because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Is that relevent??

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NUMBER 13-02-00130-CV



COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS



CORPUS CHRISTI B EDINBURG



SISTER CARMEN DE LLANO, JOSEPHINE JOHNSON,

INDEPENDENT EXECUTRIX OF THE ESTATE OF

MANUEL DE LLANO, BLANCA A. DE LLANO DE AGUILAR,

MARTHA DE LLANO DE OLIVERA, FERNANDO

DE LLANO, JR., AS PERSONAL REPRESENTATIVE

OF THE ESTATE OF FERNANDO DE LLANO, AND

JOSEFINA DE LLANO, Appellants,



v.



PABLO SUESS AND FROST NATIONAL BANK,

TRUSTEES OF THE JOHN G. KENEDY, JR.

CHARITABLE TRUST, Appellees.



On appeal from the 206th District Court of Hidalgo County, Texas.



MEMORANDUM OPINION



Before Justices Hinojosa, Yañez, and Garza

Memorandum Opinion by Justice Hinojosa



Appellants, Sister Carmen De Llano, Josephine Johnson, independent executrix of the estate of Manuel De Llano, Blanca De Llano De Aguilar, Martha De Llano De Olivera, Fernando De Llano, Jr., as personal representative of the estate of Fernando De Llano, and Josefina De Llano, filed suit against appellees, Pablo Suess and Frost National Bank, Trustees of the John G. Kenedy, Jr. Charitable Trust, for the recovery of real property, asserting various tort claims. A jury returned a verdict in favor of appellees, finding against appellants on all liability theories and in favor of appellees= defenses. In six issues, appellants (1) question the finality of the judgment and the jurisdiction of the trial court, (2) contend the appearance of the Attorney General of the State of Texas violated the Texas and United States Constitutions, (3) contend appellees= appeal to race during closing argument was incurable, (4) contend the trial court erred in failing to disqualify attorney J. A. ATony@ Canales, and (5) contend the jury=s finding on adverse possession requires this Court to render judgment for appellants. We affirm.

A. Background

As this is a memorandum opinion and because all issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and the facts here except as necessary to advise the parties of this Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

B. Finality of Judgment

In their sixth issue, appellants contend the trial court=s judgment is not final because: (1) it adjudicated the claims of Athe Unknown Heirs of Carmen Morell Kenedy;@ (2) it failed to adjudicate appellees= counterclaim for attorneys fees; and (3) it failed to identify, with sufficient particularity, the real property interests involved.[1]

Appellants assert the judgment improperly adjudicates the claims of the unknown heirs of Carmen Morell Kenedy. However, even though a trial court grants more relief than it ought to grant, the judgment is nevertheless final. See Jacobs v. Satterwhite, 65 S.W.2d 653, 655 (Tex. 2001). An order that expressly disposes of the entire case is not interlocutory merely because the record fails to show an adequate motion or other legal basis for the disposition. Lehmann v. Har‑Con Corp., 39 S.W.3d 191, 206 (Tex. 2001). Language that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties. Id. at 205.

Appellants further assert that because appellees requested an award of attorneys fees as a counterclaim, and no language in the judgment specifically states that they take nothing by their counterclaims, the judgment is not final. However, when a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, it will be presumed for appeal purposes that the court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties. Moritz v. Preiss, 121 S.W.3d 715, 719 (Tex. 2003). Furthermore, claims raised by pleadings not expressly disposed of by a judgment are denied by implication. Rackley v. Fowlkes, 89 Tex. 613, 36 S.W. 77, 78 (1896).

The judgment specifically says it is a AFinal Judgment,@ acknowledges appellees as counter-plaintiffs, and awards appellees the substantive relief requested in their counterclaims. Appellees admit that they did not produce any evidence in support of their claim for attorneys fees. Accordingly, we conclude that appellees= claim for attorneys fees was implicitly denied.

Finally, appellants argue that the judgment fails to identify with sufficient particularity the real property interests involved. However, because appellants fail to cite to any authority for their contention, this argument is waived. See Tex. R. App. P. 38.1(h). Appellants= sixth issue is overruled.

C. Participation of Attorney General

In their first issue, appellants contend the trial court violated the Texas and United States Constitutions by allowing the Attorney General of the State of Texas to appear before the jury on behalf of appellees. They assert that the attorney general=s participation in this suit constitutes excessive entanglement of the State and religious organizations. We note that appellants did not raise this contention before the trial court.

The attorney general intervened in this matter pursuant to section 123.002 of the property code, which provides:

For and on behalf of the interest of the general public of this state in charitable trusts, the attorney general is a proper party and may intervene in a proceeding involving a charitable trust. The attorney general may join and enter into a compromise, settlement agreement, contract, or judgment relating to a proceeding involving a charitable trust.



Tex. Prop. Code Ann. '123.002 (Vernon 1995).



Immediately before voir dire, when asked if there were any other Ahousekeeping matters@ to address, without challenging the constitutionality of the statutory basis for the attorney general=s intervention, counsel for appellants expressed concern regarding the attorney general=s participation at trial. When asked by the trial court if appellants were making a motion, appellants= counsel responded:

We are asking the Court to either limit her participation or at least set some ground rules, because if she is allowed unfettered access to this litigation, she will be essentially acting in violation of the constitutional restrictions that are set out in the Texas Constitution that prohibit the interference or the assistance of the state to any particular religious group. And we believe that=s improper and illegal.



When asked a second time by the trial court what relief appellants were requesting, counsel responded:

. . . . We want the Court to set some very specific ground rules that will limit the presentation to the jury of any inference or possibility in their minds that they will perceive the State as lending its weight and prestige to a secular religious organization, which we believe is improper under the constitution. We need some rules, some relief that will protect the jury from seeing the attorney general or hearing the attorney general arguing or representing religious entities.



The trial court then set forth the requested parameters and asked appellants if there was anything else needed from the plaintiff=s perspective. Counsel for appellants stated, AThat=s it, your Honor.@

The record reflects that appellants did not challenge the constitutionality of section 123.002 of the property code. Appellants only asked the trial court to set parameters for the attorney general=s participation at trial, and the trial court granted appellants= request. The trial court then inquired whether there was anything else, and appellants stated they had no further requests.

Accordingly, we conclude that a constitutional challenge was not properly raised in the trial court, and a constitutional challenge not raised properly in the trial court is waived on appeal. See Wood v. Wood, 320 S.W.2d 807, 813 (Tex. 1959); Walker v. Employees Ret. Sys., 753 S.W.2d 796, 798 (Tex. App.BAustin 1988, writ denied). Appellants= first issue is overruled.

D. Improper Jury Argument

In their second issue, appellants contend that appellees= appeal to race and national origin during closing argument constituted improper jury argument that was incurable. Specifically, appellants challenge the reference to Carmen Morell Kenedy as a Agood old Mexican gal@ and Alittle Mexicanita@ and a reference to Ahalf-Mexicans.@

Incurable reversible error occurs when any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity. Tex. Employers Ins. Ass=n v. Guerrero, 800 S.W.2d 859, 866 (Tex. App.BSan Antonio 1990, writ denied); see Mission Res., Inc. v. Garza Energry Trust, 2005 Tex. App. LEXIS 3443, at *45-46 (Tex. App.BCorpus Christi May 5, 2005, no pet. h.) (Acourtroom strategies appealing to racial or ethnic biases are highly improper and unfairly prejudicial@). To prove incurable jury argument, the complaining party must show (1) improper argument was made; (2) that was not invited or provoked; (3) that was properly preserved at trial, such as by objection, motion to instruct or motion for mistrial; (4) error was not curable by instruction, prompt withdrawal of statement, or reprimand by judge; and (5) argument, by nature, degree, and extent, constituted reversible error based on examination of the entire record to determine the argument's probable effect on a material finding. See Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839‑40 (Tex. 1979); Tex. Employers Ins. Ass'n v. Puckett, 822 S.W.2d 133, 135 (Tex. App.BHouston [1st Dist.] 1991, writ denied).

Appellees argue that none of the statements made during closing argument constitute incurable jury argument and, moreover, any statements made by appellees were provoked by appellants= own appeal to racial prejudice that began during voir dire and continued throughout the trial. We agree.

