
J. R. later filed an affidavit in which she recanted all of her accusations. She described in great detail how she used the opportunity provided by her neighbor's belief that abuse was occurring in the house as a way to get Mark to stop looking at pornography. She said that her neighbor was obsessed with her family and believed that God had sent her to protect the Rodriguez children--to the extent that she had moved from another town at the insistence of audible disembodied voices. J. R. stated that she embellished the facts by alleging that her father's pornography was of children, by inventing the allegation that he wanted to take nude photographs of her and her sisters, and by inventing the allegation that he sexually abused her. She averred that she made up these allegations hoping to shock her father into renouncing pornography. She stated that she had been manipulated by others and that, when she realized the true effect of her false allegations, she regretted and recanted them. She stated that her neighbor threatened that God would reject J. R. if she recanted her testimony.
Carmen later filed a complaint with the Texas Department of State Health Services regarding actions by licensed substance abuse counselor Carrie Roper. Carmen asserted that Roper conspired with her neighbor to persuade J. R. that she had repressed memories of sexual abuse. Carmen also asserted that Roper's giving J. R. a book on the theory of repressed memories as well as associated counseling, violated state licensure laws barring counseling personal friends.
Carmen filed a complaint with the Texas State Board of Medical Examiners that her father-in-law, Dr. J. A. Rodriguez, violated his professional responsibilities and duties prompted by his interaction with J. R. According to the complaint, Dr. Rodriguez is an 81-year-old retired physician who received e-mails from J. R. in which she claimed Mark had physically and sexually abused her. Carmen complained that, instead of reporting the allegations of abuse to authorities or to the family, Dr. Rodriguez corresponded with J. R., "diagnosing Mark (via what [J. R.] said in her e-mails) as being 'mentally ill', 'he will kill someone if he gets into a rage' and 'I am afraid for the safety of the family.'" Carmen then reported that Dr. Rodriguez disagreed with their choice to home-school their children and had not maintained regular communication with the family during her marriage to Mark. She asserted that Dr. Rodriguez changed his views of J. R. when he learned that J. R was making some sort of allegations against him, deeming J. R. "'bipolar', 'paranoid schizophrenic', and 'crazy' and 'if you let her back in your house watch your back because she will put a knife in your chest.'" Carmen complained that Dr. Rodriguez engaged in unprofessional conduct in his e-mail communications with J. R. and violated his duty to report J. R.'s allegations if he believed them.
A service plan was adopted that allowed the girls to live at home with their mother, provided they had no contact with the males in the family. The plan required that the parents attend various types of classes and counseling, which they did. After finding that appellants had violated the court's requirement that they not discuss the case with their children, the court removed the children from their mother's home and directed FPS to place them. The males in the family were then permitted to return to the family's home. A subsequent order prohibited Mark from having contact with the two girls. (5) Before the final hearing, C. R. turned eighteen and was no longer a subject of this proceeding. Each appellant had legal counsel who were later allowed to withdraw because appellants no longer wished to retain them.
The final order under appeal here establishes FPS as the permanent managing conservator for B. R., naming appellants possessory conservators. The order permits Carmen to have weekly supervised visits with B. R. as well as unsupervised visits "upon the recommendation of a therapist. Mrs. Rodriguez may choose the therapist." The order permits Mark to have supervised visits with B. R. "until the criminal case is resolved. Once his criminal case is resolved he may continue to have supervised visits only if he attends sex offender therapy." According to appellants, the criminal charges against Mark were dismissed two days after the final hearing in this case.
Appellants present several issues. They contend that the trial court erred by (1) relying heavily on hearsay, conjecture, and unsupported evidence, (2) using only fraudulent, selective evidence, (3) validating FPS's actions in removing the children without a court order or following proper procedures, (4) determining that Carmen failed to supervise and was not protective without establishing that abuse occurred, (5) requiring Mark to undergo sex offender therapy, and (6) relying heavily on the report by FPS's expert, Matthew Ferrara, which they allege was based solely on conclusions relying on the veracity of J. R.'s original accusations.
In their first issue, appellants complain that "hearsay was the major part of the evidence presented in the form of emails, perjured testimony, suppressed documents and unsupported accusations against the appellants." We do not know what documents were admitted as evidence during the trial. Nevertheless, we find no error if the evidence complained of was the documents in the clerk's record. The rules of evidence provide that error cannot be shown in a ruling admitting or excluding evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context" or, "[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." See Tex. R. Evid. 103(a). The rules of appellate procedure similarly require the following:
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a). The record before us does not contain any objections to the evidence. We find no indication that evidence was suppressed, or that suppressed evidence was considered. Whether evidence is credible or supported generally affects the weight accorded the evidence. For the court to be required to entirely disregard evidence, an objection or other means of exclusion had to be made. No error is shown by the court's consideration of unobjected-to evidence.
In their second issue, appellants contend that "fraudulent evidence was used to fundamentally deny fair procedures before child removal, a right included in procedural due process." The substance of the argument in their brief pertains to FPS's use of evidence derived from J. R.'s original accusations that Mark sexually assaulted her, even though she later recanted those accusations. Appellants contend that suppression by the prosecution of material evidence that is favorable to an accused violates due process, as does a prosecutor's knowing presentation of false testimony or failure to correct testimony he knows is false. This is not a prosecution, however, and more to the point, the record before us does not demonstrate that J. R.'s statements recanting her January statements were suppressed, that FPS's attorney knew that J. R.'s original accusation was false, or that the original accusation is necessarily false. At least one of J. R.'s contrary statements, her affidavit dated June 8, 2006, is in the clerk's record. More may have been admitted at trial, but we do not have that record before us. Recantation of an earlier statement--however forceful or repeated--does not necessarily make the earlier statement false. The recantation itself may be false. (6) The resolution of the contradiction is a credibility issue for the factfinder. The Department did not commit fraud or violate anyone's rights merely by offering a recanted statement and, on this record, the court did not err by admitting or considering it.
In their third issue, appellants contend that "the Fourth Amendment was violated (among many others) since there was no probable cause established for child removal." Appellants complain that FPS did not conduct a sufficiently thorough investigation before removing C. R. and B. R. from their home. (7) Appellants assert that FPS lacked probable cause to seize the children on January 11, 2006, and that there was no evidence the children were in imminent danger. It is not entirely clear how the evidentiary basis for the initial removal relates to any alleged error in the final order rendered after a full hearing. Nevertheless, we will examine whether FPS had any sound basis for removing the children on January 11, 2006.
A qualified person can remove children without a court order under limited circumstances, including based "on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that" either "there is an immediate danger to the physical health or safety of the child" or "that the child has been the victim of sexual abuse." Tex. Fam. Code Ann. § 262.104(a) (West Supp. 2007). In statements to a Caldwell County Sheriff's Office investigator dated January 8, 2006, the family members recounted or reported hearing of incidents of Mark making threats, physically assaulting one child, encouraging then-minor girls to pose nude for pictures, and sexually abusing at least one girl. In her affidavit in support of FPS's original petition, filed January 13, 2006, FPS specialist Marijo Shearin recounted the statements the family had given, supplemented by additional reports of abuse and statements taken from the younger daughters in interviews at the children's advocacy center. Shearin also reported that, on January 11, 2006, Carmen reported that she had posted bond for Mark after his arrest for sexual assault and stated that she did not believe J. R.'s accusations of sexual abuse. Shearin concluded that there was an immediate danger to the children in the home because of the reported abuse by Mark and his probable imminent return to the home. The information Shearin described in her affidavit does not appear materially different from the information she had on January 11, 2006, when she made the decision to remove the children from the home. We conclude that appellants have not shown error in the initial removal requiring reversal of the trial court's final order.
In their fourth issue, appellants contend that, "without established abuse, there can be no failure to supervise and protect." This appears to be a challenge to the sufficiency of the evidence to support the trial court's decision not to name Carmen as a managing conservator and specifically references the failure to establish sexual abuse by Mark. They also argue that Caldwell County unlawfully suppressed J. R.'s affidavit of nonprosecution and petition to rescind a fraudulently obtained protective order.
The primary consideration in conservatorship cases is the best interest of the child. Tex. Fam. Code Ann. § 153.002 (West 2002). A parent (or both parents) will be appointed sole (or joint) managing conservator "unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Id. § 153.131(a). FPS's burden of proof is preponderance of the evidence. Id. § 105.005; see also In re W.M., 172 S.W.3d 718, 724 (Tex. App.--Fort Worth 2005, no pet.). The standard of review for determinations of a child's best interest and conservatorship is abuse of discretion. Id. An abuse of discretion occurs only when the court acts arbitrarily, unreasonably, or without regard to guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
The record before us does not demonstrate that the trial court abused its discretion by refusing to make Carmen a managing conservator. The trial court was required to assess the best interest of the child, not merely whether Mark sexually abused one of the daughters and Carmen ignored it. We do not know what evidence was admitted at trial. The clerk's record contains the original statements from the family and others discussing various incidents of emotional, physical, and sexual abuse. It also contains reports that Carmen rejected J. R.'s accusations. The record also contains affidavits from family members explaining, contradicting, or withdrawing their original statements. Where conflicting evidence is in the record, the trial court as factfinder must resolve the conflict. Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 266 (Tex. 1969); Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex. App.--Dallas 2007, no pet.). We must defer to the factfinder's credibility determinations, particularly when custody is at issue. See Sotelo v. Gonzales, 170 S.W.3d 783, 789 (Tex. App.--El Paso 2005, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). On the record presented to us, we cannot say that the trial court abused its discretion when determining from the evidence before it that the best interest of the child was better served by not having her parents as managing conservators.
In their sixth issue, appellants contend that "Dr. Matthew Ferrara's findings, conclusions and recommendations are not valid since they were based on outcry victim's false allegations of sexual abuse which are unsupported by medical evidence." This issue apparently relates to the sufficiency of the evidence underlying the trial court's order because the trial court ordered that B. R. "NOT be placed with her parents unless recommended by Dr. Matthew Ferrara." Appellants do not cite this Court to a report by Dr. Ferrara in the record. Appellants assert that, in late 2006, Dr. Ferrara strongly recommended sex offender treatment for Mark as an assurance that he is safe with children. Appellants assert that this report did not refer to the later affidavits or motions by J. R. and others contradicting the initial claims of sexual and other abuse. Appellants also assert that Dr. Ferrara strongly encouraged Mark to take a polygraph examination, after which the administrator opined that Mark's performance indicated deception--though about what precisely the record is not clear. In addition to attacking the reliability of polygraphs, appellants contend that Mark suffered an anxiety or panic attack from the administration of the test. He also contends that FPS workers used psycho-sexual evaluation tools on him that are not appropriate for persons who have not admitted guilt. We cannot evaluate the validity of Dr. Ferrara's findings on the record before us. As we have concluded above, without reference to Dr. Ferrara's findings, the record before us does not show an abuse of discretion in the court's conservatorship decision. Even if Dr. Ferrara's findings are flawed, reliance on them would not necessarily show reversible error.
In their fifth issue, appellants assert that, "since the father did not abuse the child as established by lack of objective findings, requiring the father to make an admission by court ordered sex offender therapy would be asking the father to lie and commit perjury." Appellants argue that Mark is being placed in the untenable position of remaining silent in court-ordered therapy, resulting in the loss of his child, or falsely confessing to abuse, resulting in a loss of liberty. He equates this to court-ordered confession. We do not agree that attending therapy is equivalent to an admission that he has committed abuse. Mark is not being prosecuted for sexual assault and the conservatorship decision has been made without any express finding regarding sexual abuse. There is no showing that the court-ordered therapy requires that Mark confess to sexual abuse. The therapist may instead conclude that Mark did not commit any sexual abuse and, with Mark's permission, inform the trial court of that conclusion. In any event, Mark could not commit perjury in his therapy sessions because he would not be under oath or an inmate making an unsworn declaration. See Tex. Penal Code Ann. § 37.02 (West 2003) (defining perjury). Appellants' fifth issue does not present reversible error.
We affirm the trial court's order.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 8, 2008
1. Appellants proceeded pro se in the trial court and appear pro se on appeal.
2. Exhibits offered or admitted at trial properly accompany the reporter's record and must be requested from the reporter. See Tex. R. App. P. 34.6(b)(1).
3. Appellants' pro se status does not affect this Court's role. "Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
4. The 2005 date noted in the statement appears to be an error. The statement was dated January 8, 2006.
5. Appellants asserted in their status report that this change was the result of Mark taking a polygraph examination at which the examiner determined there was deception indicated. Appellants contended that the result was due to Mark's anxiety when placed in unfamiliar processes or situations akin to being in a dentist's chair, which he finds difficult.
6. While the premise that a recantation, rather than the original statement, may be false is self-evident, it has been noted that child victims of familial sexual assault may feel unique pressure to make a false recantation. See Gonzales v. State, 4 S.W.3d 406, 418 (Tex. App.--Waco 1999, no pet.).
7. Appellants also assert that the removal deprived the children of due process under the Fifth and Fourteenth Amendments. The children are not named parties to this appeal and their rights cannot be asserted by the parents as individuals, which is the only way that appellants have appealed.
Mark Rodriguez and Carmen Rodriguez v. Texas Department of Family and Protective Services--Appeal from 421st District Court of Caldwell County
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
NO. 06-FL-018, HONORABLE TODD A. BLOMERTH, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Mark Rodriguez and Carmen Rodriguez appeal from the final order in this suit affecting the parent-child relationship with their daughter, B. R. (1) The order appointed the Department of Family and Protective Services (FPS) as the permanent managing conservator and appointed both appellants as possessory conservators with limited visitation rights. Appellants complain that the trial court relied on hearsay, as well as fraudulent and unsubstantiated evidence. They also assert that the court made erroneous decisions and incorrectly required Mark Rodriguez to undergo sex offender therapy. We affirm.
The record on appeal consists only of the clerk's record. Appellants did not request the preparation of a reporter's record. They assert that no reporter was present during the final set of hearings, but that the judge presiding recorded proceedings on her laptop computer. Appellants assert that the clerk's record provides adequate evidence to support their complaints, rejecting FPS's argument that the absence of a reporter's record prevents this Court from reversing the order because we cannot review the evidence admitted at the trial.
Appellants also filed a Motion for Appellate Court to Provide Alternatives to Court Reporter's Record if Court Reporter Record is Required by Appellate Court, which this Court denied. In that motion, they asserted that, although they did not request a reporter, the absence of a reporter was a denial of their right to a fair hearing. They asserted that the clerk's office failed to include exhibits as requested. (2) The motion states that, despite the absence of these exhibits:
Appellants believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions. The undersigned requests that should the Appeals
Court mandate a transcript of the final hearing, then the Appellants request either:
• The Appeals Court to utilize the digital recording available from the Caldwell County court or
• Allow the Appellants' discretion on a partial transcription of the final hearing day of the six day trial.
Appellants asserted in the motion that preparation of the full reporter's record would be several thousand dollars and beyond their financial resources.
We overruled appellants' motion because their motion essentially asked this Court to decide for appellants how to pursue this appeal. This Court is a neutral arbiter and cannot direct a party's strategic decisions. (3) Under the rules, appellants have the burden of making many decisions, including what issues to present, what relief to request, what portions of the trial court record to request be included in the record on appeal, and how to craft a brief that best serves their interest. See Tex. R. App. P. 34.6(b), 38.1. The appellate court does not "mandate" a reporter's record absent the party's request and the reporter's failure to provide it. Appellants chose not to request the reporter's record, stating that they "believe there is adequate evidence for the Appeals Court review of the case development, proceedings and conclusions." Appellants have chosen to rely on materials in the clerk's record to support their issues presented, as is their prerogative. See Tex. R. App. P. 37.3(c).
In the absence of a reporter's record from a bench trial, a court must presume that the omitted proceedings are relevant to and support the trial court's judgment. Hebisen v. Clear Creek Indep. Sch. Dist., 217 S.W.3d 527, 538 (Tex. App.--Houston [14th Dist.] 2006, no pet.). Therefore, this Court must presume that (1) the trial court properly exercised its discretion to hear evidence regarding all of the issues, whether appealed or not, and (2) the trial court heard evidence that is legally sufficient to support its judgment. Id. This standard arguably would require that we affirm the final order without further deliberation. However, because of the importance of the rights at stake in this child custody case and because the clerk's record includes statements and affidavits, we will examine the issues presented in light of the documents in the clerk's record.
