IN THE
TENTH COURT OF APPEALS
No. 10-05-00375-CV
Sherman Acquisition II LP,
Appellant
v.
William D. Graham,
Appellee
From the County Court at Law No. 1
McLennan County, Texas
Trial Court No. 20050157CV1
DISSENTING Opinion
The Court’s opinion, the dissenting opinion, and the Court’s judgment dated October 4, 2006 are being withdrawn today and the opinion, dissenting opinion, and judgment dated October 18, 2006 are substituted therefore.
This is one of those cases where it would simply be easier and quicker to go along. I cannot. I know my dissent will not change the result. I know this because there is no party to take this issue on to the next level by way of a petition for review. But just because doing the wrong thing under the law is easier does not make it the right thing to do. The trial court obviously faced the same issue. If no one is there to complain, it is easy to give the party before you the relief that is requested. It is usually a safe bet that if a party did not show up for the trial court case, that party will not be there for an appeal. The quick, easy, and safe thing for a trial court to do is grant the relief requested, in this case a default judgment, and thus dispose of the case. But that does not make the disposition proper under the substantive law. I will briefly try to demonstrate herein why the more difficult route taken by the trial court was the proper legal result on the record in this case.
As in any civil appeal, after the preliminary issue of our jurisdiction, which is not an issue in this case, we must start with the issues raised by the appellants. To understand the issues, some very basic background is first required.
Basic Background Context
This appeal is from a take nothing judgment after a trial on the merits before the court. The plaintiff, Sherman Acquisition, sued for collection of a credit card debt which it had acquired from Sears. It is alleged that: the debt originated from purchases by Graham from Sears on a credit card; Graham failed to pay the credit card debt; the credit card company, Sears National Bank, sold the debt to Sherman; and, Sherman sued to collect the debt.
Basic Procedural Context
Sherman sued Graham to collect the debt. Graham did not file an answer or make an appearance. The trial court made a docket notation on June 24, 2005 that the default judgment was denied and to set the case for trial in 60 days. On the same date, the case was noticed for trial on August 26, 2005.
On August 8, 2005, Sherman filed a motion for default judgment. There is no signed order ruling on this motion.
On August 15, 2005, Sherman’s motion for judgment based on deemed admissions was filed. An amended motion was filed on August 23, 2005. There is no signed order ruling on either of these motions.[1]
The trial on the merits was held on August 26, 2005. No jury trial having been requested, the case was tried to the court. A take nothing judgment was rendered by written judgment signed on August 26, 2005.
Sherman requested findings of fact and conclusions of law.
Findings of fact and conclusions of law were signed and filed on September 21, 2005.
Notice of Appeal was filed on October 25, 2005.
Sherman vigorously asserts this was a suit on a sworn account and that it was entitled to a default judgment. As the majority properly decides, it is not a suit on a sworn account. So let us assume the entitlement to a default judgment was based on the petition’s allegations regarding liability. That leaves us with the need to prove damages. Sherman alleges it proved damages via an affidavit or alternatively, deemed admissions.
The Appeal
Sherman brings two issues. The first issue is a global one. It is:
The trial court erred in ordering that the Plaintiff take nothing by way of its suit.
The second issue is:
The trial court erred in not granting the Plaintiff’s Default Judgment.[2]
At the trial before the court, Sherman did not object to the trial court’s failure to grant a default judgment or his refusal to rule on any motion. At the trial, Sherman did nothing other than ask the court to take judicial notice of the file and request a judgment for Sherman. The entire reporter’s record is as follows:
PROCEEDINGS
AUGUST 26, 2005
THE COURT: Put on the record whatever it is you want to say.
MR. FISHER: Your Honor, my name is John B. Fisher, III, and I am an attorney. I practice law in Waco, Texas, and I was contacted on behalf of Hull & Associates, attorneys for the Plaintiff, Sherman Acquisition II LP, to just appear at this time, as requested, in regard to this case that is pending before this court against a man named William D. Graham, and to ask the Court to take judicial notice of the papers on file.
THE COURT: Well, I think I got notice of the papers on file.
MR. FISHER: And to request that a judgment be granted for the Plaintiff, as requested by the Plaintiff.
And I don’t have any further evidence for the Court, Your Honor.
THE COURT: Okay. Based on the record before me, I am going to deny your request.
MR. FISHER: Thank you, Your Honor.
Because this was a trial before the bench, the trial court filed findings of fact. They are not attacked on appeal.
The trial court was correct in determining that Sherman take nothing because there was no evidence of the amount of Sherman’s damages in the record – the file of which the trial court took judicial notice.
As to the affidavit relied upon to prove damages, the trial court found the affiant’s source of knowledge was not stated and, as such, even if the affidavit was properly before the court, it was not adequate for the purposes of proving Sherman’s damages. I agree.[3]
The request for admissions served with the petition, and as they appear in the clerk’s record, were not signed and had an incorrect deadline. As unsigned discovery, I do not find error in the trial court’s determination that the request for admissions could not be deemed admitted. Without the deemed admissions, there is no proper evidence of damages. The majority finds none either.
Sherman had the burden to present evidence of its damages at the trial before the court. Sherman wholly failed to meet its burden of proof. Because there is no evidence in the record of Sherman’s damages, the trial court properly rendered a take nothing judgment against Sherman. It is improper to now remand this case to the trial court to allow Sherman a second bite at the proverbial apple.
Having failed to prove its damages, the trial court’s take nothing judgment should be affirmed. Because the majority remands the case to allow Sherman another opportunity to prove its damages, an opportunity it is not entitled to, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed October 18, 2006
[1] These are not proper motions in Texas civil procedure. The proper motion for what Sherman was attempting to do would be a motion for summary judgment. Even if this motion and amended motion were treated as a motion for summary judgment, it came too late to get a ruling before the trial on the merits. Thus, there was no need for the trial court to rule on this motion.
