Robert Lister v. M. Wesley Walters

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00137-CV

ROBERT LISTER, Appellant

V.

M. WESLEY WALTERS, Appellee

On Appeal from the County Court at Law

Harrison County, Texas

Trial Court No. 2007-7515-CCL

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Moseley

O P I N I O N

Robert Lister had some Harrison County lands which he wanted to have cleared for agricultural use and M. Wesley Walters performs that type of work using a bulldozer. They each apparently believed that they had entered into an oral agreement for Walters to perform this clearing work. Work was performed by Walters, and Lister paid Walters money.

At first blush and up to this point, it would sound as if a common gentlemen's handshake agreement had been reached. However, as is often the case with such handshake agreements, a dispute arose between the gentlemen regarding the particulars of what they believed they had agreed upon and Lister, proceeding pro se, filed suit in justice court, claiming (among other things) that Walters had failed to perform within what he alleged was the agreed-upon period of time; Lister further claimed that he had been forced to hire someone else to complete the work. Lister claimed damages of $2,850.00 incurred by him in retaining another person to complete the project. Walters denied that he promised to complete the work within the time frame which Lister testified was a part of the agreement. The justice court awarded Lister a judgment for $1,400.00, and Walters appealed to the County Court at Law of Harrison County. The county court at law held a trial de novo in which both parties appeared pro se. After a very informal hearing, the court found no oral contract had been formed because "there was never a meeting of the minds between these two parties." On his pro se appeal, Lister argues the trial court erred (1) by failing to administer the oath to the witnesses and (2) by failing to record testimony. ⁽¹⁾

This Court is without jurisdiction to review a county court at law's judgment in the appeal of a small claims case. Sultan v. Mathew, 178 S.W.3d 747, 752 (Tex. 2005); ⁽²⁾ see Woodlands Plumbing Co. v. Rodgers, 47 S.W.3d 146, 149 (Tex. App.--Texarkana 2001, pet. denied). Bearing this principle in mind, we must determine whether this action was decided by a small claims court. The Texas Government Code provides that a small claims court has concurrent jurisdiction with the justice court and the justice of the peace shall sit as the judge of the small claims court. Tex. Gov't Code Ann. § 28.002 (Vernon 2004), § 28.003 (Vernon Supp. 2007). We note that several of the documents in the record contain the caption "IN JUSTICE COURT PRECINCT 2" and several of the documents contain the seal of the justice court. See Tex. Gov't Code Ann. § 28.006 (Vernon 2004) (describing seal of a small claims court). However, the caption of Lister's petition provides "IN SMALL CLAIMS COURT PRECINCT 2" and the petition complies substantially with the form for actions in small claims courts. See Tex. Gov't Code Ann. § 28.012 (Vernon 2004) (providing a form for small claims court petitions). The judgment signed by the justice of the peace contains the caption "IN SMALL CLAIMS COURT PRECINCT 2." The record does not contain any order or docket entry transferring the case from the small claims court to the justice court. As such, we conclude this case was filed in small claims court and we lack jurisdiction over this appeal.

We dismiss this appeal for want of jurisdiction.

Bailey C. Moseley

Justice

Date Submitted: February 19, 2008

Date Decided: February 22, 2008

1. Even if we had jurisdiction over this appeal, Lister failed to preserve these issues for appellate review. Texas law is well settled that "[a] party proceeding pro se must comply with all applicable procedural rules" and is held to the same standards as a licensed attorney. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.--Texarkana 1997, no pet.); see Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978). Because Lister failed to object, Lister waived any error concerning the failure to administer the oath. Trammell v. Mount, 68 Tex. 210, 215, 4 S.W. 377, 379 (1887); De La Garza v. Salazar, 851 S.W.2d 380, 383 (Tex. App.--San Antonio 1993, no writ). Assuming a hearing occurred which is contained in the record, Lister failed to object to the failure of a court reporter to record the proceedings. Rittenhouse v. Sabine Valley Ctr. Found., Inc., 161 S.W.3d 157, 162 (Tex. App.--Texarkana 2005, no pet.); Reyes v. Credit Based Asset Servicing & Securitization, 190 S.W.3d 736, 740 (Tex. App.--San Antonio 2005, no pet.); see Tex. R. App. P. 33.1(a). Lister has not directed this Court to where he requested any exhibits to be admitted into evidence. "To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court." Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.--El Paso 2002, no pet.).

2. Justice Hecht notes in his dissenting opinion that an appellate court would have jurisdiction over an appeal from the decision of a county court or a statutory county court "appealed from a justice court," but would not have jurisdiction over a judgment "rendered by county court or a statutory county court in a case appealed from a small claims court." Sultan, 178 S.W.3d at 753 (Hecht, J., dissenting). Justice Hecht argued the court should interpret Section 28.053(d) of the Texas Government Code to mean the judgment is final and appealable. Id.; see Tex. Gov't Code Ann. § 28.053(d) (Vernon 2004). According to Justice Hecht, "[t]he jurisdictional structure of the Texas court system is unimaginably abstruse," and the court should have seized the opportunity to increase uniformity and simplicity of the jurisdictional structure. Id. We are obligated to follow the majority opinion of the Texas Supreme Court.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-09-00144-CR

                              CLARENCE LODELL PIERCE, Appellant

                                     THE STATE OF TEXAS, Appellee

                                         On Appeal from the 5th Judicial District Court

                                                             Bowie County, Texas

                                                       Trial Court No. 07F0422-005

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                        Memorandum Opinion by Chief Justice Morriss

                                                      MEMORANDUM OPINION

            There is no doubt that Clarence Lodell Pierce shot and killed Kevin Haynes.  He admitted it.  The sole question on appeal is whether the evidence is factually sufficient to support Pierce’s murder conviction^[1] on the issue of self-defense.  We affirm the judgment, because we find the evidence sufficient.

