IN THE
TENTH COURT OF APPEALS
No. 10-09-00222-CV
Lowell Merritt,
Appellant
v.
Robert Davis,
Appellee
From the 380th District Court
Collin County, Texas
Trial Court No. 380-01387-2009
OPINION ON REHEARING
Appellant Lowell Merritt complains on rehearing that this Court improperly dismissed his venue appeal because it is not an “interlocutory” appeal. Merritt refers to the following quotation from In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding), to support his position: “The only remedy afforded by the Legislature when a party loses a venue hearing is to proceed with trial in the transferee county and appeal any judgment from that court on the basis of alleged error in the venue ruling.” Id. at 261. According to Merritt, because he may appeal “any judgment” from the transferee court, he may in this instance appeal the Collin County district court’s order denying his motion to return his lawsuit to the McLennan County district court. We disagree.
Under section 15.064 of the Civil Practice and Remedies Code, Merritt cannot challenge the McLennan County district court’s venue ruling by appeal until the Collin County district court has rendered a final judgment on the merits of Merritt’s lawsuit against the appellee. See Tex. Civ. Prac. & Rem. Code Ann. § 15.064 (Vernon 2002). In the words of the Supreme Court, “[T]he law requires a party to wait until a final judgment is entered in a case to appeal an erroneous venue ruling.” Am. Home Products Corp. v. Clark, 38 S.W.3d 92, 95 (Tex. 2000). And looking more closely at the case cited by Merritt, a party who “loses a venue hearing” must first “proceed with trial in the transferee county” on the merits of the lawsuit, and then “appeal any judgment” rendered following the trial on the merits. See Team Rocket, 256 S.W.3d at 261 (emphasis added). Accordingly, Merritt cannot challenge the McLennan County district court’s venue ruling by appeal until after the trial on the merits is conducted by the Collin County district court and the latter court renders a final judgment on the merits.
Nevertheless, Merritt argues that this delay renders Rule of Appellate Procedure 44.4 “moot.” Again, we disagree.
Rule 44.4 provides:
(a) Generally. A court of appeals must not affirm or reverse a judgment or dismiss an appeal if:
(1) the trial court’s erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals; and
(2) the trial court can correct its action or failure to act.
(b) Court of Appeals Direction if Error Remediable. If the circumstances described in (a) exist, the court of appeals must direct the trial court to correct the error. The court of appeals will then proceed as if the erroneous action or failure to act had not occurred.
Tex. R. App. P. 44.4.
First, Rule 44.4 does not apply here because neither the McLennan County district court nor the Collin County district court has acted or failed or refused to act in some manner which prevents Merritt from presenting his appeal. See id. 44.4(a)(1). Rather, section 15.064(a) of the Civil Practice and Remedies Codes prevents Merritt from presenting his appeal at this time.
More fundamentally, when a procedural rule like Rule 44.4 conflicts with a statute, the statute controls. See Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (per curiam); In re Chu, 134 S.W.3d 459, 466 (Tex. App.—Waco 2004, orig. proceeding). Therefore, even if Rule 44.4 applied, which it does not, the provisions of section 15.064 would control and would prohibit any appeal on the venue issue until after a final judgment on the merits has been rendered by the Collin County district court.
Accordingly, Merritt’s motion for rehearing is denied.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
(Chief Justice Gray concurring with note)*
Rehearing denied
Opinion delivered and filed August 26, 2009
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* (Chief Justice Gray concurs in the judgment which dismissed the appeal for want of jurisdiction only and does not join either the opinion or the opinion on rehearing. A separate opinion will not issue. He notes, however, that the most basic jurisdictional problem in this proceeding is that it is an effort to appeal an order of a Collin County district court. Collin County is not in this Court’s jurisdiction. Tex. Gov’t Code Ann. § 22.201(k) (Vernon Supp. 2008).)
span style="font-family: 'CG Times', serif">This defense of justification or necessity is not available if the risk of eminent [sic] harm reasonably appreciated by the actor has ceased to exist at the time the alleged unlawful conduct occurred.
Russell argues that the Court’s instruction was not part of the necessity definition but was instead the Court’s opinion of the testimony presented, and thus, a violation of Article 36.14. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2001). In particular, Russell contends that the Court’s expansion of the definition is in essence: (1) expressing an opinion as to the weight of the evidence; (2) summing up the testimony; and/or (3) discussing the facts or an argument in the charge calculated to arouse the sympathy of the jury. In response, the State argues that the instruction added by the Court was consistent with the definition of necessity and it was not the trial court’s opinion of the testimony.
