in Re Fred Adkins ( 2015 )

NUMBER 13-15-00066-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE FRED ADKINS
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Longoria1
Relator, Fred Adkins, filed a petition for writ of mandamus in the above cause on
February 9, 2015, seeking to compel the trial court to withdraw its order granting a new
trial and enter judgment in Adkins’s favor.2 Adkins contends, in short, that the jury’s
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); TEX.
R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
2This original proceeding arises from trial court cause number P-34,953 filed in the County Court
at Law No. 3 of Hidalgo County, Texas. The respondent in this original proceeding is the Honorable John
A. Hutchison III, a statutory probate judge presiding by appointment.
verdict in his favor was supported by factually sufficient evidence, and the trial court
impermissibly substituted its judgment for that of the jury in granting a new trial. After
performing a merits-based review of the trial court’s order in accordance with In re Toyota
Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 755–59 (Tex. 2013) (orig. proceeding), we
deny the petition for writ of mandamus.
I. BACKGROUND
The underlying matter is a will contest regarding the issues of testamentary
capacity and undue influence. Everett Hank Tingle passed away at the age of eighty-
seven on February 5, 2012. His death certificate indicates he died as a result of
respiratory failure, sepsis, atrial fibrillation, and hypotension. His caregiver and former
son-in-law, Adkins, sought to probate a will executed by Tingle on March 20, 2006, which
essentially left Tingle’s property to Adkins. In contrast, Antonia Tingle, Tingle’s ex-wife
and Adkins’ former mother-in-law, sought to probate a will executed by Tingle on
December 13, 2010, leaving his property to her. Tingle, a frugal man, left a substantial
estate.
After a four-day jury trial, the jury rendered a verdict finding that: (1) Tingle did not
have testamentary capacity to sign the will dated December 13, 2010; (2) Tingle signed
the will dated December 13, 2010 as a result of undue influence; (3) Antonia did not
prosecute the proceeding to probate the December 13, 2010 will in good faith and with
just cause; and (4) Antonia incurred $65,000 for “necessary expenses and
disbursements,” including attorney’s fees, incurred in prosecuting the proceeding to
probate the will. On December 30, 2013, the trial court entered a final judgment in favor
of Adkins in accordance with the jury’s verdict denying Antonia’s application to probate
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the December 13, 2010 will, rendering judgment in favor of Adkins, and denying Antonia
any award for the expenses and attorney’s fees she incurred in attempting to probate the
2010 will.
On January 22, 2014, Antonia filed a motion for judgment notwithstanding the
verdict, or alternatively, motion for new trial. According to Antonia’s motion, the “jury
reached a decision based . . . more on its subjective view of justice, as opposed to the
underlying facts.” On February 20, 2014, Adkins filed a response to Antonia’s motion for
new trial. On February 25, 2014, the trial court held a non-evidentiary hearing on
Antonia’s motion and set the motion for submission on March 13, 2014. On March 13,
2014, the trial court granted Antonia’s motion for a new trial. The trial court’s order
granting Antonia’s motion for new trial provides as follows:
On March 13, 2014, the Court considered the Motion for a New Trial
filed by Antonia Tingle, the response thereto, and the evidence adduced at
the hearing,[3] and enters the following findings:
1. As to jury issue No. 1 regarding testamentary capacity, the
jury’s verdict is against the great weight and preponderance of the credible
evidence. The evidence from the witnesses showed overwhelmingly that
Everett Hank Tingle possessed testamentary capacity at the time of the
execution of the will dated December 13, 2010.
2. As to jury issue No. 2 regarding undue influence, the jury’s
verdict is against the great weight and preponderance of the credible
evidence. There was insufficient evidence to show that Everett Hank Tingle
signed the will dated December 13, 2010, as the result of undue influence.
The evidence only indicated mere speculation or a bare suspicion that
undue influence had been exercised.
3. As to jury issue No. 3, regarding good faith of proponent
Antonia Tingle, the jury’s verdict is against the great weight and
preponderance of the credible evidence. There was no evidence presented
to show that Antonia Tingle did not prosecute the probate of the will in good
faith.
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As previously noted, contrary to the recital in the order granting new trial, there was no evidence
adduced at the hearing on the motion for new trial.
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4. As to jury issue No. 4, if jury issue No.4 derives from Jury
Issue No.3, if jury issue No. 3 is against the great weight and preponderance
of evidence, then the answer to Jury Issue No. 4 is manifestly unjust.
IT IS ORDERED THAT Plaintiff’s Motion for a New Trial is
GRANTED based on the findings herein and in the interest of justice.
Adkins sought review of the order granting a new trial by petition for writ of
mandamus filed in this Court. See In re Adkins, No. 13-14-00484-CV, 2014 WL 5026051,
at **1–6 (Tex. App.—Corpus Christi Oct. 8, 2014, orig. proceeding) (mem. op.). We held
that, while the order granting the new trial was supported by legally appropriate reasons
and included some analysis regarding the sufficiency of the evidence, the order was
insufficiently specific to meet the rigorous and detailed standards articulated by the Texas
Supreme Court. See id. at *1 (citing In re United Scaffolding, Inc., 377 S.W.3d 685, 688–
89 (Tex. 2012) (orig. proceeding); In re Columbia Med. Ctr. of Las Colinas, Subsidiary,
L.P., 290 S.W.3d 204, 212 (Tex. 2009) (orig. proceeding)).
Subsequently, the trial court issued an amended order granting a new trial on
November 7, 2014. The amended order states in relevant part:
On March 27, 2012, Antonia Gutierrez Tingle (“Antonia”) filed her
application to probate the Last Will and Testament of her ex-husband,
Everett “Hank” Tingle, dated December 13, 2010. Fred Adkins (“Adkins”),
a former caregiver to Everett Tingle filed a competing application for the
probate of a copy of a previous will dated March 20, 2006, the original of
which was never produced. Adkins contended that Mr. Tingle did not
possess mental capacity to execute the 2010 will and/or that Mr. Tingle was
unduly influenced to make the 2010 will.
....
Pursuant to the Court of Appeals’ opinion, the Court hereby amends
its order granting a new trial to state that a new trial is ordered for the
following reasons:
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JURY ISSUE NO. 1: TESTAMENTARY CAPACITY.
In Issue Number 1, the jury was asked if Everett Tingle had
testamentary capacity when he signed the December 13, 2010, will, to
which the jury answered: ‘‘No.” As that will had not been admitted to
probate, and in accordance with Texas law, the burden of proof to obtain an
affirmative finding under Issue No. 1 was on the proponent of that will,
Antonia Gutierrez Tingle. When a party seeks a new trial by challenging
the factual sufficiency of the evidence regarding an adverse finding on an
issue on which he has the burden of proof, he/she must demonstrate that
the adverse finding is against the great weight and preponderance of the
evidence. The Court must consider and weigh all of the evidence and can
set aside a verdict only if the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. In
determining whether a finding is against the great weight and
preponderance of the evidence, the court must consider and weigh all of
the evidence, both the evidence that tends to prove the existence of a vital
fact as well as the evidence that tends to disprove its existence.
Applying the foregoing standard of review, this Court finds that the
jury’s negative answer to Issue No. 1, that is, the jury’s failure to find that
Everett Tingle had testamentary capacity when he signed the December
13, 2010, will was against the great weight and preponderance of the
evidence, and therefore must be set aside.
The evidence from the witnesses showed overwhelmingly that
Everett “Hank” Tingle possessed testamentary capacity at the time of the
execution of the will dated December 13, 2010. The testimony of witnesses
revealed that on December 13, 2010, Mr. Tingle drove himself to Falcon
National Bank located in McAllen, Texas, for the sole purpose of executing
a new will, and revoking all prior wills. Mr. Tingle, a customer of Falcon
National Bank since 2006, requested that Leticia Echazarreta, the Branch
President, prepare his new will. Mrs. Echazarreta had handled all of Mr.
Tingle’s financial affairs for the four years preceding the execution of his
2010 will. Mr. Tingle had previously telephoned Mrs. Echazarreta to
schedule an appointment for the preparation of his will. Mrs. Echazarreta
informed Mr. Tingle she could not prepare his will, but could notarize
whatever document he needed. Mr. Tingle then went to the bank requesting
to speak with Mrs. Echazarreta.
The two exchanged conversation, and Mr. Tingle ultimately
persuaded Mrs. Echazarreta to draft his will. Mrs. Echazarreta prepared
the will and requested Esmer Medina, her co-worker, to be present to
witness Mr. Tingle[‘s] signing of the will. During the course of the trial, the
Court heard from the two witnesses to the 2010 will. Both witnesses
testified that Mr. Tingle did not appear to be suffering from any mental
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impairment and that he understood that he was executing a new will. Both
Mrs. Echazarreta and Ms. Ester Medina recounted knowing a smart,
business savvy individual able to remember exactly how much money was
in his bank account at any given moment. During the course of the trial, this
Court ruled that February 3, 2010, was not relevant in determining Tingle’s
mental capacity as Dr. George had testified, because the relevant time to
determine testamentary capacity was the time of the execution of the will.
Adkins claimed that Mr. Tingle was incapacitated on February 3, 2010, yet
he regained his mental capacity on July 7, 2010, just in time to sign an
affidavit of non-prosecution relieving Relator of any criminal liabilities for the
theft of Mr. Tingle’s property.
This Court finds that the evidence from the witnesses showed
overwhelmingly that Everett “Hank” Tingle possessed testamentary
capacity at the time of the execution of the will dated December 13, 2010,
and, therefore, that the jury’s answer to Issue No. 1 was against the great
weight and preponderance of all the evidence.
JURY ISSUE NO. 2[:] “UNDUE INFLUENCE.
In Issue Number 2, the jury was asked if Everett Tingle signed the
December 13, 2010, will as a result of undue influence, to which the jury
answered “Yes.” As submitted, the burden of proof to obtain an affirmative
finding on that issue was on Adkins.
When a party seeks a new trial by challenging the factual sufficiency
of [an] adverse finding on an issue on which the opposing party had the
burden of proof, the court must review the factual sufficiency of the evidence
by weighing and considering the evidence both in support of, and contrary
to the challenged finding. The Court will set aside the finding only if the
evidence is so factually weak, or the verdict so contrary to the overwhelming
weight of the evidence as to make the judgment clearly wrong and
manifestly unjust.
Applying this standard of review, the court finds that the jury’s answer
to Issue No. 2, that is, that Everett Tingle signed the December 10, 2010
will as the result of undue influence, is not supported by factually sufficient
evidence and, therefore, must be set aside.
