Ledarryl Andre Murph v. State ( 2007 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-06-00162-CR ______________________________



LEDARRYL ANDRE MURPH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 124th Judicial District Court Gregg County, Texas Trial Court No. 34,227-B

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

   Ledarryl Andre Murph was convicted by a jury of robbery and was sentenced to seventy-five years' imprisonment. On appeal, he contends that the conviction should be reversed because the court erred in denying his motion for an instructed verdict and that the punishment should be reversed because he did not receive a requested continuance.

A point of error complaining about a trial court's failure to grant a motion for directed or instructed verdict is a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993). In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

Robbery exists when a person commits theft, and in the course of so doing, "intentionally, knowingly, or recklessly causes bodily injury to another; or intentionally or knowingly threatens or places another in fear of imminent bodily injury or death." Tex. Penal Code Ann. § 29.02(a), (b) (Vernon 2003). Murph contends there is no evidence that he had the necessary criminal intent to commit the crime.

The evidence shows that Murph smashed a window on a truck, stole a purse, and then attempted to escape in a van. A citizen, Rick Rumfield, caught Murph and took him back to the building, where Rumfield confronted him about the theft. Murph tried to escape from Rumfield, and in so doing, there is evidence that he struck and pushed Rumfield. Rumfield testified he was bleeding at the end of the scuffle.

"In the course of committing theft" is defined by the Texas Penal Code as conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the theft. Tex. Penal Code Ann. § 29.01(1) (Vernon 2003). There is proof of an injury to Rumfield during the course of Murph's attempt to escape after the theft. That is sufficient to show that the act occurred.

Mental states are almost always inferred from acts and words. The mental culpability of a defendant is of such a nature that it generally must be inferred from the circumstances in which a prohibited act or omission occurs. A mental state is concealed within the mind of an individual and can only be determined from his or her words, acts, and conduct. Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998).

Undoubtedly, Murph's intent was to escape. While attempting to execute his intention, he caused injury. The statute only requires that, while committing theft, the person intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 29.02(a)(1) (Vernon 2003). Rumfield testified Murph repeatedly attempted to get away from him and escape before the police could arrive; Rumfield was injured during one of those failed attempts. Under these facts and the statute, Murph's argument that his activities occurred after the theft was completed is unavailing.

The record contains evidence of actions that reflect the necessary mens rea. Thus, the trial court did not err by overruling the motion for an instructed verdict. The contention of error is overruled.

Murph also contends that the court erred in failing to grant a motion for continuance based on the notice given concerning the enhancement allegations. Murph argues that, because the State only gave him notice it intended to use out-of-state convictions as enhancement four days before jury selection, ⁽¹⁾ he did not have constitutionally adequate notice. He contends the State also declined to actually produce a copy of the paperwork from the State of Minnesota until the punishment phase of trial was actually beginning.

Murph correctly notes he was entitled to notice. ⁽²⁾ However, to preserve a claim that a motion for continuance was improperly denied, a written motion for continuance must be filed. Here, no written motion for continuance was ever presented to the trial court. Dewberry holds specifically that a motion for continuance must be made in writing, and must be sworn; otherwise, any complaint is forfeited. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999).

Although there was some discussion about the timeliness of the notice, and a statement by counsel that he would ask for ten days' notice for an enhancement paragraph, no ruling was made on the request. Further, Murph never presented the trial court with a written motion for continuance. In the absence of such written and sworn motion, no error is preserved. Id. Accordingly, the contention now raised on appeal was not adequately presented to the trial court for decision and has not been preserved for our review. See Tex. R. App. P. 33.1.

We affirm the judgment.

Jack Carter

Justice

Date Submitted: April 2, 2007

Date Decided: April 25, 2007

Do Not Publish

1. Murph argues that only one "working day" was available after the notice.

2. See Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997); Richardson v. State, 170 S.W.3d 855, 857 (Tex. App.--Texarkana 2005, pet. ref'd).

le="text-align: center">Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

            This appeal is taken from a judgment in favor of Ricky Allen Siglar, independent executor of the estate of Otha Siglar, deceased, in which he was awarded recovery of estate funds from the executor's sister, Cecillia Hailey, who claimed that their father, the testator, permitted her to transfer those funds before his guardianship and before his death. The executor initiated probate proceedings in the county court at law, but brought the action to recover estate funds in the district court. The sister now appeals the judgment, arguing that the district court did not have jurisdiction to act in the matter. We agree, vacate the district court's judgment, and dismiss the case.

