Reginald Hill Green v. State

Green v. State IN THE TENTH COURT OF APPEALS No. 10-92-300-CR      REGINALD HILL GREEN,                                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                                               Appellee From the 361st District Court Brazos County, Texas Trial Court # 20,965-361                                                                                                     O P I N I O N                                                                                                           Reginald Green was convicted by a jury of aggravated assault and sentenced to ten years in prison and a $3,000 fine. See Tex. Penal Code Ann. § 22.02(a) (Vernon Supp. 1993). His first point challenges the sufficiency of the evidence to support the jury's implied rejection of his claim of self-defense. He also complains that the prosecutor's closing argument amounted to encouraging the jury to commit misconduct. We will overrule the points and affirm his conviction.       The undisputed evidence establishes that Green travelled to Bryan from Houston on July 27, 1991, with Raynard Martin and Steven Evans in a Jaguar. That night, they went to The Place, a nightclub popular with the youths of Bryan. There were between fifty and one hundred people socializing in the area surrounding the nightclub. As Green and a local woman, Shirley Guinn, were leaving together, Guinn became involved in a swearing match with her ex-boyfriend, Merion Smith. Green got out of Guinn's car and returned to the Jaguar, which was being driven by Martin and was behind Guinn's car.       At some point after Green returned to the Jaguar, bottles were thrown by an unknown party at the Jaguar. Several State's witnesses testified that the bottles were thrown after Green got out of the Jaguar with a gun. Other witnesses testified that the bottles were thrown before Green got out of the car. The defense witnesses, Martin and Evans, both testified that Green was in the Jaguar when the bottles were thrown.       The State's witnesses testified that Green began firing the pistol at the crowd. The complaining witness, Eric Ross, testified that he ran and hid behind a Ford Escort when Green began firing. Both Ross and Debbie Wells, a woman who was sitting in the Escort, testified that Green walked away from the street and toward the Escort. There Green discovered Ross crouched behind the car. When Ross saw Green standing three feet away, he attempted to run, but Green shot him in the arm. Ross crawled inside the Escort, and Green shot into the body of the car four or five times. After Green shot the car, he told Ross "I'll be back" and returned to the Jaguar. Other State's witnesses testified that the only hostile actions against Green and the Jaguar were the bottles being thrown, that the crowd did not move against the Jaguar, and that Green's was the only gun fired. Among the State's witnesses, only Ross testified that someone in the crowd shouted a hostile phrase directed at Green and his party prior to the bottles being thrown and the ensuing gunfire.       The defense witnesses, Martin and Evans, presented a different version of events. In their version, Green was anxious to leave the scene when he returned to the Jaguar because he thought that the crowd was getting ugly. Green's fear was confirmed, they said, by shouts encouraging the crowd to attack Green, Martin, and Evans. Martin and Evans testified that they heard somebody in the crowd call for his "nine," a term which both witness interpreted to refer to a nine-millimeter handgun. After hearing the call for the "nine," both claimed that bottles began to hit the Jaguar and that they heard a gunshot from outside the car. Martin testified that, after the shot from the crowd, Green got out of the Jaguar and returned fire with his pistol. Martin stated that Green never left the side of the car when he was shooting the pistol. Evans testified that Green did not get out of the Jaguar, but returned the fire by sticking the pistol out of the car's window. Both defense witnesses agreed that there were no bullet holes in the Jaguar after that night.       In resolving the sufficiency-of-the-evidence issue, we view all the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt and also could have found against Green on the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). Self-defense is an issue of fact to be determined by the jury. Id. at 913. Thus, the jury is free to accept or reject the defensive theory of the evidence. Id. at 914. By finding Green guilty, the jury implicitly rejected his self-defense theory. See id. The jury was entitled to reject the defensive evidence and credit the State's witnesses' version of the events. Thus, the jury could have concluded that Green was not acting in self-defense by finding that he hunted down Ross hiding behind the Escort and shot him as Ross attempted to run away.       We hold that there is sufficient evidence for the jury to have found the essential elements of aggravated assault and to have found against Green on the claim of self-defense beyond a reasonable doubt. See id. We overrule the first point.       