in the Matter of the Marriage of Rita Lackey Fillingim and Willis Dan Fillingim, and in the Interest of Dallas Dan Fillingim and Lindsey Renee Fillingim, Children

NO. 07-08-0144-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

DECEMBER 3, 2009

______________________________

IN THE MATTER OF THE MARRIAGE OF

RITA LACKEY FILLINGIM AND WILLIS DAN FILLINGIM

_________________________________

FROM THE 31^ST DISTRICT COURT OF HEMPHILL COUNTY;

NO. 4,330; HONORABLE STEVEN R. EMMERT, JUDGE

_______________________________

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

MEMORANDUM OPINION ON REHEARING

Â Â Â Â Â Â Â Â Â Â On March 24, 2009, this Court issued its original Memorandum Opinion in this case. Appellee filed a motion for rehearing on April 15, 2009, complaining of, among other things, this Courtâs analysis as to whether the residuary clause contained within the decree of divorce encompassed the disputed mineral interests at issue. Having considered Appelleeâs Motion for Rehearing, Appellantâs Objection to Opinion Granting Motion for Rehearing and Conditional Motion for Rehearing, Appellantâs Response to Motion for Rehearing, and Appelleeâs Reply to Appellantâs Response on Rehearing, we hereby grant Appelleeâs motion for rehearing, withdraw our opinion and judgment dated March 24, 2009, and issue this opinion in lieu thereof.

Â Â Â Â Â Â Â Â Â Â Appellant, Rita Lackey Fillingim (Rita), appeals from a judgment rendered in favor of Appellee, Willis Dan Fillingim (Dan), declaring certain mineral properties acquired during their marriage to be his sole and separate property and finding that the Decree of Divorce entered on June 9, 1981, did not divide or partition that property. By three issues, Rita asserts the trial court erred (1) in determining that their Decree of Divorce did not preclude Danâs suit under the doctrine of res judicata; (2) in finding jurisdiction existed to alter the original property division; and (3) by declaring that Dan established his separate property ownership of the mineral rights by clear and convincing evidence. We affirm.

Background

Â Â Â Â Â Â Â Â Â Â Rita and Dan were married in 1970. During their marriage, by four separate instruments, Danâs parents deeded certain mineral interests to Dan, as grantee. One of the four deeds recited as consideration â$10.00 cash in hand paid and the love and affection which we have for our children . . . .â Although the other three deeds did not contain language indicating that the conveyances were intended to be gifts, Dan contends that the mineral interests conveyed thereby were his separate property by virtue of being gifts from his parents. Subsequent to receipt of the deeds, but during their marriage, Rita and Dan jointly executed oil and gas leases pertaining to the properties and, on one occasion, they executed a warranty deed conveying an interest in mineral rights to a third party.

Â Â Â Â Â Â Â Â Â Â In 1981, Rita filed for divorce. It is undisputed that Dan was properly cited in connection with the proceedings; however, during the pendency of the divorce, he did not hire an attorney to represent him, nor did he personally appear or offer any evidence at the final hearing. On June 9, 1981, the trial court entered a Decree of Divorce that provided, in pertinent part, as follows:

IT IS DECREED that the estate of the parties be divided as follows:

Petitioner [Rita] is awarded the following as petitionerâs sole and separate property, and respondent is hereby divested of all right, title, and interest in and to such property: All property listed in Schedule A attached hereto and made a part hereof by reference.

Respondent [Dan] is awarded the following as respondentâs sole and separate property and petitioner is hereby divested of all right, title, and interest in and to such property: All property listed in Schedule B attached.