I.         FACTUAL AND PROCEDURAL HISTORY

            In October 2002, Otha Siglar's daughter, Cecillia, transferred approximately $100,000.00 of her father's preguardianship and predeath assets from his account to hers. Cecillia maintains Mr. Siglar authorized the transfer. In November 2002, Mr. Siglar executed a general power of attorney appointing Cecillia as attorney-in-fact. After Mr. Siglar passed away, his son, Ricky, opened probate proceedings in August 2003 in County Court at Law No. 2 of Angelina County. Ricky was appointed independent executor in those proceedings.

            On December 2, 2003, Ricky filed a petition in the 217th Judicial District Court of Angelina County to recover the funds that were transferred from Otha's account to Cecillia's. Cecillia filed an answer, but did not appear at trial. The trial testimony consisted primarily of Ricky's deposition testimony regarding the events occurring in the final months of Mr. Siglar's life. On February 14, 2005, the district court signed a judgment in favor of Ricky, ordering that Cecillia pay $96,250.57 to the estate and $1,500.00 in attorney's fees. It is this judgment that is the subject of this appeal.

II.       DISCUSSION

A.        The Amount in Controversy Has No Bearing on the Jurisdiction of a County Court at Law Sitting in Probate

            We begin by addressing the position taken by Ricky in the trial court that the amount in controversy here vested jurisdiction in the district court. In response to the trial court's concern regarding its jurisdiction over this probate-related matter, Ricky's trial counsel explained his position:

THE COURT:Well, somebody explain how it got to district court.

. . . .

[Counsel for Ricky]:It's a $100,000 is how it got to you.

            Angelina County does not have a statutory probate court. Instead, it has two county courts at law, which are specifically given probate jurisdiction:

(a) In addition to the jurisdiction provided by Section 25.0003 and other law, a county court at law in Angelina County has:

(1) concurrent with the county court, the probate jurisdiction provided by general law for county courts; and

(2) concurrent jurisdiction with the district court in:

(A) civil cases in which the matter in controversy exceeds $500 but does not exceed $50,000, excluding interest; and

(B) family law cases and proceedings.

Tex. Gov't Code Ann. § 25.0052 (Vernon 2004). So, while it might appear that this case involving nearly $100,000.00 would fall outside the jurisdictional limits of the county court at law, we rely on clear authority from the Texas Supreme Court to conclude otherwise: The monetary limitations on a statutory county court's jurisdiction in civil cases do not limit its probate jurisdiction. See English v. Cobb, 593 S.W.2d 674, 675 (Tex. 1979). Therefore, the amount in controversy had no bearing on whether the district court had jurisdiction over this probate-related proceeding.

B.        The District Court Did Not Have Jurisdiction by Virtue of the Former Section 5(a) of the Texas Probate Code

            Having determined that the district court did not have jurisdiction as a simple result of the amount in controversy, we continue by discussing whether the district court otherwise had jurisdiction over this matter. To do so, we must first lay out the applicable jurisdiction provisions.

            1.         General Rule: Probate Jurisdiction Belongs to the County Courts

            The Texas Constitution provides that the district court shall have "exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body." Tex. Const. art. V, § 8. The Texas Probate Code specifically confers general probate jurisdiction on the constitutional county courts:

The county court shall have the general jurisdiction of a probate court. It shall probate wills, grant letters testamentary and of administration, settle accounts of personal representatives, and transact all business appertaining to estates subject to administration, including the settlement, partition, and distribution of such estates.

Tex. Prob. Code Ann. § 4 (Vernon 2003). The Texas Government Code extends probate jurisdiction to statutory county courts. Tex. Gov't Code Ann. § 25.0003(d) (Vernon Supp. 2005). Thus, a statutory county court has concurrent probate jurisdiction with the constitutional county court unless the county also has a statutory probate court. In the latter situation, only the statutory probate court exercises probate jurisdiction concurrent with the constitutional county court. See Tex. Gov't Code Ann. § 25.0003(e), (f) (Vernon Supp. 2005).

