IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 6, 2007
______________________________TERRY J. MORRISON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 137TH DISTRICT COURT OF HOCKLEY COUNTY;
NO. 2006-414,081; HON. CECIL G. PURYEAR, PRESIDING _______________________________
MEMORANDUM OPINION _______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Terry J. Morrison contends the evidence is legally and factually insufficient to sustain his conviction of forgery of a financial instrument. We affirm the judgment.
The standards by which we test the sufficiency of the evidence are well established and are found in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) and Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006). We refer the parties to those cases.
Christopher Gonzalez, the owner of New Meaning Drywall, discovered that some checks on his business account were missing. Thereafter, he closed his account.
On May 25, 2006, Lance Branscum delivered an order of pizzas to an apartment. Appellant answered the door but only wide enough to accept the pizzas and give Branscum a check. The check was written against the closed account of Christopher Gonzalez and had on its face the name "C. Michael Gonzalez d/b/a New Meaning Drywall." The address of the drywall business also appeared on it. Apparently because the instrument contained the endorsement of a "Michael Gonzalez," appellant told Branscum that it was from his roommate. However, the actual account owner testified that he did not know appellant; thus it could be rationally inferred that he was not appellant's roommate.
Branscum did not ask for identification but instead returned to his vehicle. So too did he observe that the address on the check was not that of the location at which he delivered the pizzas. Consequently, he called the telephone number on the check and reached C. Michael Gonzalez (the actual account owner) who told Branscum that he did not order any pizzas.
Appellant was charged with forgery with intent to defraud and harm another by passing a forged writing knowing such writing to be forged. (1) See Tex. Pen. Code Ann. §32.21(a)(1)(B) and (b) (Vernon Supp. 2006). Before us, he does not challenge the sufficiency of the evidence to show that he passed a forged writing, but questions whether the State proved he knew it to be forged.
Authority illustrates that from evidence of a defendant making an affirmative, false statement explaining how he obtained the instrument, a jury can rationally conclude, beyond all reasonable doubt, that he had knowledge of the instrument's forged nature. See Williams v. State, 688 S.W.2d 486, 490 (Tex. Crim. App. 1985); see also Colburn v. State, 501 S.W.2d 680, 682 (Tex. Crim. App. 1973) (holding that false representations as to the maker or origin of the check constitute sufficient evidence to prove knowledge the check is forged); Golden v. State, 475 S.W.2d 273, 274 (Tex. Crim. App. 1971) (holding that the evidence was sufficient to prove knowledge of its forged nature when the defendant possessed and passed the forged check and falsely represented that he obtained it from a specific person). Here, the check appeared to be executed by Michael Gonzalez of New Meaning Drywall. The maker, according to appellant, was his roommate. Yet, the address appearing on the check was not that of the location whereat appellant was found. Moreover, C. Michael Gonzalez of New Meaning Drywall testified that he did not know appellant. From this, and the teachings of Williams, Colburn, and Golden, we conclude that the evidence was sufficient to permit a rational jury to conclude beyond reasonable doubt that appellant knew the check given Branscum was forged.
As to the factual sufficiency of the evidence, none of the police officers investigating the crime remembered Branscum telling them that appellant had said his roommate wrote the check. Nevertheless, the credibility of Branscum was for the jury to resolve, and we find no basis on which to overturn its resolution of that issue. If believed, the evidence was both legally and factually sufficient to sustain the conviction.
The judgment of the trial court is affirmed.
Per Curiam
Do not publish.
1. The State established through its own expert handwriting witness that appellant was not the maker
of the check.
therefore, waived).
Additionally, the record also discloses that Carla failed to respond to Cire's motion to compel discovery. Under the local rules adopted and implemented by the trial court, this permitted the latter to conclude that she did not contest the relief sought in the motion. That is, the local rule (approved by the Texas Supreme Court on May 26, 1999), of which we can take judicial notice, see Gordon v. Ward, 822 S.W.2d 90, 92 (Tex. App.--Houston [1st Dist.] 1991, writ denied) (taking judicial notice of the same local rules), provided that the "[f]ailure to file a response [to a motion] may be considered a representation of no opposition." Harris County Rules of the Civil Trial Division 3.3.2. Thus, in failing to respond to the motion of Cire, the trial court was authorized to conclude that Carla had no objection to the relief sought. This is especially so when Carla does not suggest that she lacked knowledge or notice of the motion. (1)
August 3, 1998 Order-- Compelling Answers to Deposition Questions
Next, Carla believes that the trial court erred in executing its August 3, 1998 order compelling her to answer various deposition questions. We disagree for the following reasons.
