Frances Angela Black v. Countryside Village Apartments

• Court: Court of Appeals of Texas
• Decided: December 10, 2013
• Docket: 01-12-00981-CV
• Status: Published

Opinion

Opinion issued December 10, 2013.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00981-CV ——————————— FRANCES ANGELA BLACK, Appellant V. COUNTRYSIDE VILLAGE APARTMENTS, Appellee

On Appeal from the County Civil Court at Law Number 3 Harris County, Texas Trial Court Case No. 1019126

MEMORANDUM OPINION

Frances Angela Black appeals from a judgment in favor of Countryside

Village Apartments. In a bench trial, the trial court found that Black had violated

her apartment lease by permitting an individual to possess marijuana on the

premises. The county court rendered judgment for Countryside and ordered that Black be evicted from her apartment. Black appeals, challenging the admissibility

of certain testimony and asserting that the trial court improperly weighed and

evaluated the evidence. We affirm.

Background

Frances Angela Black lives in an apartment at Countryside Village

Apartments in Humble, Texas. Black’s residency at Countryside is part of a

program of the United States Department of Housing and Urban Development.

Certain conditions of her lease prohibit Black from engaging in criminal activity

that threatens the peaceful enjoyment of the premises by others, having

unauthorized residents, and engaging in or allowing unlawful activities in her

apartment, in common areas, or on the complex grounds.

Black lives in her apartment with four children, two of whom are her own

and all of whom are children of her boyfriend, Edwin Hulitt. Countryside’s

manager, Keslie Smith, testified that Hulitt had lived in the apartment for at least a

year at the time of the incident that gave rise to these proceedings.

On December 28, 2011, the Humble Police Department received a call of a

domestic disturbance at Countryside. Three officers responded to the scene. One

of these officers, T. Meek, testified that Black and Hulitt were engaged in an

argument inside Black’s apartment and that a crowd had formed outside to observe

the argument, which was both audible and visible from outside the apartment.

2 After the police separated Black and Hulitt and spoke with each of them—Hulitt

outside the apartment and Black inside—Officer Meek observed a bag of

marijuana in an open drawer in the living room of the apartment. Officer Meek

testified that Hulitt stated that the marijuana was his, at which point he arrested

Hulitt for possession of marijuana. At the time of the arrest, both Black and Hulitt

told Officer Meek that Hulitt lived in the apartment.

Countryside gave Black notice of its intent to evict her for (1) causing a

disturbance resulting in a law enforcement response; (2) allowing Hulitt to reside

in the apartment when his name was not on the lease; (3) allowing marijuana inside

her unit; and (4) making false statements to Countryside management regarding

her income and employment status. Countryside then successfully sued to evict

Black in justice court. Black appealed to the county court, which conducted a de

novo bench trial, neither party having requested a jury. Both parties were

represented at trial by counsel. The county court entered judgment for Countryside

and ordered Black evicted, finding that Hulitt had possessed marijuana on the

property in violation of the lease. The county court’s judgment made no mention

of the other theories on which Countryside brought suit. Black did not request any

findings of fact or conclusions of law.

Black now brings six issues on appeal. We affirm.

3 Analysis

Black challenges the admissibility of certain evidence as hearsay and asserts

that the trial court abused its discretion in its evaluation of the evidence. We

review a trial court’s decisions to admit or exclude evidence for abuse of

discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); see also Comiskey v.

FH Partners, LLC, 373 S.W.3d 620, 630 (Tex. App.—Houston [14th Dist.] 2012,

pet. denied). We will not overturn the judgment because of evidentiary rulings

“[u]nless an erroneous ruling probably caused rendition of an improper judgment.”