The clerk's record contains statements made to law enforcement by Carmen Rodriguez, appellants' children, and a neighbor about specific incidents and general conditions in the Rodriguez home. The taking of statements was apparently prompted by a report to a neighbor by appellants' 19-year-old daughter, J. R., of severe neglect, sexual and physical abuse, and long-term physical and emotional isolation. Authorities were contacted, and the family gave written statements.
In a statement dated January 8, 2006, Carmen recounted an incident in July 2003 in which "Mark was trying to hurt [her older daughters] and [an older son] was protecting [them]. . . . Mark is a violent person and frequently emotionally abusive. I did not know he was molesting my daughter [J. R.] until today."
According to their 25-year-old daughter, Monique, Mark "forces himself" on female family members, which she describes by saying "his presence makes [the girls in the family] and my mom uncomfortable and he will not leave them alone." The altercation Carmen recounted was, according to Monique's statement, prompted by Mark's increasingly heated inquiries into credit card balances. She also reported that "yesterday, January 7, 2005, I found out that [sisters J. R., C. R., and B. R.] were asked by Mark to take off their clothes so he can take pictures of them naked." (4)
Appellants' 28-year-old son, Lorran, corroborated the story about the credit card altercation. He added the detail that, before the altercation, Mark was angry because a friend of Carmen's--who Mark believed was advising her to divorce Mark--had called the house. Lorran also recounted an incident in which Mark asked Lorran and a sibling to get a gun and shoot him. Lorran said that J. R. told him that Mark tried to get the sisters to take nude photographs. Lorran said that his grandmother feared that Mark was going to hurt the remaining children if they stayed with him.
Appellants' 24-year-old daughter, Chantre, gave her account of the credit card altercation. She did not remember the details of the conversation, but she did recall Mark's anger and the tension as their brother attempted to block Mark's path to the daughters' room. She recalled getting between the men and preventing a physical struggle.
Appellants' 21-year-old son, Einnar, stated that Mark showed the three youngest sisters a pornographic magazine in 2000. He also wrote that Mark "reportedly molested them according to my 3 youngest sisters." Einnar stated that Mark tried to get the girls to join a strip club so that Mark could quit his job.
J. R. wrote that Mark physically abused her and her mother and "had been into child pornograp[hy] and molesting children as far back as I remember." She also stated that she and her siblings were victims. She wrote that she had been "forced to do sexual acts with" Mark "since I was 8-16 years old." She stated that he threatened her when she questioned their activities and became violent when she asked him to stop. She also recounted an incident in 2000 during which Mark drove her and her sisters to an isolated area, tied them down, and molested them individually. She wrote about more sexual assaults on her that occurred in 2001. She said that she eventually demanded that he stop, which he did, but that she stayed in the home to protect her sisters. Nevertheless, J. R. stated that Mark "started taking my two younger sisters alone in the van [he] currently has, I suspected he was abusing or molesting them because they would come back fearful & upset, soon later had suicidal thoughts & talk." Her account of the July 2003 incident included her memory that Mark threatened them with a shotgun. She stated, "This man has certainly the stalke[r] personality, that's why all fear him or reporting for help, it needs t[o] stop for my family's sake as well [as] others who are in danger, possibly other children."
Appellants' then-16-year-old daughter, C. R., confirmed that, six years earlier, Mark asked her and her sisters to pose nude for photographs so they could be rich. She testified that, in 2001, she and her siblings opened Mark's bag and found a magazine with pornographic images of 12-year-old girls. Mark was angry when he found the children and yelled at them. He yelled at J. R. and asked her "What did you see?" When she did not answer, he shook her and threw her down. She also recalled the July 2003 altercation, but did not recount a discussion preceding it. She did write that Mark yelled and was choking Lorran, then that Lorran began choking Mark. C. R. also recounted seeing Mark try to touch J. R.'s breast once while he was driving and J. R. was seated next to him in the front seat, and another time while they were watching a movie at home. C. R. stated that she did not see such behavior at other times but that J. R. "has told me it has happened more."
These allegations prompted authorities to arrest Mark for sexual assault and to ask further questions. Carmen stated that she did not believe J. R.'s accusations of sexual assault. Based on the initial allegations and Carmen's refusal to believe them, FPS removed the then-minor children--16-year-old C. R. and 13-year-old B. R.--from the parents' home.
Family members, including Mark and J. R., filed affidavits in February 2006 that explain, modify, or retract the statements they gave in January 2006.
Mark denied or explained why the allegations in the family's January statements did not support removal of the remaining minor children. He asserted that he did not fit the profile of a sexual abuser and that J. R. did not exhibit behaviors of a victim. He said that she demanded a lot of attention and persuaded the other girls to lie about him on January 7, 2006. He asserted that J. R.'s statement tracked the family code statutes as if a checklist had been used when neighbors assisted her in preparing her statement. Mark said that the July 2003 altercation was the result of financial and marital stress, that no gun was involved, that no choking or fistfight occurred, and that it was simply a wrestling match that was over in a few minutes. He said that the magazine that C. R. reported finding in his bag was not child pornography because that is illegal and not obtainable at the New Braunfels convenience store where the magazine was purchased, and that the photo was of a subject with a child-like face. Mark contended that the allegations were not supported by a preponderance of evidence and did not support removal of the children.
In Carmen's affidavit, she averred that she never saw J. R. show behaviors typical of abuse
victims. Carmen is a registered nurse. She asserted that J. R. is outgoing and has a good relationship with Mark. Carmen stated that she did not know what to say in her written statement, but that the detective who questioned her and her family for five hours insisted that they put something down. She said that her statement that "'[h]e is a violent person' refers to the incident when he damaged a dog kennel during a temper flare up when my daughter [J. R.] disrespectfully said Mark 'ate like a pig' on his birthday in April 2002." Otherwise, she had not seen him be violent. Her statement that Mark was "frequently emotionally abusive" referred only to his insistence on remaining married despite her "constantly asking for us to separate." Since their debts had been discharged in bankruptcy in January 2006, she said the stress had eased and she believed their marriage could work.
Lorran filed an affidavit in which he denied that Mark ever pointed a gun at anyone. He said he had never seen pornography in their house, their vehicle, or computers, nor had he seen Mark naked. He said he generally tends to disregard his grandmother's statements as outlandish. He corroborated Mark's version of the July 2003 altercation as being overreactions by him and his father, and said that no weapons, choking, punching, fist fighting or kicking was involved. Lorran said that, since J. R. told him about Mark's request that the girls be photographed nude, he had watched their interactions. He said he had noticed no unusual or inappropriate affection or conversation between Mark and J. R. Lorran said that J. R. demands attention and is prone to lying. He recounted several of J. R.'s outbursts, including one in which her father was repairing a shower, and J. R. began throwing his tools and screaming "get out," claiming that Mark had beat her cat with tools; Lorran found the cat uninjured. Lorran said that once, when J. R.'s bike got a flat tire, she refused his offer of a ride home, claiming that he had "summoned devils out to cause her tire to go flat."
Monique also elaborated on her statement. She said she mentioned the July 2003 altercation because the detective "insisted we put something down on paper or it would look suspicious." When she said her mother received most of the emotional abuse, she meant that Mark is very persistent about wanting to talk problems out, in contrast to Carmen, who does not like to talk when she is upset. Monique wrote that massive credit card debt was a source of tension. She wrote that her statement that Mark "forces himself on the girls" referred to his persistence in maintaining communication and his desire to spend time with them on his days off. She said she had never seen him with pornography and had never heard the accusations about his desire to take nude photographs of the younger girls before January 2006.
Chantre also averred that she wrote something down in her statement just to appease the detective. She added that Mark never threatened them with a gun. She denied ever seeing her sisters with unexplained injuries. She said that J. R. was always very vocal and would have complained had something been wrong. Chantre wrote that J. R. was very emotional and susceptible to uncontrolled emotional outbursts over trivial events. Chantre wrote that she had never seen or heard any sexual abuse and had not seen her father naked.
J. R. later filed an affidavit in which she recanted all of her accusations. She described in great detail how she used the opportunity provided by her neighbor's belief that abuse was occurring in the house as a way to get Mark to stop looking at pornography. She said that her neighbor was obsessed with her family and believed that God had sent her to protect the Rodriguez children--to the extent that she had moved from another town at the insistence of audible disembodied voices. J. R. stated that she embellished the facts by alleging that her father's pornography was of children, by inventing the allegation that he wanted to take nude photographs of her and her sisters, and by inventing the allegation that he sexually abused her. She averred that she made up these allegations hoping to shock her father into renouncing pornography. She stated that she had been manipulated by others and that, when she realized the true effect of her false allegations, she regretted and recanted them. She stated that her neighbor threatened that God would reject J. R. if she recanted her testimony.
Carmen later filed a complaint with the Texas Department of State Health Services regarding actions by licensed substance abuse counselor Carrie Roper. Carmen asserted that Roper conspired with her neighbor to persuade J. R. that she had repressed memories of sexual abuse. Carmen also asserted that Roper's giving J. R. a book on the theory of repressed memories as well as associated counseling, violated state licensure laws barring counseling personal friends.
Carmen filed a complaint with the Texas State Board of Medical Examiners that her father-in-law, Dr. J. A. Rodriguez, violated his professional responsibilities and duties prompted by his interaction with J. R. According to the complaint, Dr. Rodriguez is an 81-year-old retired physician who received e-mails from J. R. in which she claimed Mark had physically and sexually abused her. Carmen complained that, instead of reporting the allegations of abuse to authorities or to the family, Dr. Rodriguez corresponded with J. R., "diagnosing Mark (via what [J. R.] said in her e-mails) as being 'mentally ill', 'he will kill someone if he gets into a rage' and 'I am afraid for the safety of the family.'" Carmen then reported that Dr. Rodriguez disagreed with their choice to home-school their children and had not maintained regular communication with the family during her marriage to Mark. She asserted that Dr. Rodriguez changed his views of J. R. when he learned that J. R was making some sort of allegations against him, deeming J. R. "'bipolar', 'paranoid schizophrenic', and 'crazy' and 'if you let her back in your house watch your back because she will put a knife in your chest.'" Carmen complained that Dr. Rodriguez engaged in unprofessional conduct in his e-mail communications with J. R. and violated his duty to report J. R.'s allegations if he believed them.
A service plan was adopted that allowed the girls to live at home with their mother, provided they had no contact with the males in the family. The plan required that the parents attend various types of classes and counseling, which they did. After finding that appellants had violated the court's requirement that they not discuss the case with their children, the court removed the children from their mother's home and directed FPS to place them. The males in the family were then permitted to return to the family's home. A subsequent order prohibited Mark from having contact with the two girls. (5) Before the final hearing, C. R. turned eighteen and was no longer a subject of this proceeding. Each appellant had legal counsel who were later allowed to withdraw because appellants no longer wished to retain them.
The final order under appeal here establishes FPS as the permanent managing conservator for B. R., naming appellants possessory conservators. The order permits Carmen to have weekly supervised visits with B. R. as well as unsupervised visits "upon the recommendation of a therapist. Mrs. Rodriguez may choose the therapist." The order permits Mark to have supervised visits with B. R. "until the criminal case is resolved. Once his criminal case is resolved he may continue to have supervised visits only if he attends sex offender therapy." According to appellants, the criminal charges against Mark were dismissed two days after the final hearing in this case.
Appellants present several issues. They contend that the trial court erred by (1) relying heavily on hearsay, conjecture, and unsupported evidence, (2) using only fraudulent, selective evidence, (3) validating FPS's actions in removing the children without a court order or following proper procedures, (4) determining that Carmen failed to supervise and was not protective without establishing that abuse occurred, (5) requiring Mark to undergo sex offender therapy, and (6) relying heavily on the report by FPS's expert, Matthew Ferrara, which they allege was based solely on conclusions relying on the veracity of J. R.'s original accusations.
In their first issue, appellants complain that "hearsay was the major part of the evidence presented in the form of emails, perjured testimony, suppressed documents and unsupported accusations against the appellants." We do not know what documents were admitted as evidence during the trial. Nevertheless, we find no error if the evidence complained of was the documents in the clerk's record. The rules of evidence provide that error cannot be shown in a ruling admitting or excluding evidence unless "a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context" or, "[i]n case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." See Tex. R. Evid. 103(a). The rules of appellate procedure similarly require the following:
As a prerequisite to presenting a complaint for appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context; and
(B) complied with the requirements of the Texas Rules of Civil or Criminal Evidence or the Texas Rules of Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either expressly or implicitly; or
(B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal.
Tex. R. App. P. 33.1(a). The record before us does not contain any objections to the evidence. We find no indication that evidence was suppressed, or that suppressed evidence was considered. Whether evidence is credible or supported generally affects the weight accorded the evidence. For the court to be required to entirely disregard evidence, an objection or other means of exclusion had to be made. No error is shown by the court's consideration of unobjected-to evidence.
In their second issue, appellants contend that "fraudulent evidence was used to fundamentally deny fair procedures before child removal, a right included in procedural due process." The substance of the argument in their brief pertains to FPS's use of evidence derived from J. R.'s original accusations that Mark sexually assaulted her, even though she later recanted those accusations. Appellants contend that suppression by the prosecution of material evidence that is favorable to an accused violates due process, as does a prosecutor's knowing presentation of false testimony or failure to correct testimony he knows is false. This is not a prosecution, however, and more to the point, the record before us does not demonstrate that J. R.'s statements recanting her January statements were suppressed, that FPS's attorney knew that J. R.'s original accusation was false, or that the original accusation is necessarily false. At least one of J. R.'s contrary statements, her affidavit dated June 8, 2006, is in the clerk's record. More may have been admitted at trial, but we do not have that record before us. Recantation of an earlier statement--however forceful or repeated--does not necessarily make the earlier statement false. The recantation itself may be false. (6) The resolution of the contradiction is a credibility issue for the factfinder. The Department did not commit fraud or violate anyone's rights merely by offering a recanted statement and, on this record, the court did not err by admitting or considering it.
In their third issue, appellants contend that "the Fourth Amendment was violated (among many others) since there was no probable cause established for child removal." Appellants complain that FPS did not conduct a sufficiently thorough investigation before removing C. R. and B. R. from their home. (7) Appellants assert that FPS lacked probable cause to seize the children on January 11, 2006, and that there was no evidence the children were in imminent danger. It is not entirely clear how the evidentiary basis for the initial removal relates to any alleged error in the final order rendered after a full hearing. Nevertheless, we will examine whether FPS had any sound basis for removing the children on January 11, 2006.
A qualified person can remove children without a court order under limited circumstances, including based "on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that" either "there is an immediate danger to the physical health or safety of the child" or "that the child has been the victim of sexual abuse." Tex. Fam. Code Ann. § 262.104(a) (West Supp. 2007). In statements to a Caldwell County Sheriff's Office investigator dated January 8, 2006, the family members recounted or reported hearing of incidents of Mark making threats, physically assaulting one child, encouraging then-minor girls to pose nude for pictures, and sexually abusing at least one girl. In her affidavit in support of FPS's original petition, filed January 13, 2006, FPS specialist Marijo Shearin recounted the statements the family had given, supplemented by additional reports of abuse and statements taken from the younger daughters in interviews at the children's advocacy center. Shearin also reported that, on January 11, 2006, Carmen reported that she had posted bond for Mark after his arrest for sexual assault and stated that she did not believe J. R.'s accusations of sexual abuse. Shearin concluded that there was an immediate danger to the children in the home because of the reported abuse by Mark and his probable imminent return to the home. The information Shearin described in her affidavit does not appear materially different from the information she had on January 11, 2006, when she made the decision to remove the children from the home. We conclude that appellants have not shown error in the initial removal requiring reversal of the trial court's final order.
In their fourth issue, appellants contend that, "without established abuse, there can be no failure to supervise and protect." This appears to be a challenge to the sufficiency of the evidence to support the trial court's decision not to name Carmen as a managing conservator and specifically references the failure to establish sexual abuse by Mark. They also argue that Caldwell County unlawfully suppressed J. R.'s affidavit of nonprosecution and petition to rescind a fraudulently obtained protective order.
