in Re Andrea Gayle Smith ( 2004 )

IN re Andrea Gayle Smith

  IN THE

TENTH COURT OF APPEALS

No. 10-03-390-CV

IN RE ANDREA GAYLE SMITH

Original Proceeding

MEMORANDUM OPINION

      This case concerns a petition for writ of injunction. Andrea Gayle Smith petitions this Court to issue a writ staying the trial court’s order modifying custody of Smith’s children and staying enforcement of the order. We will dismiss the petition.

      When Andrea and Scott Smith were divorced in 2002, the trial court appointed them joint managing conservators of their two children, A.C.S. and G.E.S., and ordered that Andrea have the right to establish the primary residence of the children “without restriction.” See Tex. Fam. Code Ann. § 153.134(b) (Vernon Supp. 2004). Thereafter, Andrea moved out of state with the children. Scott filed a petition to modify the parent-child relationship. In August, 2003, the trial court orally rendered judgment limiting the geographic area within which Andrea could establish the children’s primary residence to certain counties in Texas, to take effect on December 1, 2003. When Andrea filed her petition on December 4, the trial court had not signed an order. On December 5, the court signed an order that limits Andrea’s right to establish the children’s primary residence to an area comprising forty-eight designated Texas counties, to take effect December 15. The order also provides that if Andrea does not do so, Scott will have the right to establish the children’s primary residence. On December 5, Andrea gave notice of appeal of the order. We have docketed that appeal, styled In the Interest of A.C.S. and G.E.S., as cause number 10-03-392-CV.  

      The courts of appeals have limited injunctive powers. “Each court of appeals . . . may issue . . . all . . . writs necessary to enforce the jurisdiction of the court.” Tex. Gov’t Code Ann. §  22.221(a) (Vernon Supp. 2004). A court of appeals “has no original jurisdiction to grant writs of injunction, except to protect its jurisdiction over the subject matter of a pending appeal, or to prevent an unlawful interference with the enforcement of its judgments and decrees.” Ott v. Bell, 606 S.W.2d 955, 957 (Tex. Civ. App.—Waco 1980, no writ). Unlike in the trial court, where a temporary injunction will lie to preserve the status quo pending trial, see Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993), injunction will not lie in the courts of appeals merely to preserve the status quo pending appeal, EMW Mfg. Co. v. Lemons, 724 S.W.2d 425, 426 (Tex. App.—Fort Worth 1987, orig. proceeding). Nor will injunction lie merely “to protect a party from damage pending appeal.” Gibson v. Waco Indep. Sch. Dist., 971 S.W.2d 199, 204 (Tex. App.—Waco 1998) (quoting Parsons v. Galveston County Employees Credit Union, 576 S.W.2d 99, 99 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ)), Gibson vacated on other grounds, 22 S.W.3d 849 (Tex. 2000).

      We lack jurisdiction to issue the writ. Andrea argues that an injunction would best preserve the status quo pending appeal and would prevent hardship to her. Neither argument brings her petition within our writ jurisdiction. Andrea relies on authority that holds that the courts of appeals’ writ jurisdiction to protect their jurisdiction over the subject matter of a pending appeal includes the prevention of the appeal’s becoming moot. See Pendleton Green Assocs. v. Anchor Sav. Bank, 520 S.W.2d 579, 582 (Tex. Civ. App.—Corpus Christi 1975, no writ). “[A] case becomes moot when a court’s actions cannot affect the rights of the parties.” Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d 544, 545 (Tex. 2003). Here, the enforcement of the trial court’s order does not deprive us of the power to affect the rights of Andrea and Scott. Even if Andrea loses and Scott gains the exclusive right to establish the primary residence of the children, we will have the power to reverse the trial court’s order in Andrea’s pending appeal. Accordingly, the petition is dismissed.