During voir dire, appellants questioned jurors about Tejano history and referred to Dr. Andres Tijerina, a Tejano historian, who would testify at trial. During opening argument, appellants referred to Carmen as a poor Mexican girl who had her property stolen. During trial, appellants called Dr. Tijerina, who testified at length about the adverse treatment of people of Mexican descent by people of Anglo heritage and the unfair acquisition of land by Anglos from people of Mexican descent. Appellants also presented testimony regarding the use of the Texas Rangers by Captain King to murder people of Mexican descent, steal their land, and use lawyers to fix the documents. We conclude that such comments and evidence invited or provoked the challenged argument. Appellees= argument was nothing more than an appeal to the jury to disregard ethnicity, an issue first raised by appellants in this case.[2] Appellants second issue is overruled.



E. Disqualification of Defense Counsel

In their third issue, appellants contend the trial court erred by failing to disqualify attorney J. A. ATony@ Canales. Because appellants fail to (1) include any record references, (2) set forth the law regarding the disqualification of attorneys, and (3) provide any substantive analysis regarding this issue, we conclude this issue is waived. See Tex. R. App. P. 38.1(h) (AThe brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@). Appellants= third issue is overruled.

F. Jurisdiction

Despite their success in opposing appellees= plea to the jurisdiction, in their fourth issue, appellants request A[o]ut of an abundance of caution and to finally settle the parties= jurisdictional dispute . . . a ruling from this Court stating which court properly may exercise subject matter jurisdiction over this case. . . .@

In a plea to the jurisdiction, appellees argued that the trial court lacked jurisdiction because appellants= claims constituted an impermissible collateral attack on judgments issued by courts of competent jurisdiction. However, we conclude that appellants= petition was not an attack on these judgments. Appellants= petition did not contest the validity of Carmen=s or any other individual=s will, nor did it seek to set aside any orders. Rather, it sought to clarify what interest Carmen held in the capital stock of Kenedy Pasture Company. The admission of Carmen=s will to probate is irrelevant to appellants= right to recovery or to the issues presented by their petition.

Moreover, since appellants= petition did not seek to avoid the effect of the court=s order, the action is not a collateral attack. See Solomon, Lambert, Roth & Assoc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.BHouston [1st Dist.] 1995, no writ) (collateral attack is one that attempts to avoid effect of judgment in proceeding brought for some other purpose and seeks to show original judgment is void). Appellants= fourth issue is overruled.

G. Adverse Possession

In their fifth issue, appellants contend the jury=s favorable finding on appellees= affirmative defense of adverse possession establishes that appellants had a Apresent possessory interest in real property.@ Therefore, appellants argue, this Court should render judgment for appellants for no less than one-fourth of all property interests and proceeds claimed by appellees. Appellants make this argument even though the jury found unanimously in favor of appellees, answering Ano@ to all liability questions.

An affirmative defense is by its nature "one of confession and avoidance" which seeks to establish an independent reason why the plaintiff should not prevail. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex. 1996). However, establishing an affirmative defense in no way relieves the plaintiff from proving the elements of his claim. If we were to accept appellants= argument that a finding of an element of an affirmative defense avoiding liability implicitly establishes the liability the defense seeks to avoid, we believe it would nullify the function of affirmative defenses. Accordingly, appellants= fifth issue is overruled.

The judgment of the trial court is affirmed.



FEDERICO G. HINOJOSA

Justice



Memorandum Opinion delivered and filed this

the 16th day of June, 2005.

[1] At oral argument, appellants argued, for the first time, that the judgment does not adjudicate the rights of the Attorney General of the State of Texas. This argument was not briefed, and a new issue may not be presented for the first time at oral argument. See Tex. R. App. P. 38.1(e), 39.2; see also Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990); In the Interest of C.A.K., 155 S.W.3d 554, 562 n.5 (Tex. App.BSan Antonio 2004, pet. filed).



[2] During closing argument, appellees= counsel, J. A. ATony@ Canales, argued:



This is a classic lawsuit abuse case, let me tell you right now. I am telling you. It is B they are doing nothing else but trying to squeeze money out of us. Why? Because 105 years ago one of their relatives, one of their relatives was an heir? Because they came over from Mexico, all of a sudden, because the politics of South Texas has changed and we now have a majority of Hispanic jurors? Do you know, just because you happen to be of Mexican descent doesn=t mean you are going to rule for somebody just for that. We are Americans; right? You told me B you promised me when we started this case, you are going to call it the way it is. I said in the beginning, this is not a case about a bunch of Rangers coming and killing a bunch of Mexicans and taking their property away. Remember I said that? Is this what this case is about?

No it is about how do you know what happened 105 years ago? Mommy told you vendido?

Not to do this.........your avarice is quite well known and will be your legacy far longer than 105 years.

Where was his Slick Attorney?

Judge sentences tagger to 18 months in jail
Man was part of group that hit Southside

By Mary Ann Cavazos (Contact)
Originally published 05:23 p.m., September 4, 2009
Updated 11:32 p.m., September 4, 2009







a punk that tagged rich people not poor Sales~ That is why exploiting a child to an adult violant institution 4 business contributions?"
2 Comments - Show Original Post Collapse comments

Blogger dannoynted1 said...

So you give him a fine that he cant pay and you expect business to be good?
But I guess that will lead him (Hernandez) and Sales to the path of righteousness?

Paul James Rick Perry Sale your sole to the highest bitter.

9:12 PM
Delete

This is "We're dealing with people who are just out and out cheating and lying to the state of Texas, stealing money from the taxpayers of the state

....and you just now noticed? too busy playing with Insurance 20 million scam for your bud rick James Perry to redo his "uninsured" Mansion?

Too busy to notice John Hubert and his malicious prosecution of innocent Kleberg Kenedy County and his latest election fraud where he lost then miraculously won the next morning?

WHined to Texas Governor Rick perry till Hubert got his JOB created for him by The governor for what? What will Perry get in return? Hubert is a malicious prosecutor, a liar, falsified documents, hid a material witness that could have exonerated me, yet you let the Mary Cano/Rick Perry/john Hubert's work for the State of Texas when the are the biggest frauds in South Texas.

Who in Texas gets a JOB in this economy created for them by the Rick Perry?

John Hubert ~ the longer the fraud goes on the more you look involved and if nothing is done you are obviously not that good.

LeeAnn Haley
Corpus Christi, Texas


Ambulance firms raided in Medicaid fraud inquiry

Companies in Dallas, 11 other cities searched in billing investigation

12:00 AM CST on Thursday, December 7, 2006

By TANYA EISERER / The Dallas Morning News

Fraud investigators served 19 search warrants in Dallas and 11 other cities in a wide-ranging inquiry into allegations of fraudulent billing practices by ambulance companies, the Texas attorney general said Wednesday.

"This is a statewide fleecing of millions of dollars from Texas taxpayers of the Medicaid system," said Attorney General Greg Abbott. "There were billings that were either for more than the amount of services provided, or even billings for services that were not provided. [The] bottom line is we have a statewide operation cracking down on Medicaid fraud."

The investigation centers on ambulance companies suspected of submitting false claims to Medicare, Medicaid, private insurers and the Federal Employees Health Benefits Plan, said Jerry Strickland, a spokesman for the attorney general's office.

The inquiry, Operation Easy Rider, began at least six months ago after the Texas Health and Human Services Commission reported discrepancies in billing practices, Mr. Strickland said. The agency oversees the disbursement of Medicaid funds.

"The fraud that we're dealing with really doesn't have anything to do with any kind of complexities that may exist in the system," Mr. Abbott said. "We're dealing with people who are just out and out cheating and lying to the state of Texas, stealing money from the taxpayers of the state of Texas.

"They thought, gosh, that [they] could take money by overcharging the state of Texas, overcharging the Medicaid system, maybe no one would see."

Officials declined to release further details, citing the continuing investigation.

The attorney general's Medicaid Fraud Control Unit was involved in the operation, along with federal agents from the inspector general's office at the U.S. Department of Health and Human Services, the FBI, the inspector general's office for the U.S. Office of Personnel Management, the U.S. Postal Inspection Service and the U.S. Department of Homeland Security.

North Texas ambulance companies that were searched included Carefirst EMS on Centre Street and Judd Court in Dallas; Greater Dallas EMS on South Hall Street in Dallas; All State Ambulance Service in Rowlett; Advicare Ambulance Transfer Service in DeSoto; and Visions EMS in Cedar Hill.

Officials with the ambulance companies either declined to comment or could not be reached for comment.

Mr. Strickland also confirmed that law officers arrested the owners of an ambulance service in McAllen, Texas, as part of the raids.

Chris Heinbaugh of WFAA-TV (Channel 8) contributed to this report.

