IN THE
TENTH COURT OF APPEALS
No. 10-04-00007-CV
Patricia Wilz, Guardian of
Jon Patrick Flournoy,
An Incapacitated Person,
Appellant
v.
Jack M. Sanders, Jr.,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court # 26,300-A-1
CONCURRING Opinion
I cannot agree to immunize, as a matter of law, all attorneys appointed to review settlements on behalf of incapacitated persons. There is at least some conflict in this record about whether Sanders was acting as an attorney ad litem or guardian ad litem. But in either event, his duties were to protect the ward, not act as an arm of the court to decide a matter as would a special master. Protecting the ward is the service for which a fee was paid. I will, however, acknowledge that there is a vast difference between the duties of a guardian ad litem and an attorney ad litem, though the extent and nature of those respective duties is not, at this time, clear. Indeed, the subject has recently been the focus of discussion, analysis, and review by the Texas Supreme Court Rules Advisory Committee in its consideration of amending Rule 173 of the Texas Rules of Civil Procedure.
But the resolution in this case is not dependent on whether Sanders properly performed his duties, whatever they were, as a guardian ad litem or an attorney ad litem. That is because Sanders’s duties, whatever they were, were concluded a decade before this litigation. During that decade, the ward’s legal guardian and the legal guardian’s wife engaged in illegal acts that wholly depleted the ward’s estate; a classic superseding cause. It would not have mattered what Sanders did a decade ago. The legal guardian, who was the ward’s father, and his new wife stripped the ward’s estate. Only when there was nothing left to take was the ward institutionalized. Because of this superseding cause, I concur only in affirming the judgment that Wilz take nothing from Sanders.
TOM GRAY
Chief Justice
Concurring opinion issued and filed February 23, 2005
. art. 1.14(b) (Vernon Supp. 2004)). Martin did not object and brings this issue for the first time on appeal. By failing to timely object to the substance of the indictment under the doctrine of in pari materia, he waived his complaint. See id.; Tex. R. App. P. 33.1(a)(1).
We overrule this issue.
“Deception” Instruction
Martin’s second issue argues that the court erred in failing to instruct the jury on the definition of “deception” in the charge to the jury. Martin concedes that he did not object to the charge. When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (on rehearing). Assuming without deciding that the failure to include a definition of “deception” was error, we reverse only if the unobjected to error caused “egregious” harm. Jimenez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000); Almanza, 686 S.W.2d at 171. In evaluating whether charge error caused egregious harm to the accused, we consider (1) the entire jury charge, (2) the evidence produced at trial, the contested issues and the weight of the probative evidence, (3) the attorneys’ arguments, and (4) any other relevant information revealed by the record of the trial as a whole. Ovalle, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000) (quoting Almanza, 686 S.W.2d at 171). Egregious harm exists if the error has denied the defendant a fair and impartial trial. Id.
The court charged the jury as follows:
Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that Matthew Martin in McLennan County, Texas, on or about the 18th day of October, 2001, did unlawfully appropriate, by acquiring or otherwise exercising control over, property, to-wit: computer equipment, of the value of $50 or more but less than $500, from Shannan Barnett, the owner thereof, and without the effective consent of the owner, namely, by deception and with intent to deprive the owner of the property, then you will find the Defendant guilty as charged. If you do not so find and believe, or if you have a reasonable doubt thereof, then you will find the Defendant “Not Guilty.”
In reviewing the record and the charge, we cannot say that Martin suffered egregious harm because the statutory definition of “deception” was not included in the charge. The statutory definition of deception is more expansive than the common usage of the term, and thus the absence of the definition likely benefited Martin. See Shelley v. State, 1987 WL 14554, *3 (Tex. App.—Houston [1st Dist.] 1987, no pet.)(not designated for publication).
We overrule this issue.
Legal and Factual Insufficiency
Martin contends that the evidence was legally and factually insufficient to support a finding that he acquired or exercised control of the computer equipment. When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979). A legal sufficiency review considers “all of the evidence” which the jury was permitted to consider. Id. We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex. Crim. App. April 21, 2004).