As Adkins had the burden of proving that Mr. Tingle was unduly
influenced at the time he executed the December 13, 2010, will, Adkins was
required to prove the existence and exertion of undue influence, which
effectively operated to subvert or overpower the mind of Tingle at time of
the execution of the will and that Tingle would not have executed the will
but for such influence. The establishment of circumstances that Antonia
had an opportunity to exert such influence merely because she cared for
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Mr. Tingle does not give rise to any inference that she did exert undue
influence. A finding of undue influence cannot be based solely on evidence,
direct or circumstantial, to show that influence merely was possible. There
must also be evidence that undue influence was in fact exerted with respect
to the making of the will.
Both Mrs. Echazarreta and Mrs. Esmer Medina, witnesses to Tingle’s
will, testified that Tingle drove himself to the bank on December 13, 2010.
Adkins claims a piece of paper held by Mr. Tingle on that day unduly
influenced him to make a will in favor of Antonia. That piece of paper was
never produced. Moreover, Adkins was asked what led him to believe that
Antonia had unduly influenced Tingle. He said, “I can’t think of anything
right now.”
In determining whether undue influence was a factor in the execution
of a will, an analysis into susceptibility of the testator’s mind is important.
The Court finds that neither the close proximity of Antonia’s apartment to
Mr. Tingle’s apartment nor the piece of paper held by Mr. Tingle while
dictating his will are sufficient evidence to prove Antonia[] unduly influenced
Mr. Tingle to prepare a will in her favor. Further, neither of these incidents
rises to the level of influence that courts have relied on to determine undue
influence. There was insufficient evidence to show that Everett Hank Tingle
signed the will dated December 13, 2010, as the result of undue influence.
The evidence only indicated mere speculation or a bare suspicion that
undue influence had been exercised. Therefore, the Court finds that the
jury’s answer to Issue No.2 is not supported by factually sufficient evidence.
JURY ISSUE NO. 3: GOOD FAITH.
In Issue No.3 the jury was asked if Antonia had exercised good faith
in the prosecution of the probate of her will, to which the jury answered ‘‘No.”
As explained above, the Court has found that the jury’s finding of lack of
testamentary capacity was against the great weight and preponderance of
the evidence and that the jury’s finding of undue influence was not
supported by factually sufficient evidence. The Court also notes that there
was no evidence presented to show that Antonia did not prosecute the
probate of the will in good faith. The Court finds that despite divorcing in
2002, Mr. Tingle and Antonia remained close friends until the date of his
death. The evidence adduced at trial revealed that on many occasion[s],
they would sit outside listening to music as the sun set on the horizon. In
2006, Mr. Tingle expressed his desire to include Mrs. Tingle and Fred
Adkins, as beneficiaries of his will. However, Mrs. Tingle declined to be
included in his will. The evidence showed when Tingle learned that Adkins
had stolen from him, he acted to create the December 3, 2010 will. There
is no evidence to show that Antonia Gutierrez Tingle did not prosecute the
probate of the will in good faith. Therefore, the Court finds that the jury’s
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answer to Issue Number 3 is against the great weight and preponderance
of the evidence or, alternatively, is not supported by factually sufficient
evidence.
JURY ISSUE NO. 4: ATTORNEYS FEES.
As the evidence of the reasonable amount of attorney’s fees will
change because of the time involved with the mandamus petition and retrial,
the jury’s findings under Issue Number 4 will be set aside and resubmitted
to the jury upon retrial.
IT THEREFORE ORDERED THAT Plaintiffs Motion for a New Trial
is GRANTED based on the findings herein.
(Internal citations omitted).
This original proceeding ensued. By three issues, Adkins contends that the trial
court abused its discretion by: (1) setting aside a jury verdict and ordering a new trial
because the jury’s findings were reasonable and supported by evidence at trial; (2)
rendering a new trial order which recites facts and testimony considered by the jury but
disregarded by the court as a basis for granting a new trial; and (3) substituting its
judgment for that of the jury when the new trial order omits evidence considered by the
jury which was reasonable and supported the jury’s verdict. The Court requested and
received a response to the petition for writ of mandamus from Antonia.
II. MANDAMUS
Mandamus is appropriate when the relator demonstrates that the trial court clearly
abused its discretion and the relator has no adequate remedy by appeal. In re Reece,
341 S.W.3d 360, 364 (Tex. 2011) (orig. proceeding); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). The relator has the burden of
establishing both prerequisites to mandamus relief, and this burden is a heavy one. In re
CSX Corp., 124 S.W.3d 149, 151 (Tex. 2003) (orig. proceeding).
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A trial court clearly abuses its discretion if it reaches a decision that is so arbitrary
and unreasonable that it amounts to a clear and prejudicial error of law or if it clearly fails
to analyze the law correctly or apply the law correctly to the facts. In re Cerberus Capital
Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam). The
adequacy of an appellate remedy must be determined by balancing the benefits of
mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262
(Tex. 2008) (orig. proceeding). Because this balance depends heavily on circumstances,
it must be guided by the analysis of principles rather than the application of simple rules
that treat cases as categories. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex.
2008) (orig. proceeding). We evaluate the benefits and detriments of mandamus review
and consider whether mandamus will preserve important substantive and procedural
rights from impairment or loss. In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.
III. NEW TRIAL ORDERS
“[T]he long-established precedents in this state demonstrate respect for jury
verdicts.” Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988); see In re E.I. du Pont de
Nemours & Co., No. 09-14-00465-CV, ___ S.W.3d ____, 2015 WL 1849708, at *2 (Tex.
App.—Beaumont Apr. 23, 2015, orig. proceeding). In a jury trial, the jury is the fact finder
and sole judge of the credibility of the witnesses and of the weight to be given to their
testimony and a reviewing court “must not merely substitute its judgment for that of the
jury.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Nevertheless, Rule 320 of the Texas Rules of Civil Procedure gives the trial court
broad discretion to grant a new trial “for good cause, on motion or on the court’s own
motion.” TEX. R. CIV. P. 320. The Texas Supreme Court has held that although trial courts
9
have significant discretion in granting new trials, “such discretion should not, and does
not, permit a trial judge to substitute his or her own views for that of the jury without a
valid basis.” In re Columbia Med. Ctr., 290 S.W.3d at 212. Accordingly, a trial court’s
order granting a motion for new trial must provide a reasonably specific explanation of the
court’s reasons for setting aside a jury verdict. Id. at 213; see, e.g., In re Hunter, 306
S.W.3d 422, 423 (Tex. App.—Dallas 2010, orig. proceeding); In re C.R.S., 310 S.W.3d
897, 898 (Tex. App.—San Antonio 2010, orig. proceeding); In re Carrizo Oil & Gas Co.,
292 S.W.3d 763, 764 (Tex. App.—Beaumont 2009, orig. proceeding); see also In re
Davis, No. 02-14-00131-CV, 2014 WL 2145433, at *1 (Tex. App.—Fort Worth May 20,
2014, orig. proceeding) (mem. op.); In re Whaley, No. 05-12-01518-CV, 2012 WL
5991789, at *1 (Tex. App.—Dallas Nov. 30, 2012, orig. proceeding) (mem. op.).
A trial court does not abuse its discretion so long as its stated reason for granting
a new trial is: (1) a reason for which a new trial is legally appropriate, such as a well-
defined legal standard or a defect that probably resulted in an improper verdict; and (2)
specific enough to indicate that the trial court did not simply parrot a pro forma template,
but rather derived the articulated reasons from the particular facts and circumstances of
the case at hand. See In re United Scaffolding, Inc., 377 S.W.3d at 688–89. A new trial
order may be an abuse of discretion if, for example, it is based on a reason that is not
legally valid, or “if the articulated reasons plainly state that the trial court merely
substituted its own judgment for the jury’s.” Id. at 689.
Further, an appellate court may conduct a merits-based mandamus review of a
trial court’s articulated reasons for granting a new trial. In re Toyota Motor Sales, U.S.A.,
Inc., 407 S.W.3d at 755–59; see In re Whataburger Rests. LP, 429 S.W.3d 597, 598 (Tex.
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2014) (orig. proceeding) (per curiam); In re Health Care Unlimited, Inc., 429 S.W.3d 600,
602 (Tex. 2014) (orig. proceeding) (per curiam). If the articulated reasons are not
supported by the law and the record, mandamus relief is appropriate. In re Toyota Motor
Sales, U.S.A., Inc., 407 S.W.3d at 761–62.
Our mandamus review must be mindful of the different roles of the jury, the trial
court, and the appellate court. See In re E.I. du Pont de Nemours & Co., 2015 WL
1849708, at *2. We may not substitute our judgment for that of the trial court, and the
trial court may not substitute its judgment for that of the jury in granting a new trial. See
id.; In re Wyatt Field Serv. Co., 454 S.W.3d 145, 152 (Tex. App.—Houston [14th Dist.]
2014, orig. proceeding [mand. filed]). We determine whether the trial court has abused
its discretion by substituting its judgment for that of the jury by confirming whether the
court’s reasons for granting a new trial are valid and correct, i.e., supported by the trial
record. In re Wyatt Field Serv. Co., 454 S.W.3d at 152.
IV. ANALYSIS
As stated previously, Adkins contends in three issues, which we address as one,
that the trial court abused its discretion by substituting “its own judgment for that of the
jury.” As a preliminary matter, we determine that the trial court’s amended order meets
the threshold requirements established by the Texas Supreme Court for orders granting
new trials. See In re United Scaffolding, Inc., 377 S.W.3d at 688–89. The trial court’s
order recites that the verdict was against the great weight and preponderance of the
evidence or was supported by factually insufficient evidence, which are legally sound
reasons to grant a new trial. See id.; see also, e.g., Sanders v. Harder, 227 S.W.2d 206,
209–10 (Tex. 1950) (“In ordinary civil cases trial courts . . . may set aside jury verdicts
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and grant new trials when, in their opinion, those findings, though based upon some
evidence, are against the great weight and preponderance of the evidence.”). Moreover,
the trial court’s order elaborates, with specific reference to the evidence adduced at trial,
how the jury’s answers are contrary to the great weight and preponderance of the
evidence. See In re United Scaffolding, Inc., 377 S.W.3d at 688–89; In re Columbia Med.
Ctr., 290 S.W.3d at 212. Accordingly, we must determine whether the trial court’s stated
reasons for granting a new trial are valid and correct by conducting a careful “merits
review” of the record. See In re Toyota Motor Sales, 407 S.W.3d at 759 (“Simply
articulating understandable, reasonably specific, and legally appropriate reasons is not
enough; the reasons must be valid and correct.”).
