In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-01-00115-CV ______________________________
IN RE: ESTATE OF LARRY FLOYD SILLICK, DECEASED
On Appeal from the 62nd Judicial District Court Franklin County, Texas Trial Court No. 8985
Before Morriss, C.J., Grant and Cornelius,* JJ. Opinion by Chief Justice Morriss
________________________________
*William J. Cornelius, Retired, Chief Justice, Sitting by Assignment
O P I N I O NI.
Statement of the Case
The jury found Larry Floyd Sillick's holographic April 1993 Last Will and Testament was entirely in his handwriting. The jury also found the purported holographic 1998 will was not entirely in his handwriting. On appeal, Sheila Frazier brings the following points of error: (1) the court erred by denying her motion for judgment notwithstanding the verdict; (2) the evidence is factually insufficient to support the verdict; and (3) the court erred by admitting evidence that the decedent and his wife had attempted to reconcile before his death.II.
Facts
On August 8, 1998, Larry Floyd Sillick died as a result of an automobile accident. Larry was survived by his wife, Carolyn Sillick, his sister, Sheila Frazier, and his son, Larry Shane Sillick (hereinafter Shane). Carolyn testified that in 1993 Larry drafted a holographic will, leaving one dollar to his children and the remainder to Carolyn. She also testified that she drafted a similar will leaving everything to Larry. However, on March 2, 1998, Carolyn filed for divorce from Larry, but Larry died before the divorce became final. On his death, Larry's sister, Sheila, brought forth a second will to be probated. The second will devises all of Larry's property, but fails to name a beneficiary. However, the envelope in which the document was allegedly found stated "Personell [sic] Property of Sheila Frazier by Larry Sillick 3/7/98, Open in the Event of my Death, sealed by Larry Sillick 3/7/98." At trial, Sheila contended the 1998 will was entirely in Larry's handwriting and operated to revoke the 1993 will. The jury returned a verdict invalidating the 1998 will and Sheila appeals.
III.
Discussion
A. Did the trial court commit error by denying Sheila's motion for judgment notwithstanding the verdict?
On a motion for judgment notwithstanding the verdict, all evidence must be considered by the trial court in the light most favorable to the jury's verdict, every reasonable inference deducible from the evidence must be indulged in favor of the verdict, and only evidence and inferences that support the jury's finding should be considered. Tex. R. Civ. P. 301; Dodd v. Tex. Farm Prods. Co., 576 S.W.2d 812, 814-15 (Tex. 1979); CPS Int'l, Inc. v. Harris & Westmoreland, 784 S.W.2d 538, 541 (Tex. App.-Texarkana 1990, no writ). When there is more than a scintilla of competent evidence to support the jury's findings, a judgment notwithstanding the verdict is improper.
Sheila complains on appeal that the jury's decision regarding the 1998 will was erroneous. She contends the only evidence in support of the jury's verdict was Carolyn's testimony. While Carolyn did testify the 1998 will did not look like her husband's handwriting, she also testified that her husband was constantly fighting with Sheila over their mother's estate and that Larry was very distrustful of her. Further, Carolyn introduced evidence the 1998 will was not produced or seen by anyone until it turned up in the attorney's office after Larry's death. (1) Carolyn elicited testimony from Sheila that she had misspelled the word "personal" as "personel", which was similar to the incorrect spelling on the envelope containing the 1998 will. The 1998 will was purportedly written on March 7, 1998, but Carolyn introduced a letter written to her from Larry on March 6 that professed his love for her and his intention to see her later that week. Additionally, there was testimony from one of Sheila's own witnesses that the signature on the 1998 will might not have been Larry's.
In our review, we must employ appropriate deference to avoid substituting our judgment for that of the fact-finder, and any evaluation should not substantially intrude on the fact-finder's role as the sole judge of the weight and credibility given to witness testimony. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). In light of the foregoing evidence in favor of the verdict, there is more than a scintilla of evidence to support the jury's findings; therefore, the trial court did not err by denying Sheila's motion.