            Here, we know from our previous discussion that the County Court at Law No. 2 is vested with probate jurisdiction. See Tex. Gov't Code Ann. § 25.0052. There is no statutory probate court in Angelina County. With these two facts in mind, we look to the Texas Probate Code and note that Section 5(c) is applicable:

            In those counties in which there is no statutory probate court, but in which there is a county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions, and motions regarding probate and administrations shall be filed and heard in those courts and the constitutional county court, . . . unless otherwise provided by law. The judge of a county court may hear any of those matters regarding probate or administrations sitting for the judge of any other county court. In contested probate matters, the judge of the constitutional county court may on the judge's own motion, and shall on the motion of a party to the proceeding, transfer the proceeding to the county court at law or a statutory court exercising the jurisdiction of a probate court other than a statutory probate court. The court to which the proceeding is transferred may hear the proceeding as if originally filed in the court.

Tex. Prob. Code Ann. § 5(c) (Vernon 2003) (emphasis added). Thus, the County Court at Law No. 2 of Angelina County has original jurisdiction over the administration of Mr. Siglar's estate. Any court exercising original probate jurisdiction also has jurisdiction to hear matters incident to the estate. See Tex. Prob. Code Ann. § 5(e) (Act of May 1, 2001, 77th Leg., R.S., ch. 63, § 1, 2001 Tex. Gen. Laws 104, 105 (current version at Tex. Prob. Code Ann. § 5(f) (Vernon 2003)).

            The effect of all these provisions is that, ordinarily in Angelina County, the county court at law would have jurisdiction to hear matters "incident to an estate." With regard to proceedings in statutory county courts, matters "incident to an estate" are defined to include "all claims by or against an estate" and "all actions for trial of title to land and for the enforcement of liens thereon incident to an estate." Tex. Prob. Code Ann. § 5A(a) (Vernon Supp. 2005); Bailey v. Cherokee County Appraisal Dist., 862 S.W.2d 581, 585 (Tex. 1993). Therefore, the County Court at Law No. 2 had jurisdiction over Ricky's suit.

            The question here, however, is whether, under a now-repealed provision, the district court gained jurisdiction over this particular matter since it was brought by the independent executor of an estate even when the administration of that estate was pending in the county court at law.

            2.         Probate Jurisdiction of the District Court

            The Texas Probate Code applicable to these proceedings provides that "[t]he district court shall have original control and jurisdiction over executors and administrators under such regulations as may be prescribed by law." Tex. Prob. Code Ann. § 5(a) (Vernon 2003) (Act of May 1, 2001, 77th Leg., R.S., ch. 63, § 1, 2001 Tex. Gen. Laws 104, 104, repealed by Act of May 28, 2003, 78th Leg., R.S., ch. 1060, § 16, 2003 Tex. Gen. Laws 3052, 3057); Palmer v. Coble Wall Trust Co., 851 S.W.2d 178, 181 (Tex. 1992). The precise effect of this now-defunct provision is at the center of this appeal. We must determine the proper relationship between Section 5(a) and other Texas Probate Code provisions that grant jurisdiction to the county courts, the most relevant being Section 5(c).

            3.         Interpreting Section 5(a), Section 5(c), and Bailey

            Again, Section 5(a) provides that "the district court shall have original control and jurisdiction over executors and administrators . . . as may be prescribed by law." Tex. Prob. Code Ann. § 5(a) (repealed); Palmer, 851 S.W.2d at 181. And Section 5(c), in pertinent part, provides:

In those counties in which there is no statutory probate court, but in which there is a county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions, and motions regarding probate and administrations shall be filed and heard in those courts and the constitutional county court, unless otherwise provided by law.

Tex. Prob. Code Ann. § 5(c) (emphasis added).

            Assuming Section 5(a) vests the district court with jurisdiction over suits brought by a personal representative to recover estate property, Section 5(c) makes it clear Section 5(a) does not render exclusive the district court's jurisdiction over these matters. Sections 5(e) and 5A(a) clearly contemplate that a county court at law exercising probate jurisdiction is vested with jurisdiction over suits involving personal representatives since matters incident to an estate and claims by or against an estate are, generally, pursued or defended by estate representatives. Since any jurisdiction granted to the district court by Section 5(a) necessarily brings to issue jurisdiction of the county court at law exercising jurisdiction over the pending estate, we look to the relationship between Section 5(a) and other provisions of the Texas Probate Code, most notably Sections 5(c) and 5(e).