Green next complains that the prosecutor's closing argument amounted to the active encouragement of the jury to disregard certain portions of the jury charge. No contemporaneous objection to the closing argument was raised as required by Rule 52(a). See Tex. R. App. P. 52(a). Generally, the failure to object to jury argument will waive any potential complaint about the argument. See Willis v. State, 785 S.W.2d 378, 385 (Tex. Crim. App. 1989), cert. denied, __ U.S. __, 111 S.Ct. 279, 112 L.Ed.2d 234 (1990). However, an objection is not required if the argument is so egregious that no instruction to disregard could possibly cure the harm. Id.; Romo v. State, 631 S.W.2d 504, 505 (Tex. Crim. App. 1982). Argument rises to this level if it is manifestly improper, or violates a mandatory statute, or injects a new fact harmful to the defendant's case. Willis, 785 S.W.2d at 385.       Green argues that the State's closing argument did not emphasize that Green's self-defense claim was to be evaluated from his standpoint at the time of the incident. We conclude that the State's argument was a proper answer to the Green's self-defense theory. Thus, he is not entitled to the Romo exception to the waiver rule, and his failure to object waives any possible complaint. Green's second point of error is overruled.       The judgment is affirmed.                                                                                   BILL VANCE                                                                                  Justice Before Chief Justice Thomas,           Justice Cummings, and           Justice Vance Affirmed Opinion delivered and filed October 13, 1993 Do not publish overruling Richard’s objections to summary judgment evidence; (3) erred in granting the Appellees’ motion for traditional and no evidence summary judgment; (4) erred in denying his request for a temporary writ of injunction against Valerie and Ault; (5) erred in denying his request for a temporary writ of injunction against the TDCJ; and (6) abused its discretion in denying his motion to review his parole records. Richard’s Objections to the Appellees’ Summary Judgment Evidence          In his second issue, Richard argues that the trial court abused its discretion in overruling Richard’s objections to Appellees’ summary judgment evidence. Richard launched seventy objections to Appellees’ evidence that encompass three categories: (1) relevancy; (2) hearsay; and (3) accuracy of record and/or statements. The trial court overruled Richard’s objections, but Richard failed to get the court’s ruling in writing.          For preservation purposes, objections to "form" and "substance" of summary judgment evidence are treated differently.  Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.);  Dailey v. Albertson's, Inc., 83 S.W.3d 222, 225 (Tex. App.—El Paso 2002, no pet.). To preserve objections to defects of form, the objecting party must obtain a ruling from the trial court in writing.  See McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); Allen ex rel. B.A. v. Albin, 97 S.W.3d 655, 663 (Tex. App.—Waco 2002, no pet.).  However, substantive objections do not require a written ruling, and the objection may be raised for the first time on appeal.  Choctaw Props., 127 S.W.3d at 241; Dailey, 83 S.W.3d at 225.          One subset of Richard’s objections to Appellees’ summary judgment evidence claimed that parts of the evidence contained hearsay. Hearsay is a defect of form. Choctaw Props., L.L.C., 127 S.W.3d at 241; Crow v. Rockett Spec. Util. Dist., 17 S.W.3d 320, 324 (Tex. App.—Waco 2000, pet. denied) (affidavit of interested witness, hearsay, and lack of personal knowledge are all defects of form).  Consequently, because Richard failed to obtain a written ruling, his hearsay objections have not been preserved for appellate review.  Choctaw Props., 127 S.W.3d at 241; McMahan, 108 S.W.3d at 498.          Richard also objected to the relevancy of the Appellees’ evidence. Relevancy is an issue of substance that is not waived by the failure to obtain a written ruling.  See McMahan, 108 S.W.3d at 498. Richard appears to argue that some of the defenses raised by the Appellees in their motion should be excluded because they were not disclosed in their response to Richard’s Rule 194 Request for Disclosure. See Tex. R. Civ. P. 194. However, this argument was not presented to the trial court. Moreover, the trial court had previously denied Richard’s numerous motions for discovery sanctions concerning the Appellees’ alleged failure to respond to his request for disclosure. Aside from his complaint of non-disclosure, the Appellees’ defenses are probative and relevant to the issues of the case. Therefore, we find the defenses relevant, and the trial court did not abuse its discretion in overruling Richard’s relevance objections.          Finally, Richard objected to the accuracy of the record and/or statements in the Appellees’ summary judgment evidence. This is not a valid legal objection. Disputing the accuracy of the evidence results in questions of fact best resolved by the trial court in the summary judgment hearing. Richard would be better served by contravening the evidence than by attacking its veracity by objections. See Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d 172, 185 (Tex. 2004). Accordingly, we overrule Richard’s second issue. The Merits of the Appellees’ Summary Judgment Motion          In his third issue, Richard argues that the trial court abused its discretion in granting Appellees’ traditional and no evidence motion for summary judgment. We review the decision to grant or deny a summary judgment motion de novo. See Rosas v. Hatz, 147 S.W.3d 560, 563-64 (Tex. App.—Waco 2004, no pet.). When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion.  Larsen v. Carlene Langford & Assocs., Inc., 41 S.W.3d 245, 249 (Tex. App.—Waco 2001, pet. denied) (quoting Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473, 38 Tex. Sup. Ct. J. 718 (Tex. 1995)).          