Split (1)

train · 657k rows

url stringlengths 56 59	text stringlengths 3 913k	downloaded_timestamp stringclasses 1 value	created_timestamp stringlengths 10 10
https://www.courtlistener.com/api/rest/v3/opinions/8481265/	Petition for Writ of Mandamus Dismissed and Memorandum Majority and Dissenting Opinions filed November 1, 2022. In The Fourteenth Court of Appeals NO. 14-22-00543-CR IN RE WALTER HINTON JUNIOR, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 262nd District Court Harris County, Texas Trial Court Cause No. 1316867 MEMORANDUM DISSENTING OPINION I respectfully dissent. Relator’s petition for writ of mandamus should be denied. To be entitled to mandamus relief, a relator must show (1) that the relator has no adequate remedy at law for obtaining the relief the relator seeks; and (2) what the relator seeks to compel involves a ministerial act rather than a discretionary act. In re Powell, 516, S.W.3d 488, 494–95 (Tex. Crim. App. 2017) (orig. proceeding). Chapter 64 of the Code of Criminal Procedure provides for postconviction DNA testing. See Tex. Code Crim. Proc. Ann. arts. 64.01–.05. Article 64.01 of the Code of Criminal Procedure provides that a convicted person may submit to the convicting court a motion for forensic DNA testing of evidence containing biological material. Id. art. 64.01(a)-1. The convicting court must appoint counsel only if it determines that the convicting person is indigent and the court finds reasonable grounds for a motion to be filed. See In re Marshall, 577 S.W.3d 581, 583 (Tex. App.—Houston [14th Dist.] Feb. 2019, orig. proceeding) (explaining 2003 legislative amendments to article 64.01(c)). Even if the convicting court determines that a convicted person is indigent, the court is not required to appoint counsel if it finds there are no reasonable grounds for the motion to be filed. In re Ludwig, 162 S.W.3d 454, 455 (Tex. App.—Waco 2005, orig. proceeding). Such a finding is reviewed under an abuse-of-discretion standard, either in mandamus or as part of the appeal of the denial of DNA testing. Marshall, 577 S.W.3d at 583, citing, Gutierrez v. State, 307 S.W.3d 318, 323 (Tex. Crim. App. 2010) (appeal) and Ludwig, 162 S.W.3d at 455 (mandamus). Therefore, the appointment of counsel under chapter 64 involves a discretionary decision and is not a purely ministerial act. Marshall, 577 S.W.3d at 583. Because relator seeks to compel a discretionary act, appellant is not entitled to mandamus relief. /s/ Margaret “Meg” Poissant Justice Panel Consists of Justices Zimmerer, Spain, and Poissant. (Spain, J., majority). Do Not Publish — Tex. R. App. P. 47.2(b). 2	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481291/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0799-19 THE STATE OF TEXAS v. SHEILA JO HARDIN, Appellee ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS NUECES COUNTY KELLER, P.J., filed a dissenting opinion in which YEARY and KEEL, JJ., joined. Is it legal for a car to straddle a lane for ten minutes, with each half of the car in a different lane, as long as doing so is not unsafe? Under the Court’s opinion, the answer is “yes,” but under the statute the answer is clearly “no.” Section 545.060 of the Transportation Code provides: (a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and HARDIN DISSENT — 2 (2) may not move from the lane unless that movement can be made safely. Because subsections (1) and (2) are connected by an “and,” a driver is required to follow both subsections. Failure to comply with either one of the subsections constitutes a failure to comply with the statute. Under the plain language of Subsection (1), then, the driver must drive as nearly as practical entirely within a single lane, even if it would be safe not to do so. The Court contends that the statute’s use of the conjunctive word “and” means that an offense occurs only if both subsections are violated, but the Court has it backwards. This statute does not by itself create a criminal offense. Like most of the “Rules of the Road” provisions of the Transportation Code, it imposes requirements upon drivers, and a different statute provides that a failure to comply with one of the “Rules of the Road” constitutes a criminal offense.1 For a statute that directly creates an offense, the use of the word “and” would ordinarily suggest that all of the joined elements must be committed before there is an offense. For example, a person commits aggravated robbery if he commits robbery “and” he causes serious bodily injury.2 If a person fails to commit one element, he has not violated the statute. But for a statute that imposes requirements, the use of the word “and” would ordinarily suggest that the statute has been violated if a person fails to commit even one of the joined requirements. For example, a statute requires the operator of a vehicle involved in an accident resulting in injury, death, or property damage to: (1) give the operator’s name and address, the registration number of the vehicle the operator was driving, and the name of the operator’s motor vehicle liability insurer to any person injured or the operator or occupant of or person attending a vehicle 1 See TEX. TRANSP. CODE § 542.301(a) (“A person commits an offense if the person performs an act prohibited or fails to perform an act required by this subtitle.”). 2 TEX. PENAL CODE § 29.03. HARDIN DISSENT — 3 involved in the collision; (2) if requested and available, show the operator’s driver’s license to a person described by Subdivision (1); and (3) provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation.3 The conjunction “and” is used both in the first subsection and in connecting the three subsections. A driver in an accident described above must comply with all of the requirements in the statute. He must give his name, address, registration number, and insurance carrier. He must show his operator’s license if requested and available, and he must provide reasonable assistance to any person injured in accordance with the third subsection. If he fails to comply with even one of these requirements, he has violated the statute. Because Section 545.060 is likewise structured as a requirements statute rather than as an offense statute, the word “and” serves a function opposite to what it would ordinarily serve in a statute that directly creates an offense. I agree with the Court that there is some interconnection between the subsections, but I disagree with its conclusion that this means that the subsections do not impose independent requirements. While the requirements in these subsections are related, they are nevertheless distinct. The first requirement sets a general rule that a driver must drive entirely within a single lane and sets an exception when following this general rule is not “practical.” Even when the exception applies—when driving within a single lane is not practical—the driver must still follow the second requirement of moving from the lane only when it can be done safely. 3 TEX. TRANSP. CODE § 550.023. A violation of this statute is criminalized under other statutes. See id. §§ 550.021(a)(4), (c), 550.022(a)(3), (c). HARDIN DISSENT — 4 One can see how these provisions work together when a driver changes lanes. A driver cannot drive within a single lane when changing lanes, so the “as nearly as practical” language of the first subsection allows the driver to briefly drive in more than one lane while changing lanes. But the driver who changes lanes must still follow the second subsection and change lanes only when it can be done safely. And when the lane change is complete, the general rule from the first subsection applies and requires the driver to again drive entirely within the new lane. Another example of how these provisions work together is when a driver sees an obstacle in his lane. An obstacle in the lane might make driving within a single lane impractical. The driver might need to briefly move partially into another lane to avoid the obstacle before moving back entirely within the original lane. But the driver in that situation is still subject to the second subsection’s requirement that he move into the other lane only when it is safe to do so. The Court concludes that reading the two subsections as independent requirements would render Subsection (2) meaningless because any movement from a single marked lane would result in the commission of an offense regardless of whether it is “safe.” But this overlooks the words “as nearly as practical.” In fact, the Court’s construction renders Subsection (1) meaningless. If all the legislature cared about is whether a driver could move from his lane safely, then the statute would need only Subsection (2). There would be no need at all for Subsection (1) and its practicality standard. Relying on a recent version of Merriam-Webster’s dictionary, the Court defines “nearly” as “almost but not quite,” and concludes that a motorist is not actually required to maintain a single marked lane under Subsection (a)(1) but that, instead, he must “almost, but not quite stay within the lane.” But the Court overlooks the grammatical context in which the word “nearly” is found, and HARDIN DISSENT — 5 there are other definitions that better fit that context. None of the usage examples on the Merriam- Webster website track the context in which “nearly” appears in our statute, with an “as” on each side of the word. But the Oxford English Dictionary has examples that do. Under one entry, “With close approximation or near approach (to some state or condition, etc.),”4 the examples are “As nearly as a I may, I’ll play the penitent to you” and “As nearly prime minister as any English subject could be under a prince of William’s character.”5 Under the “close approximation” definition, the statutory wording requires a driver to drive entirely within a single lane in as close an approximation as practicality dictates. Such a requirement dictates driving entirely within the lane unless an exceptional circumstance makes doing so impractical. The Court further concludes that reading the subsections as independent requirements renders Section 545.103 of the Transportation Code meaningless. Again, I disagree. The Court points to the portion of the statute that provides, “An operator may not . . . move right or left on a roadway unless movement can be made safely.”6 The language about moving right or left on a roadway safely would cover moving on a road that has no marked lanes. This safe-movement requirement does not conflict with a requirement that a driver stay entirely within a marked lane when practical, even if not needed for safety purposes. The Court also points out that the statute did not always contain subsection divisions and that the two requirements were at one time phrased as part of the same sentence. But they were always two requirements—one with a practicality standard and the other with a safeness standard. My 4 Nearly, THE OXFORD ENGLISH DICTIONARY (2nd ed. 1989) (entry 6). 5 Id. (spelling modernized under first example). 6 TEX. TRANSP. CODE § 545.103. HARDIN DISSENT — 6 construction of the current statute would apply just as well to the previous version. In this case, even though Appellant’s driving might not have been unsafe, she nevertheless failed to drive as nearly as practical within a single lane. She could have rounded the curve while staying entirely within the lane, but she did not. Consequently, she violated the statute and there was a sufficient basis for the stop. I respectfully dissent. Filed: November 2, 2022 Publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481832/	Staples, J. It must be assumed for all the purposes-of this decision, that the bond in controversy was a. complete and perfect instrument on its face, at the time-of its delivery to the obligee. The defendants pleas- and the instructions given by the court are obviously based upon this hypothesis. It must also be assumed,, that at the time the bond was executed by the defendants, other than the principal obligor, it was agreed that it should not be delivered to the obligee, until executed! by other persons besides the defendants, and further,, that without being so executed, it was delivered by the-principal obligor to the obligee, who was not informed, of the condition annexed to the delivery of the instrument. The question is presented, whether the bond under-this state of facts is binding upon the parties actually executing it as sureties. It is very clear that a deed or bond may be committed, to a stranger to be delivered by him to the obligee upon the performance of a condition or the happening of an event; and if delivered before ti e condition is performed or the event happens, the bond will not take-effect, although the obligee ma}- not be apprized of the terms imposed, and although there is nothing on the face of the instrument to excite his suspicions or put him upon enquiry. In such case it is simply-a question off poA-er in the agent in making the delivery, and not a question of good faith in the obligee in accepting it. The point to be considered then is-, whether there is-any substantial distinction between a delivery to a stranger and a delivery to the principal obligee by one who signs the instrument as surety. That such a distinction does exist, and that it is founded upon the-, soundest principles, I think is easily established.. 209Wheu the bond is placed in the hands of a third person, who is a stranger to the consideration and to the instrument, to be delivered to the obligee only upon performance of some condition, such, person is a mere custodian of the instrument until the condition is performed, having no interest, or semblance of an interest, in the subject matter of the contract. The obligee, finding the paper in the hands of such a person, is bound to know how he obtained possession of it, and by what authority he undertakes to dispose of it. It is a case of naked special agency, governed by the principles applicable to that class of agencies. All persons dealing with such an agent are bound, at their peril, to enquire into the extent of his power and to understand its legal effect, and if the agent exceeds the limits of his authority the act, so far as it affects the principal, is void. When the bond is in the possession of a stranger, there is nothing in the character of the ageut, or in the custody of the instrument, calculated to mislead the obligee in unduly accepting it. On the contrary, the mere fact that a stranger, having no apparent interest in the boud, has possession of it, is of itself sufficient to excite suspicion, and to put the obligee upon enquiry as to his authority to dispose of it. When, therefore, the obligors deliver the bond to a stranger as an escrow, it cannot be said they have done an act or made a declaration calculated to mislead third persons. The most that can be said is, they have appointed an agent, who, in making an undue delivery, has exceeded his powers; but there is nothing in the manner of the appointment or the circumstances of the agency which prevents the principal from repudiating the act. On the other hand, very different considerations, it seems to me, should govern where the surety signs a bond complete in all its forms and provisions, and en210trusts it to the principal obligor for a proper delivery to the obligee. It is true the principal obligor has no greater power than the stranger to whose custody the bond is committed; but in such a case the question is not what is the power conferred, but what is the power the obligee has the right to suppose is conferred. The principal obligor has certainly an apparent authority to deliver the instrument in its then existing form and condition; that is such an authority as may be fairly inferred from his connection with and possession of the paper. The reasonable presumption is, that he is to dispose of the bond according to the natural course of proceeding in such cases; that is, by a delivery to the obligee. It is true the agency is»a special one; but the agent being clothed with the evidence of agency for the general purpose of delivery, no secret limitations or restrictions ought to control the exercise of the power, so far as parties are concerned dealing with the agent, upon the faith of the apparent power. The instrument being complete in form, (precisely such as would have been adopted if the parties signing it alone were to be bound,) being found in the possession of the very person who would have held it if the purpose had been to make an unconditional delivery, under such circumstances an obligee accepting it has the right to infer that the transaction is precisely what it purports to be, and that the real power is in fact co-extensive with the apparent power. In the language of an eminent author: “ If the principal has justified the belief of persons dealing with his. agent, that the agent had from him sufficient authority to do as agent the precise thing, it is no answer on his part to say that the agent had no authority, or one which did not reach so far, and that it was a mistake on the part of the third party. It may have been his mistake, 211but the question is, whether the principal Jed this third party into the mistake.” 1 Pars, on Cont. 39. If the principal seud his commodity to a place where it is the ordinary business of the person to whom it is confided, to sell, it must be intended that the commodity was sent there for the purpose of sale. If the owner of a horse send it to a repository of sale, can it be implied that he sent it thither for any other purpose than that of sale or if one send goods to an auction room can it be supposed that he sent them thither merely for safe custody ? 2 Kent’s Com. 621. And so when the surety signs an obligation for the payment of money, and leaves it in the hands of him for whose benefit it was executed, is it to be presumed it was left there merely for safe custody ? May it not be fairly inferred it was intended rather for delivery to the obligee? Is the latter to go further and take it for granted, that there are secret limitations upon this power of delivery never communicated to him? When the surety signs his name to a bond and confides it to the principal obligor, he thereby makes a solemn declaration that he has become a party to the instrument, and he so makes and shapes this declaration that it is almost absolutely certain to reach the party who is most likely to be misled by it. It would seem to be a gross violation of justice and good faith to permit the surety, under such circumstances, to repudiate these solemn declarations by setting up conditions and limitations known only to himself and his co-obligors. In Pickard v. Sears, 6 Ad. and El. 469, Lord Denman said, “ The rule of law is clear, that when one by his words or conduct wilfully, causes another to believe the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, the former is concluded from averring against the latte1 212a different state of things existing' at the time.” And m Lickbarrow v. Mason, 2 T. R. 63, 70, the same doctrine was expressed in a form very familiar to the profession ; and that is, whenever one of two innocent &Persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it. Ihe great principle of the law of estoppel is, that when an act is done or a statement made by a party which can not be contradicted or contravened without fraud on his part and injury to others whose conduct has been influenced by the act or admission, the character of an estoppel will attach to what would otherwise be mere evidence. In the May number of the LawBegister 1864, Judge Redfield uses the following language: “ Where the surety entrusts the bond to the principal obligor, in perfect form, with his own name attached as surety, and nothing upon the face of the paper to indicate that others are expected to sign the instrument in order to give it full validity against all the parties, he makes such principal his agent to deliver the same to the obligee, because such is the natural and ordinary course of conducting such transactions; and if the principal under such circumstances gives any assurances to the surety in regard to procuring other co-sureties or performing any other condition before he delivers the bond, and which he fails to perform, the surety giving confidence to such assurances must stand the hazard of their performance, and he can not implicate the obligee in any responsibility in the matter, unless he is guilty of fraud or rashness in accepting the security.” These just and sensible observations are sustained by a number of well considered cases in the American courts. Smith v. Moberly, 10 B. Mon. R. 266; Millet v. Parker, 2 Metc. Ken. R. 608; Deardorff et als v. Fores-213mun, 24 Ind. R. 481; State v. Pepper, 31 Ind. R. 76; Passumpsic Bank v. Goss, 31 Verm. R. 318; State v. Peck, 53 Maine R. 284. I refer especially to the case Deardorff et als. v. Forestmun,24 Ind. R. 481; and State v. Peck, as containing an exhaustive review of all the authorities bearing upon the question. It must be admitted there are contrary decisions in the courts of other States, among them The People v. Bostwick, 32 New York R. 445; State Bank v. Evans, 3 Green N. J. R. 155. Upon a careful examination it will be found, that in a large majority of the cases relied on to sustain the opposing view, it appeared that the obligee either had notice of the condition attached to the execution and delivery of the bond by the surety, or there was something in the transaction, or on the face of the instrument, to put him upon enquiry, or the obligee had not sustained any damage or loss, nor done any act to his own prejudice upon the faith of the instrument. Pawling v. United States, 4 Cranch R. 218; Wells v. Dill, 1 Martin R. 592; Bibb v. Reed, 3 Alab. R. 38; King v. Smith, 2 Leigh 157. In Virginia this question has never been the subject of adjudication by any court of the last resort. In Ward et als v. Churn, 18 Gratt. 801, this court held that an instrument which on its face indicates that it is not complete, and that other persons are intended to sign it, is not binding upon those who do sign it, although the condition may not have been known to the obligee when it was delivered to him. But the court declined to express any opinion upon the effect of an instrument which is apparently complete, and which in no manner indicates that it is to be signed by others. In the course of his opinion Judge Joynes adverted to this question and to the conflict of authority upon it; but he said its decision was not necessary to the case before the court. 214In Preston v. Hull 23 Gratt. 600, the instrument was imperfect and incomplete on its face when exhibited to in the fact that the name of an obligee had not been inserted. And this court held that the blank could no^ Ailed by an agent appointed by parol, and then delivered, in the absence of the principal, as a deed. It is clear that the doctrine of estoppel could have no application to the case. Amid this conflict of authorities in other States, and in the absence of any express adjudication by this court, we are at liberty to adopt that rule which seems best.to accord with sound policy aud well established general principles of law. In this State it is believed to have been the general practice and usage for parties execuling bonds as sureties to leave them in the possession of the principal obligor for delivery to the obligee. Until very recently no serious question has ever been raised as to their liability, whatever may have been the conditions imposed, unless indeed there was something apparent on the face of the instrument calculated to excite suspicion or enquiry. It is impossible to foresee the mischiefs of establishing a different rule. An obligee having in his possession an instrument signed by responsible parties, to all appearances perfectly complete and valid, may at any distance of time be confronted and defeated by a secret parol agreement between the principal obligor and some one of the sureties, of the existence of which he had not even a suspicion. How is it possible to provide against these pretended agreements? How are they to be met and disproved ? In the nature of things the obligee can offer no evidence besides the bond, as a knowledge of the condition is generally confined to the principal obligor and the sureties. 