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see also

Comiskey, 373 S.W.3d at 630; TEX. R. APP. P. 44.1(a)(1). To the extent that Black

challenges the legal sufficiency of the evidence supporting the judgment, this court

must look at all of the evidence admitted and determine whether, after disregarding

all evidence that a reasonable trier-of-fact could disregard, more than a scintilla of

evidence supports the judgment. See City of Keller v. Wilson, 168 S.W.3d 802,

813, 827–28 (Tex. 2005). To determine the factual sufficiency of the evidence, we

are required to examine all of the evidence, and we will set aside the judgment

only if it is so contrary to the overwhelming weight of the evidence as to be clearly

wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The trier of

fact may choose to “believe one witness and disbelieve others” and “may resolve

4 inconsistencies in the testimony of any witness.” McGalliard v. Kuhlmann, 722

S.W.2d 694, 697 (Tex. 1986).

I. Sufficiency of the evidence

A. Dismissal of criminal charges against Hulitt

In her first issue, Black asserts that the trial court erred by finding that Hulitt

had marijuana on the property, despite the dismissal of the criminal charges against

him.

The trial court heard testimony from Officer Meek, who testified that he saw

a bag of marijuana in Black’s apartment and that Hulitt admitted to possession of

that marijuana. The trial court, as finder of fact, was entitled to credit this

testimony and was not obligated to draw or believe a contrary inference from the

fact that the criminal case against Hulitt was dismissed. See City of Keller, 168

S.W.3d at 821, 827–28. The determination was not contrary to the overwhelming

weight of the evidence. See Cain, 709 S.W.2d at 176. We overrule Black’s first

issue.

B. Weight and evaluation of evidence

In her second, third, and fifth issues, Black asserts that the trial court gave

improper weight or meanings to the testimony of various witnesses with respect to

the circumstances under which Hulitt was arrested. Specifically, Black argues in

each of these issues that the trial court erred by finding that Hulitt possessed the

5 marijuana, rather than finding that he volunteered to go to jail to spare Black and

his children from eviction and being taken into custody. Black argues that the trial

court interpreted Hulitt’s actions and statements unfairly and without recognition

of the difficulties faced by Black, Hulitt, and Hulitt’s children.

Hulitt and Black testified that the marijuana was not theirs but that the

Humble police officers on the scene threatened to arrest everyone present and take

the children in Black’s care to “CPS,” that is, the Texas Department of Family and

Protective Services, if nobody present claimed the marijuana. According to Hulitt

and Black, the marijuana was found on a common balcony outside Black’s

apartment, and Hulitt made no admissions, but he merely volunteered to be

arrested to spare Black from arrest and the children from being taken into

protective custody. Officer Meek, however, testified that he observed the

marijuana in an open drawer inside Black’s apartment, that Black denied that it

was hers, and that Hulitt admitted that it was his. The trial court was entitled to

believe Officer Meek and disbelieve Black and Hulitt. See McGalliard, 722

S.W.2d at 697.

Black also complains in her fifth issue that the trial court manufactured a

contradiction between Black’s testimony and Hulitt’s testimony regarding the

arrival time of Officer Meek. Hulitt testified that Officer Meek arrived “several

minutes” after the other officers, while Black testified that “Officer Meek didn’t

6 see anything” and “only knows what he was told,” because he arrived 20 or 30

minutes after the other officers. Black does not explain why the trial court was

required to find that these statements were consistent or how she was harmed by

the trial court’s questions about the witnesses’ testimony. Again, to the extent the

evidence on this point conflicted, the trial court was entitled to believe either Black

or Hulitt and disregard the other’s testimony. See id.

Because more than a scintilla of evidence supports the judgment and because

the trial court could reasonably have disregarded the contrary evidence, and

because the trial court’s determinations were not contrary to the overwhelming

weight of the evidence, we overrule Black’s second, third, and fifth issues. See

City of Keller, 168 S.W.3d at 820–22; Cain, 709 S.W.2d at 176.

C. Countryside’s signature on a HUD certification

In her sixth issue, Black does not explicitly assign any error, but merely

argues that an “Owner’s Certification of Compliance” signed by a former

Countryside employee after the December 28, 2011 incident contradicts

Countryside’s claims against Black. According to Black, this document constitutes

an admission by Countryside that Black was in compliance with all HUD

regulations and administrative procedures at the time that it was signed, in June

2012. Thus, Black argues, the trial court should have concluded that Black was in

compliance with her lease and entered judgment against Countryside.