In their motion for traditional summary judgment, the Appellees argue that they are entitled to judgment as a matter of law because Richard’s suit is barred by res judicata.  In a traditional summary judgment motion, the movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425, 40 Tex. Sup. Ct. J. 658 (Tex. 1997); Rosas, 147 S.W.3d at 564. The reviewing court must accept all evidence favorable to the non-movant as true. Rosas, 147 S.W.3d at 564. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. Grinnell, 951 S.W.2d at 425; Rosas, 147 S.W.3d at 564.          Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and could have been litigated in the prior action.  Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). To establish res judicata, the claimant must show: (1) there was a prior final judgment on the merits rendered by a court of competent jurisdiction; (2) the parties or those in privity with them are identical in both suits; and (3) the current suit is based on claims that were raised or could have been raised in the prior suit. Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass'n, 77 S.W.3d 487, 495-96 (Tex. App.—Texarkana 2000, pet. denied) (citing Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996)). Parties are in privity for purposes of res judicata when: (1) they control an action even if they are not parties to it; (2) their interests are represented by a party to the action; or (3) they are successors in interest, deriving their claims through a party to the prior action. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 890 (Tex. 1999).          In Valerie’s summary-judgment affidavit, she states that Richard previously argued that she was keeping her new address from him in a prior lawsuit regarding the divorce decree. Valerie states that Richard filed numerous motions for contempt in the prior proceeding alleging that Valerie had kidnapped the children by not notifying him of her new address. The trial court denied these motions. Richard also filed a motion to enforce the divorce decree claiming that Valerie did not notify him of her new address. This motion was also denied. What is more, Richard’s summary judgment evidence includes a reporter’s transcript from the prior lawsuit that specifically demonstrates the extensive argument of this issue. Thus, it is clear that the former suit and the current suit involve the same issue, and Richard’s claim under chapter 42 could have been litigated in the prior suit. All that remains is to determine whether the same parties were involved in both suits.          The only parties in the instant case that participated in the prior suit are Richard and Valerie. The Co-Appellees were not parties to the divorce decree. Nor can they claim privity with Valerie. See Neel, 982 S.W.2d at 890. As a result, the motion for traditional summary judgment could have been decided on these grounds as to Valerie alone. Therefore, indulging every reasonable inference in favor of the non-movant, we find that Valerie is entitled to judgment as a matter of law because Richard’s claims against her are barred by res judicata.  See Grinnell, 951 S.W.2d at 425; Pinebrook Props., Ltd., 77 S.W.3d at 495-96.          Valerie and the Co-Appellees also contend in the motion for summary judgment that there is no evidence that they have an affirmative duty to voluntarily provide information concerning the children’s whereabouts.          In a no evidence summary judgment motion, we review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences. Rosas, 147 S.W.3d at 564.  A no-evidence motion will be defeated if more than a scintilla of probative evidence exists to raise a genuine issue of material fact on the element challenged by the movant. Id.          Chapter 42 of the Family Code states that any person who aids or assists a person in concealing the whereabouts of a child in violation of a court order may be held liable for damages. Tex. Fam. Code Ann. § 42.002(a) (Vernon 2002). To be liable for aiding and assisting, the defendant must have taken affirmative steps to assist the abductor either in the abduction itself or in retaining possession or concealing the child’s whereabouts. See A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 382 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). However, a person who simply becomes aware of the abducted child’s whereabouts is not under an affirmative duty to reveal that information. See Eberle v. Adams, 73 S.W.3d 322, 329 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).          Co-Appellees rely upon A.H. Belo Corp. in support of their position. A.H. Belo Corp., 52 S.W.3d at 377. In that case the father sought to hold a television station liable under Chapter 42 of the Family Code for aiding and assisting in the abduction of his child because the station’s reporter had interviewed the abductor mother and abducted child in an undisclosed location. Id. The father argued that the duty under the Family Code not to conceal the location of an abducted child equates to a duty to reveal the location of the child.  Id. at 382.  The Fourteenth Court of Appeals held that “there is nothing in section 42.003 or the case law to indicate such an affirmative duty by all who have any knowledge of an abducted child's whereabouts,” and accordingly found that there was no evidence that the television station had an affirmative duty to disclose the whereabouts of the abducted child. Id.          The only case in which a failure to provide information was found to support a liability finding is Weirich v. Weirich. 