Bennie S. Hanzlicek v. State

Hanzlicek AFFIRMED MAY 17, 1990 NO. 10-89-217-CR Trial Court # 890513 CR1 IN THE COURT OF APPEALS FOR THE TENTH DISTRICT OF TEXAS AT WACO * * * * * * * * * * * * * BENNIE S. HANZLICEK,    Appellant v. THE STATE OF TEXAS,    Appellee * * * * * * * * * * * * * From County Court at Law McLennan County, Texas * * * * * * * * * * * * * O P I N I O N * * * * * * * In a trial before the court, Bennie S. Hanzlicek was found guilty of driving while intoxicated and assessed punishment at sixty days in the county jail, probated for six months. The court also assessed Hanzlicek a fine of $1,000, probated to $100. Hanzlicek appeals, complaining in a single point of error that there was insufficient evidence to support his conviction. We will overrule the point of error and affirm the judgment. Waco police officer Lionel McGee testified that he was on patrol at 4:30 A.M. on January 30, 1989, when he discovered Hanzlicek's automobile partially up on the curb of the street. Although the car was motionless, its motor was running and its lights were shining. Upon approaching the car, McGee found Hanzlicek asleep, slumped behind the steering wheel. McGee testified that the car's transmission was in "drive," and that the car was not moving only because Hanzlicek's foot was positioned on the brake. After waking him up, McGee asked Hanzlicek to step out of the car. Displaying conspicuous signs of intoxication, Hanzlicek told the officer that he was trying to go home and was waiting for a friend to "come back and pick him up." No one else was seen in or near the car, and McGee testified that he did not know how long the car had been there before he arrived. McGee also stated that he did not know how long Hanzlicek had been intoxicated or how long Hanzlicek had been in the car. At trial, the State had the burden to prove that Hanzlicek (1) was intoxicated, (2) while driving or operating a motor vehicle (3) in a public place. See TEX. REV. CIV. STAT. ANN. art. 6701l-1(b) (Vernon Supp. 1990). Hanzlicek asserts that although there was direct evidence that he was intoxicated, there was insufficient evidence showing that he drove or operated the car while he was intoxicated. The standard of review on a sufficiency-of-the-evidence point is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). Hanzlicek relies on Reddie v. State, 736 S.W.2d 923 (Tex. App.--San Antonio 1987, pet. ref'd) and Ballard v. State, 757 S.W.2d 389 (Tex. App.--Houston [1st Dist.] 1988, pet. ref'd), as authority for reversal of his conviction. However, although Reddie and Ballard are similar to this case factually, a critical difference between them and the instant case is that there was evidence here that the car was in "drive." Because there is no statutory definition of the word "operate," the plain meaning of the word controls its construction. Reddie, 736 S.W.2d at 926. The plain meaning of "operate" is "to perform a function, or operation, or produce an effect," or, in other words, to exert effort--the "doing of something, by the operator." Id. Even though Hanzlicek was sleeping at the time McGee found him, he was exerting effort, whether he realized it or not, by "braking" the vehicle. This effort, along with the fact that the car's motor was running, its lights shining, and its transmission in gear, is sufficient to show that Hanzlicek was operating the car. See, Boyle v. State, 778 S.W.2d 113 (Tex. App.--Houston [14th Dist.] 1989, no pet.).      Additionally, even if we were to hold that Hanzlicek was not operating the car at the time McGee found him, the circumstantial evidence present in this case proves that at some point Hanzlicek must have driven the car while he was intoxicated. In reviewing a circumstantial evidence case, the evidence is not sufficient unless every reasonable hypothesis is excluded except the guilt of the defendant. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). Hanzlicek asserts that because there was no evidence of how long the car had been there, how long he had been intoxicated, or how long he had been in the car, reasonable hypotheses are that someone else drove the car to its location, or he was sober when he drove the car to its location, but subsequently he drank and became intoxicated. These are not reasonable hypotheses. There was no one else present at or near the scene, and even if someone else drove the car to its location, he most likely would have turned the engine and the lights off, and at the very least, placed the car in "park" before exiting the car. If Hanzlicek had been sober when he stopped the car, he too, almost certainly would have placed the car in "park" before he imbibed. There was no evidence of any alcoholic containers in or around the car, which points to Hanzlicek's drinking at some other time.      Therefore, there was sufficient evidence to allow a rational trier of fact to find Hanzlicek guilty of driving while intoxicated. The point of error is overruled and the judgment is affirmed.                            TERRY R. MEANS DO NOT PUBLISHJustice  ng the suit. Standard of Review Imposing Rule 13 sanctions is within the trial court’s sound discretion. Monroe v. Grider, 884 S.W.2d 811, 816 (Tex. App.