Christopher Williams v. State of Texas

NO. 07-00-0404-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A MARCH 8, 2002 ______________________________ CHRISTOPHER WILLIAMS, APPELLANT V. THE STATE OF TEXAS, APPELLEE _________________________________ FROM THE 242ND DISTRICT COURT OF HALE COUNTY; NO. B 13457-9906; HONORABLE ED SELF, JUDGE _______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Following his plea of not guilty, appellant Christopher Williams was convicted by a jury of delivery of a controlled substance and punishment was assessed at two years confinement in a state jail facility and a $1,000 fine. Presenting one point of error, appellant contends the trial court erred in denying his motion for mistrial after the jury was sworn and a member of the jury informed the court that he had withheld material information. Based upon the rationale expressed herein, we affirm. Appellant does not challenge the sufficiency of the evidence. Thus, only the facts necessary to our disposition of the appeal will be considered. After the trial judge recessed the jury for lunch, a member of the jury, Paulo Posada, approached the judge and informed him that when a witness for the State, Mr. Salazar, entered the courtroom to be sworn, he recognized him by sight, but had not recognized his name when it was mentioned with other witnesses during voir dire. Although Posada claimed to have known Salazar for about 20 years, he nevertheless claimed he could be fair and impartial. When the jury and counsel returned from lunch, the trial judge reported the events to counsel and out of the jury's presence, made a record of Posada's conversation with him. Counsel for the State declined to examine Posada and following examination by appellant's counsel, appellant moved for a mistrial which the trial court denied. Appellant's sole contention on appeal is that he was deprived of an opportunity to challenge the juror for cause or to exercise a peremptory challenge to the juror and that the trial court erred in denying his motion for mistrial. We disagree. The State contends that the record does not demonstrate that the juror withheld any information during voir dire. The record reflects that Posada did contact the trial judge during the noon recess and inform him that he recognized Salazar when he was sworn as a witness. The reporter's record also shows that the trial judge allowed appellant's counsel to examine Posada out of the presence of the remaining members of the jury and that appellant's motion for mistrial was overruled. However, the reporter's record does not include a transcription of voir dire examination. In Bauder v. State, 921 S.W.2d 696, 698 (Tex.Cr.App. 1996), while discussing mistrials and double jeopardy issues, the Court stated: At the outset, we emphasize that mistrials are an extreme remedy for prejudicial events occurring during the trial process. Later, in Wood v. State, 18 S.W.3d 642, 648 (Tex.Cr.App. 2000), in discussing mistrials, the Court noted: A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. [Citations omitted]. The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. . . . In Evans v. State, 622 S.W.2d 866, 871 (Tex.Cr.App. 1981), the defendant asserted that two jurors "falsely swore" that they did not know three of the State's witnesses. The record did not contain a transcription of the voir dire examination. The Court concluded that absent a showing that the defendant questioned prospective jurors during voir dire regarding names of potential witnesses and that they withheld information, the contention was without merit. Id. Although we must consider all matters that were before the trial court in the underlying case to determine whether the trial court abused its discretion, matters complained of that are not in the reporter's record or in a bill of exception are not preserved for appellate review. Tex. R. App. P. 33.1(a) and 33.2; Vaughn v. State, 634 S.W.2d 310, 312 (Tex.Cr.App. 1982). Given the record before us, we are unable to determine that the trial court abused its discretion in overruling appellant's motion for mistrial. Appellant's sole point of error is overruled. Accordingly, the judgment of the trial court is affirmed. Don H. Reavis Justice Do not publish. SPAN> So, because Love did not file a copy of the Colorado judgment itself, the terms of §35.001 et seq. of the Civil Practice and Remedies Code never enured to her benefit. In other words, tendering the "transcript" was not tantamount to the entry of a final judgment thereby limiting to thirty days the time period within which Moreland had to attack it. See Tex. Civ. Prac. & Rem. Code Ann. §35.003(c) (Vernon 2008) (stating that a "filed foreign judgment has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, staying, enforcing, or satisfying a judgment as a judgment of the court in which it is filed"); Tex. R. Civ. P. 329b (a) & (g) (stating that a motion for new trial or to modify a final judgment must be filed within thirty days of the date the judgment is signed). And, since a trial court's plenary jurisdiction over a proceeding does not start winding down until a final judgment is entered, In re Salas, 228 S.W.3d 774, 777 (Tex. App.