[2] Sherman does not cite any authority for this entire issue. As such, it is improperly briefed and presents nothing for review.
[3] The findings of fact relevant to the affidavit are as follows:
FINDING OF FACT NO. 5. Plaintiff attached to its original petition an Affidavit of an unidentified individual.
FINDING OF FACT NO. 6. The affidavit of the unidentified individual claimed that the unidentified individual was Attorney in Fact for Sherman Acquisition II LP.
FINDING OF FACT NO. 7. The affidavit of the unidentified individual did not claim that the unidentified individual was a representative of Sears in any capacity.
FINDING OF FACT NO. 8. The affidavit of the unidentified individual failed to state any facts supporting the statement that the unidentified individual had personal knowledge about the subject matter of this suit.
.'s anus with his penis. S.L. was in pain and screamed. He tried to physically stop Trevino, but Trevino, weighing about 400 pounds, was too heavy. S.L. told Trevino to stop; however, Trevino continued moving until he ejaculated. After getting dressed, S.L. asked Trevino to take him home, and Trevino complied. During the assault, Jim was passed out in the living room. S.L. did not immediately tell anyone what had happened because he was embarrassed. He first told his ex-girlfriend's mother, and then in August 1994, he told his counselor who notified the police. At the time S.L. made his report, he did not know anyone else had been victimized by Trevino. S.L. did not go to a doctor but did have an HIV test performed, the results of which were negative.
Complainant - P.L.
P.L. became acquainted with Trevino through his brother, S.L., who was working for Trevino on Trevino's farm. P.L. also started working on Trevino's farm. After a period of time, Trevino asked P.L. to spend the night at his house so P.L. could begin work early the next morning. That night, P.L., Jim, and Trevino got drunk at Trevino's house. P.L. got so drunk that he passed out. When he awoke, his pants had been removed and Trevino was on top of his back with his penis penetrating P.L.'s anus. P.L. told Trevino to stop; however, Trevino continued penetrating P.L. until he ejaculated. P.L. then got dressed and fell back asleep. This was the first of many times Trevino sexually assaulted P.L.; however, P.L. could not remember this date or any of the other dates that Trevino assaulted him.
P.L. did testify that on some occasions, Trevino would put a blanket or a trash bag over P.L.'s head or turn off the porch light so that P.L. could enter and leave Trevino's house without the neighbors being able to identify him.
P.L. did not tell anyone that Trevino was sexually assaulting him, and he continued to spend time with Trevino, even moving in with him for a period of time. P.L. maintained his relationship with Trevino and allowed Trevino to continue to sexually assault him because his home-life was intolerable and because Trevino convinced P.L. that no one but Trevino cared for him. Additionally, Trevino provided P.L. with everything he needed in return for sexual favors. At one point, Trevino was even made "custodian" of P.L. by a court and put in charge of getting P.L. to school everyday.
When asked if he knew whether Trevino was having sexual contact with anyone else, P.L. testified that he had seen C.W. performing oral sex on Trevino in Trevino's truck at the farm.
P.L. ended his relationship with Trevino because he got tired of being abused and because he and his mother began to rebuild their relationship.
Complainant - S.R.
S.R. first went to Trevino's house in August 1994 to see his friend, P.L. On this first visit, Trevino took S.R. and P.L. to Reagor Springs to buy beer and to Trevino's farm. S.R. visited Trevino's house on two other occasions. On the last occasion, S.R., having already consumed some quantity of beer, went to Trevino's house to see P.L., and Trevino fixed S.R. mixed drinks. At some point during the evening, Trevino took P.L. home. While Trevino was gone, S.R. either fell asleep or passed out in a recliner in the living room. When he woke up, he was lying naked on Trevino's bed with Trevino on top of him. Trevino was also naked and was penetrating S.R.'s anus with his penis. Trevino continued the assault until he ejaculated. Afterwards, S.R. got dressed and walked, more than a mile, home. S.R. did not tell anyone that Trevino had sodomized him because he was ashamed. S.R. admitted that, if the police had not come to question him about Trevino, he would not have reported the incident at all.
Complainant - C.W.
C.W. met Trevino during the winter of 1994 when Trevino and P.L., whom C.W. knew, stopped to pick him up as he was walking down a road. Trevino and P.L. were on their way to Waco, and C.W. accompanied them. After returning to Waxahachie from Waco, they went to Trevino's house where C.W. drank beer and liquor. C.W. began to feel "woozy," and Trevino fixed him a pallet on the floor in Trevino's bedroom. As C.W. started to fall asleep, Trevino joined him on the floor and asked C.W. to perform oral sex on him. C.W. complied. Trevino then asked C.W. to engage in anal sex. C.W. again complied, and Trevino penetrated C.W.'s anus with his penis. C.W. did not remember if Trevino ejaculated but did remember that it was very painful. Afterward, C.W. vomited on the floor.
Even after this assault, C.W. continued to visit P.L. at Trevino's house and to work on Trevino's farm. C.W. did not remember specific dates, but remembered that on several occasions between January 1995 and February 1995, while helping Trevino get water for the animals, Trevino would ask C.W. to perform oral sex on him. Though he could not remember the specific date, C.W. recalled that during an overnight stay at Trevino's, Trevino picked up a .25 caliber pistol from the table by his bed and said to C.W.: "If you don't suck my dick, I'm going to shoot you." Afraid of Trevino, C.W. submitted to Trevino's demands, performing oral sex on him and engaging in anal sex with him.
