Reginald S.Y. Lee v. the Frank J. Hersey Family Trust, Justin Hersey, Travis Hersey ( 2003 )

NO. 07-03-0339-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 4, 2003

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REGINALD S.Y. LEE, APPELLANT

V.

JUSTIN HERSEY, TRAVIS J. HERSEY AND CYNTHIA HERSEY, THE TRUSTEE OF THE FRANK J. HERSEY FAMILY TRUST, APPELLEES

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FROM THE COUNTY CIVIL COURT AT LAW NO. 1 OF MONTGOMERY COUNTY;

NO. 01-15925-P; HONORABLE DENNIS WATSON, JUDGE

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Before QUINN and REAVIS and CAMPBELL, JJ.

ORDER ON MOTION TO DISMISS

Pending before the court is a motion to dismiss this appeal, filed by appellees Cynthia Hersey, Trustee, Justin J. Hersey and Travis Hersey. Appellees' motion suggests the appeal has become moot. We disagree and will overrule the motion.

Appellant Reginald S. Y. Lee appeals a Post-Judgment Turnover Order Pertaining Only to the Judgment Debtor/Defendant, Reginald S. Y. Lee, signed by the trial court on June 17, 2003. The order recites that it is entered in aid of satisfaction of a Final Judgment Non Obstante Veredicto entered against appellant, and directs appellant to turn over to the Montgomery County Sheriff a list of items that includes checks, statements, deposit slips and all documents pertaining to several bank accounts; documents pertaining to investments held by appellant and his wife; titles and deeds to real estate; and titles to automobiles, boats and vehicles. The order further requires appellant to produce an accounting of his assets, and compels appellant's production of documents pursuant to post-judgment discovery.

By their motion to dismiss, appellees advise us that appellant has responded to the turnover order by producing a large number of documents. They assert that appellant claims to have turned over all documents responsive to the turnover order. Thus, appellees suggest, there is nothing left to appeal. Appellant opposes the motion to dismiss, arguing that appellees have not acknowledged his full compliance with the turnover order. Appellant has provided us with an uncertified copy of a document filed with the trial court and signed by appellees' counsel on the same day as the motion to dismiss the appeal, in which appellees inform the trial court that appellant has not produced all the documents ordered in the turnover order.

Appellees cite us to no authority in their motion to dismiss. Rule 42.3 of the Rules of Appellate Procedure permits us to dismiss a civil appeal "involuntarily," that is, for reasons other than the appellant's request or the parties' agreement, if jurisdiction is wanting. Tex.R.App.Proc. 42.3(b). As we construe the motion, appellees are attempting to apply the rule that when a judgment debtor voluntarily satisfies a judgment rendered against him, the cause becomes moot and its appeal must be dismissed. See, e.g., Highland Church of Christ v. Powell, 640 S.W.2d 235 (Tex. 1982). The rule is held not to apply when controversies remain. We find that to be the case here. Although appellees represent that the turnover order required only the production of documents, that limitation is not apparent from the language of the order. Too, from the statements made in the motion to dismiss, appellant's response and appellees' reply to the response, it is far from clear that appellant has voluntarily satisfied even the terms of the order that clearly require only the production of documents.

Mootness deprives a court of subject-matter jurisdiction. See, State Bar of Texas v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). Based on the information provided us, we cannot conclude that appellant's production of documents has rendered the controversy moot to the degree that we have lost jurisdiction of the appeal. Appellees' motion to dismiss the appeal is overruled.

Per Curiam

171. A review of the record includes a determination as to whether the jury could have been confused by the jury instructions. Sanchez v. State, 209 S.W.3d 117, 125 (Tex.Crim.App. 2006).

          In every felony case, the judge shall deliver to the jury a written charge distinctly setting forth the law applicable to the case. Tex. Code Crim. Proc. art. 36.14 (Vernon 2007). The jury charge must contain an accurate statement of the law and must set out all the essential elements of the offense. Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App. 1995). In some cases, the charge itself will demonstrate egregious error. Hutch v. State, 922 S.W.2d at 171. The omission of an implied culpable mental state alone is sufficient to establish egregious harm if it allows the jury to return a verdict of guilty without finding every element of the offense beyond a reasonable doubt. Sanchez v. State, 182 S.W.3d 34, 62 (Tex.App.–Dallas 2005), aff’d, 209 S.W.3d 117 (Tex.Crim.App. 2006).

          While there are cases which might appear to hold that the omission of a culpable mental state can be non-egregious, those cases are distinguishable from this case. In Lane v. State, 957 S.W.2d 584, 587 (Tex.App.–Dallas 1997, pet. ref’d), the court of appeals determined that a charge which omitted a culpable mental state in the application paragraph of the charge did not cause egregious harm where the abstract instructions portion of the charge did define the requisite mental state. In Barrera v. State, 10 S.W.3d 743, 745-46 (Tex.App.–Corpus Christi 2000, no pet.), the trial court included an abstract instruction on the law of self-defense, but did not apply the law of self-defense to the facts and did not instruct the jury that they must acquit appellant if they had a reasonable doubt on the issue of self-defense. Finding that the jury was not “misinformed or uninformed on the law of self-defense,” the appellate court concluded that the trial court’s error, in relation to the charge as a whole, did not cause egregious harm to appellant. Id. at 746. In each of these cases, the jury was given a correct statement of the applicable law. In the case at issue, neither the abstract portion nor the application paragraph of the charge informed the jury as to all of the essential elements of the offense. As stated in Justice Campbell’s opinion, the mere fact that an analytical construct of the charge of the court “placed before the jury the requirement that the State prove appellant had an awareness of the ammonia” is no substitute for a charge distinctly setting forth the law applicable to the case and then requiring that the State prove every element of the offense beyond a reasonable doubt.

          Furthermore, in considering whether Appellant suffered egregious harm in this case, the reviewing court must determine whether the jury could have been confused by the charge. In that analysis, I cannot ignore the significance of the fact that this is a criminal case involving elemental presumptions. Where, under the auspices and authority of the court, a jury has been given a “presumption of intent to manufacture a controlled substance” and a “presumption of anhydrous ammonia,” it does not take a leap of intellectual honesty to believe that a jury might have considered the gravamen of the offense to have been the intent to manufacture, which was potentially established by the presumption itself, as opposed to the act of possession of anhydrous ammonia. This potential confusion heightens the importance of a correct jury charge. The omission of an essential element of an offense affects “the very basis of the case” by allowing a defendant to be convicted on proof of less than all of the elements of the offense. To do so surely deprives the accused of a fair and impartial trial. Therefore, I conclude that the error was egregious. Accordingly, I would reverse and remand.

                                                                           Patrick A. Pirtle

                                                                                 Justice

Publish.