E-mail teiserer@dallasnews.com

This Prosecutor is Malicious and Does not seek Justice

Homer, with all due respect this, article does not make sense. You keep saying that idiot hubert talks about the jury finding it difficult to convict yet he elected the Judge to assess punishment?
Why would he do that? it seems that hubert gets off on taking idiotic cases to trial when he really should take himself for fabricating evidence and charging this man falsely. How could he burglarize when it is clear from the article the authorities were there because of the interfering with an emergency call.
I don't know.
I do know Hubert is a liar, Malicious Prosecutor and does not seek justice as the JOB he holds is required. What a waste, but he did help his friend Chaney out though.

Schools demeanor are based upon credibility of its teaching and students

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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. 57,060-01 EX PARTE DANIELLE SIMPSON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM ANDERSON COUNTY Cochran, J., delivered the order for a unanimous court. ORDER Applicant presents thirty-seven allegations, including a claim of mental retardation, in his original application for habeas corpus relief in this death-penalty capital-murder case. The trial judge entered findings of fact and conclusions of law and recommended that relief be denied. We have reviewed the record, and we adopt the trial judge's findings and conclusions. Therefore, we deny relief. We also dismiss applicant's "Motion to Consider Additional Evidence of Mental Retardation" because that supplemental material was improperly and untimely filed with this Court instead of the convicting court. Article 11.071 (1) does not authorize piecemeal submission of evidence, nor does it permit the original filing of evidence with this Court rather than the convicting court. Because the trial judge's written findings were so thorough and complete, we need discuss only applicant's mental- retardation claim and the motions applicant filed directly in this Court. I. Applicant was indicted for the robbery and murder of Geraldine Davidson on January 26, 2000. In November 2002, a jury convicted him of that capital murder and, based upon the jury's answers to the punishment special issues, the trial judge sentenced applicant to death. The evidence at trial showed that the 20-year-old applicant, a member of the Southside Cryps gang, planned and executed a burglary at the Palestine, Texas, home of Mrs. Davidson, an 84-year-old widow and retired teacher. He had burglarized Mrs. Davidson's home before, but this time he enlisted the aid of his sixteen-year-old wife and thirteen-year-old cousin. Mrs. Davidson returned home during the burglary, so applicant and his cohorts tied her up with duct tape, put her into the trunk of her car, and then spent the afternoon driving around in her car buying and smoking formaldehyde-laced marijuana cigars. Later, they picked up applicant's younger brother and stopped at a Jack-in-the-Box, where applicant sent the others inside to buy food while he waited, outside surveillance camera range, in Mrs. Davidson's car. After the foursome ate and smoked more marijuana, applicant drove the car to the Neches River. He and his younger brother pulled Mrs. Davidson out of the trunk, tied her legs to a cinder block, beat her with her gardening shovel, kicked her in the head, and finally threw her in the river to drown. After dropping off his three cohorts, applicant "rented" Mrs. Davidson's car to friends in return for two rocks of crack cocaine. His friends were later pulled over in Mrs. Davidson's car, and they told the police about applicant "renting" them the stolen car. Police came to applicant's house to arrest him but he fled. The officers arrested applicant later that day, after he and his brother were found hiding in a neighborhood "dope house." Applicant was wearing Mrs. Davidson's gold wedding ring when he was booked into jail. We affirmed applicant's conviction and sentence on direct appeal. (2) Meanwhile, on December 3, 2002, applicant filed his original writ of habeas corpus with the presiding judge of the convicting court. (3) Accompanying his writ application were two volumes of material, including various affidavits, treatise excerpts in support of his mental-retardation claim, documents from the underlying trial, and published law review and behavioral science articles. The State filed its response five months later. On June 23, 2003, after consulting with the attorneys, the trial judge entered an order that found that there were no factual issues that could not be resolved by using the trial record and the written writ materials. Thus he decided that a live evidentiary hearing was unnecessary. He ordered both the State and applicant to file proposed findings of fact and conclusions of law. On July 14, 2003, applicant filed an additional affidavit by Dr. Windel Dickerson who, based on a personal examination of applicant and his review of various other materials, concluded that applicant was mildly mentally retarded. Two weeks later the trial judge signed an order permitting both the State and applicant to acquire and file additional educational records for applicant. On that same day, the trial judge denied applicant's proposed findings of fact and conclusions of law and signed the State's proposed findings. On August 7, 2003, applicant's special-education records were filed with the convicting court, and, one month later, applicant filed a videotaped statement made by Dr. Dickerson. (4) All of these materials were then forwarded to this Court on September 10, 2003. Applicant has continued to file additional motions in this Court, culminating, on May 19, 2004, with a "Motion to Consider Additional Evidence of Mental Retardation." Attached to this motion is a letter from Dr. Dickerson and an accompanying psychological-services test report, again setting out his opinion that applicant is mentally retarded. II. Applicant contends that he is mentally retarded and thus, under Atkins v. Virginia, (5) he is exempt from execution. Here, as in Hall v. State, (6) the convicting court did not hold a live evidentiary hearing on applicant's post-conviction habeas corpus allegation of mental retardation. But, also as in Hall, the issue of mental retardation was fully litigated during the punishment phase of applicant's original capital-murder trial. Although applicant's trial took place before the Supreme Court decided Atkins, his able trial counsel presciently predicted the outcome of that case and presented extensive mental-retardation evidence as calling for a "Yes" answer to the mitigation special issue submitted to the jury. Applicant's habeas writ relies almost exclusively upon that extensive testimony. Although it is advisable to have an evidentiary hearing to determine mental-retardation claims raised for the first time in post-Atkins habeas applications, (7) it is not necessary where, as here, the habeas applicant relies primarily upon trial testimony. In this case, both sides had an opportunity to fully develop the pertinent facts at trial, and the habeas judge had an opportunity to assess the credibility and demeanor of the witnesses when he presided over the trial. Although the discrete fact of mental retardation was not an ultimate issue at the capital-murder trial, the punishment phase testimony fully developed that contested fact. (8) During the punishment phase of applicant's trial, the defense called applicant's father, mother, and two sisters. Significantly, none of these witnesses-the persons who knew him best during his youth-testified that they had thought, during his formative years, that applicant was mentally retarded. (9) Applicant's father remembered that applicant had twice suffered head injuries as a child, but he did not know whether he suffered any brain injury as a result. He testified that applicant had had school truancy problems and usually got into trouble alone. While applicant's father stated that applicant had a history of seizures, his sister said that she did not believe that applicant had ever suffered seizures. Applicant's elder sister, a TDCJ-CID prison guard, said that there was very little good that she could say about him other than the fact that he attended church. Applicant's mother testified that applicant failed kindergarten and third grade, that he was sometimes placed in special-education classes, and that he was "very slow and had a learning disability." He missed a lot of school because he had headaches, felt bad about himself, and because she could not drive him to school all the time, as she had to work two jobs. She made him move out of her home about a year before the murder because he had sexually assaulted her adopted daughter. The defense also called a psychologist, a pediatric neurologist, and a psychiatrist to testify to applicant's mental condition and abilities. Dr. Andrews, the psychologist, testified that applicant has borderline intellectual functioning. He stated that applicant's academic knowledge is "low" and that he reads at an early high-school level, and has a fifth-grade spelling ability and sixth-grade math ability. When applicant was 14 years old, his full-scale IQ score on the Wechsler Intelligence Scale for Children was 71, and he scored a 72 on the TONI. (10) The next year he received a 78 full-scale IQ score on the Wechsler and an 86 on the TONI-2. No one discussed the significance of this improvement in IQ scores. Applicant dropped out of school in the ninth grade. His teachers consistently noted his high truancy rate as an educational impediment. Dr. Andrews stated that applicant has adaptive deficits and a low ability to complete planning and organization tests. He did not believe that applicant was faking mental deficiencies, but he did think that applicant is "a chronic liar" and that his manipulative conduct in jail demonstrated adaptive behavior. (11) Dr. Andrews concluded that applicant is in the "borderline mentally retarded range" and would not resolve complex situations very well. (12) Dr. Andrews also stated that applicant has an anti-social personality. Dr. Wise, a pediatric neurologist, reviewed applicant's EEG (electroencephalogram) and testified that applicant has an abnormal neurological status, a generalized slowing of brain function. He stated that the brain changes as a person ages and is influenced by such things as diet, smoking, drug use, and trauma. He had not personally examined applicant. Dr. Barry Mills, the chief psychiatrist for the Maximum Security Behavior Management Program at Vernon State Hospital, examined applicant and concluded that applicant has two subdural hematomas (blood clots on both sides of his brain) which have caused brain damage. As a result, applicant has poor judgment, an inability to learn from his mistakes or to change his actions in response to complicated situations, and an inability to control frustration or manage himself. Dr. Mills acknowledged that there is nothing in applicant's medical records to confirm any head injury. He did agree that smoking embalming fluid may cause EEG changes. Dr. Mills stated that applicant was not malingering during his examination but that he had been "manipulative and dishonest throughout a large part of his life." He testified that "I did not say [applicant] was mentally retarded. I said he was borderline mentally retarded, essentially functioning at that level, but his I.Q. score was not mentally retarded." He agreed that applicant had never been diagnosed by anyone as "borderline mentally retarded" until after he was charged with capital murder, and he stated that applicant's TONI IQ of 86 was "a more accurate measure of [applicant's] intelligence." In rebuttal, the State called Dr. David Self, a psychiatrist, who had also examined applicant. In his opinion, applicant was malingering and faking his psychiatric symptoms. He stated that, during his interview, applicant spontaneously launched into a narrative of various mental complaints, including visual and auditory hallucinations, depression, an attempted suicide, and a history of head trauma. In Dr. Self's opinion, applicant's intellectual functioning is in the borderline-to-low average range and he does not have significant adaptive deficits. Dr. Self described applicant's letter-writing campaign from jail to various friends and relatives asking them to smuggle contraband to him as adaptive, albeit anti-social, behavior. In his opinion applicant's lack of empathy, his callous disregard for others, and his prior conduct, including his sexual assault of his adopted sister, his shooting at his ex-girlfriend, and his assaults on his wife and children, were traits consistent with a psychopathy. Dr. Self stated that applicant's MRI showed evidence of a prior "head trauma," but no evidence of any brain damage. He concluded that applicant has an anti-social personality disorder, but is not mentally retarded. Additional evidence was timely submitted for the convicting court's consideration on the writ. This evidence included most of applicant's school records, his two written statements to police after his arrest for this murder, twenty inmate-request forms that applicant submitted while he was in jail awaiting trial, letters that he wrote to family and friends from jail, a letter that he had written from jail to a venireperson whose name and address he had memorized in the courtroom from his attorney's jury list, and applicant's medical and mental-health records from TDCJ-CID. Applicant's school records showed that, in almost every year, he missed a large number of school days, but nonetheless he achieved passing grades in almost all classes. Seventeen "Notices of Concern" were sent to his family during one school year; they noted that applicant failed to complete assignments, failed to make up missed tests, and that he exhibited "excessive absences" and "lack of effort." Applicant's jail letters are clear, coherent, and clever. In one, he explains to his cousin how to smuggle photographs of his three girlfriends into the jail by taping them to extra pages in an incoming letter. In letters to his brother, applicant writes jocularly in gang slang. In letters to his mother, on the other hand, applicant writes in standard English, without slang. He uses a polite tone as he instructs her on how to smuggle tobacco and rolling papers into the jail by putting them in envelopes labeled "Legal Mail," and having them delivered by his defense investigator. He tells his mother that he is working on getting joint custody of his son for her and his wife's mother, and asks her to call the defense investigator and have him bring applicant a small tape recorder so he can record his wife's custody concessions on the phone. Applicant's TDCJ-CID medical and mental-health records show that applicant achieved an IQ result of 84 on a TONI test when he arrived on death row which, according to the records, "precluded other need for I.Q. testing." The trial judge entered findings of fact, based