First, we again find no response by Carla to Cire's motion requesting that she be required to answer the deposition questions at issue. And, like her failure to reply to the motion to compel discussed above, this entitled the trial court to conclude that she did not oppose the relief sought. Again, this is especially so when Carla does not suggest that she lacked knowledge or notice of the motion or the date on which it was due to be submitted to the trial court for disposition.
Second, the assertions uttered before us by Carla are nothing more than conclusions without accompanying explanation of law or fact. This circumstance, as previously mentioned, results in the waiver of her complaints.
Third, the allegation that the court was obligated to conduct an oral hearing before granting the motion is incorrect. Again, a trial court need not hold such a hearing prior to resolving the discovery dispute. Meek v. Bishop, Peterson & Sharp, P.C., supra. Furthermore, the sole case she cites as support of her contention, McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72 (Tex. 1989), does not do so. That case deals with who had the burden to request a hearing. In resolving the dispute, the Supreme Court discussed Texas Rule of Civil Procedure 166b(4)(since superceded by Rule 193.4) and its prior decision of Peeples v. Fourth Court of Appeals, 701 S.W.2d 635 (1985). And, to the extent that it touched upon the matter of a hearing, it only said that the parties could present or establish their objections or claims of privilege at the hearing via live witnesses or affidavits. Yet, it did not say that the court must have a hearing wherein live testimony could be presented; nor did it foreclose the ability of a trial court to conduct a hearing by written submission.
Indeed, that the litigants could tender affidavits in support of or to defeat a claim and that such evidence could be appended to the motion to compel or response thereto connotes that some procedure other than the presentation of live testimony is allowed. In effect, the option to hold an oral hearing or merely act upon written submissions remains with the trial court, see Meek v. Bishop, Peterson & Sharp, P.C., supra, and McKinney did not change that.
August 3, 1998 Order -- Compelling Answers to Interrogatories and Production of Documents
Carla also complains about another discovery order signed by the trial court on August 3, 1998. It compelled her to answer various interrogatories propounded by Cire. We overrule this issue as well for the following reasons.
First, to the extent Carla posits that the order was "void" or unenforceable because it alluded to Cire by a different name and failed to specify "which Plaintiff was to comply," she again cites no legal authority. Nor does she provide us with anything other than conclusions. Thus, these contentions are waived due to insufficient briefing. Tex. R. App. Proc. 38.1(h); Vasquez v. State, supra.
Second, to the extent that she posits that the doctrine of the law of the case precluded the court from entering the order, nothing of record indicates that a court of last resort previously had addressed the matter. That is pivotal since the authority she cites requires as much. Indeed, the panel in Hansen v. Academy Corp., 961 S.W.2d 329, 333 (Tex. App.--Houston [1st Dist.] 1997, pet. denied) interpreted
the "'law of the case" doctrine [as] stat[ing] that questions of law decided on appeal to a court of last resort will govern the case throughout its later stages." Hansen v. Academy Corp., 961 S.W.2d at 333. In other words, if there has been no prior appeal involving the very issue of discovery addressed by the trial court in its August 3rd order (which there has not), the doctrine of law of the case does not apply.
Third, to the extent Carla posits that she "fully" answered the interrogatories at issue before August 3rd, the record discloses that each answer was preceded by an objection and a statement that she did not intend or desire to waive the objection. So, despite her alleged answers, the validity of her objections remained a question to be addressed by the court. Moreover, assuming that Carla had answered the interrogatories before the court acted on August 3rd, the order in question assessed no sanction. So, we cannot see how she was harmed by it, and a showing of harm would be a prerequisite to any reversal. Tex. R. App. Proc. 44.1.
Fourth, Carla suggests that the August 3rd order was unenforceable because it simply referred to the "'court's order of January 5, 1998' and the subpoena duces tecum served on May 27, 1998' without attaching same." Yet, she cites nothing which holds that the January 5th order and May subpoena had to be attached to the August order before the latter could be valid. (2) Nor does she argue that there were other orders issued on January 5th and other subpoenas duces tecum served on May 27th. Without this, we cannot accept the proposition that the August 3rd order was unenforceable because it supposedly "placed [her] on peril of guessing which order of January 5 . . . or . . . 'subpoena duces tecum' . . . the trial court was referring to [sic]."