—Dallas 1994, writ denied). Accordingly, we review a trial court’s order for sanctions under an abuse of discretion standard. Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). The determination of whether a trial court abused its discretion is a question of law. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex. 1983), overruled in part on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003). A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to guiding rules or principles, or when it misapplies the law to the established facts of the case.  Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). “A trial court has no discretion to determine what the law is or in applying the law to the facts and, consequently, the trial court’s failure to analyze or apply the law correctly is an abuse of discretion.” In re American Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001).         A trial court also abuses its discretion in imposing sanctions if it bases the order on a clearly erroneous assessment of the evidence. Monroe, 884 S.W.2d at 816. The Pleadings and Evidence The Brozynskis’ original petition alleged the following facts: 5. Beginning on or about October 1, 2003, Defendants erected a large wooden play set, which site is directly south of and immediately adjacent to Plaintiffs’ property. Defendants had not consulted with Plaintiffs nor had they asked for permission to erect such construction knowing fully well that the play set had been erected in violation of the residential deed and to intentionally harass and disrupt Plaintiffs’ life. Specifically, in the course of using this equipment extensively, children who are playing on the play set are constantly screaming and trespassing by looking into the Plaintiffs’ entire backyard, and especially the swimming pool area, resulting in constant disruption of life during afternoon and evening hours when Plaintiffs return from work, as well as during the weekend. In an effort to resolve the matter amicably and avoid court proceedings on or about August 17, 2004, Plaintiff, Kathy Brozynski, approached Sheila Kerney and requested the play set be removed permanently or transferred further away from the adjacent property line. Defendant Sheila Kerney used obscene and uncensored language. The particulars of the assault are as follows: Defendant Sheila Kerney stepped very close to Kathy Brozynski and threatened her in front of other neighbors by saying “Now, I’ll show you where shits like you belong.” Kathy Brozynski felt such apprehension that she immediately retreated to her house in fear of imminent harm. Prior to this event, Defendant Jared Kerney used obscene language towards Plaintiffs’ minor children, Max and Martina, causing the children great distress and nervousness. Defendant Sheila Kerney continues to use obscene language whenever she hears the Brozynski family out in their backyard.  6. Furthermore, immediately adjacent to Plaintiffs’ property on Defendants’ driveway, the Defendants entertain the entire neighborhood, consuming alcohol, allowing young children to play on the driveway, using obscene language and partying until late night hours. Needless to say, this obnoxious and harassing behavior causes disruption in Plaintiffs’ life. Furthermore, the lights which light up the Defendants’ driveway are illuminated from early afternoon hours until the next morning and are intentionally and maliciously focused upon Plaintiffs’ master bedroom windows causing constant bright glare and preventing Plaintiff from getting a decent night’s sleep. The viciousness of Defendants’ conduct prevents Plaintiffs from the use and enjoyment of their property.  The Brozynskis’ original petition, which was filed on September 29, 2004, requested a temporary injunction that the Kerneys be enjoined from engaging in the conduct and activities at issue and a permanent injunction ordering either the removal of the play set or its movement to at least fifteen feet from the adjacent property line. On November 2, 2004, Mr. Walker, the Brozynskis’ attorney, wrote the court to cancel the hearing on the Brozynskis’ request for a temporary injunction, stating: “It is my understanding that the Defendants have removed the play set and, therefore, there is no longer any need for a hearing on the Temporary Injunction since the play set removal issue is moot.” Thereafter, the Kerneys filed a no-evidence motion for summary judgment (which the trial court never ruled on). In response to that motion, the Brozynskis filed their own affidavits. Kathy’s affidavit states in pertinent part: 6. Furthermore, Defendants illuminated their driveway with very bright light bulbs that were directed at my bedroom windows. On one occasion, I approached Jared Kerney and asked him to re-direct the light. Not only was the light not re-directed, but the existing bulbs were replaced with higher wattage bulbs that shined throughout the night and sometimes during the day. Prior to their moving, Defendants programmed their light system in such a way that the lights in the driveway stayed on all day, every day. . . .  