Martin argues that there is no evidence that he, rather than Scheele, attempted to appropriate the printer. However, the loss prevention officer testified that he saw Martin select the printer, place it in a cart, take the printer from the electronics department to the toy department, pull labels off both products, and place paper from his shirt pocket on the printer. Although both Martin and Scheele testified that she, not he, purchased the printer, the loss prevention officer testified that both Martin and Scheele went through the checkout together. A store manager testified that Martin was pushing the cart containing the printer when the manager confronted Martin outside of the store.
Considering all of the evidence in the light most favorable to the verdict, the jury could have rationally found beyond a reasonable doubt that Martin exercised control over the printer. Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Considering all of the evidence in a neutral light, we cannot say the jury was not rationally justified in finding that Martin exercised control over the printer. Zuniga, 2004 WL 840786, at *7.
We overrule this issue.
Best Evidence
Martin complains that photographs of the printer box and monitor box admitted as evidence should not have been admitted as they were irrelevant and not the best evidence. The admission of evidence is within the sound discretion of the trial court, and its ruling shall not be disturbed on appeal absent a clear abuse of discretion. McVickers v. State, 874 S.W.2d 662, 663 (Tex. Crim. App. 1993).
Martin argues that the photographs are irrelevant and not the best evidence because the labels are largely unreadable. The purpose of the best evidence rule is to require that if the contents of a writing are to be proved, it must be by the production, if possible, of the very writing itself. Tex. R. Evid. 1002; Shugart v. State, 32 S.W.3d 355, 366-67 (Tex. App.—Waco 2000, pet. ref’d). The record does not indicate that the photographs were admitted to prove the contents of the labels or the bar codes. A store manager testified that the photographs were fair and accurate representations of the way the printer box and monitor box
appeared on the date of the incident, including the labels that were attached to the printer box. The actual label that Martin was accused of attaching to the printer box was admitted into evidence as a separate exhibit. Because the photographs were not admitted to prove the contents of a writing, the trial court did not abuse its discretion by finding that the best evidence rule did not apply. We will not disturb the trial court’s ruling that the photographs were relevant.
We overrule this issue.
Trial Court’s Remarks
Martin’s fifth issue complains that the trial court’s remarks prejudiced Martin in the eyes of the jury. At trial, Martin testified in his own defense. The trial judge repeatedly admonished Martin to answer the questions asked of him, to not interrupt his attorney, and to “quit launching into narratives.” Martin specifically complains of the following exchange:
Question: Do you have any comments on this? Not really.
Answer: Yeah, I do have a comment.
Court: Mr. Crow, that is not a proper question, “Do you have any comments on this?”
Mr. Crow: I apologize.
Court: He’s got comments on everything, but I would like to hear something that’s relevant to his defense or to the case.
Martin complains that the judge’s comments implied that he does not have a defense. As a general rule trial counsel must object to the trial judge’s comments during trial to preserve a complaint. State v. Blue, 41 S.W.3d 129, 131 (Tex. Crim. App. 2001); Tex. R. App. P. 33.1. Martin did not object at trial. Although we do not necessarily approve of the trial judge’s remark, it did not amount to fundamental error and was therefore not preserved for review. Id.
We overrule this issue.
Ineffectiveness of Counsel
Martin complains that he did not receive effective assistance of counsel. To establish a claim of ineffective assistance of counsel, appellant must show that counsel’s assistance fell below an objective standard of reasonableness and that counsel’s deficient performance, if any, prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2063 (1984). The review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within a wide range of reasonable professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). When the record is silent as to defense counsel’s subjective motivations, we will ordinarily presume that the challenged action might be considered sound trial strategy. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003). There is no record of Martin’s trial counsel’s strategy or motivations for the actions of which Martin complains. He has not overcome the presumption that counsel’s actions might be considered sound trial strategy. Stafford v. State, 813 S.W.2d 503, 506 (Tex. Crim. App. 1991).
We overrule this issue.
CONCLUSION
Having overruled all of the issues, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed October 13, 2004
Do not publish
[CR25]