Fifth, so too do we reject the proposition that the order is void because the trial court could not have held Carla in contempt for violating it. Simply put, the order in question did not purport to hold her in contempt.
Sanctions -- Striking the Pleadings
Through her final points of error, Carla alleges that the trial court erred in issuing its "Order on Sanctions." Therein, it ordered that "the pleadings of Plaintiff Carla Roberson are stricken from this lawsuit." This allegedly constituted an abuse of discretion. We agree.
Standard of Review
It is clear that the decision to sanction a litigant for discovery abuse lies within the discretion of the trial court. Estate of Riggins, 937 S.W.2d 11, 16 (Tex. App.--Amarillo 1996, writ denied). Furthermore, we may not interfere with the decision unless it constitutes an abuse of discretion. Id. And, whether it does depends upon whether it comported with controlling rules and principals and, therefore, was not arbitrary and unreasonable. See Williams v. Akzo Nobel Chemicals, Inc., 999 S.W.2d 836, 844 (Tex. App.--Tyler 1999, no pet.); Estate of Riggins, 937 S.W.2d at 16. The rules and principals applicable to addressing claims of discovery abuse follow.
First, there must be evidence that some discovery abuse occurred. Tjernagel v. Roberts, 928 S.W.2d 297, 304 (Tex. App.--Amarillo 1996, orig. proceeding). Second, in issuing the sanction, the trial court is not limited to considering only the specific violation for which the sanction is finally imposed; everything that has occurred during the litigation may be weighed. Estate of Riggins, 937 S.W.2d at 16. Third, sanctions serve three purposes; that is, they serve to 1) punish those violating the rules of discovery, 2) deter other litigants from similar conduct, and 3) secure compliance with discovery rules. Tjernagel v. Roberts, 928 S.W.2d at 303. Fourth, a direct relationship between the offensive conduct and the sanction imposed must exist. Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996); Tjernagel v. Roberts, 928 S.W.2d at 303. Fifth, the sanction imposed must not be excessive or more severe than necessary to achieve the purposes itemized above. Id. That is, the trial court must impose the least onerous sanction available that will fulfill the purpose underlying the sanction. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992). So too must it explain why no lesser sanction would be appropriate. Williams v. Akzo Nobel Chemicals, Inc., 999 S.W.2d at 844. Sixth, only when the party has acted in flagrant bad faith or his counsel has callously disregarded the responsibilities implicit in the discovery rules can the trial court consider sanctions which prevent disposition of the case on the merits; however, even then must lesser measures first be tested or considered. Chrysler Corp. v. Blackmon, 841 S.W.2d at 849; Tjernagel v. Roberts, 928 S.W.2d at 303.
Indeed, the Supreme Court "requires that a lesser sanction actually be assessed" first before imposition of one which effectively terminates the litigation, unless "it is fully apparent" that no lesser measure will secure compliance. Williams v. Akzo Nobel Chemicals, Inc., 999 S.W.2d at 844. Additionally, the conduct involved must be sufficiently egregious to warrant a presumption that the misfeasant's claims or defenses lack merit. Hamill v. Level, 917 S.W.2d at 16. Finally, should the measure actually levied be excessive, it is unjust, and an unjust sanction illustrates an instance of abused discretion. Williams v. Akzo Nobel Chemicals, Inc., 999 S.W.2d at 843. With this said, we turn to the cause before us.
Application of Standard
It is apparent from the record that in striking Carla's pleadings the trial court effectively disposed of the litigation on grounds other than the actual merits. Simply put, the measure assessed for the purported discovery abuse was what has become known as a death penalty sanction for it resulted in her inability to pursue any claim or present any evidence at trial. Moreover, it was assessed because the trial court concluded that Carla 1) "flagrantly violated" four court orders pertaining to discovery by failing to comply with them "within the time allowed by the court," 2) hid "her relationship with other attorneys by refusing to answer deposition questions," 3) used "forged documents to gain an advantage with the court," and 4) "deliberately destroyed and/or concealed material evidence that would prove [her] claims" meritless. (3) The evidence withheld, according to the trial court, illustrated that her claims were meritless. Additionally, her attempts to inhibit discovery of the tapes and discovery in general were "without any justification" and constituted effort to "prevent [Cire] from obtaining the true facts and documents that pertain to [her] allegations in [the] suit." These circumstances also justified "a presumption that her claims [had] no merit," according to the trial court.
