Henry Martin Rutledge v. Nancy Miller ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00018-CV

IN THE MATTER OF

THE MARRIAGE OF

Henry Martin Rutledge

AND

Nancy RUTLEDGE Miller

From the 43rd District Court

Parker County, Texas

Trial Court No. 45,350

concurring Opinion

          Please review Appellant’s issues.  As summarized by the majority, they are as follows:[1]

Rutledge presents three issues for review.  In his first issue, Rutledge argues the trial court erroneously granted summary judgment on limitations and waiver based on the August 30, 2004 hearing.  In his second issue, Rutledge argues the trial court erroneously granted summary judgment without a hearing on the Amended Motion.  Finally, Rutledge argues the trial court erroneously granted summary judgment against the great weight and preponderance of the evidence.

          Please take note of the basis upon which the majority is reversing the trial court.  As stated by the majority, they “find that Rutledge did not receive the proper notice and the trial court entered judgment in error.  We sustain Rutledge’s first issue.”  The majority does not address the remaining issues.

          Please note that Appellant’s complaint in the first issue about the judgment on limitations does not in any way raise or rely upon the issue of proper notice.  The majority has wholly failed to address the propriety of the trial court’s judgment on one of the grounds upon which it was expressly based – limitations.  Tex. R. App. P. 47.1.

Limitations Defense

          It is undisputed that Miller asserted the limitations defense in her Original Answer, First Amended Original Answer, and her Second Amended Original Answer, all of which were filed long before her Motion for Summary Judgment.  Likewise, it is undisputed that her Motion for Summary Judgment was based upon her limitations defense.  One thing that is a bit unusual about the trial court’s judgment in this case is that it specifically states the grounds upon which it is based.  One of the grounds specifically mentioned is limitations.  There is no complaint by Rutledge that he did not receive proper notice as to this ground.

          At the original hearing on the divorce, Rutledge appeared and testified there was no community property other than personalty.  The summary judgment evidence included the divorce decree reciting this as a finding of the trial court.  (“The Court finds that no community property other than personal effects has been accumulated by the parties.”)  The summary judgment evidence included the deed which was from Shane Rutledge (a son) to Nancy Rutledge (now Miller) dated April 11, 1997.

          Rutledge now wants to attack the finding in the prior judgment and/or the deed.  Rutledge did not bring this suit until September 30, 2003, over six years after the deed and over five years after the Agreed Final Decree of Divorce was rendered on September 8, 1998.

          The majority errs in failing to review the propriety of the judgment on the basis of the affirmative defense of limitations.

          Nevertheless, the majority stumbles upon the proper judgment.  Clendenin v. Krock, 527 S.W.2d 471 (Tex. Civ. App.—San Antonio 1975, no writ); Thompson v. Thompson, 500 S.W.2d 203 (Tex. Civ. App.—Dallas 1973, no writ); Harkness v. McQueen, 207 S.W.2d 676 (Tex. Civ. App.—Galveston 1947, no writ).  See Tex. Fam. Code Ann. § 9.201 et seq. (Vernon 1998).

          I concur only in the judgment.

                                                          TOM GRAY

                                                          Chief Justice

Concurring opinion delivered and filed February 1, 2006

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[1] The full text of Rutledge’s issues are:

The trial court erroneously granted summary judgment citing the affirmative defenses of limitations and waiver from the only hearing on the Motion on August 30, 2004.

The trial court erroneously granted summary judgment after an amendment to the first motion for summary judgment without a hearing on the amended motion.

The trial court erroneously granted summary judgment to the Appellee when the great weight and preponderance of the evidence opposed that finding.

W.2d 572, (Tex. Crim. App. 1989), cert. denied, 497 U.S. 1010 (1990).

      Complainant Nellie Sanchez testified that Appellant threw her to the ground, punched her in the face, and sexually assaulted her. Complainant identified Appellant in court as the man who beat and sexually assaulted her. This is sufficient to prove it was Appellant who committed the assault. Ford v. State, 509 S.W.2d 317, 318 (Tex. Crim. App. 1974). Moreover, Appellant was connected to the offense by the testimony of Officers Littlefield and Bratt that Appellant was found and arrested several yards from the scene with blood, dirt, and grass stains on his clothing.

      The trial court chose to accept the testimony of the complainant as true, resolving all conflicts in the evidence against appellant. Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Appellant was the person who committed the offense.

      Appellant's point one in the aggravated sexual assault case is overruled.

      Appellant's point of error one in the robbery case is: "The evidence is insufficient to establish the offense of robbery." Specifically, Appellant contends the evidence is insufficient to prove he was the alleged robber.

      The test for reviewing the sufficiency of the evidence is set out under our discussion of Appellant's point one in the aggravated sexual assault case, supra.

