IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 4, 2004
______________________________MACKIE'S AUTOMOTIVE, INC.,
Appellant
v.
MIKE PARKS,
Appellee
_______________________________FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B31413-0102; HON. ED SELF, PRESIDING
_______________________________
Memorandum Opinion _______________________________
Before QUINN, REAVIS and CAMPBELL, JJ.
Mackie's Automotive, Inc. (Mackie's) appeals from a summary judgment granted in favor of appellee Mike Parks (Parks). Mackie's sued Parks on a sworn account to recover the costs of services rendered in repairing several motor vehicles. Parks filed a counterclaim alleging that Mackie's levied upon him a usurious interest rate. Both litigants eventually filed opposing motions for summary judgment. Thereafter, the trial court entered judgment decreeing that Mackie's take nothing against Parks and awarding Parks attorney's fees and costs of court. Two issues pend before us. Therein, Mackie's argues that the trial court erred in 1) denying its motion for summary judgment, and 2) granting summary judgment on Parks' unverified counterclaim of usury. We affirm the judgment of the trial court.
Standard of Review
The standard by which we review summary judgments is well established and need not be reiterated. Instead, we refer the litigants to Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985) and Davis v. First Indemnity of Am. Ins. Co., 56 S.W.3d 106 (Tex. App.-Amarillo 2001, no pet.) for its explanation.
Application of Standard
Whether the trial court erred in denying Mackie's request for summary judgment depends upon whether it erred in granting that of Parks. This is so because it does not dispute that it charged a usurious rate of interest, that the rate it charged was more than twice that allowed by law, or that the consequence of charging the rate can be the loss of recovery against Parks. Instead, the company posits that the trial court should not have granted the summary judgment request of Parks because the interest rate levied was an accidental or a bona fide error. See Tex. Fin. Code Ann. §305.101 (Vernon Supp. 2004) (stating that a creditor is not subject to penalty for any usurious interest that arose from an accidental or bona fide error). At the very least, the evidence it presented created a fact issue regarding the matter, it continued. Furthermore, that evidence consisted of its president's attestation that the "company utilized a computerized billing service out of Atlanta, Georgia, which unknown to Mackie's Automotive, Inc.[,] included a monthly finance charge in excess of that allowed by law" and "[t]he inclusion of a finance charge in excess of that allowed by law by the computerized service hired by Mackie's Automotive . . . was accidental or due to a bona fide error as Mackie's . . . prior to hiring an attorney to represent [it] in the appeal of the above styled cause[,] did not know about such error." (Emphasis added). (1) That no one at Mackie's knew the rate being levied by the Atlanta computer service was usurious is of no consequence, however. This is because the defense of accident or bona fide mistake encompasses clerical errors, not purported misinterpretations of the law. Mayfield v. San Jacinto Sav. Ass'n, 788 S.W.2d 119, 122 (Tex. App. - Houston [14th Dist.] 1990, writ denied) (holding the defense is limited to clerical errors and erroneous interpretations of the law are not excused). Nor does it encompass ignorance of the usury laws. Commercial Credit Equip. Corp. v. West, 677 S.W.2d 669, 677 (Tex. App.-Amarillo 1984, writ ref'd n.r.e.) (stating that the lack of knowledge about the usury laws or their application to a particular transaction did not constitute a bona fide error). Moreover, no one at Mackie's said that they did not intend to charge the rate actually levied. So, the evidence upon which Mackie's relies to create a material issue of fact did and does not do that.
Next, to the extent that Parks may not have verified its allegation of usury when asserted in its counterclaim, we find the deficiency waived. It is true that one must verify by affidavit a pleading wherein the defense of usury is raised, unless the truth of the matter appears of record. Tex. R. App. P. 93(11). However, Mackie's did not specially except to the missing verification or otherwise complain of the evidence tendered by Parks to illustrate that the transaction was usurious. See Decuire v. Sinegal, 617 S.W.2d 725, 726 (Tex. App.-Beaumont 1981, no writ) (stating that the failure to comply with Rule 93 was waived when the defendant did not specially except to the pleading or object to the evidence). Thus, the defect was waived.
We overrule each issue asserted by Mackie's and affirm the judgment of the trial court.
Brian Quinn
Justice
1. The excessive rate (1.5 percent per month) was also requested (as prejudgment interest) by Mackie's in the petition it originally filed against Parks. The petition was apparently written by an individual in Hale County, Texas, not a computerized billing service in Atlanta, Georgia. And, why the excessive rate was sought in that document goes unjustified.
yle="text-align: center">FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 28, 2009
______________________________
ERIC JEROME MACK, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY;
NO. 1095388D; HONORABLE EVERETT YOUNG, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Eric Jerome Mack, pled guilty in open court and was convicted of delivery of a controlled substance, enhanced. Punishment was assessed by a jury at fifty-five years confinement and a $10,000 fine. Appellant contends the trial court abused its discretion by: (1) admitting evidence of his gang affiliation during the punishment phase; and (2) failing to grant his motion to quash the venire panel because the trial court arraigned him at the conclusion of the State’s voir dire. Originally appealed to the 2nd Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the 2nd Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3. We affirm.
