Robert A. Magoon v. Cheryl Savage ( 2002 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-01-331 CV ____________________

ROBERT A. MAGOON, Appellant

V.

CHERYL SAVAGE, JEFFREY POPE, BETH LORD, STEVEN PENRY, PATRICK JORDAN, TERRY LOTT, BRYAN ROBERTSON, CHAD MCGRAW, and TIMOTHY WEST, Appellees

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On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-155,928

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O P I N I O N  

This appeal arises from a suit filed by Robert A. Magoon, an inmate of the Texas Department of Criminal Justice, Institutional Division, against Cheryl Savage, Jeffrey Pope, Beth Lord, Steven Penry, Patrick Jordan, Terry Lott, Bryan Robertson, Chad McGraw, and Timothy West for alleged violation of his constitutional right to be free from cruel and unusual punishment. See U.S. Const. amend. VIII. The jury found Magoon's constitutional right had not been violated and that the use of force was objectively reasonable in light of the facts and circumstances confronting the defendants. In accordance with the jury's findings, the trial court entered a take-nothing judgment in favor of defendants and dismissed Magoon's cause with prejudice. Magoon appeals pro se raising eight issues.

Magoon first claims he was denied effective assistance of counsel. The Sixth Amendment right to effective assistance of counsel has not been extended to civil actions. See Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex. App.--Beaumont 1998, pet. denied). Magoon's first issue is overruled.

Issue two complains of statements made by defense counsel during closing argument. No objection was made to three of the complained-of remarks. Argument error must be preserved by proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979). Any error as to these remarks has therefore been waived. See Tex. R. App. P. 33.1(a).

Plaintiff's counsel objected to the fourth remark. Once error has been preserved, the complainant has the further burden to prove that the argument constituted reversibly harmful error. "[T]he complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence." See Reese, 584 S.W.2d at 840. Magoon's entire argument in support of this issue is "had these remarks not been made, the outcome would've been different." By failing to properly brief this issue, Magoon has waived this point on appeal. See Haas v. George, 71 S.W.3d 904, 914 (Tex. App.--Texarkana 2002, no pet.); and Keever v. Finlan, 988 S.W.2d 300, 314 (Tex. App.--Dallas 1999, pet. dism'd) (op. on reh'g). See also Tex. R. App. P. 38.1(h). Issue two is overruled.

In his third issue, Magoon contends the trial court erred in failing to admit a video-taped deposition into evidence. The record reflects no offer of proof concerning the excluded evidence was made. See Tex. R. Evid. 103. In the absence of such an offer, we have no basis for reviewing a complaint that a trial court erred in excluding evidence. See Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.--El Paso 2002, no pet.); and Fletcher v. Minnesota Min. and Mfg. Co., 57 S.W.3d 602, 606-07 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). Issue three is overruled.

Issue four argues the trial court abused its discretion in admitting evidence of his conviction. Evidence that the witness has been convicted of a felony or a crime of moral turpitude is admissible to attack the credibility of the witness. See Tex. R. Evid. 609 (a). Although it is not clear, the record indicates Magoon's conviction was for aggravated robbery, a felony, and no argument is made to the contrary. See Tex. Pen. Code Ann. § 29.03 (Vernon Supp. 2002). The record does not reflect, nor does Magoon contend, more than ten years had elapsed since the date of the conviction. See Tex. R. Evid. 609 (b). Accordingly, Magoon has not demonstrated the evidence was inadmissible. ⁽¹⁾ Issue four is overruled.

Issue five claims the trial court erred in failing "to alter or amend the jury verdict after trial in light of the fact of the evidence being most favorable to appellant." Issue six questions "whether or not the jury's verdict is supported by the facts and evidence submitted at trial." We construe these issues as challenges to the factual sufficiency of the evidence to support the jury's verdict. Having failed to raise factual sufficiency in a motion for new trial, Magoon did not preserve his complaints and they are waived. See Cecil v. Smith, 804 S.W.2d 509, 510-511 (Tex. 1991); and Hawthorne v. Guenther, 917 S.W.2d 924, 937 (Tex. App.--Beaumont 1996, writ denied). Issues five and six are overruled.

Issue seven claims the trial court erred in failing to admit five exhibits into evidence. The only references to the record demonstrates plaintiff's counsel attempted to enter into evidence one of the exhibits. We have no basis for reviewing Magoon's complaint the trial court erred in excluding the exhibit because no offer of proof was made concerning that exhibit. See Tex. R. Evid. 103. See also Perez, 74 S.W.3d at 66. No reference is made to the record where the other exhibits were offered for admission. We are not required to search the record without guidance to determine the validity of a claim of reversible error. See Casteel- Diebolt v. Diebolt, 912 S.W.2d 302, 305 (Tex. App.--Houston [14th Dist.] 1995, no writ). In order to present a complaint for appellate review, the record must show a request, objection, or motion was made and ruled upon by the trial court. See Tex. R. App. P. 33.1(a). Issue seven in overruled.

Magoon's final issue claims the trial court abused its discretion in granting a directed verdict "prematurely" in favor of Cheryl Savage. Magoon complains his counsel did not have the opportunity to call Savage to the stand before the directed verdict was granted in her favor. The record reflects defense counsel moved for the directed verdict, and it was granted, after plaintiff rested his case. Magoon's complaint is therefore without merit. Issue eight is overruled.

The judgment of the trial court is AFFIRMED.

PER CURIAM

Submitted on November 13, 2002

Opinion Delivered November 21, 2002

Do Not Publish

Before Walker, C.J., Burgess and Gaultney, JJ.

1.

No argument is made on appeal, nor was it made below, that the evidence was more prejudicial than probative.