      Complainant David Powell identified Appellant in court as the man who broke into his apartment, came into his bedroom, fought, choked, stabbed, threatened, and stole from him. Additionally, Officer Wren conducted an out-of-court photo lineup from which complainant identified Appellant as the robber. Further, Appellant's fingerprints were found on the metal frame of the screen from the window of complainant's apartment and on a bottle of cologne in complainant's bedroom.

      The trial court, as the factfinder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. The court chose to accept the testimony of the complainant and the officer as true, thus resolving any conflict in the testimony against Appellant.

      Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Appellant was the person who committed the robbery.

      Appellant's point of error one in the robbery case is overruled.

      Appellant's point of error one in the burglary of a habitation case is: "The evidence is insufficient to establish the offense of burglary." Specifically, Appellant contends the evidence is insufficient to prove that he entered complainant's apartment with the specific intent to commit theft."

      We refer to our discussion of the test for reviewing a sufficiency of the evidence challenge, supra.

      Complainant Leonardo Gomez testified he left his apartment at 6:00 a.m. on September 26, 1994, to go to work. Complainant's neighbors, Sherman and Jenkins, testified that at 7:15 a.m. on the same day, they heard glass break in complainant's apartment, looked up, and saw Appellant lying on the sun deck of the apartment. Jenkins called to Appellant, asking him what he was doing there, and Appellant replied he was waiting for his uncle to come home. Jenkins testified he knew the statement was untrue and that he called 911. Sherman saw appellant climb around the ledge of the sun deck and window of complainant's apartment and later saw Appellant walk in and out of the door to the complainant's sun deck.

      Officers Curtis and Kidd responded to the burglary called in on 911. They went to the apartment and knocked on the door. Appellant answered the door wearing a towel wrapped around his waist. When the officers asked him what he was doing in the apartment, Appellant told them he had lived in the apartment with his uncle, but did not have a key so he had broken a window to get in. Complainant did not know Appellant; when contacted at work, complainant came home and found a broken window and found that his jambox had been moved over next to the broken window.

      A defendant's intent to commit theft, when entering a habitation, can be inferred from both his conduct and the surrounding circumstances. Ortega v. State, 626 S.W.2d 746, 749 (Tex. Crim. App. 1981).

      In this case, the trial judge, as the factfinder, chose to accept the testimony of the complainant, his neighbors, and the police officers as true, resolving all conflicts in testimony against Appellant. That decision may not be disturbed on appeal. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988).

      Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that Appellant intended to commit theft when he broke into complainant's apartment.

      Appellant's point of error one in the burglary case is overruled.

      Appellant's point of error two, in all three of his appeals, asserts: "The trial court erred by denying Appellant's motion for a continuance." Specifically, Appellant contends the trial court abused its discretion in denying his motion for continuance.

      On the first day of trial, Appellant testified that his aunt, Teresa Sandoval, and his brother could corroborate his testimony that he was out of town when the burglary and robbery took place. He knew his brother's address and phone number, and the phone number of his aunt. At the end of the first day of trial, the court authorized $500 for a private investigator to locate Appellant's aunt and brother. The next morning the investigator reported that he was unable to locate the aunt and brother. Following this testimony, the State presented evidence in the sexual assault case. At that time Appellant made an oral motion for a continuance "to see if we could find the defendant's aunt and brother and to do further scientific testing to determine whether the defendant would be a positive match for the rape kit." The motion was denied.

      Articles 23.03, 29.06 and 29.08, Texas Code of Criminal Procedure, require that a motion for continuance be in writing, sworn to, and if to locate a missing witness, give the residence of the witness and the diligence which has been used to procure his attendance.

      To preserve a review of the denial of a continuance, a defendant must execute a motion in compliance with the above requirements, which Appellant did not do. Montoya v. State, 810 S.W.2d 160, 176 (Tex. Crim. App. 1980), cert. denied, 502 U.S. 961.

      Further, to preserve error from the denial of a motion for continuance, based on absent evidence or witnesses, required the filing of a sworn motion for a new trial accompanied by affidavits or other evidence showing the materiality of the missing evidence or witness. Leach v. State, 548 S.W.2d 383, 384, 385 (Tex. Crim. App. 1977). Appellant executed no such motion.

      The determination to grant or deny a motion for continuance lies within the sound discretion of the trial court and may not be disturbed on appeal absent a showing of abuse of discretion. Taylor v. State, 612 S.W.2d 566, 570 (Tex. Crim. App. 1981).

      As stated, Appellant made only an oral unsworn motion for continuance and did not file a motion for a new trial. The trial court's denial of Appellant's motion was not an abuse of discretion.

      Appellant's point of error two is overruled in all three cases.

      The judgments, in all three cases, are affirmed.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed March 6, 1996

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