The specific issues in this case involve the factual sufficiency of the jury’s findings
regarding whether Tingle had testamentary capacity to execute the December will,
whether he executed that will as a result of undue influence, and whether Antonia offered
that will to probate in good faith. We begin by examining the law underlying these
concepts.
A. Applicable Law
The trial court’s new trial order relies on the factual sufficiency of the evidence.
When reviewing a challenge to the factual sufficiency of the evidence, we consider all of
the evidence in the record, including any evidence contrary to the judgment. Plas-Tex,
Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Lofton v. Tex. Brine Corp.,
720 S.W.2d 804, 805 (Tex. 1986) (per curiam). Factual sufficiency issues concede
conflicting evidence on an issue, yet maintain that the evidence against the jury’s finding
is so great as to make the jury’s finding erroneous. Raw Hide Oil & Gas, Inc. v. Maxus
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Exploration Co., 766 S.W.2d 264, 275 (Tex. App.—Amarillo 1988, writ denied). If an
appellate court concludes that the evidence is factually insufficient, we must “detail the
evidence relevant to the issue” and “state in what regard the contrary evidence greatly
outweighs the evidence in support of the verdict.” Pool v. Ford Motor Co., 715 S.W.2d
629, 635 (Tex.1986). Factual sufficiency issues are designated as insufficient evidence
points or great weight and preponderance points depending upon whether the
complaining party had the burden of proof. Raw Hide Oil & Gas, Inc., 766 S.W.2d at 275.
When a party with the burden of proof complains that an adverse finding is factually
insufficient, the party must demonstrate that the adverse finding is contrary to the great
weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237,
242 (Tex. 2001). We can set aside a verdict after considering and weighing all of the
evidence “only if the evidence is so weak or if the finding is so against the great weight
and preponderance of the evidence that it is clearly wrong and unjust.” Id.; Pool, 714
S.W.2d at 635. We may conclude that a finding is against the great weight and
preponderance of the evidence even if the record contains some evidence to support the
finding. In re King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951).
The insufficient evidence standard is used to evaluate the evidence supporting an
issue on which the appellant did not have the burden of proof at trial. Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983); Vongontard v. Tippit, 137 S.W.3d 109, 112
(Tex. App.—Houston [1st Dist.] 2004, no pet.). We examine all of the evidence in the
record to determine if the evidence supporting the finding is so contrary to the
overwhelming weight of the evidence that the finding should be set aside. Garza v. Alviar,
395 S.W.2d 821, 823 (Tex. 1965).
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In the instant case, the jury concluded that Tingle lacked the mental capacity to
execute the December 13, 2010 will; however, the trial court concluded otherwise. A
testator must be of sound mind to have the right and power to make a last will and
testament. TEX. ESTATES CODE ANN. § 251.001 (West, Westlaw through 2015 R.S.). This
means that the testator must have testamentary capacity at the time the will is executed.
In re Neville, 67 S.W.3d 522, 524 (Tex. App.—Texarkana 2002, no pet.). The proponent
of the will bears the burden of establishing that it was properly executed and that the
testator had testamentary capacity. Croucher, 660 S.W.2d at 57; In the Estate of
Coleman, 360 S.W.3d 606, 610 (Tex. App.—El Paso 2011, no pet.). Testamentary
capacity means that a party must have sufficient mental ability to: (1) understand the
business in which he is engaged; (2) understand the effect of the act in making a will; (3)
understand the general nature and extent of his property; (4) know his next of kin and the
natural objects of his bounty and the claims upon him; and (5) collect in his mind the
elements of the business to be transacted and hold them long enough to perceive their
obvious relation to each other and to form a reasonable judgment about them. In re
Estate of Lynch, 350 S.W.3d 130, 136 (Tex. App.—San Antonio 2011, pet. denied); see
Long v. Long, 196 S.W.3d 460, 464 (Tex. App.—Dallas 2006, no pet.); In re Estate of
Blakes, 104 S.W.3d 333, 336 (Tex. App.—Dallas 2003, no pet.); In re Neville, 67 S.W.3d
at 524; Bracewell v. Bracewell, 20 S.W.3d 14, 19 (Tex. App.—Houston [14th Dist.] 2000,
no pet.); Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.—Fort Worth 1998, no pet.).
In determining whether a testator had testamentary capacity, the pivotal issue is
whether the testator had testamentary capacity on the day the will was executed. Lee v.
Lee, 424 S.W.2d 609, 611 (Tex. 1968); Long, 196 S.W.3d at 464–65. Where there is no
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direct testimony in the record of acts, demeanor, or a condition indicating that the testator
lacked testamentary capacity on the day the will was executed, the testator’s mental
condition on that date may be determined from lay opinion testimony based upon the
witnesses’ observations of the testator’s conduct either prior to or subsequent to the
execution of the will. See Lee, 424 S.W.2d at 611; see also Schindler v. Schindler, 119
S.W.3d 923, 931 (Tex. App.—Dallas 2003, pet. denied). However, evidence of the
testator’s state of mind at other times has probative force only if it demonstrates that a
condition affecting his testamentary capacity was persistent and likely present at the time
the will was executed. Croucher, 660 S.W.2d at 57; Lee, 424 S.W.2d at 611; Long, 196
S.W.3d at 464–65. The burden of proving testamentary capacity is on the proponent of
the will. Croucher, 660 S.W.2d at 57; Siegler v. Siegler, 391 S.W.2d 403, 404 (Tex. 1965)
(per curiam). Here, the proponent of the will is Antonia.
The jury in this case concluded that Tingle signed the December 13, 2010 will as
a result of undue influence; however, the trial court concluded otherwise. To establish a
claim of undue influence, a contestant must prove the following: (1) the existence and
exertion of an influence; (2) the effective operation of such influence so as to subvert or
overpower the person’s mind when executing the document; and (3) the person would
not have executed the document but for the influence. Rothermel v. Duncan, 369 S.W.2d
917, 922 (Tex. 1963); In re Estate of Johnson, 340 S.W.3d 769, 776 (Tex. App.—San
Antonio 2011, pet. dism’d); Cobb v. Justice, 954 S.W.2d 162, 165 (Tex. App.—Waco
1997, pet. denied). There must be some tangible and satisfactory proof of the existence
of each of the three elements. In re Estate of Johnson, 340 S.W.3d at 776; see
Rothermel, 369 S.W.2d at 922.
15
The contestant must prove the elements of undue influence by a preponderance
of the evidence. Cobb, 954 S.W.2d at 165; Evans v. May, 923 S.W.2d 712, 715 (Tex.
App.—Houston [1st Dist.] 1996, writ denied). Importantly, not every influence exerted by
one person on the will of another is undue, Rothermel, 369 S.W.2d at 922, and its exertion
“cannot be inferred by opportunity alone.” See Cotton v. Cotton, 169 S.W.3d 824, 827
(Tex. App.—Dallas 2005, pet. denied). An influence is not “undue” unless the free agency
of the testator is destroyed and a testament is produced that expresses the will of the one
exerting the influence rather than the one executing the will. Long v. Long, 125 S.W.2d
1034, 1035–36 (Tex. 1939). Thus, a will contestant must not only provide evidence that
an undue influence existed, they must also offer evidence of the testator’s state of mind
at the time the will was executed that would tend to show his free agency was overcome
by such influence. See Rothermel, 369 S.W.2d at 922.
Undue influence may be shown by direct or circumstantial evidence but will usually
be established by the latter. Estate of Davis v. Cook, 9 S.W.3d 288, 293 (Tex. App.—
San Antonio 1999, no pet.). When circumstantial evidence is relied upon, the
circumstances must be so strong and convincing and of such probative force as to lead
a well-guarded mind to a reasonable conclusion not only that undue influence was
exercised but also that it controlled the willpower of the testator at the precise time the
will was executed. Id. “Circumstances relied on as establishing the elements of undue
influence must be of a reasonably satisfactory and convincing character, and they must
not be equally consistent with the absence of the exercise of such influence.” Id.
Factors to be considered in determining the existence of undue influence include:
(1) the nature and type of relationship existing between the testator, the contestants, and
16
the party accused of exerting such influence; (2) the opportunities existing for the exertion
of the type or deception possessed or employed; (3) the circumstances surrounding the
drafting and execution of the testament; (4) the existence of a fraudulent motive; (5)
whether there has been a habitual subjection of the testator to the control of another; (6)
the state of the testator’s mind at the time of the execution of the testament; (7) the
testator’s mental or physical incapacity to resist or the susceptibility of the testator’s mind
to the type and extent of the influence exerted; (8) words and acts of the testator; (9)
weakness of mind and body of the testator, whether produced by infirmities of age or by
disease or otherwise; and (10) whether the testament executed is unnatural in its terms
of disposition of property. In re Estate of Graham, 69 S.W.3d 598, 609–10 (Tex. App.–
Corpus Christi 2001, no pet.); see Rothermel, 369 S.W.2d at 922. The burden of proving
undue influence is on the party contesting the probate of the will. Long, 125 S.W.2d at
1036. In this case, Adkins had the burden of proving that the will was procured by undue
influence.
A finding that an executor procured a will by undue influence does not preclude a
finding that the executor, nevertheless, offered the will in good faith and with just cause.
Harkins v. Crews, 907 S.W.2d 51, 62 (Tex. App.—San Antonio 1995, writ denied) (citing
Huff v. Huff, 124 S.W.2d 327, 330 (Tex. 1939)). Good faith is a question of fact, to be
determined under all the circumstances of the case. Id. Good faith and just cause is a
separate jury question, and it is not determined automatically by a finding of, or no finding
of, undue influence. See id.
Expert medical testimony is not required to prove that a person lacks testamentary
capacity or to prove an undue influence claim because “the requisite proof regarding
17
mental capacity is within the common knowledge and experience of laypersons.” Decker
v. Decker, 192 S.W.3d 648, 652 (Tex. App.—Fort Worth 2006, no pet.); see Estate of
Riggins, 937 S.W.2d 11, 19 (Tex. App.—Amarillo 1996, writ denied). Testimony about
mental competency or ability is an expression of opinion whether it is from an expert or a
layman, and opinion testimony does not establish any material fact as a matter of law.
Estate of Riggins, 937 S.W.2d at 19; Williford v. Masten, 521 S.W.2d 878, 884 (Tex. Civ.
App.—Amarillo 1975, writ ref’d n.r.e.).