The primary consideration in conservatorship cases is the best interest of the child. Tex. Fam. Code Ann. § 153.002 (West 2002). A parent (or both parents) will be appointed sole (or joint) managing conservator "unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Id. § 153.131(a). FPS's burden of proof is preponderance of the evidence. Id. § 105.005; see also In re W.M., 172 S.W.3d 718, 724 (Tex. App.--Fort Worth 2005, no pet.). The standard of review for determinations of a child's best interest and conservatorship is abuse of discretion. Id. An abuse of discretion occurs only when the court acts arbitrarily, unreasonably, or without regard to guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
The record before us does not demonstrate that the trial court abused its discretion by refusing to make Carmen a managing conservator. The trial court was required to assess the best interest of the child, not merely whether Mark sexually abused one of the daughters and Carmen ignored it. We do not know what evidence was admitted at trial. The clerk's record contains the original statements from the family and others discussing various incidents of emotional, physical, and sexual abuse. It also contains reports that Carmen rejected J. R.'s accusations. The record also contains affidavits from family members explaining, contradicting, or withdrawing their original statements. Where conflicting evidence is in the record, the trial court as factfinder must resolve the conflict. Great Am. Ins. Co. v. Murray, 437 S.W.2d 264, 266 (Tex. 1969); Intec Sys., Inc. v. Lowrey, 230 S.W.3d 913, 920 (Tex. App.--Dallas 2007, no pet.). We must defer to the factfinder's credibility determinations, particularly when custody is at issue. See Sotelo v. Gonzales, 170 S.W.3d 783, 789 (Tex. App.--El Paso 2005, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). On the record presented to us, we cannot say that the trial court abused its discretion when determining from the evidence before it that the best interest of the child was better served by not having her parents as managing conservators.
In their sixth issue, appellants contend that "Dr. Matthew Ferrara's findings, conclusions and recommendations are not valid since they were based on outcry victim's false allegations of sexual abuse which are unsupported by medical evidence." This issue apparently relates to the sufficiency of the evidence underlying the trial court's order because the trial court ordered that B. R. "NOT be placed with her parents unless recommended by Dr. Matthew Ferrara." Appellants do not cite this Court to a report by Dr. Ferrara in the record. Appellants assert that, in late 2006, Dr. Ferrara strongly recommended sex offender treatment for Mark as an assurance that he is safe with children. Appellants assert that this report did not refer to the later affidavits or motions by J. R. and others contradicting the initial claims of sexual and other abuse. Appellants also assert that Dr. Ferrara strongly encouraged Mark to take a polygraph examination, after which the administrator opined that Mark's performance indicated deception--though about what precisely the record is not clear. In addition to attacking the reliability of polygraphs, appellants contend that Mark suffered an anxiety or panic attack from the administration of the test. He also contends that FPS workers used psycho-sexual evaluation tools on him that are not appropriate for persons who have not admitted guilt. We cannot evaluate the validity of Dr. Ferrara's findings on the record before us. As we have concluded above, without reference to Dr. Ferrara's findings, the record before us does not show an abuse of discretion in the court's conservatorship decision. Even if Dr. Ferrara's findings are flawed, reliance on them would not necessarily show reversible error.
In their fifth issue, appellants assert that, "since the father did not abuse the child as established by lack of objective findings, requiring the father to make an admission by court ordered sex offender therapy would be asking the father to lie and commit perjury." Appellants argue that Mark is being placed in the untenable position of remaining silent in court-ordered therapy, resulting in the loss of his child, or falsely confessing to abuse, resulting in a loss of liberty. He equates this to court-ordered confession. We do not agree that attending therapy is equivalent to an admission that he has committed abuse. Mark is not being prosecuted for sexual assault and the conservatorship decision has been made without any express finding regarding sexual abuse. There is no showing that the court-ordered therapy requires that Mark confess to sexual abuse. The therapist may instead conclude that Mark did not commit any sexual abuse and, with Mark's permission, inform the trial court of that conclusion. In any event, Mark could not commit perjury in his therapy sessions because he would not be under oath or an inmate making an unsworn declaration. See Tex. Penal Code Ann. § 37.02 (West 2003) (defining perjury). Appellants' fifth issue does not present reversible error.
We affirm the trial court's order.
G. Alan Waldrop, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: May 8, 2008
1. Appellants proceeded pro se in the trial court and appear pro se on appeal.
2. Exhibits offered or admitted at trial properly accompany the reporter's record and must be requested from the reporter. See Tex. R. App. P. 34.6(b)(1).
3. Appellants' pro se status does not affect this Court's role. "Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel." Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978).
4. The 2005 date noted in the statement appears to be an error. The statement was dated January 8, 2006.
5. Appellants asserted in their status report that this change was the result of Mark taking a polygraph examination at which the examiner determined there was deception indicated. Appellants contended that the result was due to Mark's anxiety when placed in unfamiliar processes or situations akin to being in a dentist's chair, which he finds difficult.
6. While the premise that a recantation, rather than the original statement, may be false is self-evident, it has been noted that child victims of familial sexual assault may feel unique pressure to make a false recantation. See Gonzales v. State, 4 S.W.3d 406, 418 (Tex. App.--Waco 1999, no pet.).
7. Appellants also assert that the removal deprived the children of due process under the Fifth and Fourteenth Amendments. The children are not named parties to this appeal and their rights cannot be asserted by the parents as individuals, which is the only way that appellants have appealed.
Wednesday, April 30, 2008
Minnfee v. Simms, DA, No. 03-07-00374-CV (Tex.App.- Austin, Mar. 13, 2008)(Opinion by Justice Patterson [ PDF ] ) (Before Justices Patterson, Puryear and Henson)Barry Dwayne Minnfee v. Randall C. Simms, District Attorney; and Don Clemmer, Deputy Attorney General--Appeal from 200th District Court of Travis County
AFFIRMED: Barry Dwayne Minnfee v. Randall C. Simms, District Attorney; and Don Clemmer, Deputy Attorney General--Appeal from 200th District Court of Travis County
M E M O R A N D U M O P I N I O N
Barry Dwayne Minnfee, an inmate incarcerated in the Texas Department of Criminal Justice, appeals pro se from a court order dismissing his petition as frivolous and declaring him a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.054, .101-02, 14.003(a)(2) (West 2002). We affirm the trial court's order.
Based upon our review of the record, we cannot conclude that the trial court abused its discretion when it found that appellant was a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054. Appellant was not likely to prevail in the underlying litigation, having failed to adequately assert any cause of action or any basis for obtaining post-conviction DNA forensic testing or demonstrating that he could carry his burden of proof on any of the requirements of the statute. See id. Within the seven-year period preceding defendants' motion to declare appellant a vexatious litigant, appellant had prosecuted in propria persona at least five litigations finally determined adversely against him and determined to be groundless. See id. § 11.054(1). Yet even after several of appellant's suits have been finally determined adversely to appellant, he continues to file additional suits involving the same facts, claims, or controversies previously determined against him. See id. § 11.054(2)(B). Finding no abuse of discretion, we resolve appellant's issue against him.
CONCLUSION
Having overruled appellant's issue, we affirm the trial court's order of dismissal and declaration that appellant is a vexatious litigant.
AFFIRMED: Barry Dwayne Minnfee v. Randall C. Simms, District Attorney; and Don Clemmer, Deputy Attorney General--Appeal from 200th District Court of Travis County
M E M O R A N D U M O P I N I O N
Barry Dwayne Minnfee, an inmate incarcerated in the Texas Department of Criminal Justice, appeals pro se from a court order dismissing his petition as frivolous and declaring him a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. §§ 11.054, .101-02, 14.003(a)(2) (West 2002). We affirm the trial court's order.
Based upon our review of the record, we cannot conclude that the trial court abused its discretion when it found that appellant was a vexatious litigant. See Tex. Civ. Prac. & Rem. Code Ann. § 11.054. Appellant was not likely to prevail in the underlying litigation, having failed to adequately assert any cause of action or any basis for obtaining post-conviction DNA forensic testing or demonstrating that he could carry his burden of proof on any of the requirements of the statute. See id. Within the seven-year period preceding defendants' motion to declare appellant a vexatious litigant, appellant had prosecuted in propria persona at least five litigations finally determined adversely against him and determined to be groundless. See id. § 11.054(1). Yet even after several of appellant's suits have been finally determined adversely to appellant, he continues to file additional suits involving the same facts, claims, or controversies previously determined against him. See id. § 11.054(2)(B). Finding no abuse of discretion, we resolve appellant's issue against him.
CONCLUSION
Having overruled appellant's issue, we affirm the trial court's order of dismissal and declaration that appellant is a vexatious litigant.
Friday, March 7, 2008
Don't appeal pro se if you don't know what you are doing
Muhammad Khokhar v. The State of Texas, No. 03-07-00100-CV (Tex.App.- Austin, Feb. 28, 2008)(Opinion by Justice Pemberton)(tax suit, unpaid gasoline taxes, incompetent pro se appeal)(Before Justices Patterson, Puryear and Pemberton)
Appeal from 126th District Court of Travis County
Disposition: Affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GV-06-001414, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Muhammad Khokhar appeals the district court's summary judgment in favor of the State of Texas in the State's suit to recover delinquent gasoline taxes. In his brief, Khokhar makes two arguments that are in the nature of affirmative defenses to tax liability: (1) that he was not directly responsible for paying the sales taxes on gasoline that his company purchased, which were instead to be paid by the oil company that sold him the gasoline; and (2) that the tax amounts were included in the invoiced amounts he owed the oil company and that this debt was discharged in a chapter 7 bankruptcy proceeding.
The record on appeal consists solely of the State's original petition (with an attached certificate of delinquency), the district court's final summary judgment, the district court's docket sheet, a letter from Khokhar that we construe as a notice of appeal, and a statement of costs reflecting that Khokhar paid $10.00 for the documents contained in the limited clerk's record. The docket sheet reflects that the State filed a motion for summary judgment (which is not in the record) and that Khokhar did not file a response. Although Khokhar attaches to his brief copies of various documents outside the record (including a bankruptcy court order and invoices), he points us to nothing in the sparse record that would demonstrate the district court erred in granting summary judgment or that he preserved any of his complaints below. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979) (if a party relies on an affirmative defense to oppose summary judgment, he must come forward with summary-judgment evidence raising a fact issue as to each element of that defense).
We recognize that Khokhar has proceeded with this appeal without the assistance of counsel. However, in order to prevent unfair advantage over litigants represented by counsel, pro se litigants are held to the same standards as licensed attorneys and are required to comply with applicable laws and procedural rules. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005).
Bare assertions of error that are not properly supported by citations to authority or references to the record are waived. Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640, 648 (Tex. App.--Austin 2004, pet. dism'd w.o.j.). Because Khokhar has not shown error on this record, we affirm the district court's judgment.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: February 28, 2008
Appeal from 126th District Court of Travis County
Disposition: Affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GV-06-001414, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Muhammad Khokhar appeals the district court's summary judgment in favor of the State of Texas in the State's suit to recover delinquent gasoline taxes. In his brief, Khokhar makes two arguments that are in the nature of affirmative defenses to tax liability: (1) that he was not directly responsible for paying the sales taxes on gasoline that his company purchased, which were instead to be paid by the oil company that sold him the gasoline; and (2) that the tax amounts were included in the invoiced amounts he owed the oil company and that this debt was discharged in a chapter 7 bankruptcy proceeding.
The record on appeal consists solely of the State's original petition (with an attached certificate of delinquency), the district court's final summary judgment, the district court's docket sheet, a letter from Khokhar that we construe as a notice of appeal, and a statement of costs reflecting that Khokhar paid $10.00 for the documents contained in the limited clerk's record. The docket sheet reflects that the State filed a motion for summary judgment (which is not in the record) and that Khokhar did not file a response. Although Khokhar attaches to his brief copies of various documents outside the record (including a bankruptcy court order and invoices), he points us to nothing in the sparse record that would demonstrate the district court erred in granting summary judgment or that he preserved any of his complaints below. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979) (if a party relies on an affirmative defense to oppose summary judgment, he must come forward with summary-judgment evidence raising a fact issue as to each element of that defense).
We recognize that Khokhar has proceeded with this appeal without the assistance of counsel. However, in order to prevent unfair advantage over litigants represented by counsel, pro se litigants are held to the same standards as licensed attorneys and are required to comply with applicable laws and procedural rules. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005).
Bare assertions of error that are not properly supported by citations to authority or references to the record are waived. Liberty Mut. Ins. Co. v. Griesing, 150 S.W.3d 640, 648 (Tex. App.--Austin 2004, pet. dism'd w.o.j.). Because Khokhar has not shown error on this record, we affirm the district court's judgment.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: February 28, 2008
Sunday, February 3, 2008
Pro se criminal defendant's conviction reversed
AFFIRMED: Opinion by Justice Patterson (Before Justices Patterson, Puryear and Pemberton)
03-07-00089-CR
Greg S. Daniels v. The State of Texas--Appeal from County Court at Law No. 3 of Travis County
FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
NO. 729323, HONORABLE DAVID CRAIN, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Greg S. Daniels was charged by information with misdemeanor assault. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2007). Appellant pleaded not guilty, and a jury found him guilty as charged. (1) The trial court sentenced appellant to one year confinement in the Travis County jail and a $2,000 fine, but suspended imposition of sentence and placed him on community supervision for two years. In five issues, appellant challenges a variance between the pleadings and the proof, the adequacy of the admonishment regarding self-representation, and the failure of the trial court to instruct the jury on self-defense. For the reasons that follow, we affirm the judgment of conviction.
On January 30, 2006, Austin Police Officer Heather Schouest responded to an assault report by appellant's next-door neighbor, Douglas Huyck. Testimony at trial showed that appellant had engaged in feuds with Huyck and other neighbors concerning automobiles parked in appellant's driveway and other issues that led to litigation. When Huyck appeared at a hearing to testify against appellant, tensions escalated.
On the afternoon of January 30, Huyck exited his house to go jogging when he saw appellant and a friend in appellant's front yard. Appellant yelled an obscenity at Huyck and, pointing at his friend, called out, "Here's someone to kick your ass. Come over here. Here's somebody who will kick your ass." Huyck approached appellant and his friend. According to Huyck's report to the police and his testimony at trial, appellant indicated to Huyck with his middle finger. Appellant testified that he pointed at Huyck with his index finger. As Huyck approached the two men on the sidewalk easement of appellant's drive, appellant told Huyck to get off his property. With his finger, appellant poked Huyck twice in the eye. In response, Huyck hit appellant twice in the shoulder area. Appellant's friend separated the two men, and Huyck withdrew into his house. Huyck suffered pain and injury from the incident, and his wife observed that his eye was "red and puffy and watery." The Huycks reported the incident to the police.
Shortly thereafter, Officer Schouest arrived at the scene and interviewed the Huycks as well as appellant and his friend. Appellant acknowledged that he poked Huyck in the eye. Schouest's police report stated, "[Appellant] admitted to pointing his finger at close range on Huyck's face, striking Huyck in the left inner eyeball with his index finger." Schouest observed redness in appellant's eye. Appellant later told the investigating police officer, Detective Brendon Hanly, that Huyck walked into his finger.
In his first three issues, appellant contends that the State failed to prove that appellant caused bodily injury to Huyck "by striking [him] on and about the head with [his] hand," that a variance between the pleadings and the proof existed and failed to give appellant notice of the charge, and that the variance exposes appellant to a subsequent prosecution for the same offense. Specifically, appellant complains that the evidence is legally insufficient because there is a variance between the material allegations in the charging instrument and the evidence presented at trial. (2)
The information alleged that appellant, "on or about January 30, 2006, did then and there intentionally, knowingly, and recklessly cause bodily injury to Douglas Huyck by striking Douglas Huyck on and about the head with the Defendant's hand." Appellant argues that, because "there is no evidence that [appellant] struck Mr. Huyck on or about his head with his hand," but rather that the evidence was that appellant "poked Mr. Huyck's eye with his finger," there is no evidence that the complainant was "struck" with appellant's "hand." Although a finger is part of a hand, and the eyes are located in the head, appellant insists that "a hand-to-head allegation does not necessarily include a finger-to-eye allegation."
A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (reaffirming fatal variance doctrine and adopting materiality test). A variance arises when the State proves the defendant guilty of a crime but proves its commission in a manner that varies from the allegations in the charging instrument. Id. (citing 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 31.81, at 178 (1995)). A variance that is not prejudicial to a defendant's "substantial rights" is immaterial. Id. at 248. To determine whether a defendant's substantial rights have been prejudiced, we ask whether (i) the charging instrument informed the defendant sufficiently to allow him to prepare an adequate defense at trial, and (ii) prosecution under the deficiently drafted instrument would subject the defendant to the risk of being prosecuted later for the same crime. Id. A variance is fatal only if "it is material and prejudices the defendant's substantial rights." Id. at 257.
