Sydney Lynn Weeks v. State

• Court: Court of Appeals of Texas
• Decided: March 13, 2009
• Docket: 07-09-00078-CR
• Status: Published

Opinion

NO. 07-09-0077-CR

NO. 07-09-0078-CR

NO. 07-09-0079-CR

NO. 07-09-0080-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MARCH 13, 2009

______________________________

SYDNEY LYNN WEEKS,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 46^TH DISTRICT COURT OF HARDEMAN COUNTY;

NOS. 4088, 4089, 4090, 4091; HON. DAN MIKE BIRD, PRESIDING

_______________________________

On Abatement and Remand

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

            Pending before the court are the appeals of Sydney Lynn Weeks. The clerk’s record in each case was filed on March 5, 2009. Contained therein is the Trial Court’s Certification of Defendant’s Right of Appeal, which was executed on February 17, 2009, after amendments to Rule 25.2(d) of the Texas Rules of Appellate Procedure became effective on September 1, 2007. The form on file does not comply with the amendments to the rule, which now require that a defendant sign the certification and receive a copy. Additionally, the new form provides certain admonishments to a defendant not previously required.

           Procedural rules generally control litigation from their effective date. Wilson v. State, 473 S.W.2d 532, 535 (Tex.Crim.App. 1971). Consequently, we abate these appeals and remand the causes to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to determine if appellant desires to continue the appeals and, if so, secure a proper Certification of Defendant’s Right of Appeal in compliance with Rule 25.2(d). Once properly completed and executed, the certification shall be included in a supplemental clerk’s record for each case. See Tex. R. App. P. 34.5(c)(2). The trial court shall cause these supplemental clerk's records to be filed with the Clerk of this Court by April 13, 2009. This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certification. If supplemental clerk’s records containing a proper certification are not filed in accordance with this order, these matters will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).

           It is so ordered.

                                                                      Per Curiam

Do not publish.

th in the west ditch of FM 282 for approximately 0.1 mile and struck a telephone junction box and then struck a tree in front of another business office.

Although Whinery claimed that his pickip was stopped, according to the Trooper's report Whinery was "traveling in front of the truck" and "apparently attempted a left turn into the drive of a private business." The driver of the truck "swerved right to avoid" the pickup. On cross-examination of Trooper Bishop defense counsel asked:

Q: Is it true what you told me was that when you arrived at the scene what your remembered was that there were no lights on Mr. Whinery's pickup and then you went down and checked them?

A: Yes, sir.

During his examination, the Trooper said that he did not recall if Whinery did anything which contributed to the accident and did not recall if the tail lights on the pickup were defective; however, he did testify that had any defects been found, it should have been noted on his report. ⁽³⁾

Citing Clark v. Waggoner, 452 S.W.2d 437 (Tex. 1970), Whinery argues that unless excused by some extenuating circumstances or condition, a driver whose vehicle strikes another vehicle which is lawfully stopped is guilty of negligence. However, because Clark and the other cases cited therein were all decided before adoption of the broad form submission practice as provided by Rule 277 of the Texas Rules of Civil Procedure, they are of little assistance. Moreover, in Clark the court did not hold as Whinery suggests, but only decided whether the foreseeability element of proximate cause was conclusively shown.

In Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 675 (Tex. 1998) a multi-car rear-end collision accident based on a jury verdict that none of the drivers was negligent, the trial court rendered a take nothing judgment for the defendants. On discretionary review, the Court held that the rule which requires that a driver proceed safely imposes a duty of reasonable care; therefore, a negligence per se instruction was not necessary. Further, in accord with Gomez, 940 S.W.2d at 251 and Weaver, Inc., 886 S.W.2d at 490, in Klein v. Brown-Griffin Texaco Distributors, 562 S.W.2d 910, 912 (Tex.Civ.App.-- Amarillo 1978, writ ref'd n.r.e.), we held that the fact that a rear-end collision occurred did not establish negligence on the part of the driver of the following vehicle. Considering the weather, time of day, and road and traffic conditions, and because there was no evidence that Whinery's brake lights were working, and Mann's testimony that he did not see any lights on the back of the truck was uncontradicted, we conclude that Whinery did not demonstrate the vital facts necessary for recovery as a matter of law.

Although Whinery plead negligence per se, the trial court did not give such an instruction. The trial court did instruct the jury as follows:

A fact may be established by direct evidence or by circumstantial evidence or both. A fact is established by direct evidence when proved by documentary evidence or by witnesses who saw the act done or hear the words spoken. A fact is established by circumstantial evidence when it may be fairly and reasonably inferred from other facts.

Notwithstanding this instruction, however, a vital fact necessary to support a legal element may not be established by "piling inference upon inference." Further, when circumstances are consistent with either of two facts and nothing shows that one is more probable than the other, neither fact can be inferred. Roth v. FFP Operating Partners, 994 S.W.2d 190, 197 (Tex.App.--Amarlllo 1999, pet. denied).

Accordingly, we do not agree with Whinery's contentions that the evidence was insufficient to support the verdict and that the jury verdict was so against the weight and preponderance of the evidence as to be manifestly wrong and unjust. It was within the province of the jury to determine whether Whinery succeeded in proving negligence by a preponderance of the evidence. Klein, 562 S.W.2d at 911; see also Farley v. M M Cattle Company, 529 S.W.2d 751, 756 (Tex. 1975) (holding that "cause in fact of an injury has been said to be a particularly apt question for jury determination"). Considering the evidence that (a) traffic was heavy, (b) the weather was rainy and the road was wet, (c) the absence of any evidence that the tail lights or brake lights were operating on the pickup immediately before the accident, and (d) that Mann was operating the truck below the posted speed limit and other evidence and permissible inferences, we conclude the evidence is not so weak as to make the jury verdict so against the great weight and preponderance of the evidence as to be clearly wrong and unjust and decline to substitute our judgment for that of the jury. Gomez, 940 S.W.2d at 252. Accordingly, issues one, two, and three are overruled.

Following submission of this appeal, counsel for appellants presented the Court with compact discs of a power point presentation. Appellees filed an objection challenging the presentation on the ground that it was not part of the appellate record. Appellants responded contending that the presentation was supplementation permitted by Rule 38.7 of the Texas Rules of Appellate Procedure. However, Rule 38.7 permits amendment or supplementation of a brief, not the record, whenever justice requires. We agree with appellees and decline to permit the power point presentation to be filed as part of the appellate record.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Tex. R. App. P. 47.4.

3. We do not consider the inability of the Trooper and other witnesses to recall some matters to be unusual, but instead normal in view of the six-year lapse of time between the accident and trial.