C.W. admitted that he continued to go back to Trevino's even after Trevino threatened him because he wanted to see P.L., whom C.W. thought of as a brother.
Tony Wintworth, Dick and Erma Alsop
Three of Trevino's neighbors, Tony Wintworth and Mr. and Mrs. Dick Alsop, all testified to witnessing the same types of events at Trevino's house. According to Wintworth and the Alsops, there were young boys visiting Trevino at all hours of the day and night. Young boys could be seen drinking beer on Trevino's front porch. Furthermore, at times, people could be seen entering or exiting with something covering their heads or Trevino would be seen arriving home and turning off the porch light before rushing his passengers into the house.
Mohamad Shake
Shake, a clerk at a convenience store in Reagor Springs, testified that he knew Trevino because Trevino used to be a regular customer. Furthermore, each time Trevino came into the store, he would have one or more different young boys with him.
Officer Billie Wiggins
Billie Wiggins, an officer for the Waxahachie Police Department, testified to the following facts. Officer Wiggins is one of four investigators for the Waxahachie Police Department, and she is assigned to all cases involving kidnapping, assaults, sex crimes, and crimes against children. Officer Wiggins had special training in investigating sex crimes against children, and in her four years as an officer, she had investigated between 150 and 200 cases. She investigated the charges filed against Trevino.
Officer Wiggins took her first report against Trevino from S.H., a 12-year-old female, on August 4, 1994. S.H.'s mother notified the police that her daughter had been assaulted by Trevino and had engaged in sexual intercourse with P.L., a 17-year-old. S.H.'s mother filed a complaint against both Trevino and P.L. The initial report from S.H. and S.H.'s mother was taken by Officer Joe Wiser, and Officer Wiggins was assigned to the case the following day by her supervisor, Craig Rudolph. Officer Wiggins took one statement from S.H. which contained the complaint against Trevino and the complaint against P.L.
Neither P.L. nor Trevino was arrested as a result of the complaints made against them because, according to Officer Wiggins, there was no probable cause to do so. She did, however, refer both cases to the Ellis County Grand Jury, which did not indict either P.L. or Trevino.
The second complaint against Trevino was made on August 23, 1994, by S.L. Although S.L. made his initial report to Officer Phil Pruitt, Officer Wiggins investigated the complaint.
The next complaints against Trevino were made on February 9, 1995, by C.W. and P.L. These reports were made to Officer Barry Owens, who was also prepared to take C.W.'s and P.L.'s statements. However, C.W. and P.L. indicated they would prefer to talk to a female officer, so Officer Wiggins took the statements. After taking statements from both C.W. and P.L., Officer Wiggins obtained an arrest warrant for Trevino, who was arrested the night of February 9, 1995.
On cross-examination, Officer Wiggins denied that she had not followed up on her investigation of the complaint filed against P.L. because he had agreed to testify against Trevino. Officer Wiggins testified that she did not know why the complaint against P.L. had not been pursued because, after making her referral to the grand jury, the district attorney's office took over the case. Officer Wiggins further stated that having P.L. file a complaint against Trevino was not the catalyst for arresting Trevino. Officer Wiggins testified that Trevino was arrested on February 9, 1995, because, at that time, the Waxahachie Police Department had received four complaints from children who had been victimized by Trevino.
Dr. Dana Remmer
Dr. Dana Remmer, a physician at the Children's Medical Center in Dallas, testified as an expert witness. Dr. Remmer examined C.W. on February 10, 1995, and found no signs that C.W. had been sodomized. However, Dr. Remmer explained that, in most instances of sexual abuse, examinations of the victims are normal. She explained how the anus stretches easily to allow the passage of large objects and how, if the entry was not violent, there would not be any signs of sexual abuse after 48 hours. According to Dr. Remmer, the fact that C.W. had no visible signs of sexual abuse was not conclusive that C.W. had not been sexually assaulted.
Ricky Tutton
Tutton, who was 29-years-old at the time of trial, testified that he had known Trevino for 16 years and that Trevino had never made any sexual advances toward him. However, when Tutton first met Trevino, Trevino was still living with his family.
Tutton, who was a resident at Trevino's house between March 1994 and June 1994, testified that during the time period when he and his wife and two children were living with Trevino, there were several young boys, including P.L., who were either frequent visitors or residents at Trevino's house. At no time did Tutton ever see Trevino act improperly toward P.L., although Tutton admitted he was not always with P.L. and Trevino.
Joseph Ridgeway
Joseph Ridgeway, a 29-year-old, testified that he had known Trevino since the age of 12 and that Trevino had never made any sexual advances toward him. However, Ridgeway also testified that, when he first met Trevino and spent time with him, Trevino was living with his family and not in his own house.
"Patricia"
"Patricia," the mother of complainants P.L. and S.L., testified her sons had her permission to spend time with Trevino, helping him on his farm, but that at no time had either of her sons lived with Trevino. "Patricia" admitted that her son, S.L., had been in counseling to help him adjust to the fact that he was adopted but that he became hostile only after he started spending time at Trevino's house. "Patricia" also recalled a strange incident involving her son, P.L. She recounted that, on one occasion when Trevino brought P.L. home, P.L. was wearing women's underwear and a bra. After learning that her sons might have been the victims of sexual abuse, "Patricia" did not take them to see a doctor because she had learned, from watching television programs, that abuse could not be detected unless it had occurred immediately prior to the examination.