The choice of language by the trial judge, though trying to clarify the statute, is inappropriate if it draws particular attention to the evidence regarding the defendant’s state of mind. Even a seemingly neutral instruction about a particular type of evidence constitutes an impermissible comment on the weight of the evidence because such an instruction singles out a particular piece of evidence for special attention. See id.; Zani v. State, 758 S.W.2d 233, 245 (Tex. Crim. App. 1988). We find that the trial court impermissibly expressed an opinion on the weight of the evidence in violation of Article 36.14. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2001).
Harm Analysis
We must now determine whether sufficient harm resulted from the error to require reversal. The manner in which the jury charge error is reviewed on appeal is prescribed by Texas Code of Criminal Procedure Article 36.19 and Almanza. Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984); Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon Supp. 2000). The degree of harm that must be present to require reversal depends upon whether the error was preserved or unpreserved. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986). If the error in the charge was the subject of a timely objection in the trial court, then reversal is required if the error is "calculated to injure the rights of defendant," which means no more than that there must be some harm to the accused from the error. Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000). In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless. Id.
In determining whether the error was harmful and reversal is required, an evidentiary review must be conducted, as well as review of any part of the record as a whole that may illuminate the actual, not just theoretical, harm to the accused. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza, 686 S.W.2d at 174. The actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Ovalle, 13 S.W.3d 774. If any harm is found after conducting this review, then reversal is required.
Because Russell preserved error by objecting to the additional instruction, we analyze the case under the "some harm" test set forth in Almanza. Almanza, 686 S.W.2d. at 171. Under the "some harm" test, the presence of any harm is sufficient to require reversal. Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). The Court of Criminal Appeals has eliminated any suggestion that the defendant has a burden of proof to establish harm from the improper instruction. See Ovalle v. State, 13 S.W.3d 774, 787 (Tex. Crim. App. 2000). The Court stated the applicable procedure as follows:
We do not resolve the issue by asking whether the appellant met a burden of proof to persuade us that he suffered some actual harm, as the dissent would have it. No party should have a burden to prove harm from an error, and there ordinarily is no way to prove "actual" harm. Burdens and requirements of proving actual facts are appropriate in the law of evidence, but they have little meaning for the harmless-error decision.
In evaluating what effect, if any, an error had on the jury's verdict, the appellate court may look only to the record before it. The function of a party carrying the burden is simply to suggest, in light of that record, how prejudice may or may not have occurred. At that point, the court makes its own assessment as to what degree of likelihood exists as to that prejudicial or non-prejudicial impact and then applies to that assessment the likelihood-standard of the particular jurisdiction.
Id.
The nature of the error is an expansion or further elaboration of the statutory definition of necessity. Reviewing the arguments of counsel during the guilt/innocence phase, the State did make one reference to the erroneous instruction that Russell complains of on appeal. However, Russell also referred to this instruction in his closing, placing more emphasis on the instruction than the State. Defense counsel approached the erroneous instruction strategically. He argued:
...we’re going to walk toward this concept of necessity. And like I say when you get the jury charge, the definition is outlined for you and everything, I’m not going to read it to you and everything, but there is one paragraph, this last section says (reading) “This defense of justification of necessity is not available if the risk of imminent harm is reasonably appreciated by the actor has ceased to exist at the time of the alleged unlawful conduct.” And the reason I’m putting that in there and everything is because I want you to look at that because for you to deal with the defense of necessity, this charge first of all literally places you in the person of being a reasonable person, a prudent man that probably should be a prudent person, but it says prudent man, but that would include you ladies too. Okay. You need to get in the mind set and think what would be reasonably prudent if you were that individual, Fred Russell, at 3:00 a.m. on the morning of December 14th, 1997 on 31 going east.
We must next examine the state of the evidence at trial, including the contested issues and weight of probative evidence. The critical issue at trial was whether Russell was acting out of necessity at the time he fled the scene of the accident because he did not deny that he was involved in the accident with the victim. He sought to justify his failure to stop and render aid with the defense of necessity based upon his fear of Cavendar. However, the evidence establishes that notwithstanding the violent nature of the wreck, and that Cavendar was lying motionless in the road when Russell left the scene, Russell made no effort to report the accident or seek help for Cavendar. The jury could have easily determined that even if Cavendar had exhibited a weapon and that Russell was justified in being fearful of staying at the scene and going to Cavendar’s side to aid him, it did not excuse Russell from reporting the required information or getting help for Cavendar by reporting the accident from a remote location. Reviewing the charge as a whole, including the erroneous instruction, the jury was otherwise properly instructed on the necessity defense. Therefore, based upon a close inspection of the record, we cannot say that the error caused Russell some harm. Accordingly, we overrule Russell’s first issue.