on his review of the trial and writ evidence, that applicant failed to present a cognizable claim of mental retardation because he failed to show facts that prove he is mentally retarded. The trial judge found that Dr. Dickerson's affidavit concluding that applicant is mentally retarded was untimely submitted and therefore should not be considered. In the alternative, he found it unpersuasive. (13) Although the trial court did not have the benefit of this Court's opinion in Ex parte Briseno, (14) it followed the methodology and legal standards set out in that opinion. Applicant claims that his execution would violate the Supreme Court's rulings in Atkins and Ring v. Arizona (15) unless a jury has found, beyond a reasonable doubt, that he is not mentally retarded, brain damaged, or otherwise lacking in mental culpability. This is a claim that we rejected in Briseno, (16) and it is a claim that the habeas judge in this case rejected as well. In sum, although there was some evidence in the trial and writ record suggesting the possibility of mild mental retardation, there was also ample evidence in the record supporting the trial court's finding that applicant is not mentally retarded. We conclude that the trial court did not abuse its discretion in reaching this factual conclusion. Therefore, we deny applicant relief on his mental retardation claim. III. We also dismiss applicant's recently filed "Motion to Consider Additional Evidence of Mental Retardation" because we do not have statutory authority to consider additional evidence. Applicant's writ application, the State's response, all associated exhibits, and the trial court's written findings of fact and conclusions of law were received by this Court on September 10, 2003. Article 11.071, § 9(f) explicitly states that once all of the appropriate materials have been timely submitted to the trial court and the trial court has made its written findings of fact and conclusions of law, the clerk of the convicting court shall immediately transmit these materials to this Court. Then, under article 11.071, § 11, this Court shall "expeditiously review" the habeas application. We may (but need not) set the case for oral argument and we may (but need not) request further briefing. (17) "After reviewing the record" as it was developed in the trial court, this Court "shall enter its judgment remanding the applicant to custody or ordering the applicant's release, as the law and facts may justify." (18) In the present case, applicant asks us to act outside of our statutory authority. On November 24, 2003, more than a month after the clerk of the trial court transmitted all of the appropriate writ materials to this Court, applicant filed a motion with this Court entitled "Motion to Declare Simpson Mentally Retarded under Atkins or Alternatively, Motion to Remand for Evidentiary Hearing to Determine Mental Retardation." This motion alleged that applicant's counsel was "trying to set up an appointment with Dr. Dickerson to re-examine Mr. Simpson." (19) He requested that this Court stay further action until Dr. Dickerson could file a new report directly with this Court. On February 9, 2004, this Court received applicant's "Supplemental Reply to State's Response to Petitioner's Mental Retardation Summary." This document stated that Dr. Dickerson had completed his second examination of applicant and a preliminary report was attached. Although the document was filed with this Court, applicant asked that the habeas judge read the attached preliminary report and make supplemental findings. We do not know whether the habeas judge received and read this document, but he did not file any supplemental findings, presumably because he did not have statutory authority to do so. Finally, on May 19, 2004, applicant filed his Motion to Consider Additional Evidence of Mental Retardation. He states that this motion is a supplement to the motion he filed with this Court on November 24, 2003. According to that motion and Dr. Dickerson's attached report, the results of this second mental-status test were obtained under better conditions than those under which earlier tests were taken. Dr. Dickerson again opines that applicant is mildly mentally retarded and suffers from organic brain damage. There is no provision in article 11.071 that permits either the State or the habeas applicant to submit original evidence directly to this Court. Evidentiary affidavits, letters, transcripts, or other documents relating to a habeas claim should not be attached to motions or briefs, and they shall not, and will not, be considered by this Court. As we recently stated in another context: An appellate court may not consider factual assertions that are outside the record, and a party cannot circumvent this prohibition by submitting an affidavit for the first time on appeal. While the record may be supplemented under the appellate rules if something has been omitted, the supplementation rules cannot be used to create new evidence. Moreover, an appellate court's review of the record itself is generally limited to the evidence before the trial court at the time of the trial court's ruling. (20) In the ordinary case, if this Court were to consider evidentiary materials that were never submitted to, or considered by, the habeas court, the statutory purpose in having the convicting court gather the pertinent evidence and make the appropriate written findings of fact would be entirely frustrated. (21) The legislative framework of article 11.071 contemplates that the habeas judge is "Johnny-on-the-Spot." He is the collector of the evidence, the organizer of the materials, the decisionmaker as to what live testimony may be necessary, the factfinder who resolves disputed factual issues, the judge who applies the law to the facts, enters specific findings of fact and conclusions of law, and may make a specific recommendation to grant or deny relief. This Court then has the statutory duty to review the trial court's factual findings and legal conclusions to ensure that they are supported by the record and are in accordance with the law. (22) We are not the convicting trial court, and we are not the original factfinders. It is generally fruitless, if not counterproductive, to file original evidentiary materials relating to a habeas claim with this Court rather than the trial court. Although we might have the implicit authority to consider evidentiary materials filed directly with this Court, normally the jurisprudential considerations of efficiency, effectiveness, and comity to the habeas court counsel against such consideration. Because applicant has failed to offer proof of any compelling and extraordinary circumstances, we decline to consider the evidentiary materials that he has filed directly with this Court. Therefore, based upon our review and our adoption of the trial court's ninety-five pages of thorough and comprehensive findings of fact and conclusions of law which were submitted to this Court, we deny relief and dismiss applicant's motions filed directly in this Court. Cochran Filed: June 30, 2004. Publish 1. Tex. Code Crim. Proc. art. 11.071. 2. Simpson v. State, 119 S.W.3d 262 (Tex. Crim. App. 2003). 3. In his writ application, applicant candidly admits that his claims 20-37 are ones that have been previously rejected by this Court and "are therefore segregated at the end of the application and need not delay the Court." Nonetheless, we have carefully reviewed those claims, as well as all of his other non-mental retardation claims, and deny them based upon the trial court's findings of fact and conclusions of law. 4. Applicant submitted these materials to the trial court after that court had filed its findings of fact and conclusions of law and thus they are not discussed within the trial court's written findings. Nonetheless, we have independently reviewed the materials and conclude that they do not present any significant additional information that was not already before the trial court at the time he made his findings. 5. 536 U.S. 304 (2002). 6. ___ S.W.3d ___, ___ 2004 Tex.Crim.App. LEXIS 817 (Tex. Crim. App. 2004). 7. See Hall, __ S.W.3d at ___ (Price, J., concurring) (noting that "generally, for the review of a contested Atkins v. Virginia claim, the trial court will need to hold a live hearing and not base its decision solely on affidavits submitted by the parties"); id. at ___, (Johnson, J., dissenting) (noting that "[n]o trier of fact in this case has ever heard live testimony, subject to testing or cross-examination, on the specific issue of whether appellant is mentally retarded"); and id. at __ (Holcomb, J., dissenting) (noting that capital murder defendant "was not provided with a live evidentiary hearing ... [and] was not able to cross examine the affiants and the judge was not able to evaluate their credibility"). 8. See Hall, ___ S.W.3d at ___. In Hall, as in the present case, mental retardation was not an ultimate discrete fact litigated during the capital-murder punishment phase. We noted that: the parties introduced a significant amount of evidence regarding whether appellant was mentally retarded, mental retardation was not considered as a discrete issue by the trial judge or the jury. Although the parties certainly had incentive to litigate the question of appellant's intelligence, the litigation occurred as a question of degree: defense counsel could contend that appellant's low intelligence mitigated his moral culpability even if it did not amount to mental retardation, while the State could contend that, even if appellant were in the mental retardation range, he appreciated the consequences of his actions to a sufficient degree to deserve the death penalty. Had mental retardation been an ultimate issue, the parties may well have litigated the issue even more robustly than they did, as the issue would be a question of kind (which side of the mental divide appellant was on) rather than degree (how much did appellant appreciate the immorality of his conduct). Id. Nonetheless, during this writ proceeding, both parties could, and did, present whatever additional evidence they believed supported or negated the fact of mental retardation. It was only after consulting with the attorneys that the trial judge determined that a live evidentiary hearing was not necessary. 9. LaTonya, one of applicant's sisters, did testify that applicant was twice held back in elementary school and "had a bunch of problems." She testified that he missed a lot of school: "I'm not saying he was retarded, but I'm just saying that he was slow." Applicant's other sister, Tangela, testified that applicant was slow "as far as educational level," but not in other things. 10. Test of Non-Verbal Intelligence. 11. Dr. Andrews agreed that applicant's conduct in writing his mother-in-law from jail saying that he would serve his time for this capital murder in a mental hospital by telling "my lawyer and the judge that I need some help and I'm having problems and seeing things and hearing things" was goal-directed and showed a knowledge of the legal system and how to avoid the death penalty. Dr. Andrews stated that he did not believe applicant when applicant told him he had auditory and visual hallucinations. Applicant also told Dr. Andrews that he had been hospitalized for psychiatric problems, but Dr. Andrews could not find corroboration for this assertion. 12. Concerning the issue of "significant adaptive deficits," Dr. Andrews explained: Well, he was not able to function well in school. He was not able to function well in a work setting. These could be adaptive deficits. They might be problems with personality as well. I am not terming him mentally retarded but I do think he has some adaptive deficits. He noted that applicant had been diagnosed with a learning disability, not mental retardation, by school officials based upon his IQ test of 78 and TONI results of 86. 13. Specifically, he found that the prison testing conditions "likely affected" the test scores; the IQ score of 59 that Dr. Dickerson reached was completely at odds with all prior test scores; only portions of tests were given; separate tests for malingering were not given; Dr. Dickerson's assertion that applicant was treated as a mentally retarded person in school was contrary to all other evidence which indicated applicant had a learning disability and truancy problem; Dr. Dickerson appeared not to have reviewed all of the trial testimony; his "adaptive behavior" assessment did not describe behavior that is necessarily the result of mental retardation; Dr. Dickerson's assessment was based largely upon applicant's self-reporting, but applicant's veracity to mental-health experts had been called into serious question by other experts. Dr. Dickerson's videotaped interview, which was submitted to the trial court after the written findings were signed, does not differ substantively from his affidavit. 14. Ex parte Briseno, ___ S.W.3d ___ , 2004 Tex. Crim. App. LEXIS 199 (Tex. Crim. App. 2004). 15. 536 U.S. 584 (2002) (holding that "if a State makes an increase in a defendant's authorized punishment contingent on the finding of a fact, that fact-no matter how the State labels it-must be found by a jury beyond a reasonable doubt"). 16. Ex parte Briseno, ___ S.W.3d at __ (concluding that Ring is inapplicable to claims of mental retardation because "[a] lack of mental retardation is not an implied element of the crime of capital murder which the State is required to prove before it may impose a sentence above the maximum statutory punishment for that crime"). 17. Tex. Code Crim. Proc. art. 11.071, § 11. 18. Id. 19. Ostensibly, applicant's counsel wanted this re-examination because the trial judge discounted Dr. Dickerson's first untimely filed affidavit for the various reasons set out earlier. 20. Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004). Cf. Ex parte Harris, 825 S.W.2d 120 (Tex. Crim. App. 1991) (noting that Penry claims are limited to evidence contained in the record. "Evidence outside of the record is wholly irrelevant to such claim"); and Pye v. State, 71 Tex. Crim. 94, 101, 154 S.W. 222, 226 (1913) ("Should we consider these ex parte affidavits it would be necessary that we have the State served with a copy of them, and permit it to introduce evidence in rebuttal thereof; in fact, reopen the case and convert this court into a trial court on the merits of the case, and then substitute our finding on the facts as thus presented to us for that of the verdict of the jury. This we are not authorized to do. If such was the rule, very nearly every case that was appealed to this court would have to be tried de novo. This would be wholly impracticable, and it was never contemplated that this court should become a trial court"). 21. See Pye, 71 Tex. Crim. at 101, 154 S.W. at 226. 22. See Hall, ___ S.W.3d at ___ (stating, in context of mental retardation claim raised in habeas application, that "we afford almost total deference to the trial judge's findings of fact, especially when those findings of fact are based upon credibility and demeanor").