Â Â Â Â Â Â Â Â Â Â Although Schedules A and B described certain real and personal property, there was no mention of the mineral interests the subject of this dispute. Each schedule did, however, contain a residuary clause awarding each spouse âa one-half interest in all other property or assets not otherwise disposed of or divided herein.â

Â Â Â Â Â Â Â Â Â Â On April 28, 2006, Dan filed two proceedings seeking to clarify his ownership of the mineral interests transferred by the deeds from his parents. Under the cause number of his original divorce proceeding, cause number 4330, Dan filed a Petition for Clarifying Order, wherein he sought to invoke the jurisdiction of the divorce court to âclarifyâ the 1981 divorce decree. In cause number 6397, filed in the same district court, Dan also sought a declaratory judgment pertaining to his ownership interests. On June 14, 2006, the two proceedings were consolidated and on July 26, 2006, Dan filed his First Amended Original Petition requesting that the trial court grant, or declare, him the sole owner of the mineral interests deeded to him during marriage. Dan asserted that because the mineral interests in question were his sole and separate property at the time of his divorce, the divorce court could not, as a matter of law, partition said interests.

Â Â Â Â Â Â Â Â Â Â On January 22, 2008, the trial court tried Danâs suit. In addition to admitting the aforementioned deeds into evidence, the trial court heard testimony from Dan and Rita. Dan testified that, when he was in his teens, his father told him numerous times that he was going to help him with gifts of land and mineral rights. He testified that he never paid any consideration for the properties and believed the conveyances in question were the gifts his father had spoken of years before.

Â Â Â Â Â Â Â Â Â Â Rita testified that her only conversations with Danâs parents regarding the conveyances occurred when the deeds were originally given to them. Rita further testified that each time they received a deed, she and Dan were required to sign an oil and gas lease. She testified that Danâs parents indicated they were giving the deeds to them both as a married couple. She denied having any conversation with Dan regarding the mineral interests following their divorce.

Â Â Â Â Â Â Â Â Â Â After hearing the testimony and reviewing the various conveyances, the trial court determined Danâs parents executed the deeds intending gifts. As such, the trial court found that the mineral interests were Danâs sole and separate property. The trial court also found that the divorce decree did not divide or partition the separate property of the parties. Based upon those findings, the trial court entered judgment and Rita appealed. Â Discussion - Issue Three

Â Â Â Â Â Â Â Â Â Â For purposes of logical discussion, we will first address Ritaâs third issue wherein she contends that the evidence offered by Dan at trial failed to establish the separate property character of the mineral interest conveyed by three of the four deeds in dispute.

Â Â Â Â Â Â Â Â Â Â Â In the proceedings below, it was Danâs contention that the mineral interests in question were his separate property because they had been acquired by gift from his parents. See Tex. Fam. Code Ann. Â§ 3.001(2) (Vernon 2006). The degree of proof necessary to establish that property is separate property is clear and convincing evidence. Id. at Â§ 3.003(b) (Vernon 2006). âClear and convincing evidenceâ is that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id. at Â§ 101.007 (Vernon 2008); In re J.F.C. 96 S.W.3d 256, 264 (Tex. 2002). Rita contends that because the first deed contained âgift language,â the absence of similar language in the remaining three deeds is some evidence that the grantees did not intend to make a gift by those deeds.

Â Â Â Â Â Â Â Â Â Â To give appropriate deference to the factfinderâs conclusions and the role of this Court in conducting a sufficiency review, we assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. 96 S.W.3d at 266. A corollary to this requirement is that we also disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. Id. Based upon this analysis, we are persuaded that the trial courtâs finding of separate property is such that a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Issue three is overruled.

Discussion - Issues One and Two

Â Â Â Â Â Â Â Â Â Â Having concluded that the trial courtâs finding of separate property does not constitute reversible error, we proceed to consider issues one and two. By issues one and two, Rita contends that Danâs claims are barred by the doctrine of res judicata and by the fact that the trial court lacked jurisdiction to alter the prior divorce decree.

Â Â Â Â Â Â Â Â Â Â A court that renders a divorce decree generally retains continuing subject-matter jurisdiction to clarify and to enforce the decreeâs property division. Tex. Fam. Code Ann. Â§Â§ 9.002, 9.008 (Vernon 2006). Specifically, the court has continuing jurisdiction to ârender further orders to enforce the division of property made in the decree of divorceÂ .Â .Â . to assist in the implementation of or to clarify the prior order.â Â§ 9.006(a).

