City of College Station, Texas v. Virtual Equity Group, Inc. and Mega Equity Holdings

IN THE TENTH COURT OF APPEALS No. 10-10-00052-CV City of College Station, Texas, Appellant v. Virtual Equity Group, Inc. and Mega Equity Holdings, Appellees From the 272nd District Court Brazos County, Texas Trial Court No. 09-001135-CV-272 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 2005). 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 2005). 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. We find that this appeal is appropriate for mediation. See id. § 154.021(a) (Vernon 2005); 10th Tex. App. (Waco) Loc. R. 9. The parties are ordered to confer and attempt to agree upon a mediator. Within fourteen days after the date of this Order, the City of College Station is ordered to file a notice with the Clerk of this Court which either identifies the agreed-upon mediator or states that the parties are unable to agree upon a mediator. If the notice states that the parties are unable to agree upon a mediator, this Court will assign a mediator. Mediation must occur within thirty days after the date the above-referenced notice agreeing to a mediator is filed or, if no mediator is agreed upon, within thirty days after the date of the order assigning a mediator. 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. Named parties must be present during the entire mediation process, and each corporate party must be represented by a corporate employee, officer, or agent with authority to bind the corporate party to settlement. Immediately after mediation, the mediator must advise this Court, in writing, only that the case did or did not settle and the amount of the mediator’s fee paid by each party. The mediator’s fees 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 one-half of the agreed-upon fee directly to the mediator. Failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. 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. We refer this appeal to mediation. The appeal and all appellate deadlines are suspended as of the date of this Order. The suspension of the appeal is automatically lifted when the mediator’s report to the Court is received. If the matter is not resolved at mediation, any deadline that began to run and had not expired by the date of this Order will begin anew as of the date the mediator’s report to the Court is received. Any document filed by a party after the date of this Order and prior to the filing of the mediator’s report will be deemed filed on the same day, but after, the mediator’s report is received. PER CURIAM Before Chief Justice Gray, Justice Reyna, and Justice Davis Order issued and filed November 10, 2010 Do not publish ign: justify; line-height: 0.388889in"> The State's first witness, Xavier Sanchez, testified that he was a Community Supervision Officer for Denton County; that he knew Appellant; that he had met with Appellant three times since June 1997; and he identified Appellant in court. Sanchez further testified that Appellant reported to him claiming to be the person placed on probation in Trial Court Cases Nos. F-95-0477-C, 20-159-C and 19-826-C. Point 1 is overruled in each case. Point 2: "The trial court erred and abused its discretion in revoking the community supervision of Appellant based on improper admission of evidence by the State after the State had closed all testimony." As noted, Appellant's motion to dismiss, on the grounds there was no evidence or insufficient evidence of any conviction, was made after the State had rested. After Appellant made his motion to dismiss, the court allowed the State to reopen and stated: "I will take judicial notice of the entire contents of the court's file in Nos. 20-159-6, 19,826-C and F-95-0477-C, after which the State again rested. Appellant asserts the trial court erred and abused its discretion in allowing the State to reopen its case and did not remain impartial, but rather assisted the State in its case. Appellant further asserts the trial court left the bench and made the prosecution and the bench one and the same by its actions. Appellant now asserts this court should reverse for an abuse of discretion and violation of fundamental due process as guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and their counterparts under the Texas Constitution. The trial court may allow additional evidence to be introduced at any time prior to the conclusion of argument if the testimony appears to be necessary in the due administration of justice. Tex. Code Criminal Proc. art. 36.02. The trial court's decision to do so is reviewable on appeal by the abuse of discretion standard. Sims v. State, 833 S.W.2d 281 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd); Choice v.v State, 883 S.W.2d 325, 327 (Tex. App.—Tyler 1994, no pet.). The trial judge may permit the State to reopen its case even if the defendant has made a motion for an instructed verdict. Boatwright v. State, 472 S.W.2d 765 (Tex. Crim. App. 19791). And such is proper in a probation revocation hearing. Cantu v. State, 662 S.W.2d 455 (Tex. App.