James Bagnall, County Judge v. J.A. Breithaupt

James Bagnall, County Judge, et al. v. J.A. Breithaupt

                                                                         Opinion Withdrawn 8/2/00

IN THE

TENTH COURT OF APPEALS

No. 10-99-354-CV

     JAMES BAGNALL,

     COUNTY JUDGE, ET AL.,

                                                                         Appellants

     v.

     J. A. BREITHAUPT,

                                                                         Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 97-00-07853-CV

                                                                                                                                                                                                                             

MEMORANDUM OPINION

                                                                                                                    

      J. A. Breithaupt filed suit against James Bagnall, County Judge of Navarro County, and Betty Armstrong, Olin Nickleberry, William Baldwin, and Paul Slaughter, the Commissioners of Navarro County, (collectively, “Appellants”) alleging that they improperly classified numerous county roads on and around his property. Appellants filed a “Motion for Summary Judgment and Plea to the Jurisdiction” premised on sovereign immunity. The court granted the motion in part, but did not otherwise rule on the allegations of the motion. Appellants seek to appeal under section 51.014(a) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a) (Vernon Supp. 2000). However, because the court’s order does not deny any of Appellants’ claims, we conclude that they have not obtained a ruling from which they can bring an interlocutory appeal under the statute. Accordingly, we dismiss the appeal for want of jurisdiction.

 

                                                                         PER CURIAM

Before Chief Justice Davis

      Justice Vance and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed May 10, 2000

Do not publish

way you decided you wanted to have the opportunity to have your decisions or your disputes settled by your fellow citizens.  And the system won’t work without the active participation of the citizenry.  You decided you wanted to have the opportunity to do this.

       And you need to look at it from this point of view.  This time it’s somebody else’s problem.  The next time it might be your problem.  It might be your loved one’s problem.

(Mason Br. at 9 (quoting 6 R.R. at 5-6) (italics added in Mason).)  Mason argues:

Although the trial judge gave the venire good information, he also gave the venire additional information, and it is this additional information about which appellant is complaining.  The trial judge told the venire that he was quite capable of handling this case and, inferentially, that involving the venire was a waste of the venire’s time.  The trial judge’s subsequent comments effectively explain why a jury trial was a waste of everyone’s time.

(Mason Br. at 9-10.)  Fairly read, the trial judge’s admonitions, perhaps in jest, concern the people’s determination of the structure of the judicial system rather than Mason’s election of a jury trial or the merits of Mason’s case. 

        Next, Mason complains of the following italicized admonitions:

       There’s no magic formula to it.  Over 90 percent of cases that are filed in these United States of America are settled.  And they’re settled in two manners.  If they’re a civil case they’re usually settled by an agreement between the parties.  Doesn’t matter whether the judge approves it or not.

       Criminal case, it’s settled by an agreement between the parties with the approval of the Court.  The Court has to approve the agreement.  And like I said, over 90 percent of those cases are settled.  And they’re not settled because we went back to the office and threw darts at a board and said where they’re going to land.

       It’s because jurors have told us how they want particular cases under particular situations under certain circumstances settled.  And we use that in determining similar cases that come up in the future how to determine them.  And most of the time nobody wants to beat their head on a wall.

       If they know enough information and they can determine how they think an Ellis County jury will settle a particular case under particular circumstances, then they can settle it.  On the other hand, the system’s also designed if you want to beat your head on the wall, you can do that too.  It’s your privilege.

       An [sic] so if you have any—if either side—that is, on either side of the civil case or either side of a criminal case, the prosecution or defense, has a disagreement as to how an Ellis County jury would settle this case, then either side has the right to have a jury determine how it’s going to be settled.  And that’s what we’re going to be doing.

(Mason Br. at 10 (quoting 6 R.R. at 8-9) (italics added in Mason).)  Mason argues:

       Here the trial judge is telling the venire that one of the parties is being unreasonable.  From experience, the trial judge already knew how the case would turn out.  The trial judge attempts to qualify his statements so that they could be construed to apply to either party.  In the context of his other comments, however, the venire would take his comments to be a reference to the defendant.  The prosecutors would know precisely what an offense would be worth in Ellis County.  The venire would be hard pressed to assume the prosecutor would not know how to evaluate a case and hard pressed to assume the prosecutor would make an unreasonable settlement offer.  The only person who might balk at a reasonable offer is the defendant, who would actually have to serve the time.  In that context, the implicit reference is to the number of years a case is worth.  That is, the question of guilt is a given, and the punishment is the item in controversy.  These comments undermine the presumption of innocence.

(Mason Br. at 10-11.)  The trial judge admonished the jury that the parties could not agree on the safe harbor of a plea to the court, and that one or both parties instead preferred to risk the uncertainties of trial.  Fairly read, again, the admonitions do not signify that Mason’s election of a jury trial is unreasonable.^[1]

        Next, Mason complains of the following italicized admonitions:

       Before you can convict somebody you’ll have to find the evidence is sufficient to convince you and your other—11 other fellow jurors that somebody’s guilty beyond a reasonable doubt.

