Harold Payne Burgess v. Sherwood Bell ( 1993 )

Burgess v. Bell

IN THE

TENTH COURT OF APPEALS

No. 10-92-196-CV

     HAROLD PAYNE BURGESS, ET AL.,

                                                                                              Appellants

     v.

     SHERWOOD BELL,

                                                                                              Appellee

From the County Court

McLennan County, Texas

Trial Court # 910525 PR1

O P I N I O N

      Harold Burgess and Fannie Mae Williams are appealing a judgment in favor of Sherwood Bell in a determination-of-heirship suit. First, they contend that the evidence was insufficient to support the court's finding that Sherwood was the biological son of John Burgess, the decedent. Second, they argue that Sherwood's cause of action is barred by the statute of limitations. We affirm.

      John Burgess died on August 18, 1991. Harold Burgess, John's brother, filed an application for appointment as administrator of John's estate on August 20. Sherwood Bell, claiming to be John's biological child, contested Harold's application and filed an application for letters of independent administration. On October 17, Sherwood was granted letters of administration in the estate of John Burgess.

      On December 4, Harold filed an application for determination of heirship, asking that he and his sister, Fannie Mae, be determined to be John's the only heirs. Sherwood filed an application requesting that the court find that he is John's biological child. On March 12, 1992, a judgment was signed declaring Sherwood the biological child of John Burgess with the right of inheritance as his sole heir.

      Harold and Fannie Mae contend in their first point that the evidence is insufficient to support the court's ruling that Sherwood Bell is the biological child of the deceased. Section 42(b)(1) of the Probate Code provides:

A person claiming to be a biological child of the decedent, who is not otherwise presumed to be a child of the decedent, may petition the probate court for a determination of right of inheritance. If the court finds by clear and convincing evidence that the purported father was the biological father of the child, the child is treated as any other child of the kindred, both descendants, ascendants, and collaterals in all degrees, and they may inherit from him and his issue.

Tex. Prob. Code Ann. § 42(b)(1) (Vernon Supp. 1993). Thus, upon a showing by clear and convincing evidence that a person is the biological offspring of the father, that person is entitled to inherit through his or her paternal kindred, both ascendants and descendants. Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988).

      Clear and convincing evidence is "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." In Interest of G.M., 596 S.W.2d 846, 847 (Tex. 1980). This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable-doubt standard of criminal proceedings. Id. "While the proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed." Doria v. Texas Dept. of Human Resources, 747 S.W.2d 953, 955 (Tex. App.—Corpus Christi 1988, no writ).

      The fact-finder must decide what evidence is clear and convincing in each case. Garza v. Maverick Market, Inc., 768 S.W.2d 273, 276 (Tex. 1989). The following evidence has been helpful to the fact finder in determining paternity:

• Blood tests.

• Evidence of physical resemblance of the child and the alleged father, either by photographs of the child and father, or by the offer of the child itself.

• Prior statements by the alleged father that he was the father of the child, or other admissions by him bearing on his relationship to the child.

• Evidence of periods of conception and gestation.

Id. Other courts have found this evidence to be helpful:

• The mother and alleged father lived together temporarily.

      • The alleged father never denied the child was his.

      • The alleged father periodically supported the child with money and necessities.

McNary v. Khan, 792 S.W.2d 126, 127 (Tex. App.—Dallas 1990, no writ).

      Here, nine witnesses testified that John had admitted that Sherwood was his son. Additionally, a picture of John and Sherwood was introduced into evidence to show a resemblance. Also, John's family members testified that they had accepted Sherwood into their family. Furthermore, testimony also showed that John had provided financial support to Sherwood. From this evidence a reasonable-fact finder could find that Sherwood was the biological son of John by clear and convincing evidence. See Garza, 768 S.W.2d at 276. We overrule point one.

