Henry Martin Rutledge v. Nancy Miller

IN THE TENTH COURT OF APPEALS No. 10-05-00018-CV Henry Martin Rutledge, Appellant v. Nancy Miller, Appellee From the 43rd District Court Parker County, Texas Trial Court No. 45,350 MEMORANDUM Opinion Appellant Henry Martin Rutledge brings this appeal contesting the trial court’s granting of summary judgment in favor of Appellee Nancy Miller. We will reverse the judgment of the trial court. BACKGROUND On September 30, 2003, Rutledge filed a Petition for Post Divorce Division of Property. Miller filed a Motion for Summary Judgment based on limitations. A hearing was held on the motion on August 30, 2004. After hearing argument, the trial court deferred its ruling and invited amended motions. The next day, Rutledge filed a letter brief and offered argument on judicial estoppel, which had been argued without objection at the hearing. On September 23, 2004, Miller filed an Amended Motion for Summary Judgment on limitations, waiver, and judicial estoppel. On September 27, 2004, the trial court granted summary judgment on Miller’s affirmative defenses of limitations and waiver. On September 28, 2004, Rutledge filed his response to Miller’s amended motion. Rutledge presents three issues for review. In his first issue, Rutledge argues the trial court erroneously granted summary judgment on limitations and waiver based on the August 30, 2004 hearing. In his second issue, Rutledge argues the trial court erroneously granted summary judgment without a hearing on the Amended Motion. Finally, Rutledge argues the trial court erroneously granted summary judgment against the great weight and preponderance of the evidence. SUMMARY JUDGMENT PROCEDURE Summary judgment is a harsh remedy and the notice requirements in this rule must be strictly construed. Bryant v. Winn-Dixie Stores, Inc., 786 S.W.2d 547, 548 (Tex. App.—Fort Worth 1990, writ denied). Therefore, proper notice to the non-movant of the summary judgment hearing is a prerequisite to summary judgment. Lester v. Capital Indus., Inc., 153 S.W.3d 93, 95 (Tex. App.—San Antonio 2004, no pet.). Rule 166a(c) provides that the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.[1] Tex. R. Civ. P. 166a(c). We find that Rutledge did not receive the proper notice and the trial court entered judgment in error. We sustain Rutledge’s first issue. CONCLUSION Having sustained Rutledge’s first issue, we reverse the judgment and remand to the trial court for further proceedings. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurring) Affirmed Opinion delivered and filed February 1, 2006 [CV06] [1] The trial court has discretion to dispense with an oral hearing. Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 677 (Tex. App.—Houston [14th Dist.]), writ ref’d, 864 S.W.2d 491 (Tex. 1993) (per curiam). style='font-size:14.0pt;font-family:"CG Times"'>Trial Court # 2002-817-C MEMORANDUM Opinion A jury convicted Barney Dewaine Oldfield of four counts of aggravated assault and sentenced him to life. We affirm. BACKGROUND Oldfield was identified as the assailant of five stabbing victims and was charged with five counts of aggravated assault. Prior to trial, the State waived the fifth count. At his jury trial, Oldfield was found guilty and sentenced to life in prison and a $10,000 fine on each of the four counts. In his appeal, Oldfield argues that the trial court erred by (1) failing to remove a juror for disability; (2) denying him the effective assistance of counsel by failing to disclose that a juror was disabled; (3) denying his motion for a new trial because a juror was not a resident of McLennan county at the time of trial; (4) denying his motion for a new trial because a juror withheld material information during voir dire; (5) failing to appoint counsel to represent him on an unadjudicated extraneous offense for which he was arrested prior to trial and that was used against him in the punishment phase of his trial; (6) excluding instructions on the lesser included offense of assault in the charge; and (7) denying his request for a limiting instruction in the charge regarding his tattoos. VOIR DIRE Juror Disability Oldfield argues in his first issue that the trial court erred by failing to remove a juror for disability. After the jury was empanelled, the trial court was informed that juror Virginia Mahan felt she could not concentrate on the case because of the recent news that her brother was near death. The trial court informed the attorneys of Mahan's concerns and told them that he wished to question Mahan in his chambers on the record. The Court: I would like to do it without everybody being present, but it doesn't matter to me if you want to be present. That is fine. Oldfield's Attorney: That's fine, Judge. Subsequently, the