215. It is a fundamental principle of the common law, that parol testimony is not admissible to vary or contradict a written agreement. In this case it is proposed to receive such testimony in its most objectionable form, by proof of a parol contract between the parties on one side, never communicated to the party on the other most interested in knowing it. It has been said that the obligee may protect himself by requiring the personal acknowledgment of each one of the obligors. Apart from the inconvenience resulting from such, a rule, it is by no means certain that an •acknowledgement of that kind will furnish the necessary security. After a great lapse of time it would be as •difficult to prove the acknowledgement as the original •execution, unless indeed some independent proof of such acknowledgment shall always be presented along with the bond. On the other hand nothing can be easier than for the surety to incorporate in the writing or endorse upon the paper, the condition upon which his signature isattached •or he may commit it to the custody of a third person in no manner connected with the transaction. This would furnish ample protection to the surety and constitute sufficient notice to the obligee. In the absence of some plain and obvious precaution of this sort, I think the parties whose names are attached to the instrument should be estopped to deny as against the obligee, that it is their deed. Since the foregoing opinion was written, the 16th Vol. of Wallace’s reports has been published, containing the case of Dairs’ v. United States, page 1. That case is identical with this, the surety having signed the bond on condition that it should not be delivered unless it was executed by other persons, who did not execute it; but the obligee had no notice of the 216condition, and there was nothing to put him upon enquiry as to the manner of its execution. The Supreme court of the United States held that the bond was nevertheless binding upon the sureties. Justice Davis speaking for the court, said: In the execution of the bond the sureties declared to all persons interested to know,, that they were parties to the covenant and bound by it; and in the belief that this was so, they were accepted and the license granted. They can not, therefore, contravene the statement thus made and relied on without a fraud on their part, and injury to another; and where these things concur the estoppel is imposed by law. As they confided in Dair it is more consonant with reason that they should suffer for his misconduct than the government, who was not placed in a position of trust with regard to him. It will be perceived, that the Supreme court rests its decision upon the doctrine of estoppel exclusively. And upon the same ground we are content to place the decision of this case. It only remains to consider the question raised by the defendants fifth instruction. This instruction asserts the proposition, that if the bond was executed by all the defendants except Isaac Vermillion, and in that condition was delivered to and accepted by the obligee, but afterwards with the consent of the obligee and without the consent of the obligors, was executed by Vermillion, then it is not the bond of any of said obligors who did not know of said transaction and consent to it. It will be observed that the obligation is joint and several. In this respect it is different from the bond in Baber v. Cook, 11 Leigh 606, which was simply a joint obligation. In that case it was held that when a bond is executed by three persons and perfected by delivery, the sealing and delivery by another afterwards will not 217avoid the bond as to the other's. In such case the obli- ..... . gation as to the three first signing is joint as between themselves, and several as it relates to the obligor last signing. And so in this case, if the fact be as assumed in the instruction, as between the parties first signing, the bond is j'oint and several, and "as to Vermillion, it is simply his several obligation. "Whether the plaintiff will be entitled to a joint judgment against the obligors first executing the bond, and a several judgment against the last, or whether in this action he is barred of any remedy against Vermillion, and will be compelled to-resort to a new suit against him, are questions in no* manner before us, and which we are therefore not called upon to decide. Moffett v. Bickle, 21 Gratt. 280. We have only to deal with the instruction as it is, which, for-the reasons suggested, was clearly erroneous, and should, not have been given. This disposes of all the questions arising upon the-pleas and the instructions. In the progress of the trial' evidence was adduced tending to show, that at the time-the bond was signed by a part of the obligors, it was-agreed that the signatures of twenty sureties should be-obtained, and that there were then twenty seals or scrolls-upon the paper, extending to the bottom of the page whereas the bond as now exhibited by the plaintiff,, contains ten only. What would have been the effect of" such evidence offered under appropriate pleadings, it is-unnecessary now to say. The instructions given by the-Circuit Judge are not based upon any hypothesis of an incomplete instrument, or an instrument which upon its face indicates that it is to be signed by others; but they cover the broader ground that the bond, though perfect in form and execution, was not valid and binding until the conditions wej-e complied with, although these-conditions were never communicated to the obligee, and *218nothing appeared on the face of the instrument to put him upon enquiry. The second, third and fourth clearly assert, and were no doubt intended to assert this proposition ; and in that aspect they have been argued by counsel and considered by this court. The first instruction is perhaps not objectionable, though of a somewhat vague and general character. Plea Ho. 2 affirms the same erroneous doctrine asserted in the instructions. Had it averred that the obligee was ap•prized of the condition, at the time the bond was deliv■ered to him, or that there were scrolls or seals upon the paper to which no signatures were attached at the time ■of such delivery, the plea would have presented an .-entirely different question for the consideration of the •court and jury. Pleas Nos. 1, 4, aud 5 are general pleas of non est factum, to which there is no valid objection. But for the error in admitting plea Ho. 2, and giving the instuctions before mentioned, the judgment of the Circuit court must be reversed, and the case remanded for further proceedings in conformity with the views herein expressed. The other Judges concurred .in the opinion of Staples, J. Judgment renersed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481833/	Bouldin, J., delivered the opinion of the court. The true character of the contract in this case is conceded on both sides. The bond given for the debt wasexeeuted between the 1st day of January 1862 and the-10th of April 1865; whs given for a loan of Confederate-States Treasury notes, corresponding in amount with the'nominal amount of the bond; and was to be discharged) by the payment of the same currency. It is clear, therefore, and is not denied, that it is what is commonly called, a Confederate contract; that it comes plainly within the operation of the act for the adjustment of such liabilities,, and must be scaled. The only question before us is, at. what period shall the scale be applied? The appellant contends that the scale should be applied as of the date of the bond, the same being payable on demand: whilst the appellee contends that it was properly applied by the court below as of the-period when, by the terms of the deed of trust given to-secure the debt, the appellaut had a right to enforce the collection thereof, by sale of the property conveyed. We think there can be no doubt about the law of the 221•case. It has been plainly settled, by recent and repeated •decisions of this court, and is no longer open for discussion, that a bond payable “on demand” is payable presently without demand; that the right of the obligor so •to pay it, and the duty of the obligee to receive the payment, is not at all impaired by restrictions on the obligee’s right to immediate payment imposed for the benefit of the obligor, either on the face of, the bond or by •contract de hors thereto: that in all such cases it is at the option of the obligor either to avail himself of the restrictions or to pay the debt at any time after date, as if there were no restriction; and that such bond, if given dor a loan of, and solvable in Confederate States treasury notes, must be scaled as of its date. This is now the •settled law of this court. Stover, assignee, v. Hamilton & al. 21 Gratt. 273; Omohundro’s ex’or v. Omohundro, 21 Gratt. 626; Bowman v. Mc Chesney, 22 Gratt. 609. We have seen and heard nothing in this case to withdraw it from the influence of these decisions. The bond, it is true, which was given for the money loaned, is not ■copied in the record; but it is plainly described in the pleadings on both sides, and also in the deed of trust; and there is no difficulty as to its terms. It is for three thousand dollars, payable “on demand,” and bears date the “11th of July 1862,” on which day it was executed. There is nothing on the face of the bond to impair, in the slightest degree, the right of the obligee to enforce immediate payment thereof; nor is there any thing on uts face to prevent the obligor from discharging the same at his pleasure. It is, as written, merely a single bill, payable “on demand;” and due as to both parties instantly. But it is contended, for the appellee, that the legal effect of the bond is changed by the cotemporaneous execution of a deed of trust by the parties to ■secure the same, in which there is a stipulation in the 222following words: “ That if the said Temple D. Richard- ~ . _ son shall -well and truly pay, or cause to be paid, unto-the said Moon, the legal interest that may accrue upon the said debt of three thousand dollars, herein before-descriked, every six months, commencing six months from the date hereof, with promptness and regularitty,. then, and on that express condition, it is agreed that the said Temple D. Richardson shall have five years credit upon this said bond given for said debt, beginning at the date hereof; that it is to say, the said bond,.which is payable-on demand, shall not be collected for five years, if the interest is paid punctually every six months.” It is very evident from the terms of the clause we-have quoted, that it was the purpose of the parties to keep distinctly in view the fact that the debt was payable “on demand,” but that the debtor might secure-indulgence by the punctual performance of an express-condition. It was at his option either to pay the debt at any time “ which is payable on demand ” as-stated in the deed itself, or by performance of the condition to secure indulgence. He did not, and was not requirió surrendr this right; and this brings the case directly within the principle of the cases of Stover, assignee v. Hamilton and Baughman v. Mc Cahesney. It is a privilege secured to Richardson and a restriction upon Moon ; and Richardson still had the unqualified right to waive that privilege and discharge the debt at any time. As-to him, notwithstanding the privelege to himself and the-restriction on Moon, the debt is regarded in law as payable presently. The date then, and the period of' payment, the maturity of the bond being in this case the same, there is no necessity for considering the question so elaborately discussed by the judges and at the-bar in the case of Dearing, administrator v. Rucker 18 Gratt. 426. We are all of opinion that the bond in this-223case was, so far as the rights of the appellee Richardson are concerned, payable at its date; and that the scale should have been applied as of that period. The decree of the Circuit court is therefore erroneous, and must be reversed with costs to the appellant; and this court would now proceed to enter such decree as should have been entered by the Circuit court were the proofs in the cause sufficient for the purpose. There is, however, no proof in the cause of the value of Confederate States treasury notes, either on the 11th day of July 1862, the date of the bond, or on the 11th day of July 1864, when it was scaled by the Circuit court. It is true that we may take notice, as matter of history, that Confederate States treasury notes were depreciated on the 11th day of July 1862, and continued to depreciate ; that the depreciation between that date and the 11th day of July 1864 was very great, and that the scaling, as of the latter period, was very prejudicial to the appellant; but what was the true debt on the lltli day of July 1862, when the scale should have been applied, we cannot from anything in the record now say. That must he ascertained by the Circuit court, either by reference to a commissioner or by proofs taken before the court; and the cause must he remanded for that purpose. The decree of the Circuit court must be reversed and annulled, with costs to the appellant, and the cause remanded to that court to be further proceeded in according to the principles above declared. The decree was as follows: This day came again the parties, by counsel, and the court having maturely considered the transcript of the record and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the obligation of the appellee Richardson, in the pro224ceedings mentioned, was, as to him, payable presently, in-Confederate States treasury notes, and under the repeated decisions of this court, should have been scaled as of the-date thereof, viz: the 11th day of July 1862, and not on the 11th of July 1864. It is therefore decreed and ordered that the decree of the Circuit court of the 25th day of September 1870 be reversed and annulled, and that the appellee Richardson do pay to the appellant his-costs by him expended in the prosecution of his appeal to this court; and the cause is remanded to the Circuit court, to ascertain, by proof before the. court or otherwise, the true value of the Confederate States treasury notes, secured by the obligation of the appellee, on the 11th day of July 1862, the date thereof, and for final decree. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481834/	Moncure, P. delivered the opinion of the court. The court is of opinion, that the appellee, David T. Staples, executor of David Staples, had authority under the will of his testator,to sell the real estate of said testator, as he did on the ninth day of July 1862. The testator, by his said will, which bears date on the 19th day of February 1861, expressly directed all his estate to be sold “as soon as the times seem to justify a sale without sacrifice,” and the proceeds, without regard to any advancements theretofore made, to be equally divided amongst his children, namiug them, and who were eleven in number, the children of two of them who were dead to take per stirpes; and he appointed his son, the said David T. Staples, executor of his will, and directed that no security should be required of the said executor as such. The testator died on the 1st day of July 1861. His will was recorded, and his executor qualified on the 16th day of September 1861. His estate, real and personal, was inventoried and appraised on the 5th day of October 1861, and his real estate was sold, as aforesaid, on the 9th day of July 1862. At the date of his will, and at the time of his death, six of his children resided in Virginia, and it seems in the neighborhood in which 232he died; and the remaining five,'including the children' of the two who were dead, resided in Misssouri, where they continued to reside until after the late civil war. The only question in regard to the authority of the executor to make, the said sale arises from the words of the will, which directed the sale to be made “as soon as the times seem to justify a sale without sacrifice.” It is argued that these words create a condition precedent which must take place to authorize a sale ; and that the said sale was made before the times seemed to justify a sale without sacrifice. But, who was to be the judge of that matter ? To whom did the testator refer the question as to when a sale might be made without sacrifice % Certainly to his executor, and to him only; who was one of his sons, and in whom, undoubtedly, he had great, confidence, as is evidenced by the fact not only that he selected him as his executor, but also that he directed no-security to be required in the executorial bond. He did not direct, nor seem to contemplate, that any resort should be had to a court of equity, to determine the-question as to the propriety of a sale; but left the matter exclusively to the discretion of his executor, who had himself a deep interest in the subject, and who was surrounded by brothers and sisters who were alike interested, and whom he would, naturally, advise with on the subject. The very nature and object of the trust required a sale in a short time, and as soon as one could be effected without a sacrifice. There could be no division among his numerous heirs without a sale, and they were equally entitled to the subject immediately. The fact that nearly half of them resided in a distant State increased the necessity for a speedy sale, supposing the time to be suitable, as the property could not continue to be held in kind to advantage under such circumstances. Of course he did not-wish the property to 233be sacrificed by a premature sale, when, by waiting for a short time, such sacrifice might be avoided. But he wished the sale to be made as soon as it could be without sacrifice; for he so expressly said; that is, as soon as it could be so sold, in the opinion of his executor. These words, “as soon as the times seem to justify a sale without sacrifice,” seem to have been used, as much for the purpose of accelerating the sale as soon as it could be made without sacrifice, as for the purpose of showing that he did not require it to be made until, in the opinion of his executor, it could be done without'sacrifice. Probably, when the will was made, land in the testator’s-neighborhood was not very saleable, but was likely soon to become more so. Then, the only remaining question in this branch of' the case, is: Bid the executor act in good faith, in making the sale at the time at which it was made ? Did the-times then seem to him to justify a sale? Did it seem, to him that a sale could then be made without sacrifice? If he acted in good faith in making the sale, it was-valid, whether his judgment that a sale could then be-made without sacrifice was reasonable or not, under all the circumstances. And even if he acted in bad faith yet if the purchasers at the sale had no knowledge of the fact, but acted in good faith in making and completing their purchases, they acquired a good title to the land purchased by them respectively. But the court is of opinion that he acted in good faith in making the sale,, and that his judgment that a sale could then be made-without sacrifice, was reasonable, under all the circumstances. There is no evidence in the record, and there was no attempt by any body to show that the executor-acted in bad faith in making the 3ale. Though real estate may not have been very saleable in the neighbor234hood when the will was made, it became more so after-wards ; and about the time the sale was made, prudent men were making sales of their own land, with a view to 'their interest. That the sale was made for Confederate money> can make no difference : A sale could be made for no other money at.that time, nor at any time afterwards during the war. It was then very doubtful when the war would terminate, and there was no good reason to believe that it would terminate in any short time. The executor had deferred the sale until about a year after the testator’s death, and there seemed to be no good reason for deferring it any longer. Most, if not all of the heirs residing in Virginia desired a sale, and none of them opposed it. That nearly half in number of the heirs resided in Missouri, whose wishes on the subject were not known, makes no difference. Though they could not, in the then state of the country, receive their portions of the proceeds of sale, yet it was well hoped that they might be able to do so in a short time. The heirs living'in Virginia could receive their portions at any time, and those of the non-resident heirs it was no doubt believed, and reasonably believed, by the executor, could be held and secured for them until they could receive their portions. That sales of real estate might properly be, and were frequently made during the war, for Confederate money, under decrees of courts of chancery and by fiduciaries, where non-residents and persons under disability were concerned, has been established by repeated decisions of this court. Dixon & als. v. Mc Cue's adm'x als., 21 Gratt. 