      In their second point Harold and Fannie Mae argue that Sherwood's cause of action is barred by the statute of limitations. Sherwood timely filed his contest under section 10 of the Probate Code. See Tex. Prob. Code Ann § 10 (Vernon 1980). Section 42(b) gave him the right to contest. See id. Application of the statute of limitations, as the appellants suggest, would violate Sherwood's equal-protection rights. See Dickson v. Simpson, 807 S.W.2d 726, 727 (Tex. 1991). We overrule point two and affirm the judgment.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 3, 1993

Do not publish

utweighed by contrary evidence as to be clearly wrong and unjust, we will reverse the judgment and remand the cause for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

      Around 1:00 or 1:30 p.m., delivery-truck drivers Daniel Phillips and Joseph Bailey arrived at a convenience store to deliver beer. (Phillips testified 1:30, and Bailey testified 1:00.) Within ten minutes Bailey noticed a black male outside the store who was wearing a tan sports coat with no shirt, dark pants, and a plastic cap on his head with a baseball cap over it. Bailey later described the man as weighing about 110 pounds. At one point the man appeared to be using the area behind the store as a restroom. Then the man apparently pretended to use the outside telephone, because Bailey observed him holding the receiver but not talking. Bailey observed the man up close a total of fifteen to twenty seconds as Bailey went in and out of the store with beer. About 1:50 p.m., Pamela Jones, a patient of Mental Health and Mental Retardation (“MHMR”) who worked at the store, arrived for her shift and also saw the black male. He was standing at the telephone, and he waved at her. She had seen him in the store twice before. She said she stopped and stared at him because he was wearing a sports coat on a hot day, and had on a plastic cap with a baseball cap over it. Once Phillips was alone in the parking lot, the black male, whom Phillips had not previously noticed, approached Phillips from behind and robbed him at gunpoint, taking twenty-seven hundred and fifty dollars. Phillips saw the man for three seconds, part of which was spent looking at the gun. He accurately described the man’s clothing, and said the man weighed about 160 pounds.

      The robber left the scene on foot. While he was leaving, customer Bryan Bibles pulled up in his vehicle. Bibles was an Army veteran who worked out of the Veterans Hospital as a National Service Officer for disabled veterans. Bibles testified he saw a man running away from the store. The man was wearing a scraggly brown coat, and had on a knit cap over an Afro hair style. Bibles testified he recognized the man to be someone he knew as “Nate” with whom he went to high school. He did not know the man’s last name, although “Nate” was later identified to him as Nathaniel Lewis. Bibles had given Lewis a ride a month and a half earlier and dropped him off where he believed Lewis lived, a few streets from the convenience store where the robbery occurred. Bibles testified he told police he saw “Nate” running from the store. He also told police of another store where Lewis often hung out. Bibles would see Lewis there, and Lewis would ask for money to buy beer. By coincidence, Bibles also knew Ward with whom he also went to high school, but whom he had seen only two or three times in the last several years. When Bibles read in the paper Ward had been arrested, he called police to inform them they had the wrong man. Bibles testified at trial that Ward was not the man he saw at the scene of the robbery.

      When Officer Torres arrived at the scene, he somehow came up with Ward’s name as the robber. Torres testified Bibles told him Bibles saw Ward running from the scene. Bibles testified he told Torres he saw “Nate” running from the scene, meaning Nathaniel Lewis.

      Officer January put together a photographic lineup with Ward’s picture, and after Bibles’s call, he put together a second lineup by simply substituting Lewis’s picture for Ward’s. January showed the lineup with Ward’s picture to Phillips, Bailey, and Jones, who selected Ward. He testified he later showed the lineup with Lewis’s picture to only Phillips and Jones who did not select anyone. However, Bailey testified that January showed him and Phillips two separate lineups at the same time, four days after the robbery. January contradicted Bailey’s testimony, claiming that there was an eleven-day interval between showings. Jones testified she was awakened by January four days after the robbery. She said: He “showed me some pictures. . . . He said do I see the person, and I say, yes, sir. And I pointed. And he showed me some other different kind of pictures, different, row after row. He asked me do I see him, and I say yes, sir. Can you point him out. I say yes, sir. I say yes, sir. Can you sign and date it. I say yes, sir. And I went back to sleep.”

      These three witnesses also identified Ward at trial. Phillips and Bailey emphasized a small mark on Ward’s left temple. Both omitted this detail from their written statements to police. In their interviews with police, they sometimes described the mark as a scar and sometimes as a mole. Jones, who got the best and longest look at the robber, never mentioned the mark.

