Latonia Denise Empy v. State

Empy v. State IN THE TENTH COURT OF APPEALS No. 10-94-121-CR      LATONIA DENISE EMPY,                                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                                               Appellee From the Criminal District Court No. 4 Dallas County, Texas Trial Court # F92-35814-K                                                                                                     O P I N I O N                                                                                                           This is an appeal by Appellant Empy from her conviction for class A misdemeanor theft, for which she was assessed one year in the county jail, probated.       In 1989, Laura Proctor, complainant, became acquainted with Appellant as a result of a mutual interest in stolen children. In October 1989, Proctor and Appellant were in an accident in Proctor's vehicle and Appellant was injured. After the accident, Appellant moved into Proctor's condominium, paid her some rent, and looked after Proctor's child. Appellant was about twenty-six years of age, had several aliases, and had been arrested for giving bad checks.       After a year of associating with Appellant, Proctor believed that Appellant had a multiple-personality disorder, and decided to move out of the condo she shared with Appellant. On October 14, 1991, she moved some of her property from the condo. At that point nothing was missing but when Proctor returned the next day with movers for additional things, she noticed the following items were missing: (1) three sofa cushions, (2) an oil painting, (3) a lamp, (4) two Lladro figurines, (5) four china figurines, (6) a music box, (7) a tea service, (8) two brass pigs, (9) a brass butterfly, and (10) a wood marlin.       Only Proctor and Appellant had keys to the condo. There was no damage or evidence of a forced entry. Proctor testified she locked the door to the condo when she left. After Proctor discovered the items were missing, Appellant changed the locks. Proctor reported the matter to the police who investigated. Appellant was indicted for the felony theft over $750, but less than $20,000. Appellant pled not guilty, waived a jury and, after trial, the court found her guilty of the lesser-included offense of misdemeanor theft, and assessed her punishment at one year in jail, probated. Appellant appeals on four points of error.       Point one: "The evidence is factually insufficient to support the trial court's rejection of Appellant's defense of insanity in that it is against the great weight and preponderance of the evidence."       Insanity is an affirmative defense and the accused has the burden of proof by a preponderance of the evidence. Tex. Penal Code Ann. § 8.01(a); Thompson v. State, 612 S.W.2d 925 (Tex. Crim. App. 1981). The issue of sanity is a fact question, and the trier of fact may believe, or disbelieve, experts or lay witnesses. Brooks v. State, 719 S.W.2d 259, 261 (Tex. App.—Waco 1986, pet. ref'd). While from a medical standpoint, one may be insane by reason of mental disease or defect, from a legal aspect he is not excused from a crime committed while in that condition, unless or until his mental condition has reached the point where he is unable to distinguish right from wrong. Graham v. State, 566 S.W.2d 941, 948 (Tex. Crim. App. 1978); Taylor v. State, 856 S.W.2d 459, 468 (Tex. App.—Houston [1st Dist.] 1993).       In our case, Dr. Pittman, a psychiatrist, testified he could not determine one way or the other whether Appellant was, or was not, afflicted with multiple-personality disorder; but that Appellant was not insane. Appellant testified that she was not insane. Proctor testified that Appellant suffered from multiple-personality disorder.       The trial court found that Appellant was not insane. We hold that such finding is not against the great weight and preponderance of the evidence.       Point one is overruled.        Point two: "The evidence is insufficient to show that Appellant is guilty of theft." Where there is a claim of insufficient evidence to support a verdict in a criminal case, the reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, S.Ct., U.S. 307, 319; Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). The reviewing court does not resolve any conflict of facts, weigh the evidence, or evaluate the credibility of the witnesses. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984).       The evidence shows that on October 14, 1991, Proctor took some of her property out of the condo. At that point nothing was missing. When Proctor returned the next day for additional things, the items were missing as alleged in the indictment. Only Proctor and Appellant had keys to the condo. Proctor said she locked the door every time she left the condo and there was no evidence of forced entry. Ginger Shirley testified that, after the offense, Appellant told her that a person named Ken had stolen the items, but that she could obtain them. Detective Wright, who investigated the theft, testified that Appellant told him in a phone call that she had a pillow and some other miscellaneous items which she wished to return to Proctor.       