IN THE
TENTH COURT OF APPEALS
No. 10-07-00181-CV
In the Matter of the Marriage of
Melissa June Wellington
and Craig Matthew Wellington,
From the County Court at Law No. 2
Brazos County, Texas
Trial Court No. 06-000548-CVD-CCL2
MEMORANDUM Opinion
Melissa and Craig Wellington were married in August of 2003 and separated in February of 2006. No child was born during the marriage and none were adopted. Melissa filed a suit for divorce on March 3, 2006. The parties entered into a Settlement Agreement concerning the property issues. The agreement specifically reserved to Craig the right to contest the granting of a divorce, required Melissa to participate in counseling sessions with a counselor of Craig’s choosing, and provided for the future care of two cats owned by the couple.
After attempts to reconcile failed, the trial court held a hearing on November 13, 2006, at which both parties testified. Melissa testified that the marriage was insupportable because of discord or conflict of personalities between the spouses that destroyed the legitimate ends of the marriage and that there was no reasonable expectation of reconciliation. She acknowledged that Craig opposed the divorce. Craig testified that he had signed the Settlement Agreement and thought it was fair and equitable. He said that in his opinion there were no irreconcilable differences that could not be addressed through counseling.
The attorneys for the parties did not agree on the form of the decree, and Melissa asked the trial court to proceed to judgment. Both parties appeared at the second hearing with counsel, and after the trial court heard arguments, a decree of divorce based on the November hearing and the settlement agreement was signed. Craig filed a motion for a new trial, which was overruled by operation of law. Craig also filed a notice of appeal. Findings of fact and conclusions of law were not requested.
Two issues are presented: (1) whether the proof of the statutory elements for a no-fault divorce are so lacking in legally sufficient evidence or, alternatively, factually sufficient evidence as to render the trial court’s decision an abuse of discretion; and (2) whether the trial judge failed to reconcile the competing objectives of supporting the institution of marriage and allowing persons to divorce without assigning fault. Because we find that the issues have no merit, we will affirm the judgment.
Whether evidence is sufficient to support a decree of divorce on grounds of insupportability is a matter within the trial court’s discretion. In re Marriage of Scott, 117 S.W.3d 580, 582 (Tex. App.—Amarillo 2003, no pet.). When the standard of review on appeal is whether the trial court abused its discretion, legal and factual sufficiency questions are factors to consider in applying the standard, rather than independent grounds for review. Yarbrough v. Yarbrough, 151 S.W.3d 687, 690 (Tex. App.—Waco 2004, no pet.); Walston v. Walston, 971 S.W.2d 687, 691 (Tex. App.—Waco 1998, pet. denied).
The insupportability ground of divorce is set out in section 6.001 of the Family Code. This ground, also known as no-fault divorce, has three elements. Cusack v. Cusack, 491 S.W.2d 714, 716 (Tex. Civ. App.—Corpus Christi 1973, writ dism'd w.o.j.) (discussing previous codification as section 3.001 of the former Family Code). They are: 1) that the marriage has become insupportable because of discord or conflict, 2) that discord or conflict destroys the legitimate ends of the marriage, and 3) there is no reasonable expectation of reconciliation. Tex. Fam. Code Ann. § 6.001 (Vernon 2006). The party petitioning for a divorce on these grounds has a duty to establish the statutory elements with adequate evidence. In re Marriage of Richards, 991 S.W.2d 32, 37 (Tex. App.—Amarillo 1999, pet. dism’d).
In 2003, the Dallas Court of Appeals, reviewing the denial of a temporary injunction, held that a wife’s testimony that her marriage was irreparable due to discord and a conflict of personalities between her and her husband, together with her testimony that there was no chance for reconciliation, established a prima facie case for a no-fault divorce under section 6.001. In re Marriage of Beach, 97 S.W.3d 706, 708 (Tex. App.—Dallas 2003, no pet.). The Court also rejected the husband’s assertion that a wife has a duty to reconcile. Id. (“assertion that a spouse has a legal duty to reconcile is utterly without merit”).
Craig asserts that Melissa’s one-word responses (“yes” or “no”) to her attorney’s questions do not create a record that reveals sufficient facts upon which the trial court could have rationally exercised its discretion. See Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 938 (Tex. App.—Austin 1987, no writ) (extensive discussion of abuse of discretion standard). He phrases the issue as: “are Melissa’s responses adequate evidence in the face of Craig’s controverting testimony?”