B. Was the evidence factually insufficient to support the verdict?
When considering a factual sufficiency challenge to a jury's verdict, courts of appeals must consider and weigh all of the evidence, not just that evidence which supports the verdict. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). A court of appeals may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id.; Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The court of appeals is not a fact-finder. Accordingly, the court of appeals may not pass on the witnesses' credibility or substitute its judgment for that of the jury, even if the evidence would clearly support a different result. Maritime, 971 S.W.2d at 407. If we find the evidence insufficient, we must clearly state why the jury's finding is factually insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986), rev'd on other grounds, Crown Life Ins. Co. v. Casteel, 22 SW.3d 378 (Tex. 2000).
In contrast to the evidence set forth above in support of the verdict, Sheila presented testimony from five witnesses stating the 1998 will was entirely in Larry's handwriting. For example, Larry's ex-wife, Rose, testified the 1998 will was entirely in Larry's handwriting. However, on cross-examination, Rose admitted she had not seen Larry's handwriting in the twenty years preceding the trial. Further, Barry Don Henson testified he thought the body of the will was in Larry's handwriting, but was not positive about the signature. Henson also testified that some of the exemplars of Larry's handwriting produced by Sheila were not accurate depictions of Larry's handwriting.
When viewing the evidence in a neutral light, Sheila has failed to show the verdict is against the great weight and preponderance of the evidence. Cain, 709 S.W.2d at 176. In light of the foregoing and the deference afforded the trier of fact in judging the credibility of the witnesses, there is certainly some doubt as to the origin of the 1998 will. Accordingly, the evidence was factually sufficient to support the judgment.
C. Did the trial court commit reversible error by admitting evidence of Larry and Carolyn's attempted reconciliation?
The admission or exclusion of evidence is a matter within the discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). To reverse a judgment based on error in the admission or exclusion of evidence, an appellant must show that the error probably caused the rendition of an improper verdict or that it prevented the appellant from properly presenting the case to the court of appeals. Tex. R. App. P. 44.1(a); McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992). In making this determination, we must review the entire record.
According to the Texas Rules of Evidence, evidence is relevant if it has a tendency "to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex. R. Evid. 401. The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action, rather, it is whether the trial court acted without reference to any guilding rules or principles; and the mere fact that a trial court may decide a matter within its discretionary authority different than an appellate judge does not demonstrate such an abuse. Downer v. Aquamarine Op., 701 S.W.2d 238 (Tex. 1985). In the present case, the court heard the following exchange:
[Counsel]: All right. Now did that ever - divorce action ever come to a conclusion?
[Carolyn]: No, it did not.
[Counsel]: Okay. And what was the reason for that?
[Carolyn]: Well, Larry died before the divorce was final. But we were trying to reconcile.
[Appellant's Counsel]: Your Honor, may I object, and may we approach at this time?
Sheila argued the evidence was inadmissible because events that took place after the 1998 will was drafted were irrelevant. On the other hand, Carolyn contended that the validity of the 1998 will was dependent on the totality of the circumstances. The court overruled the objection and admitted the testimony.
On appeal, Sheila contends the admission of this evidence was reversible error because the jury could have believed Carolyn's testimony and determined that it would be inequitable to award Larry's property to Sheila if Carolyn and Larry were attempting to reconcile. However, the origin of the 1998 will was an issue, and Carolyn's testimony would have been relevant to the jury in determining whether Larry intended to change his will. Sheila has failed to show that the trial court acted outside the scope of its discretion or that it acted without regard to any guiding principles in making his determination. Downer, 701 S.W.2d at 241-42. As a result, the trial court did not commit error by admitting the testimony.
IV.
Conclusion
Based on the foregoing, we affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 6, 2002
Date Decided: November 1, 2002
Do Not Publish
1. Allegedly, Larry instructed a friend that, in the event of his death, Carolyn was to retrieve certain documents from his home, including the alleged 1998 will, and deliver them to his sister and the attorney.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00220-CR
______________________________
PERRY JUDKINS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Fannin County, Texas
Trial Court No. 44918
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Responding to a report of a fight in progress at the Ladonia Housing Authority apartments (LHA) in Ladonia, Texas, officers of the Fannin County Sheriffs Office, Texas Department of Public Safety (DPS), and the Fannin County Special React Team (SWAT team), encountered about seventy people [a]mongst the housing authority and on the grounds. The officers secured the entire area and, based upon statements that they [had] a knife or something to that effect, the officers [were] positioned to start conducting searches.[1] Trooper Kevin Sanman of the DPS detained and patted down three or four people, including Perry Judkins, Jr., who were standing in a little group beside one of the apartments. When searching Judkins, Sanman felt something he thought could be contraband, and he testified that Judkins gave him permission to search. Sanman discovered a baggie of marihuana in Judkins pocket and arrested him.