                                  Four of Ward’s co-workers testified at trial that he was at work on the day of the robbery. None of them were friends or relatives of his. Ed Degrate, the supervisor, sponsored Ward’s time card which was admitted into evidence to show Ward worked from 6:51 a.m. to 3:16 p.m., and took lunch from 12:04 p.m. to 12:96 p.m. Degrate said the parking lot where Ward parked was two or three hundred yards from the building. He also said workers who tried to sneak out during the work day often got caught. Gussie Miles saw Ward finishing his lunch in the break room around 1:00 p.m. They had a brief conversation about a revival going on at her church, and Ward said he wanted to attend. Lisa Childers performed a quality check of materials at Ward’s work station about 1:30 and Ward was there. She wrote the time down on a record sheet. Dwayne Norvell, who had to be subpoenaed by the defense because he did not want to get involved, was a machine repairman at Ward’s workplace. He testified that between 1:00 and 2:45 he repaired the machine next to the one Ward operated everyday, and that Ward assisted him during the entire time by periodically sending items down a conveyor belt between the machines; the items were wrapped by the machine Norvell was working on. He and Ward were ten to fifteen feet apart. Finally, there was testimony that it would take at least five minutes for a person at Ward’s workplace to drive to the convenience store.

      The jury found Ward guilty. At punishment the jury learned that Ward, in his late thirties, had been married for ten years and had three children — one in elementary school, a second about to graduate high school, and a third about to begin college. His wife was a case worker with MHMR and also attended college. Ward was convicted in 1986 on felony charges of cocaine and marijuana possession, for which he served concurrent two-year sentences. Since his release he had been employed full-time, sometimes working two jobs. When arrested for this robbery, he was in possession of a small amount of marijuana. The jury assessed punishment at forty-five years in prison.

STANDARD OF REVIEW

      The standard of review for a factual sufficiency claim, which is derived from Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), is set forth in Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). The reviewing court “asks whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof” “to the extent that the [finding of guilt] is clearly wrong and manifestly unjust.” Id. at 11. The court does not view the evidence through the prism of “in the light most favorable to the prosecution.” Johnson, 23 S.W.3d at 7 (quoting Clewis, 922 S.W.2d at 129). “The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact.” Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court “does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . . “ Johnson, 23 S.W.3d at 7 (quoting William Powers and Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 Tex. L. Rev. 515, 519 (1991)). “In conducting its factual sufficiency review, an appellate court reviews the fact finder’s weighing of the evidence and is authorized to disagree with the fact finder’s determination.” Johnson, 23 S.W.3d at 7 (quoting Clewis, 922 S.W.2d at 133).

      A review of a claim of factual insufficiency of the evidence requires an understanding of the applicable burden of proof at trial. The Supreme Court considered “proof beyond a reasonable doubt” in In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). The Court for the first time held explicitly that the Fourteenth Amendment Due Process Clause of the United States Constitution “protects the accused [in a criminal case] against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Id., 397 U.S. at 364, 90 S. Ct. at 1073. The Court described proof beyond a reasonable doubt as “a prime instrument for reducing the risk of convictions resting on factual error.” Id., 397 U.S. at 363, 90 S. Ct. at 1072. “A person accused of a crime . . . would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.” Id., 397 U.S. at 363, 90 S. Ct. at 1072 (quoting In the Matter of Samuel W. v. Family Court, 24 N.Y.2d 196, 205, 299 N.Y.S. 414, 422, 247 N.E.2d 253, 259 (1969)). In the more general context of protecting the interests of society, the Court said: “It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.” In re Winship, 397 U.S. at 364, 90 S. Ct. at 1073.