B. Evidence
The trial spanned four days and included numerous exhibits and testimony from
eleven witnesses, including: Leticia S. Echazarreta, Raymundo Garza, Esmeralda
Medina, Yvette Martinez, Adkins, Antonia Tingle, Wendell Curry, Patrick Kelly
McCormick, Yolanda Bright, Dr. Sathiyaraj George, and Roel Vasquez. The pertinent
evidence adduced at trial is summarized as follows.
1. Leticia S. Echazarreta
Leticia S. Echazarreta, who worked for the McAllen Police Department in its
community affairs department at the time of trial, testified that she was the branch
manager of the Falcon Bank. Tingle had an interest-bearing checking account at Falcon
Bank which carried a balance varying from approximately $13,000 up to $40,000. She
testified that she met Tingle in 2006 or 2007, shortly after the bank opened, when Tingle
became a customer of the bank and she served as his account officer. Echazarreta
testified that Tingle was “more than a customer” and “more like our family.” She testified
that he was lonely and wanted someone to talk to, and that he liked the bank employees,
and often had coffee and chatted with them. Echazarreta testified that she had “heart to
18
heart” conversations with Tingle, who visited or called the bank two or three times each
week until 2010, when his visits began decreasing. Adkins frequently accompanied
Tingle to the bank. Echazarreta testified that Tingle had executed a statutory durable
power of attorney appointing Adkins as his agent and had also named Adkins as the
beneficiary on his checking account. Echazarreta testified that she saw Adkins drive
Tingle to the bank many times, both before and after the execution of the December will.
Echazarreta testified that, based on her interactions with Tingle from 2006 to 2010,
she “never” had any indication that he suffered from any mental incapacity. She testified
that he was very smart and handled his own investments and finances. “[H]e always
knew, from the beginning to the end how much money he had, basically to the penny.”
Echazarreta testified that Tingle’s “way of thinking” did not alter “at all” during this period.
She testified that although she saw nothing deficient with regard to his mental capacity
during this period, he physically deteriorated. Specifically, she testified that he
occasionally seemed unsteady on his feet and seemed to lose his balance.
In 2010, Tingle called the bank and spoke to Echazarreta’s assistant, Esmeralda
Medina, and told her that he wanted Echazarreta to prepare a will for him. Medina told
Tingle that the bank could not prepare a will for him. Echazarreta returned Tingle’s
telephone call and reiterated that the bank could not prepare his will for him. Tingle told
her that “well, I need help.” She suggested that he consult with a lawyer, and he told her
he could not “because he’s a friend of [Adkins].”
Shortly thereafter, on December 13, 2010, Tingle came to the bank. He drove
himself and she was very concerned because “physically” he was impaired. Echazarreta
testified that she ultimately agreed to type the will for Tingle and he told her what she
19
should type while occasionally referring to a paper he had brought with him. She testified
that Tingle did not read the paper to her, but only occasionally referred to it because “he
knew” what he was telling her. He spent approximately an hour and a half with
Echazarreta and Medina that day, and they discussed politics and the weather. She
believed at that time that Tingle was of sound mind. She specifically testified that when
he signed the will she had prepared that he had the mental capacity to sign it and “he was
all mentally there.” Echazarreta testified that there was no indication that Tingle lacked
“even a little bit” of mental capacity that day in comparison to the past.
Echazarreta testified that during this meeting Tingle seemed upset and angry with
Adkins, and told her that Adkins had stolen gold from him. She testified that up until
December, Tingle’s relationship with Adkins was friendly and cordial. She testified that
she didn’t really believe that Adkins had stolen from Tingle because she respected and
admired Adkins. She thought that Adkins was “respectful, honorable, and hard working,”
so she did not pursue that topic of conversation with Tingle. She asked Tingle while she
was preparing the will if he wanted to change Adkins as the beneficiary on the checking
account or as the designee on his power of attorney, and Tingle told her that he did not.
She also asked Tingle if he thought the will would be legal, and he told her not to worry
about it because “[Antonia] will know what to do with it.”
A copy of the will was introduced into evidence at trial. The will provided:
I, Everett H. Tingle, being of sound mind this December 13, 2010
wish to leave the following instructions upon my death. This will supersede
any wills written prior to this date including the will written by Jose M
Martinez, PC, Attorney at Law.
I wish to leave the following to Antonia Tingle.
• All oil well shares and royalties -Some of the names are Reef,
20
PetroMax, Del Mar Energy,
• Silver and gold located in the safe deposit vault of Lone Star Bank
in No. Glasscock
• All silver and gold located in my apartment.
After Echazarreta typed Tingle’s will, she notarized it and Medina witnessed it.
When Tingle left the bank, he drove in the middle lane and was driving so slowly that cars
were honking at him and Echazarreta stated that they were afraid he was going to have
an accident. Echazarreta testified that she was not aware if Tingle was under medication
at that time, and stated that she would have asked him about any medication if he had
appeared impaired. She testified that she had no reason to question whether Tingle was
mentally competent.
Shortly thereafter, Tingle again visited the bank without Adkins and Echazarreta
asked him where Adkins was. Tingle told her that they were having “problems.” During
one of her conversations with Tingle, Tingle mentioned that Antonia told him to “get rid
of” Adkins, and Tingle told Echazarreta that he responded to Antonia, “why, he’s a good
tenant, he pays rent.” Echazarreta testified that she knew Antonia lived next to Tingle
and that she had a key to his apartment.
At one point, after execution of the December will, Tingle became ill, and Adkins
used the power of attorney to withdraw money from Tingle’s bank account to pay for his
medical care.
2. Esmeralda B. Medina
Esmeralda B. Medina, who worked for Falcon Bank, also testified regarding her
knowledge of Tingle and his execution of the December 2010 will. In 2010, she was a
financial service representative. She testified that Tingle was one of the bank customers.
21
He was a “good man,” who was intelligent and frequently spoke about the war. The bank
employees celebrated Tingle’s birthday with him, and he often visited the bank, drank
coffee, and visited with them. She thought Tingle visited the bank probably twice a month.
She testified that Echazarreta was closer to Tingle than she was.
Medina testified that from 2006 to 2010 there was not a period of time when she
thought Tingle had lost his mental capacity and there was never a time when she saw
him that he was mentally incapacitated. She testified that when she witnessed his will,
he was in “his right mental capacity.” She testified that Tingle and Adkins were friends,
but that Tingle said he was upset with Adkins because he had stolen a gold bar and coins
from his house, and that was why Tingle was executing the new will. She saw nothing
unsafe about Tingle’s driving when he left that day, although she had seen him drive
unsafely in the past.
3. Raymundo Garza
Raymundo Garza, a crime scene investigator employed with the Crime Scene Unit
of the Mission Police Department, testified that on April 20, 2010, Investigator Vicente
Ochoa asked him to assist him in investigating a theft at Tingle’s property where Adkins
was described as “a person of interest.” Adkins took the investigators to his apartment
where Garza photographed a three ring binder containing a will, a bag with coins, and a
little red box that contained keys to a lock box. Adkins produced the bag full of coins from
a bedroom closet. They took the coins to McAllen Gold and Silver to have them
appraised, then all of the items were taken to the police department as evidence.
On June 29, 2010, the police released the binder, bag, and box to Tingle. Garza
testified that he did not see any signs that Tingle did not understand what was happening
22
when he executed a release to obtain his property.
4. Yvette Martinez
Yvette Martinez, an investigator with the Mission Police Department, testified that
in March 2010 she was a patrol officer when she was called to Tingle’s home to
investigate a burglary. Tingle informed her that someone had stolen three silver bars that
he had recently shipped from New York, where they had been in storage for
approximately ten years. Tingle told her that the bars weighed 67 pounds each and were
worth $60,000.4 He stored the bars in a blue box in his garage, and discovered the theft
when he noticed that a ladder that was on top of the box had been moved. Tingle told
her that the garage could only be opened with a key that he and his “son” had access to.
Martinez testified that Tingle was an elderly gentleman who did not seem to be
suffering any mental disability but who was very upset. Martinez testified that Tingle
clearly communicated to her regarding his purchase and ownership of the bars. Martinez
saw no signs of forced entry. Tingle told Martinez that the only three individuals with
access to the bars were himself, his “son” Adkins, and an individual named “Garcia” who
had helped move the bars into the garage four months earlier.
Martinez testified that, subsequently, Adkins voluntarily came to the police
department and submitted a statement regarding the silver bars. According to Martinez,
“Mr. Adkin’s statement implicated himself stealing from Mr. Tingle.” Adkins was placed
under arrest. According to the police reports, Adkins admitted to stealing rare coins, but
not the silver bars, from Tingle. The police investigation detailed Adkins’ sale of Tingle’s
coins to a local gold and silver shop. In July 2010, Tingle ultimately filed an affidavit of
4 Martinez testified that the silver bars were worth $60,000 each; however, other testimony in the
record indicates that figure was an approximate cumulative value for all three bars.
23
non-prosecution against Adkins, and the charges against Adkins were dismissed.
5. Roel Velasquez
Corporal Roel Velasquez, a Mission police officer, testified that he investigated the
theft of the silver bars. Velasquez testified that Officer Yvette Martinez originally took the
report on the burglary; however, he subsequently visited the scene. He did not recall
Adkins or anyone besides Tingle being present during the investigation at the apartment.
When they went into Tingle’s apartment the day of the theft, Tingle’s apartment was in
disarray. There were boxes that Tingle told the officers contained silver bars and other
things of value “just thrown on the floor.”
In the aftermath of the investigation, Adkins was ultimately charged with a state jail
felony, theft of $1,500 or more but less than $20,000 for stealing from Tingle. Velasquez
testified that Adkins confessed he stole gold and silver coins from Tingle and spent the
money on his girlfriend. The “probable cause” affidavit reads:
Contact was made with the defendant who volunteered to come to
the Mission Police Department and discuss the case. Before the defendant
was interviewed he was read his Miranda Warning[5] which he understood
and waived and provided a statement. The defendant denied any
involvement in the theft of the silver bars, but admitted to taking several gold
and or silver coins from a closet in the [Tingle’s] apartment without his
knowledge and sold them at the McAllen Gold/Silver store located . . . in
McAllen TX. The defendant stated he sold the coins because he needed
money [to] pay his bills. The store owner, Mr. [Curry] provided Inv. V. Ochoa
with the store records showing that the defendant took about four gold
and/or silver coins to sell. The store owner also revealed that defendant
was given between $800.00 dollars and $1,000.00 dollars for each coin for
a total amount of about $3,200.00 dollars. The store owner also stated he
remembers the defendant. The victim, Mr. Tingle came to the Mission
Police Department and provided a statement wanting to file charges on any
person who stole the silver bars along with any of his gold and silver coins.