Applying these principles to this case, the question is whether proof that appellant poked the complainant in the eye with a finger is a fatal variance from the charging instrument's allegation of "striking [complainant] on or about the head with the hand." Asking the questions posed by Gollihar, then, "Did the indictment inform appellant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and would the indictment subject appellant to the risk of being prosecuted later for the same crime?"
The incident was described by the witnesses who testified at trial interchangeably as both poking and striking. In his opening statement, appellant argued, "The poke in the eye was not with the middle finger. It was with your pointing finger. Your pointing finger, okay. That's what the evidence is going to show. Not the middle finger." Appellant then denied that he "poked" the complainant in the eye, but admitted that he "touched [complainant's] nose," and it was possible that when the complainant leaned forward, that his finger "touched [complainant's] eye." Huyck testified that appellant's "finger hit me twice"; that "I was struck twice"; "[appellant] then reaches out, and at that point, pokes me in the eye, right in there"; "[h]e reached up and was, again, continuing to comment, 'Don't f--- with me,' and pokes me in the eye"; and "he poked me again." Officer Schouest testified that appellant told her:
there had been basically a yelling match between the two of them regarding the recent case for which [appellant] had been taken to trial. And that Mr. Huyck had approached on the public sidewalk to Mr.--in front of [appellant]'s residence. The argument had become a little bit more heated. And at some point, [appellant] had gotten very close to Mr. Huyck's face with his finger and had poked Mr. Huyck in his left eye.
Detective Hanly testified that appellant told him that Huyck "walked into his finger." Appellant testified on his own behalf that he was pointing his finger at Huyck " to get him away from me," but that "my finger touched his slimy nose, and I remember the touch of his slimy nose." During his cross-examination of the complainant, appellant stated, "Let's just go ahead and say you were poked in the eye. I only felt [like] poking you in the nose. But you say I poked you in the eye."
Thus, appellant's defense strategy was that he "touched" appellant on his nose and not his eye and that it was done with his index finger and not his middle finger. Appellant specifically denied doing that of which he now claims he had no notice. A review of the record shows that appellant was not misled by the charge and understood exactly with what he was charged. By his own testimony and questioning of other witnesses, appellant was on notice of the charge. Moreover, the record makes clear for what conduct appellant was charged. Appellant is in no danger of being prosecuted again for the assault. See Gollihar, 46 S.W.3d at 258 (citing United States v. Apocada, 843 F.2d 421, 430 n.3 (10th Cir.) (entire record, not just indictment, may be referred to in protecting against double jeopardy in event of subsequent prosecution), cert. denied, 488 U.S. 932 (1988)). We hold that there was no variance, let alone a fatal variance, between the allegations in the information and the evidence adduced at trial.
Even assuming there is a variance in any respect, we conclude that it is not material. The record does not show that appellant was surprised at trial by the State's evidence. Appellant was able to prepare his defensive theory, to call witnesses, and to cross-examine the State's witnesses. His testimony and cross-examination clearly showed he understood the charge. Furthermore, there is no possibility that the variance placed appellant at risk of double jeopardy. Any variance between the charging instrument and the evidence is not material. We overrule appellant's first three issues.
In his fourth issue, appellant asserts that he was denied his right to counsel because he was never admonished about the dangers of self-representation. The rights to assistance of counsel and to self-representation are protected by the Sixth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment. See Faretta v. California, 422 U.S. 806, 818-21 (1975); see also United States v. Cronic, 466 U.S. 648, 653-55 (1984). "The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment." Faretta, 422 U.S. at 807. In Faretta, the Supreme Court held that the Sixth Amendment not only affords an accused facing an adversarial criminal proceeding the right to a defense, but the Sixth Amendment also "grants to the accused personally the right to make his defense." Id. at 819. The Court reasoned:
Although not stated in the Amendment in so many words, the right to self-representation--to make one's own defense personally--is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
Id. at 819-20 (footnote omitted). The Court explained that it is for the defendant personally to decide whether assistance of counsel in his particular case is to his advantage, and his choice must be honored out of "'that respect for the individual which is the lifeblood of the law,'" even if his choice may not be prudent. Id. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970) (Brennan, J., concurring)). Certainly the tension between the right to assistance of counsel and to self-representation is a delicate one and creates difficulty for trial courts.
A decision to represent oneself must be made knowingly, intelligently, and voluntarily. Id. at 835. Although the Supreme Court has not prescribed any formula or script to determine if a defendant wishes to forego counsel and represent himself, the record must establish that the accused knows what he is doing and his choice is made with his eyes open. Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988). The information a defendant must have to make an intelligent election "will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Iowa v. Tovar, 541 U.S. 77, 88 (2004). Courts look at the totality of the particular facts and circumstances of a case in deciding whether the defendant's decision was knowing, intelligent, and voluntary. Id. at 92. The State cannot force a defendant to have a lawyer. See Faretta, 422 U.S. at 820-21. A defendant has a constitutional right to represent himself. Id. at 819-20. We must determine whether, under the particular facts and circumstances of this case, appellant made his decision voluntarily, knowingly, and intelligently. See id. at 835.
Appellant made his choice to represent himself on the record. The record shows that on May 8, 2006, appellant was admonished in open court of his right to representation by counsel and his right to appointment of counsel free of charge if he was indigent. Appellant signed a waiver of his right to counsel. The trial court found that appellant understood his right to have an attorney appointed and the dangers and disadvantages of self-representation. The court made a finding that the waiver was knowingly and intelligently made.
Eight months later, on the day appellant's trial was scheduled to begin, the trial court ascertained that appellant was aware of the charge of which he was accused and the range of punishment. Appellant informed the trial court "you know, I know what's going on." The trial court again inquired into appellant's decision to defend himself. Outside the presence of the venire panel, the following colloquy took place:
Court: In any event, you decided to represent yourself in this case, right?
Appellant: Oh, yeah. Yeah.
Court: And you've been told that you have a right to an attorney, right?
Appellant: Sure.
Court: And as far as I remember or recall, you never said that you're indigent. In fact, I think you said you were not indigent and you wanted to represent yourself. I don't remember. If I'm wrong, say it.
Appellant: Well, I didn't think the indigency thing came up, but I'm not indigent.
Court: Okay. So you have not requested that because of your indigency, that you're poor, that you need to have a court-appointed attorney.
Appellant: Absolutely correct.
Court: So you desire completely to represent yourself?
Appellant: That's right.
Court: And you understand that if things don't go your way, there could be jail time involved.
Appellant: Yes, I understand.
Court: Now, you understand I can't--and I'm the judge here and I can't--I can't take sides. So I can't go over and, you know, correct you if you're doing something wrong or tell you, "Don't ask that question," or "Don't say that." Although if there are objections from Mr. Prosecutor here, then I'm going--I might just say, "I'll grant your objection," or "Overrule your objection." But if I grant his objection, and he's objecting to something you're saying because you're saying it out of turn, or something like that, then you have to comply with my ruling.
Appellant: Of course.
Court: So, you know, do you know what voir dire means?
Appellant: Certainly.
As the trial court began to explain jury selection to him, appellant assured the judge, "I've done this before." The record also shows that appellant was familiar with jury settings and that a setting on the trial date did not necessarily mean that his case would be reached. Appellant represented himself through the trial and did not seek assistance or equivocate in his insistence that he represent himself. A review of the entire record shows that appellant was a small business owner and that he had engaged in litigation on prior occasions--both with representation and with self-representation. The record also shows that this was not appellant's first experience with the criminal justice system as he claimed he had been wrongly accused by his neighbors on prior occasions, had gone to court, and had prevailed. It is clear that appellant intended to represent himself and had done so on a prior occasion.
Appellant's invocation of his right to self-representation was clear and unequivocal. No effort was made to persuade the trial court that appellant's decision was uninformed or involuntary. Considering the totality of the facts and circumstances in this case, we conclude that appellant's clear and unequivocal exercise of his constitutional right to represent himself was an informed and voluntary decision.
After reviewing the entire record, we conclude that the trial court's failure, if any, to admonish appellant more thoroughly about the dangers and disadvantages of self-representation before appellant decided to represent himself would not have resulted in a different outcome of appellant's trial. Appellant adequately prepared his own defense, participated in cross-examination, produced a witness, and was steadfast in his decision to represent himself. Even assuming there was error in the trial court's admonishment, we hold beyond a reasonable doubt that any inadequacy in the admonishment did not contribute to appellant's conviction or punishment. See Tex. R. App. P. 44.2(a). We overrule appellant's fourth issue.
In his fifth issue, appellant complains that he suffered egregious harm by the trial court's omission of an instruction on self-defense in the jury charge. Though it is undisputed that he did not request the instruction, appellant argues that the trial court should have included the instruction sua sponte. We disagree.
A person is justified in "using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a) (West Supp. 2007). A defendant is entitled to an instruction on every defensive issue raised by the evidence, whether it is strong, weak, unimpeached or contradicted. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Because appellant did not object to any jury charge error--or request a charge--appellant must show that he was egregiously harmed. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
A review of the record shows that appellant's theory of the case and his strategy at trial did not rest on a justification of self-defense. No witness testified that appellant used force against his neighbor to protect himself. The evidence showed that appellant pointed his finger in Huyck's direction. The dispute rested on whether appellant then poked Huyck in the eye--or nose--or Huyck walked, leaned or lunged forward and appellant accidently caused the resulting injury. Appellant's theory of the case was that the injury was an incident or an accident brought about by the neighbor's own actions. Rather than raise the justification of self-defense, the evidence at trial, at most, raised a question as to whether appellant intended to injure Huyck. Appellant argued in his opening statement that it was not his intent to "touch" Huyck's eye. We conclude that the trial court did not err in failing sua sponte to include a self-defense instruction in the jury charge. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (holding Article 36.14 does not impose "a duty on trial courts to sua sponte instruct the jury on unrequested defensive issues"). Even if we assume appellant was entitled to a self-defense instruction, there has been no showing that appellant was egregiously harmed by the omission. We overrule appellant's fifth issue.
Having overruled appellant's issues, we affirm the judgment of conviction.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 30, 2008
Do Not Publish
1. At trial, appellant represented himself. He is represented by counsel on appeal.
2. The court of criminal appeals has observed that some courts treat variance claims as a notice-related claim, and others as insufficiency of the evidence claims, but that Texas courts have "routinely treated variance claims as insufficiency of the evidence problems." Gollihar v. State, 46 S.W.3d 243, 246-47 (Tex. Crim. App. 2001). Because appellant raises both claims, we will address them both.
03-07-00089-CR
Greg S. Daniels v. The State of Texas--Appeal from County Court at Law No. 3 of Travis County
FROM THE COUNTY COURT AT LAW NO. 3 OF TRAVIS COUNTY
NO. 729323, HONORABLE DAVID CRAIN, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Greg S. Daniels was charged by information with misdemeanor assault. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2007). Appellant pleaded not guilty, and a jury found him guilty as charged. (1) The trial court sentenced appellant to one year confinement in the Travis County jail and a $2,000 fine, but suspended imposition of sentence and placed him on community supervision for two years. In five issues, appellant challenges a variance between the pleadings and the proof, the adequacy of the admonishment regarding self-representation, and the failure of the trial court to instruct the jury on self-defense. For the reasons that follow, we affirm the judgment of conviction.
On January 30, 2006, Austin Police Officer Heather Schouest responded to an assault report by appellant's next-door neighbor, Douglas Huyck. Testimony at trial showed that appellant had engaged in feuds with Huyck and other neighbors concerning automobiles parked in appellant's driveway and other issues that led to litigation. When Huyck appeared at a hearing to testify against appellant, tensions escalated.
On the afternoon of January 30, Huyck exited his house to go jogging when he saw appellant and a friend in appellant's front yard. Appellant yelled an obscenity at Huyck and, pointing at his friend, called out, "Here's someone to kick your ass. Come over here. Here's somebody who will kick your ass." Huyck approached appellant and his friend. According to Huyck's report to the police and his testimony at trial, appellant indicated to Huyck with his middle finger. Appellant testified that he pointed at Huyck with his index finger. As Huyck approached the two men on the sidewalk easement of appellant's drive, appellant told Huyck to get off his property. With his finger, appellant poked Huyck twice in the eye. In response, Huyck hit appellant twice in the shoulder area. Appellant's friend separated the two men, and Huyck withdrew into his house. Huyck suffered pain and injury from the incident, and his wife observed that his eye was "red and puffy and watery." The Huycks reported the incident to the police.
Shortly thereafter, Officer Schouest arrived at the scene and interviewed the Huycks as well as appellant and his friend. Appellant acknowledged that he poked Huyck in the eye. Schouest's police report stated, "[Appellant] admitted to pointing his finger at close range on Huyck's face, striking Huyck in the left inner eyeball with his index finger." Schouest observed redness in appellant's eye. Appellant later told the investigating police officer, Detective Brendon Hanly, that Huyck walked into his finger.
In his first three issues, appellant contends that the State failed to prove that appellant caused bodily injury to Huyck "by striking [him] on and about the head with [his] hand," that a variance between the pleadings and the proof existed and failed to give appellant notice of the charge, and that the variance exposes appellant to a subsequent prosecution for the same offense. Specifically, appellant complains that the evidence is legally insufficient because there is a variance between the material allegations in the charging instrument and the evidence presented at trial. (2)
The information alleged that appellant, "on or about January 30, 2006, did then and there intentionally, knowingly, and recklessly cause bodily injury to Douglas Huyck by striking Douglas Huyck on and about the head with the Defendant's hand." Appellant argues that, because "there is no evidence that [appellant] struck Mr. Huyck on or about his head with his hand," but rather that the evidence was that appellant "poked Mr. Huyck's eye with his finger," there is no evidence that the complainant was "struck" with appellant's "hand." Although a finger is part of a hand, and the eyes are located in the head, appellant insists that "a hand-to-head allegation does not necessarily include a finger-to-eye allegation."
A variance occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (reaffirming fatal variance doctrine and adopting materiality test). A variance arises when the State proves the defendant guilty of a crime but proves its commission in a manner that varies from the allegations in the charging instrument. Id. (citing 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 31.81, at 178 (1995)). A variance that is not prejudicial to a defendant's "substantial rights" is immaterial. Id. at 248. To determine whether a defendant's substantial rights have been prejudiced, we ask whether (i) the charging instrument informed the defendant sufficiently to allow him to prepare an adequate defense at trial, and (ii) prosecution under the deficiently drafted instrument would subject the defendant to the risk of being prosecuted later for the same crime. Id. A variance is fatal only if "it is material and prejudices the defendant's substantial rights." Id. at 257.
Applying these principles to this case, the question is whether proof that appellant poked the complainant in the eye with a finger is a fatal variance from the charging instrument's allegation of "striking [complainant] on or about the head with the hand." Asking the questions posed by Gollihar, then, "Did the indictment inform appellant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and would the indictment subject appellant to the risk of being prosecuted later for the same crime?"
The incident was described by the witnesses who testified at trial interchangeably as both poking and striking. In his opening statement, appellant argued, "The poke in the eye was not with the middle finger. It was with your pointing finger. Your pointing finger, okay. That's what the evidence is going to show. Not the middle finger." Appellant then denied that he "poked" the complainant in the eye, but admitted that he "touched [complainant's] nose," and it was possible that when the complainant leaned forward, that his finger "touched [complainant's] eye." Huyck testified that appellant's "finger hit me twice"; that "I was struck twice"; "[appellant] then reaches out, and at that point, pokes me in the eye, right in there"; "[h]e reached up and was, again, continuing to comment, 'Don't f--- with me,' and pokes me in the eye"; and "he poked me again." Officer Schouest testified that appellant told her:
there had been basically a yelling match between the two of them regarding the recent case for which [appellant] had been taken to trial. And that Mr. Huyck had approached on the public sidewalk to Mr.--in front of [appellant]'s residence. The argument had become a little bit more heated. And at some point, [appellant] had gotten very close to Mr. Huyck's face with his finger and had poked Mr. Huyck in his left eye.
Detective Hanly testified that appellant told him that Huyck "walked into his finger." Appellant testified on his own behalf that he was pointing his finger at Huyck " to get him away from me," but that "my finger touched his slimy nose, and I remember the touch of his slimy nose." During his cross-examination of the complainant, appellant stated, "Let's just go ahead and say you were poked in the eye. I only felt [like] poking you in the nose. But you say I poked you in the eye."