      In conducting our review, we acknowledge the general rule that typically the credibility of the witnesses, the weight to be given their testimony, and the resolution of conflicts in their testimony are questions left to the discretion of the jury. Johnson, 23 S.W.3d at 7; Tex. Code Crim. Proc. Ann. arts. 36.13, 38.04 (Vernon 1981 and 1979). The rule makes sense in many instances, because we cannot evaluate certain matters from a cold record, e.g., a witness’s demeanor or voice inflection, and because our role in a non-de novo review is not simply to substitute our opinion for the jury’s as though we were the trial jury. However, we are not barred from considering these issues. See Johnson, 23 S.W.3d at 8. If we were, our right and obligation as the constitutional guardian against convictions based on factually insufficient evidence would be nullified. When there is a basis in the record from which we can fairly evaluate credibility and the weight of evidence, and resolve conflicts in testimony, that evaluation is within our purview. “Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it. Where such factors are present, the court of appeals may well find clear error even in a finding purportedly based on a credibility determination.” Whitsey v. State, 796 S.W.2d 707, 722 (Tex. Crim. App. 1989) (on rehearing) (quoting Anderson v. Bessemer City, 470 U.S. 564, 575-76, 105 S. Ct. 1504, 1512, 84 L. Ed. 2d 518 (1985)).

APPLICATION

      The issue is identity. The State’s case relies entirely on three eyewitnesses who identified Ward from a photographic lineup as the robber, and who also identified Ward at trial. However, our obligation is to consider in a neutral light all the evidence both for and against the conviction. If the evidence that tends to disprove guilt overwhelms the evidence that tends to prove guilt, then the conviction is clearly wrong and unjust and must be set aside.

      In conducting our review, we are cognizant of our duty to “detail the evidence relative to the issue in consideration and clearly state why the jury’s finding is factually insufficient,” and to “state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.” Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 135).

      From the testimony and documentary evidence at trial, the following facts are not reasonably in dispute:•Between approximately 1:30 p.m. and 2:00 p.m. Phillips and Bailey were delivering beer to the convenience store. (Bailey moves the time back thirty minutes, testifying they arrived about 1:00 p.m., and that he first saw the robber about 1:10.)

      •    Jones arrived about 1:50 p.m., and within a few minutes the robbery occurred. Only Phillips was in the parking lot and experienced the robbery.

      •    The robber was a black male wearing a tan sports jacket, no shirt, and a plastic cap with a baseball cap over it. He was loitering in the parking lot, appeared to use the area in back of the store as a restroom, pretended to talk on the telephone, and waved at Jones who recognized him as a previous customer.

      •    After the robbery, the robber ran away. No car was seen. Bibles arrived and saw the robber running away. He identified the man as Nate Lewis whom he knew. Bibles also knew Ward.

      •    Ward’s machine-stamped time card showed he worked the day of the robbery from 6:51 a.m. to 3:16 p.m., and took lunch from 12:04 p.m. to 12:96 p.m.

      •    Ward was seen by two co-workers, one about 1:00 p.m. and the other about 1:30 p.m.

      •    The machine next to Ward’s happened to break down that day, and co-worker Norvell worked on it from about 1:00 p.m. to about 2:45 p.m. He had to have Ward’s assistance periodically during this time.

      •    It was possible to leave the workplace without permission, but workers doing this often got caught.

      •    It was about a five-minute drive from Ward’s workplace to the convenience store, which does not include the walking time needed to cover the two to three hundred yards from the building to the parking lot.      

      Based on these facts and the eyewitness identification of Ward, the State’s theory of the case was this: Ward clocked in from lunch about 1:00 p.m., visited with co-worker Miles about church, and went to his work station where he made contact with co-worker Childers about 1:30 p.m. The machine next to his unexpectedly broke down, and co-worker Norvell was repairing it. Ward took a chance on getting caught and left the work place without permission. He walked two to three hundred yards to his car, took off his shirt, put on a sports jacket and a plastic shower cap with a baseball cap over it, retrieved his gun, and drove to the convenience store. He left his car somewhere away from the store and walked. He arrived at the store about 1:45 p.m. Then he loitered in the parking lot, went behind the store for a restroom break, and pretended to use the telephone while he “cased” Phillips and Bailey — whom he found fortuitously in the parking lot — for a robbery. He also waved at Jones as she arrived for work. About 1:55 p.m., when Phillips was alone, Ward robbed him and then ran back to his car. Ward took off the clothes he had donned just for the robbery, put his shirt back on, and drove back to work. He sneaked back to his work station, arriving about 2:10 p.m. Ward then proceeded to finish the remaining hour of his workday. The State discounts Norvell’s testimony as being false.

