Michael Dion Floyd A/K/A Michael D. Floyd v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00168-CR Michael Dion Floyd a/k/a Michael D. Floyd, Appellant v. The State of Texas, Appellee From the 372nd District Court Tarrant County, Texas Trial Court No. 0894916D MEMORANDUM Opinion Appellant Michael Dion Floyd was convicted on March 4, 2005 of making a False Statement to Obtain Property or Credit - $100,000 to $200,000 and sentenced to twenty years in prison. On October 25, 2002, Tarrant County detectives posed as loan personnel at Realty Mortgage and arrested Floyd after he attempted to obtain a home loan in the name of Michael Davis Floyd. Prior to questioning, officers read Floyd a document entitled “Warning to be Given Before Taking Any Oral or Written Statement.” As the five warnings were read to Floyd, he read along on a copy of the document and initialed on a line alongside each warning. At the point that the officer read, “[i]f you are unable to employ a la[w]yer, you have the right to have a lawyer appointed to advise you prior and during any questioning,” Floyd asked the officer how to get a lawyer. The officer finished reading the warnings and then advised Floyd that he could call a lawyer or the court would appoint a lawyer for him. Floyd signed a waiver contained in the same document that stated: “I [Michael Floyd] have and do hereby knowingly, intelligently, and voluntarily waive the above explained rights and do make the following statement of my own free will….” Floyd did not request to call a lawyer or to have one appointed, and the officers continued to question him. In Appellant’s sole issue, he argues that the trial court erred in admitting a videotape which recorded the October 25, 2002 questioning as evidence against him because the officer who read his Miranda rights “qualified” his right to counsel. Miranda Warning Regardless of whether Floyd did not receive the proper Miranda warning, the statements made on October 25, 2002 were admissible when offered as impeachment evidence. See Tex. Code Crim. Proc. Ann. art. 38.22, § 5 (Vernon 2005). Every defendant has the right to testify in his own behalf. However, if a defendant voluntarily takes the stand, he is under an obligation to speak truthfully and accurately. Lykins v. State, 784 S.W.2d 32, 36 (Tex. Crim. App. 1989). “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Id. By using a defendant’s own statements against him, the prosecution does no more than “utilize the traditional truth-testing devices of the adversary process.” Id. The October 25, 2002 videotape was admitted as impeachment evidence. The court instructed the jury as follows: “this tape is admitted solely to assist you, if it does, in assessing the weight or credibility that you give to the Defendant’s testimony, but may not be considered for any other purposes.” Therefore, the trial court did not err in admitting Appellant’s statements. Accordingly, we overrule Appellant’s sole issue. Conclusion Having overruled Floyd’s sole issue, we affirm the trial court’s judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed March 1, 2006 Do not publish [CR25] in; margin-left: 0.3in; margin-right: 0.3in">§ 26.01. Promise or Agreement Must Be in Writing (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is (1)in writing; and (2)signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him. (b) Subsection (a) of this section applies to: *** (6)an agreement which is not to be performed within one year from the date of making the agreement; Tex. Bus. & Comm. Code Ann. § 26.01 (Vernon 1987). However, courts have crafted various exceptions to the application of the statute when enforcement would allow the very fraud that was sought to be prevented. One exception to the application is when one party has fully performed under the contract and the only thing remaining is performance by the other party. Frey v. Pearson, 168 S.W.2d 886, 889 (Tex. Civ. App.—Waco 1943, no writ). This exception has specifically been applied to an agreement to loan money requiring payments to be made over a period greater than one year. Estate of Kaiser v. Gifford, 692 S.W.2d 525 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). Having advanced the loan proceeds, Howard had fully performed his part of the contract. The only performance remaining was for Suzanne to repay the obligation. Thus the statute of frauds does not apply. Suzanne’s second issue is overruled. STATUTE OF LIMITATIONS The statute of limitation for an action on debt is four years. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (Vernon Supp. 2000). When the contract calls for periodic payments, a cause of action for nonpayment accrues at the end of each period until the contract is complete. Townewest Homeowners Ass’n, Inc. v. Warner Communication Inc., 826 S.W.2d 638, 640 (Tex. App.—Houston [14th Dist.] 1992, no writ). Therefore, the limitations period begins to run as to each payment on the date it is due and not paid. Id. Loan payments initially ceased in 1991. However, in this situation the effect of the modification of the loan agreement and the resumption of loan payments at a different amount than originally agreed must be considered. The agreement was modified. The amount of the monthly payments and the rate of interest was changed in 1993. Payments under the revised agreement were made until February of 1995. Suit was brought in March of 1997, well within the four year limitations period. The effect of these actions was to create a new agreement, binding the parties to a new contract, from which this cause of action arose when the loan was defaulted upon in March 1995 and ultimately repudiated. The limitations period did not begin to run until that time and suit was brought within the limitations period of four years. That this is the law cannot be disputed. In 1931, the Commission of Appeals summarized the applicable law as follows: Where the parties to a promissory note, which is past due but is unbarred by limitation, and which by its terms bears interest until paid, mutually agree to an extension of the time of payment of the note to a future date, a new contract, based upon a new consideration deemed valuable in law, arises between the parties. By such an agreement, each of the parties becomes obligated to the other in respects not comprehended by the contract arising from the note. The payee impliedly promises to surrender his present right to demand immediate payment of the indebtedness represented by the note, and to forego suit during the extension period; the payor impliedly promises to pay said indebtedness on the new maturity date, together with interest up to that date, in any event, at the rate provided in the note. Each of these new promises constitutes the consideration for the other, and a binding contract, embodying the terms of the note, as modified by the new agreement, results. Benson v. Phipps, 87 Tex. 578, 29 S.W. 1061, 47 Am. St. Rep. 128. In such a case, we understand the rule to be that, despite the fact that said agreement is oral, the existing right of action, which accrued to the creditor under the note, is relinquished, and that another right of action for the debt does not accrue to him until the new promise of the debtor to pay is breached. Limitation does not commence to run against an action to enforce the debtor's new promise to pay, until the time for performance of the new promise arrives. Heisch v. Adams, 81 Tex. 94, 16 S.W. 790; Port Arthur Rice Mill Co. v. Beaumont Rice Mills, 105 Tex. 514, 143 S.W. 926, 148 S.W. 283, 150 S.W. 884, 152 S.W. 629. The foregoing legal principles are applicable to the present case. The words of the agreement of January, 1927, were that the "note" was to be "carried another year." This language clearly imports a purpose to extend the time of payment of the indebtedness evidenced by the note to January 1, 1928. From this extension agreement, constituting as it does a new contract binding the respective parties to new engagements, the cause of action declared on arose. This cause of action has never become barred by limitation; therefore Article 5539 of the statutes does not apply. McNeill v. Simpson, 39 S.W.2d 835, 835-836 (Tex. Comm’n. App. 1931, opinion aff’d). See also Hoarel Sign Co. v. Dominion Equity Corp., 910 S.W.2d 140, 144-145 (Tex. App.—Amarillo 1995, writ denied). Howard’s claim for payment of the debt was not barred by the statute of limitations. Suzanne’s first issue is overruled. CONCLUSION Having overruled both issues raised on appeal by Suzanne and Dwight McElwee, the judgment in favor of James R. Joham, Independent Executor of the Estate of Howard E. Joham, is affirmed. TOM GRAY Justice Before Chief Justice Davis, Justice Vance and Justice Gray Affirmed Opinion delivered and filed January 26, 2000 Publish