Roberto Andres Martinez v. State ( 2008 )

NO. 07-07-0273-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 5, 2008

                                       ______________________________

ROBERTO ANDRES MARTINEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 187TH DISTRICT COURT OF BEXAR COUNTY;

NO. 2004CR1620; HONORABLE RAYMOND ANGELINI, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant, Roberto Andres Martinez, pleaded nolo contendere to the offense of Violating Sex Offender Registration. Pursuant to a plea agreement, the trial court placed the appellant on deferred adjudication community supervision for a period of two years and a fine of $1,200. The State subsequently filed a motion to Enter Adjudication of Guilt and Revoke Community Supervision. When advised of the allegations against him, appellant initially pleaded “not true” to all allegations. At a subsequent hearing, appellant entered a plea of “true” to several of the allegations. As a result of his plea of true, the trial court assessed punishment of confinement in the Texas Department of Criminal Justice-State Jail Division for a period of two years. We affirm.

          Appellant’s attorney has filed an Anders brief and a motion to withdraw. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 498 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Id. at 744-45. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court’s judgment. Additionally, counsel has certified that he has provided appellant a copy of the Anders brief and motion to withdraw and appropriately advised appellant of his right to file a pro se response in this matter. Stafford v. State, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a pro se response. Appellant has not filed a response.

          By his Anders brief, counsel raises grounds that could possibly support an appeal, but concludes the appeal is frivolous. We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no such arguable grounds and agree with counsel that the appeal is frivolous.

 

          Accordingly, counsel’s motion to withdraw is hereby granted and the trial court’s judgment is affirmed.

 

                                                                           Mackey K. Hancock

                                                                                      Justice

Do not publish.

ne">Gevinson v. Manhattan Construction Co. of Okla., 449 S.W.2d 458, 467 (Tex. 1969)). One factor that the trier of fact can consider in assessing the credibility of the evidence is whether the opposite party had the means and opportunity of disproving the testimony, if it were not true, and failed to do so. Id. However, even if the evidence is not readily controvertible, an issue relating to the credibility of the witness is presented. Id. (citing James T. Taylor and Son, Inc. v. Arlington Indep. Sch. Dist., 160 Tex. 617, 335 S.W.2d 371, 376 (1960)). Thus, because the issue turns on the determination of the credibility of Shurbet, we must conclude that the trial court's finding of the amounts owed by Barth for tuition and fees, extracurricular activities, and medical expenses is supported by both legally and factually sufficient evidence.

However, Barth also contends that the evidence was not legally or factually sufficient to establish Shurbet's entitlement to receive this award. As to the tuition and fees, Barth contends that the modification order requires him to pay half of the Trinity Christian Schools's tuition and fees directly to the school and not to Shurbet. In the absence of evidence that A.C.B. did not attend Trinity Christian Schools during the period from August 1999 through August 2001 or that Shurbet did not pay the full amount of the tuition and fees charged by the school, we conclude that it would be reasonable for the fact finder to infer that Shurbet paid for the entire tuition and fees assessed during the applicable period and that she was entitled to reimbursement for these payments that were ordered to be paid by Barth. Likewise, because there was no evidence that A.C.B. did not participate in extracurricular activities or that Shurbet did not pay the full amount of any fees charged for these services, we conclude that it would be reasonable for the fact finder to infer that Shurbet paid the expenses associated with these activities and is entitled to reimbursement for half of the expense. As to the medical expenses, the modification order provides that "the party who paid for a health care expense on behalf of the child shall submit to the other party any and all forms, receipts, bills, and statements reflecting the uninsured portion of the medical or health care expenses the paying party incurs on behalf of the child within ten days after he or she receives them." Shurbet testified that she did provide one April 4, 2000 bill within the 10 day window required by the order, but she also testified that there were "several" bills that were not presented within the 10 day deadline. Barth testified that one problem that he had with making the payments under the modification order was that Shurbet stopped taking A.C.B. to the psychologist, as was ordered. He testified that he believed that A.C.B. stopped going to the psychologist in May of 2000, although he received a bill for a session in July 2000. As a result, we believe that it is reasonable to infer that Barth received copies of each monthly psychologist bill through July of 2000. Even if Shurbet failed to provide copies of medical bills within the 10 day deadline established by the modification order, each parent is obligated to support his or her child during the child's minority and is liable to any other person, including the other parent, who provides necessities for that child. See Creavin v. Moloney, 773 S.W.2d 698, 702-03 (Tex.App.-Corpus Christi 1989, writ denied). Thus, based on an itemization of each of A.C.B.'s psychologist sessions found in Shurbet's Motion for Contempt and Barth's acknowledgment that he had received bills for these sessions until July of 2000, we conclude that the evidence was both legally and factually sufficient to support an award of $522.50 for unreimbursed medical expenses. However, because there is no evidence to support the remaining $353.91 in medical expenses, we conclude that the evidence is legally insufficient to support the award of this amount of medical expenses and will reverse this portion of the trial court's judgment.