I. Gang Affiliation
Appellant asserts the trial court abused its discretion by admitting extraneous gang affiliation character evidence in the absence of sufficient evidence from which a rational factfinder could find beyond a reasonable doubt the gang affiliation evidence was true.
We review a trial court’s ruling admitting testimony under an abuse of discretion standard; McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005), and will uphold the trial court’s decision if it is at least within the zone of reasonable disagreement. Page v. State, 213 S.W.3d 332, 337 (Tex.Crim.App. 2006). See Hernandez v. State, 205 S.W.3d 555, 558 (Tex.App.--Amarillo 2006, pet. ref’d).
Article 37.07, section 3(a) of the Texas Code of Criminal Procedure governs the admissibility of evidence during the punishment phase of a non-capital case. Sims v. State, 273 S.W.3d 291, 295 (Tex.Crim.App. 2008). The current version of this provision allows for the admission of any evidence the trial court “deems relevant to sentencing” and provides, in pertinent part, as follows:
Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, . . . and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008).
Testimony regarding a defendant’s affiliation with a gang may be relevant and admissible at the punishment stage of a trial to show the character of the accused. See Beasley v. State, 902 S.W.2d 452, 456 (Tex.Crim.App. 1995); Anderson v. State, 901 S.W.2d 946, 950 (Tex.Crim.App. 1995). In Beasley, the Court held that it is not necessary to link the accused to the bad acts or misconduct generally engaged in by gang members, so long as the factfinder is (1) provided with evidence of the defendant’s gang membership, (2) provided with evidence of character and reputation of gang, (3) not required to determine if defendant committed the bad acts or misconduct, and (4) only asked to consider reputation or character of the accused. Beasley, 902 S.W.2d at 457. See Sierra v. State, 266 S.W.3d 72, 77 (Tex.App.–Houston [1st Dist.] 2008, no pet.); Dean v. State, Nos. 02-07-0287-CR, 02-07-0288-CR, 02-07-0289-CR, 2008 WL 4831390, at *4 (Tex.App.–Fort Worth Nov. 6, 2008, pet. ref’d) (not designated for publication). The evidence must also show the purpose of the gang to which the defendant belongs so that the factfinder can conclude whether membership in the gang is a positive or negative character trait of the defendant. See Anderson, 901 S.W.2d at 950.
At trial, Officer Glen Gibson, City of Grand Prairie, testified that, in March 1997, he arrested Appellant. In subsequent encounters, Officer Gibson testified Appellant admitted he was a member of the 23rd Blood Gang. He further testified that he was familiar with the gang because they operated in his jurisdiction and engaged in criminal activity such as narcotics, drive-by shootings, robberies, and car-jackings.
Appellant testified he told Officer Gibson that he hung with the Bloods–not that he was a member. Further into his testimony, however, Appellant admitted wearing a t-shirt in jail that represented he was a California Blood member and responded affirmatively when asked if he was a Blood gang member during a jail classification interview in July 2006.
Under Beasley and Anderson, the State met the evidentiary predicate for admission of evidence of Appellant’s gang affiliation and the jury determined whether the State’s level of proof was sufficient. Accordingly, we find that the trial court did not abuse its discretion in admitting evidence of Appellant’s gang membership. See Pierce v. United States, 234 S.W.3d 265, 272 (Tex.App.–Waco 2007, pet. ref’d). Appellant’s first point of error is overruled.
II. Arraignment
The Texas Code of Criminal Procedure provides that, after indictment, there shall be an arraignment in all felony cases and misdemeanor cases punishable by imprisonment. Tex. Code Crim. Proc. Ann. art. 26.01 (Vernon 2009). Although the Code does not set any outside limit for the time of arraignment, the Court of Criminal Appeals has uniformly held that, while it is proper to arraign an accused before the jury is selected, the fact that it was done after the jury was sworn and impaneled presents no error. Thompson v. State, 447 S.W.2d 920, 922 (Tex.Crim.App. 1969); Russell v. State, 206 S.W. 79, 79 (Tex.Crim.App. 1918). See Barnes v. Beto, 247 F. Supp. 435, 436 (D.C. Tex. 1964), aff’d, 353 F.2d 208 (5th C ir. 1965), cert. denied, 383 U.S. 920, 86 S. Ct. 918, 15 L. Ed. 2d 675 (1966). Here, Appellant was arraigned outside the presence of the jury prior to the jury being sworn and impaneled. Further, Appellant makes no showing that he was prejudiced thereby. Accordingly, we find the trial court did not abuse its discretion by denying Appellant’s motion to quash. Appellant’s second point of error is overruled.
Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.