Tracy Banks v. State ( 2002 )

  















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

______________________________ No. 06-00-00152-CR ______________________________



TRACY BANKS, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 99F442-202

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Justice Grant

O P I N I O N

Tracy Banks appeals from his conviction by a jury for the offense of felony driving while intoxicated. The jury assessed his punishment at ten years' imprisonment. Banks raises a single issue on appeal in which he complains that the evidence is insufficient to support the conviction.

Banks's brief does not specify whether he challenges the legal or factual sufficiency, or both. In the interest of justice, we will evaluate the evidence under both standards. King v. State, 961 S.W.2d 691, 693 (Tex. App.-Austin 1998, pet. ref'd); contra McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997) (refusing to consider either ground because of inspecific complaint in brief).

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560, 573 (1979). This calls on the court to view the relevant 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. Id., 443 U.S. at 319; Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

A factual sufficiency review dictates that the evidence be viewed in a neutral light, favoring neither party. Johnson, 23 S.W.3d at 7; see Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). In determining the factual sufficiency of the evidence to establish the elements of the offense, we view all the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7; Clewis, 922 S.W.2d at 129. In making this review, we examine the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

Employing appropriate deference to avoid substituting our judgment for that of the fact finder, we will set aside the verdict for factual insufficiency if the evidence was (1) so weak as to be clearly wrong and manifestly unjust, or (2) the adverse finding was against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 9.

The evidence brought out at trial shows that Banks was pulled over by police officers who observed Banks following other cars too closely and swerving from one lane into another. The arresting officer, Deputy Kelsey Coleman, testified that he smelled alcohol on Banks's breath, that Banks had difficulty maintaining his balance, and that Banks did not pass a horizontal nystagmus test. Deputy Michael Landers, who examined Banks in the intoxylizer room after his arrest, testified that Banks smelled of alcohol and had difficulty maintaining his balance. Landers also testified that he watched Banks weave down the hallway at the jail, almost hitting the wall. Both officers testified that Banks's eyes were extremely red, bloodshot, and glassy and that his speech was slow and very slurred. Both officers then concluded from their observations that Banks was intoxicated to the point that he did not have the normal use of his mental faculties.

Defense counsel elicited testimony that Banks has a slight lisp and that his speech is never particularly clear, suggesting that his slurred speech was not due to alcohol, but was simply his usual speech pattern. There was also evidence that Banks became very loud and aggressive when accused of a misdeed. There was no evidence, however, that cast doubt on or contradicted the officers' descriptions of Banks's physical condition and his apparent intoxication.

The evidence is both legally and factually sufficient to support the verdict, and the evidence to the contrary is not so compelling as to require a different result.

The judgment is affirmed.  

Ben Z. Grant

Justice

Date Submitted: January 3, 2002

Date Decided: January 25, 2002

Do Not Publish

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY, Appellant

V.

TERESA NICKERSON, Appellee

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On Appeal from the 62nd Judicial District Court

Lamar County, Texas

Trial Court No. 61552

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Ross

O P I N I O N

          State Farm Mutual Automobile Insurance Company appeals from a judgment in an underinsured motorist (UM) lawsuit. State Farm complains not about damages or liability, but originally complained only about the court's order directing the insurer to pay Nickerson's attorney's fees and to also pay prejudgment interest from the date of the filing of the underlying lawsuit. State Farm, based on the Texas Supreme Court's action denying petition in Menix v. Allstate Indem. Co., 83 S.W.3d 877 (Tex. App.—Eastland 2002, pets. denied [2 pets.]), has now withdrawn its issue on prejudgment interest. Thus, we now address only the question of whether attorney's fees are available in this type of action.

          Teresa Nickerson was in an automobile accident in 1992 that caused injuries to her back and neck. Both she and the other driver were insured by State Farm. Nickerson filed suit in 1994, and at some point before October 1996, she accepted the policy limits of $25,000.00 under the other driver's liability policy and $10,000.00 in personal injury protection (PIP) benefits for medical expenses under her own policy. She believed this was insufficient and then sued State Farm November 7, 1994, to recover under the uninsured motorist portion of her policy. Nickerson won a jury trial. The jury awarded her $225,000.00 in actual damages and $46,500.00 in attorney's fees. After verdict, but before the judgment was signed, State Farm tendered Nickerson a check for damages, less liability/PIP offsets of $35,000.00, excluding attorney's fees, and including postjudgment interest in the amount of $191,294.52.