5 See Miranda v. Arizona, 384 U.S. 436, 445 (1966); Martinez v. State, 272 S.W.3d 615, 619 (Tex.
Crim. App. 2008).
24
When Adkins was making his statement, Tingle was present at the police station
and stated he wished to press charges against whoever had taken his property.
Velasquez testified that Tingle told him that he could not believe that Adkins would steal
from him knowing that he would inherit his estate.
After the charges against Adkins were dropped and Tingle’s property was returned
to him, Adkins came to the police department and asked Velasquez to assist him in
retrieving Tingle’s 2006 will from Tingle’s apartment. Characterizing this activity as a “civil
assist,” Velasquez accompanied Adkins to the apartments, where they spoke with
Antonia, and Antonia showed Velasquez the December 2010 will in her favor. Velasquez
told Antonia that she should not enter Tingle’s apartment or remove anything, then left on
grounds that the dispute was a civil matter.
At this time, Tingle was in a nursing home. Velasquez visited Tingle at the nursing
home a couple of days later to clarify the situation regarding the 2006 will in favor of
Adkins and the 2010 will favoring Antonia. Tingle recognized Velasquez and told him that
he was doing “fine,” except that “nobody had gone to visit him in a while.” Velasquez
testified that the nursing home officials had told him when he arrived for the visit that “they
had just left [Tingle] there and they hadn’t come by and visited him.”
During the visit, Tingle told Velasquez that he intended to execute the will in favor
of Antonia. Tingle told Velasquez he had told Adkins that he would drop the criminal
charges against him if Adkins told Tingle where the silver bars were, or if he knew
anything about them. “Mr. Tingle told me at the nursing home that when he dropped the
charges, Mr. Adkins told him that he was the one that had taken the silver bars.”
Velasquez testified that was when he first discovered that Adkins had taken the silver
25
bars, or that he “knew exactly how they were taken.” Tingle told Velasquez that the new
will “was to leave [Antonia] pretty much everything or whatever belonged to him.”
Velasquez said that Tingle seemed sorry that Adkins had “[taken] stuff from him.”
Velasquez testified that both when he investigated the theft and when he visited Tingle at
the nursing home, he had no doubt that Tingle was mentally competent. During the
investigation, Tingle was “pretty sharp” and “was a very smart man.” At the nursing home,
Tingle was “still pretty sharp.”
6. Patrick Kelly McCormick
Patrick Kelly McCormick, an assistant criminal district attorney with Hidalgo
County, testified regarding Tingle’s motion to dismiss the criminal charges against Adkins
and Tingle’s July 7, 2010 statement of non-prosecution, against Adkins which stated that
“I am dropping my complaint against Mr. Adkins because I am not fully convinced he was
the thief and I need his assistance as a caretaker.”
7. Wendell Curry
Wendell Curry, the owner of McAllen Gold and Silver Exchange, testified. He had
been in business for almost forty years and had a long-standing and well-established
client base. He testified that Adkins was a “one or a two time customer.” Adkins came
to his business with a lady, whom Curry subsequently identified as Yolanda Bright, and
told Curry that he had “access to some silver bars,” and asked if Curry would be interested
in them. Adkins told Curry that he had a “rather unique” 1,000 ounce silver bar. Curry
had never been offered a 1,000 ounce silver bar in his 36 years of experience and testified
that such a bar is “very, very rare.” “Mr. Adkins told me that he did not own the silver bar,
up front, straight out told me he didn’t own it, but that he had the legal right to sell it, would
26
I be interested.” Curry stated that Adkins “made it plain” that he was negotiating the sale
of the bar on another’s behalf. Adkins showed him his identification. Adkins returned to
the store subsequently to further discuss the sale of the bar. He told Curry that the person
who owned the bar was in need of money and Adkins was assisting that individual as a
caregiver or a friend.
Later, Adkins brought the bar in and Curry “gave him $17,000 in cash for the bar.”
Curry testified that Adkins carried the bar in without difficulty. Curry believed that Bright
accompanied Adkins to the store for this transaction.
Subsequently, Adkins returned to the store on another occasion and told Curry he
had another silver bar for sale, but this time he requested that Curry pay for the bar with
a check payable to Tingle. Curry bought that bar and wrote an August 4, 2010 check to
Tingle. Curry testified that Adkins came to the store alone for this second transaction.
Adkins returned to the store some time later and told Curry that Tingle had passed
away, that he was “going to inherit quite a bit of gold and silver,” and that he wanted Curry
to appraise it and perhaps purchase some of it. Adkins told Curry that the estate included
approximately $2,000,000 in rare coins. Adkins did not thereafter return to the store.
Curry testified that after Adkins sold him the silver bars, Tingle came to the store
to question the purchase and sale. Curry testified that this visit was the “only reason” he
knew Tingle. Tingle’s physical appearance was weak and he used a walker. Curry
testified that Tingle “looked probably closer to death for a human that’s living than I’ve
ever seen.” Tingle was wearing extremely short shorts with a bag “full” of urine on the
outside of his clothes6 and he smelled “awful.” Curry testified that Tingle did not look like
6According to the evidence at trial, Tingle had a Foley catheter, which is defined as a thin, sterile
tube inserted into the bladder to drain urine. The urine drains through the catheter into a bag which is
27
a person that was being “taken care of.”
At first, Curry was disinclined to allow Tingle into the store. Tingle identified himself
and asked to have a private conversation with Curry. Curry admitted Tingle to the store
but did not take him to his office to speak because he smelled too bad. They had a
lengthy conversation. Curry testified that Tingle was “brilliant” and that “[h]is mind was
clear” and he asked “sharp, pointed questions.” Curry was struck by how Tingle’s physical
appearance and mental aptitude differed.
Curry testified that Tingle “wanted to know if his trusted friend, Mr. Adkins, was a
thief.” Curry thought that Tingle did not want to believe that Adkins has stolen from him.
Curry had the impression that Tingle received the money from the sale of the bars, but
that Tingle thought that Adkins had taken other things and sold them to other dealers.
Curry told him he did not think Adkins was a thief because Adkins explicitly stated that
the bars belonged to Tingle and that Adkins was acting on Tingle’s behalf. Curry testified
that he normally would not remember the details of a conversation like this, except that
Tingle “smelled so bad and looked so pitiful.” The “net result” was that Curry thought that
Tingle’s concerns about Adkins had been resolved when he left the store.
Sometime thereafter, the police came to Curry’s store. The police showed Curry
gold and silver coins, requested Curry to appraise them, and asked him if he knew Adkins.
Curry testified that most of the coins were not worth much, but one was worth $15,000.
Adkins was in the back of the police car and Curry had “the impression he was under
arrest.” The police requested Curry’s records regarding his transactions with Adkins.
emptied when full. EMedicineHealth, http://www.emedicinehealth.com/foley_catheter/article_em.htm (last
visited June 2, 2015).
28
8. Yolanda R. Bright
Yolanda R. Bright testified that she began working for Tingle as a provider in
October 2005 through a home health care company. Bright, who was still working as a
provider at the time of trial, testified that a provider goes to customers’ homes and
performs tasks for them, such as bathing, preparing food, cleaning their homes, or doing
laundry. Bright testified that when she began working for Tingle, he was a strong,
independent, elderly man with a commanding attitude. Bright testified that she did not
always get along with Tingle because he had been a “commander” in the military and he
gave her instructions that she believed were inconsistent with her duties.
Her supervisor with the home health care company told Bright to assist Tingle with
bathing, although Bright testified that he was very strong, walked without a cane, and did
not require her assistance. She worked for him seven days a week for two and a half
hours daily. Meals on wheels delivered his meals. She never met any of his relatives,
although she thought that Tingle had a nephew in the Dallas area. When Bright started
working for Tingle, he had fifty or sixty different bottles of medication. She did not know
what medical conditions that Tingle suffered from, but she knew he had mini-strokes and
was on blood thinners. Bright testified that it was never her job to administer Tingle’s
medications and she was unaware of what medications Tingle was taking. During the
duration of her employment with Tingle, Bright only recalled one time that he had to go to
the hospital.
Bright testified that she stopped working for Tingle in November 2011.7 She
7 Bright’s testimony regarding the chronology of events is inconsistent with the record evidence.
For instance, she testified that she worked for Tingle for five years, but if she began working for him in 2005
and quit in 2012, as indicated by her other testimony, then she worked for him for seven years. Similarly,
29
received a phone call that Tingle was ill and that an ambulance was at the house to take
him to the hospital. She could hear Tingle yelling and screaming in the background that
he did not want to go to the hospital. She last saw him when he was taken from his home
on that occasion, and she did not return to work for him.
Bright testified that she met Adkins when she started working for Tingle, and that
Adkins made coffee for Tingle every day. She testified that Tingle told her to ask Adkins
for coffee occasionally, or that Tingle pounded on his floor with a mallet to indicate he
wished Adkins to come up to his apartment. When Adkins came to the apartment, Tingle
made Bright wait outside.
By a bill of exception taken outside the presence of the jury, Bright testified that
Tingle told her that he thought Adkins had stolen from him. Bright testified that Adkins
had not been around for a few days and she asked Tingle where he was, and Tingle told
her he had been arrested. Two or three days later, Tingle told her Adkins was arrested
for stealing some “bricks.” Tingle told Bright that the police thought Adkins had done it,
but he did not, and asked her to “get on the phone and get me a D.A. or the officers”
because he “want[ed] to help [Adkins] get out.” He told Bright that he did not believe
Adkins had stolen from him. Bright testified that she did not know that Tingle had coins
or silver in his apartment because he was a “very private man” and “he had everything
locked.”
In front of the jury, Bright denied that she ever went to McAllen Gold and Silver
with Adkins. She stated that “me and Mr. Adkins never had anything to do with each
other.” She testified that she only spoke to Adkins about Tingle. Bright testified that she
she testified that he was taken to the hospital and she quit working for him in 2012; however, he passed
away in February of 2012. Accordingly, we assume that Bright quit working for him in November 2011.
30
“never” spoke to Antonia.
Bright testified that in 2010, Tingle was weak and very forgetful, and often lost his
“cane,” wallet, and bank debit card. In December of that year, Tingle had an upper
respiratory tract infection and was very forgetful. They had stopped going outside about
four months previously because Tingle “could no longer handle being out there.” He had
to wear adult diapers with a pad. Bright testified that on December 14 of that year, she
cleaned Tingle’s bedroom and she found fishnet stockings and “dildos, candles, witch
kind of stuff.” She did not know where they came from because she cleaned often.