Thus, appellant's defense strategy was that he "touched" appellant on his nose and not his eye and that it was done with his index finger and not his middle finger. Appellant specifically denied doing that of which he now claims he had no notice. A review of the record shows that appellant was not misled by the charge and understood exactly with what he was charged. By his own testimony and questioning of other witnesses, appellant was on notice of the charge. Moreover, the record makes clear for what conduct appellant was charged. Appellant is in no danger of being prosecuted again for the assault. See Gollihar, 46 S.W.3d at 258 (citing United States v. Apocada, 843 F.2d 421, 430 n.3 (10th Cir.) (entire record, not just indictment, may be referred to in protecting against double jeopardy in event of subsequent prosecution), cert. denied, 488 U.S. 932 (1988)). We hold that there was no variance, let alone a fatal variance, between the allegations in the information and the evidence adduced at trial.
Even assuming there is a variance in any respect, we conclude that it is not material. The record does not show that appellant was surprised at trial by the State's evidence. Appellant was able to prepare his defensive theory, to call witnesses, and to cross-examine the State's witnesses. His testimony and cross-examination clearly showed he understood the charge. Furthermore, there is no possibility that the variance placed appellant at risk of double jeopardy. Any variance between the charging instrument and the evidence is not material. We overrule appellant's first three issues.
In his fourth issue, appellant asserts that he was denied his right to counsel because he was never admonished about the dangers of self-representation. The rights to assistance of counsel and to self-representation are protected by the Sixth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment. See Faretta v. California, 422 U.S. 806, 818-21 (1975); see also United States v. Cronic, 466 U.S. 648, 653-55 (1984). "The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment." Faretta, 422 U.S. at 807. In Faretta, the Supreme Court held that the Sixth Amendment not only affords an accused facing an adversarial criminal proceeding the right to a defense, but the Sixth Amendment also "grants to the accused personally the right to make his defense." Id. at 819. The Court reasoned:
Although not stated in the Amendment in so many words, the right to self-representation--to make one's own defense personally--is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
Id. at 819-20 (footnote omitted). The Court explained that it is for the defendant personally to decide whether assistance of counsel in his particular case is to his advantage, and his choice must be honored out of "'that respect for the individual which is the lifeblood of the law,'" even if his choice may not be prudent. Id. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970) (Brennan, J., concurring)). Certainly the tension between the right to assistance of counsel and to self-representation is a delicate one and creates difficulty for trial courts.
A decision to represent oneself must be made knowingly, intelligently, and voluntarily. Id. at 835. Although the Supreme Court has not prescribed any formula or script to determine if a defendant wishes to forego counsel and represent himself, the record must establish that the accused knows what he is doing and his choice is made with his eyes open. Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988). The information a defendant must have to make an intelligent election "will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Iowa v. Tovar, 541 U.S. 77, 88 (2004). Courts look at the totality of the particular facts and circumstances of a case in deciding whether the defendant's decision was knowing, intelligent, and voluntary. Id. at 92. The State cannot force a defendant to have a lawyer. See Faretta, 422 U.S. at 820-21. A defendant has a constitutional right to represent himself. Id. at 819-20. We must determine whether, under the particular facts and circumstances of this case, appellant made his decision voluntarily, knowingly, and intelligently. See id. at 835.
Appellant made his choice to represent himself on the record. The record shows that on May 8, 2006, appellant was admonished in open court of his right to representation by counsel and his right to appointment of counsel free of charge if he was indigent. Appellant signed a waiver of his right to counsel. The trial court found that appellant understood his right to have an attorney appointed and the dangers and disadvantages of self-representation. The court made a finding that the waiver was knowingly and intelligently made.
Eight months later, on the day appellant's trial was scheduled to begin, the trial court ascertained that appellant was aware of the charge of which he was accused and the range of punishment. Appellant informed the trial court "you know, I know what's going on." The trial court again inquired into appellant's decision to defend himself. Outside the presence of the venire panel, the following colloquy took place:
Court: In any event, you decided to represent yourself in this case, right?
Appellant: Oh, yeah. Yeah.
Court: And you've been told that you have a right to an attorney, right?
Appellant: Sure.
Court: And as far as I remember or recall, you never said that you're indigent. In fact, I think you said you were not indigent and you wanted to represent yourself. I don't remember. If I'm wrong, say it.
Appellant: Well, I didn't think the indigency thing came up, but I'm not indigent.
Court: Okay. So you have not requested that because of your indigency, that you're poor, that you need to have a court-appointed attorney.
Appellant: Absolutely correct.
Court: So you desire completely to represent yourself?
Appellant: That's right.
Court: And you understand that if things don't go your way, there could be jail time involved.
Appellant: Yes, I understand.
Court: Now, you understand I can't--and I'm the judge here and I can't--I can't take sides. So I can't go over and, you know, correct you if you're doing something wrong or tell you, "Don't ask that question," or "Don't say that." Although if there are objections from Mr. Prosecutor here, then I'm going--I might just say, "I'll grant your objection," or "Overrule your objection." But if I grant his objection, and he's objecting to something you're saying because you're saying it out of turn, or something like that, then you have to comply with my ruling.
Appellant: Of course.
Court: So, you know, do you know what voir dire means?
Appellant: Certainly.
As the trial court began to explain jury selection to him, appellant assured the judge, "I've done this before." The record also shows that appellant was familiar with jury settings and that a setting on the trial date did not necessarily mean that his case would be reached. Appellant represented himself through the trial and did not seek assistance or equivocate in his insistence that he represent himself. A review of the entire record shows that appellant was a small business owner and that he had engaged in litigation on prior occasions--both with representation and with self-representation. The record also shows that this was not appellant's first experience with the criminal justice system as he claimed he had been wrongly accused by his neighbors on prior occasions, had gone to court, and had prevailed. It is clear that appellant intended to represent himself and had done so on a prior occasion.
Appellant's invocation of his right to self-representation was clear and unequivocal. No effort was made to persuade the trial court that appellant's decision was uninformed or involuntary. Considering the totality of the facts and circumstances in this case, we conclude that appellant's clear and unequivocal exercise of his constitutional right to represent himself was an informed and voluntary decision.
After reviewing the entire record, we conclude that the trial court's failure, if any, to admonish appellant more thoroughly about the dangers and disadvantages of self-representation before appellant decided to represent himself would not have resulted in a different outcome of appellant's trial. Appellant adequately prepared his own defense, participated in cross-examination, produced a witness, and was steadfast in his decision to represent himself. Even assuming there was error in the trial court's admonishment, we hold beyond a reasonable doubt that any inadequacy in the admonishment did not contribute to appellant's conviction or punishment. See Tex. R. App. P. 44.2(a). We overrule appellant's fourth issue.
In his fifth issue, appellant complains that he suffered egregious harm by the trial court's omission of an instruction on self-defense in the jury charge. Though it is undisputed that he did not request the instruction, appellant argues that the trial court should have included the instruction sua sponte. We disagree.
A person is justified in "using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a) (West Supp. 2007). A defendant is entitled to an instruction on every defensive issue raised by the evidence, whether it is strong, weak, unimpeached or contradicted. See Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007); Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). Because appellant did not object to any jury charge error--or request a charge--appellant must show that he was egregiously harmed. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
A review of the record shows that appellant's theory of the case and his strategy at trial did not rest on a justification of self-defense. No witness testified that appellant used force against his neighbor to protect himself. The evidence showed that appellant pointed his finger in Huyck's direction. The dispute rested on whether appellant then poked Huyck in the eye--or nose--or Huyck walked, leaned or lunged forward and appellant accidently caused the resulting injury. Appellant's theory of the case was that the injury was an incident or an accident brought about by the neighbor's own actions. Rather than raise the justification of self-defense, the evidence at trial, at most, raised a question as to whether appellant intended to injure Huyck. Appellant argued in his opening statement that it was not his intent to "touch" Huyck's eye. We conclude that the trial court did not err in failing sua sponte to include a self-defense instruction in the jury charge. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (holding Article 36.14 does not impose "a duty on trial courts to sua sponte instruct the jury on unrequested defensive issues"). Even if we assume appellant was entitled to a self-defense instruction, there has been no showing that appellant was egregiously harmed by the omission. We overrule appellant's fifth issue.
Having overruled appellant's issues, we affirm the judgment of conviction.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: January 30, 2008
Do Not Publish
1. At trial, appellant represented himself. He is represented by counsel on appeal.
2. The court of criminal appeals has observed that some courts treat variance claims as a notice-related claim, and others as insufficiency of the evidence claims, but that Texas courts have "routinely treated variance claims as insufficiency of the evidence problems." Gollihar v. State, 46 S.W.3d 243, 246-47 (Tex. Crim. App. 2001). Because appellant raises both claims, we will address them both.
Tuesday, October 2, 2007
Lawyer prevails in suit alleging malicious prosecution - Austin court of appeals affirms summary judgment
Gregory Daniels v. Laurie Eiserloh, No. 03-05-00457-CV (Tex.App.- Austin, Sep. 27, 2007)(Opinion by Justice Puryear)(abuse of process, protective order, summary judgment, additional discovery) (Before Justices Patterson, Puryear and Waldrop)
Appeal from 53rd District Court of Travis County
Disposition: Summary Judgment for Defendant affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. GN303060, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
In August 2003, appellant Gregory Daniels, representing himself pro se, sued appellee Laurie Eiserloh, an attorney, as well as Betty and Kate Trimble, two of Eiserloh's clients on whose behalf Eiserloh sought and obtained a protective order against Daniels. Daniels asserted claims for malicious prosecution, fraud, constructive fraud, and abuse of process, arguing that Eiserloh and the Trimbles lied and exaggerated facts to obtain the protective order.
The trial court granted summary judgment for the Trimbles in March 2005 and later severed them from the suit. Eiserloh filed a no-evidence motion for summary judgment on April 11, Daniels filed a third amended petition on April 18, and Eiserloh filed a "supplemental" motion for summary judgment on April 21. On May 12, the day of the hearing on Eiserloh's motions, Daniels filed a response and requested additional time for discovery. Eiserloh filed objections to the response and Daniels's evidence that same day, arguing that Daniels's response was untimely and that the evidence to which he pointed did not raise fact issues. The trial court granted Eiserloh's objections and denied Daniels leave to file his documents. The court then granted Eiserloh's motions, ordering that Daniels should take nothing by his suit against her.
Daniels appeals from the order in favor of Eiserloh; his claims against the Trimbles are not before us. Daniels complains that the trial court improperly disregarded his evidence, should have granted him additional time for discovery, and should not have required him to prove Eiserloh's intent with absolute certainty. (1) We affirm the order of summary judgment.
A no-evidence summary judgment is essentially a pretrial directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). A defendant seeking a no-evidence summary judgment need not prove her right to judgment as a matter of law but instead asserts that there is no evidence of one or more essential elements of the plaintiff's claim. Tex. R. Civ. P. 166a(i); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.--Austin 2000, no pet.). We consider the evidence in the light most favorable to the non-movant and disregard contrary evidence and inferences. King Ranch, 118 S.W.3d at 751. A no-evidence motion is properly granted if the non-movant does not produce more than a scintilla of probative evidence raising an issue of material fact with respect to the essential elements attacked by the movant. Tex. R. Civ. P. 166a(i); King Ranch, 118 S.W.3d at 751. More than a scintilla exists if reasonable people could differ in their conclusions about the evidence; evidence amounts to less than a scintilla if it does no more than create a surmise or suspicion of a fact. King Ranch, 118 S.W.3d at 751. The non-movant need not marshal his proof, but must point to evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i) cmt.
In his first issue, Daniels complains that the trial court should have considered exhibits in the court's file that he argues showed more than a scintilla of evidence that Eiserloh "breached her legal obligations and committed constructive fraud." We disagree.
Eiserloh argued that Daniels could not show the following elements of malicious prosecution: malice, lack of probable cause, termination in Daniels's favor, and special damages. As for fraud, Eiserloh contended that there was no evidence of any false representation, that she knew any representations were false or was reckless as to the truth, that she intended to induce Daniels into acting on a misrepresentation, or that Daniels relied on a misrepresentation. Finally, Eiserloh argued that Daniels could not show that she made an illegal, improper, or perverted use of process, either before or after process issued; that she had an ulterior motive in using process; or that Daniels was harmed by any misuse of process. In her supplemental motion, filed after Daniels amended his petition to add constructive fraud as a cause of action, Eiserloh argued there was no evidence to show she had a duty to Daniels or breached any such duty. Daniels's response, filed the day of the hearing, argued that his affidavit seeking more time for discovery showed that "demands on Plaintiff's time and financial resources have hampered his ability to conduct complete discovery." Daniels also referred to exhibits attached to Eiserloh's "traditional" motion for summary judgment filed in November 2004 and asserted that those exhibits raised fact issues as to his claims. Daniels's arguments in response to Eiserloh's no-evidence motion read in their entirety as follows:
1) Constructive Fraud - Plaintiff disputes Laurie Eiserloh's denial that she made false representations knowingly. Based on the facts and evidence as indicated in Plaintiff's Third Amended Petition, a jury could reasonably conclude Laurie Eiserloh unlawfully and knowingly made false statements to improperly obtain an ex-parte hearing for the purpose of obtaining a restraining order. Furthermore, the wording of that order, as interpreted by Judge McCown, effectively placed the Plaintiff under house arrest (due to the proximity of the two residences) without the benefit of proper hearing.
2) Malicious Prosecution - Despite Defendant Laurie Eiserloh unlawfully and knowingly obtained the restraining order through false allegations [sic], on August 3rd, 2001, Defendant filed a show cause order claiming two (2) violations of that restraining order. (Exhibit 3 - Motion to Dismiss for Lack of Subject Matter Jurisdiction of Defendant, Laurie Eiserloh)
3) Abuse of Process - At this time, it is unclear as to the identities of the defendants that were responsible for the use of process in the prior case for the purpose of unlawfully gaining exclusive parking rights to a public street and thereby violating the civil rights of the Plaintiff.
Further discovery should reveal the individuals responsible.
Daniels failed to point to specific evidence raising fact issues on the elements attacked by Eiserloh. (2) Instead, he merely restated his allegations and argument, making conclusory statements such as, "Eiserloh unlawfully and knowingly obtained the restraining order through false allegations," without pointing to any proof that, for example, Eiserloh acted with malice, knowingly or recklessly made misrepresentations, or misused process. Indeed, in his response related to abuse of process, Daniels stated that he did not know the identity of those who allegedly misused process. Further, Daniels's response was filed on the day of the hearing in violation of rule of civil procedure 166a(c), which provides that the non-movant "not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." Tex. R. Civ. P. 166a(c). Daniels asserts on appeal that "although at the start of the hearing, Judge Scott Jenkins stated he would allow Appellant's late filed Summary Judgment Response and Evidence to be considered, he later signed Laurie Eiserloh's order granting her objection to his consideration of said document." However, we have no record of the hearing, and the trial court was not obligated to consider Daniels's late-filed response, filed without seeking leave of court and without explanation for its untimeliness. See id. ("[e]xcept on leave of court," response must be filed at least seven days before hearing). Daniels did not raise fact issues on the essential elements of his claims, and the trial court properly granted summary judgment for Eiserloh. We overrule Daniels's first issue on appeal.
Daniels next complains that the trial court did not consider his motion for additional time to conduct discovery. On the date of the summary-judgment hearing, Daniels filed an affidavit "in support of plaintiff's request for additional discovery time," stating that he was the victim of various illegal acts between March 2001 and March 2002 and that "[l]imited time statutes necessitated the filing of four (4) separate and unrelated District Court cases simultaneously." He asserted that the various responses required in the cases had consumed all his time and financial resources, "thus preventing timely pursuit of discovery in both this and other pending cases." The trial court did not make a written ruling on Daniels's affidavit.
Daniels stated in his original petition that the case would be under a Level 2 discovery plan. See Tex. R. Civ. P. 190.3. Under a Level 2 discovery plan, "[a]ll discovery must be conducted during the discovery period," which runs from the date the petition is filed until thirty days before trial or nine months after the first oral deposition or the due date of the first response to written discovery, whichever is earlier. Tex. R. Civ. P. 190.3(b)(1)(B). Eiserloh presented evidence that she filed a request for disclosure on September 9, 2003. Thus, Daniels's response was due thirty days later, on October 9, and the discovery period ended nine months later, on July 9, 2004.