Â Â Â Â Â Â Â Â Â Â There are limitations, however, on the enforcement and clarification powers of the court that rendered the divorce decree. For example, â[t]he court may specify more precisely the manner of effecting the property division previously made if the substantive division of property is not altered or changed. Â§ 9.006(b) (emphasis added). More specifically, the Family Code provides, in pertinent part, as follows:

(a) A court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce or annulment. An order to enforce the division is limited to an order to assist in the implementation of or to clarify the prior order and may not alter or change the substantive division of property.

(b) An order under this section that amends, modifies, alters or changes the actual substantive division of divorce or annulment is beyond the power of the divorce court and is unenforceable.

Â§ 9.007 (a)-(b) (emphasis added). See Shanks v. Treadway, 110 S.W.3d 444, 449 (Tex. 2003).

Â Â Â Â Â Â Â Â Â Â Section 9.007 is jurisdictional and orders violating its restrictions are void. Gainous v. Gainous, 219 S.W.3d 97, 107-08 (Tex.App.âHouston [1^st Dist.] 2006, pet. denied). Thus, where one party seeks to claim a share of an asset that has already been divided in the divorce decree, the claim is barred. Brown v. Brown, 236 S.W.3d 343, 349 (Tex.App.âHouston [1^st Dist.] 2007, no pet.).

Â Â Â Â Â Â Â Â Â Â As such, a clarifying order cannot be used to make a substantive change in the decreeâs property division even if the decree contains a substantive legal error. Brown, 236 S.W.3d at 349. Clarification also requires a finding, express or implied, that the original form of the division of property lacks sufficient specificity to be enforced by contempt. Â§ 9.008(b). If a divorce decree is unambiguous, the court has no authority to alter or modify the original disposition of the property. Haworth v. Haworth, 795 S.W.2d 296, 300 (Tex.App.âHouston [14^th Dist.] 1990, no writ]. Here, the trial court made no finding, express or implied, that the divorce decree was ambiguous or needed clarification.

Â Â Â Â Â Â Â Â Â Â Â Therefore, the critical determining factor here is whether the mineral rights conveyed to Dan during the marriage were divided by the original divorce decree. Jacobs v. Cude, 641 S.W.2d 258, 260 (Tex.App.âHouston [14^th Dist.] 1982, writ refâd n.r.e.). Rita contends that because all property acquired during marriage is presumed to be community property, and because Dan did not rebut the community property presumption at the time of divorce, then the mineral interests in question were community property. Rita further contends that even though those interests were not specifically listed in the property schedules incorporated in the divorce decree, the interests were encompassed within the terms of the residuary clause contained within those schedules. By contrast, Dan contends that the plain language of the decreeâs âdivision clauseâ limits the scope of the residuary clause to the âestate of the parties,â and because the phrase âestate of the partiesâ is limited to the community property of the marital estate and does not include separate property, the residuary clause did not operate as to award Rita an interest in the minerals. Simply restated, Rita contends that the decree already divided the mineral interests, whereas Dan contends that the decree did not divide the mineral interests because they have always been his separate property.

Â Â Â Â Â Â Â Â Â Â When interpreting a divorce decree, courts apply the general rules regarding construction of judgments. Shanks, 110 S.W.3d at 447. Judgments are construed as a whole to harmonize and give effect to the entire decree. Gainous, 219 S.W.3d at 110. If the decree is unambiguous as to the propertyâs disposition, we must effectuate the order in light of the literal language used. Shanks, 110 S.W.3d at 447. If the decree is ambiguous, we should review the record along with the decree to aid in interpreting the judgment. Id. Whether a divorce decree is ambiguous is a question of law. Id.

