Navistar Financial Corporation v. Burt L. Schmidt, Individually and D/B/A Diamond Trucking

• Court: Court of Appeals of Texas
• Decided: April 5, 2006
• Docket: 10-05-00052-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00052-CV

Navistar Financial Corporation,

                                                                      Appellant

 v.

Burt L. Schmidt, Individually

and d/b/a Diamond Trucking,

                                                                      Appellee

From the 220th District Court

Hamilton County, Texas

Trial Court No. 02-08-08802

MEDIATION ORDER

      The Legislature has provided for the resolution of disputes through alternative dispute resolution (ADR) procedures.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 154.001-154.073 (Vernon 2005 & Supp. 2005).  The policy behind ADR is stated in the statute: “It is the policy of this state to encourage the peaceable resolution of disputes . . . and the early settlement of pending litigation through voluntary settlement procedures.”  Id. § 154.002 (Vernon 2005).  Mediation is a form of ADR.  Mediation is a mandatory but non-binding settlement conference, conducted with the assistance of a mediator.  Mediation is private, confidential, and privileged.

      We find that this matter is appropriate for mediation.  See id. § 154.021(a) (Vernon 2005); 10th Tex. App. (Waco) Loc. R. 9.

      The parties are ordered to confer and attempt to agree upon a mediator.  Within fourteen days after the date of this Order, Appellant is ordered to file a notice with the Clerk of this Court which either identifies the agreed-upon mediator or states that the parties are unable to agree upon a mediator.  If the notice states that the parties are unable to agree upon a mediator, this Court will assign a mediator.

      Mediation must occur within thirty days after the date the above-referenced notice agreeing to a mediator is filed or, if no mediator is agreed upon, within thirty days after the date of the order assigning a mediator.

      Before the first scheduled mediation session, each party must provide the mediator and all other parties with an information sheet setting forth the party’s positions about the issues that need to be resolved.  At or before the first session, all parties must produce all information necessary for the mediator to understand the issues presented.  The mediator may require any party to supplement the information required by this Order.

      Named parties must be present during the entire mediation process, and each corporate party must be represented by a corporate employee, officer, or agent with authority to bind the corporate party to settlement.

      Immediately after mediation, the mediator must advise this Court, in writing, only that the case did or did not settle and the amount of the mediator’s fee paid by each party.  The mediator’s fees will be taxed as costs.  Unless the mediator agrees to mediate without fee, the mediator must negotiate a reasonable fee with the parties, and the parties must each pay one-half of the agreed-upon fee directly to the mediator.

      Failure or refusal to attend the mediation as scheduled may result in the imposition of sanctions, as permitted by law. 

      Any objection to this Order must be filed with this Court and served upon all parties within ten days from the date of this Order, or it is waived.

      We abate this cause for mediation.

PER CURIAM

Before Chief Justice Gray, and

      Justice Reyna

Order issued and filed April 5, 2006

Appeal abated

Do not publish

hich is relied upon by other jurors; (5) who for that reason changed their vote to a harsher punishment.  Sneed, 670 S.W.2d at 266.  Current Rule 606(b), amended after the decision in Sneed, provides:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury’s deliberations, or to the effect of anything on any juror’s mind or emotions or mental processes, as influencing any juror’s assent to or dissent from the verdict or indictment.  Nor may a juror’s affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

Tex. R. Evid. 606(b) (emphasis added).  Accordingly, Sneed is no longer viable in light of Rule 606(b).  See Davis v. State, 119 S.W.3d 359, 365 (Tex. App.—Waco 2003, pet. ref’d); see also Hart v. State, 15 S.W.3d 117, 123 (Tex. App.—Texarkana 2000, pet. ref’d); Hicks v. State, 15 S.W.3d 626, 630 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d).  The Court of Criminal Appeals has yet to decide the issue.  See Davis, 119 S.W.3d at 365; see also Salazar v. State, 38 S.W.3d 141, 148 n. 3 (Tex. Crim. App. 2001), cert. denied, 534 U.S. 855, 122 S. Ct. 127, 151 L. Ed. 2d 82 (2001).

            In light of Rule 606(b), “jurors may no longer establish jury misconduct except for outside influence being improperly brought to bear upon a juror.”  Davis, 119 S.W.3d at 365; see Tex. R. Evid. 606(b).  Melvin does not argue that “any outside influence was improperly brought to bear upon any juror.”  Rather, he contends that this definition should include information conveyed by a juror to the rest of the jury.

