in the Matter of the Marriage of N. J. Klein and W. M. Klein

NO. 07-06-0222-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JULY 31, 2008

______________________________

IN THE MATTER OF THE MARRIAGE OF

NANCY J. KLEIN AND W. MIKE KLEIN

_________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF LUBBOCK COUNTY;

NO. 2001-514,023; HONORABLE DRUE FARMER, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

DISSENTING OPINION

          Contrary to the position taken by the majority, I would sustain Mike’s first issue, reverse that portion of the Modified Order of Enforcement that awarded Nancy recovery of $2,239.91, together with prejudgment interest, for sums paid for seasonal bedding plants planted at the marital residence in June 2003, and render judgment that Nancy take nothing by her claim as to that issue.

          As noted by the majority, the temporary orders gave Nancy exclusive possession of the marital residence and obligated Mike to pay certain household expenses, including “normal weekly lawn maintenance.” Under the plain meaning concept of contract construction, normal weekly lawn maintenance is not the same thing as specially planted seasonal flowers. However, Nancy contends, and the majority agrees, that the obligation to plant seasonal flowers was not an obligation “incurred solely by [her] . . . incurred [after] May 27, 2001.” Nancy reasons that because the service was performed pursuant to a “standing order” it was incurred jointly, and was thus Mike’s obligation. This argument, however, ignores the fact that the work would not have been performed if she had not scheduled the work and instructed the workers to complete the job. Nancy had exclusive possession of the residence and was in control of any decision to incur an obligation not expressly covered by the terms of the temporary order. Because I believe the obligation was incurred solely by Nancy, and because I believe that it was not an obligation expressly assumed by Mike (i.e. it was not weekly lawn maintenance), I would sustain Mike’s first issue, reverse the judgment of the trial court and render judgment that Nancy take nothing by her claim as to that issue. In all other respects, I concur with the majority.

 

 

                                                                                      Patrick A. Pirtle

                                                                                             Justice

.W.3d 643, 654 (Tex. Crim. App. 2002) (in which the defendant day laborer testified he had lost money and suffered as a result of the requirement to report weekly to the bonding company). So, on the record before it, the trial court could have reasonably concluded that appellant failed to demonstrate actual prejudice.

As can be seen, only the first two factors appear to weigh against the State, and one of the two is not that weighty. On the other hand, the trial court had basis to conclude that the keys to his speedy trial lay in the hands of appellant in large part, and, by withholding complaint until the eve of trial, the balance of the factors strikes against him. Thus, we overrule the issue since we cannot say that the decision rendered on the matter lacked evidentiary support or failed to comport with the law. See Shaw v. State, supra (unjustified 38-month delay without objection by defendant until the eve of trial held not to have denied him a speedy trial); Dragoo v. State, supra (a 3 ½-year unjustified delay without objection until the eve of trial held not to have violated defendant's right to a speedy trial).

Issues 2 and 3 - New Mexico Conviction

Appellant's other two issues concern a previous New Mexico conviction used to enhance his punishment. The conviction arose in 1980 and involved criminal sexual penetration. The State's use of it to enhance the punishment accompanying his current conviction allegedly violated constitutional ex post facto prohibitions. Moreover, in denying the jury opportunity to decide whether the New Mexico offense was substantially similar to various statutory crimes mandating a life sentence, the trial purportedly erred. We overrule each issue.

One convicted of aggravated sexual assault must be imprisoned for life if he was previously convicted of the same crime or others listed in §12.42(c)(2)(B) of the Texas Penal Code. Tex. Pen. Code Ann. §12.42(c)(2) (Vernon Supp. 2006). Furthermore, the prior conviction may be that issuing from another state so long as the elements of the crime underlying that conviction are substantially similar to aggravated sexual assault or the other various crimes itemized under §12.42(c)(2)(B). Id. §12.42(c)(2)(B)(v). Whether they are substantially similar is a question of law involving the interpretation of the respective statutes. See Hardy v. State, 187 S.W.3d 232, 236 (Tex. App.-Texarkana 2006, pet. ref'd) (wherein the court compared the two statutes to determine their similarity after noting that the interpretation of a statute was a question of law); accord, Ex parte White, 211 S.W.3d 316, 318 (Tex. Crim. App. 2007) (wherein the Court of Criminal Appeals determined whether the two statutes were substantially similar). And, being a question of law, the matter need not be submitted to a jury for resolution. Id. Thus, the trial court at bar did not err in deciding the matter itself as opposed to allowing the jury to do it. ⁽¹⁾

As for the dispute about whether use of the New Mexico conviction transgressed ex post facto prohibitions, we conclude that it did not and does not. This is so due to the wording of the New Mexico statute upon which appellant relies. According to the proviso, completing probation means that the accused satisfied his criminal liability and authorizes him to apply for a pardon from the governor to regain his full rights of citizenship. N.M. Stat. Ann. §31-20-8 (1978). Yet, nowhere does it state that the conviction cannot be later used for enhancement purposes. And, that fact distinguishes the circumstances before us from those in Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001). The latter dealt with the extent one's deferred adjudication could be used to enhance the punishment applicable to a crime he later committed. When Scott was placed on deferred adjudication, statute dictated that the completion of his probation did not result in a conviction susceptible to use for enhancement purposes; so, a change in the law that later allowed its use implicated ex post facto considerations according to the Court of Criminal Appeals. Id. at 597-98. But, when no such express limitation appears in the statute, ex post facto considerations are not implicated. Ex parte White, 211 S.W.3d at 320. There being no such limitations in the New Mexico statute cited by appellant, ex post facto restrictions were not violated when appellant's New Mexico conviction was used for enhancement purposes here.

Having overruled each issue, we affirm the trial court's judgment

Brian Quinn

Chief Justice

Publish.

1. Appellant does not suggest that the New Mexico statute underlying his prior conviction was dissimilar to the crimes itemized in §12.42(c)(2)(B). So we do not address the similarity between the elements of the various crimes.