The District Attorney requested the Grand Jury to subpoena the District Judge.......

we conclude that the evidence is not so weak that it seems clearly wrong and manifestly unjust, and after considering the conflicting evidence, the f

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NUMBER 13-05-004-CR


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



JULIE ANNE FLOWERS A/K/A

JULIE ANNE RICHARDSON, Appellant,


v.


THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Kleberg County, Texas



MEMORANDUM OPINION ON REMAND


Before Chief Justice Valdez and Justices Rodriguez and Garza

Memorandum Opinion by Justice Rodriguez


Appellant, Julie Anne Flowers a/k/a Julie Anne Richardson, was charged with twenty-two counts of forgery, a state jail felony. See Tex. Penal Code Ann. § 32.21(b), (d) (Vernon Supp. 2005). The jury returned a verdict of not guilty on counts 1, 2, and 5 through 22, and a verdict of guilty on counts 3 and 4, which charged forgery of a check in the amount of $253.08 made payable to Aaron's Rental. (1) See id. § 32.21(a)(1)(A)(i), (B). The trial court sentenced Flowers to one year confinement in a state jail facility, probated for a period of three years. It also assessed a $500.00 fine plus court costs and restitution in the amount of $253.08. By two points of error, Flowers challenges the legal and factual sufficiency of the evidence to support the verdict.