We sustain that portion of Barth's third issue that challenges the legal sufficiency of the evidence to support the award of $353.91 of the $876.41 the trial court awarded for unreimbursed medical expenses and, in all other respects, overrule Barth's first three issues.

Offset of $239.25

By his fourth issue, Barth contends that the trial court erred in failing to offset a portion of a doctor's bill that Shurbet acknowledged owing. As both Shurbet's Motion for Contempt and her testimony acknowledged this debt and, thus, it was not pled to be part of Barth's child support arrearage, we will sustain Barth's issue and will render judgment allowing a $239.25 offset on Barth's child support arrearage. ⁽⁶⁾

Interest on Child Support Arrearage

By his fifth issue, Barth contends that the trial court abused its discretion in granting prejudgment interest on the awards for tuition and fees, extracurricular activities, and medical expenses. ⁽⁷⁾ Because no payment date was specified in the modification order for tuition and fees and extracurricular activities, Barth contends that interest could not begin to accrue on these obligations until the trial court rendered judgment confirming these arrearages. As for the unpaid medical expenses, Barth contends that the payment date provided in the modification order was dependant upon proof of when the bills were sent to Barth. As such, Barth contends that interest could not begin to accrue on these amounts until the trial court entered its Reformed Judgment on August 1, 2008. Shurbet responds by arguing that the delinquency of the tuition and fees, extracurricular activities, and medical expenses was established as a matter of law by the December 19, 2001 hearing.

While a trial court's decision to grant or deny the relief requested in a motion for enforcement is reviewed for an abuse of discretion, Beck, 154 S.W.3d at 901, the trial court's discretion is very limited in calculating child support arrearages. See Attorney Gen. v. Stevens, 84 S.W.3d 720, 723 (Tex.App.-Houston [1^st Dist.] 2002, no pet.). In a proceeding to confirm child support arrearages, the trial court's child support calculations must be based on the payment evidence presented and not on the trial court's assessment of what is fair or reasonable. See In re M.C.R., 55 S.W.3d 104, 108-09 (Tex.App.-San Antonio 2001, no pet.). Likewise, the trial court has no discretion to modify, forgive, or make equitable adjustments in awarding interest on child support arrearages. See id.

The Family Code provides that, if a motion for enforcement of child support requests a money judgment for arrearages, the court "shall confirm the amount of arrearages and render one cumulative money judgment" that includes interest on the arrearages. Tex. Fam. Code Ann. § 157.263(a), (b)(3) (Vernon 2008). Awarding interest on child support arrearages is mandatory and the trial court has no discretion to not award the full amount of interest due. In re M.C.R., 55 S.W.3d at 108-09. Determining the date and the amount of the unpaid obligation is, therefore, necessary to calculate both the arrearage and the interest.

Thus, because the modification order did not state a due date for the tuition and fees or for the extracurricular activities, interest did not begin to accrue on these obligations until the date that the trial court signed the reformed judgment, August 1, 2008. See Tex. Fam. Code Ann. § 157.266 (Vernon 2008); Tex. R. Civ. P. 329b(h). Therefore, we conclude that the trial court abused its discretion in awarding prejudgment interest for the unpaid tuition and fees and extracurricular activities.