Very few recent cases discuss section 6.001 of the Family Code. The trial court heard Melissa’s testimony affirming the three elements of the grounds for divorce known as insupportability, without any objection as to the form of the questions, heard Craig’s testimony concerning his belief that reconciliation was possible, and heard evidence concerning attempts to reconcile through counseling. As the trier of fact, the court was in a position to observe the demeanor of each of the parties and assess the weight that should be given their respective testimonies. Based on the evidence, we cannot say that the trial court abused its discretion in granting Melissa’s request for a divorce. See Cusack, 491 S.W.2d at 717. The Corpus Christi Court observed about the predecessor statute:
We conclude that it was the intent of the Legislature to make a decree of divorce mandatory when a party to the marriage alleges insupportability and the conditions of the statute are met, regardless of who is at fault, on the theory that society will be better served by terminating marriages which have ceased to exist in fact. The courts have no right or prerogative to add to or take from such a legislative enactment, or to construe it in such a way as to make it meaningless. As we view the Code, when insupportability is relied on as a ground for divorce by the complaining spouse, if that ground is established by the evidence, a divorce must be granted the complaining party, without regard as to whether either, both or neither of the parties are responsible for or caused the insupportability. [Citation omitted.] It is not incumbent upon the plaintiff who brings the divorce action upon the ground of insupportability to show any misconduct on the part of the defendant, but it is only incumbent upon that spouse to establish by the evidence that a state of insupportability exists regardless of whether it is anyone's or no one's fault.
Id.; see also Renfro v. Renfro, 497 S.W.2d 807, 808 (Tex. Civ. App.—Waco 1973, no writ) (citing Cusack). We overrule Craig’s first issue.
Craig’s second issue is essentially a re-urging of his first: “The two state interests (supporting marriage and promoting no fault divorce) can best be reconciled by requiring legally and factually sufficient evidence to support rendition of a no fault divorce when one spouse opposes the divorce and presents controverting testimony on the statutory elements.” As the Corpus Christi Court noted in Cusack, the decision to protect society’s interests by allowing one spouse to seek and be granted a divorce without a showing of fault was made by the Legislature when it enacted the statute establishing insupportability as a grounds. See Cusack, 491 S.W.2d at 717. We therefore confirm that when the statutory grounds asserted were proven by satisfactory evidence, the trial court had no discretion to deny the divorce. See id. (“if that ground is established by the evidence, a divorce must be granted”). We overrule Craig’s second issue.[1]
Having overruled both issues, we affirm the judgment
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed August 27, 2008
[CV06]
[1] Craig cites Waite v. Waite, 64 S.W.3d 217 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (interlocutory appeal), where the “Fourteenth court engaged in extended analysis of the statute which sheds light on the policy concerns presented by Craig.” In a plurality opinion, the court rejected the husband’s constitutional challenge. See also Waite v. Waite, 150 S.W.3d 797 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).
dead-end street. The driver abandoned the vehicle and jumped over a fence. Smith secured the vehicle, where he found a stocking mask and a large amount of change inside Maxwell Books bags.
Officer Thomas responded to Smith’s dispatch. He testified that as he turned into the alleyway adjacent to the fence that the suspect had jumped, a man matching the robber’s description almost ran into his patrol car. The man was wearing a diamond-patterned shirt. Thomas pursued the man through the neighborhood. Several residents pointed to where the suspect had jumped a fence into the backyard of a residence. Through the fence, Thomas saw Bradden sitting on the patio, not wearing a shirt. When backup arrived, Thomas handcuffed Bradden. Police found the diamond-patterned shirt in the next yard. The owner of the house told the officers that she had never seen Bradden before. The officers put the shirt over Bradden’s head and walked him through the house. Smith identified Bradden as the driver who had abandoned the vehicle and jumped the fence.
The car was not registered to Bradden. Thomas testified that he found a gun (a BB gun) just outside the first fence the suspect had jumped. Bradden testified in his own defense. According to Bradden, he was walking for exercise wearing only a pair of black pants and his house shoes. He was in an alley near his home when a police car stopped and the officer asked him for identification. He admitted that he had crossed the yard, but claimed that the gate was unlocked. He testified that the police arrested him, placed someone else’s shirt over his head, and walked him through the house. He admitted to four previous convictions, two for robbery and two for aggravated robbery.
Legal and Factual Sufficiency
Bradden argues that the evidence is legally and factually insufficient to support either his conviction for robbery or his conviction for evading arrest. When reviewing the legal sufficiency of the evidence, we view all of 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). 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).
Bradden argues that a rational juror could not have found that the State proved, beyond a reasonable doubt, that Bradden was the robber. Specifically, Bradden notes that the police never found the paper money taken from the store, no fingerprints connected him to any of the evidence, and the DNA evidence was not conclusive. The state may prove identity with circumstantial evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Wilson v. State, 9 S.W.3d 852, 855 (Tex. App.—Austin 2000, no pet.). Smith identified Bradden in court as the driver of the vehicle he pursued. He identified the shirt as the shirt Bradden was wearing at the time. He identified the mask and Maxwell Books bags found in the vehicle Bradden abandoned. Thomas identified Bradden as the man he encountered in the alleyway wearing the diamond-patterned shirt. Lujan identified Bradden as the man she had seen outside the bookstore, and identified the mask and shirt worn by the robber.
Considering all of the evidence in the light most favorable to the verdict, the jury could rationally have found beyond a reasonable doubt that Bradden was the robber. Jackson, 443 U.S. at 318-319, 99 S. Ct. at 2788-89. The evidence is legally sufficient. Considering all of the evidence in a neutral light, we cannot say the jury was not rationally justified in finding that Bradden was the robber. Zuniga, 2004 WL 840786, at *7. The evidence is factually sufficient. We overrule this issue.