Finally, "less stringent sanctions [were] not required because [they] would be ineffective," the trial court held. This was so because Carla's destruction "and/or" concealment of the tapes "deprived [Cire] of that objective factual audio evidence." And, "[m]onetary sanctions [could not] cure [her] wrongdoing, such as destroying and concealing . . . material evidence found on the . . . tapes." Finally, her failure and that of her counsel to pay "a small monetary sanction" previously levied by the court "indicate[d] blatant disregard for the court's order."
The foregoing excerpts from the court's order evinces that only once had the court previously issued sanctions. Furthermore, that sanction consisted of a $250 fine and was expressly assessed against "plaintiff's attorney," not Carla. Since Carla was not directed to pay it, one cannot reasonably deduce either that her failure to pay the sum evinced a blatant disregard for the order or that the assessment of a fine against her would simply be ignored by her.
Nor can it legitimately be said that her purported lack of economic resource to satisfy a monetary sanction somehow permitted the court to simply levy the death penalty. There are more ways to obtain compliance and further the purposes underlying the assessment of sanctions than merely levying a monetary penalty; holding the party in contempt was and is one alternative. See GTE Communications Sys. Corp. v. Tanner, 856 S.W.2d 725, 729-30 (Tex. 1993) (noting contempt to be such an alternative); Williams v. Akzo Nobel Chemicals, Inc., 999 S.W.2d at 844 (describing a myriad of possible sanctions). Nor does our system of justice countenance the assessment of the death penalty merely because a litigant lacks money to pay a fine. To hold otherwise would be to say that only those of greater economic worth may reap the benefit of our Supreme Court's directive to levy the least onerous, yet suitable, sanction. (4) In short, the de minimus economic status of a litigant potentially abusing discovery simply requires the trial court to invoke its imagination to derive other means to regulate and punish inappropriate behavior.
Next, and assuming arguendo that Carla intentionally destroyed, hid, or lost evidence favorable to Cire (i.e. the audio tapes), sanctions other than the death penalty exist to address the situation. Indeed, while dismissing the claims of a litigant destroying evidence may be appropriate at times, the Supreme Court noted the existence of other measures. Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex. 1998) (involving the spoliation of evidence). These alternative remedies, according to the court, may include an instruction to the jury directing it to presume that the missing evidence would be unfavorable to the party failing to produce it, i.e., Carla. Id.; see Watson v. Brazos Elec. Power Coop., 918 S.W.2d 639, 643 (Tex. App.-Waco 1996, writ denied) (describing the appropriate instruction). Yet, other than suggesting that Carla would ignore a monetary sanction (a supposition that we previously illustrated to be insupportable), the trial court did not indicate that it considered any alternative to simply striking the pleadings as a result of Carla's alleged spoliation or secretion of the tapes. Nor did it discuss why such a lesser measure would not suffice as an appropriate sanction. This it was obligated to do under GTE Communications Sys. Corp. (5)
In sum by simply ordering that Carla's pleadings be struck, the trial court failed to comport with Texas Supreme Court precedent. This does not mean that we condone the antics of Carla and her counsel. Their conduct may well deserve sanction, including the dismissal of the cause. We simply hold that before the death penalty sanction can be levied, the trial court must comply with GTE Communications Sys. Corp. and properly illustrate why lesser sanctions would not suffice. It did not do that here.
Accordingly, the order striking the pleadings of Carla and the final judgment entered against her are reversed. The cause is remanded to the trial court.
Brian Quinn
Justice
Publish.
1. Furthermore, doing nothing in the face of a pending motion then complaining on appeal runs afoul
of the policy underlying Appellate Rule 33.1. The trial court should have first opportunity to resolve the
dispute upon considering all the pertinent argument. In withholding argument from the court, that goal is
impeded. Thus, the conduct of the party results and should result in waiver.
2. Her general citation to Ex parte Herrera, 820 S.W.2d 54 (Tex. App.--Houston [14th Dist.] 1991, orig.
proceeding) is of no moment. It had nothing to do with the circumstances like those at bar. Rather, the court
in Herrera merely addressed 1) whether the commitment order was void because there had been no prior
order or judgment of contempt executed and 2) whether one can be held in contempt for an act that does
not violate any prior order.
3. 4. 5.