As for the unpaid $522.50 for unreimbursed medical expenses, Barth acknowledged his receipt of bills relating to these expenses by, at least, the December 19, 2001 hearing. Thus, in regard to this portion of Shurbet's claim for unreimbursed medical expenses, they became delinquent and subject to the accrual of interest no later than 30 days after the December 19, 2001 hearing at which Barth acknowledged receipt of the bills relating to the psychologist sessions. However, there is evidence in the record that would suggest that Barth may have received the psychologist's bills at an earlier date. As such, we conclude that the trial court erred in accruing interest on this $522.50 portion of the medical expenses from the date of the December 19, 2001 hearing. Even if we conclude that the trial court impliedly found that Barth received notice of these expenses at the December 19, 2001 hearing, under the modification order, interest on this arrearage would not begin to accrue until 30 days after the hearing. Because the date of Barth's receipt of these bills is a fact question, we will remand to the trial court to determine when Barth received these bills, when interest began to accrue, and to properly calculate the interest for this portion of the medical expenses. As for the remaining portion of the unreimbursed medical expenses claimed by Shurbet, Barth does not acknowledge receipt of these bills nor does the record include sufficient evidence of these bills. ⁽⁸⁾

Thus, we conclude that the trial court abused its discretion in assessing prejudgment interest on the arrearages for unpaid tuition and fees and extracurricular activities. As we have previously reversed the trial court's finding of a $353.91 portion of unreimbursed medical expenses, the trial court abused its discretion in assessing interest on this arrearage. We reverse the trial court's assessment of prejudgment interest on the remaining $522.50 of the unreimbursed medical expenses and remand to the trial court to determine the date upon which interest began to accrue under the modification order.

Variance Between Findings of Fact and Conclusions of Law

and the Cumulative Judgment Award Finally, Barth contends that the trial court's cumulative award was in error because it varied from the trial court's findings of fact and conclusions of law. Due to our resolution of Barth's first five issues and our rendition of the amount of arrearages owed, we need not address the trial court's cumulative judgment award.

Conclusion

For the foregoing reasons, we reverse the trial court's assessment of interest on the $5,466.84 arrearage for unpaid tuition and fees and the $1,287.57 arrearage for unpaid extracurricular activities and render judgment that those arrearages are not entitled to the assessment of prejudgment interest. We reverse the trial court's determination of medical expense arrearage totaling $876.41, render judgment that the medical expense arrearage is $522.50, and remand to the trial court for a determination of the date upon which interest began to accrue on this arrearage and the calculation of the applicable prejudgment interest. Additionally, we render judgment that Barth is entitled to an offset of $239.25 against his arrearages. In all other respects, we affirm the judgment of the trial court.

Mackey K. Hancock

Justice

1. Under the Rule 11 agreement, Barth was to pay $300 per month directly to Shurbet, beginning on September 1, 1999. In her testimony, Shurbet acknowledged that Barth had paid $2,700 toward this monthly obligation as of the date of the hearing.

2. This amount reflects the total of child support obligations under the modification order without accounting for any offsets of monies paid by Barth or owed by Shurbet to Barth.

3. It would appear that Shurbet's math is incorrect. $14,830.82 minus $2,700 minus $2,500 minus $239.25 results in a total of $9,391.57.

4. Shurbet's Motion for Contempt included a request for enforcement.

5. While Shurbet's testimony appears to state a total amount for the tuition and fees, Barth testified that the total amount, from August 1999 through February 2000 was $3,450. Thus, the tuition and fees, based on Barth's testimony, runs just under $500 per month. Further, Barth testified that the tuition alone was $415 per month. Based on this evidence, it is reasonable to infer that the $5,466.84 reflects half of the tuition and fees incurred by A.C.B. over the two year period addressed by Shurbet's testimony.

6. Because the evidence does not establish whether this doctor's bill was incurred for the treatment of A.C.B. or arose at a time when the modification order was in force, the evidence is insufficient to support prejudgment interest.

7. Barth does not contest the accrual of interest on unpaid monthly child support obligations by this appeal.

8. The only medical expenses specifically addressed at the hearing were those arising from A.C.B.'s psychologist counseling. Further, while it is clear from the record that Shurbet had copies of some of these bills at the hearing, these copies were not offered into evidence and, therefore, are not before this Court for review.