7 There is nothing in the record, however, showing that the Certification of

Compliance constitutes an admission by Countryside that Black had complied with

the terms of her lease prohibiting illegal activity on the property. Even if it did

constitute such an admission, the Certification of Compliance would simply have

been evidence conflicting with Countryside’s position. Conflicts in the evidence,

however, are the province of the trier of fact, and we must assume that it resolved

any such conflict in favor of the judgment. City of Keller, 168 S.W.3d at 820

(“courts reviewing all the evidence in a light favorable to the verdict must assume

that [the finder of fact] resolved all conflicts in accordance with that verdict”). We

overrule Black’s sixth issue.

II. Hearsay

In her fourth issue, Black asserts that the trial court erred by admitting

hearsay testimony from Smith and Officer Meek. With certain exclusions and

exceptions that are not relevant here, hearsay “is a statement, other than one made

by the declarant while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” TEX. R. EVID. 801(d); see also TEX. R. EVID.

801(e), 803, 804. “Hearsay is not admissible except as provided by statute or [the]

rules [of evidence] or by other rules prescribed pursuant to statutory authority.”

TEX. R. EVID. 802. “Inadmissible hearsay admitted without objection shall not be

denied probative value merely because it is hearsay.” Id.; Tex. Commerce Bank,

8 Nat’l Ass’n v. New, 3 S.W.3d 515, 517 (Tex. 1999); see also Austin v. Weems, 337

S.W.3d 415, 425 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (hearsay objection

to officer’s testimony was waived when no objection made). Further, “[t]he

erroneous admission of evidence requires reversal only if the error probably caused

the rendition of an improper judgment.” Air Prods. & Chems., Inc. v. Odfjell

Seachem A/S, 305 S.W.3d 87, 97 (Tex. App.—Houston [1st Dist.] 2009, no pet.)

(citing TEX. R. APP. P. 44.1; Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131,

144 (Tex. 2004)). “The erroneous admission of evidence is harmless if it is merely

cumulative.” Id. (collecting cases).

First, Black asserts that all of Smith’s testimony regarding the disturbance

call, Hulitt’s arrest, the presence of an unauthorized person, and the criminal

charge against Hulitt was inadmissible hearsay. The record reflects that Black’s

attorney objected to Smith’s testimony only once, when Smith testified that the

police department, rather than apartment management, received a call about a

disturbance, and that she learned of the disturbance call after the fact from the

Humble Police Department. The trial court overruled the objection, reasoning that

Humble police officers were present for trial who could testify that the department

received a call about a disturbance, although no officers had yet been called as

witnesses.

9 We agree with Black that Smith’s testimony that the police department

received a disturbance call was inadmissible hearsay. See TEX. R. EVID. 801. But

Smith had already testified, without objection, that law enforcement had been

called to respond to the disturbance. As a matter of law, this unobjected-to hearsay

is probative evidence upon which the trial court was permitted to rely. See TEX. R.

EVID. 802; Tex. Commerce Bank, 3 S.W.3d at 516. In addition, Officer Meek

testified that he was called to assist officers on the scene and personally witnessed

a disturbance in the form of an argument between Black and Hulitt. Further, the

trial court did not enter judgment based on the disturbance, but only on the basis of

the presence of marijuana. Any error in the admission of Smith’s testimony was

therefore harmless. See Air Prods. & Chems., 305 S.W.3d at 97.

Black also complains of Officer Meek’s testimony on the grounds that he

did not have personal knowledge of events that transpired prior to his arrival,

including the original location or any movement of the marijuana. The record does

not contain any objection to Officer Meek’s testimony as hearsay. To the extent

that Black challenges the admission of any hearsay to which her counsel failed to

object at trial, her objection was waived, and the trial court did not err by admitting

the testimony. See Tex. Commerce Bank, 3 S.W.3d at 516; Austin, 337 S.W.3d at

425.

We overrule Black’s fourth issue.

10 Conclusion

The judgment of the trial court is affirmed.

Michael Massengale Justice

Panel consists of Justices Keyes, Higley, and Massengale.