In our original opinion and judgment, we held that the evidence was legally sufficient but factually insufficient under the standards of review in effect at the time. Flowers v. State, No. 13-05-004-CR, 2006 Tex. App. LEXIS 4360 (Tex. App.--Corpus Christi May 18, 2006), rev'd and judgm't vacated, In re Flowers, PD-1298-06, 2007 Tex. Crim. App. LEXIS 41 (Tex. Crim. App. Jan. 10, 2007) (per curiam). On January 10, 2007, the Texas Court of Criminal Appeals vacated our opinion and judgment and remanded the case for reconsideration in light of its opinion in Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), which re-articulated the factual sufficiency standard of review. Id. at 415-17. Reconsidering the factual sufficiency point of error in light of Watson, we affirm the trial court's judgment.

I. Standard of Review

In a legal sufficiency review, we consider all of the evidence in the record in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). The reviewing court considers all evidence admitted at trial, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). This standard applies regardless of whether the case is founded upon direct or circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Rosillo v. State, 953 S.W.2d 808, 811 (Tex. App.-Corpus Christi 1997, pet. ref'd).

When reviewing the factual sufficiency of the evidence we look at all evidence in a neutral light and will reverse only if (1) the evidence is so weak that the finding seems clearly wrong and manifestly unjust or (2) considering conflicting evidence, the finding, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15. This Court will not reverse the jury's verdict unless, we can say with some objective basis in the record, the great weight and preponderance of the evidence contradicts the verdict. Id. at 415.

We measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.--Corpus Christi 2002, pet. ref'd). "Such a charge would accurately set out the law, would be authorized by the indictment, and would not unnecessarily increase the State's burden of proof." Malik, 953 S.W.2d at 240.

Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9.

II. Analysis

A. The Law

If a person forges a writing with intent to defraud or harm another, he commits an offense. Tex. Penal Code Ann. § 32.21(b) (Vernon Supp. 2005). Section 32.21 of the Texas Penal Code provides, in relevant part, that "forge" means "to make . . . or execute any writing so that it purports . . . to be the act of another who did not authorize that act." Id. § 32.21(a)(1)(A)(i). "Forge" also means to pass that writing. See id. § 32.21(a)(1)(B). Proof of intent to defraud is derivative of other elements; thus, in a forgery case, the culpable mental state of "intent to defraud or harm" can be inferred if the State proves that the defendant knew that the writing in question was forged. See Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd) (op. on reh'g) (en banc). Here, it is undisputed that Flowers executed the check at issue by signing Young's name to it and passing it to Aaron's Rental. The State's burden was therefore to prove that Flowers acted without Young's authorization. See id.

B. Testimony and Evidence Admitted at Trial

At trial, Flowers, who was hired as a bookkeeper but who also assumed other responsibilities at Young's bed and breakfast inn, admitted signing Young's name to check number 10530 dated January 12, 2004, that was made payable to Aaron's Rental for a payment on her big-screen television rental contract agreement. She also admitted passing the check to Aaron's Rental. Flowers testified, however, that she had Young's permission to sign and pass the check. Flowers testified that Young borrowed her television in order to honor a coupon being used by clients of the bed and breakfast inn. She explained that in mid-December/January, she and Young discussed reservations and the need for a big screen television. Flowers had a big screen television and was a payment behind on its rental. Flowers testified that "[Young] agreed to make the payment on . . . the big screen TV, and [Flowers] would make up the difference but [Young] would pay the entire amount, and that's exactly what happened . . . ." Flowers testified that they "had discussed it several times before." Additionally, Flowers's February 15, 2004 pay stub reflected a $120.36 deduction from her paycheck. This amount was approximately half of the $253.08 paid to Aaron's Rental.

Testifying at trial, Young agreed that he was aware Flowers was going to sign a check for the rental of a big screen television and that Flowers did so at his direction to ensure that his clients would have a television available to them during their stay at the bed and breakfast inn. Young testified that "[Flowers], at that point was more or less running what was going on" and he "trusted [his] business to [Flowers] to watch over these type of things." Young stated that he assumed Flowers had rented a television as they had done that in the past. He admitted that Flowers may have told him that they could use hers, "but in the confusion of everything, [he didn't] really remember." He may have known that they were going to use Flowers's television, but not that they were going to rent a television set for $250. Young testified that he thought the rental was for one night, not for a whole week. Flowers told him she would bring a big screen television, and Young assumed she was going to rent one for thirty or forty dollars a night. Young testified that he did not authorize Flowers to write a check for her account balance on the television.

Colby Urbanovsky, a former employee of the bed and breakfast inn, testified that he and another co-worker picked up a big screen television from Flowers's house and delivered it to the main house at the bed and breakfast inn. The television was there for about two weeks, even though the coupon used by the clients was for one weekend. Urbanovsky also testified that he believed Young knew the television had been brought from Flowers's house because Aaron's Rental did not deliver it.

Regarding the signing of business checks, Young testified that he would give Flowers permission to sign his name on certain checks, but then he would tell her not to sign any other checks. There is also testimony that on a number of occasions, after Flowers had signed his name on checks to vendors, Young authorized those acts as to regular vendors. Aaron's Rental, however, was not one of those vendors. Additionally, Young authorized Flowers to sign his name on a $3,100.00 check made payable to Flowers to be used to buy a new car. (2) Nonetheless, Young testified that he never gave Flowers carte blanche to sign checks. He testified that he told her, "Julie, do not - [y]ou know, if you're going to - [i]f you're in an emergency and you're going to sign one, you must call me and we must talk it over, and I must approve it on an individual basis." Flowers testified that Young did not tell her not to write anymore checks, although he would say not to sign any more of a specific type of check until they talked about it. Finally, Urbanovsky testified that, on occasion, he heard Young tell Flowers to sign a check because he was not there to do so. He also heard Young tell Flowers not to sign any more checks and if she had to, to call him. In addition, other employees testified that, some time after March 2004, they heard Young tell Flowers not to sign any more checks.

C. Legal Sufficiency

By her first point of error, Flowers contends that the evidence is legally insufficient to sustain her conviction for forgery. She asserts that no rational trier of fact could have found beyond a reasonable doubt (1) that claimant, Luther Young, III, had not authorized her to sign his name to a business check made payable to Aaron's Rental and (2) that Flowers passed a check with intent to defraud or harm Young. (3)

Considering all of the above evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Young did not authorize Flowers to sign his name and pass check number 10530. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 95.

Young testified that although he authorized Flowers to sign his name on certain checks, he did not authorize a payment towards her Aaron's Rental account balance. Moreover, Aaron's Rental was not one of his regular vendors for which he would authorize her to sign checks. He assumed that Flowers, who performed numerous tasks in addition to the bookkeeping at the bed and breakfast inn, had rented a television as they had done in the past, for perhaps thirty or forty dollars a night. Although Flowers testified that Young agreed to make her payment to Aaron's Rental, questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact, and the jury could have given more credibility and weight to Young's testimony. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7.

Concluding that the jury could have found Young did not authorize the check at issue in this case, the jury was entitled to infer that Flowers possessed the culpable mental state of "intent to defraud or harm." See Huntley, 4 S.W.3d at 814. Accordingly, we hold that the evidence was legally sufficient to support the jury's verdict as to counts three and four of the indictment. Flowers's first point of error is overruled.

D. Factual Sufficiency

In her second point of error, Flowers complains that the evidence is factually insufficient to sustain her conviction for forgery. More specifically, Flowers complains that the evidence is factually insufficient to establish the "not authorized" element of the offense. We disagree.

In our original opinion in this appeal, our factual sufficiency review was largely guided by the following standard articulated by the court of criminal appeals in Zuniga v. State:

When reviewing a challenge to the factual sufficiency of the evidence to support the jury's finding, we must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in its finding beyond a reasonable doubt. We may find the evidence to be factually insufficient in the following ways: (1) if the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt, then we must find the evidence insufficient; or (2) if, when we weigh the evidence supporting and contravening the finding, we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient.

Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004), overruled by Watson, 204 S.W.3d at 417. In Watson, the court of criminal appeals stated the following:

Any holding that a criminal appellate court can reverse and remand for a new trial even when the evidence "preponderates" in favor of a conviction is inconsistent with that historically required high level of skepticism.

. . . We therefore disavow such language in Zuniga and reiterate that it is not enough that the appellate court harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. An appellate court judge cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, he would have voted to acquit had he been on the jury. . . . We have always held that an appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury's verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.