While the evidence is circumstantial, we think that a rational trier of fact could have found beyond a reasonable doubt that Appellant took the property.       Point two is overruled.       Point three: "The evidence is insufficient to establish the ownership of the property in question."       Appellant contends that, other than Proctor's testimony, there is no evidence that the stolen property ever existed, much less that it was owned by Proctor, because there were no pictures, serial numbers, or demonstrative proof which identified the stolen property. Appellant testified that none of the property claimed to have been Proctor's property ever existed. Ownership of personal property may be proved by oral testimony. Smith v. State, 638 S.W.2d 476, 478 (Tex. Crim. App. 1982).       Proctor testified that: The property belonged to her; she bought the couch that contained the cushions in 1987 or 1988, and had had the couch since then; she had gotten the wood marlin in Mexico; she had owned the lamp since 1986 or 1987; she had received the Lladro figurines as gifts and had them in her possession since 1980; and she had had the music box, tea service, brass pigs and butterfly since 1980.       The evidence of Proctor's ownership and the identity of the items stolen is sufficient to support the conviction. In reviewing the evidence and by applying the standard set forth in Jackson, supra, i.e., viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Proctor was the owner of the stolen property alleged in the indictment.       Point three is overruled.       Point four: "The evidence is insufficient to establish the fair-market value of the items in question so as to prove the jurisdictional amount for a class A misdemeanor."       Value is the fair-market value of the property at the time and place of the offense, or, if the fair-market value cannot be ascertained, the cost of replacement of the property. Tex. Penal Code Ann. § 31.08(a). The owner of property is competent to testify as to the value of his own property and can testify as to its fair-market value either in terms of purchase price or the cost of replacement. Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986).       Proctor testified that the cost of replacing the three sofa cushions was $75; that the oil painting had a replacement cost of $300 and a fair-market value of $200; that the lamp had a fair-market price of $20 and a replacement cost of $40; that the Lladro figurines, in October 1991, had a market value of $250; that the four china figurines had a market value of $15 to $20 each; that the music box would sell for $20, the tea service for $15, the two brass pigs for $15, the brass butterfly for $15, and the wood marlin for $20.       We hold that Proctor gave sufficient testimony to establish value for each of the items alleged in the indictment, and that the trial court was authorized to believe the value of the property was in excess of $200 but not more than $750. Moreover, if the manner of proving value did not meet the accused's approval, it was incumbent on her to object at the time of the introduction of the testimony. Brown v. State, 640 S.W.2d 275, 279 (Tex. Crim. App. 1982). It was further incumbent on Appellant to offer controverting evidence as to the value of the property. Sullivan, supra.       Point four is overruled. The judgment is affirmed.                                                                                 FRANK G. McDONALD                                                                                Chief Justice (Retired) Before Justice Cummings,       Justice Vance, and       Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed February 1, 1995 Do not publish rule the Montanges’ second issue on the Hagelsteins’ claim for prescriptive easement, which alone will support the trial court’s judgment declaring an unspecified easement.[6] We thus need not address the Montanges’ first and third issues on easement by estoppel and easement by necessity. Scope of the Easement          The trial court declared an easement “for all purposes of ingress and egress.” The Montanges’ fourth issue complains that the evidence is legally and factually insufficient to support the breadth of this scope. Other than pointing to future possible annoying uses (such as rock hauling or chicken transporting), the Montanges make no argument how the evidence is insufficient. Historically, the Hagelsteins’ use of the easement for ingress and egress was never limited. Over time, their use has been for personal, agricultural (a tractor), and business (deer hunters) purposes. We find the evidence legally and factually sufficient to support the scope of the easement. Attorney’s Fees          Issue five challenges the Hagelsteins’ ability to recover attorney’s fees under the Uniform Declaratory Judgments Act (Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 1997) (the UDJA)), arguing that the Hagelsteins’ easement claim is not the proper subject of a declaratory judgment claim. We agree that a party may not recover attorney’s fees under section 37.009 when the UDJA is used solely as a vehicle to recover attorney’s fees. See National Enterprise, Inc. v. E.N.E. Props., 167 S.W.3d 39, 44 (Tex. App.