      The following evidence tends to disprove the State’s theory and therefore tends to disprove guilt:

      •    Phillips saw the robber a total of about three seconds under the stress of being robbed at gunpoint, and Bailey saw him a total of fifteen to twenty seconds.

      •    Jones was a MHMR patient on medication for chronic depression.

      •    Phillips and Bailey claimed the robber had a mark which at various times they described as either a scar or a mole. Jones, who had the best and longest look, never mentioned any mark, scar, or mole.

      •    Bibles was the only one of the four eyewitnesses who knew Ward, and he stated the robber, whom he also knew, was not Ward, but “Nate” Lewis. He disputed telling Officer Torres he saw Ward. Investigating officers never attempted to interview Lewis.

      •    Although denied by Officer January, Bailey testified that January simultaneously showed him and Phillips two six-person photographic lineups. In addition, Jones testified she was shown other pictures before she was shown the lineup with Ward’s picture.

      •    Three co-workers established Ward’s presence at work that afternoon, one twenty minutes before the robbery. A fourth, Norvell, placed Ward at work during the exact time of the robbery. Norvell had to be subpoenaed to trial because he did not want to get involved. There was no evidence that any of Ward’s four co-workers were personal friends of Ward, or had any other motive to lie.

      •    Ward’s machine-stamped time card placed him at work during the exact time of the robbery.

      •    Police interviewed eleven co-workers at Ward’s workplace who were not able to establish an alibi. However, no one noticed Ward being away from his work station at any time.

      •    The robber waved at Jones as though he knew her. It seems unlikely Ward would go to the store to commit a robbery, and before doing so deliberately call attention to himself by waving at someone there; however, someone loitering who made a last-minute decision to commit a robbery might.

      •    There was no physical evidence linking Ward to the robbery.

      •    There was no evidence of motive, and Ward was gainfully employed.

      In reviewing the evidence, we ask whether the proof contrary to guilt greatly outweighs the proof of guilt to the extent that the finding of guilt is clearly wrong and manifestly unjust. Johnson, 23S.W.3d at 11. We find that the probability the events occurred as the State alleges is very low. For one, the time line necessary for Ward to have committed the robbery requires almost split-second timing. Furthermore, a number of events do not make sense, such as why Ward would wave at Jones, and why he would take off his shirt. Also, two of the State’s three eyewitnesses observed the robber for only a brief period of time, and the third was under medication for a mental condition. There also was discrepant testimony from these witnesses about a mark on the robber’s face. In addition, the photographic lineup procedures used by the police are suspect. Finally, the State put on no physical evidence linking Ward to the crime, and asserted no motive why a hard-working family man would commit the crime.

      At the same time, the sizeable evidence contrary to guilt cannot be resolved. The State never effectively challenged Ward’s alibi defense, which consisted not only of three witnesses who placed him at work at the time of the robbery, but also of documentary evidence, his machine-stamped time card, which also placed him at work during the robbery, and on which were stamped times which corresponded to the times given by co-workers about when they spoke to Ward at work. This evidence cannot simply be ignored. In addition, there was a plausible alternate suspect, Lewis, whom the police never interviewed, even though an eyewitness specifically identified him as the robber.

      Reminded that the jury must have had no reasonable doubt, we find that the evidence taken as a whole is factually insufficient, and the verdict is contrary to the law and the evidence. On this evidence Ward’s conviction is clearly wrong and manifestly unjust. Therefore, Ward should have a new trial. Tex. R. App. P. 21.3(h) (“The defendant must be granted a new trial . . . when the verdict is contrary to the law and the evidence.”); Tibbs v. Florida, 457 U.S. 31, 32, 102 S. Ct. 2211, 2213, 72 L. Ed. 2d 652 (1982); Clewis, 922 S.W.2d at 133-34.

CONCLUSION

      Finding the evidence factually insufficient to support the verdict, we reverse the judgment and remand the cause for a new trial.

                                                                   BILL VANCE

                                                                   Justice

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

      (Justice Gray Dissenting)

Reversed and remanded

Opinion delivered and filed May 23, 2001

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