Watson, 204 S.W.3d at 417. Therefore, we must now apply the standard articulated in Watson to Flowers's factual sufficiency challenge.

Flowers argues that there was evidence that (1) Young allowed Flowers to handle business regarding the bed and breakfast inn, (2) Young gave Flowers prior authorization to sign checks, including this check, (3) Young directed her to get a television to honor a coupon, (4) Flowers acquired a big screen television for the bed and breakfast inn, (5) Young was aware that Flowers's television was to be used and was, in fact, used for his clients' stay at the bed and breakfast inn, and (6) Young took a deduction from Flowers's paycheck which equaled approximately half of the monthly rental amount paid to Aaron's Rentals for the television.

Young testified that although he gave Flowers permission to sign his name on certain checks, he told her several times not to sign his name on any checks without his prior authorization. Young testified that he told Flowers, "If you're in an emergency and you're going to sign one [a check], you must call me and we must talk it over, and I must approve it on an individual basis." Moreover, when the State asked Young, "Did you ever authorize Julie Richardson [Flowers] to write a check for the [Aaron Rentals'] account balance for this T.V.?" Young answered, "Absolutely not." Kirk Scott, a former employee of the bed and breakfast inn, testified that he overheard Young tell Flowers he did not want her signing his name on any checks. Leticia G. Ramirez, an employee of Young, testified she heard Young "tell Julli [sic] not to sign any more checks." Ramirez reiterated during re-cross examination that she heard Young tell Flowers, "Do not sign any checks."

As the sole judge of the credibility of the witnesses and the weight to be given their testimony, the jury was free to believe that Young did not authorize Flowers to sign his name to the check to pay her account balance with Aaron's Rentals. See Wesbrook, 29 S.W.3d at 111; Johnson, 23 S.W.3d at 7. Therefore, after reviewing all of the evidence in a neutral light, we conclude that the evidence is not so weak that it seems clearly wrong and manifestly unjust, and after considering the conflicting evidence, the finding is not against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d 404, 414-15. We overrule Flowers's second point of error.

IV. Conclusion

Finding no error, we affirm the trial court's judgment. NELDA V. RODRIGUEZ

Justice


Do not publish.

Tex. R. App. P. 47.2(b).


Memorandum Opinion on Remand delivered

and filed this 10th day of January, 2008.

1.
In relevant part, Charge 3 of the indictment read as follows:


[D]efendant . . . on or about January 12, 2004, in, KLEBERG County, Texas, did then and there, with intent to defraud or harm another, make a writing so it purported to be the act of Luther Young, III, who did not authorize the act, and said writing was a check of the tenor following: #10530 payable to Aaron's Rental for $253.08 on 1/12/04, . . .


Charge 4 identified the elements identified in Charge 3 and added that Flowers passed "to Aaron's Rental a forged writing, knowing such writing to be forged."

2. Flowers told Young she was expecting a check from her insurance company which she would use to repay him. At the time of trial, Flowers had not repaid the loan.

3. Flowers also generally contends that the evidence is legally insufficient because the State failed to prove that this check was signed and passed in Kleberg County, Texas, as alleged in the indictment. However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1(h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (en banc).

Keller should be removed for "Her actions also brought the integrity of the Texas judiciary and of her court in just a tipof the iceburg dead ahead...

Wednesday, October 10, 2007
Complaint to be filed against Judge Sharon Keller with Commission on Judicial Conduct: With Michael Richard's death, did she go too far?

All I can say is it's about time. A reader emails to report:

there will be a press conference at 1:30 PM Wednesday, Oct 10, in front of the Texas Court of Criminal Appeals to announce the filing of a complaint with the State Commission on Judicial Conduct against Sharon Keller.

Jim Harrington, director of the Texas Civil Rights Project and Scott Cobb, of Texas Moratorium Network, will be present, along with others.

This couldn't be more justified after the stunt Keller pulled recently, refusing to extend the deadline on a death penalty appeal when the defendant's lawyers' computer malfunctioned. Her fellow CCA judges didn't know about the decision, including the judge assigned to evaluate the case who stayed late after work on the assumption the appeal would be coming. This wasn't just a petty decision by Keller, it was an outright abuse of power in a life or death decision, usurping the rightful authority of both her colleagues and the US Supreme Court. It was not an "incompetent" decision, it was a nasty and mean-spirited one.

The "Queen of Mean" deserves the formal complaint, and if Texas judges are to retain public confidence and credibility in the legal community, the Commission should sustain the complaint and sanction Judge Keller harshly. If I had my druthers, I think she should be removed from the bench because of her consistently bad record over the years. According to the Frequently Asked Questions page on on the Commission's website, the Commission may issue sanctions on its own, but it may also:

request that the Supreme Court of Texas suspend a judge under the provisions of Rule 15(b) of the Procedural Rules for Removal of Retirement of Judges. Rule 15(b) states, Upon filing with the Commission of a sworn complaint charging a person holding such office with willful or persistent violation of rules promulgated by the Supreme Court of Texas, incompetence in performing the duties of office, willful violation of the Code of Judicial Conduct, or willful and persistent conduct that is clearly inconsistent with the proper performance of his duties or cases public discredit upon the judiciary or the administration of justice, the Commission, after giving the person notice and an opportunity to appear and be heard before the Commission (under the provisions of Rule 6), may recommend to the Supreme Court the suspension of such person from office.

That course of action sounds like exactly what's needed to restore credibility and integrity to Texas' highest criminal court. Keller is not up for re-election until 2012, but Texans shouldn't have to wait that long to remove this judicial cancer from our midst.

MORE: See initial coverage from the Houston Chronicle, featuring Judge Keller pointing the finger at everyone but the one person who made the decision that ended Michael Richard's life prematurely - herself. Reported the Chronicle:

Twenty lawyers from across Texas today filed a formal judicial conduct complaint against Texas Court of Criminal Appeals Presiding Judge Sharon Keller, accusing her of violating the constitutional due process of a condemned man.

The complaint to the State Commission on Judicial Conduct says Keller improperly cut off appeals that led to the execution of Michael Richard on Sept. 25 despite the fact the U.S. Supreme Court earlier in the day had accepted a case on the propriety of lethal injection, which had direct implications for Richard's execution.

"Judge Keller's actions denied Michael Richard two constitutional rights, access to the courts and due process, which led to his execution," the complaint states. "Her actions also brought the integrity of the Texas judiciary and of her court into disrepute and was a source of scandal to the citizens of the state."

Those lawyers signing the complaint included former State Bar President Broadus Spivey, Houston criminal defense lawyer Dick DeGuerin, University of Houston law professor Mike Olivas, former appellate Judge Michol O'Connor, state Rep. Harold Dutton, D-Houston, and former Nueces County Attorney Mike Westergren.

UPDATE: The full text of the complaint is now available here.

Posted by Gritsforbreakfast at 12:46 PM

Labels: CCA, Death penalty, Judiciary

7 comments:

Anonymous said...

The Houston Chronicle has another quote from Judge Cheryl Johnson in their story covering today's filing.

Judge Cheryl Johnson was the appeals court jurist in charge of Richard's case. She said she never heard anything about the clerk's office closing off the appeal until the following day.

"I wasn't consulted," Johnson said. "I have been here almost nine years. My understanding was that on a death case we were here up until the time of the execution and we would take filings that came in up until 6 o'clock and the execution is underway."

Johnson said it is not a question of whether Richard is guilty but did he have the right to appeal."

End of Chronicle excerpt.

The Code of Judicial Conduct says that, "a judge who receives information clearly establishing that another judge has committed a violation of this Code should take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action."

From the way, Judge Johnson has been quoted in the media, it sounds like she believes Keller's behavior was innappropriate at the least. If she also believes that it violates the Code of Judicial Conduct, then she is ethically obligated to take action.
10/10/2007 03:34:00 PM
Anonymous said...

In some of the earlier articles on this case, I remember reading several ethics scholars who stated that Keller's refusal to extend the hours of operation for the clerk did not violate any specific ethical rule. The Commission cannot sanction a judge just for doing something they don't like, it has to violate a canon of their code. Anyone know what canon the complaint is going to allege to have been violated?
10/10/2007 03:54:00 PM
Anonymous said...

While we're at it, maybe the Texas Defender Service should be grieved. DP lawyers love to play this brinksmanship game of waiting until the last minute to file their habeas petitions, knowing their chances of getting a stay will be increased if the other side doesn't get to respond.