However, Bright testified that she did not clean on a daily basis because Tingle was a
“hoarder” and “a very messy person who didn’t want her to clean anything.” Bright also
stated that, contrary to her previous testimony, her job “was to work outside.”
Bright testified that she knew that Adkins had been arrested and charged with
stealing from Tingle because Tingle told her. She said that Tingle did not believe that
Adkins had stolen from him, but that he was “confused” about the theft.
Bright testified that she had a criminal charge for felony possession of marijuana
in 2007 while she was working for Tingle. Bright testified that she was not distributing
and selling marijuana and that “they didn’t catch me dealing it.”
9. Dr. Sathiyaraj George
Dr. Sathiyaraj George, Tingle’s treating physician and a specialist in internal
medicine, was examined outside the presence of the jury. Dr. George testified that he
began treating Tingle in 2007 and that Tingle was on medication for dementia at that time.
On February 3, 2010, Tingle was admitted to Las Palmas Nursing Home because of a
precipitous drop in blood pressure. Dr. George testified that on admission to Las Palmas,
31
Tingle did not have the capacity to make a decision by himself. Accordingly, during the
course of treating Tingle on this occasion, he signed a “do not resuscitate order” (“DNR”)
for Tingle at Adkins’ direction because Adkins had Tingle’s power of attorney. Tingle was
ultimately released from Las Palmas, and Dr. George treated him after his release. Dr.
George stated that he did not have an opinion as to Tingle’s mental capacity after his
release from Las Palmas because it was not an issue in his medical care. Dr. George
testified that he could not state with a reasonable medical probability whether Tingle was
mentally incompetent or not when he left Las Palmas, but that it was a “possibility.”
Dr. George testified that Tingle had Alzheimer’s, a form of dementia, which is a
neurologically progressive disease and gets worse with time. Dr. George testified that
dementia is a progressive disease which causes mental capacity to “go down slowly as
years pass by.” Dr. George testified that a dementia patient’s mental capacity could be
adversely affected by other conditions or illnesses, such as pneumonia or a urinary tract
infection, which could cause a short term dip in the patient’s mental capacity. Once the
condition has been treated, the patient’s mental capacity returns to its prior level.
Dr. George testified that “more likely than not” Tingle was incompetent in
December 2010, but he “cannot tell that 100 percent” and he did not know what degree
of mental impairment Tingle had. Dr. George could not testify “for sure” that Tingle was
incompetent, but it was “possible.” Dr. George testified it was his opinion that Tingle was
incompetent in December, but conceded that he did not evaluate Tingle for mental
capacity at that time. When informed that other witnesses had testified that Tingle had
been visiting the bank and handling business during December and that he was “brilliant,”
Dr. George testified that it was “possible” that Tingle could have left Las Palmas with
32
these abilities and attributes. Dr. George further testified that there was a reasonable
medical probability that Tingle was neurologically impaired; however, Dr. George testified
that an individual could be neurologically impaired but still be smart and maintain their
cognition. Dr. George could not state that Tingle lacked mental capacity because of his
neurological impairment.
Dr. George further testified regarding Tingle’s physical state. According to medical
records from June 2010, Tingle had diagnoses of Alzheimer’s, dementia, arthritis, chronic
obstructive pulmonary disease, and osteoporosis. Tingle was homebound, unable to
drive, and at high risk for falls. Tingle was incontinent, suffered joint pains, was on
multiple medications, had knowledge deficits related to care of his bladder catheterization,
and was dependent on assistive devices for ambulation.
The trial court ultimately ruled that Dr. George’s opinion of Tingle’s mental capacity
in December was not admissible, but allowed Dr. George to testify before the jury about
Tingle’s physical problems.
In the presence of the jury, Dr. George testified that Tingle was his patient from
2007 until Tingle’s death in 2012. Tingle suffered from arthritis, COPD, and lung problems
and took multiple medications, including hydrocodone for pain. Dr. George testified that
Adkins brought Tingle in for appointments “all the time,” and that he knew Adkins because
Adkins was also one of Dr. George’s patients. Dr. George testified that Tingle was already
taking Aricept for dementia and “memory problems” when he began treating him in 2007.
He testified regarding the February 3, 2010 DNR which indicated that Tingle was not
competent at that time. After his release from the nursing home on that occasion, Tingle
continued to be sick and was physically impaired and needed home care from visiting
33
nurses.
10. Antonia Tingle
Antonia Tingle, who was 60 years old at the time of trial and working at Wal-Mart,
testified that she met Tingle in 1984 through mutual friends. They began dating, although
Tingle spoke very little Spanish and she spoke only a little English. Antonia’s friend
served as their interpreter or they used “a Spanish-English dictionary.” They ultimately
moved in together and married. After being married for approximately fifteen years, they
divorced in 2003.
In 2010, after the divorce, they still lived in the same fourplex. During that period
of time, she had a “[v]ery good relationship” with Tingle. She testified that they were very
good friends. She spoke with him regularly and daily, except when she had to go to work
early in the morning. Antonia testified that the relationship between Tingle and Adkins
was not good and that Tingle told her that Adkins had stolen from him. It upset Tingle
because he had trusted Adkins.
Antonia also testified that on December 10, 2010, Tingle transferred the acre
adjoining the fourplex to her and on December 11, Tingle transferred the fourplex to her.
She took Tingle to an attorney who prepared the deeds. Antonia testified she did not
know why there was a December deed conveying the fourplex to her if she previously
had been awarded that property during the divorce. With regard to Tingle’s mental state,
she testified that he was “okay” at that time.
Tingle told Antonia that he wanted to execute a will in her name, and she told him
not to do so because “he had already done one for Mr. Fred, and I didn’t want any
problems.” Antonia testified that Tingle had also previously contemplated leaving half of
34
his estate to her and half to Adkins. Tingle asked Antonia to go with him to the bank to
prepare the will, but she told him that she did not want to, so he went alone. At this time,
Antonia had not noticed that Tingle was suffering from any mental disability. Antonia
testified that when she got home from work that day, Tingle called her over to his
apartment and showed her the will and asked her to keep it with her. He told her that he
wanted to leave her his property instead of leaving it to Adkins because Adkins had stolen
from him.
Tingle had asked Antonia to go see him at his apartment every day. Once, when
she went to see him she found him on the floor. She could not lift him, so she called the
provider to come and help. Adkins was not present. Tingle was taken to the hospital by
ambulance and left her in charge of his keys. He told her to keep them until he came
back, and instructed her not to allow anyone into his apartment. Tingle told Antonia that
he wanted to keep his apartment closed because he didn’t want Adkins to “go and get
more things from me.” Antonia believed this occurred in 2011. After that day, Tingle
never returned to his apartment. Subsequently, Adkins came back with the police seeking
access to Tingle’s apartment. She showed them his apartment.
After Tingle’s hospitalization, Antonia visited him at McAllen Medical Center and
when he was moved to Renaissance. One day, she called the hospital and learned he
had died. She had visited him the previous day. Antonia testified that she was not able
to attend Tingle’s funeral because she was working.
Antonia testified that Tingle was never angry with her in 2010. She denied that
she had any conversations with him about her relationships or about a boyfriend. She
denied that Tingle had been mad at her boyfriend who drove a Mercedes. Antonia
35
testified that she never tried to put Tingle in a nursing home.
Antonia conceded that she did not have a good relationship with Adkins in 2010.
Antonia testified that she changed the lock on Adkins’ apartment when he was jailed
because she did not want his girlfriend or wife to steal anything from his apartment.
11. Fred Newton Adkins
Adkins, a retired band director who was 69 years of age at the time of trial, testified
that he began serving as Tingle’s caretaker on September 4, 2005 and served in that
capacity for a period of approximately seven years.
Adkins testified that Tingle did not pay Adkins for his services, because they “had
an agreement at that time that I would take care of him till he passed and that I would get
his assets. And I did my job. I was right there with him when he passed.” In 2006, Tingle
had a will, medical directive, power of attorney, and other documents prepared by an
attorney and a financial planner. Adkins testified that Tingle executed them because he
“wanted to leave me all his assets” and get “his estate set.” Adkins was the beneficiary
of the will and was given Tingle’s power of attorney.
Adkins testified that he first met Tingle in 1987 or 1988, and that he was friends
with both Antonia and Tingle prior to their marriage. Adkins ultimately married Antonia’s
daughter. While the couples were married, Adkins and Antonia’s daughter lived
downstairs in an apartment in Tingle’s fourplex, and Tingle and Antonia lived upstairs.
Adkins testified that when they lived together they were “family,” that they “loved each
other” and that they were the “very best of friends.”
Tingle filed for divorce from Antonia in 2000 or 2001 and their divorce was finalized
in 2003. Adkins testified that he did not take sides in the divorce, and it caused no friction.
36
Adkins testified that during the divorce proceedings, almost a decade previously, Antonia
hit Tingle and Adkins saw Tingle’s resulting bruises. According to Adkins, “they had a
pretty good fight.” Antonia obtained the fourplex in the divorce. She lived in one of the
apartments and Tingle lived in another. Adkins divorced Antonia’s daughter, then moved
away for some years, then returned in January 2006. When he returned to Texas, he
leased an apartment at the fourplex from Antonia and lived there until 2011.
Adkins testified that he and Antonia were “close” until approximately 2008.
However, in 2008, she raised his rent and told him she wanted him to leave. According
to Adkins, Antonia did not like Adkins being “close” to Tingle. Adkins testified that Antonia
“worked constantly about two years trying to get me out of there” because “he loved me
and I loved him” and he “was my best friend.” He testified that “as long as I was there it
was hard for her to manipulate him.” Adkins testified that he and Antonia did not speak
to each other for two to three years because “[h]alf the time she tried to throw me out,
tried to get rid of me.” In approximately September 2010, she tried to evict him. Adkins
eventually moved out because “[Antonia] just got after me, she was just jumping on me
and we just couldn’t – you know, it was a hostile environment.”
Adkins testified regarding the theft of the silver bars and denied that he stole the
silver bars from Tingle. Adkins testified that he picked up the bars from the post office
when they were delivered from New York in 2009. Adkins testified that there were eight
silver bars: seven 1,000 ounce bars and one 300 ounce bar. Adkins testified that the
bars were too heavy for him to get them out of the car when he retrieved them from the
post office. He testified that he and Tingle called Adkins’ son-in law at that time, Garcia,
who assisted them in putting the bars in Tingle’s garage.