      In connection with her petition, Andrea also filed a Motion for Emergency Stay. See Tex. R. App. P. 52.10(a). On December 10, 2003, we handed down an Order that stayed “all further proceedings in the trial court, subject to further order of this court.” On December 24, 2003, we handed down an Amended Order for Temporary Relief, in which we limited the stay to that part of the trial court’s order restricting Andrea’s right to establish the primary residence of the children, and otherwise permitted the court to enforce its order. A court of appeals may grant temporary relief only pending the court’s action on a petition in an extraordinary proceeding. Id. Since we dismiss the petition, we now lift those stays.  

                                                                   TOM GRAY                                                                                                             Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

(Justice Vance not participating)

Petition dismissed

Opinion delivered and filed February 11, 2004

[CVOT]

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Close' ); document.write( '' ); } Instead, Ellis relies upon the last sentence of Rule 902(10)(a): "Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule 21a, Texas Rules of Civil Procedure, fourteen days prior to commencement of trial in said cause." (Emphasis added). Such a provision does not require notice to be given pursuant to Rule 21a, but merely provides a definite means of satisfying the "prompt notice" requirement. Because Ellis only objected that the requirements of Rule 21a had not been satisfied, and the record does not reflect that the State failed to give prompt notice in some other manner, we overrule point of error one.

      In point two Ellis contends that the court erred in overruling his motion for mistrial when he discovered that one of the jurors failed to disclose during voir dire that he knew a key prosecution witness and her family. When a juror withholds material information in the voir dire process, the parties are denied the opportunity to exercise their challenges, thus hindering their selection of an impartial and disinterested jury. When a partial, biased, or prejudiced juror is selected without fault or lack of diligence on the part of defense counsel, who has acted in good faith upon the answers given to him on voir dire examination, unaware that they are inaccurate, good ground exists for a new trial. In this case, however, no information was withheld by the juror. During the State's voir dire examination, the prosecutor asked the venire if anybody knew Wanda Richards. No one responded to the prosecutor's question. Defense counsel followed-up only by asking an individual veniremember whether he knew Wanda Richards. Neither attorney identified the witness as Wanda Fowler, her maiden name, or as Wanda Donoho, her name by a previous marriage.

      After the jury was sworn and the indictment read, but before opening statements, defense counsel examined the juror as follows:

Q. You did not advise the lawyers that you knew a Wanda Richards because you didn't realize until this morning that her name wasn't Richard any more—or it wasn't—you didn't recognize her under the name of Richards.

A. Right.

Q. Because the way you knew her was when her name was Fowler. Her married name was Fowler?

A.No. She was Fowler before she married. Then she married my cousin and it made her Donoho. And that's if [sic] only two names I have ever know her by.

Q. All right. And how much contact have you had with Wanda Fowler Donoho Richards since?

A. In the—since—in the last—I was a pallbearer at her dad's funeral, I don't know, about 15 years ago, and just see her at a gas station or something like that maybe twice.

. . . .

Q. I asked you if it would have any effect on your sitting as a juror in this case, and your answer was "no"?

A. I don't believe it would. I don't know anything about the trial. I don't know—I don't know why it would. If they get up there and tell what they are supposed to do.

      Defense counsel then objected that the juror was disqualified and requested a mistrial because the juror failed to reveal his familiarity with the witness. In denying Ellis' motion for mistrial, the court noted on the record that the witness was not in the courtroom during the voir dire examination. The trial court is the trier of fact at the hearing on a motion for mistrial and the court's findings will not be disturbed absent an abuse of discretion. Because the record does not reflect that the juror withheld any information when the prosecutor asked whether anyone knew Wanda Richards, and because the defense attorney did not diligently pursue his concern that members of the venire might know a State's witness by a different name, we overrule point of error two.

      In point three Ellis contends that the court erred in overruling his objection to the State's cross-examination during the punishment phase of the trial regarding his two prior convictions for unlawfully carrying a weapon. Furthermore, Ellis contends that the court erred in denying his motion for mistrial following the prosecutor's improper closing argument during the punishment phase. At the outset we observe that the point is multifarious. Such a multifarious point fails to properly preserve any error. Nevertheless, we will address the points because they direct this court to the complaints raised.