Sure, it's a nice advantage, but it's a gamble. You don't know if something bad is going to happen at the last minute that might prevent your incredible, Brandeis-like piece of legal gold from saving your client's neck.

Yeah, I know the SCt took cert in the Kentucky case that day, but it's not like this is some novel legal theory. It's been batted around for several years nationally and in Texas for at least the last couple of years.

So waiting until 3 pm the day your client is going to die doesn't seem like the greatest use of time management.
10/10/2007 04:09:00 PM
PersianCowboy said...

To close at 5 PM and refuse to accept an appeal by a person about to be executed is a violation of judicial responsibility. When a person is about to be executed, our state's highest criminal court needs to remain open for business. Keller should resign or be impeached and removed from office for her unethical conduct. This is not the first time that Keller has behaved like a buffoon. According to Tom Price, one of the other conservative judges on the Texas Court of Criminal Appeals, as far back as 2001 she made Texas' highest criminal appeals court "a national laughingstock." As long as Keller is in office, the people of Texas can not be sure that justice is being done with integrity.
10/11/2007 01:59:00 AM
Michael said...

This is one reason I always sign my name to comments. anonymous (10/10. 3:54 p.m.) says there are "some other articles" where "several ethics scholars" state that Judge Keller "did not violate any specific rule". Could you be a little more obtuse, please? Maybe instead of hearsay within hearsay, you could try to embed hearsay within hearsay within hearsay. What ethics scholars? I believe Newt Gingrich considers himself an ethics scholar. In light of the Complaint's citation to four specific Canons of the Code of Judicial Conduct, I'll take the word of the signatories -- including a past State Bar of Texas President, as well as the most visible criminal attorney in Texas, Dick DeGuerin.

By the way, can we dispense with referring to "The Honorable Sharon Keller" now?
10/11/2007 10:26:00 AM
PJ or said...

I know this is going to seem like a long statement but if you're going to impeach a judge you'd better know you're state's rules!

Defendant's in this case under color of law and who have caused the constitutional deprivation which was their policy and procedure to do so are not immune, not even under qualified immunity.
JUDICIAL IMMUNITY TO BAD BEHAVIOR:
Therefore the JUDGE IS NOT IMMUNE TO ARREST BECAUSE THE ONLY PERSONS WHO HAVE LIMITED IMMUNITY is Senators and Representatives, coming and going and while in session, and that is limited. If they commit Treason, Felony and Breach of the Peace, they maybe arrested in session.

a. TITLE 28 > PART I > CHAPTER 21 > § 454 Practice of law by justices and judges
Any justice or judge appointed under the authority of the United States who engages in the practice of law is guilty of a high misdemeanor.

Constitution Section. 6. The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other place.

h. TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE PART I--ORGANIZATION OF COURTS CHAPTER 21--GENERAL PROVISIONS APPLICABLE TO COURTS AND JUDGES Sec. 453. Oaths of justices and judges Each justice or judge of the United States shall take the following oath or affirmation before performing the duties of his office: ``I, ___ ___, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as ___ under the Constitution and laws of the United States. So help me God.''

i. TITLE 28 > PART I > CHAPTER 17 > § 372. Retirement for disability; substitute judge on failure to retire (a) Any justice or judge of the United States appointed to hold office during good behavior who becomes permanently disabled from performing his duties may retire from regular active service, and the President shall, by and with the advice and consent of the Senate, appoint a successor. Any justice or judge of the United States desiring to retire under this section shall certify to the President his disability in writing.

TEXAS CONSTITUTION ON IMPEACHMENT:
Article 15 - IMPEACHMENT
Section 4 - JUDGMENT; INDICTMENT, TRIAL, AND PUNISHMENT
Judgment in cases of impeachment shall extend only to removal from office, and disqualification from holding any office of honor, trust or profit under this State. A party convicted on impeachment shall also be subject to indictment, trial and punishment according to law.


§ 665.002. INDIVIDUALS WHO MAY BE IMPEACHED. An individual may be removed from an office or a position by impeachment in the manner provided by the constitution and this chapter if the individual is:
(1) a state officer;
(2) a head of a state department or state institution; or
(3) a member, regent, trustee, or commissioner having control or management of a state institution or enterprise.

§ 665.052. CAUSES FOR REMOVAL. (a) An individual may be removed from office by address for:
(1) Willful neglect of duty;
(2) Incompetence;
(3) Habitual drunkenness;
(4) Oppression in office;
(5) Breach of trust; or
(6) any other reasonable cause that is not a sufficient ground for impeachment.
(b) In this section, "incompetence" means:
(1) Gross ignorance of official duties;
(2) Gross carelessness in the discharge of official duties; or
(3) Inability or unfitness to discharge promptly and properly official duties because of a serious physical or mental defect that did not exist at the time of the officer's election.


TEXAS CHAPTER 39. ABUSE OF OFFICE § 39.01. DEFINITIONS.
(1) "Law relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly:
(A) imposes a duty on the public servant; or
(B) governs the conduct of the public servant.
(2) "Misuse" means to deal with property contrary to:
(A) an agreement under which the public servant holds the property;
(B) a contract of employment or oath of office of a public servant;
(C) a law, including provisions of the General Appropriations Act specifically relating to government property, that prescribes the manner of custody or disposition of the property; or
(D) a limited purpose for which the property is delivered or received.

TEXAS § 39.02. ABUSE OF OFFICIAL CAPACITY.
(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant's office or employment; or
(2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant's custody or possession by virtue of the public servant's office or employment.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor.
(c) An offense under Subsection (a)(2) is:
(1) a Class C misdemeanor if the value of the use of the thing misused is less than $20;
(2) a Class B misdemeanor if the value of the use of the thing misused is $20 or more but less than $500 ;
(3) a Class A misdemeanor if the value of the use of the thing misused is $500 or more but less than $1,500;
(4) a state jail felony if the value of the use of the thing misused is $1,500 or more but less than $20,000;
(5) a felony of the third degree if the value of the use of the thing misused is $20,000 or more but less than $100,000;
(6) a felony of the second degree if the value of the use of the thing misused is $100,000 or more but less than $200,000; or
(7) a felony of the first degree if the value of the use of the thing misused is $200,000 or more.
(d) A discount or award given for travel, such as frequent flyer miles, rental car or hotel discounts, or food coupons, are not things of value belonging to the government for purposes of this section due to the administrative difficulty and cost involved in recapturing the discount or award for a governmental entity.

ANSWER TO IMMUNITY

This means ALL JUDGES! The judges, both of the supreme and inferior courts, shall hold their offices during good behavior. The judicial power shall extend to all cases, in law and equity, arising under this Constitution. Impeachment is the ONLY crime that maybe charged without a Trial by JURY!
10/11/2007 09:24:00 PM
Anonymous said...

I practice appellate law, mostly civil cases. I've been involved in dozen of "emergency" matters over the years. Every time a computer glitch, traffic or anything else has contributed to a brief getting to the courthouse after 5 p.m. the court has accomodated us -- and no one was about to die, with his procedural rights irretrievably lost.

If Texas courts can routinely offer relief in matters of money or family disputes, for Keller to not do so in a matter of death is despicable.
10/11/2007 10:49:00 PM

Post a Comment

Re(3): Abhor what is evil; hold fast to what is good.
Posted on June 23, 2007 at 04:11:40 AM by 4 ringo......you know watt.......

Jules: Wanna know what I'm buyin' Ringo?
Pumpkin: What?
Jules: Your life. I'm givin' you that money so I don't hafta kill your ass. You read the Bible?
Pumpkin: Not regularly.
Jules: There's a passage I got memorized. Ezekiel 25:17. The path of the righteous man is beset on all sides by the inequities of the selfish and the tyranny of evil men. Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of the darkness. For he is truly his brother's keeper and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers. And you will know I am the Lord when I lay my vengeance upon you. I been sayin' that shit for years. And if you ever heard it, it meant your ass. I never really questioned what it meant. I thought it was just a cold-blooded thing to say to a motherfucker before you popped a cap in his ass. But I saw some shit this mornin' made me think twice. Now I'm thinkin': it could mean you're the evil man. And I'm the righteous man. And Mr. 9mm here, he's the shepherd protecting my righteous ass in the valley of darkness. Or it could be you're the righteous man and I'm the shepherd and it's the world that's evil and selfish. I'd like that. But that shit ain't the truth. The truth is you're the weak. And I'm the tyranny of evil men. But I'm tryin', Ringo. I'm tryin' real hard to be a shepherd.