            The evidence shows that Haynes entered Pierce’s home, confronting him over a venomous verbal conflict between the two men’s girlfriends:  Roslyn, who had once been Pierce’s girlfriend, but was now Haynes’ girlfriend, and Bobbie, Pierce’s current girlfriend.  At the time, those individuals and several others were all in Pierce’s home playing cards.  The evidence shows that Roslyn left and went to complain to Haynes about being mistreated.  Haynes came into the house cursing and posturing, demanding that Pierce control his current girlfriend’s mouth, and accusing Pierce at one point of hitting Roslyn.  Pierce testified that he was in a back room when he heard Haynes come in demanding to talk to him, that he anticipated trouble, and that he retrieved his pistol and put it in his pocket.  There was evidence that Haynes had his hand in his jacket and that Pierce asked Haynes to leave.  However, there is also evidence that, at the time of the shooting, Haynes was outside the home, had not produced a weapon, and had made no threatening gestures toward Pierce.^[2]

            In conducting a factual sufficiency review, we consider the evidence in a neutral light.  Watson v. State, 204 S.W.3d 404, 414–15 (Tex. Crim. App. 2006).  We may find evidence factually insufficient if (1) the evidence supporting the conviction is “too weak” to support the fact-finder’s verdict, or (2) considering conflicting evidence, the fact-finder’s verdict is against the great weight and preponderance of the evidence.  Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).  In so doing, we may find the evidence insufficient when necessary to prevent manifest injustice.  Id.  Although we give less deference to the verdict in a factual sufficiency review, we will not override the verdict simply because we disagree with it.  Id.  Both legal and factual sufficiency are measured by the elements of the offense as defined by a hypothetically- correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008).

            In raising the justification of self-defense, a defendant bears the burden of production, which requires the production of some evidence that supports the particular justification.  Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); Saxton v. State, 804 S.W.2d 910, 913 (Tex. Crim. App. 1991).  Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense beyond a reasonable doubt.  Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14.  The burden of persuasion does not require the production of evidence, but rather only requires that the State persuade the jury beyond a reasonable doubt that the defendant did not act in self-defense.  Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14; Kelley v. State, 968 S.W.2d 395, 399 (Tex. App.—Tyler 1998, no pet.).

            Thus, in a factual-sufficiency review of the rejection of a self-defense claim, we view “all of the evidence in a neutral light and [ask] whether the State’s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.”  Zuliani, 97 S.W.3d at 595.  A verdict of guilt results in an implicit finding against the defensive theory.  Id. at 594; Saxton, 804 S.W.2d at 914. Loun v. State, 273 S.W.3d 406, 410 (Tex. App.—Texarkana 2008, no pet.).

            In our review of the evidence for sufficiency, we examine all of the evidence under the standards set out above, and then further determine whether any rational trier of fact could have found, beyond a reasonable doubt, for the State on the essential elements of the offense and on the self-defense issue.  Saxton, 804 S.W.2d at 914; Walker v. State, 291 S.W.3d 114, 117–18 (Tex. App.—Texarkana 2009, no pet.).

            In this case, there is evidence from three witnesses that would support a conclusion by the fact-finder that Pierce acted in self defense when he shot Haynes—that Pierce could believe, due to Haynes’ words and physical actions that Haynes was about to pull a gun out of his jacket and attack Pierce.  There is also evidence from one witness that could support a conclusion that Haynes was not out of control, that he did not threaten Pierce, and that he did not either orally or physically indicate that he was armed.  That evidence supports a conclusion that Pierce was not acting in self defense.

            Our review is not based on the number of witnesses provided by one side or the other.  Impossibility is not shown, and counsel exposed possible gaps in credibility for each witness.  In such a situation, the fact-finder has both the duty and responsibility of sorting the evidence to reach a decision.  Even if contradictory witness testimony may be compelling, the fact-finder is the sole judge of what weight to give to such testimony.  Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).  We should afford “almost complete deference to a jury’s decision when that decision is based upon an evaluation of credibility.”  Id. (citing Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006)).  Although there is testimony that could support a self-defense finding, it is not so strong, and the State’s evidence to the contrary so weak, as to permit us to second-guess the conclusion reached by the fact-finder.  The evidence is both legally and factually sufficient to support the verdict, and the fact-finder could have found against Pierce on his self-defense claim beyond a reasonable doubt.

            We affirm the judgment.

                                                                        Josh R. Morriss, III

                                                                        Chief Justice

Date Submitted:          June 14, 2010

Date Decided:             July 7, 2010

Do Not Publish          

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^[1]In a trial to the court, Pierce was convicted and sentenced to twenty-five years’ imprisonment.

^[2]Section 9.31 of the Texas Penal Code sets out the statutory definition of self-defense.  The statute was amended in 2007.  Act of Mar. 20, 2007, 80th Leg., R.S., ch. 1,§ 2, 2007 Tex. Gen. Laws 1.  The later version does not apply to this prosecution, as the offense occurred in February 2007, before the effective date of the amendment.