Application of Clewis
The proper standard for reviewing the factual-sufficiency of a judgment is whether the evidence, both for and against the jury's verdict, demonstrates that the conviction is clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996). Contrary to the proposition advanced by Trevino that, as an appellate court, we are authorized to reweigh the evidence and disagree with the jury's determinations, this court has held that, in conducting a factual-sufficiency review of the evidence, we will give due deference to the jury's assessment of the witnesses' credibility and to its resolution of any conflicts in the evidence. Desselles v. State, 934 S.W.2d 874, 878 (Tex. App.—Waco 1996, no pet.); see Jones v. State, No. 72,026, slip op. at 4-5 (Tex. Crim. App. December 18, 1996); Clewis, 922 S.W.2d at 133. We recognize that these are the prerogatives of the jury as a fact-finding body, and that we may not preempt that role unless the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Jones, slip op. at 4-5; Clewis, 922 S.W.2d at 135; Hernandez v. State, No. 10-95-325-CR, slip op. at 18 (Tex. App.—Waco, January 15, 1997, pet. filed).
Considering all the evidence, both for and against the verdict, we conclude that the judgment is factually supported by the record. During the trial, the jury heard the testimonies of the victims about how Trevino had assaulted them. Trevino contends that the testimonies of the victims were too vague to convince the jury beyond a reasonable doubt that he committed the charged offenses. However, we believe that all the evidence presented at trial was factually sufficient to support a judgment against Trevino.
Even though P.L., C.W., and S.R. testified that they could not remember the exact dates on which Trevino had assaulted them, they all testified that, on at least one occasion, Trevino assaulted them after having gotten them intoxicated to the point of passing out. The testimonies of P.L., C.W., and S.R. are consistent with the testimonies of S.H. and S.L. who remembered the dates on which Trevino assaulted them and testified that he did so after getting them drunk. The fact that Trevino would provide alcohol to underage children was corroborated by Shake and Trevino's neighbors. Shake testified that, as the clerk of the convenience store in Reagor Springs that Trevino frequented, he would sell Trevino alcohol and see young people, especially boys, with Trevino. Wintworth and the Alsops also testified to seeing young people at Trevino's house drinking beer.
Furthermore, Officer Wiggins explained that, in her experience of investigating between 150 and 200 cases of sexual assault of children, it was not uncommon for children not to remember the specifics of their assaults because of the trauma they endured. Officer Wiggins stated that this was especially true for victims who had endured abuse over a period of time.
Trevino maintains that the lack of physical evidence that the victims were assaulted supports his contention that the evidence is factually insufficient. No physical evidence was presented to show that any of the victims had been abused. Only one of the victims, C.W., was examined by a doctor. The examining physician, Dr. Remmer, testified that there were no physical signs that C.W. had been sexually abused. However, Dr. Remmer further explained that it was common in such cases for there to be no physical signs of abuse unless an examination was conducted within 48 hours of the violation.
The testimonies of Ridgeway and Tutton, recounting how they first became acquainted with Trevino when they were teenagers and that Trevino had never made any sexual advances towards them, does support Trevino's position that he was innocent of any impropriety toward the complainants. Both Ridgeway and Tutton testified that Trevino was not living in his own house when they were spending time with him; Trevino was still residing with his family. Furthermore, Tutton testified that, even though he and his family lived with Trevino when some of the assaults against the victims were alleged to have taken place, he was not always around Trevino when Trevino was with the victims.
Considering all the evidence presented at trial and deferring to the jury's resolution of any conflicting evidence, we conclude that the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Jones, slip op. at 4-5; Clewis, 922 S.W.2d at 129; Desselles, 922 S.W.2d at 881. Trevino's sixth point is overruled.
MOTION FOR CHANGE OF VENUE
In his first point of error, Trevino contends the trial court abused its discretion in denying his motion for change of venue. Trevino alleged that it would be impossible for him to get a fair trial in Ellis County due to unfavorable media coverage and because local officials had conspired against him and his family. Trevino's motion was supported by sworn compurgators Richard C. Hill and Emilio Perez. See Tex. Code Crim. Proc. Ann. art. 31.03(a) (Vernon 1989). However, the State filed a controverting affidavit which put the issue before the trial court. See id. art. 31.04 (Vernon 1989).
A trial judge may grant a defendant's motion for a change of venue if the defendant can show that (1) there exists in the county, where the prosecution is to be held, great prejudice against the defendant that the defendant cannot obtain a fair and impartial trial or (2) there is a dangerous combination instigated by influential people against the defendant that no fair trial can be had. Id. art. 31.03(a). A trial court's decision to deny a defendant's motion for change of venue will not be reversed on appeal absent an abuse of discretion. Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996) (on rehearing). The trial court is the sole fact-finder, and its decision will not be disturbed as long as it is reasonably based on the record before it. Hathorn v. State, 848 S.W.2d 101, 109 (Tex. Crim. App. 1992); Narvaiz v. State, 840 S.W.2d 415, 428 (Tex. Crim. App. 1992); see also Ransom, 920 S.W.2d at 299.
A defendant who has moved for a change of venue carries the heavy burden of proving "the existence of such a prejudice in the community that the likelihood of obtaining a fair and impartial trial is doubtful." Beets v. State, 767 S.W.2d 711, 743 (Tex. Crim. App. 1987) (on rehearing). To have venue changed based on pretrial publicity or because of a dangerous combination of influential people, which would prevent the defendant from receiving a fair and impartial trial, the defendant must show that prejudice against him actually infiltrated the jury process. See id.; Lopez v. State, 158 Tex. Crim. 16, 252 S.W.2d 701, 704 (1952).