Eiserloh's motion for a no-evidence summary judgment was filed about nine months later, in April 2005, and Daniels's request for additional time was filed one month later, on the day of the hearing. Daniels did not assert that he had made discovery attempts, nor did he show grounds that would require additional time for discovery, and the trial court was not obligated to give Daniels more time to conduct discovery. We overrule Daniels's second issue on appeal.
In his third issue, Daniels asserts that the trial court improperly required him to "produce absolute evidentiary proof" of Eiserloh's tortious intent, whereas he should only have had to show that "a reasonable person might conclude such facts based on available evidence." However, other than stating this issue in the "issues presented" section of his brief, he presents no argument in support of this issue. See Tex. R. App. P. 38.1(h). Further, Eiserloh asserted a lack of evidence of many of the elements of Daniels's claims, and because Daniels failed to raise a fact issue as to elements other than Eiserloh's malicious intent, summary judgment was proper even if the court imposed an improper burden on Daniels regarding intent. We overrule Daniels's third issue.
Having overruled Daniels's issues on appeal, we affirm the trial court's granting of a no-evidence summary judgment in Eiserloh's favor.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Waldrop
Affirmed
Filed: September 27, 2007
1. Daniels is representing himself pro se, and his brief largely explains his version of the facts underlying his lawsuit, providing little in the way of argument or authority supporting his issues. See Tex. R. App. P. 38.1(h). We will attempt to discern and address Daniels's arguments as thoroughly as possible. However, pro se litigants must comply with the same procedural rules as parties represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
2. Daniels did not make any mention of fraud and it appears that he abandoned this cause of action when he filed his third amended petition, which alleged only constructive fraud, malicious prosecution, and abuse of process.
Appeal from 53rd District Court of Travis County
Disposition: Summary Judgment for Defendant affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. GN303060, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
In August 2003, appellant Gregory Daniels, representing himself pro se, sued appellee Laurie Eiserloh, an attorney, as well as Betty and Kate Trimble, two of Eiserloh's clients on whose behalf Eiserloh sought and obtained a protective order against Daniels. Daniels asserted claims for malicious prosecution, fraud, constructive fraud, and abuse of process, arguing that Eiserloh and the Trimbles lied and exaggerated facts to obtain the protective order.
The trial court granted summary judgment for the Trimbles in March 2005 and later severed them from the suit. Eiserloh filed a no-evidence motion for summary judgment on April 11, Daniels filed a third amended petition on April 18, and Eiserloh filed a "supplemental" motion for summary judgment on April 21. On May 12, the day of the hearing on Eiserloh's motions, Daniels filed a response and requested additional time for discovery. Eiserloh filed objections to the response and Daniels's evidence that same day, arguing that Daniels's response was untimely and that the evidence to which he pointed did not raise fact issues. The trial court granted Eiserloh's objections and denied Daniels leave to file his documents. The court then granted Eiserloh's motions, ordering that Daniels should take nothing by his suit against her.
Daniels appeals from the order in favor of Eiserloh; his claims against the Trimbles are not before us. Daniels complains that the trial court improperly disregarded his evidence, should have granted him additional time for discovery, and should not have required him to prove Eiserloh's intent with absolute certainty. (1) We affirm the order of summary judgment.
A no-evidence summary judgment is essentially a pretrial directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). A defendant seeking a no-evidence summary judgment need not prove her right to judgment as a matter of law but instead asserts that there is no evidence of one or more essential elements of the plaintiff's claim. Tex. R. Civ. P. 166a(i); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.--Austin 2000, no pet.). We consider the evidence in the light most favorable to the non-movant and disregard contrary evidence and inferences. King Ranch, 118 S.W.3d at 751. A no-evidence motion is properly granted if the non-movant does not produce more than a scintilla of probative evidence raising an issue of material fact with respect to the essential elements attacked by the movant. Tex. R. Civ. P. 166a(i); King Ranch, 118 S.W.3d at 751. More than a scintilla exists if reasonable people could differ in their conclusions about the evidence; evidence amounts to less than a scintilla if it does no more than create a surmise or suspicion of a fact. King Ranch, 118 S.W.3d at 751. The non-movant need not marshal his proof, but must point to evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i) cmt.
In his first issue, Daniels complains that the trial court should have considered exhibits in the court's file that he argues showed more than a scintilla of evidence that Eiserloh "breached her legal obligations and committed constructive fraud." We disagree.
Eiserloh argued that Daniels could not show the following elements of malicious prosecution: malice, lack of probable cause, termination in Daniels's favor, and special damages. As for fraud, Eiserloh contended that there was no evidence of any false representation, that she knew any representations were false or was reckless as to the truth, that she intended to induce Daniels into acting on a misrepresentation, or that Daniels relied on a misrepresentation. Finally, Eiserloh argued that Daniels could not show that she made an illegal, improper, or perverted use of process, either before or after process issued; that she had an ulterior motive in using process; or that Daniels was harmed by any misuse of process. In her supplemental motion, filed after Daniels amended his petition to add constructive fraud as a cause of action, Eiserloh argued there was no evidence to show she had a duty to Daniels or breached any such duty. Daniels's response, filed the day of the hearing, argued that his affidavit seeking more time for discovery showed that "demands on Plaintiff's time and financial resources have hampered his ability to conduct complete discovery." Daniels also referred to exhibits attached to Eiserloh's "traditional" motion for summary judgment filed in November 2004 and asserted that those exhibits raised fact issues as to his claims. Daniels's arguments in response to Eiserloh's no-evidence motion read in their entirety as follows:
1) Constructive Fraud - Plaintiff disputes Laurie Eiserloh's denial that she made false representations knowingly. Based on the facts and evidence as indicated in Plaintiff's Third Amended Petition, a jury could reasonably conclude Laurie Eiserloh unlawfully and knowingly made false statements to improperly obtain an ex-parte hearing for the purpose of obtaining a restraining order. Furthermore, the wording of that order, as interpreted by Judge McCown, effectively placed the Plaintiff under house arrest (due to the proximity of the two residences) without the benefit of proper hearing.
2) Malicious Prosecution - Despite Defendant Laurie Eiserloh unlawfully and knowingly obtained the restraining order through false allegations [sic], on August 3rd, 2001, Defendant filed a show cause order claiming two (2) violations of that restraining order. (Exhibit 3 - Motion to Dismiss for Lack of Subject Matter Jurisdiction of Defendant, Laurie Eiserloh)
3) Abuse of Process - At this time, it is unclear as to the identities of the defendants that were responsible for the use of process in the prior case for the purpose of unlawfully gaining exclusive parking rights to a public street and thereby violating the civil rights of the Plaintiff.
Further discovery should reveal the individuals responsible.
Daniels failed to point to specific evidence raising fact issues on the elements attacked by Eiserloh. (2) Instead, he merely restated his allegations and argument, making conclusory statements such as, "Eiserloh unlawfully and knowingly obtained the restraining order through false allegations," without pointing to any proof that, for example, Eiserloh acted with malice, knowingly or recklessly made misrepresentations, or misused process. Indeed, in his response related to abuse of process, Daniels stated that he did not know the identity of those who allegedly misused process. Further, Daniels's response was filed on the day of the hearing in violation of rule of civil procedure 166a(c), which provides that the non-movant "not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response." Tex. R. Civ. P. 166a(c). Daniels asserts on appeal that "although at the start of the hearing, Judge Scott Jenkins stated he would allow Appellant's late filed Summary Judgment Response and Evidence to be considered, he later signed Laurie Eiserloh's order granting her objection to his consideration of said document." However, we have no record of the hearing, and the trial court was not obligated to consider Daniels's late-filed response, filed without seeking leave of court and without explanation for its untimeliness. See id. ("[e]xcept on leave of court," response must be filed at least seven days before hearing). Daniels did not raise fact issues on the essential elements of his claims, and the trial court properly granted summary judgment for Eiserloh. We overrule Daniels's first issue on appeal.
Daniels next complains that the trial court did not consider his motion for additional time to conduct discovery. On the date of the summary-judgment hearing, Daniels filed an affidavit "in support of plaintiff's request for additional discovery time," stating that he was the victim of various illegal acts between March 2001 and March 2002 and that "[l]imited time statutes necessitated the filing of four (4) separate and unrelated District Court cases simultaneously." He asserted that the various responses required in the cases had consumed all his time and financial resources, "thus preventing timely pursuit of discovery in both this and other pending cases." The trial court did not make a written ruling on Daniels's affidavit.
Daniels stated in his original petition that the case would be under a Level 2 discovery plan. See Tex. R. Civ. P. 190.3. Under a Level 2 discovery plan, "[a]ll discovery must be conducted during the discovery period," which runs from the date the petition is filed until thirty days before trial or nine months after the first oral deposition or the due date of the first response to written discovery, whichever is earlier. Tex. R. Civ. P. 190.3(b)(1)(B). Eiserloh presented evidence that she filed a request for disclosure on September 9, 2003. Thus, Daniels's response was due thirty days later, on October 9, and the discovery period ended nine months later, on July 9, 2004.
Eiserloh's motion for a no-evidence summary judgment was filed about nine months later, in April 2005, and Daniels's request for additional time was filed one month later, on the day of the hearing. Daniels did not assert that he had made discovery attempts, nor did he show grounds that would require additional time for discovery, and the trial court was not obligated to give Daniels more time to conduct discovery. We overrule Daniels's second issue on appeal.
In his third issue, Daniels asserts that the trial court improperly required him to "produce absolute evidentiary proof" of Eiserloh's tortious intent, whereas he should only have had to show that "a reasonable person might conclude such facts based on available evidence." However, other than stating this issue in the "issues presented" section of his brief, he presents no argument in support of this issue. See Tex. R. App. P. 38.1(h). Further, Eiserloh asserted a lack of evidence of many of the elements of Daniels's claims, and because Daniels failed to raise a fact issue as to elements other than Eiserloh's malicious intent, summary judgment was proper even if the court imposed an improper burden on Daniels regarding intent. We overrule Daniels's third issue.
Having overruled Daniels's issues on appeal, we affirm the trial court's granting of a no-evidence summary judgment in Eiserloh's favor.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Waldrop
Affirmed
Filed: September 27, 2007
1. Daniels is representing himself pro se, and his brief largely explains his version of the facts underlying his lawsuit, providing little in the way of argument or authority supporting his issues. See Tex. R. App. P. 38.1(h). We will attempt to discern and address Daniels's arguments as thoroughly as possible. However, pro se litigants must comply with the same procedural rules as parties represented by counsel. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
2. Daniels did not make any mention of fraud and it appears that he abandoned this cause of action when he filed his third amended petition, which alleged only constructive fraud, malicious prosecution, and abuse of process.
Friday, September 7, 2007
Post-answer default judgment required evidence - only sworn-account claim damages sustained on appeal
Court rejects defendant's claims that his motion for new trial should have been granted on the ground that he did not have proper notice of trial setting, and that he satisfied the Craddock requirements. Defendant's affidavit testimony about lack of notice was dubious.
Gary Romano v. Gary Newton, No. 03-06-00255-CV (Tex.App.- Austin, Sep. 6, 2007)(Opinion by Justice Pemberton)(breach of contract, post-answer default judgment)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 335th District Court of Bastrop County
Disposition: Affirmed conditioned on remittiure
FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT
NO. 24,929, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Gary Romano appeals from the district court's post-answer default judgment awarding Gary Newton $176,150.68 in actual damages, $6,216.21 in attorney's fees, interest and costs, and its order overruling his motion for new trial. For the reasons we explain below, we affirm the district court's judgment conditioned on Newton's remittitur of a portion of the judgment that is not supported by the record.
The parties' underlying dispute concerns a written contract, a copy of which is attached to and incorporated into Newton's petition, under which Romano agreed to purchase from Newton an inventory of deli products, a customer list, and distribution rights within a designated area. The contract stated that the sales price was "Twenty Seven Thousand Dollars ($27,000)" for the customer list and distribution rights, plus "Seller's actual cost for inventory conveyed," which Newton alleged was $2,544.47, for a total of $29,544.47. Newton alleged that Romano "took possession of the inventory, and the customer list pursuant to the sale [and] has exercised control over the distribution rights," including servicing of customers along the route and actually selling those rights to others," yet "has failed and refused to pay the purchase prices to [Newton]." Newton pled causes of action for breach of written contract, fraud, quantum merit, breach of oral contract, and sworn account. Regarding the sworn account claim, Newton verified that a total principal balance of $29,544.47, exclusive of interest, was due and payable by Romano to him, was within his personal knowledge, just and true, and that all just and lawful offsets, payments, and credits had been allowed. See Tex. R. Civ. P. 185. (1)
Romano, acting pro se, filed a general denial; he did not file a verified denial of Newton's sworn account claim nor assert affirmative defenses. (2) Newton, who was represented by counsel, obtained some discovery from Romano and later set the case for non-jury trial for the week of January 23, 2006. A pretrial conference was also set for January 12. Romano failed to appear at either the pretrial conference or trial. When the case was called for trial, Newton's counsel announced ready and introduced into evidence copies of two letters on his law office letterhead that were addressed from counsel to Romano: (1) a November 4, 2005, letter notifying Romano of the trial date and pretrial conference; and (2) a January 13, 2006, letter advising Romano that the pretrial conference had been held, conveying (per the judge's instructions) information regarding how the case would be called, and requesting a telephone number where Romano could be reached.
Each letter had been addressed to Romano at his address of record, the address where he had previously been served. Each reflected that it had been sent via certified mail, return receipt requested, citing a tracking number. With each letter, Newton also introduced the postmarked certified mail receipt, indicating prepayment of postage, and the signed "green card" acknowledging receipt by someone at Romano's address. The tracking number on each certified mail document matched the number stated on each corresponding letter. The green card with the November 2005 letter bore a postmark of November 7 and indicated receipt on the same date. The signature on the card is not clearly legible, and we cannot immediately discern the signer's identity from the record the district court had before it. However, the green card from the January letter, reflecting receipt at the same address on January 17, bears a signature of "Kathy Romano."
Immediately after introducing the letters and certified mail proof into evidence, Newton moved for a default judgment. The district court granted the motion. Newton's counsel advised that he would prepare a judgment for the court's approval, and the district court responded, "That concludes the hearing." Newton did not present other evidence. The district court subsequently signed a "Default Judgment" awarding Newton $176,150.68 "as the amount due in principal and interest on the principal amount to the date of judgment," plus court costs, $6,216.21 in attorney's fees, and post-judgment interest.
Romano filed a motion for a new trial, contending that he had inadequate notice of the trial setting, that he met the elements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), and that the evidence was insufficient to support the judgment. He attached his affidavit testimony, wherein he also verified the factual allegations within his new trial motion. Newton did not file a controverting affidavit. After a hearing at which no evidence was introduced, the district court overruled Romano's motion for new trial. (3)
Romano (now represented by counsel) brings three issues on appeal, contending that (1) the district court abused its discretion in overruling his new trial motion because the evidence established that he did not receive proper notice of the trial setting and, alternatively, met each factor of the Craddock test; (2) the pleadings and evidence were insufficient to support the judgment of $176,150.68 "as the amount due in principal and interest on the principal amount to the date of judgment"; and (3) the evidence was insufficient to support the attorney's fee award. We overrule Newton's first issue but conclude that the latter two are meritorious.
Motion for new trial
Trial courts have broad discretion in ruling on motions for new trial. Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 542 (Tex. App.--Austin 2004, no pet.). We review a trial court's denial of a motion for new trial for an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987); Limestone Constr., Inc., 143 S.W.3d at 542. In matters committed to a trial court's discretion, the test is whether the trial court acted arbitrarily or without reference to guiding legal principles. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). However, a trial court lacks discretion to incorrectly interpret and apply the law, and abuses its discretion in doing so. In re DuPont De Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004).
A trial court abuses its discretion if it refuses to set aside a default judgment and grant a new trial where (1) the failure of the defendant to answer before judgment was not intentional or the result of conscious indifference, but due to a mistake or an accident; (2) the motion for a new trial sets up a meritorious defense; and (3) granting the motion for new trial will occasion no undue delay or otherwise injure the party taking the default judgment. Craddock, 133 S.W.2d at 126; see also Cliff, 724 S.W.2d at 779 (Craddock analysis applies to motions to set aside post-answer default judgments); Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (same).
Furthermore, a defendant who has appeared is entitled to notice of a trial setting as a matter of due process. See LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989). A party who has been denied due process through lack of notice of a trial setting satisfies the first Craddock factor (as one cannot be consciously indifferent to a trial of which they are unaware), and, in such instances, the supreme court has also dispensed with the second (meritorious defense) factor for constitutional reasons. Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); Smith v. Holmes, 53 S.W.3d 815, 817 (Tex. App.--Austin 2001, no pet.).