            The most relevant case on point is Bailey v. Cherokee County Appraisal District. In Bailey, probate proceedings were brought in the county court at law of Cherokee County. Bailey, 862 S.W.2d at 582. After the county court at law commenced its dependent administration, the taxing authorities brought suit in the district court. Id. at 583. The Baileys filed a plea in abatement and a motion to dismiss this suit for want of jurisdiction. Id. at 585. The district court entered its final judgment in favor of the taxing authorities and overruled the Baileys' motion to dismiss. Id. The Texas Supreme Court reversed the court of appeals' judgment and dismissed the taxing authorities' action. Id. at 586.

            The Texas Supreme Court expressly disagreed with the argument made here that Section 5(a) vested the district court with jurisdiction over the suit. Id. at 585. However, there is some disagreement on whether Bailey held that the county court at law in which the estate administration is pending gains exclusive jurisdiction or merely dominant jurisdiction. While this distinction was of little impact in Bailey, such a distinction bears significantly on this case since Cecillia never challenged the district court's jurisdiction.

            Bailey discusses the issue in terms of both exclusive jurisdiction and dominant jurisdiction:

[B]ecause the ongoing administration in the county court at law sitting in probate was the only probate proceeding pending, that court alone had jurisdiction over matters incident to the estate.

Furthermore, the court in which suit is first filed acquires dominant jurisdiction to the exclusion of coordinate courts. Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974). Because the administration was already pending in the county court when this suit was filed in the district court, the jurisdiction of the county court is dominant.

Id. at 585–86. Despite the use of the terms relating to dominant jurisdiction, we think the sounder reading of Bailey is one that concludes that, on these facts, the county court at law is vested with exclusive jurisdiction. Such a reading is consistent with the overall treatment of the issue in Bailey and its conclusion regarding when a court may hear matters incident to an estate: "A court empowered with probate jurisdiction may only exercise its probate jurisdiction over matters incident to an estate when a probate proceeding related to such matters is already pending in that court." Id. at 585.

            4.         Section 5(c) Confers Exclusive Jurisdiction over this Matter Since the Estate Administration Was Pending in the County Court at Law

            Most courts have applied Bailey in this way, concluding that the county court at law would have acquired jurisdiction, to the exclusion of district courts, over matters incident to an estate pending before the county court. See Bailey, 862 S.W.2d at 585–86; Miller v. Woods, 872 S.W.2d 343, 345 (Tex. App.—Beaumont 1994, orig. proceeding). For instance, the Dallas court read Bailey to stand for the proposition that the district court never acquired jurisdiction:

The state constitution authorizes the legislature to diminish or eliminate a district court's jurisdiction in "probate matters." See Tex. Const. art. V, § 8. Section 5(c) of the probate code, where applicable, divests the district courts of jurisdiction in all probate matters. Because this suit is one "appertaining to or incident to an estate," it is a "probate matter" within the meaning of article V, section 8 of the constitution and one "regarding probate or administration" under section 5(c) of the probate code. Accordingly, the district court properly recognized that it lacked jurisdiction to hear the case.

Howe State Bank v. Crookham, 873 S.W.2d 745, 748 (Tex. App.—Dallas 1994, no pet.) (footnotes omitted) (emphasis added).

            The Beaumont Court of Appeals, from which this case is transferred, also takes this position. In Miller, the judge of the county court at law transferred the case to the 253rd Judicial District Court. Miller, 872 S.W.2d at 344. The case proceeded to trial and ended with a judgment denying admission to probate. Id. No appeal followed, but Miller filed a petition to set aside the judgment for lack of jurisdiction, and the trial court denied that motion. Id.

            In holding that the district court lacked subject-matter jurisdiction, the Beaumont court read Bailey as providing for exclusive jurisdiction in the county court at law in which the administration of the estate was begun:

In counties where there are statutory county courts exercising probate jurisdiction, such courts share original jurisdiction over probate proceedings with the constitutional county court, to the exclusion of the district court.

