Annette Senechalle v. Enoch Van Tate

Senechalle v. Tate REVERSED & REMANDED 11 OCTOBER 1990 NO. 10-90-072-CV Trial Court # 41,764D IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * * ANNETTE SENECHALLE, Appellant v. ENOCH VAN TATE, Appellee * * * * * * * * * * * * * From 40th Judicial District Court Ellis County, Texas * * * * * * * * * * * * * O P I N I O N * * * * * * * This is an appeal by Annette Senechalle, appellant and petitioner below, from a judgment in a paternity suit decreeing that Enoch Van Tate, respondent below, is not the father of the child Jessica Jade Tate. Petitioner (appellant) Annette Senechalle, mother of the child Jessica, born July 16, 1986, filed this suit alleging that the respondent Enoch Van Tate was the biological father of the child Jessica, and seeking a judgment establishing paternity of the alleged father, child support, and attorney's fees. Respondent answered denying paternity of the child, asserted he had never had any sexual connection with petitioner, agreed to scientific testing, and sought judgment to such effect. Trial was before the court which after hearing rendered judgment decreeing respondent not to be the father of the child Jessica. The trial court filed Findings of Fact and Conclusions of Law summarized as follows: Findings of Fact (1)Petitioner is the natural mother of the child subject of this suit. (2)Petitioner testified she had sexual intercourse with respondent one time approximately 9 months before the child's birth and had not had sexual intercourse with any other man during the period of possibility and respondent was the father of the child. (3)Respondent testified that he had never had sexual intercourse with petitioner and that he was sterile as a result of injuries received in an accident in 1970. (4)Dr. Barwick testified through deposition that as a result of blood tests performed by Roche Biomedical Laboratories that in his opinion the alleged father has a probability of paternity of 99.91%. (5)Dr. Moore testified he was a specialist in urology and that he had examined and tested and reviewed the medical records of the alleged father and that in his opinion the respondent was sterile as a result of the 1970 accident and had been for many years. In his opinion, he is 100% certain that the alleged father was incapable of fathering the subject child. (6)The evidence offered by both petitioner and respondent was equally unimpeached, unreconciled and diametric. (7)The petitioner failed to prove the allegations by a preponderance of the evidence. Conclusions of Law Respondent is determined not to be father of the child. Petitioner appeals contending, among other matters, that (1) the judgment of the trial court is against the great weight and preponderance of the evidence as to be manifestly unjust or clearly wrong; and (2) the trial court erred in finding the evidence offered by petitioner and respondent was equally unimpeached, unreconciled, and diametric. Petitioner is a woman 37 years old who lives in the country and owns some horses. Respondent is 45 years old and does horseshoeing. Petitioner met respondent in August 1983 when he came to shoe her horses. She testified he first kissed her on March 2, 1984, and that they first had intercourse on April 2, 1984; that their affair continued very strong until November 1984; that she didn't see him again until February 1985 at which time their affair was rekindled; that they had intercourse on November 1, 1985; that he was the only man with whom she had intercourse since 1982. She testified she went to the doctor on December 16, 1985, and found out she was pregnant; that she called respondent on the telephone that night and told him and he was not too happy; that he came to her place and shoed horses in April; and that the child was born July 16, 1986. She called him that the child was born and he came out about 2 weeks later and denied to her that the baby was his. Blood tests ordered by the trial court indicated a 99.91% probability of paternity by respondent. Respondent testified he had never had intercourse with petitioner but acknowledged drinking coffee with her while at her house to shoe her horses, and acknowledged that she thought there was more going on in the relationship than his just shoeing her horses. He testified he had been married to his wife 27 years and during this period never had an affair. Dr. Moore testified that he had examined respondent and his medical records in July 1987; that the records reflected respondent had suffered an injury to his pelvic region in 1970 when a horse fell on him and that in his opinion he was rendered sterile. He testified further that examination of respondent's semen on 2 occasions in July 1987 revealed no sperm, and that in his opinion respondent was sterile. Respondent however testified that a child was conceived by him in 1970, 2 months after the accident which, according to Dr. Moore, caused sterility. As noted, the trial court found that respondent was not the biological father of the child. Summarizing: Petitioner testified respondent was the only person with whom she had sexual intercourse since 1982, and that he was the father of her child. Respondent testified he had never had sexual intercourse with petitioner. The scientific blood testing done on petitioner, respondent and the child reflected a 99.91% probability that respondent was the father of the child. Respondent testified he was sterile and had been since an accident in 1970. Dr. Moore testified he found no sperm in respondent's semen in 1987; and he believed respondent was rendered sterile by his 1970 accident. But respondent fathered a child after his 1970 accident. We think the trial court's judgment against the great weight and preponderance of the evidence so as to be manifestly unjust; and further find the trial court erred in finding the "evidence offered by petitioner and respondent was equally unimpeached, unreconciled, and diametric". Contentions referred to as 1 and 2, supra, are sustained. The judgment of the trial court is reversed and remanded for another trial. REVERSED & REMANDED FRANK G. McDONALD DO NOT PUBLISHChief Justice [Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice McDonald (Retired)] 12pt">4.The trial court has no independent recollection of how the jury waiver was handled in the case. 5.Appellant testified that he did not sign a jury waiver form. 6.Appellant testified he was orally admonished as to his right to a jury trial, that he was aware of his right to a jury trial, that he did not object to being tried without a jury, and that he did not indicate that he wanted a jury trial. 7.The record does not reflect all of the necessary steps for a valid waiver of a jury trial as required by Article 1.13 of the Texas Code of Criminal Procedure. Appellant argues that his conviction should be reversed because the record does not contain a written jury waiver form as required by Article 1.13 of the Texas Code of Criminal Procedure. The State contends Appellant is precluded, under the Helms rule, from raising the issue because his non-negotiated plea of nolo contendere was voluntary and the alleged error is a non-jurisdictional error that occurred prior to Appellant entering his plea. In Helms v. State, 484 S.W.2d 925, 927 (Tex. Crim. App. 1972), the court held that "where a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects, including claimed deprivation of federal due process, are waived." The same effect are: Shallhorn v. State, 732 S.W.2d 636, 637 (Tex. Crim. App. 1987); Morin v. State, 632 S.W.2d 265, 268 (Tex. Crim. App. 1983); Dunmar v. State, 853 S.W.2d 184 (Tex. App.—Corpus Christi 1993); and Soto v. State, 837 S.W.2d 401, 403 (Tex. App.—Dallas 1992). There was no plea bargain in this case. Appellant orally waived a jury prior to entry of his non-negotiated plea of nolo contendere. Under the foregoing authorities, Appellant waived his right to a signed jury waiver, which is a non-jurisdictional defect. Appellant's point is overruled and the judgment is affirmed. FRANK G. McDONALD Chief Justice (Retired) Before Chief Justice Thomas, Justice Vance, and Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed July 26, 1995 Do not publish