—Waco 2005, no pet.) (“A declaratory judgment action may not be used solely to obtain attorney’s fees that are not otherwise authorized by statute.”). But numerous cases reflect an award of attorney’s fees under the UDJA to parties seeking to establish an easement or to defeat an easement claim.[7] The Hagelsteins rely on section 37.004 as the basis for their declaratory judgment claim.[8]  The UDJA is remedial, and we are to construe it liberally; “its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b) (Vernon 1997). The Hagelsteins sought a declaration of their rights in the road, and they introduced at least three different deeds into evidence, and two of them make specific references to the road. Based on a liberal construction of section 37.004 and its remedial purpose, and the history of similar cases awarding attorney’s fees, we find that the Hagelsteins’ request for declaratory relief falls within section 37.004. The trial court did not err in awarding the Hagelsteins attorney’s fees. We overrule the Montanges’ fifth issue.         We affirm the trial court’s judgment.  BILL VANCE Justice   Before Chief Justice Gray, Justice Vance, and Justice Reyna          (Chief Justice Gray dissenting) Affirmed Opinion delivered and filed March 15, 2006 [CV06]     [1]      In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). There is legally insufficient evidence or “no evidence” of a vital fact when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id. (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).     [2]      When the party without the burden of proof at trial complains of the factual sufficiency of the evidence to support an unfavorably answered jury finding or an adverse express or implied finding, we must consider and weigh all of the evidence, not just the evidence that supports the verdict. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied). We will set aside the finding only if it is so contrary to the overwhelming weight of the evidence that the finding is clearly wrong and unjust. Ellis, 971 S.W.2d at 407.  Reversal can occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. Checker Bag, 27 S.W.3d at 633.     [3]      When challenged on appeal, findings are not conclusive on the appellate court if there is a complete reporter’s record, as there is here. Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987). Generally, we will not disturb a trial court’s findings if there is evidence of probative force to support them. See Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 136-37 (Tex. App.—Waco 2005, pet. denied). A finding may be disregarded if it is not supported by the evidence or is immaterial. See S.E. Pipeline Co. v. Tichacek, 997 S.W.2d 166, 172 (Tex. 1999). A finding on a question is immaterial if the question should not have been submitted to the factfinder or if it has been rendered immaterial by other findings. Id. The trial court is required to make findings of fact only on controlling issues, not on matters of evidence. ASAI v. Vanco Insulation Abatement, Inc., 932 S.W.2d 118, 122 (Tex. App.—El Paso 1996, no writ); Rafferty v. Finstad, 903 S.W.2d 374, 376 (Tex. App.—Houston [1st Dist.] 1995, writ denied).     [4]      In its findings of fact and conclusions of law, the trial court found that the evidence raised the presumption of nonpermission and concluded that the use was adverse, which we treat as a fact finding. See Lucas v. Tex. Dep’t Prot. & Reg. Servs., 949 S.W.2d 500, 502 (Tex. App.—Waco 1997, pet. denied).     [5]      Cf. Cottrell v. Amburn, 1999 WL 1101360, at *3 (Tex. App.—Texarkana Dec. 7, 1999, pet. denied) (not designated for publication) (“Everyone else who testified, regardless of the different dates that they stated, left a period of time of more than ten years between the time that the road was built and the time when the gates were locked. It was completely within the province of the jury, based on the evidence that was presented, to find that sometime between 1957 and the present the public used the Roadway continuously for a period of ten years or more.”).     [6]      At the end of their brief, and without asserting a separate issue, the Montanges challenge the sufficiency of the evidence for findings 15, 17, 21, and 23. We agree with their assertion that these findings are evidentiary, and we will disregard them as immaterial.    [7]      E.g., Fagan v. Crittenden, 2005 WL 428469, at *3 (Tex. App.—Waco Feb. 23, 2005, pet. filed); Steel v. Wheeler, 993 S.W.2d 376, 381 (Tex. App.—Tyler 1999, pet. denied) (“We hold that invoking the Declaratory Judgments Act to determine rights of ingress and egress is proper.”) (citing Lindner v. Hill, 691 S.W.2d 590, 591 (Tex. 1985)); Houston Bellaire v. TCP LB Portfolio I, 981 S.W.2d 916, 922-23 (Tex. App.—Houston [1st Dist.] 1998, no pet.); Elder v. Bro, 809 S.W.2d 799, 800-01 (Tex. App.—Houston [14th Dist.] 1991, writ denied); Canales v. Zapatero, 773 S.W.2d 659, 661 (Tex. App.—San Antonio 1989, writ denied).     [8]      It provides in pertinent part:  (a) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.  Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (Vernon 1997).Â