-El Paso 2007, no pet.) (stating that a trial court has plenary jurisdiction over its orders until thirty days after entry of a final judgment if no motion for new trial is filed), the trial court below never lost its authority to act. Simply put, it retained its jurisdiction to adjudicate the validity of Love's purported notice of filing a foreign judgment. (6) Issue Three - Trial In her third issue, Love contends that the trial court erred in adjudicating the merits of her attempt to domesticate the judgment without an evidentiary trial. We sustain the point. In adjudicating the matter, the trial court dismissed it "with prejudice." Appending the latter two words to the dismissal resulted in an adjudication on the merits. Ritchey v. Vasquez, 986 S.W.3d 611, 612 (Tex. 1999) (stating that a dismissal with prejudice is an adjudication of the merits). Moreover, that the trial court so intended to adjudicate the merits is manifest by its factual findings that the "[f]oreign judgment was rendered more than ten . . . years prior to the commencement of the action in the State of Texas" and that Moreland "had a perfect defense to the foreign judgment that he was prevented from asserting due to no fault of" his own. Yet, at the hearing upon Moreland's request to vacate, no evidence was offered, not even the affidavit appended to the motion to vacate. Legal counsel simply provided the trial court with argument, which argument cannot be considered evidence. Tex. Dept. of Public Safety v. Mendoza, 952 S.W.2d 560, 564 (Tex. App.-San Antonio 1997, no writ) (holding that argument of counsel is not evidence). That like arguments were contained in the pleadings or motions is of no help either since allegations in pleadings generally are not evidence. Blackwell v. Chapman, 492 S.W.2d 657, 658 (Tex. Civ. App.-El Paso 1973, no writ). And, to the extent that there may have been an affidavit attached to the motion, no one indicated that the motion should be considered one for summary judgment or that summary judgment procedures were utilized in disposing of the matter. Nor does the statement of facts memorializing the hearing reveal that the trial court informed the litigants that it intended the proceeding to be a final evidentiary hearing or trial. We further deduce from the record that the litigants and trial court were concerned not so much with whether the trial court could finally adjudicate the merits of the claim via the hearing but rather with whether the motion to vacate was in actuality a bill of review. This is of import because granting a bill of review does not necessarily result in final adjudication of the underlying rights involved. See e.g., Keifer v. Touris, 197 S.W.3d 300, 302 (Tex. 2006). Also of concern is Moreland's failure to address, in his appellee's brief, the issue before us or explain how the trial court could lawfully adjudicate the merits of Love's action through means other than a trial or even a summary judgment proceeding. On the other hand, Moreland expressly requested, via his motion to vacate, that Love's efforts be dismissed with prejudice. So too did he describe for the trial court why he thought such a dismissal was warranted, and the trial court did ponder the effect that limitations would have on the outcome. Moreover, Love neither questioned the form of the motion nor expressly attacked on appeal the aforementioned factual findings rendered by the trial court and touching upon the defense of limitations. Similarly missing from her appellant's brief is any explanation as to how reversal and remand would result in a different outcome or how she was harmed by the procedure utilized. Nonetheless, it seems contrary to our accepted notions of justice and jurisprudence to permit the final adjudication of a claim outside the formalities of a trial or summary proceeding authorized by the rules of procedure. This is especially so here given the confusion about the nature and extent of and issues involved in the hearing held on the motion to vacate. That no one actually tendered evidence or stipulated to the relevant facts at the hearing is also troublesome since factual findings were rendered. Moreover, if limitations is a "perfect defense," as stated by the trial court, then it would seem that the matter could be quickly disposed of through summary judgment. And, because of these particular circumstances, we conclude that the better course of action would be to honor justice and our system of law and remand the proceeding so that all have opportunity to knowingly pursue a final disposition in accordance with law and procedure. This way, the confusion and daze can be brushed away before we finally drop. Accordingly, we reverse that portion of the "Order Vacating Judgment" that dismisses the cause, affirm the remainder, and remand for further proceedings. Brian Quinn Chief Justice 1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2008). 2. Lizzy. 3. The matters discussed under the topic "Background" are garnered from the affidavit of Richard Moreland, allegations within the pleadings and motions, as well as the argument of counsel uttered at two hearings. And, we all know that an attorney's arguments do not constitute evidence, Tex. Dept. of Public Safety v. Mendoza, 952 S.W.2d 560, 564 (Tex. App. -San Antonio 1997, no writ), especially when the nature of the hearings cannot be readily categorized. 4. Apparently, Thompson settled. 5. The "transcript," like an abstract of judgment, merely contained a description of some items that most likely would be included in a judgment, such as the name of the parties and amount owed. Yet, it omitted many elemental items of a judgment such as the name or signature of the judge who executed the decree and verbiage manifesting the adjudication of the rights involved. Thus, we cannot consider the "transcript" to be the judgment as contemplated by §35.003(a) of the Texas Civil Practice and Remedies Code. 6. In resolving the first issue as we do, we need not determine the second for it does not matter whether the motion to vacate constituted a bill of review.