          The trial court, in its final judgment, awarded actual damages, and prejudgment interest from the date suit was filed (November 7,1994) of $181,849.32, for a total of $371,849.32. Actual damages plus prejudgment interest, less offsets, exceeded the policy limits of $300,000.00. The court therefore awarded judgment for the UM policy limits. In addition, the court also ordered State Farm to pay Nickerson's attorney's fees and also any postjudgment interest at ten percent from the date of signing of the judgment.

          State Farm contends the trial court erred by rendering judgment for Nickerson for $46,500.00 in attorney's fees. Both parties treat the fees as being sought and awarded pursuant to Tex. Civ. Prac. & Rem. Code Ann. §§ 38.001, 38.002 (Vernon 1997). State Farm quite simply argues: there was no breach of contract, and when it was determined that we were liable, we paid. That position is based on language in Henson v. S. Farm Bureau Cas. Ins. Co., 17 S.W.3d 652, 654 (Tex. 2000), stating that neither filing a claim nor filing suit triggers an obligation to pay (the UM claim). Therefore, State Farm reasons that no amount owing could exist until a judicial determination of liability was made.

          We find that situation to be no different from any other contractual dispute in which liability is at issue. This Court held in Whitehead v. State Farm Mut. Auto. Ins. Co., 952 S.W.2d 79 (Tex. App.—Texarkana 1997), rev'd & rendered on other grounds, 988 S.W.2d 744 (Tex. 1999), that, in the context of a UM lawsuit, an award of attorney's fees to a plaintiff recovering on a valid claim founded on a written contract, preceded by proper presentment, is mandatory.

          In reaching that decision, we reasoned this was simply a claim on a contract, outside typical insurance liability contexts, and that, where a valid claim existed, and proper presentment was made, there was no reason to treat the claim any differently than any other contract claim. Therefore, we found attorney's fees were appropriate.

          We recognize that the Eastland Court of Appeals also discussed this issue in Menix, ultimately concluding that, because there was no amount due and owing until there was a judicial determination of liability and the amount of damages, and because the payment was timely made, Allstate did not owe attorney's fees under Section 38.001 because there was no "just amount owed" as required by Section 38.002 until the judicial determination was made of the damages and payment then was timely made to the insured. Menix, 83 S.W.3d at 885 (citing Sprague v. State Farm Mut. Auto. Ins. Co., 880 S.W.2d 415, 416–17 (Tex. App.—Houston [14th Dist.] 1993, writ denied); Sikes v. Zuloaga, 830 S.W.2d 752, 754 (Tex. App.—Austin 1992, no writ)).

          We find that argument unpersuasive. If Section 38.002(3) is so read, then attorney's fees cannot be recovered in any contractual dispute that results in litigation, provided the losing party promptly pays after the "just amount owed" is determined through that litigation. That is not the meaning of the term. The section states that, to recover attorney's fees, inter alia,

(3) payment for the just amount owed must not have been tendered before the expiration of the 30th day after the claim is presented.

Tex. Civ. Prac. & Rem. Code Ann. § 38.002(3). The phrase "claim is presented" is not equivalent to "judgment is rendered."

          The Eastland court's holding on this issue was in the alternative and made only after the court decided Menix was not entitled to attorney's fees because he had no affirmative pleading seeking attorney's fees. Menix, 83 S.W.3d at 882. Under those circumstances, we decline to regard the Texas Supreme Court's denial of petition in Menix as an indication we should depart from the position we took on this issue in Whitehead.

          Nickerson additionally argues that, because the "just amount owed" was not paid, but only the amount State Farm (incorrectly) believed was due under the judgment, then the payment has not been timely made and attorney's fees are recoverable. State Farm argued originally it had paid the correct amount and had paid within thirty days after the amount was found to be due. See Tex. Civ. Prac. & Rem. Code Ann. § 38.002(3). Therefore, State Farm argued, it had not breached the insurance contract in any respect, but has instead paid the "just amount owed" as required by the statute to avoid imposition of attorney's fees under that chapter.

          That scenario has changed somewhat, since State Farm has now acceded to the Texas Supreme Court's denial of petition in Menix, paid the remaining policy limits, and dropped its contention that the lesser amount was the true "just amount owed." Nevertheless, under our decision in Whitehead, that distinction is not relevant to our analysis. Even though State Farm eventually paid after a judicial determination, and even if that payment was timely, State Farm did not pay on the claim made on the contract, and Nickerson was required to enforce her right to payment through the courts. That, in a contract situation, is the context in which attorney's fees are properly recoverable.

          We overrule the point of error and affirm the judgment.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      February 19, 2004

Date Decided:         March 18, 2004