Change of Venue Hearing
At the hearing on Trevino's motion, the defense called Trevino, Billie Joe Ridgeway, and Trevino's sister, Gloria Trevino Turner. Trevino recounted the numerous problems he had with both Waxahachie city officials and Ellis County officials. Trevino testified to the following incidents: (1) Joe Grubbs, prior to becoming district attorney, as the county judge of Ellis County, had forced Trevino to represent himself on a weapons charge; (2) a county commissioner accused Trevino of threatening him after the county refused to gravel the road leading to Trevino's property and because Trevino's property taxes had been raised; (3) the Waxahachie Police Department made it difficult for Trevino to file a criminal complaint against the city manager, Bob Sokol , after Sokol threatened him; and (4) a Waxahachie municipal judge would not refer Trevino's complaint against Sokol to the justice court because Sokol was in charge of the judge's pay check. Trevino stated that because of these events he could not get a fair trial in Ellis County. Trevino also testified that the charges against him had been on the front page of the Waxahachie Daily Light.
Turner testified that Trevino could not get a fair trial in Ellis County due to "bad publicity" and because there was a conspiracy in Ellis County against the Trevino family. Turner testified that her filing of a sexual harassment complaint against a supervisor where she worked and where the then-current mayor of Waxahachie was the plant manager precipitated the conspiracy. According to Turner, soon after she filed the complaint, her brother, Juan Trevino was "pistol whipped" by Waxahachie police officers and that she herself was harassed by an officer on the Waxahachie police force. Turner stated that she was arrested on several occasions by the Waxahachie Police Department before she moved from Waxahachie to Houston. Turner stated that her problems with the Waxahachie Police Department followed her to Houston. According to Turner, while she was living in Houston she was arrested on "trumped up" charges and that a "posse" was sent to Houston to take her back to Waxahachie. Turner also testified that she filed a civil suit against the Federal Bureau of Investigation and the Houston Police Department for civil rights violations stemming from one of her arrests in Houston during which she was badly beaten. In conclusion, Turner stated she believed the complaints filed against the various law enforcement agencies had played a major role in criminal charges being filed against her brother, Roberto. On cross-examination, Turner testified that she had not been a resident of Ellis County for over 18 years.
Ridgeway testified that he was familiar with the case against Trevino because he had read about it in the local newspaper. He further testified that he did not think Trevino could get a fair trial in Ellis County because there had "[b]een too much publicity." On cross-examination, Ridgeway stated that he had known the Trevino family for approximately 20 years and that he had discussed the case with them on several occasions. However, with the exception of other friends of the Trevino family, he had not discussed the case with anyone in the general public. Furthermore, Ridgeway was not aware of any group of influential people who were conspiring against the Trevino family.
The State called Mike Boyd, Roy Elliott, and Ellis County District Clerk Billie Fuller. Boyd testified that he was employed by the First State Bank in Italy, Texas. According to Boyd, he had not heard about the case against Trevino discussed in either his bank, in the cafe he frequented, or "on the street." Furthermore, he stated that he was not aware of any conspiracy against the Trevino family.
Elliott, President of the Midlothian Chamber of Commerce, testified that he travelled extensively throughout Ellis County and that he had not heard anyone talking about the case nor had he read about it in any newspaper. He further testified that he did not know of any conspiracy against the Trevino family. On cross-examination, Elliott admitted that the fact he had not discussed the case with anyone did not mean that people were unaware of the case.
Fuller, as the District Clerk for Ellis County, testified that, as of January 1995, there were 75,176 qualified potential jurors from which a jury could be selected.
Voir Dire
Fifty-four Ellis County citizens comprised the venire for the Trevino case. After 9 venire members were excused for cause because they admitted to not being able to consider the full range of punishment if Trevino were found guilty, 45 potential jurors remained. Of those venire members, 31 venire members knew nothing about the case and only 14 admitted to having read or heard about the Trevino case. All 14 of these venire members stated that nothing they knew about the case would prevent them from being impartial jurors.
After reviewing the evidence adduced at the hearing on Trevino's motion to change venue and the statement of facts from the voir dire examination, we conclude that the trial court could reasonably have found that Trevino could receive a fair and impartial trial in Ellis County. At the hearing on Trevino's motion to change venue, the only references made to any pretrial publicity were: (1) Trevino's testimony that there had been inflammatory media coverage of his case; (2) Turner's general statement about "bad publicity;" and (3) Ridgeway's testimony that articles about Trevino's case had appeared on the front page of the local paper. Furthermore, the venire members who had read about the case admitted that they had no preconceived notions regarding Trevino's guilt or innocence and that they could serve as impartial jurors. In regard to Trevino's contention that he could not receive a fair and impartial trial in Ellis County because of a conspiracy against him and his family, we conclude that Trevino has failed to show that any prejudice resulting from any alleged conspiracy actually reached the jury box. Other than the testimony from Trevino and his sister during the venue hearing, no other witness, not even Ridgeway, one of the defense witnesses, testified to knowing of the existence of any conspiracy against the Trevino family. Because Trevino has failed to carry his burden of showing that any prejudice due to pretrial publicity or to any dangerous combination instigated by influential people against him actually tainted the jury process, we hold that the trial court did not abuse its discretion in denying Trevino's motion for change of venue. Trevino's first point of error is overruled.
EXCLUSION OF EVIDENCE
In his fifth point, Trevino argues the trial court erred in granting the State's motion in limine excluding the testimonies of Officer Billie Wiggins, Bob Sokol, and Gloria Trevino Turner because this evidence was relevant to Trevino's defensive theory that influential people in the city of Waxahachie and Ellis County had conspired to manufacture the charges against him. When a motion in limine is granted, an offer of the evidence which was the subject of the motion must be made at trial to preserve a claim of improper exclusion. See Fuller v. State, 827 S.W.2d 919, 929 n.10 (Tex. Crim. App. 1992). Consequently, to preserve error, Trevino had to offer the evidence covered by the motion in limine before or during trial and have it included in the record. The Rules of Appellate Procedure mandate that the proponent of excluded evidence must offer the evidence, outside the presence of the jury, before the charge is read. Tex. R. App. P. 52(b); Tex. R. Crim. Evid. 103(a)(2); Easterling v. State, 710 S.W.2d 569, 575 (Tex. Crim. App. 1986).