—Corpus Christi 1983, no pet.). Moreover, this court can take judicial notice of the judgment placing Appellant on supervision as long as it is in the record. Cobb v. Sate, 851 S.W.2d 871 (Tex. Crim. App. 1993). The Cobb court held that the State is not required to introduce such judgments into the record and, because the orders of probation are a part of the appellate record, that the Cobb court judicially noticed the order of probation and presumed the trial court did so as well. Thus it was not necessary for the trial court to permit the State to reopen in order for the trial court to take judicial notice of the orders of probation. It is true that the law requires that judges be impartial and that they not take sides in assisting either side in our adversary system of justice. Cannon 2A of the Code of Judicial Conduct provides that “a judge . . . should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” The foregoing is applicable to probation revocation hearings. And since the probationer is entitled to due process at a hearing to revoke, the trial court should not assist the State in the presentation of its case. Campbell v. State, 556 S.W.2d 918 (Tex. Crim. App. 1970). In reviewing this record, however, we do not find that Appellant was in any way denied due process of law by the conduct of the trial court. In summary, the trial court was authorized to permit the State to reopen after it had rested; was authorized to take judicial notice of the judgments in Appellant’s cases, with or without reopening the case; and finally we do not find that Appellant was denied due process rights by any action of the trial court. Point 2 is overruled in each case Point 3: “The trial court erred and abused its discretion in revoking the community supervision of Appellant based on insufficient evidence of the violation of law by commission of the offense Driving While Intoxicated.” The only issue on appeal from the revocation of community supervision is whether the trial court abused its discretion. Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979). The State must prove its allegations by a preponderance of the evidence. Shaw v. State, 622 S.W.2d 862, 863 (Tex. Crim. App. 1981). One sufficient ground for revoking supervision will support the trial court’s order revoking community supervision. Moore v. State, 605 S.W.2d 926 (Tex. Crim. App. 1980). In a revocation proceeding the judge is the trier of fact. Storey v. State, 614 S.W.2d 162, 164 (Tex. Crim. App. 1981). The court may accept or reject any or all testimony of any witness. McGuire v. State, 537 S.W.2d 26, 28 (Tex. Crim. App. 1976). Officer Grant was on duty on January 29, 1997. About 10:47 p.m. he saw a black pickup stopped at Hillside Drive and Highway 720 in the town of Little Elm. There was no traffic on the road. The pickup started up and Grant saw it cross the center line three times. Grant activated his lights and stopped the pickup. He identified Appellant as the driver. Grant talked with him, noticed his words were slurred and his breath smelled of alcoholic beverage. He asked Appellant if he had been drinking and Appellant said he had half a beer. Grant administered field sobriety tests including a walk and turn test. Appellant was unable to perform the test. Grant testified that, based on his training, experience and observations, he believed Appellant was intoxicated. Grant then took Appellant to the county jail where Appellant refused to take a breathalyzer test. Witness Yaw arrived at the scene. She testified she smelled alcohol on Appellant’s breath. Appellant denied drinking an alcoholic beverage; testified he did not do well on the walk and turn test because he had bad feet and diabetes. Other witnesses testified they had been with Appellant earlier in the evening and that he did not drink an alcoholic beverage. The trial court was authorized to find Appellant guilty of DWI. Point 3 is overruled in each case. Point 4: “The trial court erred and abused its discretion in revoking the community supervision of appellant based on admission of unqualified expert testimony.” Officer Grant testified that he based his opinion that Appellant was intoxicated in part on the Horizontal Gaze Nystagmus (HGN) test that he administered. He admitted that he was not certified by the State to administer this test. The trial judge stated on the record that he would disregard any testimony concerning the Horizontal Gaze Nystagmus test and the testimony related thereto. The matter was rendered harmless, if error, by the trial court’s declaration. Point 4 is overruled in each case. Point 5: “The trial court erred and abused its discretion in revoking the community supervision of Appellant based on insufficient evidence of Appellant’s failure to report while under community supervision.” Under our view of the case, this point is moot in each case. The judgment is affirmed in all three cases. FRANK G. McDONALD Chief Justice (Retired) Before Chief Justice Davis. Justice Cummings and Chief Justice McDonald (Retired) Affirmed Opinion delivered and filed August 26, 1998 Do not publish