373; Walker's ex'or v. Page & als. Id. 636; Poague v. Greenlee's adm'r & als., 22 Id. 724. Though Confederate money had depreciated, and was perhaps still depreciating, at the time of the sale, yet most persons then hoped and believed that it would soon become better, and ultimately be worth its 235par value. At least it was generally, if not universally believed, that Confederate bonds, in which Confederate money could at any time be readily invested, were a perfectly safe investment. Scarcely any body in the Confederate States then doubted the success of the Confederate cause, and perhaps every body believed that in that event those States would be able to pay, and would pay, the entire amount of their debts, great as they would certainly be. The court is further of opinion, that the said sale was not void or voidable on the ground of inadequacy of price : and that the price at which the property was sold :at said sale, cannot be considered as inadequate, under the circumstances which then existed. There is no evidence in the record tending to show that any of the property sold did not produce its full value in Confederate money, on the terms on which it was sold. On the contrary, the evidence in the record affirmatively shows, that all of the said property produced its full value, in •such money and on said terms. The sale was duly advertised, and was well attended by bidders, and every effort in the power of the executor seems to have been used by him to promote the sale. Several of the other heirs were present, and none of them objected to the sale, but all seemed to be satisfied therewith. The price at whicii the property was sold in Confederate money converted into gold at its then market value, at the place where the sale was made, would have exceeded the appraisement price of the property; but we all know that at that time gold was a very scarce commodity and commanded very high price, and that Confederate money was often worth its par amount, or nearly so, in the payment of ante-war debts, or in the purchase of land or other property. In considering the question of inadequacy of price, the value of the Confederate money for 236which the land was sold ought to be estimated as at the . time of the sale, and not as at the timeat which it became payable according to the terms of sale. Ho body anticipa,ted? at the time of the sale, that there would be any thing like so great a depreciation of Confederate money as afterwards occurred. On the contrary, most persons, perhaps, believed that its value would continue to be-about the same, and many no doubt believed that it would appreciate after a while. The fair mode of considering the subject is, to estimate the value of the price-in Confederate money as at the time of the sale. Tested by that rule, there was certainly no inadequacy of price.. The court is . further of opinion, that the executor was-not a purchaser of Mount Airy at his own sale; but that he purchased it afterwards of S. J. Turner, who, had purchased it at the executor’s sale; and that it was-competent for the executor, acting in good faith, to become: such purchaser from S. J. Turner. It is certainly well settled, as a'general rule, that ai trustee for the sale of property can not purchase it for his own benefit at his own sale, either directly by his own act, or indirectly by the interposition and agency of another; and that an executor is a trustee within the-meaning of the rule. But it is certainly true, that an executor or other trustee can lawfully purchase, for his own benefit, property, though it may have been previously purchased by his vendor of himself as such executor or other trustee; provided, of course, that the transaction be real and bona fide. ■ If the sale by the-trustee be a sham sale, of course it is fraudulent, and if not absolutely void, it can not enure to the- benefit of the trustee, but only to that of the cestui que trust: How the question in this case is, was S. J. Turner, to whom Mount Airy was cried out at the executor’s sale, a pur■chaser of that property for his own benefit and on his-237■own account, or did he purchase it as the secret agent and for the benefit of the executor ? Certainly S. J. Turner was the highest bidder for property, and it was cried out to him at the executor’s sale. He was in form and to all appearance the purchaser at that sale.' If, though in form acting for himself he was really acting for the benefit and as the agent of the executor, their object being to accomplish indirectly and secretly, what they knew they could not accomplish directly and openly, they were both guilty of a great fraud; but in order to establish such a fraud, the evidence ought at least to be very strong. ■ There is no such evidence if there be any evidence tending to prove such a fraud in this case. On the contrary, all the evidence in the case is consistent with the truth and integrity of the transaction. The account given of it by said Turner in his answer is as follows: “Respondent represents that Mount Airy was at the sale knocked out to him, and not to the said D. T. Staples. Respondent bought said place because he was anxious to secure it as a home to his mother-in-law, the widow of JDavid Staples, and his sister-in-law, then living with her mother. At the time of the sale he believed that he could prevail upon David T. Staples to take the purchase off his hands, though said D. T. Staples was very much averse to doing so, and had urged upon respondent and the other legatees not to sell Mount Airy, but allow it to remain for the present unsold; and be used as a home for their aged mother and their maiden sister. This arrangement was not assented to by the parties; they positively refusing so to do, and insisting that the property should be all sold together. Thereupon respondent determined to buy the property aforesaid; and having done so, prevailed on said Di T. Staples to take his shoes, which he did. Said D. T. Staples, as executor, first con-238v<Aec^ sa^ ’property to respondent, and respondent then conveyed it to him, and he afterwards conveyed it ° ^arQR' Respondent is sure that in respect to this purchase of Mount Airy, the said D. T. Staples acted from the purest motives, and with no view to his personal advantage. The old lady was very infirm, and her husband had made very inadequate provision for her. Respondent, under the circumstances, regarded it as the duty of her children to secure to.her a home, and on his part he made this purchase with a view to that end only.” D. T. Staples, in his answer says: “ As to the sale of Mount Airy, charged in the bill to have been made by respondent to himself, he desires to refer to the answer of his co-defendant, Turner, which relates the truth of the case. Respondent never wished to purchase said property. He l ever would have consented to Turner’s proposition but for the earnest entreaties of the family, who were anxious that respondent should take the house, which was the old homestead, and allow their aged and very infirm mother to occupy it with himself and his unmarried sister. This step was rendered necessary fertile comfort of the old lady, the provision for her maintenance having become wholly inadequate early in the-war. The price at which said property sold was' its. full value at the time. A large company of land buyers was present at the sale, and every effort was made to-procure the fullest price.” „ The evidence on this branch of the subject consisted, of the testimony of one witness, W A. Staples, examined in behalf of the plaintiff's, and three witnesses^ Bryan Akers, E. B. Mays and C. H. Rucker, examined in behalf of the Camps, the sub-purchasers of Mount. Airy from D. T. Staples. On the one side, W. A Staples testified as follows i 239“I was at the sale. Turner and Staples had some conversation about Mount Airy. Turner advised Staples to purchase it; that it would suit him. The replied he had no right to buy, being executor, &c.; intimated or expressed that it would suit him, &c.” On the other side, Bryan Akers, who was the auctioneer that conducted the sale, testified as follows; “ There wae a large crowd present when the sale was made, and the prices obtained were considered good prices at that time, and I think were perfectly satisfactory to the legatees present. Mr. Turner, the son-in-law of David Staples, became the purchaser of the place called Mount Airy, and the price paid for it was then considered a good one. D. T. Staples, W. A. Staples, and one, if not both the Turners,(legatees of D. Staples,) were at the sale.” E. B. Mays (who had married a sister of S. J. Turner) testified that he was present at the sale. There was a large crowd present. At the time, the prices obtained were regarded as good. S. J. Turner became the purchaser of Mount Airy, and after the sale offered to sell it to the witness, but sold it to D. T. Staples to secure a home for his (the witness’s) wife’s mother, as said Turner told the witness. C. H. Rucker testified as follows: “ I was at the sale. I regarded the prices obtained as very good. I was a bidder for Mount Airy, and it sold for more than I was willing to pay for it. I ran it up, I think, above $7,000. I regarded it a good sale. I was pretty well acquainted with that property and had been over it a good deal. D. T. Staples, Jno. L. Turner and Samuel J. Turner, (legatees of David Staples,) were present at the sale. I do not remember whether W. A. Staples was present. (In fact he was.) I have never heard from any of the legatees that they objected to the sale. I was a purchaser of one piece of the property at the sale.” 240Thus it appears from the evidence, that S. JV Turner was, bona fide, the purchaser of Mount Airy, on his own at the executor’s sale; that after the sale he claimed it as his own property and exercised acts of °™hiP over firsb by offering to sell it to Mays, who married his sister; and then by selling it to D. T. Staples, who bought it as a home for his mother and sister; that this arrangement was agreeable to all the legatees who were present at the sale; and that the property produced the best possible price that could be obtained' for it, without being in the least degree influenced by the [fact that S. J. Turner was the purchaser at the sale, or the fact that D. T. Staples became a sub-purchaser from him; which latter fact had not then transpired, and of course could not then be known to the bidders at the sale.. It does not appear from the evidence that there was any agreement or understanding between D.T.Staples and S. J. Turner, when the latter became the purchaser of the property, that he would resell it to the former; and it is very clear that no such resale could have been enforced, if Turner had chosen to continue to own and hold the property. The subsequent purchase by D. T. Staples appears to have been voluntary on his part, induced by the laudable desire of himself and the other legatees who were present, to preserve the family residence as a home for their aged mother and maiden sister. Under these circumstances, there was nothing in the law to prevent these parties from making this humane arrangement, and it was competent for.D. T. ■Staples to purchase the property, as he did, from. S. J. Turner. It was argued by the learned counsel for the appellants, that by making the purchase, D. T. Staples placed himself in a wrong position, in which his interest conflicted with his duty; that it then and thus became his interai 241to accept Confederate money in discharge of the deferred instalments of the price of the property, however greatly the value of such money might depreciate in the mean time; while it might be his duty to refuse to receive it, on account of such depreciation. The books afford no authority for saying that such a circumstance will disable a trustee from purchasing property which had once constituted a part of the trust subject, and had been sold by him as such. S. J. Turner having become the bona fide purchaser of the property on his own account, could sell it to whomsoever he pleased, subject, of coui’se, to the payment of the purchase money due by him, and D. T. Staples had the same right to make the purchase of S. J. Turner that any other person had. It could no more make it to the interest of the executor to do wrong in the execution of jhis trust than a like purchase of property, at the same time and on the same terms, of any other person would have done; and nobody will say that it would have been incompetent for him to have made such a purchase. That an act may make it the interest of a trustee to do wrong,, does not, of itself, necessarily make the act unlawful. It may serve to put us on the alert, and cause us to scrutinize closely the conduct of the trustee; but the question, after all, is, whether the trustee has in fact done wrong or not. In this case, when the purchase was made by X). T. Staples of S. J. Turner, which was probably about the time of, though after the executor’s sale, it did not and could not appear that the purchase would make it the interest of the executor to do wrong, or influence his conduct as executor in any way. Hobody then knew that there would be any material depreciation of Confederate money when the deferred payments would mature, but most people hoped, and perhaps believed, that such would not be the case. Had they not so 242hoped and believed they would not, about that time, have made sales of property for Confederate money, payable at future periods, without providing against the effect of such depreciation. The court is further of opinion that D. T. Staples having lawfully become the purchaser of Mount Airy of S. J. Turner, had a right to resell it to the Camps, whose title, therefore, cannot be impeached: and this renders it unnecessary to consider the ground so much pressed by their learned counsel, in argument, that even if the purchase was made by S. J. Turner, at the executor’s sale, for the benefit of the executor himself, yet the Camps were bona fide subsequent purchasers without notice, and entitled, as such, to the property, against the claims of the appellants. The court is further of opinion that D. T. Staples is chargeable with nothing on account of the resale by him of Mount Airy to the Camps. He would have been chargeable with nothing on account of such resale, even if he had made a profit by it; his conduct in the transaction having been fair and bona fide. But it appears that, so far from making a profit, he sustained a loss by it; for though the resale was for a larger amount, nominally, of Confederate money than he paid for it, yet, reducing the amounts both paid and received to good money or gold, at the times of such payments and receipts respectively, it appears by the commissioner’s report that the amount paid exceeded the amount received by $695.83. The court is further of opinion that the executor, JD. T. Staples, did not commit a breach of trust in receiving Confederate money in payment of the deferred instalments of the purchase money of the real estate at the maturity of those instalments; and the purchasers at the sale, having in good faith paid the nominal amount of 243the purchase money due by them; and the executor having in good faith received such payment in full discharge of said purchase money, and executed the proper conveyanees, the said purchasers became entitled, in law and equity, to the property purchased by them respectively; and their title thereto cannot, therefore, be impeached. The contracts of sale by the executor in this case being made on the 9th day of July 1862, though made for so many dollars merely, were, no doubt, according to the true understanding and agreement of the parties to be fulfilled or performed in Confederate States treasury notes, or were entered into with reference to such notes as a standard of value; and if the purchase money had not been fully paid during the war, the case would have come within the operation of the adjustment acts, and been settled accordingly. But, one-third ol the purchase money was paid in hand, and for the other two-thirds negotiable notes were given, (certainly by A. B. Rucker, and no doubt by the other purchasers also,) payable one and two years after date, according to the terms of sale; which notes appear to have been pune, tually paid at maturity; of course in Confederate States treasury notes. The money had greatly depreciated between the date and the maturity of the negotiable notes, no doubt greatly beyond the expectation of the pai’ties at the time of the sale. But, still the parties considered that the said notes were solvable in Confederate money at par, at the time of their maturity; and such payment was accordingly made by the purchasers, and received by the executor, in discharge of the said notes; and the property was thereupon duly conveyed to the purchasers thereof respectively. These acts of the purchasers and of the executor were done, and this settlement between them was made in perfectly good faith; and theyough not now to be undone or disturbed; whatever might 244have been the rights of the parties after the war and under the adjustment acts, if the transaction had not been fully settled, as aforesaid, during the war. This settlement was made in accordance, it is believed, with the general understanding of the country in regard to the construction and operation of such contracts’; and similar settlements have no doubt been made, by fiduciaries and others, in a great many cases, which it would be productive of a great deal of evil, confusion and loss to unravel and set aside. It is far better to let such settlements, made during the war, remain as they were-made by the-parties, than to attempt now to do justice by setting them aside, and making new settlements for the parties. Courts have enough to do, in regard to these transactions, in settling such of them as remained unsettled at the end of the war. The preamble of the. adjustment act of March 3, 1866, affords some idea of the difficulty attending the adjustment of these unsettled matters. After reciting that a depreciated currency, known as Confederate States treasury notes, constituted the only or principal currency, in the greater part of this-State, during the late war, and that the result of said war involved the total destruction of said currency, the preamble proceeds to recite, that “whereas there are many contracts which were made, or obligations which were incurred, befóse the termination of said war, predicated . on said depreciated currency, still remaining wholly or partially unadjusted; in respect to which great uncertainty exists, perplexing alike to debtor or creditor, as to the present measure of their liabilities and rights respectively ; and it thus appearing useful that some uniform and equitable rule should be established for the adjustment of such mutual-demands and liabilities: Therefore,” &c: That it was the policy of this act not to disturb-settlements of these transactions actually, made between 245the parties is shown by the proviso' of the 2d section, “ that in all cases where actual payment has been made of any sum of such Confederate States treasury notes, either in full or in part of the amount payable under sueh contract, the party by or for whom the same was paid, shall have full credit for the nominal amount so paid, and such payment shall not be reduced.” The 4th section of the act in regard to a tender, serves to show the view of the legislature as to the effect, not only of actual payment of a Confederate deot, but even of a tender of the amount-, on or after the maturity of the debt, and within the period prescribed by the act. We think, therefore, without enquiring what would be the most reasonable construction of such a contract, if the question ivere a new one, that wherever the parties have, during the war, bona fide settled the matter themselves, as in this case, by paying on the one side, and receiving ■on the other, the amount of a Confederate debt at its maturity, in Confederate States treasury notes, the transaction ought, forever, to stand and remain as thus settled. The court is further of opinion that the payments made by the executor to the resident legatees, on account ■of their interest in the proceeds of the sale of the estate, were rightful and proper payments; that the executor •committed no breach of trust by retaining in his hands, as he did, the portions which belonged to the non-resident legatees, and in depositing the same in bank, under the order of the court, as he did; and incurred no liability in regard to the same, except for the depreciation ■of the money so deposited, between the time it ought to have been deposited under such order, and the time it was actually so deposited; with the amount of which depreciation he has been charged by the decree of the court below; and that the loss arising from the deprecia246^011 ^e P01’tions retained by the executor and deposited in bankfor the non-resident parties as aforesaid, 0l1S^lt ^o on them alone, and not on all the legatees equally, including those residing in the State; and that proceeds of the sale of the Amherst bonds were-rightly decreed by the court below to belong to all the legatees equally, and not the non-resident parties exclusively. It appears that the executor promptly and fully paid, to the resident parties their portions of the estate, and there is no complaint on their part against him in thatrespeet, although no account between him and them was-stated by the commissioner. Those parties residing here,, and being entitled to, and ready to receive, their portions, it was the duty of the executor to pay them. But the other parties residing out of the State, and cut off' by the war from all communication with the executor, it was out of Lis power to pay their portions, and he was compelled by necessity to retain them until the end of' the war. He retained them safely in his own hands until he made the deposit in ba,nk under the order of court, as-aforesaid. It does not appear that he was in any default in not having obtained the order for the deposit, at an earlier period. The order was made very soon after the second deferred instalment was paid. He-could not know how long it would be before the nonresident parties could receive their portions. He seems-to have acted in good faith in retaining the money in his own hands as long as he did. He says he was no-speculator, and it is not pretended that he derived any p'rcfit from the money, or used any part of it for his own benefit, although he is charged in his accounts with interest upon it while it remained in his hands The-estate of his testator was indebted to a large amount, which exhausted the greater part of the cash payment 247for the real estate. The executor himself was a creditor of the estate, by bond and note, to the amount of upwards of $3,000, which was no, doubt, a special debt, and is charged to the estáte in the executorial account, as of the 14th of August 1862; being then paid in Confederate money. The executor having properly paid the portions of the resident parties, and set apart, and first retained and then deposited in bank, the portions of the non-resident parties, it follows that the loss arising from the depreciation or destruction by the effects of the war, of the money constituting those latter portions, must fall exclusively on the owners thereof, to wit, the non-resident parties; and all the rest of the estate having been divided equally among all the parties entitled thereto, it follows, as a matter of course, that they are all equally entitled to the only estate remaining foi distribution, to wit; the proceeds of the sale of the Amherst bonds. The resident legatees had a right to receive their portions, and did accordingly receive them, leaving the portions of the non-resident legatees in the hands of the executor. That the latter legatees could not receive their portions, by reason of their non-residence and of the war which then- existed, was their misfortune, and is not attributable in the least degree to any fault of the resident legatees; who are,therefore not bound, upon any principle of law or equity, to bear any part of the loss arising from the depreciation of the money retained and set apart by the executor as the portions of the nonresident legatees. The money so retained and set apart was deposited in bank by the executor, in the names of the owners thereof, the non-resident legatees respectively, according to Ihe order of the court, and so remained on deposit until Confederate money perished by the result of the war. Of course, the loss must fall exciu248s^ve^ on ^e said owners of the money so deposited. If is said' the non-resident legatees never consented to receve ^lose portions, which, therefore, were not theirs. Such consent was not necessary to make them theirs. The' resident legatees had of right received their portions, leaving the residue of the funds in the hands of the executor; and the case then stood as if that residue had constituted the whole estate and the non-resident legatees were the only distributees thereof. The executor throughout the course of his management and administration of his testator’s estate,acted within the scope of his powers and, so far as the record shows, in perfectly good faith. It does not appear that he acted in any respect as a prudent man would not have acted, and did not often act during those extraordinary times, in regard to his own property; and these are considerations which have always had very great, if not con-1 rolling, effect in controversies in regard to the responsibility of fiduciaries in such eases. He acted with the advice and at the instance of all the resident parties, except, perhaps, one of them, who, however, did not object, was present at the sale, and received his portion of the money. And what is still more important to show the good faith with which the executor acted, he consulted able counsel and acted in pursuance of the advice and instructions of such counsel. The court perhaps, can not judicially know the moral character and pi’ofessional standing of any particular counsel; but the executor says that he retained as his counsel the late Chiswell Dabney, Esq., who had been the trusted friend and legal adviser of the testator, and that he strictly pursued the advice of said counsel in regard to all his transactions as executor. That counsel is spoken of in the record as having been distinguished for his carefulness, ability and uprightness, aud there is nothing in there-*249cord tending to show the contrary. The record shows traces of the advice of good counsel in the management of the estate ; the executorial accounts having been regularly settled every year, and returned, confirmed and recorded. It would, at least, be a very hard case if, under all these circumstances, the executor should.be held personally responsible for the loss which has occurred. Certainly that loss is very great; and it has fallen, more or less, on all the parties concerned; though especially on the nonresident parties, by reason of the aeccident of their non-residence. But this loss has been the result, not of misconduct, but of misfortune, against which human foresight could not guard. Many of our wisest and best men lost their whole estates, after using every means which their wisdom suggested to avoid such a loss. Fiduciaries are fallible like other men, and can not be expected or required to take better care of the estates of others entrusted to their hands, than men of ordinary prudence take of their own estates. It is not strange therefore, that infants, and insane persons, and married women, and non-residents who owned property within the Confederate States during the war, sustained losses as other people did, and were involved in the same calamity which overwhelmed almost all who were in a like pre dicament. Upon the whole, we think there is no error in the decrees appealed from, and that they ought to be affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481835/	Anderson, J., concurred in the opinion on all the points discussed, but one. He thought the money deposited in the Lynchburg Savings Bank should have been at the risk of all the legatees. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481837/	Anderson, J., delivered the opinion of the court. 258The covenant is a joint one, to pay to Mrs. Sally P„ • Ecdes, annually during her life, in consideration of her relinquishing her life estate, three hundred dollars. The provision that each of the four covenantors, in order to secure the payment of the $300 annually, should execute their bonds to her severally, with security for the payment annually of $75 each, does not release them from the joint obligation, at least until that was done, until each of the four obligoi’s had executed his bond with security, as provided. That not having been done, the joint obligation to pay $300 annually is.a subsisting one. Mrs. Eodes might, in her life time, have maintained an action at law against them join tlyjupon the covenant; but since her death, one of the joint covenantors being her personal representative, he could not maintain an action at law upon the covenant; because it being joint, an action of covenant could only be maintained against them jointly, and he was one of them. It is clear that at common law a party can not sue himself, either alone or in conjunction with others. Stor. on Part. § 221. In an action by several, as executors, a plea in bar that the promises were made by one of the defendants, jointly with one of the plaintiffs, is sufficient. 1 Chitty Plead. Marg. p. 26, citing 2 Bos. & Pul. R. 124. Upon the technical principles of the common law, no person can maintain a suit against himself, or against himself and others. The objection is at law a complete bar to the action. 1 Stor. Eq. Juris. § 679. But in equity there is no difficulty. It is sufficient that all parties in interest are before the court, either as plaintiffs or defendants. They need not, as at law, be on the opposite sides of the record. Ibid. § 680. Although in such cases there is no remedy at law, yet in equity an appropriate remedy maj and will te.granted whenever 259it is ex equo et bono necessary and proper. Stor. on Part. § 222; 2 Bos. & Pul. 124; 6 Taunt 605. The court is therefore of opinion, that a bill in equity was the proper remedy of the administrator cum testamento annexo, of Mm. Sally P. Bodes to enforce the joint covenant in which he was one of the covenantors; and that it was error to sustain-the demurrer and to dismiss the plaintiff’s bill for \yant of jurisdiction, which is the only point in the case. The court is of opinion, therefore, to reverse the decree of the Circuit court, and remand the cause for further proceedings to be had therein in conformity with this opinion. Since this opinion was written, my attention has been called by j. "Staples to the decision of this court in Booth v. Kinsey, 8 Gratt. 560, by which we are fully sustained. See J. Mon cure’s opinion, p. 562. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481838/	Staples, J., delivered the opinion of the court. This is an appeal from a decree rendered by the Circuit court of Pittsylvania county. The parties to the controversy are the legatees and devisees of Nathaniel Wilson deceased. The questions to be decided grow out of a contest as to the true interpretation of the testator’s will, and a proper division of his estate. Mr. Wilson, by his will executed on the 3rd of December 1847, and admitted to probate in October 1857, gave to his wife for life, subject to certain bequests in said will contained, all his real and personal estate, to be held, controlled and managed by her at her entire discretion ; and he authorized her, as her children became of age or married, to give them or either of them, including 265Mrs. Martha C. Cabell, such part of her estate as she might think she could conveniently spare; she being the sole judge of it in every respect. At the death of his wife, he directed the whole of his estate to be equally divided among his children; such of them as had already received, or who might thereafter receive, any part of his estate, to account for it upon a division. In conformity with the authority thus vested in her by the will, Mrs. Wilson, in the month of September 1858, divided among the children a valuable tract of land belonging to the estate ; and in December of the same year she distributed among the same parties a large number of slaves. Mrs. Cabell, however, was not permitted to participate in this division. Her share, or supposed share, both in land and slaves was designated and set apart by the persons acting as commissioners, but they were retained by Mrs. Wilson in her own possession, used and enjoyed by her until January 1865, when after the death of Mrs. Cabell, both land and slaves were placed in the possession of the guardian of the children. In the mean time, however, one of the slaves thus designated had died, and the land had from various causes been much injured and greatly diminished in value ; so that the share or portion received by Mrs. Cabell’s representatives was not equal to that received by either of the legatees and devisees of Mrs. Wilson’s estate. It is very clear that thus far gross injustice has been done Mrs. Cabell in the division of the estate. The main controversy between the parties is as to the mode and manner of the redress to be adopted by the court. There can be no serious question but that the division of the estate made by Mrs. Wilson in 1858; constituted an advancement to each of the children participating in that division. It is equally clear that the value of the 266advancement must be accounted for at the time it was made. This is the general rule, and there is nothing in the circumstances of this caseto justify a departure from it. The division of the land was first made under a decree of the Circuit court; but objection being made the decree was set aside and the suit dismissed. Mrs. Wilson, however, persisted in her purpose of having a division, which was formally and regularly made, and a deed of release executed by her and accepted by the donees. They were put in possession of their respective portions, and they or their alienees have ever since been in the enjoyment of the rents and profits. They would have been entitled to any benefit resulting from an appreciation of their respective estates, and they must be content to submit to any loss arising from the depreciation. The same rules must apply to the slaves. The division and allotment were regularly made, the legatees were placed in the possession of their respective portions by Mrs. Wilson, and they were ever thereafter regarded as the absolute owners, exercising complete dominion over the slaves, enjoying all the advantages of their increase and their services, under a title unquestioned and unquestionable. This view is fully sustained by the will of the testator. He authorized Mrs. Wilson to give to his children or either of them such portion of his estate as she could conveniently spare. It was not his intention that what was so given by her should ever be returned; unless perhaps, indeed, it might be essential to an equal division of his estate; but that the part received, should be accounted for upon a final division. It is difficult to imagine a stronger case for the application of the rule fixing the liability for the value of the advancement when made. In regard to the charge of interest upon the advancements, no exception was taken in the court below to the 267■report of the commissioner for fhe failure to allow it; •and it may be a question how far it is competent to urge ■the objection/or the first time in this court. ■ However this may be, the general rule is, that the 'legatee or distributee is to be charged with the value of ■the advancement without interest. There is nothing in ■the will of Mr. Wilson or the circumstances of this case ■which requires the application of a different rule. In the next place, it is very clear that Mrs. Cabell was not advanced along with the other children in 1858. ’ The mere act of designating a tract of land and a lot of slaves as hers, did not constitute an advancement in any ; sense of the word. It gave her no title to or control of the property. It was never placed in her possession, nor did she ever receive the slightest benefit from it. It •nan not be regarded as a present advancement, because there was no possession so as to bestow immediate enjoyment or opportunity of enjoyment; nor could it •operate as a future advancement, because the gift was not executed. If Mrs. Wilson had died without perfecting it by a delivery of the possession, Mrs. Cabell would have had no valid claim to this or any other spe•cific portion of the estate, hut only a right to participate in the undivided residuum. And even if it can be regarded as a future advancement, its value must be ■estimated at the time the gift substantially took effect, which was in January 1865. The real difficulty lies in ■fixing a rule by which such value may be fairly ascertained. As a general rule, the price which property eommands in market is the safest standard of value. Hut clearly that would not to be a just standard in this •case, as applied to the negroes received by the children ■pf Mrs. Cabell in January 1865. The negroes remained in their possession a little over two months; when they were emancipated by the results of the war, and the 268ev^ence tends strongly to show that during this time they were of but little sérvice to the children. Taking into consideration the time when this advancement was made, and the circumstances attending the transaction, it would be grossly unjust to the infants to charge them with eighteen thousand dollars, the market value of the the negroes, and then, by reducing that to gold, to hold them responsible for the amount thus ascertained. On the other hand, the Circuit court erred in holding that the negroes had ceased to be slaves in Jan. 1865. They were recognized as slaves dy the Constitution and laws in force at that time in all this region of Virginia. They were received and employed as slaves by the guardian, until the termination of the war, and though of little real value or service to the parties, whatever it was, they m ust be charged with it. So far as the land is cóncerned, the same observations apply to some extent. For reasons too obvious to mention, it would not be just to the other legatees to estimate the value in Confederate currency and to charge the children with the gold value of such currency. It must be admitted there is always some difficulty in adopting a standard by which to assess the value of real estate during the existence of the war, especially at the period immediately preceding the close of the struggle. The difficulty is, however, more apparent than real; as will be seen by reference to the history of a number of cases decided by this court. Meredith v. Salmon., 21 Gratt. 762; Pharis v. Dice, Ibid. 363; Kraker v. Shields, 20 Gratt. 377. It is no more difficult to ascertain the value of a tract of land in the present currency in January 1865, than in May, or August, or September of that year. Accordingly, I think the commissioner should have been directed to estimate in the present currency the value of 269the tract in question at the time it was turned over to the children by Mrs. "Wilson; and for that value they should be held accountable. Without intending to press any decided opinion upon the subject, the weight of the evidence indicates that the Circuit Judge somewhat underrated the value of the land in fixing it at eight dollars per acre. As, however, the report of the commissioner has to be reformed in other respects, the parties will have an opportunity, if they desire it, of adducing additional testimony upon this point. The only remaining matter for consideration is in respect to the charge against Mrs. Puryear for timber taken by her husband from lands belonging to the estate. It is very clearly proved that Puryear, with the consent of Mrs. Wilson, appropriated to his own use large quantities of this timber; that it wa3 received by him and his wife as an advancement, and was so regarded by Mr3. Wilson and the Circuit court was entirely correct in so treating it. Por the errors already adverted to in regard to the valuation of the land and slaves, the decree must be reversed and the case remanded for further proceedings in conformity with the views herein expressed; but in every other respect is affirmed. The other judges concurred in the opinion of Staples,J. The decree was as follows : The court is of opinion, for reasons stated in writing and filed with the record, that the negroes delivered to the guardian of the appellees, the children of Martha C. Cabell, dec’.d, in January 1865, were slaves at the time of such delivery, recognized as such by the" Constitution and laws then in operation, and so treated and used by the said guardian until the close of hostili270ties. ' The Circuit court, therefore, erred iu holdina- they ° were not the subject of advancement. And although. the said appellees were not liable for the market price-of said slaves, estimated in Confederate currency reduced. to gold, as reported by the commissioner, they are chargeable with the fair value of said slaves, or for their services during the period they were under the control of said gua3-dian. The Circuit court ought to have directed an enquiry by its commissioner, with the view to ascertain the sum or amount properly chargeable against the said appellees upon the basis herein indicated ; the evidence not warranting the opinion of' the said Circuit court that said slaves were practically of no value, but rather an expense to the infant children ~ The court is further of opinion, that the tract of land-received by the guardian of the infant appéllees in Janary 1865, constitutes an advancemént as of that date, to-be accounted for by them at its then existing value. The-Circuit court, however, ei’red in fixing the price to bo paid by the appellees at eight dollars per aci-e; that estimate, acco3-ding to the weight, of the evidence, being-below the i-eal value of the ti-act. In the present aspect of the case, it is not deemed advisable for this court to indicate any opinion as to what precise sum is cha3-geableupon the - appellees in this respect. The whole subject is peculiarly pi’oper for enquh’y by a commissioner óf the-court, upon the testimony ali’eady- in the recoi'd, and such further evidence as -the parties may desire to adduce. The commissioner should be directed to enquireinto and 3-eportthe i-eal value of the tract in question in January 1865, estimated in the present currency of the-country, and with that amount the said appellees should becha3-ged: The cou3-t is opinion that there is no other error in the-said decree than as aforesaid. *271Therefore, it is decreed and ordered, chat so much of the said decree as is above declared to be erroneous, be reversed and annulled, and the residue thereof affirmed; and that the costs of the appellants and appellees in prosecuting and defending this suit respectively, be paid out of the proceeds of the sale of the land decreed to be sold in this case, by the commissioners who may make such sale. And it is ordered that the cause be remaded to the said Circuit court for further proreedings to be had therein to a final decree, in conformity with the foregoing opinion and decree. "Which is ordered to be certified to the said Circuit court of the town of Danville. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481841/	Anderson J., delivered the opinion of the court. This is an action of debt to recover fifteen thousand dollars, alleged to be due aud owing the plaintiff, by the defendant. The first count in the declaration demands the debt of $15,000, in the gold currencv of the United States of America, with interest thereon from the first day of January 1864. The second count is for the interest. It is not written out; but it is agreed by the counsel'of both parties, that the court may treat the declaration as if it contained a separate count for the interest; which agreement was entered on the record. The action is founded upon an act of assembly, passed 297the first of March 1867, which is entitled “An act to authorize the James River and Kanawha Company to borrow money.” The defendant demurred generally to the declaration, and to each count thereof, and the plaintiff joined in the demurrer. The defendant then pleaded nil debit; and the plaintiff took issue thereon. “At common law an indenture, or deed inter paries, is only available between the parties to it, and their privies; and third parties can maintain no action thereon, though made for their benefit.” Though this rule does not apply to deeds poll, it must manifestly appear that the covenants were made for the benefit of the parties sueing thereon. Jones v. Thomas, 21 Gratt. 96. In Fellows v. Gilman, 4 Wend. R. 414, cited by J. Staples, in the above case, it was held that it must undoubtedly appear that the covenant, alleged to have been broken, was made for the benefit of the person bringing the action. This was an established rule at common law; and it is not changed by section 2 of chap. 116, of the Code of 1860. In the cases coming within its purview, it only gives the right of action to the person to whom the promise or covenant is not made, when it is made “for the sole benefit” of such person. It is necessary, then, to enquire: Does the act of March 1st, 1867, upon which this action is founded, create a contract or liability on the part of the Company, for the benefit of the plaintiff? The court is of opinion that-it does not. The act of 1862, to which this act refers, authorized the issue to the President and Directors of the J. R. &K. Company, registered stock of the commonwealth, not exceeding $200,000 in amount, when the said company shall execute their bond in the penalty of $400,000, with condition to return, in like registered stock of this commonwealth, such amount of said stock as may be applied under this act to the purposes therein 298designated, with interest thereon, within six years after the date of such bond. Under this act, registered stock of the commonwealth was issued to the Canal Company to the amount of $180,000: One of which bonds, to the amount of $15,000, is the subject of this suit. But the Company has not fulfilled the condition of its obligation to the State. "When, in 1867, the Company was again an applicant for an extension of its franchises, the legislature was’ unwilling to grant its prayer, except with the condition that it would fulfil this obligation; and they passed the said act of March 1st, 1867, authorizing the Company to borrow $750,000 upon the faith of .its own credit, and to execute a mortgage upon its own property and franchises, to secure its payment; but with the proviso, that the Company should recognize the $180,000 of State bonds received by it under the said act of 1862, as a part of its floating debt; which it may discharge by paying it, or delivering to the holders of said bonds an equal amount of the registered stock of the commonwealth, issued prior to the 17th cf April 1861, for the full amount of the principal and interest. Was this provision made for the benefit of the bondholder? And was it designed to fix a direct liability on the Company to him, which could be enforced by suit in his own name against the Company, with whom and himself there was no privity of contract ? Or was it designed to benefit the State, by calling in her bonds for $180,000, and extinguishing her liabilities to that amonut? A compliance by the Company with the terms proposed would give the holder of these bonds of the State au equal amount of other State bonds in their stead. If the Company borrowed the money authorized by the act, it must be held to have consente 1 to the terms 299upon which the act proposed to bestow that privilege; which was substantially to relieve the State from her liability for said debt. But it was a contract between the ■Company and the State, to which the bond-holders were not parties, and by which they were not bound. The State, by making such a contract with the Company, could not release herself from her liability, if any, to the bond-holders: That could only be done by the bondholders consenting thereto. There is nothing in the act showing their consent, or binding them thereto. And there is nothing in the record, which shows that they have by any act of theirs, consented to release the commonwealth, and look alone to the Company for the payment of bonds of the State which they hold. And the court is of opinion, that whilst the borrowing of the money by the Company, as authorized by the act, would evidence its assent to the terms proposed by the act, and would complete the contract, it only evidences a contract between the commonwealth and the Company, to which the bond-holders are strangers. And if the Company bias failed to comply with its terms, it is amenable only to the commonwealth. There was no liability of the company to the holders ■of the bonds. They were purchased, undoubtedly, upon the faith of the commonwealth, and not upon that of the Canal company. The holders when they purchased, looked alone to the commonwealth for payment, and not to the Company. The credit of the Company could not have entered into the consideration of the purchaser, and the holder had no right to look to the Company for payment. There was no relation of debtor and creditor between the Company and the bond-holder. And the court is of opinion, that the act aforesaid, prescribing terms to the Company for the benefit of the State, upon which they could exercise a privilege, did not cre300ate the relation of debtor and creditor between the Company and the bond-holders, who were not parties-to the transactions. The non-compliance of the Company with the terms, could hardly extinguish the relation of debtor and creditor between the Company and the State, and create such relation between the Company, and the holder of the State bonds. The Company having failed to fulfil the condition on which the privilege was granted, is amenable to the State, and not to strangers to the contract. If the Company was guilty of a fraud, or deceit, in the sale of the bonds in question, as bonds issued under the act of March 1860, as they purport on their face, when in fact they were issued under the act of March 1862, the holder of the bond is not entitled to redress the wrong in an action of debt against the Company. hTor does it appear by any averment in the act which is the foundation of this action, or from anything therein contained, that there is any ground for such an allegation against the Company; or that such alleged fraud or deceit of the Company, formed any part of the consideration suggesting, or moving to, the condition or proviso in the said act in relation to the said Company. If there was any liability to the bondholders on part of the Company, upon which no opinion is indicated, it could only be enforced in a different form of action. It is not averred in the declaration, nor does it appear any where in the record, that the Company ever borrowed any money under the said act of 1867. It is averred in the declaration, that it executed the mortgage to secure its bonds to be executed for money there ■ after to be borrowed, but it is not averred that any use was made of said bonds, or that the Company ever raised any money upon them. And it is the opinion of the court, that the Company could not be held to have ac*301■cepted the terms of the act, and become liable under its proviso merely by executing a mortgage, to secure its bonds to be executed for money thereafter to be borrowed, which were never issued nor made available for the borrowing of money, wffiich was the leading object and purpose of the act, and that for want of such averment the declaration iss defective and demurrable. Various other and intensely interesting and important questions were argued with marked learning and ability by the counsel; but the court considering that the points which we have commented on and very imperfectly presented in this opinion were decisive of the case, have deemed it unnecessary to consider and decide the other questions. Upon the grounds stated, the court is of opinion that the demurrer was well taken to both counts in the declaration, and that there is no error in the judgment of the court below in sustaining it, and that the same must be affirmed. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481842/	Staples, J., delivered the opinion of the court. This case has been very ably and elaborately argued; many authorities have been cited, and much valuable learning displayed. The industry and researches of counsel on both sides have relieved the court of much labor, and rendered unnecessary any extended discussion of the various questions presented by the record. I do not propose to attempt to follow the learned counsel in the wide range they have taken, but simply to give the conclusions to which the court has arrived, with a brief statement of the reasons upon which these conclusions are founded. It is perhaps better to consider the objections taken to the proceedings and decree for the sale of the appellee’s land, in the order in which they are presented by him in his petition for a rehearing. Aud first, it is suggested that the bill did not plainly state all the estate both real and personal which belonged to the appellee, as required by the provisions of the second section of chap. 128, Code of 1860. The bill states that David W. Davis, the father of the appellee, died in February 1855, intestate, seized aud possessed of a tract of land, which is the subject of controversy, and a number of slaves, whose names and ages 308are given; and that this constituted all the estate belonging to the appellee. These averments are fully sustained by the evidence taken and filed by the guardian befoi’e the decree for the sale of the land was rendered. The appellee did not attempt, in the court below, to controvert this evidence; but contented himself with a general averment, that, as he had been informed, his father, at the time of his death, was possessed of stock and farming implements which must have been worth several thousand dollars. All of which may be true, and the statements of the bill also true, as the property may have been sold by the personal representative, and the proceeds exhausted in the payment of debts. It is to be further observed that the application of the guardian for a decree to sell the appellee’s land, was based upon grounds which would have justified the sale even though it had appeared on the face of the bill that the appellee then owned all the property, claimed in his petition. But a more conclusive answer is, that although a purchaser, at a judicial sale, may be required to see to the regularity of the proceedings upon which the jurisdiction of the court is founded, he is not bound to investigate the truth of the matters stated in the bill and deposed to by the witnesses touching the estate owned by the infant. The title cannot be affected because the case made by the record happens not to be warranted by the facts. This principle received the unanimous approval of this court in Walker's ex'or vs. Page, 21 Gratt., 636, 645. It was there held that the infant cannot reopen the case, and introduce evidence to contradict that already given and relied upon by the court that entered the decree. The second -objection set forth in the petition, is for want of proper parties. It is claimed that Isaac B. Da309vis, the guardian, ought to have been made a defendant in his character as heir, inasmuch as the statute requires that “ the infant and all those who would be his heirs if he were dead, shall be made defendants: ” that the main object of this provision is to afford the infant the security derived from the presence of the next of kin before the court. The suit was brought by Isaac B. Davis, and the bill verified by his affidavit; and when he ceased to have any connection with the case as guardian, he united as surety in the bond given for the payment of the purchase money. It is clear, therefore, that in his opinion the interest of the appellee was promoted by a sale. If he had been made a party as heir, he must necessarily have assented to the statements made by himself as guardian. What other assurance could he have given ? What other representation could he have made, that would in any wise have enured to the benefit of the appellee. Are we to vacate the decree and the sale upon some vague and undefined notion that the appellee possibly has sustained damage because the party asking for the sale as plaintiff was not before the court as defendant? This would iudeed be to sacrifice substance for the merest shadow. Isaac B. Davis having hy his active agency obtained the decree, being a party on the record when it was rendered, having united with the purchaser in the execution of the bond, can never be heard to impeach that decree, or the title acquired finder it. But let it be conceded that he may impeach it, how is the appellee affected? What cause of complaint has he if the purchaser is willing to incur the hazards of future litigation? It is not for him to object to the sale because the purchaser has not acquired a perfect title. The appellee, in his petition, made the further objec310tion that Mary A. Henshaw, his paternal aunt, was not before the court. I understand his counsel, however, in the printed note of argument, as abandoning this ground, and very properly so; because, as he well said, “the court was justified in taking the statement in the bill as an averment that the said Mary A. Henshaw was dead; and that Philip T. Henshaw, one of the defendants, was her only child. In thus disposing of the objections for the want of proper parties, I do not wish to be understood as conceding, that the learned counsel for the appellee is correct in his interpretation of the statute, when he says the main purpose in view was to protect the interests of the infant, in requiring those who would be his heirs to be made defendants. This is a very grave question, not necessary now to be decided, and no opinion is intended to be expressed upon the point. The third error assigned by the appellee is, that the cause was not matured for a hearing according to law at the time the decree was rendered. The first branch of this objection, is based upon the ground, that although an answer was filed by the guardian ad litem, it was not in fact his answer, but that of the infant; and if, in any view, it can be considered the answer of the guardian ad litem, it was not verified by his affidavit. It is true the answer purports to be the infant’s by his guardian ad litem; but it is signed by the latter, and a careful reading will show that it is in fact his answer. It is the opinions, statements and responses of the guardian that are given; and however the judge or clerk may have regarded or termed it in the hurry and confusion of the court, it has the same effect as if it was formally designated and filed as the answer of the guardian in his proper person. It is also true it does not appear that the answer was 311sworn to. But it may have been done in open court, and the entry omitted by the clerk, or the paper containing the endorsement lost or mislaid during the war, at the time the public records were taken from the clerk’s office and concealed in the country. We are not to presume that the able and efficient judge then occupying the bench was ignorant of a plain provision of the statute requiring such oath, or that he would have received and acted upon an answer not in conformity with these provisions. Every reasonable intendment should be made in this court, in favor of the regularity of the proceedings below, where the contrary does not plainly appear. And this upon the maxim, omnia praesumunier rite esse acta. More especially ought this to be the case after this lapse of time, in favor of a bona pie purchaser for value, and in support of a sale clearly established to be for the benefit of the infant at the time it was made. The second branch of this objection, is, that the suit was brought to the June rules, and the defendants summoned then to appear; and yet the bill was not filed or sworn to until the 15th of September following: Consequently the suit stood dismissed for want of a bill, by the express provisions of the statute. The law certainly requires the bill to be verified by the oath of the guardian. It is perhaps more regular that this should be done when the bill is filed; but it is not indispensable. The main obj ect of the statute, in requiring such oath, is, I imagine, that the court may have the assurance, derived from the guardian’s oath, that the averments of the bill are true; that the interests of the infant will be promoted by a sale; and that the guardian himself honestly entertains this opinion. And clearly this object is fully [attained if the bill is sworn to at any time before the court acts upon it and renders the decree of sale. Here the decree was rendered at the 312November term, and the bill sworn to in the preceding month of -September; which, for all practical purposes, was the same thing as if the oath had been taken when the hill was filed. As to the other objection, that the bill was not filed in due time, it is sufficient to say, that it might have been filed at the June, July or August rules, without new process against the defendants. The decree substantially recites that the process was returned properly executed, the bill was filed in due time, and all the steps regularly taken to mature the cause as to the defendants. Upon the authority of numerous cases, these recitals must be held conclusive in this court. Craig v. Sebrell, 9 Gratt. 131; and cases there cited. The 4th obj ection is, that the depositions were taken and certified by the same person as commissioner who was acting as guardian. The learned counsel, in his printed notes, very rightly does not attach much importance to this objection, and it may be dismissed with a single remark, that there is nothing incompatible with the interests of the infant, in the guardian ad litem acting as an officer to take the depositions; nor is there any thing in the-letter or spirit of the statute which militates against it. The fifth ground presented in the petition, is the supposed error of the court in decreeing a sale of the land until the dower of Mrs. Durrett was assigned her, or she-had agreed, in some lawful way, to accept the interest upon one-third of the proceeds of sale ; and that a sale-of the land before that obstacle was removed, tended to-depreciate the market value of the property. The obvious-answer to this, is, that Mrs. Durrett, in conjunction with her husband, filed her answer to the bill, consenting to a sale. The sale was accordingly made, and her part of the proceeds, no doubt, properly secured to her. So far from the market value of the property being depreciated 313by this course of proceeding, the infant was benefited by a sale of the entire tract unencumbered with the lien of the dower estate. The sixth and main objection, was reserved by the learned counsel for appellee, to be last presented in the petition. It is that Isaac B. Davis, in whose name the bill was filed, was never the legal guardian of the appellee; he having been appointed by the Circuit court of Greene county “in chancery sitting.” It is insisted that the Chancery courts are not authorized to appoint guardians for infants: but that this power appertains exclusively, to the Circuit or County courts in the exercise of their common law or probate jurisdiction. There is no question but that the English courts of chancery from an early period, have assumed as a part of their jurisdiction, the power to appoint guardians where no testamentary guardians existed. However it may have originated, or upon whatever principle or necessity founded, it is now an established doctrine of these courts, and is never called in question. Tyler on Infancy and Coverture, page 254; 2 Story Eq. Ju., sec. 1333. In some of the States of the Union chancery guardianship, as recognized in England, has never been adopted; but the jurisdiction in such cases is confided exclusively to surrogates’ or orphan’s courts; special tribunals bearing in many respects a strong resembelnce to the English ecclesiastical courts. They are clothed with power to issue letters of guardianship, to revoke them when necessary, and to supervise generally the conduct of such fiduciaries and the settlement of their accounts. The whole matter is regulated by statute, the chancery jurisdiction in such cases being wholly unknown. In Virginia the practice in the earlier history of the country was in conformity with the English course of 314proceeding. As far back as 1795 the General court determined it tad no authority in the matterof appointing guardians. 3 Rob. Prac. 467. And in Ficklin v. Ficklin, 2 Va. cas. 204, the same court in 18'20 decided that the appointment of a guardian by election of the infant, after he arrives at the age of fourteen, is made on the chancery side of the County court, and not on the common law side. In a note to that case Judge Brockenbrough states that the Superior courts of law in this State had uniformly refused to.appoint guardians, and receive the election of infants. And he expresses the opinion that, as the courts of chancery have such a controlling power over the estates, government and education of wards, and over the conduct of guardians, they are the proper tribunals before whom the election by an infant of his guardian should be made. It will be observed that Judge Brockenbrough is speaking of guardians by election of the infant. He did not mean, I take it, to suggest that a different jurisdiction prevailed as to infants who had attained fourteen and those who were under that age. In the nature of things no such distinction could ever exist unless established by some express legislative enactment. The reference is no doubt, to the rule of the common law by which the minor, upon reaching the age of fourteen, was competent to select his guardian, and the person thus selected, if possessed of the proper qualifications, was invariably appointed by the court. According to the authorities just cited, it is clear that prior to the revisal of 1819, and subsequent to it, the Chancery courts exercised the power of appointing guardians; and they were considered the only tribunals clothed with the power of making such appointments. They must equally possess it now, unless a change Was made by the revisal of 1849-’50. The settled rule, however, in construing the Code, is, that the old law was 315not intended to be altered, unless such intention plainly appeal's. Parramore v. Taylor, 11 Gratt. 220; Owners of Steamboat Wenona v. Bragdon, 21 Gratt. 685. The statute found in the Code of 1849, merely declares that the Circuit, County or Corporation court of any county or corporation, in which a miner resides, may appoint a guardian for him. How, conceding that this provision confers upon the Circuit and County ■courts the power of appointment as courts of probate, upon what principle is it to be construed as taking away the jurisdiction of the Chancery courts. According to any rule of interpretation the inference is that a ■cumulative, and not an exclusive, jurisdiction was intended. Wayland v. Tucker, 4 Gratt. 267. It has been argued, however, that by the express terms •of the 11th section, chap. 128, Code of 1860, the Chancery courts are authorized to remove and appoint guardians; but not to appoint in the first instance; from which it is to be fairly inferred the intention was to limit "them to cases of removal and appointment. The same provision, substantially, is in the Code of 1819; and was the law long anterior thereto. But it was never construed as limiting the general jurisdiction of the Chan•cery courts upon the subject; a jurisdiction which had ■existed from our earliest history, and was based upon principles lying at the foundation of our system of ■equity jurisprudence. As a general rule a statute conferring power upon a court in special, enumerated cases, is not to be construed as divesting a general j urisdiction in cases of an analagous nature not enumerated. But if the chancery courts have no power to appoint guardians in the first instance, but only to remove and appoint, it would seem to be clear where they have appointed, the validity of that appointment caunot be questioned in a collateral proceeding. Ho other court, 316unless it be an appellate tribunal, is authorized to examine the records to ascertain whether the occasion was-one for the proper exercise of the power in question. They are courts of general jurisdiction, and their decrees and orders are conclusive until reversed by a proper proceeding. This principle has received the sanction of the courts in innumerable insanees. It is only necessary to refer to one, the case of Fisher v. Bassett, 9 Leigh, 119. In that case Judge Parker said: The distinction between the acts of a court having jurisdiction over the subject matter under some circumstances, and those of one which in no possible state of things can take jurisdiction over the subject, is a sound and sufficiently intelligible one to guide our j adgmentsin the present case. If under any circumstances the Hustings court could grant administration to Scott, it had jurisdicti on of the subject, and must judge of those circumstances. See cases cited in Devaughn vs. Devaughn, 19 Gratt., 563; Ballard vs. Thomas, Ibid. 14. In the present case, if the ward may question the appointment, so may the-sureties in the guardian’s bond, and so may a stranger sued by the guardian for any matter affecting the ward’s-estate. Indeed this case affords in itself a most apt illustration of the evil results of the doctrine asserted. An appointment made by a court of general jurisdiction, recognized by another, is to be pronounced utterly void to the extent of reversing a decree and invalidating the title of a bona fide purchaser for value. Before a result of that sort is reached we should be- ■ clearly satisfied that the law on the subject is express- and mandatory. These constitute the main, if not all the objections,, urged by the appellee to the proceedings and decree under which his land was sold. In considering them this court has not been unmindful of the importance of a 317faithful observance of the various statutes enacted for the benefit of the infant, and for the protection of his inheritance. The power to sell the estate of those who have no capacity to be heard is a very grave one, and ■only to be exercised with great caution. Still it is an indispensable power, and is vested in some tribunal in every well regulated State. Sound policy requires that judicial sales shall not be brought into disrepute by the practice of vacating decrees for slight and minute defects in the preparation of causes, when the true meaning and ■spirit of the law has been observed. If the court clearly perceives that the sale when made was an advantageous ■one, it ought not to regard mere technical informalities which do not substantially affect the validity of the proceedings, or the rights and interests of the infant. In determining whether the sale was a beneficial one, we must look to the circumstances as they existed at the time it was made, and not to subsequent events. The purchase money may be lost by the mismanagement of the court, or its officers, or by injudicious investments, or by the occurrence of war; but surely such considerations ought not to affect the purchaser. These are matters with which he cannot interfere, and by which he ¡should never be prejudiced. In considering the numerous objections urged in this case, I have made no reference to a very important question very ably discussed by counsel. And that is, conceding the validity of these objections and the necessity of reversing the decree, whether the appellee is entitled to the restitution of his property as against the appellant, who stands in the attitude of a bona fide purchaser for value. Whatever muy be the current of authorities iu other States, the question may be regarded, to some extent, an open one in Virginia. The tendency of opinion has been that the title falls with the reversal of the de318cree, except so far as the sale is within the influence of the statute. The decision of the question is, however, wholly unnecessary in this case, because, as has been seen, the objections are insufficient when considered singly or collectively. hlor are we called on to consider any of the-proceedings subsequent to the sale. The deci-ee of the-Circuit coui’t is based upon the alleged irregularities in the conduct of the suit; and to these our opinion is confined. For the reasons stated, the decree of the Circuit court must be reversed, and the cause remanded for further-proceedings. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481843/	Bouldin, J. This is an original application to this court, by Wm. G. Robinson of Oswego, in the State of New York, for a writ of mandamus to the second auditor of ‘the State, to compel him to transfer on the books of his office, to said Robinson, certain bonds of the State •of Virginia issued to the Kanawha Board of the James River and Kanawha Company, under the 9th section of 320the act of March 23d, 1860, amountiug to $18,000 in the aggregate, and more particularly described in the and also, to fund the same under act of 30, 1871, commonly designated “the funding act.” The bonds are all filed with the petition; and it is admitted in writing by the parties, that all of them were duly issued and delivered by the State of Virginia, to said Kanawha Board, under the 9th section of the act aforesaid; that they came to the hands of the petitioner by proper assignment; and that the powers of attorney to transfer the same, referred to in the petition, are duly executed and attested. It is further agreed, that said bonds and powers of attorney were in the early part of the month of December, 1871, (the second auditor says about the 2d,) presented to Asa Rogers, then and now the second auditor of the State of Virginia, to be transferred and funded under the act aforesaid of March 30th, 1871. The auditor refused either to transfer or fund the bonds, assigning as his only reason for the refusal, “that the same was not funded on account of the provisions contained in the act of March 18th, 1862,” being an act of the Richmond government during the late war. The issue by the State, and the assignment to the petitioner, being all conceded to be “duly” and “properly” made, and the bonds, with the powers of attorney duly executed, having been regularly presented to the second auditor in December 1871, to be properly transferred and funded, the question, and only question before us, is, whether the act of assembly referred to by him, constituted a valid objection to the petitioner’s demand ? Did that act justify the second auditor in refusing to make the transfer and to fund the debt ? This is the only question. 321By the general laws of this State existing when these bonds were issued by the State of Virginia, and when they came to the hand of the petitioner, it was the duty of the second auditor, on the presentation to him of these bonds by the petitioner, with proper power of attorney authorizing the transfer of the bonds to him as the holder, to have the transfer made; and such thence hitherto hath been and still is the law of Virginia. See Code 1860, pp 261-5, ch. 44, §§ 23, 24, 25, &c., Code 1873, pp. 407-8, ch. 42, §§ 27, 28, 29, &c. In addition to this general law of the State she contracted on the face of these bonds, with the person or persons to whom they might be issued, aud with all persons who might become holders thereof, that they should be transferable on the books of. the second auditor, by appearance in person or by attorney; thus making the general law of the land a part of the contract in express terms on the face of each boud. The language on the face of each certificate or bond is as follows: “This certificate is-transferable on'the books of the second auditor, by appearauce in person or by attorney.” The right thus to appear in person or by attorney, and to transfer the bond to another, is absolutely essential to its beneficial use by the holder. Without such power, its convertibility into money would be destroyed; aud this essential right being secured to the holder by the contract of the State, the obligation of that contract cannot be impaired by subsequent legislation. If, then, the act of the Richmond government of 'March 18, 1862, be a statute of the State of Virginia' and if the second auditor be right in supposing that" the statute prohibits him from allowing any transfer, either in person or by attorney, of bonds legally issued under -the act of September 23d, 1860, and in the hands of bona fide, holders prior to the passage of the prohibitory act, 322the latter act would certainly deprive the holder of the bond of a most valuable and important element of his contract, and would therefore impair its obligation. On that account and to that extent the act, if on our statute book, is unconstitutional and void, and constitutes no answer to the petitioner’s demand to have his bonds transferred and funded. But, is the prohibitory portion of the act of March 18, 1862,- noto a law of Virginia, conceding it to have been a law and to be constitutional? I think not. It might, perhaps, be contended, and with much show of reason, under the ruling of this court in the cases of Commonwealth v. Chalkley, 20 Gratt. 