Judkins was charged with possession of marihuana in an amount less than two ounces. The trial court denied Judkins motion to suppress the drugs. Judkins later pled guilty and was sentenced to deferred adjudication community supervision for nine months.[2]
On appeal, Judkins argues that the trial court should have suppressed the drugs because: (1) the officers did not have reasonable suspicion to detain and frisk him; and (2) the officers lacked probable cause, or consent, to search him.
We reverse the judgment of the trial court because the officer lacked reasonable suspicion to detain Judkins.
I. Factual and Procedural Background
On or about March 20, 2010, in the late night or early morning hours, Mr. Brown, a resident at the LHA, called 9-1-1 and reported that a fight, involving a large group of people and possibly a knife, was occurring on the LHA grounds. Brown said that he heard whooping and hollering, fights going on and that he [had overheard] people saying that -- they made the statement that they have a knife or something to that effect.
When the police arrived at the LHA, they saw several groups of people, totaling about seventy people in all. Fearing the situation could get out of control, Sergeant Leonard Baxter called for assistance because there were only seven officers there at the time, and the LHA was a high crime area where fights had occurred in the past. The SWAT team, and Trooper Sanman responded to the call for assistance.
When Sanman arrived on the scene, [p]eople [were] running all over the place. A few minutes later, one of the police officers already on the scene told him to watch and detain a small group of four men, one of whom was Judkins, who were standing beside one of the LHA apartments. Sanman detained the four men and got identification from them. He testified that he patted down Judkins out of fear for his safety, as the officers were dealing with a large group of people in a high crime area, responding to reports of a large fight and a possible weapon.
When Sanman patted down Judkins, he felt something in his pocket that felt like it could be contraband. Sanman said he asked for and received Judkins permission to search the inside of his pocket. Judkins denied giving Sanman permission to search him.
II. Standard of Review
We review the trial courts decision to deny Judkins motion to suppress evidence by applying a bifurcated standard of review. Graves v. State, 307 S.W.3d 483, 489 (Tex. App.Texarkana 2010, pet. refd); Rogers v. State, 291 S.W.3d 148, 151 (Tex. App.Texarkana 2009, pet. refd).
Because the trial court is the exclusive trier of fact and judge of witness credibility at a suppression hearing, we afford almost total deference to its determination of facts supported by the record. State v. Ross, 32 S.W.3d 853, 85657 (Tex. Crim. App. 2000); Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We also afford such deference to a trial courts ruling on application of law to fact questions, also known as mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).
While we defer to the trial court on its determination of historical facts and credibility, we review de novo its application of the law and determination on questions not turning on credibility. Carmouche, 10 S.W.3d at 332; Guzman, 955 S.W.2d at 89; Graves, 307 S.W.3d at 489. Since all evidence is viewed in the light most favorable to the trial courts ruling, we are obligated to uphold the denial of Judkins motion to suppress if it was supported by the record and was correct under any theory of law applicable to the case. Carmouche, 10 S.W.3d at 328; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
III. Reasonable Suspicion to Detain
In his first point of error, Judkins contends that the trial court should have suppressed the evidence because the officers lacked reasonable suspicion to detain and frisk him.
The State does not argue that Judkins was not detained.[3] Further, the State stipulated that Judkins was searched and arrested without a warrant. An officers warrantless search of a person or persons property is presumed to be an unreasonable search under the Fourth Amendment unless an exception excuses the officers conduct. Minnesota v. Dickerson, 508 U.S. 366, 372 (1993); Brimage v. State, 918 S.W.2d 466, 500 (Tex. Crim. App. 1994) (plurality op.) (op. on rehg); Kelly v. State, 669 S.W.2d 720, 725 (Tex. Crim. App. 1984); Hitchcock v. State, 118 S.W.3d 844, 848 (Tex. App.Texarkana 2003, pet. refd).