Â Â Â Â Â Â Â Â Â Â The plain and unambiguous language of the âdivision clauseâ confines the application of the residuary clause to the âestate of the parties.â The term âestate of the partiesâ means the community estate of the parties and does not encompass the separate property of the parties. Cameron v. Cameron, 641 S.W.2d 210, 214-15 (Tex. 1982); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex. 1977). Because a decree of divorce using the term âestate of the partiesâ makes a division of the community estate only, we find the residuary clause at issue did not encompass any separate property owned by the parties. Therefore, in the final analysis, it comes down to this: Did the trial court, at the time of divorce, intend to award Rita an interest in any undisclosed separate property belonging to Dan? Based upon the foregoing construction, we find that the trial court did not. Accordingly, issues one and two are overruled.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Conclusion

Â Â Â Â Â Â Â Â Â Â We affirm the judgment of the trial court.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Patrick A. Pirtle

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â JusticeÂ

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NOS. 07-10-00122-CR, 07-10-00123-CR, 07-10-00171-CR and 07-10-00172-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 4, 2011

GREGORIO RODRIGUEZ, APPELLANT

THE STATE OF TEXAS, APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2

AND THE 137^TH DISTRICT COURT OF LUBBOCK COUNTY;

NOS. 2009-455,818, 2009-458,190, 2009-425,597, 2009-422,825;

HONORABLE CECIL PURYEAR, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

In each of these four appeals, appellant Gregorio Rodriguez appeals his conviction on an open plea of guilty and resulting sentence.

Offenses committed on December 21, 2008:

In appellate case number 07-10-0172-CR, appellant was convicted of evading arrest or detention with a vehicle and sentenced to 18 months in a state jail facility;[1]

In appellate case number 07-10-0122-CR, appellant was convicted of possession of marijuana of less than two ounces in a drug free zone and sentenced to 12 months in the Lubbock County Jail.[2]

Offenses committed on October 25, 2009:

In appellate case number 07-10-0171-CR, appellant was convicted of possession of a controlled substance listed in penalty group 1, cocaine of less than one gram and sentenced to 24 months in a state jail facility;[3]

In appellate case number 07-10-0123-CR, appellant was convicted of driving while intoxicated and sentenced to 6 months in the Lubbock County Jail.[4]

In each case, appellants court-appointed appellate attorney has filed a motion to withdraw from representation supported by an Anders brief.[5]Â Agreeing with counselÂs conclusion that the record fails to show any arguably meritorious issue capable of supporting an appeal, we grant the motion to withdraw in each case and affirm the trial courtÂs judgments.

Punishment hearing testimony showed that on December 21, 2008, a police officer saw a vehicle driving erratically.Â The officer attempted a traffic stop.Â As the officer followed the vehicle, he saw a person leap from the vehicle while it remained in motion.Â The vehicle then jumped a curb, knocked down a fence, and collided with a parked vehicle in a driveway.Â The location of the accident was within 1,000 feet of a public school.Â When the officer entered the passenger compartment to turn off the ignition and place the transmission in park, he saw an open container of alcohol.Â An officer later also found a baggy containing what he believed was marijuana.Â Police eventually were able to identify appellant as the person operating the vehicle.

Punishment evidence also showed that on October 25, 2009, a motor vehicle driven by appellant struck a police vehicle in the presence of officers.Â Appellant attempted to flee on foot, but was apprehended and arrested for evading arrest or detention.Â An officer detected the odor of alcohol on appellantÂs breath and the odor of marijuana Âon his person.ÂÂ While searching appellant for weapons, the officer discovered a baggie containing what he believed was marijuana.Â In the officerÂs opinion, appellant appeared intoxicated.Â He had difficulty standing and walking and was unresponsive to questions.Â The officer transported appellant to a holding facility.Â As appellant left the police vehicle, a clear plastic baggie containing a white powder fell from his pant leg.Â According to a field test, the substance was cocaine.Â This was later confirmed by the Texas Department of Public Safety Crime Laboratory.