37
According to Adkins, he discovered that three bars were missing when he was in
the garage and noticed that a ladder had been moved from on top of the boxes containing
the silver bars. Adkins testified he reported the crime on March 3, 2010 and spoke with
the patrol officer. He was surprised she did not mention him in her report, and he did not
know why the police report does not list him as a witness because he called to report the
crime and he showed the officer around.
Adkins testified that Tingle had been in the hospital, and Adkins had previously
removed some of the bars from the garage because Adkins got “a little nervous” about
them. Adkins testified that he was getting “paranoid” about having the silver bars in the
garage because he was worried somebody might steal them. So Adkins moved them “as
best [he] could]” in a “little dolly” and put the bars in his closet. He did not move all of the
silver bars “because it took it all out of me to get them down there.” After the police officer
left, Adkins testified that he “went down and showed [Tingle] everything” and “showed
[Tingle] the bars in my closet.” He then drove to McAllen Gold and Silver and told Curry
that three silver bars had been stolen, so that Curry could let the authorities know if
anyone attempted to sell him the bars.
Adkins testified that he voluntarily went to the police after the theft of the silver bars
to give a statement. He testified that he “told them that [he] had taken a couple of coins.”
He took the coins while Tingle was in Renaissance Hospital for a respiratory infection and
blood pressure fluctuations. He testified that Tingle kept some of his coins “[s]cattered
around” in the bathtub and on the floor of the back bathroom. Adkins testified that he took
the coins and was going to take them to the bank for Tingle because Tingle’s place was
messy and he was afraid that Antonia might steal the coins. Adkins testified that “I didn’t
38
steal from Mr. Tingle. I took some coins.” Adkins justified his possession of Tingle’s coins
on grounds that he had Tingle’s power of attorney. He thought his power of attorney was
“strong enough” to take the coins.
In contrast to his testimony indicating his removal of the coins was for safekeeping
purposes, Adkins told the police he “had taken some coins and sold them to pay some
expenses.” According to Adkins, he “had to pay all the expenses” of serving as Adkins’
caregiver. He testified that he filled his car with gas and took Tingle to the movies. When
asked in front of the jury why Adkins took the coins, Adkins testified that Tingle “didn’t buy
anything” when they went out.
After giving his statement to the police, Adkins went with the police to McAllen Gold
and Silver, then went to the apartment where Adkins retrieved Tingle’s will, the trust, and
the power of attorney. Adkins testified that the police asked if he had any more coins and
he showed them some in his apartment. Adkins testified that he had opened a safety
deposit box at Compass Bank when Tingle was in the hospital because he thought
Antonia “was going to go through that apartment and get everything she could.” Adkins
did not inform Tingle that he was going to remove the coins from his apartment. Adkins
testified that he placed some of the coins in the box at Compass Bank, and when Tingle
returned from the hospital, Adkins took him to the bank and showed him the coins. Adkins
did not return the coins at Compass to Tingle because the coins were “very safe” in the
bank and he was afraid they might be taken.
Although Adkins initially denied signing the statement given to the police admitting
the theft, he later admitted that he signed the statement. “I looked at it and I signed.”
Adkins reviewed the probable cause affidavit and did not agree that he had sold “all” of
39
the coins to McAllen Gold and Silver.
When Adkins was released from jail, the lock on his apartment had been changed,
so Adkins went upstairs to see Tingle. According to Adkins, Tingle told him that he was
sorry that he had locked the apartment and that he did not believe that Adkins was guilty.
Adkins testified that Tingle told him he wanted him to continue acting as caretaker for him
and that Adkins would see if he could “take care” of the charges for him. Adkins testified
that when he came back from jail, he was “closer than ever” to Tingle, and the day he
came back they hugged each other, told each other that they “loved each other,” and
Tingle told him he would get Adkins “out of the mess.” Adkins testified that he believed
that Tingle had the mental capacity to relieve him of his criminal charges, although Adkins
testified that prior to that time he didn’t think Tingle was “100 percent.” In support of this
allegation, Adkins testified that Tingle was forgetful insofar as he might forget the date or
lose his debit card or his keys.
Adkins testified that the missing three silver bars were never recovered and he did
not know who stole the silver bars. Adkins testified that, contrary to Curry’s testimony, he
and Bright never went to McAllen Gold and Silver to sell a silver bar. Adkins denied that
he had a sexual relationship with Bright.
Adkins testified that in the summer of 2010, Tingle sold one of the remaining silver
bars. Adkins testified that he and Tingle took a silver bar to Curry at Mission Gold and
Silver to sell it because Tingle wanted to invest in an oil company using the proceeds
from the sale of the bar. Adkins utilized a dolly to move one of the bars to his car and
“me and Mr. Tingle struggled to get it to the back seat.” According to Adkins, Tingle
helped him move the bar. “[Tingle and I] both about passed out on that.” They took the
40
bar to McAllen Gold and Silver and spoke with Curry, who retrieved the silver bar from
the car. Tingle and Curry negotiated the sale and purchase of the bar and Adkins testified
that he “wasn’t’ involved in the process at all.” Tingle and Curry agreed on $17,000 for
the bar and Curry wrote Tingle a check for the bar. The record includes a check for this
amount dated August 4, 2010. Adkins testified he drove Tingle to the bank where he
deposited the check.
With regard to Tingle’s mental capacity, Adkins testified that Tingle knew the
difference between right and wrong. Adkins testified he “really can’t” tell the jury any other
information to show that Tingle lacked mental capacity. Adkins testified that Tingle
became more forgetful and his physical condition deteriorated as he aged. Adkins
testified that Tingle’s body fell apart, but that his mind did not deteriorate to a “great
extent.” Adkins testified that Tingle had Alzheimer’s and that he believed that Tingle had
been taking Aricept to treat the Alzheimer’s for years. Adkins testified that Tingle had
back problems and rheumatoid arthritis and was frequently in pain. He had undergone
toe amputations and had a Foley catheter. Adkins assisted Tingle with the catheter and
his medication, and testified that Tingle took several pills, including pain pills. Adkins
testified that he did “a lot” in terms of keeping track of Tingle’s medications but that
Tingle’s health care providers also handled his medication.
By bill of exception taken outside of the presence of the jury, Adkins testified about
Tingle’s mental competence in February 2010. Tingle had had been admitted to the
hospital because his blood pressure dropped too low and he became extremely ill. During
Tingle’s admission to the hospital on February 3, 2010, Adkins executed a DNR for Tingle
pursuant to Tingle’s medical directive. According to Adkins, in the DNR he certified that
41
Tingle was not competent and Tingle’s doctor also certified that he was not competent.
Adkins testified that in his opinion, Tingle was not mentally competent when he executed
the December will and that was based in part on Dr. George’s signature on the DNR.
Adkins testified that Tingle ultimately recovered from this medical episode. The trial court
ruled that Adkins’ testimony regarding the February 2010 DNR was irrelevant to Tingle’s
mental capacity on the day that he executed the will, some ten months later.
In the presence of the jury, Adkins testified that he believed that Antonia unduly
influenced Tingle to change his will. He testified that Tingle was “never” mad at him and
that they “never were mad at each other.” After Tingle was released from jail, Adkins
heard Antonia chatting with Tingle and asking him why he had Adkins released from jail
and telling Tingle that Adkins was a “bad person” and “scum.” Adkins testified that such
behavior went on a lot for a long time and that Antonia was “hostile.” Adkins testified that
Tingle and Antonia sat outside on the balcony pretty often and sat and talked, and he
heard things that “hurt [his] feelings.” According to Adkins, Antonia “talked [Tingle] into”
changing his will. Adkins testified that he believed that Tingle told Echazarreta and
Medina he was angry because Antonia “had pushed his decision.” “I think [Antonia] talked
to him in bed and played with, you know, I was a bad person, I deserved to be in jail
forever, maybe the electric chair.” Adkins testified that otherwise, he could not think of
anything that showed that Antonia unduly influenced Tingle to change his will. Adkins
later testified that he saw dildos, stockings, and condoms in Tingle’s apartment.
Adkins testified he saw Tingle four to six hours “almost” every day. He testified
that they went walking and did things together. In December 2010, he “probably saw him
every day.” “Most of the time we’d have a walk to the canal, walk back, you know, coffee.”
42
He testified that Tingle needed him to do his job for him as his “helper” every day. Adkins
testified that he did not notice that Tingle was gone on the day he executed the December
will at the bank because he “might have had a doctor’s appointment.” Adkins testified
that Tingle’s mental state in 2010 was “absolutely fine,” however, he also testified that
Tingle was not competent on the date that he signed the will. Adkins testified that Tingle
was not mad at him in December 2010 and that Tingle was “never” upset” with him or
displayed anger or hostility to him. Adkins stated that Tingle complained about Antonia
to him occasionally. Adkins terminated his lease with Antonia at the end of December
2010. After he left, Adkins testified that he visited the fourplex every day to check on
Tingle.
With regard to his testimony, Adkins stated that due to his age, he was “a little
foggy” on some matters. Adkins testified that Bright was Tingle’s provider for five or six
years and that she washed sheets, clothes, and kept Tingle’s apartment clean.
C. Application
We first consider all of the evidence both supporting and contradicting the jury’s
determinations that Tingle lacked testamentary capacity. Our pivotal inquiry is whether
Tingle had testamentary capacity on the date he executed the new will, December 13,
2010. See Lee, 424 S.W.2d at 611; Long, 196 S.W.3d at 464–65.
The individuals who assisted Tingle in preparing, notarizing, and witnessing the
will on that day, Echazarreta and Medina, supplied direct evidence regarding Tingle’s
capacity on that day. Both individuals testified unequivocally that Tingle had the mental
capacity to execute the will. Echazarreta testified that Tingle “knew” what he was telling
her and that she believed that Tingle was of sound mind that day, that Tingle had the
43
mental capacity to sign the will when he did so, and that “he was all mentally there.”
Echazarreta testified that there was no indication that Tingle lacked “even a little bit” of
mental capacity in comparison to the past. Medina testified that when she witnessed his
will, Tingle was in “his right mental capacity.”
In terms of opinion testimony from the proponent of the will, Antonia testified that
when Tingle went to the bank to execute the will, she had not noticed that Tingle was
suffering from any mental disability. Although Adkins offered no specific testimony
regarding Tingle’s capacity on the date he executed the new will at the bank, and in fact
had not noticed that Tingle left the apartment on that day, he testified generally, as the
contestant to the will, that he believed that he saw Tingle every day during December
2010 and, in his opinion, Tingle was not competent on the date he executed the new will.