404, and De Roths child v. Auditor, 22 Gratt. 41, that no legislative act of the Richmond government, during the war, could in any wise affect the obligations of this State, issued, and the rights of her creditors beyond the State vested, anterior to the war. But, waiving that question altogether, I am of opinion that the portion of the act referred to is, for other reasons which 'will be given, no longer a part of the law of Virginia. The act itself did not undertake wholly to repudiate the obligations of the State therein referred to; but, treating them as valid, merely interposed a temporary obstruction to their transfer. It was ■evidently a quasi war measure, intended to bolster the resources of the government, and was, on its face, temporary in its character; and so far as my researches enable me to speak on the subject, and they have been prosecuted with some care, it has not been recognized, nor even referred to, in any act passed since the war in relation to the public debt. In none of our statutes, making provision for the public debt siuce the war, has there been any discrimination against the bonds issued to the Kanawha Board. Beginning with the act entitled “an act to provide for funding the interest upon the public 323debt,” passed March 2d, 1866, we find that its provisions extend to all holders of the bonds of the State issued before the 17th day of April 1861, without exception; making no discrimination against the bonds lawfully issued under the act aforesaid of March 23d, 1860. Sess. Acts 1865-6, ch. 9, p. 79. Nor is there any such discrimination to be found in any of the subsequent statutes. See Act March 21, 1867. Sess. Acts 1866-7, ch. 35, p. 805; Ibid. ch. 74, p. 877; Ibid. ch. 103, p. 904; and Sess. Acts 1871-2, ch. 166, p. 218. And in the joint resolution of the 7th January, 1873, “ in regard to the public debt,” “the holders of the bonds of the State of Virginia,” without exception, are invited to a conference with a committee of the general assembly. The holders of bonds regularly issued through the Kanawha Board were not excluded in the resolution, and in fact, these bonds constitute a part of the public debt as annually stated by the auditor and published with the acts of assembly. In addition to all this, the funding act of March 30th, 1871, itself makes no such discrimination; on the contrary, it gives in express terms the privilege of funding to “the owners of any of the bonds, stocks or interest certificates heretofore issued by the State, which are recognized by its constitution and laws as legal; except the jive per centum dollar bonds and what are known as sterling bonds.” There is no exception of bonds issued through the “ Kanawha Board.” Under these circumstances, I am of opinion, that the temporary war measure of March 18, 1862, if ever in force at all after the war, has been long since repealed by implication, and that there was no statute in force on or about the 2d of December 1871, or since, to interfere with the petitioner’s right to have the bonds in his petition mentioned, transferred and funded under the act of March 30th, 1871, as amended by the repealing *324clause of the act of March 7, 1872, entitled “ an act declaring what shall be received in payment of taxes or other demands of the State,” and as now in force. I am further of opinion, upon the principles established by this court in the cases of Antoni v. Wright, sh’ff., and Wright, sh’ff. v. Smith, both on principle and authority, that the writ of mandamus is the proper remedy in this case; the duty of the second auditor, under the act of assembly, being purely ministerial. My opinion is that a peremptory writ of mandamus should be awarded, commanding the second auditor to allow the transfer to the petitioner of the several bonds filed with the petition to be made on his books, as prayed for in the petition; and to fund the same under the provisions of the act of March 30th, 1871, as amended by the repealing clause of the act of March 7, 1872, entitled “ an act declaring what shall be received in payment of taxes or other demands of the State,” and as now in force. The other judges concurred in the opinion of Bouldin, J. PEREkPTORY MANDAMUS ISSUED.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481844/	Moncure, P., delivered the opinion of the court. After stating the case, he proceeded: The only question involved in this case is, whether the opinions of the court excepted to as aforesaid, or either of them, are erroneous. We are of opinion that both of them are. Pirst. The court erred in excluding the bond on the ground "of variance, when offered by itself without other evidence, as mentioned in the first bill of exceptions. There is no further description of the bond in the notice than is contained in its address, “ to Benjamin Robinson, late sheriff’ of Greene county, and George J. Stephens, James M. Robinson, William P. Melone. R. D. Melone, surviving sureties of themselves and James Sims, deceased, on the official bond of said Benjamin Robinson.” The bond offered in evidence was the official bond thus described. There were inserted in the body of the bond, the names of all the obligors, principal and sureties, to whom the notice was addressed. And there were subscribed to the bond, signatures and seals corresponding to the names of the obligors, so written in the body cf the bond, except that the name apparently intended for “James Sims” is obscurely or imperfectly written; and, as the defendants in error contend, is written, “ Jos. Sin.” It is so written in the printed record. But the original bond has been brought before us by the clerk of the County court of Greene, upon a subpoena duces tecum ; and upon an inspection of it, we think the signature was intended for “James Sims,” and may as well be read “Jas. Sim,” or “Jas. Sims,” as “Jos. Sin.” It was evidently 329written by a very bad writer, and probably by an old man; and we know it is quite common, in such a case, that the name should be mis-spelt, or a letter be omitted by mistake. The name is written opposite the word “seal,” inserted in a scroll; and the end of the letter “m,” of the name “Sim,” appears to be written over the scroll; and immediately after the name “Sim,” is written the word “seal;” the first letter of which word serves well enough for, and may possibly have been adopted, by the signer as the last letter of the name “Sim;” and thus the name “Jas. Sims” -would be perfected. But whether this be so or not, and even if wé suppose the name as written is “Jas. Sin” or “Jos. Sin,” still we think that the bond ought not to have been excluded as ■evidence, and that the jury wTould have been well warranted in finding, from that evidence alone, on a plea of non estfactum, that the bond was the bond of the obligors whose names were inserted in the body of it. The fact is, most of the names subscribed to the bond are imperfectly written. Indeed, not one of them is perfectly written. In one there is a letter too many, and in another a letter too few. In all of them letters are put for Christian names, or those names are contracted. The name of James M. Robinson, appears to be written, “Jus. M. Robinson.” Row, it might just as well have been said there was a variance in regard to all these names, as in regard to that of James Sims, only. But we know that these apparent variances, if they may be so called, are of every day’s occurrence, and they are not real or legal variances. The bond in this case was prima facie evidence, that it was the bond of all the parties whose names were inserted therein, and was ap parently intended to be subscribed thereto; and that fact could not be controverted without an affidavit, that the instrument was not the deed of the alleged obligors 330or some of them. Code of 1860, ch. 171, § 38, p. 713; Acts of 1869-70, ch. 271, p. 425. Second. It follows as a matter of course, from what we have already said, that we think the Circuit court erred in excluding the evidence set out in the second bill of exceptions. Certainly, if the bond was not sufficient evidence of itself, in the absence of any affidavit to the contrary, that it was the bond of all the obligors therein named, the order of the court stating that they all appeared in court and entered into and acknowledged the bond, is the highest, to wit, record evidence of that fact. It appears, also, from the bill of exceptions, that other evidence was offered to prove that the said bond was the bond of the said James Sims; which evidence was also excluded. And it does not appear that a particle of evidence was offered on the other side to prove that the said bond was not the bond of James Sims, or that there was any person in the world by the name of “Jos. Sin,” whose the signature could have been intended to be. A man may adopt a signature written for him by another person; or he may adopt his cross mark for his signature. Here James Sims made, or attempted to make, his own signature, and acknowledged it as such in open court. But if this could be considei’ed as a case of variance between the pleadings and the proofs, it would have been such a one as might and ought to have been cured by an amendment, according to the Code of 1860, ch. 177, § 7, which declares that “If, at the trial of any action, there appears to be a variance between the evidence and the allegations or recitals, the court, if it consider the same not material to the merits of the case, and that the opposite party cannot have been prejudiced thereby, may allow the pleadings to be amended on such terms as to payment of costs or postponement of trial, or both, as it may deem reasonable.” *331On every view of the case, therefore, we are of opinion that the judgment of the Circuit court is erroneous, and ought to be reversed and annulled; and that the verdict of the jury ought to be set aside and the cause remanded for a new trial to be had therein, in conformity with the foregoing opinion. The judgment was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that the Circuit court erred in excluding the evidence mentioned in the first and second bills of exception, all of which evidence was admissible. Therefore, it is considered that the said judgment be reversed and annulled, and that the plaintiff in error recover against the defendants in error, his costs by him expended in the prosecution of his writ - of supersedeas aforesaid here. And it is ordered that the verdict of the jury be set aside, and the cause remanded to the said Circuit court for a new trial to be had therein; on which trial the said evidence, if offered again, or such part thereof (including the official bond m said bills mentioned) as may be offered again, shall be admitted. Which is ordered to be certified to the Circuit court of Greene county. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481847/	Christian, J., delivered the opinion of the court. The controversy in this suit grows out of a contract 369entered into on the 2d December 1862, between the appellant and the appellee, which is in the following words: Know all men by these presents, that we, Philip Earp and Sullivan P. Boothe, of the county of Pittsylvania, State of Virginia, do make and enter into, and bind ourselves, our heirs and assigns, to abide by the following contract and agreement, to wit: Whereas the said Philip Earp did some time past purchase of a certain John Brightwell the tract of land on which the said Earp now lives and enjoys title thereto, and not being able to pay the purchase money for said land to said Brightwell, which amounts to seven hundred dollars, and the said Earp being desirous of possessing a part of the land, agrees with the said Boothe to convey to him, the said Boothe, a portion of said land by a certain line agreed, supposed to be between thirty and forty acres, for the same amount per acre, as he gave for it; provided said Boothe will advance the whole amount of the purchase money to the said Brightwell, and allow him three years to replace the amount paid by said Boothe, after deducting the price of that portion cut oft' for said Boothe on the north end of the tract; to which the said Boothe assents. But if the said Earp shall fail to pay the said Boothe the full amount of the principal and interest advanced for the said Earp, to pay for the portion retained by him, then he promises and binds himself, his heirs and assigns, to convey title to the residue of the said tract to said Boothe; to which said Earp assents. To a faithful performance of the above cuntract we do set our hands and affix our seals this 2d day of December 1862. (Signed) Philip Earp. [Seal.] S. P. Boothe. [Seal.] The app jilee, Boothe, complied with his contract, and 370paid over to Brightwell, or advanced to Earp for that purpose, who paid it to Brightwell* the whole of the purchase money, principal and interest, due to Brightwell from Earp. Earp totally failed to comply with his contract. He neither conveyed to Boothe the thirty or forty acres lying on the north end of the tract designated in the contract, nor did he pay any part of the purchase money advanced for him to Brightwell. In February 1866 Boothe filed his bill in the County court of Pittsylvania, the case being afterwards removed to the Circuit court, with which he exhibited the contract above referred to, alleging his compliance with it, in every particular, and the failure of the defendant, Earp, both to convej7 to him the portion of the tract of land according to said agreement, and to pay any part of the purchase money which he had advanced to Brightwell; and claiming that by the terms of the contract, he was entitled to have the whole of the land conveyed to him; and called upon the court to compel the defendant to make such conveyance; concluding with the usual prayer for general relief. Earp answered the bill. He admitted that he executed the covenant filed with the bill; and admitted that the purchase money due on the land to Brightwell had been advanced by Boothe and fully paid to Bright-well, who had uo further claim on the laud. But he insisted that the agreement between him and Boothe was nothing more nor less than a mortgage on the land to secure the money loaned by Boothe. He also insisted that the contract was usurious and void. By way of further defence he sets up what seems to be intended as a sort of plea of tender, in which he says “that before the expiration of the three years’ time allowed him to refund the money, that he offered to set-371tie with and pay said Boothe the value of the Confederate money so lent, but the said Boothe] refused, to receive it, and insists upon taking the whole of the respondent’s land,” &c. There was no proof in this cause that there was anything like a tender made; and this defence set up in the answer is abandoned by the counsel who argued the case in this court. In June 1867, the cause came on to be heard on the bill, answer, replication, exhibit filed with the bill, and examination of witnesses; “and the court being of opinion, that the covenant in the proceedings mentioned is a mortgage, and not a conditional sale, as to all the tract of land therein mentioned, except that portion of the same ‘in the north end of said tract,’ agreed by said Earp to be conveyed to the plaintiff by certain lines agreed upon, supposed to contain between thirty and forty acres, to which thirty or forty acres the plaintiff is entitled at the average price to be paid by said Earp to Brightwell; # * and the plaintiff is entitled to subject the residue of said tract to the payment of the money advanced by him after crediting Earp with the price of said thirty or forty acres of land, and after scaling the same according to the value of Confederate States treasury notes at the time of the loan from Boothe to Earp; ” it was ordered that a commissioner appointed for that purpose “should survey the land on the north end of said tract, supposed to contain thirty or forty acres, according to the lines agreed upon by the parties,” &c. On the 5th day of June 1868, the cause came on to be again heard on the papers formerly read, and the report of the commissioner made in pursuance of decree of May term, 1867, returning map of survey of the land to which the plaintiff’ is entitled (in the opin372ion of the court), absolutely, under his covenant with defendant, to which report there was no exception; and the court approved and confirmed said report, and without deciding any other question arising in the cause, adjudged, ordered and decreed “that the plaintiff hold the thirty-five acres of land designated in the plat returned with said report, in fee simple.” On the 2d day of June 1870 another decree was entered, directing that the defendant do pay to the plaintiff' the sum of one hundred and fifty-four dollars and sixty cents, with interest thereon at the rate of six per cent, per annum from the 20th day of December 1862 till paid, that being the principal sum advanced by the plaintiff' on that day to pay for the land in the bill mentioned ($700), scaled as of that day, &c. The decree further provided for a sale of the land if the sum decreed against the defendant, Earp, should not be paid within sixty days; the terms of the sale being fixed on a credit of six and twelve months, except as to the sum of seventy-five dollars, directed to be paid in cash. From these several decrees an appeal was allowed by one of the judges of this court. The following are the errors assigned by the counsel in this court: 1st. That the contract between Earp and Boothe was ■ usurious and void; and that it was error to have rendered any decree in favor of the plaintiff. 2d. That it was error to require Earp (the appellant) to pay the value of the money at the time it toas lent, instead of at the maturity of the contract. 3d. That it was error to have decreed a sale upon the terms and conditions prescribed in the decree. As to the defence of usury, set up in the answer, there is nothing in the facts to show that the purchase of the 373thirty or forty acres by Boothe was a shift or device to obtain from Earp a greater rate of interest than that allowed by law. As to that tract of land Boothe agreed to take the shoes of Earp in the purchase from Brightwell, at the same price which Earp had agreed to pay. It is true, he was paid in Confederate money, and the land, in the opinion of one witness, was worth $15.00 per acre in that currency, while the price fixed upon it was $5.60 per acre. But this latter sum was what Earp had agreed to pay Brightwell, who was willing to receive, and did receive, the same amount, in the same currency, from Boothe. Earp could have retained the land by paying $5.60 per acre to Brightwell. Boothe simply paid the debt due to Brightwell; and as to this part of the land, took the place of Earp in the purchase. If the price was low, it was exactly the same which Earp agreed to pay, and Brightwell was willing to receive in Confederate currency. All that can be said of such a transaction, is, that the necessities of the debtor , and his anxiety to retain a part of the land, might have induced him to sell- it for something less than its real value, but it cannot be said to be marked by those indicice which stamp it as usurious. The second error assigned, is, that “ the appellant was required to pay the value of the Confederate currency at the time it icas lent, instead of at the maturity of the contract.” This objection is founded upon a misapprehension of the legal effect of the contract between the parties. It was not a contract to pay a certain sum of money three years after date; but Earp had the right, at any time within three years, to return the money advanced for him by Boothe to Brightwell; and if he had tendered it the next day, Boothe would have been bound to receive it. 374It was a privilege enuring to Earp under the contract, to repay the money at any time within three years, while Boothe could not demand it until the end of the three years. Earp permitted the three years to elapse without having paid a dollar. At that time Confederate money had perished and was of course without value to be scaled, and the court, in adjusting the rights of the parties after Confederate money, which was the subject of the loan, had passed out of existence, properly scaled the amount to its value at the time when it was advanced by Boothe. As to the third assignment of error to the effect that different terms ought to have been prescribed in'the decree of sale, it is sufficient to remark that tiffs decree was entered before the passage of the act requiring judicial sales of land to be made on a credit of one, two and three years, and that under all the cirbumstanees of the case, the terms of sale, upon a credit of six and twelve months, were not unreasonable. The court is therefore of opinion that there is no error in the decree complained of to the prejudice of the appellant. But it is contended by the learned counsel for the appellee, that there is error in the decree to the prejudice of the appellee to the .extent that it declares that the contract between the parties (except as to the thirty or forty acres), is in effect- a mortgage and not a conditional sale. The court is of opinion that the said decree is not erroneous in this respect. It is often difficult to distinguish a conditional sale from a mortgage. The line of discrimination is confessedly indistinct, and each case must in a great measure depeud upon its own peculiar circumstances. Generally speaking the difference between them is, that the one is a security for a debt, the other a purchase for a price paid, or to be paid, to become absolute in a par375ticular event; or a purchase accompanied by an agreement to resell upon particular terms. The only difficulty is to ascertain the character of the transaction. It may be premised that where upon the face of the transaction it is doubtful whether the parties intended to make a mortgage or a conditional sale, courts of equity will always incline to consider it a mortgage, because by means of conditional sales oppression is frequently exercised over the needy, and they are too often made the vehicle of extortion. 