An officer may briefly stop a suspicious individual in order to determine his or her identity or to maintain the status quo momentarily while obtaining more information. Adams v. Williams, 407 U.S. 143, 147 (1972); Terry v. Ohio, 392 U.S. 1, 21 (1968); Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994). In Terry, the United States Supreme Court established a two-pronged test for such investigative detentions. Terry, 392 U.S. at 1920. To determine the reasonableness of an investigative detention, the court must inquire: (1) whether the officers action was justified at its inception; and, (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place. Davis v. State, 947 S.W.2d 240, 242 (Tex. Crim. App. 1997).
Under the first prong, a police officer may lawfully conduct a temporary detention if there is reasonable suspicion to believe that the detained person is violating the law. Terry, 392 U.S. at 21; Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific, articulable facts that when combined with rational inferences from those facts, would lead the officer to reasonably suspect that a particular person has, or soon will be, engaged in criminal activity. Brother v. State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005); Doyle v. State, 265 S.W.3d 28, 31 (Tex. App.Houston [1st Dist.] 2008, pet. refd) (citing Terry, 392 U.S. at 30). While the State need not establish with absolute certainty that a crime has occurred in order to show reasonable suspicion, these facts must be more than a mere hunch or suspicion. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Davis, 947 S.W.2d at 244. The determination of reasonable suspicion is factual and must be examined in terms of the totality of the circumstances at the time of the stop. Curtis v. State, 238 S.W.3d 376, 380 (Tex. Crim. App. 2007); Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997).
The States contention, urged at the suppression hearing and on appeal, is that Judkins was detained because he was present in a high crime area where a 9-1-1 caller reported seeing a large fight, possibly involving a weapon, and there were a limited number of officers available to secure the scene.
In this case, Browns 9-1-1 call was reasonably reliable because he was present at the LHA and he identified himself, placing himself in a position to be easily found, identified, and held responsible for the information he provided. Hawes v. State, 125 S.W.3d 535, 540 (Tex. App.Houston [1st Dist.] 2002, no pet.). However, Brown did not report personally seeing the fight or a weapon, and all he could articulate was that he suspected there might be a fight and that he overheard a statement that there was a knife. Brown did not describe any particular suspect that was involved in the fight.
Judkins testified that on the night in question, he was at the LHA attending a big party for his sisters birthday and that there was some females fighting at the party. No evidence suggested that Judkins engaged in any behavior that raised any suspicion of his involvement with criminal activity. There is no evidence that Judkins was involved in the fight, that he possessed a weapon at any time, or that any weapon was found. Likewise, there is no evidence that Judkins exhibited nervous, suspicious, or evasive behavior, such as furtive gestures or unprovoked flight upon noticing the arrival of police. Illinois v. Wardlow, 528 U.S. 119, 124 (2000). Judkins presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that he was associated with criminal activity.[4] Wardlow, 528 U.S. at 124. By the time of the pat-down, certainly, there had been a detention, but when considering the totality of the circumstances, there had been identified no articulable fact supporting any reasonable suspicion that Judkins or his immediate group was engaged in any criminal activity. Accordingly, we sustain Judkins first point of error and find the trial court abused its discretion in denying the motion to suppress. Since we have decided that no reasonable suspicion existed to detain Judkins and no other justification for thereafter searching him having been alleged, the search was improper and the fruits thereof should have been suppressed. Since the basis for the conviction was the marihuana found as a result of the improper search of Judkins, the error was harmful.
We reverse the judgment and remand to the trial court for further proceedings.
Jack Carter
Justice
Date Submitted: April 13, 2011
Date Decided: April 19, 2011
Do Not Publish
[1]The females were not searched.
[2]Judkins was also fined $350.00, ordered to pay restitution of $140.00 and ordered to pay court costs.
[3]Sanman commanded Judkins and the others with him to turn around and place their hands on the wall and dont move. He then gathered identification and continued to detain the group. They remained in the same position during the detention, which lasted approximately ten to fifteen minutes.
[4]Sanman did not respond positively when he was asked if Judkins took off running.