7. Sometime in 2003, when I came from work, I noticed a wooden construction about 12 feet high protruding over my fence. It had been erected immediately adjacent to our property fence, although Defendants had considerable space to otherwise place this wooden construction. This was a direct breach of the Declaration of Covenants, Conditions, and Restriction for Beckley Heights, Phase 3, subdivision. Defendants never notified me nor asked for permission to assemble the play set in such close proximity to the fence.  8. I observed Defendants’ children as well as other children playing on this wooden construction since early October 2003. At times there were 10-15 children playing on this wooden construction, at least 4 times a week between 7 p.m. and 11 p.m. shouting and hollering at each other. I observed them playing during the weekend at different hours. . . .  9. I observed Defendants’ child and children of their guests throwing trash and rocks and yelling while standing on the top of the play set.  10. At all times relevant, I was working in Dallas, Texas; I would leave early in the morning and return at about 7 p.m. When I was at home, I was not able to relax or enjoy my home, inside or out. I was frequently disturbed by yelling, screaming and loud music played from the Defendants property. I cried frequently and was not able to sleep. . . .  11. Our neighbors’ activities on the play set escalated to the point that during spring, summer and fall of 2004, neither myself, my husband, nor my children were able to use our backyard and swimming pool when Defendants were at home. I was afraid that I would be observed and my privacy violated. I was depressed and withdrew socially. I was unable to invite friends over for fear of being embarrassed or very uncomfortable having to tell them that we are not able to use our backyard and swimming pool. My children were not able to invite their friends over because they feared being observed and laughed at by the children on the play set.  Kathy’s affidavit concludes with a reiteration of the alleged assault by Sheila Kerney and with a description of actual damages, including $480 in damage to the Brozynskis’ fence caused by hooks of the play set that had been attached to the fence. Krzysztof Brozynski’s affidavit sets out nearly identical facts. The Brozynskis next filed (on March 3, 2005) an amended petition whose facts remained as set out above. It added a cause of action for intentional infliction of emotional distress but no longer sought injunctive relief. At a hearing held on March 14, 2005, the trial court gave the Brozynskis thirty days to amend their petition to plead viable causes of action. Instead of repleading, the Brozynskis filed their motion to dismiss without prejudice on April 11, and two weeks later, the Kerneys filed their motion for sanctions. Rule 13 Sanctions The trial court’s judgment expressly imposed sanctions under Texas Rule of Civil Procedure 13. Appellants first argue that the trial court abused its discretion by imposing sanctions under Rule 13 when the Kerneys’ motion for sanctions was brought  under chapters 9 and 10 of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 9.011-.014, 10.001-.06 (Vernon 2002).  We assume without deciding that the Kerneys’ motion and counterclaim for sanctions is a sufficient basis for the imposition of Rule 13 sanctions. Rule 13 authorizes a trial court to impose sanctions against an attorney, a represented party, or both, who file a groundless pleading brought in bad faith or brought for the purpose of harassment. Tex. R. Civ. P. 13. The rule defines “groundless” as having “no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.” Id.  In determining whether sanctions are appropriate, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading. Alejandro v. Bell, 84 S.W.3d 383, 392 (Tex. App.—Corpus Christi 2002, no pet.). The trial court uses an objective standard to determine if a pleading was groundless: did the party and counsel make a reasonable inquiry into the legal and factual basis of the claim? In re United Servs. Auto Ass’n, 76 S.W.3d 112, 115 (Tex. App.—San Antonio 2002, orig. proceeding). Rule 13 also provides: “No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order.” Tex. R. Civ. P. 13. In reviewing an award of sanctions, we ordinarily look to the particulars of good cause set out in the sanction order. Woodward v. Jaster, 933 S.W.2d 777, 782 (Tex. App.—Austin 1996, no writ).  Analysis The trial court’s judgment found that the following three allegations in the Brozynskis’ original and amended petitions were “not warranted by existing law and not supported by any reasonable request for the extension, modification, or reversal of existing law”: (1) the contention—allegedly made by the Brozynskis—that the Kerneys had a duty to secure the Brozynskis’ permission to erect the swing set on the Kerneys’ property;[1] (2) the Brozynskis’ contention that the act of looking at adjacent property with one’s eyes is a physical entry or “airspace invasion” sufficient to constitute trespass; (3) the Brozynskis’ contention of an “airspace invasion” by the use of household lighting is a trespass. Rule 13 directs a trial court to presume that a pleading was filed in good faith. Tex. R. Civ. P. 13; GTE Comm. Sys. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). “Thus, the burden is on the party moving for sanctions to overcome this presumption.” GTE, 856 S.W.2d at 731. A groundless pleading is not sanctionable unless it also was brought in bad faith or for the purpose of harassment. Id. The trial court must hold an evidentiary hearing to make the necessary factual determinations about the party’s or attorney’s motives and credibility. Alejandro v. Robstown ISD, 131 S.W.3d 663, 670 (Tex. App.—Corpus Christi 2004, no pet.). Without such an evidentiary hearing, the trial court has no evidence before it to determine that a pleading was filed in bad faith or to harass. Id.; accord Karlock v. Schattman, 894 S.W.2d 517, 523 (Tex. App.—Fort Worth 1994, orig. proceeding) (“Without hearing evidence on the circumstances surrounding the filing of the pleading signer’s credibility and motives, a trial court has no evidence to determine that a pleading was filed in bad faith or to harass.”). The party moving for sanctions must prove the pleading party’s subjective state of mind: bad faith does not exist when a party exercises bad judgment or negligence; under Rule 13, bad faith exists only for the conscious doing of a wrong for dishonest, discriminatory, or malicious purposes.  See Mattly v. Spiegel, Inc., 19 S.W.3d 890, 896 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Improper motive is an essential element of bad faith for purposes of imposing sanctions for groundless, bad-faith pleadings.  Wallace v. Investment Advisors, Inc., 960 S.W.2d 885, 889 (Tex. App.—Texarkana 1997, pet. denied). On the above three allegedly groundless allegations, the trial court did not make a particular finding of bad faith or harassment. See McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.—Dallas 1993, no writ) (“The trial court must find that the pleadings are in fact groundless and were brought in bad faith or to harass.”). The trial court’s failure to make a particular finding on bad faith or harassment is an abuse of discretion. “Trial courts are not at liberty to ignore the clear and unambiguous language of this rule.  When imposing Rule 13 sanctions, the trial court is required to make particularized findings of good cause justifying the sanctions.  Failure to comply with this clear directive is an abuse of discretion.”  Texas-Ohio Gas, Inc. v. Mecom, 28 S.W.3d 129, 135-36 (Tex. App.—Texarkana 2000, no pet.). We recognize that Mecom also holds that failure to object to the form of the sanctions order results in the forfeiture of an objection to the absence of a bad faith or harassment finding.[2] See id. at 135. Other courts agree.[3] We have found no Texas Supreme Court case addressing the issue. Nevertheless, because Appellants may have waived that objection to the order, we focus on whether the evidentiary record supports an implied finding of bad faith or harassment. See id. at 136; McCain, 856 S.W.2d at 757. No evidence of Appellants’ improper motive was adduced at the hearing.[4] At the hearing, the Kerneys’ attorney testified on the amount of attorney’s fees incurred in defending the suit. He also offered his opinion that the Brozysnkis’ pleadings were “groundless, filed in bad faith for the purpose of harassment,” but such conclusory opinion testimony is not evidence of Walker’s or Kathy Brozynski’s motives or credibility. Walker was not present at the hearing, and the Kerneys did not call Kathy (who argued the motion for sanctions for Appellants) as a witness. Evidence must be admitted under the rules of evidence at the evidentiary hearing for a trial court to consider it in a Rule 13 context.  Bell, 84 S.W.3d at 393; see McCain, 856 S.W.2d at 757 (motions and arguments of counsel are not evidence in a Rule 13 context). The pleading alone cannot establish that the represented party or its attorney brought their case in bad faith or to harass. McCain, 856 S.W.2d at 757. And the Brozynskis’ filing of a motion to dismiss (a nonsuit) is not, by itself, evidence of bad faith. See Mattly, 19 S.W.3d at 896-97. The trial court had no evidence before it to determine Appellants’ motives and credibility.  Accordingly, we need not address the groundlessness findings, and we hold that the trial court abused its discretion in assessing Rule 13 sanctions against Appellants on the above three allegations in the Brozynskis’ petitions. See Alejandro, 131 S.W.3d at 670; Bell, 84 S.W.3d at 393; Karlock, 894 S.W.2d at 523-24; McCain, 856 S.W.2d at 757-58. The only other pleading that the trial court cited in the sanctions judgment was the amended petition’s allegations of a continual course of conduct and continuing damages. The trial court faulted these allegations because the amended petition was filed after the play set had been removed and after the Kerneys had moved. The trial court found: 4)                 On November 9, 2004, Plaintiffs’ attorney/co-counsel Cornel W. Walker in a letter to the Court cancelling [sic] the hearing on Plaintiffs’ Request for Temporary Injunction acknowledged that the Defendants had removed the swing set.  5)                 Plaintiffs’ First Amended Original Petition seeking continuing damages “of $500.00 per month from October 1, 2003 until the activity made the basis of this action ceases” for Trespass by “airspace invasion” caused by “children who are playing on the play set . . . (who) are constantly screaming and trespassing by looking into the Plaintiffs’ entire back yard and especially the swimming pool area . . .” was filed with the Court on March 3, 2005, a date well after the Plaintiffs were aware that the Defendants had removed the swing set, sold their home and moved out of state.  