1 Hilliard on Mortgages, 85, and cases there cited; Poindexter v. Mc Cannon, 1 Dev. Eq. R., 375-6. But this court has fixed the criteria which must govern in determining the character of the transaction, whether it is to be considered a conditional sale or a mortgage. In the case of Robertson v. Campbell & Wheeler, 2 Call 421, Pendleton, J. said: “It is often a nice and difficult question to draw the line between mortgages and conditional sales. But the great desideratum which this coui't has made the ground of their decision, is, whether the purpose of the parties was to treat of a purchase, the value of the commodity contemplated, and the price fixed; or whether the object was a loan of money, and a security or pledge for the repayment intended.” This rule, laid down by Judge Pendleton, has been adopted in several cases decided by this court. See King v. Newman, 2 Munf. 40; Moss v. Green, 10 Leigh 251; 2 Rob. Prac. (old ed.) 51, and cases there cited. Tried by these criteria and the authorities above cited, it is plain, that, (except as to the small tract of thirty or forty acres, which was purchased at a stipulated price, Boothe agreeing, as to that, to take the shoes of Earp, as purchaser from Brightwell,) the transaction between the parties must be treated, as to the main tract, as a mortgage, and not as a conditional sale. As to this part of the *376land, there was no negotiation as to the price. Nothing was said as to its value. The negotiation was for a loan of money; and it is so treated by the plaintiff'in his bill. He says, after setting forth the purchase of the land by Earp from Brightwell: “ Some time in the year 1862 the said Earp, finding he was unable to pay for it, applied to your orator to advance for him to Brightwell the said sum of $700.00, with interest,” &c. The defendant, in his answer, says that he applied to plaintiff to borrow the money to pay Brightwell for the land purchased of him; and that the only terms upon which the plaintiff would agree to lend respondent, was upon the terms set fcrth in the covenant filed with the bill. It is thus clear that the transaction between the parties was a borrowing and lending of money, and not for a sale of the land, except as to the small quantity above referred to. The only object of the negotiation was a loan of money, and security for its repayment. In such cases the contract will be treated as a mortgage, and not a sale. Such is the unwillingness of courts of equity to sustain forfeitures and limit the right of redemption, that it will never be done, in a case where it appears that the first object of the party was to borroio money and not to sell property. The decree of the Circuit court must be affirmed. Decree aeeirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481258/	Order filed November 3, 2022. In The Fourteenth Court of Appeals ____________ NO. 14-22-00557-CV ____________ BRAZORIA CIVIC CLUB, Appellant V. BRAZORIA COUNTY APPRAISAL DISTRICT, Appellee On Appeal from the 239th District Court Brazoria County, Texas Trial Court Cause No. 117254-CV ORDER Appellant’s brief was due October 27, 2022. No brief or motion for extension of time from that deadline has been filed. Accordingly, we order appellant to file a brief with this court within twenty (20) days of the date of this order. If appellant fails to do so, the appeal is subject to dismissal without further notice for want of prosecution. See Tex. R. App. P. 42.3(b). PER CURIAM Panel Consists of Chief Justice Christopher and Justices Poissant and Wilson.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481260/	Motion Granted; Appeal Dismissed and Memorandum Opinion filed November 3, 2022. In The Fourteenth Court of Appeals NO. 14-22-00307-CR ALFREDO LOPEZ RAMIREZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 122nd District Court Galveston County, Texas Trial Court Cause No. 17-CR-2722 MEMORANDUM OPINION Appellant Alfredo Lopez Ramirez has signed and filed a written request to withdraw his notice of appeal. See Tex. R. App. P. 42.2. Because this court has not delivered an opinion, we grant appellant’s request. We dismiss the appeal. We direct the clerk of the court to issue the mandate of the court immediately. See Tex. R. App. P. 2. PER CURIAM Panel consists of Justices Wise, Jewell, and Poissant. Do Not Publish – Tex. R. App. P. 47.2(b)	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481276/	Reversed and Rendered and Memorandum Opinion filed November 1, 2022. In The Fourteenth Court of Appeals NO. 14-21-00695-CV LG CHEM AMERICA, INC. AND LG CHEM, LTD., Appellants V. JAVIER ZAPATA, Appellee On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2020-03776 MEMORANDUM OPINION Appellants LG Chem America, Inc. (LG America) and LG Chem, Ltd. (LG Chem) appeal the trial court’s denial of their special appearances. Because the jurisdictional evidence does not establish that there is a substantial connection between the operative facts of appellee Javier Zapata’s claims and appellants’ purposeful contacts with Texas, we reverse the trial court’s order denying appellants’ special appearances and render judgment dismissing Zapata’s claims against them. BACKGROUND Zapata alleged that an LG 18650 lithium-ion battery exploded in his pants pocket causing him serious injuries. Zapata subsequently filed suit against LG America and LG Chem alleging that appellants “designed, marketed, and/or manufactured” the 18650 lithium-ion battery, which he claimed was defective. LG America and LG Chem filed separate special appearances asserting that the trial court did not have personal jurisdiction over them. In its special appearance, LG America averred that it is a Delaware corporation with its headquarters and principal place of business in Atlanta, Georgia. It further asserted that LG America primarily sells and distributes petrochemical materials and products such as ABS resin and engineered plastic. LG America stated that it does not have any manufacturing plants and it focuses exclusively on sales and distribution. LG Chem averred in its special appearance that it is a South Korean company with its headquarters and principal place of business located in Seoul, South Korea. While LG Chem did not deny that it manufactured 18650 lithium- ion batteries, it did affirmatively state that it “does not design or manufacture 18650 lithium-ion cells for sale to individual consumers as standalone batteries.” It further averred that LG Chem “does not distribute, advertise, or sell 18650 cells directly to consumers, and has never authorized any manufacturer, wholesaler, distributor, retailer, or re-seller to distribute, advertise, or sell [LG Chem’s] 18650 lithium-ion cells directly to consumers as standalone batteries.” It also averred that it “does not design, manufacture, distribute, or sell 18650 lithium-ion cells for use by individual consumers as standalone, replaceable, rechargeable batteries in electronic cigarette or vaping devices, whether in Texas or any place else.” After LG America filed its special appearance, Zapata filed his First 2 Amended Petition. Zapata’s jurisdictional allegations in this petition consisted of the following: 3.2 Defendant LG Chem America, Inc. is a foreign for-profit corporation organized under the laws of the state of New Jersey. . . . 3.3 Defendant LG Chem, Ltd. is a foreign corporation organized under the laws of South Korea doing a substantial amount of business in Texas. . . . 5.2 Defendants LG Chem America Inc. and LG Chem, Ltd. . . . designed, marketed, and/or manufactured the subject battery. . . . 6.1 The subject LG 18650 battery . . . was designed, manufactured, marketed and constructed by LG Chem America, Inc. and LG Chem. Ltd. (the ‘LG Defendants’). At the time the battery was designed, manufactured, marketed and constructed by the LG Defendants, the LG Defendants were in the business of designing, manufacturing, marketing, constructing, and/or otherwise placing batteries, such as the one in question, into the stream of commerce. Finally, Zapata alleged that he purchased the battery that exploded from a retailer, Max and Zach’s Vapor Shop, located in Highlands, Texas. Zapata’s first amended petition was his live pleading at the time the trial court denied appellants’ special appearances. Zapata attached exhibits to his initial special appearance responses. Appellants objected to some, but not all, of Zapata’s initial exhibits arguing they should be excluded because they had not been properly authenticated and were hearsay. The exhibits appellants objected to were: (1) Exhibit C, a map printout showing the alleged location of Stanley Black & Decker manufacturing sites; (2) Exhibit D, an alleged printout from Stanley Black & Decker’s website; (3) Exhibit E, an alleged Inventus Power white paper on lithium-ion battery technology; and (4) Exhibit H, an alleged Google Maps printout showing an LG Electronics location. 3 Zapata later filed supplemental responses to appellants’ special appearances. Zapata again attached exhibits to these responses. Appellants objected to the trial court considering these supplemental exhibits because they had not been properly authenticated and because they were hearsay. The challenged exhibits were Exhibit A-2(iii), an affidavit prepared by Angela Nehmens, one of the plaintiff’s attorneys in a different case against appellants, and Exhibits B, C, D, and E attached to Nehmens’ affidavit, which were purported to be approximately 2,200 pages of U.S. Customs Service spreadsheets that Zapata alleged showed shipments of LG Chem products throughout Texas that Zapata alleges were consigned to LG America. These exhibits had been filed in another case against appellants that was ultimately appealed to the First Court of Appeals. See LG Chem America, Inc. v. Morgan, No. 01-19-00665-CV, 2020 WL 7349483, at 2 (Tex. App.—Houston [1st Dist.] Dec. 15, 2020, pet. filed).1 The special appearances were set for an oral hearing. At the oral hearing, appellants renewed their previous objections to Zapata’s exhibits. Zapata responded that the trial court could take judicial notice of the documents. The trial court announced that it was denying appellants’ special appearances and was overruling their objections to Zapata’s exhibits. The trial court subsequently signed an order memorializing its oral rulings. The trial court did not make findings of fact and conclusions of law. This interlocutory appeal followed. ANALYSIS In this interlocutory appeal, LG America and LG Chem filed separate briefs. Despite filing separate briefs, each appellant raises similar issues challenging the 1 In Morgan, in addition to the approximately 2,200 pages of spreadsheets, Morgan’s trial counsel also “filed a sworn declaration stating that each exhibit was a true and correct copy, and [LG Chem] did not object to Morgan’s evidence.” LG Chem America, Inc., 2020 WL 7349483, at 2. 4 trial court’s overruling of their objections to Zapata’s special appearance evidence and the trial court’s denial of their special appearances. We therefore address appellants’ issues together. I. Standard of Review and Law Applicable to Special Appearances We review de novo a trial court’s denial of a special appearance. M & F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 885 (Tex. 2017). When, as here, the trial court does not issue findings of fact and conclusions of law, we imply all relevant facts necessary to support the judgment that are supported by the evidence. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). Parties may challenge the legal and factual sufficiency of these implied factual findings. Id. In a legal sufficiency review, we view the evidence in the light most favorable to the finding and indulge every reasonable inference that supports the challenged finding, crediting favorable evidence if a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not. Dodd v. Savino, 426 S.W.3d 275, 284 (Tex. App.—Houston [14th Dist.] 2014, no pet. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). We will set aside a finding on legal sufficiency grounds only if (a) there is a complete absence of a vital fact, (b) we are barred by legal or evidentiary rules from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Id. In reviewing for factual sufficiency, we consider all the evidence; we will set aside a finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. Finally, we review the trial court’s legal conclusions de novo. Id. 5 The Texas long-arm statute broadly authorizes Texas courts to exercise jurisdiction over a nonresident defendant who “does business” in the state if the nonresident commits a tort in whole or in part in Texas. Tex. Civ. Prac. & Rem. Code § 17.042(2); Luciano v. SprayFoamPolymrs.com, LLC, 625 S.W.3d 1, 8 (Tex. 2021). The Supreme Court of Texas has interpreted the broad language of the Texas long-arm statute to extend Texas courts’ personal jurisdiction “as far as the federal constitutional requirements of due process will permit.” M & F Worldwide, 512 S.W.3d at 885. A plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the scope of the long- arm statute. BMC Software, 83 S.W.3d at 793. A defendant challenging a Texas court’s personal jurisdiction must negate all jurisdictional bases alleged. Id. A trial court may constitutionally exercise personal jurisdiction over a party when (1) the nonresident defendant has minimum contacts with the forum state and (2) the assertion of jurisdiction complies with traditional notions of fair play and substantial justice. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945); Peters v. Top Gun Exec. Grp., 396 S.W.3d 57, 62 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Minimum contacts are sufficient for personal jurisdiction when the nonresident defendant purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws. M & F Worldwide, 512 S.W.3d at 886. “The defendant’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court.” Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002) (citing World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). A nonresident defendant’s contacts with a forum state can give rise to either 6 general or specific jurisdiction. Id. Only specific jurisdiction is at issue here. In analyzing specific jurisdiction, we focus on the relationship among the defendant, the forum, and the particular litigation at hand. See M & F Worldwide, 512 S.W.3d at 886 (citing Spir Star AG v. Kimich, 310 S.W.3d 868, 873 (Tex. 2010) and Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575–76 (Tex. 2007)). Specific jurisdiction is established when the plaintiff’s cause of action arises from or relates to the defendant’s alleged minimum contacts within the forum. Id. For specific jurisdiction purposes, a defendant’s minimum contacts with a forum are established when the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Id. (quoting Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009)). Three principles govern the purposeful- availment analysis: (1) “only the defendant’s contacts with the forum” are relevant, not the unilateral activity of another party; (2) the defendant’s acts must be “purposeful” and not “random, isolated, or fortuitous”; and (3) the defendant “must seek some benefit, advantage, or profit by ‘availing’ itself of the jurisdiction” such that it impliedly consents to suit there. Id. “The defendant’s activities, whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court.” Id. Specific jurisdiction covers defendants less intimately connected with a state, but only as to a narrower class of claims. Ford Motor Co. v. Montana Eighth Judicial Court, 141 S.Ct. 1017, 1024 (2021). Thus, specific jurisdiction is transaction focused. Calyx Energy III, LLC v. Enerfin Resources I Ltd. P’ship, No. 14-19-00790-CV, 2021 WL 330195, at 5 (Tex. App.—Houston [14th Dist.] Feb. 2, 2021, no pet.) (mem. op.). A trial court has specific jurisdiction over a 7 nonresident defendant when (1) the defendant’s contacts with the forum state are purposeful, and (2) the plaintiff’s claims “arise out of or relate to the defendant’s contacts” with the forum. Ford Motor Co., 141 S.Ct. at 1024–25 (internal quotation marks omitted). This rule narrows the types of claims over which a state court may exercise specific jurisdiction over a defendant. Id. at 1026. As the United States Supreme Court recently explained, The first half of the standard asks about causation; but the back half, after the “or,” contemplates that some relationships will support jurisdiction without a causal showing. That does not mean anything goes. In the sphere of specific jurisdiction, the phrase “relate to” incorporates real limits, as it must to adequately protect defendants foreign to a forum. Id. While not requiring direct causation, specific jurisdiction does require that the plaintiff’s claim arise from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in the forum. Id. at 1027. In other words, there must be a substantial connection between the operative facts of the plaintiff’s claim and the defendant’s contacts with the forum. LG Chem, Ltd. v. Turner, No. 14-19-00326-CV, 2021 WL 2154075, at 3 (Tex. App.—Houston [14th Dist.] May 27, 2021, no pet.) (mem. op.). The operative facts are those facts that would be the focus of a trial on the merits. Chevron Thailand Expl. & Prod., Ltd., v. Taylor, No. 14-18-00540-CV, 2019 WL 6483116, at 4 (Tex. App.— Houston [14th Dist.] Dec. 3, 2019, no pet.) (mem. op.). II. The trial court abused its discretion when it overruled appellants’ objections to most of Zapata’s special appearance evidence. Both appellants argue on appeal that the trial court abused its discretion when it overruled their objections to Zapata’s special appearance evidence listed above.2 As mentioned above, both appellants objected to the challenged exhibits 2 LG America made this argument in its second issue while LG Chem raised it in its third 8 asserting that they had not been properly authenticated and they were inadmissible hearsay. Both appellants make the same contentions on appeal. Zapata does not respond to appellants’ evidentiary arguments on appeal. Even if we assume for purposes of this appeal that the challenged exhibits were properly authenticated pursuant to Rules 901 and 902 of the Texas Rules of Evidence, we still conclude that the trial court abused its discretion when it admitted and considered all of the challenged exhibits except the Nehmens affidavit, because they were inadmissible hearsay. Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter asserted and is inadmissible unless a statute or rule of exception applies. Tex. R. Evid. 801(d), 802. The proponent of hearsay has the burden to show that the testimony fits within an exception to the general rule. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004). With respect to the challenged exhibits that were attached to Zapata’s initial special appearance responses3 and the exhibits attached to the Nehmens affidavit filed with his supplemental special appearance responses,4 we agree with appellants that all fall within the hearsay rule because each is an out-of-court statement by a third party offered into evidence to prove the truth of what was asserted in the document. See Tex. R. Evid. 801(d), 802 (defining hearsay and stating that it is generally inadmissible). Because Zapata has not demonstrated that the challenged exhibits fit within an exception to the general rule, we hold that the issue. 3 These were Exhibit C, a map printout showing the location of Stanley Black & Decker manufacturing sites, Exhibit D, an alleged printout from Stanley Black & Decker’s website, Exhibit E, an alleged Inventus Power white paper on lithium-ion battery technology and Exhibit H, an alleged Google Maps printout showing an alleged LG Electronics location. 4 These were Exhibits B, C, D, and E, each purported to be U.S. Customs Service spreadsheets. 9 trial court abused its discretion when it overruled appellants’ hearsay objections and admitted the exhibits. Turning to the Nehmens affidavit itself, we conclude that the trial court did not abuse its discretion when it overruled appellants’ hearsay objection because, while an affidavit would ordinarily be considered hearsay, Rule 120a of the Texas Rules of Civil Procedure authorizes a trial court to consider affidavits filed by the parties when it rules on a party’s special appearance.5 Tex. R. Civ. P. 120a; see Tex. R. Evid. 802 (stating that hearsay is not admissible unless a statute or rules prescribed under statutory authority provide otherwise). The Nehmens affidavit, however, attempts only to authenticate the attached documents, Nehmens did not offer any evidence on appellants’ contacts with Texas or on whether Zapata’s claims are substantially connected with those contacts. With the exception of the Nehmens affidavit, we sustain LG America’s second issue on appeal and LG Chem’s third issue on appeal. II. The trial court erred when it denied appellants’ special appearances because there is not a substantial connection between appellants’ purposeful contacts with Texas and the operative facts of Zapata’s claims. Both appellants argue that the trial court erred when it denied their special appearances because there is not a substantial connection between Zapata’s claims and appellants’ contacts with Texas. This is not the first time this court has addressed a special appearance involving LG 18650 lithium-ion batteries. In two opinions this court held that the trial courts in those cases erred when they denied LG Chem’s special appearances. See LG Chem, Ltd. v. Granger, No. 14-19- 5 Appellants did object in the trial court that the Nehmens affidavit should be excluded because it was conclusory. Appellants have not renewed their conclusory objection on appeal, we therefore need not address it. 10 00814-CV, 2021 WL 2153761, at 7 (Tex. App.—Houston [14th Dist.] May 27, 2021, no pet.) (mem. op.); Turner, 2021 WL 2154075, at 6. In both Granger and Turner, it was undisputed that LG Chem “directs some amount and some types of lithium-ion batteries to Stanley Black and Decker and signed a ‘long-term’ contract with Hewlett Packard in 2005.” Granger, 2021 WL 2153761, at 5; see Turner, 2021 WL 2154075, at 5. But, this court pointed out that there was “no evidence or unnegated allegations that appellees’ claims arose [from] appellant’s Texas contacts—the sale of its batteries to Stanley Black and Decker or Hewlett Packard.” Granger, 2021 WL 2153761, at 5; see Turner, 2021 WL 2154075, at 5 (“Here, while it is undisputed that appellant sells some amount and types of lithium-ion batteries into Texas and has a relationship with Stanley Black and Decker, there is no evidence, nor even an allegation that these connections with Texas are in any way connected to appellee’s claims.”). Because there was not a substantial connection between LG Chem’s purposeful contacts with Texas and the operative facts of the plaintiffs claims in each case, this court reversed the trial court’s denial of LG Chem’s special appearances. Granger, 2021 WL 2153761, at 7; see Turner, 2021 WL 2154075, at 6. Zapata attempts to distinguish both Granger and Turner by asserting that he presented additional evidence, primarily the alleged U.S. Customs spreadsheets that were originally filed in the trial court in the Morgan case. 2020 WL 7349483, at 2. We have determined that this evidence was inadmissible hearsay and the remaining evidence in our record in this appeal fails to demonstrate a substantial connection between appellants’ purposeful contacts with Texas and the operative facts of Zapata’s claims. Ford Motor Co., 141 S.Ct. at 1024; Turner, 2021 WL 2154075, at 3; see Ethridge v. Samsung SDI Co., Ltd., No. 3:21-cv-306, 2022 WL 2920429, at 10 (S. D. Tex., July 26, 2022) (“Ethridge has failed to show his 11 claims arise from or relate to Samsung’s purposefully limited economic activity in Texas. Like Richter, there is evidence that Samsung shipped batteries to companies in Texas engaged in the manufacturing or repair of other products, but no evidence that the presence of the offending battery in Texas was the result of purposeful availment by Samsung as opposed to an unauthorized act by third parties. Without more, there is no substantial connection . . . between the nonresident defendant’s contacts and the operative facts of the litigation.”) (internal quotations and citations omitted). Because there is no legally significant difference between the facts of the present case and the facts at issue in Granger and Turner, we follow our binding precedent and hold that the trial court erred when it denied appellants’ special appearances. To hold otherwise would subject appellants to personal jurisdiction in Texas based on the unilateral acts of third parties. See Ethridge, 2022 WL 2920429, at *10. We sustain LG Chem’s first issue on appeal and LG America’s issues 1B, 1C, and 1D. CONCLUSION Because we conclude that Zapata has not shown that specific jurisdiction exists in Texas over appellants, we reverse the trial court’s order denying appellants’ special appearances and render judgment dismissing Zapata’s claims against both appellants for lack of personal jurisdiction. /s/ Jerry Zimmerer Justice Panel consists of Justices Jewell, Bourliot, and Zimmerer. 12	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481282/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,198-01 EX PARTE BOBBY RAY SEWELL, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-16-1492-CR-W1 IN THE 358TH DISTRICT COURT FROM ECTOR COUNTY Per curiam. ORDER Applicant was convicted of one count of forgery of a financial instrument and one count of tampering with a governmental record, and was sentenced to two years’ state jail probated for five years for the forgery count, and four years’ imprisonment for the tampering with a governmental record count. The Eleventh Court of Appeals affirmed his conviction. Sewell v. State, No. 11-19- 00342-CR (Tex. App. — Eastland October 7, 2021) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07. Because it does not appear that Applicant’s probation for the forgery count has been revoked, this Court lacks Article 11.07 habeas jurisdiction to address any claims as to that count. 