Bradden argues that the evidence was legally and factually insufficient to support his conviction for evading arrest. Specifically, he contends that the evidence is insufficient to prove that he was the operator of the vehicle and that he knew that Smith was a police officer. Smith identified Bradden both at the time of the arrest and in court as the driver of the vehicle. He testified that when he turned on the lights and siren of his unmarked police car, Bradden continued to travel down several residential streets, stopping only when he reached a dead end. Smith testified that Bradden bailed out of the car and escaped by jumping a nearby fence. These events were videotaped from Smith’s vehicle, and the jury viewed the videotape. The jury could rationally have found beyond a reasonable doubt that Bradden was the driver of the vehicle. The jury could also have rationally determined beyond a reasonable doubt that Bradden knew the driver of the vehicle pursuing him was a police officer and that Bradden took evasive action. Finding the evidence legally and factually sufficient, we overrule this issue.
Impeachment
Bradden argues that the trial court erred in allowing the State to impeach him with evidence of his 1972 convictions for robbery. The State provided pre-trial notice that it may use two 1972 convictions for robbery, a 1978 conviction for aggravated robbery, and two 1979 convictions for aggravated robbery to impeach Bradden. Texas Rule of Evidence 609(b) prohibits use of evidence of a conviction to impeach a witness if more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction substantially outweighs its prejudicial effect. Tex. R. Evid. 609(b). The trial court overruled Bradden’s objection to the use of the 1972 conviction.
The Court of Criminal Appeals has identified five factors which the court should consider in balancing probative value against prejudicial effect: (1) the impeachment value of the prior conviction; (2) the temporal proximity of the prior conviction; (3) the similarity between the past crime and the offense being prosecuted; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility issue. Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992). The trial court has “wide discretion” in determining the admissibility of a prior conviction under Rule 609. Id. at 881. We will set aside the court’s ruling if it “lies outside the zone of reasonable disagreement.” Id.
Impeachment Value
A crime involving deception has a higher impeachment value than a crime involving violence. Id. Crimes involving violence tend to be more prejudicial. Id. The State offered no evidence in the hearing concerning the facts of the prior convictions with regard to their impeachment value. Robbery does not necessarily involve deception, but it does involve threats, force, or violence. Based on the limited record before us, we hold that this factor weighs against admissibility. See Jackson v. State, 50 S.W.3d 579, 592 (Tex. App.—Fort Worth 2001, pet ref’d).
Temporal Proximity
Rule 609(b) renders a prior conviction presumptively inadmissible if it is one for which the witness had been released from custody more than ten years before trial. Tex. R. Evid. 609(b); Jackson, 50 S.W.3d at 591; Butler v. State, 890 S.W.2d 950, 954 (Tex. App.—Waco 1995, pet. ref’d). However, a trial court may nevertheless admit a conviction deemed too remote under this rule if the court determines that, under the “specific facts and circumstances,” the probative value of the conviction substantially outweighs its prejudicial effect. Id. The impeachment value of a “remote” prior felony conviction increases if the State offers evidence of the lack of reformation or subsequent felony and certain misdemeanor convictions. See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim. App. 1989); Jackson, 50 S.W.3d at 591. The State introduced evidence that Bradden had aggravated robbery convictions in 1978 and 1979, and that Bradden had only recently been paroled for the 1978 conviction. This constitutes evidence of a lack of reformation and subsequent felony convictions. We hold that the facts and circumstances presented tend to support the trial court’s determination that the probative value of the 1972 conviction substantially outweighs its prejudicial effect.
Similarity to Charged Offense
The fact that a prior conviction is similar to the present offense weighs against its admissibility because the similarity might lead a jury to “convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense.” Theus, 845 S.W.2d at 881. Bradden’s 1972 conviction was for robbery, and he was on trial for robbery in this case. Accordingly, this factor weighs against the admissibility of the prior conviction.
Importance of Defendant’s Testimony/Credibility
When a case involves the testimony only of the defendant and the State’s witnesses, the importance of the defendant’s testimony and credibility escalates. Id. As the importance of the defendant’s credibility escalates, so does the need to allow the State the opportunity to impeach the defendant’s credibility. Id. These factors favor admissibility.
Summary
We accord the trial court “wide discretion” in determining whether to admit a prior conviction for impeachment under Rule 609. Id. at 881; White v. State, 21 S.W.3d 642, 646-47 (Tex. App.—Waco 2000, pet. ref’d). Three of the five factors weigh in favor of admissibility. Under these circumstances, we cannot say that the court’s decision “lies outside the zone of reasonable disagreement.” See id. We overrule the issue.
CONCLUSION
Having overruled the issues, we affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs in the result without a separate opinion.)
Affirmed
Opinion delivered and filed December 8, 2004
Do not publish
[CRPM]