The Court of Criminal Appeals, however, has held: “The plain language of . . . Rule 606(b) indicates that an outside influence is something outside of both the jury room and the juror.”  White v. State, 225 S.W.3d 571, 574 (Tex. Crim. App. 2007); see Hines v. State, 3 S.W.3d 618, 623 (Tex. App.—Texarkana 1999, pet. ref’d).  We decline to depart from the plain language of this rule.  Because Melvin has not shown that “any outside influence was improperly brought to bear upon any juror,” the trial court did not abuse its discretion by excluding the juror’s testimony and denying his motion for new trial.  See Davis, 119 S.W.3d at 365; see also Hines, 3 S.W.3d at 623.  We overrule point one.[1]

ADMISSION OF EVIDENCE AT PUNISHMENT

            In point two, Melvin contends that the trial court abused its discretion by admitting a chart of his prior convictions into evidence at punishment.

            At punishment, the State introduced four exhibits regarding Melvin’s prior convictions.  The State sought to introduce a chart of the prior convictions and an enlargement of the chart into evidence.  Melvin objected, arguing that the chart summarized the prior conviction exhibits, was irrelevant, and was unnecessary to the jury’s understanding of the evidence.  The trial court admitted the chart into evidence.

            On appeal, Melvin contends that the chart was inadmissible under Rule of Evidence 1006, which provides in pertinent part:

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.

Tex. Evid. R. 1006.

In Wheatfall v. State, 882 S.W.2d 829 (Tex. Crim. App. 1994), the Court of Criminal Appeals addressed the admission of a summary of Wheatfall’s criminal history.  See Wheatfall, 882 S.W.2d at 838.  The five-page summary consisted of dates and notes describing the crimes, no witness testified to the summary, and the summary was not used as demonstrative evidence.  Id.  The Court held:

While rule 1006 clearly contemplates the admission of summaries in certain instances, the rule in no way indicates that a prosecutor can summarize her case on legal paper and submit those documents to the trial court as “evidence.”  The adversarial system permits such summaries by one side during closing arguments, but they are arguments and not admitted as evidence to the jury.  Admission of these documents under this theory was clearly error.

Id. at 839.  Nevertheless, the error was harmless because “all the evidence presented was duplicitous of other evidence already presented.”  Id. at 840.

            In Markey v. State, 996 S.W.2d 226 (Tex. App.—Houston [14th Dist.] 1999, no pet.), the Fourteenth Court addressed the admission of a chart depicting the symptoms of intoxication that  Markey possessed when arrested.  See Markey, 996 S.W.2d at 231.  The Court concluded that the chart was improperly admitted as a summary of evidence already before the jury; thus, it lacked probative value.  Id. at 231-32.  The error was harmless because Markey did not challenge the chart as “erroneous or misleading” and it was “prepared in the jury’s presence as Officer Myers recited the various symptoms of intoxication observed by him, and the jury was able to accept or reject the prosecutor’s characterization of the testimony as it occurred.”  Id. at 232.

            In light of Wheatfall and Markey, any error in the admission of the chart is harmless.  The chart consisted of a one-page summary of four prior criminal offenses, the offense with which Melvin was charged, and a pending possession of marihuana offense.  The chart identified the type of offense, the date of the offense, the county where the offense occurred, and, where applicable, the cause number, date of conviction, and sentence.  Officer Javier Ybarra testified to the pending offense.  During his testimony, Melvin admitted committing each of the six offenses listed on the State’s chart.  The State introduced documents regarding the four prior convictions, which allowed the jury to evaluate the accuracy of the chart.  Thus, the record contains other evidence of the prior convictions and Melvin does not contend that the chart was in any way erroneous or misleading.[2]  See Wheatfall, 882 S.W.2d at 839; see also Markey, 996 S.W.2d at 232.  Because Melvin was not harmed by the admission of the chart, we overrule point two.

            Having overruled Melvin’s two points of error, we affirm the judgment.     

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

(Chief Justice Gray concurring with note)*

Affirmed

Opinion delivered and filed April 21, 2010

Do not publish

[CR25]

*           (Chief Justice Gray concurs with the judgment to the extent that it affirms the trial court’s judgment.  He does not join the Court’s opinion.  A separate opinion will not issue.)

---

[1]               Even if Sneed remains viable, Melvin’s claim must still fail because he has not shown that there was a misstatement of the law asserted as a fact by one professing to know the law.  See Davis v. State, 119 S.W.3d 359, 365 (Tex. App.—Waco 2003, pet. ref’d).

[2]               After the chart was admitted, the State noticed an error in the chart and offered a new exhibit correcting the error, withdrawing the incorrect exhibit.  The corrected exhibit was admitted into evidence.  Melvin did not object at trial and does not complain about the correction on appeal.