Appellant was charged by indictment or information with the four offenses, and entered guilty pleas to the charged offenses without a plea bargain agreement.Â A punishment hearing in each case was held the same day as the plea hearing.Â The trial court admonished appellant of the applicable ranges of punishment and determined he was a United States citizen.Â It also explained and determined appellant wished to waive the right to trial by jury and the right against self-incrimination.Â Two police officers gave the testimony we have summarized of the circumstances of the December 2008 and October 2009 offenses.Â Appellant presented two witnesses.Â A deacon testified of appellantÂs church involvement over the preceding five months.Â The second witness, a relative of appellant, testified of his industry in the workplace, abstinence from alcohol, and family commitment.Â Following the close of evidence and arguments, the court sentenced appellant in each case.Â Appellant obtained trial court certification of the right of appeal and timely appealed.

Thereafter, appellantÂs appointed appellate counsel filed a motion to withdraw supported by an Anders brief.Â In the brief, he certifies to his diligent review of the record and his opinion under the controlling authorities and facts of the cases no reversible error or arguably legitimate ground for appeal exists.Â The brief discusses the procedural history of the case and the events at the plea hearing.Â Counsel discusses the applicable law and sets forth the reasons he believes no arguably meritorious issues for appeal exist.Â A letter to appellant from counsel, attached to counselÂs motion to withdraw, indicates that a copy of the Anders brief and the motion to withdraw were served on appellant, and counsel advised appellant of his right to review the record and file a pro se response.Â Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. refused).Â By letter, this court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel.Â Appellant did not file a response.

In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record in each matter.Â Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.).Â If we determine the appeal has arguable merit, we will remand it to the trial court for appointment of new counsel. Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).

In the Anders brief, counsel concludes the appeal is frivolous.Â We have made an independent review of the entire record to determine whether arguable grounds supporting an appeal exist.Â See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).Â We find no arguable grounds supporting a claim of reversible error, and agree with counsel that the appeal is frivolous.

Accordingly, we grant counselÂs motion to withdraw^{^[6]} in each case and affirm the judgments of the trial court.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Do not publish.Â

[1]Â A person commits the offense of evading arrest or detention if he intentionally flees a person he knows is a peace officer lawfully attempting to arrest or detain him.Â Tex. Penal Code Ann. Â§ 38.04(a) (West Supp. 2010).Â The offense is a state jail felony if the actor uses a vehicle while in flight and the actor has not previously been convicted under Penal Code Â§ 38.04.Â Tex. Penal Code Ann. Â§ 38.04(b)(1)(B) (West Supp. 2010).

[2]Â Possession of two ounces or less of marijuana is a Class B misdemeanor, Tex. Health & Safety Code Ann. Â§ 481.121(b)(1) (West 2010), but increases to a Class A misdemeanor if committed within 1,000 feet of the real property of a school.Â Tex. Health & Safety Code Ann. Â§ 481.134(f)(1) (West 2010).Â A Class A misdemeanor is punishable by confinement in jail for up to one year and/or a fine not to exceed $4,000.Â Tex. Penal Code Ann. Â§ 12.21 (West 2003).

[3] Possession of less than one gram of cocaine is a state jail felony.Â Tex. Health and Safety Code Ann. Â§ 481.102(3)(D) (West 2010) (cocaine is a Penalty Group 1 controlled substance) and Tex. Health and Safety Code Ann. Â§ 481.115(a),(b) (West 2010) (possession of less than one gram of cocaine is a state jail felony).Â A state jail felony is punishable by confinement in a state jail facility for any term of not more than two years or less than 180 days and a fine not to exceed $ 10,000.Â Tex. Penal Code Ann. Â§ 12.35 (West 2010).

[4]Â In the absence of facts not charged here, driving while intoxicated is a Class B misdemeanor.Â A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place.Â Tex. Penal Code Ann. Â§ 49.04(a) (West 2003).Â

[5]Â Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008) (orig. proceeding).

[6] Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendantÂs right to file a pro se petition for discretionary review. Tex. R. App. P. 48.4.

in the Matter of the Marriage of Rita Lackey Fillingim and Willis Dan Fillingim, and in the Interest of Dallas Dan Fillingim and Lindsey Renee Fillingim, Children

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