trial court questioned Mahan in his chambers without either attorney present. During this conference, Mahan expressed concern that she would not be able to concentrate on the case because she would be "thinking about a law abiding citizen dying and one committing a crime." Yet, she also said that she would perform her "civic and Godly duty to the best of [her] ability." The trial court determined that Mahan could complete her role as a juror and upon returning to the courtroom, expressed this opinion to the attorneys. Oldfield contends that Mahan was disabled to serve on the jury because the strain of her brother's terminal illness inhibited her from fully and fairly performing the functions of a juror. Oldfield points to Mahan's testimony that she would think about "one committing a crime" as evidence of her bias against him in that she had already concluded that he was guilty. Oldfield argues further that had Mahan expressed these feelings in voir dire, he would have challenged her for cause. The determination of whether a juror is disabled is within the sole discretion of the trial court; therefore, we review this issue under an abuse-of-discretion standard. Routier v. State, 112 S.W.3d 554, 588 (Tex. Crim. App. 2003). A juror is disabled only when he is physically, emotionally, or mentally impaired in some way that hinders his ability to perform the duties of a juror. Brooks v. State, 990 S.W.2d 278, 286 (Tex. Crim. App. 1999); Ricketts v. State, 89 S.W.3d 312, 318 (Tex. App.—Fort Worth 2002, pet. ref'd). The disabling condition may result from physical illness, mental condition, or emotional state. Reyes v. State, 30 S.W.3d 409, 411 (Tex. Crim. App. 2000); Ricketts 89 S.W.3d at 318. However, a juror's bias or prejudice for or against the defendant does not render a juror disabled. Reyes, 30 S.W.3d at 412. Mahan testified that despite her ill news, she would do her duty to the best of her ability, and the trial court agreed with that assessment. We find that the trial court did not abuse its discretion in allowing Mahan to continue as a juror. Though Oldfield points to Mahan's potential bias, that is not a condition that would render a juror disabled. Reyes, 30 S.W.3d at 412. Accordingly, we overrule Oldfield's first issue. In his second issue, Oldfield argues that the trial court denied him the effective assistance of counsel when the trial court did not disclose Mahan's disability, specifically her potential bias. We have already determined that there was no abuse of discretion in the trial court's decision that Mahan was not disabled; therefore, there could be no error in nondisclosure. Furthermore, Oldfield's counsel was given the opportunity to participate in the conference with Mahan, yet refused. Therefore, Oldfield cannot now complain of his ignorance of Mahan's possible bias and has waived this issue for appeal. See Tex. R. App. P. 33.1. We overrule Oldfield's second issue. Juror's Residency Requirement Oldfield argues in his third and fourth issues that the trial court erred in denying his motion for new trial. A trial court's ruling denying a motion for new trial is reviewed under an abuse-of-discretion standard and will not be reversed unless the trial court's analysis is arbitrary or unreasonable. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001); Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); Ford v. State, 129 S.W.3d 541, 547 (Tex. App.—Dallas 2003, pet. ref'd). The trial court is the sole judge of the credibility of any testifying jurors. Lewis, 911 S.W.2d at 7. If there is conflicting evidence on an issue of fact, then there is no abuse of discretion in overruling the motion for new trial. Id.; Ford, 129 S.W.3d at 547. Specifically, in his third issue Oldfield argues the trial court erred in denying his motion for new trial because a juror who was not a resident of McLennan County participated in the trial. In order to qualify as a juror, the potential juror must be a citizen of the state and the county in which he is to serve. Tex. Gov. Code Ann. § 62.102(1) (Vernon Supp. 2004). Oldfield alleged in his motion for new trial that after his conviction it was discovered that juror Shawna Hutchison was not a resident of McLennan County and had not been a resident for at least six months prior to trial. Oldfield filed the affidavit of Mitch Tyra, a private investigator, who interviewed Hutchison. According to Tyra, Hutchison said her residence was in Wortham, a city in Freestone County, and that she had been living there for six or seven months. Also, Tyra interviewed Hutchison's stepfather, who confirmed that Hutchison was living in Wortham. Additionally, Oldfield referred the trial court to Hutchison's subpoena to appear at the hearing which was personally