This Court has previously held that a defendant who can establish lack of notice of a trial setting also need not establish the third Craddock factor, lack of prejudice to the plaintiff, id. at 818, but the supreme court more recently left open that question. Mathis, 166 S.W.3d at 744. We need not consider that issue here because Newton does not dispute that Romano satisfied the lack of prejudice element and our disposition is ultimately controlled by other elements.
Here, it is undisputed that Romano did receive notice of the trial setting before trial began--he admits receiving Newton's second letter concerning the upcoming trial on January 19. This was the first trial setting, and rule of civil procedure 245 requires 45 days notice of an initial trial setting. Romano urges that in light of rule 245, proof that he did not receive 45 days notice of the first trial setting (even if he received some advance notice of it) would obviate his need to establish any of the Craddock factors. As Newton does not dispute that proposition and it is ultimately unnecessary for us to address it, we will assume the same.
As noted, Newton introduced evidence that he sent Romano a letter dated November 4, 2005, giving notice of the trial setting to Romano's address of record. Newton's evidence demonstrated compliance with rule of civil procedure 21a. This evidence that Newton sent the notice in compliance with rule 21a gives rise to a presumption that Romano duly received the notice. Cliff, 724 S.W.2d at 780. In the absence of evidence to the contrary, this presumption has the force of a rule of law. Id. The presumption that notice sent in compliance with rule 21a was received by the intended recipient is not evidence, however, and it "vanishes" when opposing evidence is introduced that the letter was not received. Id.
But Newton also introduced evidence that the November notice letter was actually received by someone at Romano's address--the returned, signed, certified mail "green card" dated November 7. See Smith, 53 S.W.3d at 818 (distinguishing between "the presumption that, because notice was mailed, [the opposing party] received it" arising from sending a notice in compliance with rule 21a versus inferences arising from proof that someone at the address actually received it); cf. Limestone Constr., Inc., 143 S.W.3d at 545 (evidence that notice had been returned "unclaimed"). November 7 was over 80 days prior to the trial setting. Exactly who at that address received the letter is unclear from the record before the district court, but that address corresponded to Romano's address of record, where Romano had been successfully served. Moreover, Newton had later mailed his January notice letter to this address, where "Kathy Romano" acknowledged receipt on January 17. Romano admits receiving that notice letter two days later, on January 19.
Romano contends that his affidavit and verified new trial motion establish that he never received Newton's November notice letter and that the first notice he received was Newton's second letter following the pretrial conference. In the relevant portions of his affidavit, Romano testified as follows:
I received notice of a trial setting from counsel for Plaintiff on January 19th, 2006 for a setting during the week of January 23rd, 2006. I have been Pro Se in this litigation for several months and did not know the meaning of the notice, nor the result or consequence of not appearing before the Court during the week of January 23, 2006. At no time was I called to be at the courtroom on January 27th, 2006, the time at which the Court heard Plaintiff's case. Further, Plaintiff sent a personal letter to me on January 23rd advising of the January 27th trial date.[ (4)] . . . .
On January 23rd, 2006 I sent a correspondence to the Court advising that I had previously made travel plans to be out of town during the time in which the case was set. My correspondence, a true and correct copy of which is attached to the Motion for New Trial as Exhibit "D", provided my current phone number and address, but I was not contacted by the Court or Court personnel that I was to appear on the 27th of January, 2006 for a hearing on the merits. I did not have 45 days notice of the trial setting. I though[t] my letter to the Court of January 23rd, 2006 relieved me of any requirement to appear during the week of the 23rd of January.
In the first paragraph, Romano confirms that he received the January notice letter from Newton on January 19. In the second paragraph, Romano explains his response to that letter, addressing Craddock's conscious indifference factor. Nowhere does he squarely address whether he did or did not receive prior notice of the trial setting except in the statement, found in the second paragraph, "I did not have 45 days notice of the trial setting." However, in his new trial motion, Romano does elaborate, "Defendant did not receive notice of the trial setting until January 19th when he received the letter from Plaintiff's counsel attached as Ex. C. [the January notice letter]." Romano verified the contents of his motion, testifying in his affidavit that "I have reviewed Defendant's Motion for New Trial and find the factual allegations therein true and correct." (5)
Romano urges that his assertions that he did not receive notice of the trial setting until January 19 are sufficient to rebut the rule 21a presumption that he received Newton's November notice letter. He adds that because Newton did not controvert this evidence with his own affidavit in opposition to Romano's new trial motion, the district court was required to take his assertions as true and grant him a new trial. See Director, State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) (if plaintiff does not controvert the defendant's affidavit in support of new trial motion, trial court must accept as true the affidavit's factual assertions regarding the Craddock elements).
In determining a motion for new trial under the Craddock standard, the trial court may look to all of the evidence in the record. See Walker v. Gutierrez, 111 S.W.3d 56, 64 (Tex. 2003) (in determining whether movant's factual assertions are controverted, court may consider all of the evidence in the record); Evans, 889 S.W.2d at 269 (same); Katin Corp. v. Loesch, No. 03-05-00412-CV, 2007 Tex. App. LEXIS 6352, at *12 (Tex. App.--Austin Aug. 10, 2007, no pet. h.) (mem. op.) (same). We may thus consider the evidence Newton introduced at trial regarding actual receipt of the notice. See Smith, 53 S.W.3d at 818.
In Smith, this Court recognized that mere proof that someone at a party's address of record received a notice intended for that party does not alone support the inference that the party actually received it. Id. at 818 (inmate's denial that he received notice "overcomes" any inferences from green card signed by someone at prison other than inmate; "[a]fter [inmate] denied that he received notice, appellees were required to do something more than show that someone at the prison's address had received the notice"). This case is distinguishable from Smith for two related reasons. First, while the signature on the green card accompanying the November notice letter cannot clearly be determined to have been Gary Romano's, it does not exclude that possibility, either. (6) Second, as Smith acknowledges, other surrounding facts may cause receipt by another person at the address to be probative of the party's actual receipt. Id. (citing Elite Towing, Inc. v. LSI Fin. Group, 985 S.W.2d 635, 642-43 (Tex. App.--Austin 1999, no pet.) (holding that notice to agent was notice to principal)).
We conclude that Newton's evidence was sufficient to enable the district court to infer, in light of surrounding facts, that Romano had personally signed for or otherwise received the November notice letter before the 45th day prior to trial. The address to which the letter was sent was the same one at which he had earlier been served, and the same one at which "Kathy Romano" later acknowledged receipt of the January notice letter that Romano admits he personally received. This address, the pleadings indicate, was Romano's home address. Romano does not dispute that someone at this address acknowledged receipt of the November letter. The signature on the green card is as consistent with it being Romano's signature as that of any other person there.
Our conclusion is further buttressed by Romano's own affidavit and new trial motion. In the face of evidence that someone at his address actually received the November notice, Romano is conspicuously silent regarding an explanation, offering only the bald assertions that "I did not have 45 days notice of the trial setting" and, "Defendant did not receive notice of the trial setting until January 19th when he received [the January notice letter]." In such a context, these statements are conclusory and, by omitting any mention of the signed green card and its implications, could further support the inference that Romano actually received notice. See Katin Corp., 2007 Tex. App. LEXIS 6352, at *20-21 (explaining that while trial courts must take as true uncontroverted affidavit testimony regarding factual allegations concerning the Craddock factors, they may nonetheless draw "conflicting inferences" from those facts); see also Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82-83 (Tex. 1992) (conclusory allegations are insufficient to establish Craddock factors).
We conclude that the evidence Newton introduced at trial suffices to controvert Romano's factual assertions that he did not receive the November notice letter. Faced with conflicting evidence, the district court would have been within its discretion to conclude that Romano had received Newton's November trial notice letter on or about November 7, and well in advance of the 45th day before trial. We likewise conclude, in light of this evidence, that the district court would not have abused its discretion in determining that Romano had failed to establish lack of conscious indifference. Although Romano presented evidence that he wrote a letter to the district court responding to the January trial notice, Romano offered no explanation for his inaction in the several weeks following the November notice. On this record, the district court did not abuse its discretion in overruling Romano's motion for new trial as to lack of notice and the Craddock equitable grounds.
Sufficiency of the evidence
By contrast, we sustain Romano's other challenges to the judgment in part because the evidence does not support either the $176,150.68 damages award or the attorney's fee award. Unlike the situation with "no answer" default judgments, when a defendant answers but later fails to appear at trial, a default judgment cannot be taken based on the plaintiff's pleading allegations alone. E.g., Karl & Kelly Co., Inc. v. McLerran, 646 S.W.2d 174, 175 (Tex. 1983); Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). Once a defendant joins issue with a general denial, "A post-answer 'default' constitutes neither an abandonment of defendant's answer nor an implied confession of any issues thus joined by the defendant's answer." Stoner, 578 S.W.2d at 682. Consequently, "the plaintiff in such a case must offer evidence and prove his case as in a judgment upon a trial." Id.
Newton, as we have noted, did not introduce evidence beyond that relevant to Romano's notice of the trial setting. Instead, he followed a procedure resembling that invoked with "no answer" default judgments. (7) On appeal, Newton attempts to invoke the general appellate presumptions favoring the validity of trial court judgments, arguing that because Romano failed to request findings of fact and conclusions of law, we must imply all fact findings necessary to support the judgment. See, e.g., Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). However, where, as here, the appellate record includes the clerk's and reporter's record, even such implied findings of fact can be challenged for legal and factual sufficiency. Id. These presumptions, in any event, do not operate in the default judgment context. McKenna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965).
We have summarized the evidence at trial above. It consists solely of Newton introducing into evidence the two notice letters and accompanying certified mail documentation before requesting and obtaining judgment. (8) On this record, there is legally insufficient evidence to support judgment for Newton on his causes of action for breach of written or oral contract, fraud, and quantum meruit. There is likewise no evidence to support Newton's attorney's fee award. But because a verified suit on sworn account constitutes prima facie proof of liability for the amount owed and Romano did not properly deny the claim, Newton's pleadings were sufficient to support judgment as to that claim. See Tex. R. Civ. P. 185; see also Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App.--Dallas 2003, pet. denied); Seisdata, Inc. v. Compagnie Generale de Geophysique, 598 S.W.2d 690, 692 (Tex. App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). The amount of Newton's sworn account, however, was only $29,544.47, and cannot support the full amount of the judgment's $176,150.68 award "as the amount due in principal and interest on the principal amount to the date of judgment."
An appellate court may suggest a remittitur on its own motion when an appellant complains that there is insufficient evidence to support an award and the appellate court agrees, but there is sufficient evidence to support a lesser award. See Tex. R. App. P. 46.3; see also Springs Window Fashions Div. Inc. v. The Blind Maker, Inc., 184 S.W.3d 840, 889-90 (Tex. App.--Austin 2006, pet. granted, remand by agr.); Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 57 (Tex. App.--San Antonio 1995, no writ); David McDavid Pontiac, Inc. v. Nix, 681 S.W.2d 831, 838-39 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). The party prevailing in the trial court must be given the option of accepting the remittitur or having the case remanded for a new trial. See Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987). Accordingly, we suggest a remittitur of $146,606.21, the difference between the $176,150.68 awarded in the judgment and the $29,544.47 supported by the evidence.
CONCLUSION
We affirm the district court's judgment conditioned on the remittitur of $146,606.21. See Tex. R. App. P. 46.3. If Newton files a remittitur of $146,606.21 with the clerk of the district court within thirty days of this opinion and judgment and notifies this Court of such, we will reform the district court's judgment and, as reformed, affirm. See id. Otherwise, we will reverse the district court's judgment and, as Romano prays, remand the cause to the district court for a new trial on unliquidated damages and attorney's fees.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed Conditioned on Remittitur
Filed: September 6, 2007
1. Newton also attached and authenticated documentary proof of these amounts and his demand for payment.
2. The record reflects that Romano had trial-level counsel for a time but that counsel withdrew in September 2005.
3. From the record, it appears that the Honorable John L. Placke, rather than Judge Flenniken, presided over this hearing.
4. This letter, which is dated January 23, 2006, and addressed from Newton to Romano, is attached as an exhibit to Romano's motion for new trial. The letter states: "Dear Mr. Romano: The Court Coordinator stated the above case has been set for 9:00AM Friday January 27, 2006 at [the 335th District Court of Bastrop County, Texas]." The words "Received Jan 26" are handwritten on the letter.
5. Newton urges that Romano's verification is impermissibly conclusory because he states that he "finds" the facts to be true and correct, rather than that the facts "are" true and correct. As Romano also testified that he had personal knowledge of the facts stated in his affidavit, we reject Newton's distinction as merely semantic.
6. We disagree with Romano's assertions on appeal that "[t]he name signing for the card is clearly not Gary Romano."
7. Such confusion is understandable amid Texas's often unclear case law regarding default judgments. See generally Katin Corp. v. Loesch, No. 03-05-00412-CV, 2007 Tex. App. LEXIS 6352 (Tex. App.--Austin Aug. 10, 2007, no pet. h.) (mem. op.) (navigating some of these issues).
8. The clerk's record reflects that Romano's appellate counsel requested from the official court reporter, the record, if any, from the trial and hearing on motion for new trial. Only a brief record from the trial was prepared, and the parties concur that no evidence was presented at the new trial hearing. Nor does the court's docket sheet reflect any additional evidentiary hearings.
Gary Romano v. Gary Newton, No. 03-06-00255-CV (Tex.App.- Austin, Sep. 6, 2007)(Opinion by Justice Pemberton)(breach of contract, post-answer default judgment)(Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 335th District Court of Bastrop County
Disposition: Affirmed conditioned on remittiure
FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT
NO. 24,929, HONORABLE TERRY L. FLENNIKEN, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Gary Romano appeals from the district court's post-answer default judgment awarding Gary Newton $176,150.68 in actual damages, $6,216.21 in attorney's fees, interest and costs, and its order overruling his motion for new trial. For the reasons we explain below, we affirm the district court's judgment conditioned on Newton's remittitur of a portion of the judgment that is not supported by the record.
The parties' underlying dispute concerns a written contract, a copy of which is attached to and incorporated into Newton's petition, under which Romano agreed to purchase from Newton an inventory of deli products, a customer list, and distribution rights within a designated area. The contract stated that the sales price was "Twenty Seven Thousand Dollars ($27,000)" for the customer list and distribution rights, plus "Seller's actual cost for inventory conveyed," which Newton alleged was $2,544.47, for a total of $29,544.47. Newton alleged that Romano "took possession of the inventory, and the customer list pursuant to the sale [and] has exercised control over the distribution rights," including servicing of customers along the route and actually selling those rights to others," yet "has failed and refused to pay the purchase prices to [Newton]." Newton pled causes of action for breach of written contract, fraud, quantum merit, breach of oral contract, and sworn account. Regarding the sworn account claim, Newton verified that a total principal balance of $29,544.47, exclusive of interest, was due and payable by Romano to him, was within his personal knowledge, just and true, and that all just and lawful offsets, payments, and credits had been allowed. See Tex. R. Civ. P. 185. (1)
Romano, acting pro se, filed a general denial; he did not file a verified denial of Newton's sworn account claim nor assert affirmative defenses. (2) Newton, who was represented by counsel, obtained some discovery from Romano and later set the case for non-jury trial for the week of January 23, 2006. A pretrial conference was also set for January 12. Romano failed to appear at either the pretrial conference or trial. When the case was called for trial, Newton's counsel announced ready and introduced into evidence copies of two letters on his law office letterhead that were addressed from counsel to Romano: (1) a November 4, 2005, letter notifying Romano of the trial date and pretrial conference; and (2) a January 13, 2006, letter advising Romano that the pretrial conference had been held, conveying (per the judge's instructions) information regarding how the case would be called, and requesting a telephone number where Romano could be reached.
Each letter had been addressed to Romano at his address of record, the address where he had previously been served. Each reflected that it had been sent via certified mail, return receipt requested, citing a tracking number. With each letter, Newton also introduced the postmarked certified mail receipt, indicating prepayment of postage, and the signed "green card" acknowledging receipt by someone at Romano's address. The tracking number on each certified mail document matched the number stated on each corresponding letter. The green card with the November 2005 letter bore a postmark of November 7 and indicated receipt on the same date. The signature on the card is not clearly legible, and we cannot immediately discern the signer's identity from the record the district court had before it. However, the green card from the January letter, reflecting receipt at the same address on January 17, bears a signature of "Kathy Romano."