Trevino called Officer Wiggins and Bob Sokol to testify. Out of the presence of the jury, Trevino offered a brief summary of what the testimony of each witness would allegedly establish, thus sufficiently preserving his complaint that the trial court excluded relevant evidence for review. See Moosavi v. State, 711 S.W.2d 53, 55-56 (Tex. Crim. App. 1986) (an informal bill will suffice as an offer of proof when it includes a concise statement of the defendant's belief of what the testimony would show). Additionally, on October 3, 1995, Trevino presented a "Bill of Exception" to the trial court, whereby he called Officer Wiggins, Bob Sokol, and Dick and Erma Alsop. However, this offer of evidence was made almost six weeks after the jury returned a verdict against Trevino and is untimely. See Tex. R. App. P. 52(b) (offer of proof must be made before the charge is read to the jury). Therefore, we will not consider this untimely offer of proof in determining if the trial court erred in excluding the testimonies of Officer Wiggins and Bob Sokol.
We turn now to whether the trial court erred in excluding the testimonies of Officer Wiggins and Bob Sokol based only on the offers of proof made during the course of the trial. During trial, Trevino explained to the trial court, outside the presence of the jury, that the testimonies of Officer Wiggins and Bob Sokol would prove his theory that a conspiracy against him and his family existed and that the charges against him had been fabricated in an attempt to "get rid of him." The basis of Trevino's theory was that, because he and Sokol had a public confrontation, resulting in Trevino's filing "verbal assault charges" against Sokol, and because Officer Wiggins and former police chief Ted Garber, who was a personal friend of Sokol, were lovers, Officers Wiggins had influenced all five complainants to lie about being sexually assaulted by Trevino.
Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Crim. Evid. 401; Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). Relevancy is not an inherent characteristic of an item of evidence but exists as a relation between an item of evidence and a matter properly provable in the case. Montgomery v. State, 810 S.W.2d 372, 375 (Tex. Crim. App. 1991) (on rehearing). Furthermore, the evidence itself need not prove or disprove a particular fact to be relevant. Id. at 376. Evidence is relevant if it merely provides a small nudge toward proving or disproving some fact of consequence. Id. However, because the admissibility of evidence is left to the discretion of the trial court, a ruling will not be disturbed on appeal as long as it was within the zone of reasonable disagreement. See id.; see also Ford v. State, 919 S.W.2d 107, 115 (Tex. Crim. App. 1996). The Court of Criminal Appeals has explained the function of an appellate court in reviewing a trial court's determination of whether evidence is relevant. See Montgomery, 810 S.W.2d at 391. The Court in Montgomery advised:
It is true that Rule 401 defines "relevance," but that definition is necessarily a broad one. Whether particular evidence meets the definition will not always be cut and dried. Our adversarial system assigns that question to the trial judge, on the assumption that he has the best vantage from which to decide. Determining the relevance of any given item of evidence to any given lawsuit is not exclusively a function of rule and logic. The trial court must rely in large part upon its own observations and experiences of the world, as exemplary of common observation and experience, and reason from there in deciding whether proffered evidence has "any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence." [Tex. R. Crim. Evid. 401]. The determination of relevance, vel non, thus depends upon one judge's perception of common experience. [Citation omitted]. The process cannot be wholly objectified. Reasonable [persons] may disagree whether in common experience a particular inference is available. Where there is room for such disagreement, an appellate court that reverses a trial court's ruling on relevancy accomplishes nothing more than to substitute its own reasonable perception of common experience for that of the trial court. The appellate court effectively displaces the trial court, commandeering a function institutionally assigned elsewhere.
Id.
We believe the case before us presents such an instance of reasonable people disagreeing about whether an inference that the accusations against Trevino were fabricated could be drawn from the proposed "conspiracy" evidence. In this case, Trevino sought to present the excluded evidence that a conspiracy existed against him in order to support his theory that all five complainants had been influenced to lie about being sexually assaulted by him. According to Trevino's offer of proof, had Bob Sokol been allowed to testify, he would have testified that he harbored great animosity toward Trevino and had even threatened that someone would eventually "get rid" of Trevino if Trevino did not stop causing problems with the city management. If Officer Wiggins had testified, she would have testified that she and former police chief, Ted Garber, were lovers and that because Garber and Sokol were personal friends, she was loyal to them and did not like Trevino because he had openly campaigned for the resignation of both Sokol and Garber.
We do not find these general assertions sufficient to substantiate Trevino's theory that Officer Wiggins induced all five complainants to falsify their accusations against him. First of all, even though Sokol admitted that he and Trevino did in fact have a public confrontation at a city meeting, there is nothing in the record to link Sokol and Officer Wiggins other than Sokol's position as the city manager for Waxahachie and Officer Wiggins' position as a member of the Waxahachie Police Department. Furthermore, there was no evidence elicited at the offer of proof that the complainants had been persuaded to make the accusations against Trevino. In fact, four of the complainants reported their assaults to other adults before they even spoke with Officer Wiggins.
Because we believe there is room for disagreement between reasonable persons as to whether an inference that the accusations against Trevino were false can be drawn from the proposed and actual testimonies of Officer Wiggins and Sokol, we conclude the trial court did not abuse its discretion in excluding such testimony, and we will not substitute our judgment for that of the trial court's. Trevino's fifth point is overruled.
