Judith Holmes v. Shirley Al Jaafreh

IN THE TENTH COURT OF APPEALS No. 10-11-00313-CV No. 10-11-00319-CV No. 10-11-00320-CV Judith Holmes, Appellant v. Shirley Al Jaafreh, Appellee From the County Court at Law Walker County, Texas Trial Court Nos. 10537CV, 10597CV and 10598CV ORDER of referral to mediation The Legislature has provided for the resolution of disputes through alternative dispute resolution (ADR) procedures. See Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001-154.073 (Vernon 2011). The policy behind ADR is stated in the statute: “It is the policy of this state to encourage the peaceable resolution of disputes . . . and the early settlement of pending litigation through voluntary settlement procedures.” Id. § 154.002 (Vernon 2011). Mediation is a form of ADR. Mediation is a mandatory but non-binding settlement conference, conducted with the assistance of a mediator. Mediation is private, confidential, and privileged. The Court finds that these three appeals are appropriate for mediation. See id. § 154.021(a) (Vernon 2011); 10th Tex. App. (Waco) Loc. R. 9. The Court notes that it has previously ordered mediation in seven other appeals involving the same parties, and it is the Court’s preference that these three appeals be mediated in conjunction with the other seven appeals. The Court therefore assigns Terrance D. Dill, Jr. as mediator in these three appeals. His contact information is: West, Webb, Allbritton & Gentry, P.C. 1515 Emerald Plaza College Station, TX 77845-1515 (979) 694-7000 The Clerk of the Court is directed to provide the mediator with a copy of this order. Mediation must occur within sixty days after the date of this order. The Court understands that mediation in the other seven appeals is scheduled for September 8, 2011. The Court appreciates in advance any accommodations that will be made to mediate these three appeals with the other seven appeals. No less than seven calendar days before the first scheduled mediation session, each party must provide the mediator and all other parties with an information sheet setting forth the party’s positions about the issues that need to be resolved. At or before the first session, all parties must produce all information necessary for the mediator to understand the issues presented. The mediator may require any party to supplement the information required by this Order. Immediately after mediation, the mediator must advise this Court, in writing, only that the cases did or did not settle and the amount of the mediator’s fee paid by each party. The mediator’s fee will be taxed as costs. Unless the mediator agrees to mediate without fee, the mediator must negotiate a reasonable fee with the parties, and the parties must each pay the agreed-upon fee directly to the mediator. The Court notes that Appellant is proceeding as an indigent in these appeals. Named parties must be present during the entire mediation process. Failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. See Tex. R. App. P. 42.3(b), (c). Any objection to this Order must be filed with this Court and served upon all parties within ten days after the date of this Order, or it is waived. The Court refers these appeals to mediation. PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins Order issued and filed August 31, 2011 Do not publish lass=MsoNormal align=center style='text-align:center'>Trial Court # 28164CR MEMORANDUM Opinion Ivan Roberts was charged with the offense of injury to a child. Tex. Pen. Code Ann. § 22.04 (Vernon 2003). The jury found him guilty and assessed ten years’ imprisonment. He appeals on two issues: (1) the jury charge contained error because it did not instruct the jury on the subjective element of the defense of parental discipline; and (2) the evidence is factually insufficient. We will overrule the issues and affirm the judgment. BACKGROUND Robert’s eleven-year-old son got in trouble at school. He was punished at school by being swatted with a paddle. At home, his father whipped him with a belt. An investigator with Child Protective Services testified that she observed injuries to the boy’s head, neck, back, arm, buttocks, and legs. Photographs of the boy’s injuries were admitted into evidence. The boy testified that his father told him to take off his clothes, had him lean over a bench press, and whipped him with a belt that had a metal buckle. He testified that his father had whipped him before but did not usually hit him on the neck and head. Roberts testified in his own defense that he disciplines his sons with a belt when he feels it is appropriate. He testified that the blows above the shoulders were an accident, but admitted that the purpose of the whipping was to cause pain. Jury Charge Roberts argues that the trial court’s jury charge on guilt-innocence contained error in that the trial court should have included a subjective component in the charge on parental discipline. He acknowledges that he did not object to the charge, but contends that alleged error caused him egregious harm. See Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). Section 9.61 of the Penal Code sets out the defense applicable to the parent-child relationship. That section states that the use of force, but not deadly force, against a child younger than eighteen years of age is justified: (1) if the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare. Tex. Pen. Code Ann. § 9.61 (Vernon 2003). The Penal Code defines a “reasonable belief” as a “belief that would be held by an ordinary and prudent man in the same circumstances as the actor.” Tex. Pen. Code Ann. § 1.07(a)(42) (Vernon Supp. 2004-05). Roberts argues that the jury instruction that the trial court gave regarding reasonable belief was error because it is strictly objective and omits the subjective aspect of the defense. He cites our opinion in Davis v. State for the proposition that there is a subjective aspect to the defense. 104 S.W.3d 177, 181 (Tex. App.—Waco 2003, no pet.). In Davis, we held that “[a]lthough the jury employs an objective standard to determine the reasonableness of the defendant’s belief, it must view the facts from the defendant’s perspective.” Id. at 181 (emphasis added). Here, the jury was instructed that “reasonable belief” means “a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant.” We find no error in the jury instruction and overrule this issue. Factual Sufficiency Roberts contends the evidence is factually insufficient to support the verdict, because he subjectively thought he acted within his parameters as a parent when he whipped his son. Because reasonable discipline is a justification, the State is not required to affirmatively produce evidence which refutes the claim; rather, the State has the burden to prove its case beyond a reasonable doubt. Goulart v. State, 26 S.W.3d 5, 10 (Tex. App.—Waco 2000, pet. ref’d). The jury is required to find beyond a reasonable doubt that the level of force used by the parent was not justified. Id. at 11. In reviewing factual sufficiency, we consider all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Again citing Davis, Roberts argues that the evidence is factually insufficient to show he acted in a manner contrary to his subjective reasonable beliefs. His reliance on Davis is misguided. In Davis, we held that the jury must view the facts from the defendant’s perspective, but the jury employs an objective standard to determine the reasonableness of the defendant’s belief. 104 S.W.3d at 181. Viewing the facts from the defendant’s perspective, the jury could have concluded that a reasonable person would not believe that the force used against Roberts’s son was necessary to discipline him or to safeguard or promote his welfare. The evidence is factually sufficient to sustain the verdict. CONCLUSION Having overruled the issues, we affirm the judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed April 27, 2005 Do not publish [CR25]