833 S.W.2d 942 (Tex. 1992). In that case, the Texas Supreme Court found that there was legally sufficient evidence that the abducted children’s grandmother aided and assisted the abductor father in concealing the whereabouts of the children because the grandmother swore in open court that if she discovered the whereabouts of the children, she would notify the authorities, and by doing so assumed an affirmative duty to disclose the children’s whereabouts. Id. at 945. Richard has presented no evidence of like kind here.          Richard produced no evidence that Co-Appellees had an affirmative duty to disclose Valerie’s new address. Therefore, the trial court properly granted the no-evidence summary judgment motion as to the Co-Appellees. See Weirich, 833 S.W.2d at 945; Rosas, 147 S.W.3d at 564. Accordingly, we overrule Richard’s third issue and do not reach his first issue. Denial of Temporary Injunctions          Richard argues in his fourth and fifth issues that the trial court erred in denying his request for temporary injunctions against Valerie, Ault, and the TDCJ.          The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); City of Burleson v. Bartula, 110 S.W.3d 561, 564 (Tex. App.—Waco 2003, no pet.). To obtain a temporary injunction, the applicant must plead and prove three specific elements: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204; Tex. Civ. Prac. & Rem. Code Ann. § 65.011 (Vernon 1997).          Whether to grant or deny a temporary injunction is within the trial court's sound discretion. Butnaru, 84 S.W.3d at 204; City of Burleson, 110 S.W.3d at 564. A reviewing court should reverse an order granting injunctive relief only if the trial court abused that discretion.  Butnaru, 84 S.W.3d at 204; City of Burleson, 110 S.W.3d at 564.  The reviewing court must not substitute its judgment for the trial court's judgment unless the trial court's action was so arbitrary that it exceeded the bounds of reasonable discretion. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 918 (Tex. 1985). A trial court has no discretion to determine what the law is. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); City of Burleson, 110 S.W.3d at 564.          Richard sought a temporary injunction to prevent Valerie and Ault from contacting the prison and parole board in an attempt to cease his communications with his children and injure his prison status and future eligibility for parole. Richard argues that he suffered and continues to suffer irreparable injury because Valerie and Ault’s actions caused damage to his parole status and resulted in prison disciplinary action. Yet, Richard did not show that the parole board was assessing a penalty, nor was there evidence that the prison was disciplining him as a result of Valerie and Ault’s complaints. Fear or apprehension of the possibility of injury alone is not a basis for injunctive relief. Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853, 861 (Tex. App.—Fort Worth 2003, no pet.). Thus we cannot conclude that the trial court abused its discretion in denying Richard’s request for a temporary injunction against Valerie and Ault. See Butnaru, 84 S.W.3d at 204.          Richard also sought a temporary injunction against the TDCJ to prevent it from interfering with his access to the trial court. Richard claims that TDCJ officials interfered with his access to the trial court by refusing to supply him with legal material and to mail legal documents. Richard argues that he attempted to resolve these issues through administrative grievances, but the problems continued. Relying on the testimony of a TDCJ official, the trial court found that Richard had not exhausted his administrative remedies, and that there was no injury because the trial court had received each document that Richard claimed was delayed by the TDCJ. Crain v. Prasifka, 97 S.W.3d 867, 870 (Tex. App.—Corpus Christi 2003, pet. denied); Birdo v. Schwartzer, 883 S.W.2d 386, 388 (Tex. App.—Waco 1994, no pet.). Given this evidence, we cannot say the trial court abused its discretion in denying Richard’s request for a temporary injunction against the TDCJ. See Butnaru, 84 S.W.3d at 204. Accordingly, we overrule Richard’s fourth and fifth issues. Motion to Review Parole Records          In his sixth issue, Richard argues that the trial court erred in denying his motion to review his parole records. Richard filed a subpoena duces tecum on the custodian of his parole records, but the custodian failed to comply with Richard’s request. Richard argues that he cannot enforce the subpoena because the parole board member he would be seeking enforcement upon is the same member that would be voting on his eligibility for parole. Therefore, he filed a motion asking the trial court to order a review of these records.          However, there is no indication in Richard’s brief or the record that Richard asked the trial court for a ruling, or otherwise brought the motion to the trial court’s attention. See Tex. R. App. P. 33.1; Cherqui v. Westheimer Street Festival Corp., 116 S.W.3d 337, 342 (Tex. App.—Houston [14th Dist.] 2003, no pet.). Therefore, Richard has failed to preserve this issue for review. Accordingly, we overrule Richard’s sixth issue. Conclusion          We affirm the judgment of the trial court.                                                                   FELIPE REYNA                                                                   Justice Before Chief Justice Gray,          Justice Vance, and          Justice Reyna Affirmed Opinion delivered and filed February 23, 2005 [CV06]