      Ellis took the stand during the punishment phase of the trial for the sole purpose of testifying that he had never been convicted of a felony in this state or any other state or under the laws of the United States. The prosecutor then pursued the following inquiry on cross-examination:

Q. Mr. Ellis, you've been convicted of unlawfully carrying a weapon, in 1976; haven't you?

[Defense Counsel]: Judge, we're going—excuse me. We're going to object to that. That is not a proper question. That is an offense that is not admissible in this cause. And he knows that.

(An on-the-record bench conference was had as follow:)

[Prosecutor]: Is it a final conviction?

[Defense Counsel]: No; it's a misdemeanor.

[Prosecutor]: It's my opinion that the—

(Both attorneys were whispering simultaneously and the reporter is unable to make a clear record at this point.)

[Prosecutor]: It's probative.

THE COURT: I overrule the objection.

(Upon completion of the bench conference, the following occurred:)

Q. You were convicted of unlawfully carrying a weapon in 1976; weren't you?

[Defense Counsel]: We would further object, that it is not probative in nature and is more prejudicial than probative. (sic)

THE COURT: I overrule the objection.

A. Yes, sir.

Q. You were also convicted of unlawfully carrying a weapon, in 1980; were you not?

A. Yes, sir.

First, we note that any complaint regarding the 1980 conviction was waived because defense counsel failed to object to its admission. Furthermore, evidence of the prior convictions was admissible, not because it was proper impeachment under Rule 609 of the Rules of Criminal Evidence, but because it was evidence of the "prior criminal record of the defendant" as defined by article 37.07, section 3, of the Texas Code of Criminal Procedure. According to the Court of Criminal Appeals, a misdemeanor conviction is admissible during the punishment phase as "a final conviction in a court of record" under article 37.07, section 3. Therefore, the court properly overruled Ellis' objection to the admission of his prior convictions for unlawfully carrying a weapon.

      Ellis also complains of the following comments made by the prosecutor during his closing argument:

You have a situation that you've got a pattern. He started—started off carrying a weapon. He got convicted of it. He didn't learn his lesson. Four years later he got convicted of carrying a weapon, again. And why does someone carry an illegal weapon? Why is someone convicted of carrying a weapon? You don't get convicted if you're out bird hunting. You don't get convicted if you're going to target practice. Why does someone carry a weapon? They carry a weapon to kill people, folks.

[Defense Counsel]: That is not—that's not in the record, Your Honor. We're going to object to that. And that is a misstatement of the law.

(Emphasis added). The court sustained the objection and instructed the jury not to consider the argument for any purpose, but denied Ellis' motion for mistrial.

      Proper jury argument falls within one of the following categories: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. All other arguments are improper. Although the prosecutor was entitled to summarize the evidence and to make reasonable deductions from the evidence, including the evidence of Ellis' two prior convictions for unlawfully carrying a weapon, for a prosecutor to argue outside the record is improper. As a result, the trial court properly sustained Ellis' objection that the prosecutor's comment—"They carry a weapon to kill people, folks"—was outside the record.

      However, when the trial court instructs the jury to disregard the improper argument but denies the defendant's motion for mistrial, error results only when the argument is extreme, manifestly improper, injected new or harmful facts into the case, or violated a mandatory statutory provision and was thus so inflammatory that its prejudicial effect could not reasonably be removed from the minds of the jurors by the instruction given. The prosecutor did not repeat the improper argument, but, instead, directed the jury's attention back to the evidence concerning the prior convictions and made a proper plea for law enforcement. Based on our examination of all the jury arguments, we hold that the prejudicial effect of the improper argument was removed from the minds of the jurors by the court's instructions to disregard the prosecutor's comment, and thus, no error occurred in denying the motion for mistrial. We overrule point of error three.

      We affirm the judgment.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed October 6, 1993

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