Since there is no direct testimony in the record of acts, demeanor, or condition
indicating that Tingle lacked testamentary capacity on December 13, 2010, his mental
condition on that date may be determined with reference to lay opinion testimony based
on the witnesses’ observations of Tingle’s conduct either prior to or subsequent to
execution of the will. See Lee, 424 S.W.2d at 611.
In this regard, Dr. George testified that Tingle suffered from Alzheimer’s, a form of
dementia, which progressively worsens with time. Dr. George testified that Tingle was
on medication for Alzheimer’s when he began treating him in 2007, so Tingle had
apparently had the condition for some unidentified period of years. Dr. George testified
that he did not evaluate Tingle’s mental capacity and speculated that it was “more likely
than not,” or “possible” that Tingle lacked mental capacity on December 13, 2010, but
that it was also “possible” that Tingle was “brilliant.” We conclude that Dr. George’s
44
testimony that Tingle had Alzheimer’s has probative force since it appears that the
condition persisted and had some probability of being the same or worse condition at the
time of the will’s execution. See id.
In terms of other evidence regarding Tingle’s acts, demeanor, and condition both
before and after he executed the will, Dr. George testified that approximately ten months
before executing the will, Tingle suffered an illness causing hospitalization, and that
Tingle lacked mental capacity during that illness, so Dr. George signed a DNR provided
by Adkins. Dr. George also testified that illnesses can cause declines in mental capacity
in dementia patients; however, the dip in mental capacity is restored upon treatment or
recovery from the illness. Dr. George testified that it was possible that Tingle recovered
from that health episode with attributes of “brilliance.”
In their dealings with Tingle both before and after the December 13, 2010 will, bank
employees Echazarreta and Medina both testified that they never thought Tingle suffered
from any mental capacity and that Tingle handled his business affairs well. The officers
who investigated the theft of the silver bars, Garza, Martinez and Velasquez, testified that
Tingle did not seem to be suffering any mental disability, communicated clearly, and
seemed to understand what was happening. Velasquez testified he had no doubt that
Tingle was mentally competent both during the investigation of the theft and after
execution of the will when he visited Tingle in the nursing home, concluding that Tingle
was “pretty sharp.” Curry testified that he thought Tingle was brilliant, had a clear mind,
and asked sharp, pointed questions. Tingle’s provider, Bright, testified that Tingle was
very forgetful and sometimes misplaced his cane, wallet, and debit card.
In terms of Tingle’s capacity, Adkins testified that Tingle was not “100 percent,”
45
that Tingle was forgetful insofar as he might forget the date or his keys, and that he grew
more forgetful as he aged. Adkins based his opinion that Tingle lacked mental capacity
to execute the will, in part, on the February 2010 DNR, however, Adkins also testified that
Tingle recovered from that medical episode. Adkins also testified that Tingle knew the
difference between right and wrong and his mind did not fall apart to a “great extent.”
Adkins further testified that Tingle had the mental capacity to execute the July 7, 2010
statement of non-prosecution in favor of Adkins, and, according to Adkins’ testimony,
Tingle successfully and solely negotiated the sale of a silver bar on August 4, 2010.
Adkins also testified that Tingle’s mental state was “absolutely fine” in 2010.
Based on Tingle’s treatment for Alzheimer’s, there is a scintilla of evidence
supporting Tingle’s alleged incapacity, thus there is legally sufficient evidence to support
the jury’s verdict. However, we agree with the trial court that the evidence supporting the
jury’s finding that Tingle lacked testamentary capacity on December 13, 2010 is so
contrary to the overwhelming weight of the evidence that the finding should be set aside.
All of the direct evidence regarding Tingle’s mental capacity on the day the will was
executed indicates that Tingle had sufficient testamentary capacity to understand and
execute the will. Based on the witnesses’ testimony, who knew Tingle and had the
reasonable opportunity to observe his acts, conduct, and characteristics, Tingle
understood he was making a will, the effect of making that will, the general nature and
extent of his property, the natural objects of his bounty and the claims upon them. See
Long, 196 S.W.3d at 464; In re Neville, 67 S.W.3d at 524. Furthermore, while Tingle told
Echazarreta the contents of his will while referring to a note he brought with him, she
clearly testified that he knew what he was doing and thus, Tingle had sufficient memory
46
to collect in his mind the elements of the business transacted and hold them long enough
to form a reasonable judgment about them. See In re Estate of Blakes, 104 S.W.3d at
336; Horton, 965 S.W.2d at 85.
In reversing a judgment for factual insufficiency, we must detail all the relevant
evidence and explain why it is insufficient to support the judgment. In re S.M.R., 434
S.W.3d 576, 586 (Tex. 2014); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407
(Tex. 1998). The only evidence supporting the jury’s determination that Tingle lacked
testamentary capacity was Adkins’ and Dr. George’s testimony that Tingle had
Alzheimer’s, a form of dementia, since at least 2007. Dr. George testified that Alzheimer’s
is a progressive disease that causes loss of mental capacity. However, based on the
record evidence, Dr. George neither diagnosed Tingle with Alzheimer’s nor evaluated his
mental capacity in connection with that illness, nor addressed the condition during
Tingle’s medical examinations. His testimony regarding the effect of the condition on
Tingle’s testamentary capacity was equivocal and speculative at best.
Both Adkins and Bright testified that Tingle was forgetful and lost things. There is
no testimony in the record regarding the frequency with which Tingle was forgetful or lost
personal items, and without more, such testimony does not suffice to carry the judgment.
If the propensity to occasionally lose items or forget a date sufficed to show a loss of
testamentary capacity, then the majority of the general public would lack the capacity to
execute a will.
We next consider all of the evidence both supporting and contradicting the jury’s
determination that Tingle signed the December 13, 2010 will as a result of undue
influence. We examine whether Adkins proved: (1) the existence and exertion of an
47
influence; (2) the effective operation of such influence so as to subvert or overpower
Tingle’s mind when executing the will; and (3) Tingle would not have executed the
document but for the influence. Rothermel, 369 S.W.2d at 922; In re Estate of Johnson,
340 S.W.3d at 776.
In examining the nature and type of relationship between Tingle, Antonia, and
Adkins, we note that Tingle and Antonia were married for approximately fifteen years, and
while the dissolution of their marriage appeared to be contentious, they nevertheless
maintained a friendship thereafter which included frequent conversations sitting together
outside at the fourplex. See In re Estate of Graham, 69 S.W.3d at 609–10. Tingle and
Adkins had been friends for almost twenty years, and Adkins had agreed to serve as
Tingle’s caretaker. With regard to the opportunity to exert an influence on Tingle, we note
that both Antonia and Adkins had ample and equal opportunities to exert influences on
Tingle regarding his testamentary intent. See id. In examining the circumstances
surrounding the drafting and execution of the will, Tingle acted independently in going to
the bank and directing Echazarreta with regard to his specific testamentary intentions.
See id. Antonia testified that she told Tingle that she did not want to be involved with
Tingle’s decision to change his will on her behalf. The record does not contain any
evidence that clearly speaks to the existence of a fraudulent motive on Antonia’s part.
See id. With regard to whether there was a “habitual subjection” of Tingle to Antonia’s
control, the record indicates that Tingle lived independently from Antonia and apparently
handled the majority, if not all, of his business matters without her, and instead handled
them with Adkins. See id. There is speculation in the record that Tingle was influenced
by sex or witchcraft, but none of Adkins or Bright’s testimony directly linked Antonia with
48
these allegations.
As previously discussed, Tingle showed a clear state of mind at the time the
December will was executed. See id. Examining Tingle’s mental or physical incapacity
to resist or the susceptibility of Tingle’s mind to the type and extent of the influence
allegedly exerted by Antonia, we note that the witnesses testified that Tingle was
commanding and decisive in nature, although physically weak and debilitated, and that
Adkins, not Antonia, was his caretaker. See id. The record indicates that Tingle actively
sought to discover whether Adkins had stolen from him and independently investigated
the theft of the silver bars through his interview with Curry. Finally, we cannot conclude
that the December will is “unnatural” in its terms of disposition of property because it
favors Tingle’s ex-wife and friend over a friend and caretaker, who, based upon the
evidence at trial, stole from Tingle on multiple occasions.
Considering all of these factors, the evidence regarding undue influence on Tingle
amounts to a mere suspicion of wrongdoing and does not produce a reasonable belief
that an influence was exerted that subverted or overpowered Tingle’s mind and resulted
in the will. See Rothermel, 369 S.W.2d at 922–23. The circumstances are equally
consistent with the absence of the exercise of such influence. See In re Estate of
Graham, 69 S.W.3d at 609–10; see also Rothermel, 369 S.W.2d at 922. We conclude
that the jury’s finding that Tingle signed the will as a result of undue influence was contrary
to the great weight and preponderance of the evidence.
Finally, we address the jury’s finding that Antonia did not prosecute the proceeding
to probate the December 2010 will in good faith and with just cause. In examining this
issue, we note that the jury’s finding that Antonia secured the will by undue influence does
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not preclude a finding that she nevertheless, offered the will in good faith and with just
cause. Harkins, 907 S.W.2d at 62. After reviewing the entirety of the record, we find no
evidence pertaining to the issue regarding whether Antonia prosecuted the will with good
or bad faith. See Plas-Tex, Inc., 772 S.W.2d at 445; Harkins, 907 S.W.2d at 62.
Based on the foregoing, we reject Adkins’ contentions that the jury’s findings were
reasonable and supported by the evidence at trial or that the trial court substituted its
judgment for that of the jury, and we conclude that the articulated reasons in the trial
court‘s order granting a new trial were supported by the law and the record. See In re
Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d at 761–62; see also In re Whataburger
Rests. LP, 429 S.W.3d at 598; In re Health Care Unlimited, Inc., 429 S.W.3d at 602.
V. CONCLUSION
We have concluded that the jury’s findings that Tingle lacked testamentary
capacity, the 2010 will was procured by undue influence, and Antonia failed to offer the
will in good faith and with just cause, were not supported by factually sufficient evidence.
In so holding we are cognizant that the jury was the judge of the credibility of the witnesses
and the weight of their testimony, and that it was within the jury’s province to resolve any
inconsistencies in the evidence. See Golden Eagle Archery, Inc., 116 S.W.3d at 761.
Nevertheless, as recognized by the trial court, the evidence adduced in support of the
jury’s findings was so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. See Plas-Tex, Inc., 772 S.W.2d at 445; Lofton, 720 S.W.2d at 805.
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Accordingly, the trial court did not err in granting a new trial. We deny the petition for writ
of mandamus.
NORA L. LONGORIA
JUSTICE
Delivered and filed the
23rd day of June, 2015.
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