IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 14, 2001
______________________________ERIC MCDUFFIE,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 137th DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2000-432,497; HON. CECIL PURYEAR, PRESIDING _______________________________
Before BOYD, C.J., QUINN and REAVIS, JJ.
Eric McDuffie (appellant) appeals his murder conviction. Through two issues, he contends that the trial court erred in admitting into evidence 1) a picture depicting the stock of a shotgun found in the trunk of his car and 2) testimony regarding his gang affililiation. We affirm the judgment.
BackgroundThe State indicted appellant for the murder of Stephen Lopez. Appellant confessed to shooting Lopez's "bitch ass once" as the two drove in separate cars down a street in Lubbock. The one shot fired by appellant struck Lopez in the chest, and Lopez subsequently died from the wound.
Issue OneAppellant initially complains of the trial court's admission into evidence of pictures depicting the trunk of his car. Seen in the pictures is a butt or stock of a shotgun. Admission of the pictures allegedly violated Texas Rules of Evidence 401, 403, and 404(b) and constituted reversible error. We overrule the contention for it was waived. That is, while appellant objected to the pictures when initially tendered into evidence, he remained silent when they were again referred to later in the trial. Given that appellant had not requested or obtained a running or continuous objection to the photographs, he was obligated to object each time they or their contents were mentioned. Ethington v. State, 819 S.W.2d 854, 858-60 (Tex. Crim. App. 1991). Since he did not, his objections were waived. Id.
Issue TwoAppellant next contends that the trial court erred in admitting evidence, during the punishment phase of the trial, of his affiliation with a criminal street gang. This was allegedly error because it violated his First Amendment right to associate with others. We overrule the point.
Evidence of one's association with a criminal street gang is admissible if relevant, despite the First Amendment to the United States Constitution. Mason v. State, 905 S.W.2d 570, 576-77 (Tex. Crim. App. 1995). Furthermore, such evidence is relevant at the punishment phase of the trial "for its bearing on the character of the accused." Aguilar v. State, 29 S.W.3d 268, 270 (Tex. App.-Houston [14th Dist.] 2000, no pet.). All the State need do to secure its admission is to present evidence of the gang's violent or illegal activities and the defendant's membership in the organization. Mason v. State, 905 S.W.2d at 577. Here, the State tendered evidence of 1) the violent and illegal activities of criminal street gangs in general, 2) appellant's membership in a particular gang, and 3) this gang's categorization as a criminal street gang. Given this, the evidence was relevant to assessing appellant's character when determining punishment. Thus, it was admissible.
Accordingly, we affirm the judgment of the trial court.
Per Curiam
Do not publish.
sical or sexual abuse by one parent . . . directed against the other parent, spouse or a child. And the Court finds that to be in the best interest of the children. . . . (2)
Following that announcement, the trial court declared Craig and Jackie to be joint managing conservators of their children.
Upon Jackie's request, the trial court entered, as pertinent to this appeal, the following findings of fact and conclusions of law:
* * *
- It is in the best interest of the children that [Jackie] and [Craig] be appointed Joint Managing Conservators of the children.
- There is no credible evidence presenting a history or pattern of child neglect, sexual abuse or physical abuse by one parent directed against the other parent, a spouse or a child.
- [Craig] is a person fit to be appointed a parent joint managing conservator with the exclusive right to establish the primary residence of the children without regard to geographic location.
- [Jackie] is a person fit to be appointed a parent joint managing conservator.
* * *
- That a protective order was entered against [Craig] for the protection of [Jackie]. Three days after the protective order was entered, the parties again lived together for a period of more than five months.
12. Any finding of fact that is a conclusion of law shall be deemed a conclusion of law.
In June of 2003, Jackie filed her notice of appeal to this Court.
By her first issue, Jackie contends the trial court erred when it found there was no credible evidence presenting a history or pattern of past or present physical abuse by Craig against her. Jackie argues, in other words, the critical issue is "whether credible evidence presenting a history or pattern of past or present physical abuse by [Craig] against [Jackie] was presented at trial." With her second issue, Jackie maintains the trial court abused its discretion by appointing the parties joint managing conservators when such credible evidence was presented. Because the two issues advance questions of law, and because our disposition of the first issue controls our disposition of the second, we will discuss the issues contemporaneously.