served upon Hutchison in Wortham. In response, the State filed affidavits of both Hutchison and her mother stating that Hutchison lived in McLennan county. The trial court was presented with conflicting evidence. As such, it did not abuse its discretion in finding that Hutchison resided in McLennan County. Lewis, 911 S.W.2d at 7. Furthermore, even if Hutchison had not resided in McLennan county, Oldfield has waived this issue on appeal. The requirement that a juror be a county resident is not an absolute requirement, and the failure to challenge the juror before empanelling, as here, waives the issue. See Mayo v. State, 4 S.W.3d 9, 12 (Tex. Crim. App. 1999). Accordingly, we overrule Oldfield's third issue. Juror Misconduct In his fourth issue, Oldfield argues that the trial court erred in denying his motion for new trial because Hutchison withheld material information during voir dire. "The voir dire process is designed to insure, to the fullest extent possible, that an intelligent, alert, disinterested, impartial, and truthful jury will perform the duty assigned to it." Armstrong v. State, 897 S.W.2d 361, 363 (Tex. Crim. App. 1995). "Where a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hampering their selection of a disinterested and impartial jury." Salazar v. State, 562 S.W.2d 480, 482 (Tex. Crim. App. [Panel Op.] 1978). The withheld information must be material, i.e., it must suggest a potential for bias or prejudice. See Decker v. State, 717 S.W.2d 903, 907 (Tex. Crim. App. 1983) (op. on reh'g). However, defense counsel has an obligation to exercise due diligence by asking questions calculated to bring out a juror's potential for bias. Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App. 1999). The failure of a juror to disclose material information is not considered to have been "withheld" unless defense counsel asked such specific questions during voir dire. Gonzales, 3 S.W.3d at 917; Armstrong, 897 S.W.2d at 364. Oldfield argues that after his conviction it was discovered that juror Hutchison witnessed an assault on Kenneth Parsons, a co-worker, who was stabbed several times. Oldfield was arrested in connection with Parsons's assault. Oldfield admitted into evidence police offense reports for the assault that listed Hutchison as a witness, Oldfield's involvement, and the involvement of another suspect known to Hutchison. Oldfield contends that the trial court asked specific questions designed to elicit such information, and Hutchison failed to respond to such questions. The pertinent questions are reproduced below. Is there anybody on this panel who they, or a close personal friend or family member has ever been the victim of aggravated assault where it was alleged that a knife was used or where that you believe a knife was used? Is there anybody on this panel that because I have told you what the allegations are in the indictment that because there is something in their personal life or that has happened to them or a close personal family member or friend that could not sit and listen to the evidence in this case and reach a fair verdict on guilt and a fair verdict, if you were called to, for punishment? Hutchison did not answer affirmatively to these questions. However, in response, Hutchison stated in her affidavit that she was truthful in not answering affirmatively because Parsons was not a close personal friend and she truly felt that she could reach a fair verdict. She explained that Parsons was just an acquaintance that she knew from work for a short period of time. Furthermore, Parsons confirmed in his affidavit that he was not a close personal friend of Hutchison. Once again, the trial court was the arbiter of conflicting evidence, and we must defer to its judgment. Lewis, 911 S.W.2d at 7. Furthermore, the questions asked of Hutchison were not specific enough so that it can be said that Hutchison withheld the information. Though a fine line, courts have consistently upheld it. Barajas v. State, 93 S.W.3d 36, 41-42 (Tex. Crim. App. 2002) (holding "Can you be fair and impartial?" as too imprecise); Armstrong, 897 S.W.2d at 363-64; Brandon v. State, 599 S.W.2d 567, 578 (Tex. Crim. App. 1979); Ford, 129 S.W.3d at 547-49. Therefore, we find that the trial court did not abuse its discretion in denying Oldfield's motion for new trial. Accordingly, we overrule Oldfield's fourth issue. EXTRANEOUS OFFENSES Oldfield argues in his fifth issue that the trial court erred by failing to appoint counsel to represent him on a sexual assault charge for which he had been arrested prior to trial. While Oldfield was on bond awaiting trial for aggravated assault, he was arrested for sexual assault. Oldfield requested counsel, but was not appointed counsel until after his aggravated assault