Issue 2: Motion for Mistrial
In his second issue, Russell argues that the trial court erred in not granting his request for mistrial following prosecutorial misconduct in connection with an improper question by the prosecution. The alleged error occurred when the prosecutor asked Russell if he had a prior conviction for “failure to stop and render aid.” Russell responded in the affirmative and his counsel objected. Then there was a hearing outside the presence of the jury.
During the hearing, Russell’s counsel argued that it was a misnomer and that the prior conviction was for the failure to provide information, which is a misdemeanor and not the failure to stop and render aid. The State argued impeachment on the grounds that it was a crime of moral turpitude. After the hearing, defense counsel also requested that the court instruct the jury to disregard the question and answer and moved for a mistrial. The trial court sustained Russell’s objection and the court gave the jury an instruction to disregard as follows:
Members of the jury, before I go further, before I recessed there was a question asked and maybe some preliminary talk about an alleged or purported conviction of the defendant with respect to an offense that was, a previous offense that was defined either stop, or failure to stop and render aid or failure to stop and give information. And the Court after some lengthy hearings and research has found that that question or that matters with respect, any matter with respect to that is, is improper. You are instructed not to consider any of those questions, responses, or any document which may have been offered with respect to such a matter for any purpose. Everybody understand? Okay. Let’s proceed. You may come back to the witness stand.
The trial court then denied Russell’s motion for mistrial.
When the trial court sustains an objection and grants a request for an instruction for the jury to disregard but denies a motion for mistrial, the issue becomes whether the trial court erred in denying the mistrial. Carlock v. State, 8 S.W.3d at 723. Ordinarily, a prompt instruction to disregard will cure the prejudicial effect associated with an improper question and answer, even one regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774 (Tex. Crim. App. 2000). The mere asking of an improper question will not constitute reversible error unless the question results in obvious harm to the accused. Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985) (citing Yarbrough v. State, 617 S.W.2d 221, 228 (Tex. Crim. App. 1981).
An instruction to disregard will be presumed effective unless the facts of the case “suggest[s] the impossibility of withdrawing the impression produced on the minds of the jury[.]” Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988)(citing Hatcher v. State, 43 Tex. Crim. 237, 65 S.W.2d 97, 98 (1901); Veteto v. State, 8 S.W.3d 805 (Tex. App.—Waco 2000, pet. ref’d). The effectiveness of a curative instruction is determined on a case-by-case basis. Id.; Fletcher v. State, 852 S.W.2d 271, 275 (Tex. App.—Dallas 1993, pet. ref’d). Although not expressly adopted as exhaustive or definitive, the Court of Criminal Appeals has relied on several factors to determine whether an instruction to disregard cured the prejudicial effect. Waldo, 746 S.W.2d at 754. They are as follows:
1. The nature of the error;
2. The persistence of the prosecution in committing the error;
3. The flagrancy of the violation;
4. The particular instruction given;
5. The weight of the incriminating evidence; and
6. The harm to the accused as measured by the severity of the sentence.
Id. We likewise rely on these factors. Veteto, at 805; Mendoza v. State, 959 S.W.2d 321, 324 (Tex. App.—Waco 1997, pet. ref'd).
Applying these factors to the case at hand, any prejudice caused by the prosecution’s question was cured by the trial court’s instruction. The prejudicial effect of the question by the prosecution was not of such a nature that it could not be cured by an instruction to disregard. The particular instruction given adequately instructed the jury not to consider the prosecution’s improper question and Russell’s answer for any purpose. Nor can it be argued the prosecution was persistent in committing the error or that the violation was fragrant. The improper question was only asked once. Although there was evidence introduced for the defense of necessity, the totality of the evidence supports Russell’s conviction for the failure to stop and render aid. After reviewing the record in this case and applying the factors set out in Veteto, we conclude that the court’s instruction effectively cured the prejudicial effect, if any. Russell’s second issue is overruled.
Conclusion
Having overruled Russell’s two issues, we affirm the judgment of the trial court.
TOM GRAY
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
(Justice Vance dissenting)
Affirmed
Opinion delivered and filed on March 7, 2001
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