Trial Court Discretion
Well established Texas law affords the trial court with wide latitude in determining the best interest of minor children, and the decision of the trial court will be reversed only when it appears from the record as a whole that the court has abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). That discretion, however, is now subject to the provisions of section 153.004 of the Family Code, which applies when there is a history of domestic violence within the family. (Vernon 2002). (3) Specifically, the Family Code provides, in pertinent part:
(a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party's spouse . . . committed within a two-year period preceding the filing of the suit or during the pendency of the suit.
- The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child . . . .
Tex. Fam. Code Ann. § 153.004 (a) & (b) (Vernon 2002).
Findings of Fact and Conclusions of Law
Next, we notice the trial court's designation of a finding of fact or conclusion of law is not controlling on appeal. See Ray v. Farmers State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979). The trial court's finding number six that "there is no credible evidence presenting a history or pattern of child neglect, sexual abuse or physical abuse" is similar to a finding that Jackie "failed to prove" certain elements. Cf. Williford v. Submergible Cable, 895 S.W.2 379, 383 (Tex.App.-Amarillo 1994, no writ) (such a negative answer means the party with the burden of proof has failed to carry the burden). Because the evidence of physical abuse was undisputed, we conclude finding number six constitutes a conclusion by the trial court that, as a matter of law, Jackie failed to prove her claim that physical abuse had occurred. Cf. Sandoval v. Hartford Cas. Ins. Co., 653 S.W.2d 604, 607 (Tex.App.-Amarillo 1983, no writ) (where the testimony of a witness, even an interested one, is clear, direct, positive, and uncontradicted by any other witness or attendant circumstances, it is taken as true as a matter of law). We will, therefore, review the trial court's conclusion of law de novo. In re Humphreys, 880 S.W.2d 402, 403 (Tex. 1994), cert. denied, 513 U.S. 964, 115 S. Ct. 427, 130 L. Ed. 2d 340 (1994). That conclusion will be set aside if it is erroneous as a matter of law. Benedictine Sisters of the Good Shepard v. Ellison, 956 S.W.2d 629, 631 (Tex.App.-San Antonio 1997, pet. denied).
Analysis
The Legislature did not define the terms history or pattern when it enacted section 153.004 of the Family Code. However, where, as here, the statute is clear and unambiguous, the rules of statutory construction are inappropriate, and the statute should be given its plain meaning. Cail v. Service Motors Inc., 660 S.W.2d 814, 815 (Tex. 1983). In common usage, the term history is defined as "events that form the subject matter of a history" or "events of the past." Merriam-Webster's Collegiate Dictionary 549 (10th Ed. 2002). From that definition we deduce that, although a single act of violence or abuse may not constitute a pattern, it can amount to a history of physical abuse. (4) Cf. Tex. Fam. Code Ann. §153.004 (b) (Vernon 2002) (providing "a history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child") (emphasis added). Considering the record before us, we conclude that, because the acts of physical abuse were either conceded by the parties or revealed by other uncontradicted testimony at trial, as a matter of law credible evidence was presented of a history of physical abuse by one parent against the other parent. Cf. Texas & N.O.R. Co. v. Burden, 203 S.W.2d 522, 530 (Tex. 1947) (where there is evidence upon an issue, and there is no evidence to the contrary, the fact finder does not have the right to disregard the undisputed evidence and decide the issue in accordance with his wishes). The trial court's conclusion of law to the contrary is erroneous as a matter of law. Benedictine Sisters, 956 S.W.2d at 631. (5) Therefore, because the Family Code prohibits the appointment of joint managing conservators where a history of physical abuse is presented, the trial court abused its discretion in so designating Jackie and Craig. Jackie's first and second issues are sustained.
Accordingly, we reverse that portion of the trial court's judgment relating to conservatorship, possession, and child support, and remand those issues to the trial court for further proceedings. In all other aspects, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
1. The final decree of divorce granted Jackie's request for her name to be changed to Jackie Stulken and many documents contained in the record are so styled. For the sake of clarity, however, we will refer to her as Jackie.
2. Jackie and Craig agree that none of the family violence was directed at their children.
3. We recognize the most recent edition of the statute is located in a cumulative
pocket part; however, because that version is different from the one under which the parties
operated at trial, we will refer, instead, to the bound volume. Cf. Tex. Fam. Code Ann. §
153.004 (Vernon 2002) with Tex. Fam. Code. Ann. § 153.004 (Vernon Supp. 2004).
4. 5.