MOTIONS FOR CONTINUANCE AND FOR PSYCHIATRIC TESTING
In his second point, Trevino alleges the trial court erred in denying his motion for continuance so that he could undergo psychiatric testing to determine his competency to stand trial. However, Trevino's complaint does not comport with the motions he filed with the trial court. See Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Trevino filed a motion for continuance requesting that the trial court delay the trial because Trevino's doctor had advised Trevino to "avoid all stress of any legal issues for another three months." Trevino's motion for continuance did not ask that the trial court postpone the trial so that Trevino could undergo psychiatric testing. Trevino did file a "Motion for Psychiatric Testing to Determine Competency," and this motion and Trevino's motion for continuance were argued concurrently, with the trial court denying both. On appeal, Trevino has argued the trial court's denial of his motion for continuance as if it were inseparable from his motion for psychiatric testing. In fact, the denial of the two motions are distinctly separate. Even though we are not required to address multifarious points, in the interest of justice, we will address Trevino's complaints of the trial court's denial of his motion for continuance and his motion for psychiatric testing. See Tex. R. App. P. 74(f); see also Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990).
Motion for Continuance
The determination of whether to grant a motion for continuance lies within the sound discretion of the trial court. See Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon 1989); see also Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). All motions for continuance must be verified by a person having personal knowledge of the facts relied upon for the continuance. See Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 1989); see also Montoya v. State, 810 S.W.2d 160, 176 (Tex. Crim. App. 1989). Trevino's motion for continuance consisted of his attorney's blanket statement that Trevino's psychiatrist, Dr. Frederick Petty, had recommended that Trevino "avoid all stress of any legal issues for another three months." A medical report from Trevino's doctor was attached to the motion; however, neither the motion nor the doctor's report were sworn. When a defendant's motion for continuance is not verified, nothing is presented for review. See Montoya, 810 S.W.2d at 176. Trevino's complaint regarding the trial court's denial of his motion for continuance is overruled.
Motion for Psychiatric Testing to Determine Competency
Trevino filed a "Motion for Psychiatric Testing to Determine Competency." When a motion for psychiatric testing is filed with the trial court, the evidence presented in support of the motion must "raise a bona fide doubt in the mind of the trial court as to the defendant's competence to stand trial before a court ordered psychiatric examination is required." Richardson v. State, 663 S.W.2d 111, 113 (Tex. App.—Houston [1st Dist.] 1983, no pet.). Trevino's motion was unsworn and there was no evidence adduced at the hearing on Trevino's motion. Consequently, because Trevino failed to present evidence which would raise a bona fide doubt in the mind of the trial court as to Trevino's competency, the trial court did not abuse its discretion when it denied Trevino's motion for psychiatric testing. See Green v. State, 682 S.W.2d 271, 290-91 (Tex. Crim. App. 1984) (An unsworn motion requesting a psychiatrist and an unsworn statement by a defendant's attorney is not sufficient to raise the issue of competency.); Porter v. State, 623 S.W.2d 374, 380 (Tex. Crim. App. 1981) (The trial court's decision to deny a defendant's motion for psychiatric testing will not be disturbed absent an abuse of discretion.). Trevino's second point of error is overruled.
BATSON CHALLENGE
In his third point, Trevino contends the trial court erred in overruling his motion to strike the jury panel after the State improperly used two peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 1717 (1986). Trevino, who is hispanic, contends the State impermissibly struck two black venire members solely because of their race. See Powers v. Ohio, 499 U.S. 400, 416, 111 S. Ct. 1364, 1373 (1991) (the race of a defendant is irrelevant to a Batson challenge); Cook v. State, 858 S.W.2d 467, 471 (Tex. Crim. App. 1993) (same).
A Batson inquiry is a three-step process. First, the defendant has the initial burden of making a prima facie case of racial discrimination, thereby raising a presumption of a Batson violation. Purkett v. Elem, — U.S. —, 115 S. Ct. 1769, 1770 (1995); Williams v. State, No. 72,128, slip op. at 6 (Tex. Crim. App. December 18, 1996); Harris v. State, 827 S.W.2d 949, 955 (Tex. Crim. App. 1992); Stiles v. State, 927 S.W.2d 723, 726 (Tex. App.—Waco 1996, no pet.). Second, once the defendant makes a prima facie showing of discrimination, a "Batson hearing" is held and the burden shifts to the State to present a race-neutral reason for striking the venire member. Purkett, — U.S. at —, 115 S. Ct. at 1770; Williams, slip op. at 6; Cantu v. State, 842 S.W.2d 667, 668 n.15 (Tex. Crim. App. 1992); Stiles, 927 S.W.2d at 726. At this step, a reason is deemed race-neutral "so long as no discriminatory intent is inherent in the explanation given, even if the explanation is fantastic or implausible." Williams, slip op. at 6 (citing Purkett, — U.S. at —, 115 S. Ct. at 1771). Upon the presentation of a race-neutral reason by the State, the burden once again shifts, back to the defendant, to rebut the State's race-neutral reason by showing that the State's reason is merely a pretext for discrimination. Purkett, — U.S. at —, 115 S. Ct. at 1770-71; Williams, slip op. at 6; Stiles, 927 S.W.2d at 726. It is at this point that the trial court determines whether the venire members at issue were struck for a race-neutral reason. Purkett, — U.S. at —, 115 S. Ct. at 1770-71; Williams, slip op. at 6, Stiles, 927 S.W.2d at 726.