Immediately after introducing the letters and certified mail proof into evidence, Newton moved for a default judgment. The district court granted the motion. Newton's counsel advised that he would prepare a judgment for the court's approval, and the district court responded, "That concludes the hearing." Newton did not present other evidence. The district court subsequently signed a "Default Judgment" awarding Newton $176,150.68 "as the amount due in principal and interest on the principal amount to the date of judgment," plus court costs, $6,216.21 in attorney's fees, and post-judgment interest.
Romano filed a motion for a new trial, contending that he had inadequate notice of the trial setting, that he met the elements of Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), and that the evidence was insufficient to support the judgment. He attached his affidavit testimony, wherein he also verified the factual allegations within his new trial motion. Newton did not file a controverting affidavit. After a hearing at which no evidence was introduced, the district court overruled Romano's motion for new trial. (3)
Romano (now represented by counsel) brings three issues on appeal, contending that (1) the district court abused its discretion in overruling his new trial motion because the evidence established that he did not receive proper notice of the trial setting and, alternatively, met each factor of the Craddock test; (2) the pleadings and evidence were insufficient to support the judgment of $176,150.68 "as the amount due in principal and interest on the principal amount to the date of judgment"; and (3) the evidence was insufficient to support the attorney's fee award. We overrule Newton's first issue but conclude that the latter two are meritorious.
Motion for new trial
Trial courts have broad discretion in ruling on motions for new trial. Limestone Constr., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 542 (Tex. App.--Austin 2004, no pet.). We review a trial court's denial of a motion for new trial for an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987); Limestone Constr., Inc., 143 S.W.3d at 542. In matters committed to a trial court's discretion, the test is whether the trial court acted arbitrarily or without reference to guiding legal principles. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). However, a trial court lacks discretion to incorrectly interpret and apply the law, and abuses its discretion in doing so. In re DuPont De Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004).
A trial court abuses its discretion if it refuses to set aside a default judgment and grant a new trial where (1) the failure of the defendant to answer before judgment was not intentional or the result of conscious indifference, but due to a mistake or an accident; (2) the motion for a new trial sets up a meritorious defense; and (3) granting the motion for new trial will occasion no undue delay or otherwise injure the party taking the default judgment. Craddock, 133 S.W.2d at 126; see also Cliff, 724 S.W.2d at 779 (Craddock analysis applies to motions to set aside post-answer default judgments); Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (same).
Furthermore, a defendant who has appeared is entitled to notice of a trial setting as a matter of due process. See LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989). A party who has been denied due process through lack of notice of a trial setting satisfies the first Craddock factor (as one cannot be consciously indifferent to a trial of which they are unaware), and, in such instances, the supreme court has also dispensed with the second (meritorious defense) factor for constitutional reasons. Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); Smith v. Holmes, 53 S.W.3d 815, 817 (Tex. App.--Austin 2001, no pet.).
This Court has previously held that a defendant who can establish lack of notice of a trial setting also need not establish the third Craddock factor, lack of prejudice to the plaintiff, id. at 818, but the supreme court more recently left open that question. Mathis, 166 S.W.3d at 744. We need not consider that issue here because Newton does not dispute that Romano satisfied the lack of prejudice element and our disposition is ultimately controlled by other elements.
Here, it is undisputed that Romano did receive notice of the trial setting before trial began--he admits receiving Newton's second letter concerning the upcoming trial on January 19. This was the first trial setting, and rule of civil procedure 245 requires 45 days notice of an initial trial setting. Romano urges that in light of rule 245, proof that he did not receive 45 days notice of the first trial setting (even if he received some advance notice of it) would obviate his need to establish any of the Craddock factors. As Newton does not dispute that proposition and it is ultimately unnecessary for us to address it, we will assume the same.
As noted, Newton introduced evidence that he sent Romano a letter dated November 4, 2005, giving notice of the trial setting to Romano's address of record. Newton's evidence demonstrated compliance with rule of civil procedure 21a. This evidence that Newton sent the notice in compliance with rule 21a gives rise to a presumption that Romano duly received the notice. Cliff, 724 S.W.2d at 780. In the absence of evidence to the contrary, this presumption has the force of a rule of law. Id. The presumption that notice sent in compliance with rule 21a was received by the intended recipient is not evidence, however, and it "vanishes" when opposing evidence is introduced that the letter was not received. Id.
But Newton also introduced evidence that the November notice letter was actually received by someone at Romano's address--the returned, signed, certified mail "green card" dated November 7. See Smith, 53 S.W.3d at 818 (distinguishing between "the presumption that, because notice was mailed, [the opposing party] received it" arising from sending a notice in compliance with rule 21a versus inferences arising from proof that someone at the address actually received it); cf. Limestone Constr., Inc., 143 S.W.3d at 545 (evidence that notice had been returned "unclaimed"). November 7 was over 80 days prior to the trial setting. Exactly who at that address received the letter is unclear from the record before the district court, but that address corresponded to Romano's address of record, where Romano had been successfully served. Moreover, Newton had later mailed his January notice letter to this address, where "Kathy Romano" acknowledged receipt on January 17. Romano admits receiving that notice letter two days later, on January 19.
Romano contends that his affidavit and verified new trial motion establish that he never received Newton's November notice letter and that the first notice he received was Newton's second letter following the pretrial conference. In the relevant portions of his affidavit, Romano testified as follows:
I received notice of a trial setting from counsel for Plaintiff on January 19th, 2006 for a setting during the week of January 23rd, 2006. I have been Pro Se in this litigation for several months and did not know the meaning of the notice, nor the result or consequence of not appearing before the Court during the week of January 23, 2006. At no time was I called to be at the courtroom on January 27th, 2006, the time at which the Court heard Plaintiff's case. Further, Plaintiff sent a personal letter to me on January 23rd advising of the January 27th trial date.[ (4)] . . . .
On January 23rd, 2006 I sent a correspondence to the Court advising that I had previously made travel plans to be out of town during the time in which the case was set. My correspondence, a true and correct copy of which is attached to the Motion for New Trial as Exhibit "D", provided my current phone number and address, but I was not contacted by the Court or Court personnel that I was to appear on the 27th of January, 2006 for a hearing on the merits. I did not have 45 days notice of the trial setting. I though[t] my letter to the Court of January 23rd, 2006 relieved me of any requirement to appear during the week of the 23rd of January.
In the first paragraph, Romano confirms that he received the January notice letter from Newton on January 19. In the second paragraph, Romano explains his response to that letter, addressing Craddock's conscious indifference factor. Nowhere does he squarely address whether he did or did not receive prior notice of the trial setting except in the statement, found in the second paragraph, "I did not have 45 days notice of the trial setting." However, in his new trial motion, Romano does elaborate, "Defendant did not receive notice of the trial setting until January 19th when he received the letter from Plaintiff's counsel attached as Ex. C. [the January notice letter]." Romano verified the contents of his motion, testifying in his affidavit that "I have reviewed Defendant's Motion for New Trial and find the factual allegations therein true and correct." (5)
Romano urges that his assertions that he did not receive notice of the trial setting until January 19 are sufficient to rebut the rule 21a presumption that he received Newton's November notice letter. He adds that because Newton did not controvert this evidence with his own affidavit in opposition to Romano's new trial motion, the district court was required to take his assertions as true and grant him a new trial. See Director, State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994) (if plaintiff does not controvert the defendant's affidavit in support of new trial motion, trial court must accept as true the affidavit's factual assertions regarding the Craddock elements).
In determining a motion for new trial under the Craddock standard, the trial court may look to all of the evidence in the record. See Walker v. Gutierrez, 111 S.W.3d 56, 64 (Tex. 2003) (in determining whether movant's factual assertions are controverted, court may consider all of the evidence in the record); Evans, 889 S.W.2d at 269 (same); Katin Corp. v. Loesch, No. 03-05-00412-CV, 2007 Tex. App. LEXIS 6352, at *12 (Tex. App.--Austin Aug. 10, 2007, no pet. h.) (mem. op.) (same). We may thus consider the evidence Newton introduced at trial regarding actual receipt of the notice. See Smith, 53 S.W.3d at 818.
In Smith, this Court recognized that mere proof that someone at a party's address of record received a notice intended for that party does not alone support the inference that the party actually received it. Id. at 818 (inmate's denial that he received notice "overcomes" any inferences from green card signed by someone at prison other than inmate; "[a]fter [inmate] denied that he received notice, appellees were required to do something more than show that someone at the prison's address had received the notice"). This case is distinguishable from Smith for two related reasons. First, while the signature on the green card accompanying the November notice letter cannot clearly be determined to have been Gary Romano's, it does not exclude that possibility, either. (6) Second, as Smith acknowledges, other surrounding facts may cause receipt by another person at the address to be probative of the party's actual receipt. Id. (citing Elite Towing, Inc. v. LSI Fin. Group, 985 S.W.2d 635, 642-43 (Tex. App.--Austin 1999, no pet.) (holding that notice to agent was notice to principal)).
We conclude that Newton's evidence was sufficient to enable the district court to infer, in light of surrounding facts, that Romano had personally signed for or otherwise received the November notice letter before the 45th day prior to trial. The address to which the letter was sent was the same one at which he had earlier been served, and the same one at which "Kathy Romano" later acknowledged receipt of the January notice letter that Romano admits he personally received. This address, the pleadings indicate, was Romano's home address. Romano does not dispute that someone at this address acknowledged receipt of the November letter. The signature on the green card is as consistent with it being Romano's signature as that of any other person there.
Our conclusion is further buttressed by Romano's own affidavit and new trial motion. In the face of evidence that someone at his address actually received the November notice, Romano is conspicuously silent regarding an explanation, offering only the bald assertions that "I did not have 45 days notice of the trial setting" and, "Defendant did not receive notice of the trial setting until January 19th when he received [the January notice letter]." In such a context, these statements are conclusory and, by omitting any mention of the signed green card and its implications, could further support the inference that Romano actually received notice. See Katin Corp., 2007 Tex. App. LEXIS 6352, at *20-21 (explaining that while trial courts must take as true uncontroverted affidavit testimony regarding factual allegations concerning the Craddock factors, they may nonetheless draw "conflicting inferences" from those facts); see also Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82-83 (Tex. 1992) (conclusory allegations are insufficient to establish Craddock factors).
We conclude that the evidence Newton introduced at trial suffices to controvert Romano's factual assertions that he did not receive the November notice letter. Faced with conflicting evidence, the district court would have been within its discretion to conclude that Romano had received Newton's November trial notice letter on or about November 7, and well in advance of the 45th day before trial. We likewise conclude, in light of this evidence, that the district court would not have abused its discretion in determining that Romano had failed to establish lack of conscious indifference. Although Romano presented evidence that he wrote a letter to the district court responding to the January trial notice, Romano offered no explanation for his inaction in the several weeks following the November notice. On this record, the district court did not abuse its discretion in overruling Romano's motion for new trial as to lack of notice and the Craddock equitable grounds.
Sufficiency of the evidence
By contrast, we sustain Romano's other challenges to the judgment in part because the evidence does not support either the $176,150.68 damages award or the attorney's fee award. Unlike the situation with "no answer" default judgments, when a defendant answers but later fails to appear at trial, a default judgment cannot be taken based on the plaintiff's pleading allegations alone. E.g., Karl & Kelly Co., Inc. v. McLerran, 646 S.W.2d 174, 175 (Tex. 1983); Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). Once a defendant joins issue with a general denial, "A post-answer 'default' constitutes neither an abandonment of defendant's answer nor an implied confession of any issues thus joined by the defendant's answer." Stoner, 578 S.W.2d at 682. Consequently, "the plaintiff in such a case must offer evidence and prove his case as in a judgment upon a trial." Id.
Newton, as we have noted, did not introduce evidence beyond that relevant to Romano's notice of the trial setting. Instead, he followed a procedure resembling that invoked with "no answer" default judgments. (7) On appeal, Newton attempts to invoke the general appellate presumptions favoring the validity of trial court judgments, arguing that because Romano failed to request findings of fact and conclusions of law, we must imply all fact findings necessary to support the judgment. See, e.g., Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). However, where, as here, the appellate record includes the clerk's and reporter's record, even such implied findings of fact can be challenged for legal and factual sufficiency. Id. These presumptions, in any event, do not operate in the default judgment context. McKenna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965).
We have summarized the evidence at trial above. It consists solely of Newton introducing into evidence the two notice letters and accompanying certified mail documentation before requesting and obtaining judgment. (8) On this record, there is legally insufficient evidence to support judgment for Newton on his causes of action for breach of written or oral contract, fraud, and quantum meruit. There is likewise no evidence to support Newton's attorney's fee award. But because a verified suit on sworn account constitutes prima facie proof of liability for the amount owed and Romano did not properly deny the claim, Newton's pleadings were sufficient to support judgment as to that claim. See Tex. R. Civ. P. 185; see also Nguyen v. Short, How, Frels & Heitz, P.C., 108 S.W.3d 558, 562 (Tex. App.--Dallas 2003, pet. denied); Seisdata, Inc. v. Compagnie Generale de Geophysique, 598 S.W.2d 690, 692 (Tex. App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.). The amount of Newton's sworn account, however, was only $29,544.47, and cannot support the full amount of the judgment's $176,150.68 award "as the amount due in principal and interest on the principal amount to the date of judgment."
An appellate court may suggest a remittitur on its own motion when an appellant complains that there is insufficient evidence to support an award and the appellate court agrees, but there is sufficient evidence to support a lesser award. See Tex. R. App. P. 46.3; see also Springs Window Fashions Div. Inc. v. The Blind Maker, Inc., 184 S.W.3d 840, 889-90 (Tex. App.--Austin 2006, pet. granted, remand by agr.); Comstock Silversmiths, Inc. v. Carey, 894 S.W.2d 56, 57 (Tex. App.--San Antonio 1995, no writ); David McDavid Pontiac, Inc. v. Nix, 681 S.W.2d 831, 838-39 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). The party prevailing in the trial court must be given the option of accepting the remittitur or having the case remanded for a new trial. See Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987). Accordingly, we suggest a remittitur of $146,606.21, the difference between the $176,150.68 awarded in the judgment and the $29,544.47 supported by the evidence.
CONCLUSION
We affirm the district court's judgment conditioned on the remittitur of $146,606.21. See Tex. R. App. P. 46.3. If Newton files a remittitur of $146,606.21 with the clerk of the district court within thirty days of this opinion and judgment and notifies this Court of such, we will reform the district court's judgment and, as reformed, affirm. See id. Otherwise, we will reverse the district court's judgment and, as Romano prays, remand the cause to the district court for a new trial on unliquidated damages and attorney's fees.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed Conditioned on Remittitur
Filed: September 6, 2007
1. Newton also attached and authenticated documentary proof of these amounts and his demand for payment.
2. The record reflects that Romano had trial-level counsel for a time but that counsel withdrew in September 2005.
3. From the record, it appears that the Honorable John L. Placke, rather than Judge Flenniken, presided over this hearing.
4. This letter, which is dated January 23, 2006, and addressed from Newton to Romano, is attached as an exhibit to Romano's motion for new trial. The letter states: "Dear Mr. Romano: The Court Coordinator stated the above case has been set for 9:00AM Friday January 27, 2006 at [the 335th District Court of Bastrop County, Texas]." The words "Received Jan 26" are handwritten on the letter.
5. Newton urges that Romano's verification is impermissibly conclusory because he states that he "finds" the facts to be true and correct, rather than that the facts "are" true and correct. As Romano also testified that he had personal knowledge of the facts stated in his affidavit, we reject Newton's distinction as merely semantic.
6. We disagree with Romano's assertions on appeal that "[t]he name signing for the card is clearly not Gary Romano."
7. Such confusion is understandable amid Texas's often unclear case law regarding default judgments. See generally Katin Corp. v. Loesch, No. 03-05-00412-CV, 2007 Tex. App. LEXIS 6352 (Tex. App.--Austin Aug. 10, 2007, no pet. h.) (mem. op.) (navigating some of these issues).
8. The clerk's record reflects that Romano's appellate counsel requested from the official court reporter, the record, if any, from the trial and hearing on motion for new trial. Only a brief record from the trial was prepared, and the parties concur that no evidence was presented at the new trial hearing. Nor does the court's docket sheet reflect any additional evidentiary hearings.
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