trial. During the punishment phase of his aggravated assault trial, the State presented evidence of the unadjudicated sexual assault. Oldfield argues that his counsel representing him in the assault trial was not representing him on the sexual assault charge, and separate counsel should have been appointed to defend Oldfield on the sexual assault offense evidence raised in the punishment phase of the assault trial. Oldfield further argues that if counsel had been appointed, he would not have received adequate preparation time. Oldfield cites no authority for his position. The State is allowed to introduce evidence of unadjudicated bad acts or offenses in the punishment phase of a trial. Paredes v. State, 129 S.W.3d 530, 541 (Tex. Crim. App. 2004) (citing Cantu v. State, 939 S.W.2d 627, 648 (Tex. Crim. App. 1997)). Any error in the delay in appointing counsel for the sexual assault charge would apply only to that specific charge, and not to the offense at hand. We fail to see how the delay in appointing counsel for the sexual assault charge affects Oldfield's rights in the adjudication of the aggravated assault offense. As for the lack of preparation time, Oldfield argues only that the appointed counsel would not have received the required ten day preparation time. Tex. Code Crim. Proc. art. 1.051(e). He does not argue that his counsel did not receive adequate notice that the State would use the sexual assault offense in the punishment phase of his trial. Therefore, we overrule Oldfield's fifth issue. THE CHARGE Instruction on Lesser Included Offenses Oldfield argues in his sixth issue that the trial court erred by failing to include instructions on the lesser included offense of misdemeanor assault in the charge. A jury charge instruction on a lesser-included offense must be given only if (1) the lesser-included offense is included within the proof necessary to establish the offense charged; and (2) some evidence exists in the record to prove that if the defendant is guilty, he is guilty only of the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex. Crim. App. 2003) (citing Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). A person commits the offense of misdemeanor assault if he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2004). A person commits the offense of aggravated assault if he commits misdemeanor assault and either: (1) causes serious bodily injury to another, or (2) uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. § 22.02(a) (Vernon Supp. 2004). Therefore, in the analysis of the second requirement, in order to be entitled to an instruction on misdemeanor assault, there must have been some evidence that the victims did not suffer serious bodily injury and that Oldfield did not use or exhibit a deadly weapon. A "Deadly weapon" is: "(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(17) (Vernon Supp. 2004). Oldfield admits to stabbing the victims with a knife, yet asserts that his intent was only to protect himself. Because there is no evidence that during the incident a knife was not used, a reasonable jury could not have found Oldfield guilty of only misdemeanor assault. Hampton, 109 S.W.3d at 441; Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001). Therefore, Oldfield is not entitled to an instruction on the lesser-included offense of misdemeanor assault. Hampton, 109 S.W.3d at 441 (holding no instruction on misdemeanor assault because "[t]he only affirmative evidence adduced at trial that was germane to the issue of whether a knife was used during the course of the assault reflected that a knife was used."); Ferrel, 55 S.W.3d at 591. We overrule Oldfield's sixth issue. Limiting Instruction Concerning Tattoos In his seventh issue, Oldfield argues that the trial court erred by denying his request for a limiting instruction concerning his tattoos. The State cross examined Oldfield regarding his white power and Adolph Hitler tattoos. Oldfield objected but did not request at limiting instruction at that time. Instead, he first requested a limiting instruction in the charge. Because Oldfield did not request a limiting instruction at the time the evidence was admitted, the trial court was not required to include a limiting instruction in the charge. See Tex. R. Evid. 404; Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001) (citing Rankin v. State, 974 S.W.2d 707, 712 n.3 (Tex. Crim. App. 1996). Furthermore, we can find no authority, nor does Oldfield refer to any, that suggests that evidence of tattoos should be considered by a jury for only a limited purpose. Therefore, we overrule Oldfield's seventh issue. CONCLUSION Having overruled all of Oldfield's issues, 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 December 15, 2004 Do not publish [CR25]