After Trevino raised his Batson challenge, the trial court found that Trevino had made a prima facie showing that the State struck Number 23, a black female, and Number 26, a black male, because of their race. A Batson hearing followed, and the State responded that race was not a factor in its decision to strike these venire members. The State further asserted that Number 23 was the subject of a double strike. Therefore, because Trevino's striking of Number 23 would have prevented her from serving on the jury, there is no basis for his complaint that the State improperly exercised one of its strikes against her. Consequently, Trevino's complaint is limited to the State's striking of Number 26.
As a reviewing court, we review the evidence adduced at a Batson hearing in the light most favorable to the trial court's ruling, and we will not disturb the trial court's finding that the State exercised its strikes in a race-neutral manner unless the ruling is clearly erroneous. Kemp v. State, 846 S.W.2d 289, 304 (Tex. Crim. App. 1992); Stiles, 927 S.W.2d at 727. The trial court's ruling will be found to be clearly erroneous only if no plausible basis exists to support it. See Whitsey v. State, 796 S.W.2d 707, 721-22 (Tex. Crim. App. 1990) (on rehearing); Stiles, 927 S.W.2d at 727.
During the Batson hearing, the State asserted that it peremptorily struck Number 26 because: (1) he indicated on his juror information sheet that he was a single parent which, in the State's opinion, represented "poor moral character;" and (2) during voir dire, he stated he would have difficulty in convicting a defendant on the basis of only one witness' testimony. The Court of Criminal Appeals has held that not being able to follow the "one witness rule" is sufficiently race-neutral to counter a Batson challenge. See Esteves v. State, 849 S.W.2d 822, 823 (Tex. Crim. App. 1993).
Number 26's status as a single parent provides a much more tenuous basis for his exclusion. An explanation for a peremptory challenge based upon a person's marital status is suspect unless the group trait asserted—in this case "poor moral character"—can be shown to apply to the challenged venire member. See Whitsey, 796 S.W.2d at 716; Brown v. State, 925 S.W.2d 1, 3 (Tex. App.—Tyler 1994), rev'd on other grounds, 913 S.W.2d 577, 580 (Tex. Crim. App. 1996). However, the fact that the State had already provided a race-neutral reason for exercising one of its peremptory strikes against Number 26 constitutes sufficient reason for his exclusion from the jury. See Brown, 925 S.W.2d at 3.
Having carefully examined the record of the Batson hearing and the voir dire, we conclude that the trial court's finding that the State did not engage in any purposeful discrimination is supported by the record and was not, therefore, clearly erroneous. Trevino's third point is overruled.
VIOLATIONS OF PRETRIAL MOTIONS
In his fourth point of error, Trevino complains the trial court erred in failing to grant his motion for a mistrial after the State violated the court's ruling on Trevino's motion to suppress and his motion in limine. Prior to trial, Trevino filed a motion to suppress the following evidence: (1) three pornographic videos found in his living room; (2) a brief case containing pornographic videos found in his bedroom; and (3) eight pornographic videos found in his bedroom. Trevino also filed a motion in limine requesting that the State refrain from mentioning the above-listed items during the course of the trial. The trial court granted Trevino's motion to suppress, and the State had no objection to the motion in limine.
Trevino alleges the following excerpt from C.W.'s testimony violated both motions:
[STATE:] . . . . Before y'all went to bed, what had y'all been doing?
[WITNESS:] Drinking beer and sitting around.
[STATE:] Did y'all watch any movies?
[WITNESS:] Yes.
[STATE:] Can you tell the jury what kind of movies y'all were watching?
[DEFENSE:] Objection, Your Honor.
[COURT:] What?
[DEFENSE:] May we approach, Your Honor?
[COURT:] Yes.
(Side-bar discussion.)
[COURT:] Ask your question.
[STATE:] Can you tell the jury what kind of movies y'all were watching?
[WITNESS:] Dirty movies.
[STATE:] What did the movies have on them?
[DEFENSE:] Your Honor, I would like to object to the introduction of this evidence. I would ask for a motion to strike and disregard and motion for a mistrial.
[COURT:] Overruled.
[STATE:] What did the movies have on them?
[WITNESS:] Guys and girls.
[STATE:] What were they doing?
[WITNESS:] Having sex.
[STATE:] Where did the movies come from?
[WITNESS:] Out of a little white drawer.
[STATE:] A little white drawer where?
[WITNESS:] Of the dresser.
[STATE:] Where was the dresser?
[WITNESS:] In the living room.
We need not address Trevino's complaint because he has failed to properly preserve it for our review. To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling on the objection. Tex. R. App. P. 52(a); Tex. R. Crim. Evid. 103(a)(1); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995). Trevino did object to the State's asking C.W. what type of movies he had watched at Trevino's house; however, neither of his two objections stated the specific grounds on which he was objecting. A general objection is insufficient to preserve a complaint for review unless the grounds for the objection are obvious to the trial court. See Tex. R. App. P. 52(a); see also Camacho v. State, 864 S.W.2d 524, 533 (Tex. Crim. App. 1993). Reviewing the record, we can find no specific objection to C.W.'s testimony; consequently, we conclude that Trevino has failed to satisfy his burden on appeal. See Tex. R. App. P. 50(d); see also Taylor v. State, No. 0048-95, slip op. at 9-11 (Tex. Crim. App. October 9, 1996) (if it is apparent from the record that the trial court understood appellant's objection, then a general objection is sufficient to preserve error). Trevino's fourth point is overruled.
Having overruled all of Trevino's points on appeal, we conclude that no error occurred at the trial level and hereby affirm the trial court's judgment.
BOBBY L. CUMMINGS
Justice
Before Chief Justice Davis,
Justice Cummings, and
Justice Vance
Affirmed
Opinion delivered and filed March 19, 1997
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