See id. at 345. We agree with this application of Bailey and conclude that the County Court at Law No. 2 of Angelina County had exclusive jurisdiction of Ricky's suit against Cecillia and that the district court never acquired jurisdiction over the action.

            5.         Applying the Rules of Statutory Construction

            This result is consistent not only with Bailey, but also with rules of statutory construction.

            First, we reiterate that Section 4 of the Texas Probate Code specifically grants general probate jurisdiction to the constitutional county courts. The Texas Government Code extends that jurisdiction to the county courts at law. See Tex. Gov't Code Ann. § 25.0003(d); see also English, 593 S.W.2d at 676 (noting that the Legislature vested statutory county courts exercising original probate jurisdiction with the power to adjudicate the right to property incident to an estate, and this grant of jurisdiction empowered the statutory county courts to resolve disputes involving the nature and extent of third parties' rights in assets that are claimed to belong to an estate under administration). To hold that Section 5(a) granted the district court concurrent jurisdiction to hear any probate matter is inconsistent not only with Section 5(a)'s own internal limitation, but also with the entire jurisdictional rubric of the Texas Probate Code and the Legislature's obvious efforts to direct the large majority of probate-related matters to the county courts.

            Second, we evaluate Section 5(a) in light of the district court's jurisdiction to hear certain matters through transfer from the county court. Again, in counties where there is a statutory court exercising probate jurisdiction, most probate matters must be filed and heard in the statutory court or the constitutional county court, rather than the district court, "unless otherwise provided by the law." See Tex. Prob. Code Ann. § 5(c). The county judge may transfer contested probate matters to one of the statutory courts, but not to the district court. See Palmer, 851 S.W.2d at 181.

            From this, there appears to be a procedure in effect that reserves estate matters for the county courts or statutory probate courts. Since the statutory scheme disallows transfer of a contested portion of an estate matter to a district court in this setting, then it is inconsistent with those provisions if parties involved in a pending estate administration could use Section 5(a) to present in the district court the same matter that could not be transferred there.

            Finally, it is important to point out that Section 5(a) expressly limits the breadth of its own application, stating that it was subject to "such regulations as may be prescribed by law." After examining the above-referenced provisions, it is reasonable to conclude that Section 5(c) is quite simply one of the limitations with which Section 5(a) limits itself.

C.        What, Then, Is the Effect of Section 5(a)

            In construction of a statute, we are not to render a provision without effect. With that in mind, we point out that Section 5(c), which grants jurisdiction to the county courts over matters incident to the estate, applies in a specific setting. That is, Section 5(c) limits its application to counties in which there is no statutory probate court, but in which there is a county court at law with probate jurisdiction. This setting describes Angelina County.

            However, there are counties in which there are no county courts at law and no statutory probate courts. See Weldon v. Hill, 678 S.W.2d 268, 275 (Tex. App.—Fort Worth 1984, writ ref'd n.r.e.). It is reasonable to interpret Section 5(a) as a default provision. That is, Section 5(a) would apply when none of the other, more specific provisions apply. This application is also consistent with the rules of statutory construction that a specific provision governs when it seems to be in conflict with another, more general, provision. Under this construction, Section 5(a) was inapplicable to Ricky's suit since Angelina County had a county court at law vested with probate jurisdiction.

III.      PLEA FOR REFORM

            This case illustrates the need for uniform jurisdictional requirements for the various courts in the State of Texas. Only after an inordinate effort could a determination be made concerning the proper forum for filing a relatively simple lawsuit. Parties should be able to know where to file a lawsuit without resorting to a trial and a lengthy appellate court opinion. We suggest that the Legislature look seriously at the complicated and overlapping trial court jurisdictional requirements in this state and enact reforms to make jurisdictional requirements uniform and understandable.

IV.      CONCLUSION

            The 217th Judicial District Court never acquired subject-matter jurisdiction over this matter. Therefore, its judgment is void. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003); Shell Cortez Pipeline Co. v. Shores, 127 S.W.3d 286, 295 (Tex. App.—Fort Worth 2004, no pet.). We sustain Cecillia's first point of error, vacate the district court's void judgment, and dismiss Ricky's claims. See Tex. R. App. P. 43.2(e).

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          April 21, 2006

Date Decided:             May 17, 2006