       How much proof is that?  How much proof does it take to convince 12 jurors assembled at random from across the county that you proved your case—their evidence is sufficient to prove it by a preponderance of the evidence or on the other hand in a criminal case beyond a reasonable doubt.

       You tell us that.  It’s very subjective, but I assure you that the judge and the attorneys get a feel of what it takes so you set those standards.  Like I say, you’re only here to judge the case that you’re on, but your verdict becomes part of the information that’s stored in our memory as to how similar cases of like nature under similar circumstances ought to be settled because you told us how you wanted them settled.

(Mason Br. at 11-12 (quoting 6 R.R. at 10-11) (emphasis added in Mason).)  Mason argues:

The burden of proof is not subjective.  The burden of proof is objective—it is beyond a reasonable doubt.  If the juror retains a reasonable doubt, the State has not met its burden.

       The weight and credibility determinations are subjective.  That is where jurors have latitude and discretion.

       The comments, however, had already done their damage because they removed one of the major lynchpins of the a criminal proceeding—the burden of proof.  The trial judge announced the burden of proof and then promptly told the venire it was a subjective standard, that is, that the jury could decide for itself what it meant.

       The trial judge also indicated both he and attorneys already knew how jurors in Ellis County applied the beyond-a-reasonable doubt standard.  Tying this in with the trial judge’s other comments, the trial judge was also saying he already knew how the case should turn out.  As explained above, without specifying appellant specifically, the trial judge was nevertheless inferentially identifying appellant as being unreasonable by insisting upon a jury trial.  The comments undermine the presumption of innocence.

(Mason Br. at 12 (citing 6 R.R. at 10-11).)  However, “it is plain that prospective jurors may form their own definitions of proof beyond a reasonable doubt and they are not challengeable for cause based upon the type and amount of evidence they require to reach that level of confidence.”  Murphy v. State, 112 S.W.3d 592, 598 (Tex. Crim. App. 2003); accord Howard v. State, 941 S.W.2d 102, 127 (Tex. Crim. App. 1996); Garrett v. State, 851 S.W.2d 853, 859 (Tex. Crim. App. 1993).  The trial judge’s admonition that the jurors have considerable liberty in determining what quantum of evidence persuaded them beyond a reasonable doubt was not improper.

        Lastly, Mason complains of the following italicized admonitions:

       All right.  And in criminal cases we have two phase trials, what they call bifurcated trials, guilt or innocence and punishment phase.  And the first phase of the case which is guilt-innocence phase, the jury hears and is permitted to hear anything under the law, under the rules they’re allowed to hear that is relevant to the issue of is the defendant guilty of the offense with which they’re charged?

       You don’t hear any evidence of whether a defendant has been arrested 100 times before or has never been arrested before in their life generally.  You don’t hear that they’ve got a criminal record or they don’t have a criminal record.

       Generally you don’t hear that they have invented the cure for cancer or they go home and kick their dog and steal their grandmother’s social security check and go out and buy dope with it.

       You don’t hear that in the guilt or innocence phase generally because it’s not relevant to the issue of whether or not they committed the offense with which they’re charged.  So in the guilt-innocence phase of the case they’re concentrating on that.

       Whether somebody’s a good guy or a bad guy, you get to hear that later if we get that far.

(Mason Br. at 13 (quoting 6 R.R. at 65-66) (emphasis added in Mason).)  Mason argues:

A defendant is not concerned about the jury learning positive information about him.  For that matter, the prosecutor too probably has little interest, one way or the other, regarding the jury’s learning positive things about the defendant.  Of particular interest to both the prosecutor and the defendant is the jury learning negative information about him, particularly during the trial on guilt or innocence.  The trial judge can make reference to good information, but the comments that will stick with the venire are those indicating that may be additional bad information that the jurors will not be allowed to hear until the punishment phase.

(Mason Br. at 13.)  Fairly read, again, the trial judge’s admonitions do not effectively imply that evidence of Mason’s bad character exists.

        The trial judge’s qualification of the venire panel did not vitiate the presumption of innocence.  Mason failed to preserve a complaint for appellate review.  We overrule Mason’s issue. 

        Having overruled Mason’s sole issue, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

        Justice Vance, and

        Justice Reyna

        (Justice Vance dissenting)

Affirmed

Opinion delivered and filed September 12, 2007

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[CRPM]

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          [1] Mason also complains of the following italicized admonitions:

The first basic thing [in] every criminal case every defendant is presumed to be innocent.  That doesn’t mean that they are innocent.

         What it means is they’re presumed innocent, that the presumption of innocence standing alone in and of itself without any other information, just the presumption of innocence is sufficient to acquit a defendant unless the State meets its burden of proof and proves the defendant’s [guilt] by the standard the law has set.

(Mason Br. at 11 (quoting 6 R.R. at 48) (bracketed alterations added by Mason) (emphasis added in Mason).)  Mason argues:  “Once again, the trial judge gave the venire largely correct information, but he also gave additional information.  This additional information emasculated the presumption of innocence.“  (Mason Br. at 11.)  In this regard, Mason’s issue is inadequately briefed.  See Tex. R. App. P. 38.1(h); Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 2982 (2006); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000); Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000).