IN THE
TENTH COURT OF APPEALS
No. 10-06-00256-CV
Motor Coach Industries Mexico, S.A. de C.V.,
f/k/a Dina Autobuses, S.A. de C.V.,
Appellant
v.
James Hinton, Individually and as Representative of the Estate of Dolores Hinton, Deceased, david hinton,
robert kuryla, karen kuryla, hattie binns, reta haynes, melinda greger, alan horton, elaine horton, ruth powell, judy benson, james l. freeman, individually and as personal representative of the estate of jo catherine freeman, deceased, james f. freeman, melanie jo brooks, susan akers bills, individually and as executrix of the estates of robert melvin akers, deceased, and mildreD delois akers, deceased, robert melvin akers, jr., patsy beasley, individually and as executrix of the estate of wayne beasley, deceased, shirley sommer, and peggy armstrong,
Appellees
And
10-08-00353-CV
MCI Sales and Service, Inc., f/k/a Hausman Bus Sales, Inc.,
Appellant
v.
James Hinton, Individually and as Representative of the Estate of Dolores Hinton, Deceased, david hinton,
robert kuryla, karen kuryla, hattie binns, reta haynes, melinda greger, alan horton, elaine horton, ruth powell, judy benson, james l. freeman, individually and as personal representative of the estate of jo catherine freeman, deceased, james f. freeman, melanie jo brooks, susan akers bills, individually and as executrix of the estates of robert melvin akers, deceased, and mildreD delois akers, deceased, robert melvin akers, jr., patsy beasley, individually and as executrix of the estate of wayne beasley, deceased, shirley sommer, and peggy armstrong,
Appellees
From the 170th District Court
McLennan County, Texas
Trial Court No. 2003-2308-4
DISSENT TO SEVERANCE AND REINSTATEMENT ORDER
The Court’s opinion and judgment in 10-06-00256-CV issued on September 10, 2008. On September 19, 2008, we received a notice of bankruptcy of one of the Appellants. On September 19, 2008, we also received Appellees’ motion for extension of time to file a motion for rehearing. On September 22, 2008, we purported to grant the Appellees’ motion for extension of time to file a motion for rehearing until October 27, 2008. On September 22, 2008, we received a letter from Appellants regarding the Court’s purported order granting the extension after the notice of bankruptcy had been received. On October 7, 2008 we acknowledged the automatic stay due to having received the notice of bankruptcy, but did not acknowledge the date of the receipt or the effective date of the stay. Today we purport to sever the proceeding on our own motion. I would not.
I would first clarify the procedural posture of the stay by noting that the Court’s September 22, 2008 order granting Appellees an extension of time in which to file their motion for rehearing and extending the due date until October 27, 2008 was a void order because it was issued after we had received notice of the bankruptcy stay. I would then inquire of the parties regarding whether the matter was appropriate for severance; in particular, whether the Appellees’ claims against the Appellants are severable. In this proceeding it appears that the Appellees brought a single claim, albeit multiple theories of product liability, against multiple but related corporate Appellants. The judgment for each Appellee is for the same claim (multiple theories) and precisely the same damages jointly and severally against each Appellant. Before I vote to attempt to sever these Appellants, I would request briefing on the issue of severability. Further, it appears we may be creating an undesirable course of proceeding because, while represented by able counsel, none of the parties has sought this court’s intervention in this manner.
Accordingly, I respectfully dissent from the severance and reinstatement order.
TOM GRAY
Chief Justice
Dissent to Severance and Reinstatement Order delivered and filed October 15, 2008
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ot supported by the evidence, and (3) discuss the application of law to the facts.
Even though we have determined that the brief is insufficient, we are considering the brief by construing the text to determine what the argument is, and then analyzing the argument. The elements of aggravated robbery are: (1) a person; (2) in the course of committing theft; (3) with intent to obtain or maintain control of the property; (4) knowingly and intentionally; (5) threatens or places another in fear of imminent bodily injury or death; and (6) uses or exhibits a deadly weapon. Robinson v. State, 596 S.W.2d 130, 132 (Tex. Crim. App. 1980); Tex. Pen. Code Ann. §29.03(a)(2) (Vernon 1994).
Rather than attacking any particular element of aggravated robbery, Matthews appears to argue that evidence is factually insufficient to support a conviction because most of the State’s witnesses were not present during the robbery of Anthony Dixon and because the only two witnesses who were present—Dixon and his roommate—were not credible.
Dixon and his roommate testified that Matthews held Dixon at gun point and took several items including a computer. Matthews argues that Dixon is not a credible witness because he had a charge pending for the offense of possession of a controlled substance in a school zone, and was having a party during the time Matthews allegedly robbed him. Matthews appears to allege that the roommate is not credible by virtue of his relationship with Dixon, and therefore, has reason to lie.
Police officer testimony revealed that the stolen items were found in Matthews’s vehicle. The jury also had Matthews’s version of the facts available for use in their determination in the form of a statement he gave the police. According to Matthews, he gave Dixon money for crack. Dixon pointed a gun at him first, and he wrestled the gun away from Dixon. Matthews said that he had purchased the computer the week before and was merely picking it up. During closing argument, Matthews’s attorney reiterated to the jury that Dixon and his roommate were not credible.
After observing testimony from Dixon and his roommate, the arresting and interrogating officers, and fact witnesses that were not present during the robbery, reading the statement of Matthews, and listening to the closing arguments of the parties, the jury returned a verdict of guilty.
During a review of factual sufficiency, the appellate court may make credibility determinations only if the information that can be clearly discerned from a cold appellate record reveals that the wrong result was reached. Johnson, 23 S.W.3d at 8-9. Otherwise, an appellate court must defer to the jury evaluation of witness credibility. Id. Here, the jury had the opportunity to watch the witnesses and determine if they were biased or otherwise not credible by their mannerisms, tone, and inflection. The information on the record is not so clearly contrary to the jury finding that it requires an overturning of the verdict. Matthews’s point is overruled.
We affirm the judgment.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Affirmed
Opinion delivered and filed December 31, 2002
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