6)                 Plaintiffs’ filing of the First Amended Petition complaining of a continual course of conduct and seeking continuing damages from their next-door neighbor months after the Kerneys removed the swing set, sold their home, and moved out of state constitutes a bad faith, if not outright fraudulent, pleading filed with the Court.  As we note above, in filing their amended petition, the Brozynskis removed their claim for injunctive relief but added a claim for intentional infliction of emotional distress. Again, we find that the trial court had no evidence before it to determine Appellants’ motives and credibility as to these particular allegations.[5] Furthermore, Appellants’ failure to amend their petition to reflect that the situation had changed and that they were no longer seeking future damages is only an inadvertent or negligent oversight in the pleading process. See Mattly, 19 S.W.3d at 896 (“bad faith does not exist when a party exercises bad judgment or negligence”). These particular pleading errors were borderline trivial mistakes. The trial court abused its discretion in finding these allegations to have been made in bad faith. Conclusion We sustain Appellants’ sole issue. We reverse the trial court’s judgment and render judgment that the Kerneys take nothing on their counterclaim and motion for sanctions.  BILL VANCE Justice  Before Chief Justice Gray, Justice Vance, and Justice Reyna            (Dissenting opinion by Chief Justice Gray) Reversed and rendered Opinion delivered and filed August 2, 2006 [CV06]    [1]          Specifically, the trial court found that “the Brozynskis requested the Court to enter a Temporary Injunction requiring the removal of a swing set which Defendants erected on Defendants’ property on the grounds that the swing set was erected ‘without the consent or permission of Plaintiffs.’ The contention that Defendants had a duty to secure Plaintiffs’ permission to erect a swing set on Defendants’ property is not warranted by existing law and not supported by any reasonable request for the extension, modification, or reversal of existing law.” This part of the trial court’s judgment misquotes and mischaracterizes the Brozynskis’ allegations in several respects.                First, nothing in the record refers to the play set as a mere “swing set.” The petition refers to it as a “large wooden play set.” Kathy’s affidavit describes it as a “wooden construction about 12 feet high . . . erected immediately adjacent to our property fence, although Defendants had considerable space to otherwise place this wooden construction.” Second, the trial court’s quotation from the Brozynskis’ petition (‘without the consent or permission of Plaintiffs’) is inaccurate. The petition alleged: “Defendants had not consulted with Plaintiffs nor had they asked for permission to erect such construction knowing fully well that the play set had been erected in violation of the residential deed and to intentionally harass and disrupt Plaintiffs’ life.” The Brozyinskis did not allege that the Kerneys had a duty to secure their permission to erect the play set; they alleged (as explained in detail in Kathy’s affidavit) that the Kerneys had not received permission to breach the subdivision’s deed restrictions by building such a large wooden structure. At the hearing, Appellants argued that this allegation was that the Kerneys were required to obtain the permission of the subdivision’s architectural guidelines committee. Finally, as part of the trespass claim, the petition alleged that the play set’s hooks had been attached to the Brozynskis’ fence and thus was an invasion (i.e., without permission) of the Brozynskis’ property, and Kathy’s affidavit described that damage that the play set’s hooks had caused to the Brozynskis’ fence. [2]              We note that Rule 13 uses the obligatory term “must” for the trial court’s duty to state the good cause particulars in the sanction order.  See Tex. R. Civ. P. 13.  [3]              Alexander v. Alexander, 956 S.W.2d 712, 714 (Tex. App.—Houston [14th Dist.] 1997, pet. denied); Land v. AT & S Transp., Inc., 947 S.W.2d 665, 667 (Tex. App.—Austin 1997, no writ); Campos v. Ysleta Gen. Hosp., Inc., 879 S.W.2d 67, 70 (Tex. App.—El Paso 1994, writ denied); McCain v. NME Hosps., Inc., 856 S.W.2d 751, 755-56 (Tex. App.—Dallas 1993, no writ).  [4]              During the hearing, the trial court appeared to believe that the Brozynskis’ motive was not one of bad faith or to harass, stating to Kathy: I think . . . the Motion for Sanctions is well-founded in this case. It’s well-founded because the Plaintiffs’ case has not stated a cause of action under Texas law. That’s not to say that the problems that you felt you incurred living next door to the Kerneys, that’s not a comment on the merits of how you felt or how you felt your privacy was invaded or how you felt it was living next to them. [5]              At the March 14 hearing, Kathy acknowledged to the trial court that the Brozynskis were seeking damages for only past conduct.