2 Applicant contends that he has newly-available evidence of actual innocence, and that the State unknowingly presented false testimony at trial. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d). The trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX. CODE CRIM. PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s name. The trial court shall make findings of fact and conclusions of law as to whether the State unknowingly presented false testimony at trial, and if so, whether it is more likely than not that such false testimony contributed to Applicant’s conviction and punishment. The trial court shall make findings as to whether Applicant has established that no reasonable juror would have convicted Applicant of the offenses but for the allegedly false testimony. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant’s claims. The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court’s findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. 3 Filed: November 2, 2022 Do not publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481266/	Petition for Writ of Mandamus Dismissed and Memorandum Majority and Dissenting Opinions filed November 1, 2022. In The Fourteenth Court of Appeals NO. 14-22-00543-CR IN RE WALTER HINTON JUNIOR, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 262nd District Court Harris County, Texas Trial Court Cause No. 1316867 MEMORANDUM MAJORITY OPINION On July 25, 2022, relator Walter Hinton Junior filed a petition for writ of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the Honorable Lori Chambers Gray, presiding judge of the 262nd District Court of Harris County, to rule on his motion to appoint counsel for Chapter 64 DNA testing. See Tex. Code Crim. Proc. art. 64.01(c). We sent relator notice that his petition did not comply with Texas Rules of Appellate Procedure 52.3(k)(1)(A) and 52.7(a). Tex. R. App. P. 52.3(k)(1)(A) (“The appendix must contain: (A) a certified or sworn copy of any order complained of, or any other document showing the matter complained of”); 52.7(a) (“Relator must file with the petition: (1) a certified or sworn copy of every document that is material to the relator’s claim for relief and that was filed in any underlying proceeding; and (2) a properly authenticated transcript of any relevant testimony from any underlying proceeding, including any exhibits offered in evidence, or a statement that no testimony was adduced in connection with the matter complained.”). We further gave relator notice that the petition would be dismissed unless a compliant amended petition was filed by September 16, 2022. See In re Kholaif, 624 S.W.3d 228, 231 (order), mand. dism’d, 615 S.W.3d 369 (Tex. App.—Houston [14th Dist.] 2020) (orig. proceeding). Relator filed an amended petition that partially complied with our order. Relator included sworn copies of the material documents, but he did not include a properly authenticated transcript of any relevant testimony from any underlying proceeding or a statement that no testimony was adduced in connection with the matter complained. See Tex. R. App. P. 52.7(a)(2). Accordingly, we dismiss relator’s petition for writ of mandamus. See Kholaif, 624 S.W.3d at 231; see also In re Hughes, 607 S.W.3d 136, 137–8 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (dismissing mandamus petition in criminal case due to noncompliance with 2 Texas Rules of Appellate Procedure 52.3 and 52.7(a). We express no opinion on the merits of the petition. /s/ Charles A. Spain Justice Panel consists of Justices Zimmerer, Spain, and Poissant. (Poissant, J., dissenting.) Do Not Publish — Tex. R. App. P. 47.2(b). 3	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481271/	Appeal Dismissed and Memorandum Opinion filed November 1, 2022. In The Fourteenth Court of Appeals NO. 14-22-00541-CV MATTHEW FAVARD, Appellant V. LATITUDE MED CENTER, Appellee On Appeal from County Civil Court at Law No. 3 Harris County, Texas Trial Court Cause No. 1185003 MEMORANDUM OPINION This attempted appeal is from a judgment signed July 5, 2022, and was assigned to this court on July 25, 2022, based upon the filing of a document on July 21, 2022, by appellant which was characterized as a notice of appeal. The document, however, does not contain the required contents of a notice of appeal. See Tex. R. App. P. 25.1(d). Further, the record does not reflect it was served on all parties. See Tex. R. App. P. 25.1(e). On September 13, 2022, appellant was ordered to file an amended notice of appeal in compliance with Rule 25.1 on or before September 23, 2022, or the appeal was subject to dismissal without further notice on the court’s own motion for want of jurisdiction. See Tex. R. App. P. 25.1(g), 42.3. Appellant has not filed an amended notice of appeal or otherwise responded to the court’s order. We dismiss the appeal. PER CURIAM Panel consists of Justices Spain, Poissant, and Wilson. 2	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481272/	Order filed November 1, 2022 In The Fourteenth Court of Appeals ____________ NO. 14-22-00219-CV ____________ LUIS SOLORZANO II DBA TEXAS CLEARING AND LEAVING, Appellant V. SAGE COMERCIAL GROUP LLC, Appellee On Appeal from the County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 1148015 ORDER Appellant’s brief was due October 24, 2022. No brief or motion for extension of time has been filed. Accordingly, we order appellant to file a brief with this court within thirty (30) days of the date of this order. If appellant fails to do so, the appeal is subject to dismissal without further notice for want of prosecution. See Tex. R. App. P. 42.3(b). PER CURIAM Panel Consists of Justices Zimmerer, Spain, and Hassan.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481277/	Order filed November 1, 2022 In The Fourteenth Court of Appeals ____________ NO. 14-22-00639-CV ____________ DARRELL J. HARPER, Appellant V. HARRIS COUNTY TAX ASSESSOR-COLLECTOR AND ANN HARRIS BENNETT, Appellee On Appeal from the 295th District Court Harris County, Texas Trial Court Cause No. 2021-13792 ORDER This is an attempted appeal from an order signed August 17, 2022. Pursuant to chapter 11 of the Texas Civil Practice and Remedies Code, Darrell J. Harper has been declared a vexatious litigant and is therefore subject to the pre-filing order under section 11.101. Tex. Civ. Prac. & Rem. Code §§ 11.101, 11.103 (West 2017). Under section 11.103(a), the clerk of this court may not file an appeal presented by a vexatious litigant subject to a pre-filing order under section 11.101 unless the litigant obtains an order from the local administrative judge permitting the filing, or the appeal is from a pre-filing order entered under section 11.101 designating a person a vexatious litigant. Tex. Civ. Prac. & Rem. Code Ann. § 11.103(a) & (d). This is not an appeal from a pre-filing order entered under section 11.101. This court will consider dismissal of this appeal unless appellant, within 10 days of the date of this order, files a copy of the order from the local administrative judge permitting the filing of this appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 11.103(a). PER CURIAM Panel Consists of Chief Justice Christopher and Justices Wise and Hassan.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481293/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0799-19 THE STATE OF TEXAS, Appellant v. SHEILA JO HARDIN, Appellee ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS NUECES COUNTY SLAUGHTER, J., filed a concurring opinion. CONCURRING OPINION I agree with the Court’s statutory interpretation of Texas Transportation Code Section 545.060(a) and its ultimate conclusion upholding the trial court’s ruling granting Appellee’s motion to suppress. But, I write separately to observe that this situation appears to be a classic case of reasonable mistake of law by the officer who pulled Appellee over. See Heien v. North Carolina, 574 U.S. 54 (2014) (holding that officer’s reasonable but mistaken understanding of traffic law could nevertheless give rise to reasonable suspicion Hardin - 2 to justify traffic stop). Here, the officer’s mistaken interpretation of the law was entirely reasonable in view of the nuanced statutory language and the conflicting caselaw from this Court and the intermediate courts of appeals interpreting it. Thus, had the State raised the mistake-of-law issue in the trial court, it appears that the court would have erred by granting Appellee’s motion over that argument. Nevertheless, the record reflects that the State did not raise any such argument in the trial court, instead urging only that the officer’s understanding of Transportation Code Section 545.060(a) was in fact correct. Because the State did not raise any alternative argument based on mistake of law, this Court cannot now reverse the trial court’s ruling on a basis not presented to it. See State v. Mercado, 972 S.W.2d 75, 77 (Tex. Crim. App. 1998). Therefore, being presented with no basis to reverse, I join the Court’s opinion and write separately only to note that the State could have successfully raised mistake of law. I. Heien v. North Carolina and Reasonable Mistakes of Law The Fourth Amendment protects against unreasonable searches and seizures. U.S. CONST. AMEND. IV. Warrantless traffic stops are a form of seizure and are permissible if supported by reasonable suspicion. Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). Reasonable suspicion is a totality-of-the-circumstances determination and is found to exist when the officer has specific, articulable facts that, when combined with rational inferences, would lead the officer to reasonably believe that an offense has been, or is about to be, committed. Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App. 2005). Hardin - 3 In Heien v. North Carolina, the Supreme Court for the first time expressly recognized that an officer’s reasonable mistake of law (and not just a reasonable mistake of fact) may give rise to reasonable suspicion justifying a temporary investigative detention. 574 U.S. at 57. In Heien, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all that the law required. Id. 1 The Supreme Court ultimately held that the officer’s mistake about the meaning of the brake-light law was reasonable, such that the stop was lawful under the Fourth Amendment. Id. In explaining its reasoning, the Court first observed that the “ultimate touchstone of the Fourth Amendment is reasonableness.” Id. at 60. It continued, “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’” Id. at 60–61 (quoting Brinegar v. United States, 338 U.S. 160, 176 (1949)). Recognizing that the Court had already held that searches and seizures based on mistakes of fact can be reasonable, it further observed that the limiting principle of that rule is that such “mistakes must be those of reasonable men.” Id. at 61 (quoting Brinegar, 338 U.S. at 176). The Court then extended this principle to situations involving reasonable mistakes of law, stating: But reasonable men make mistakes of law, too, and such mistakes are no less compatible with the concept of reasonable suspicion. Reasonable suspicion arises from the combination of an officer’s understanding of the facts and his 1 The law at issue in Heien provided that a car must be “equipped with a stop lamp on the rear of the vehicle. The stop lamp shall display a red or amber light visible from a distance of not less than 100 feet to the rear in normal sunlight, and shall be actuated upon application of the service (foot) brake. The stop lamp may be incorporated into a unit with one or more other rear lamps.” N.C. Gen. Stat. Ann. § 20–129(g) (2007). Hardin - 4 understanding of the relevant law. The officer may be reasonably mistaken on either ground. Whether the facts turn out to be not what was thought, or the law turns out to be not what was thought, the result is the same: The facts are outside the scope of the law. There is no reason, under the text of the Fourth Amendment or our precedents, why this same result should be acceptable when reached by way of a reasonable mistake of fact, but not when reached by way of a similarly reasonable mistake of law. Id. Applying these principles to Heien’s case, the Court had “little difficulty concluding that the officer’s error of law was reasonable” under those circumstances. Id. at 67. It examined the pertinent statutory language and observed that the statute was not entirely clear with respect to whether one or two brake lights was required. Id. at 68. “It was thus objectively reasonable for an officer in Sergeant Darisse’s position to think that Heien’s faulty right brake light was a violation of North Carolina law. And because the mistake of law was reasonable, there was reasonable suspicion justifying the stop.” Id. 2 II. The officer’s mistaken understanding of Transportation Code Section 545.060(a) was reasonable. Applying the Supreme Court’s reasoning in Heien to the situation at hand, the officer’s mistaken understanding of Transportation Code Section 545.060(a) was entirely reasonable for Fourth Amendment purposes. The statute provides, in relevant part, that: (a) An operator on a roadway divided into two or more clearly marked lanes for traffic 2 I recognize that, unlike the present situation, the Supreme Court also considered that the provision at issue had “never been previously construed by North Carolina’s appellate courts.” Heien, 574 U.S. at 68. But the Court did not suggest that this was a condition precedent to applicability of the mistake-of-law doctrine. Instead, this was but one factor taken into account in examining the overall reasonableness of the officer’s mistake. Further, as discussed in the next section, though the statute at issue here had been construed by several appellate courts, those interpretations were not all in agreement. Thus, before today’s holding, the caselaw has been in a state of conflict on the meaning of this statutory language. Hardin - 5 (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely. TEX. TRANSP. CODE § 545.060(a). The Court’s opinion concludes that this language means that a driver may lawfully briefly leave her lane of traffic, so long as doing so is not unsafe. But, as shown by the competing dissenting opinions in this case, reasonable minds can disagree on the meaning of the statutory terms. See generally, dissenting opinions of Keller, P.J., and Yeary, J. Thus, it is not implausible or unreasonable to argue that failing to “drive as nearly as practical entirely within a single lane” constitutes a violation of the statute, regardless of whether such action is in any way unsafe. Indeed, in this Court’s plurality opinion in Leming v. State, four judges agreed with that view of the statutory language. 493 S.W.3d 552, 559–60 (Tex. Crim. App. 2016) (plurality op.). 3 Yet, prior to Leming, several intermediate appellate courts had reached the opposite conclusion and interpreted the statute in the manner adopted by this Court’s opinion today. 4 Thus, the existence of these competing interpretations of the statutory language demonstrates that even a well-informed officer acting at the time of Appellee’s traffic stop could have been reasonably mistaken as to whether her conduct constituted a violation of the law. 3 Four judges, however, disagreed, joining two dissenting opinions. See Leming, 493 S.W.3d at 566 (Keasler, J., dissenting); id. at 573 (Newell, J., dissenting). 4 See State v. Houghton, 384 S.W.3d 441 (Tex. App.—Fort Worth 2012, no pet.) (holding Section 545.060(a) to only be violated when a person drifted out of his or her lane in an unsafe manner); State v. Cerny, 28 S.W.3d 796 (Tex. App.—Corpus Christi-Edinburg 2000, no pet.) (same); State v. Arriaga, 5 S.W.3d 804 (Tex. App.—San Antonio 1999, pet. ref’d) (same); Hernandez v. State, 983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref’d) (same). Hardin - 6 While this Court has not previously had the opportunity to consider whether an officer’s mistaken interpretation of Transportation Code Section 545.060(a) may constitute a reasonable mistake of law satisfying Fourth Amendment concerns, the United States Fifth Circuit Court of Appeals has recently considered such a case and held that no Fourth Amendment violation occurred. See United States v. Valenzuela-Godinez, 816 Fed. App’x 914 (5th Cir. 2020) (per curiam). In that case, a police officer followed a driver for several miles and observed his vehicle “veer over the fog line several times.” Id. at 915. The officer initiated a traffic stop based on his understanding of Section 545.060(a). Id. at 916. During the stop, officers discovered cocaine underneath the back seat. Id. In upholding the denial of the motion to suppress based on the officer’s reasonable misunderstanding of the law, the Fifth Circuit noted that the disagreement between Texas appellate courts and the plurality opinion in Leming supported a conclusion that the officer’s understanding, while mistaken, was reasonable. Id. at 918 (“In light of the statute’s ambiguous text, coupled with the clear divide among Texas courts over its meaning, we hold that [the officer’s] belief that Valenzuela-Godinez broke the law by failing to maintain a single lane of traffic, even if mistaken, was objectively reasonable.”). Other Fifth Circuit decisions have also endorsed the applicability of mistake of law under similar scenarios involving Section 545.060(a). See United States v. Cedillo, 855 Fed. App’x 954 (5th Cir. 2021) (per curiam); United States v. Neal, 777 Fed. App’x 776, 776–77 (5th Cir. 2019) (per curiam) (“[A]ny belief by officers that [Section] 545.060(a) required only failure to maintain a lane (and not, in addition, unsafe movement), even if mistaken, was objectively reasonable.”). Hardin - 7 III. The State failed to raise mistake of law in the trial court, such that it cannot now rely on that theory to support reversal of the trial court’s ruling. Notwithstanding the foregoing analysis, the State did not raise the issue of mistake of law in the trial court. Therefore, this Court may not now rely on that theory as a basis for reversing the trial court’s suppression ruling here. That is because a reviewing court generally cannot reverse a trial court’s ruling on grounds not presented to the trial court when reviewing a decision on a motion to suppress. See Mercado, 972 S.W.2d at 75; see also Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002) (noting that “appellate courts may uphold a trial court’s ruling on any legal theory or basis applicable to the case, but usually may not reverse a trial court’s ruling on any theory or basis that might have been applicable to the case, but was not raised”). Here, it does not appear from the record that the State ever advanced mistake of law as an alternative theory to justify the reasonableness of the officer’s conduct. There was only a brief statement during the motion to suppress hearing where the State argued, in the middle of its closing, that: . . . knowing that he [the officer] was looking for something to stop [her] for, in his mind what was important in his report was the immediate cause that he was stopping [her] for, which was – he believed it was a violation for [her] to swerve into that lane and come back. Whether it is or isn’t, that was what he believed was the immediate cause for the stop. And that’s how he wrote his report. This argument potentially alludes to the fact that the officer did not have to be correct about the law, so long as any mistake was reasonable. But this argument was too implicitly stated to plausibly raise a mistake-of-law issue here. Indeed, there was never any explicit argument regarding mistake of law, and neither the trial judge nor opposing counsel Hardin - 8 addressed nor acknowledged the State’s brief allusion to the officer’s understanding of the law, whether right or wrong. Even now on discretionary review, the State does not argue in its brief to this Court that mistake of law should apply or that it should even be permitted at this juncture to argue that it does. Thus, recognizing that mistake of law was not properly raised in this case, I agree with the Court’s implicit determination that, although apparently meritorious, that argument cannot now serve as a basis to reverse the trial court’s suppression ruling. With these comments, I join the Court’s opinion upholding the trial court’s suppression ruling. Filed: November 2, 2022 Publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481292/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0799-19 THE STATE OF TEXAS, Appellant v. SHEILA JO HARDIN ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE THIRTEENTH COURT OF APPEALS NUECES COUNTY NEWELL, J. delivered the opinion of the Court in which HERVEY, RICHARDSON, WALKER, SLAUGHTER and MCCLURE, JJ., joined. SLAUGHTER, J., filed a concurring opinion. KELLER, P.J., filed a dissenting opinion in which YEARY and KEEL, JJ., joined. YEARY, J., filed a dissenting opinion in which KELLER, P.J., and KEEL, J., joined. Does a driver commit a traffic offense if the car’s right-rear tire briefly, but safely, touches and drives over the dividing line between the center and right lane of traffic? No. Here, a police officer stopped Hardin — 2 Appellee for committing the traffic offense of “failing to maintain a single marked lane of traffic” when he observed the right rear tire of her rented U-Haul touch and drive on the striped line marking the right side of center lane. No circumstances made this movement unsafe. Appellee moved to suppress evidence obtained after that warrantless traffic stop, and the trial court granted the motion. The court of appeals affirmed. We agree. The Traffic Stop The facts in this case are not in dispute. Corpus Christi Police Officer David Alfaro saw a U-Haul parked at a closed Kentucky Fried Chicken (KFC) restaurant at around 1:19 a.m. He had previously received a “Be on the Lookout” (BOLO) regarding a U-Haul that was suspected of being involved in multiple burglaries. Consequently, he followed the U-Haul when it drove away from the parking lot. While following it, Officer Alfaro observed the vehicle in the middle of a three-lane highway. The driver, later determined to be Appellee, had control of the vehicle at that time. The rear passenger-side tire of the truck briefly straddled the lane divider shortly after rounding a curve. The truck moved slowly back towards the opposite lane divider while remaining in its lane. Appellee did not veer or dash toward the other lane. Appellee was not driving erratically. Appellee was not Hardin — 3 speeding. When she drifted, she did not hit anything or even come close to hitting anything. Office Alfaro then pulled Appellee over. The Motion to Suppress Based upon evidence collected pursuant to a search of Appellee’s vehicle after the traffic stop, the State charged Appellee with fraudulent possession of identifying information and forgery of a government instrument. Appellee filed a motion to suppress. Appellee argued that Officer Alfaro lacked reasonable suspicion to initiate the traffic stop and therefore any subsequent seizure of evidence without a warrant should be suppressed. The State’s sole witness at the hearing on Appellee’s motion to suppress was Officer David Alfaro. Officer Alfaro testified to the facts recited above. Although he testified that he pulled her over for the alleged violation and to investigate what her U-Haul was doing at the KFC restaurant at that time of night, he only mentioned the alleged traffic violation as justification for the traffic stop in his arrest report. At the hearing, defense counsel introduced footage from Officer Alfaro’s dash camera into evidence. The video depicts Appellee’s U-Haul traveling in the middle lane of a three-lane divided highway with no other vehicles on either side. While rounding a curve in the road to the right, her vehicle drifts towards the left side of her lane without touching Hardin — 4 the center lane divider on the left. After rounding the curve, and as Officer Alfaro’s vehicle moves closer to Appellee’s vehicle, Appellee’s vehicle corrects back to the right within her lane. Then, the right rear tire of Appellee’s U-Haul crosses over the center lane divider on the right for “a couple seconds” and rides on top of it for a few more. Appellee’s U-Haul then returns to and remains in the center lane until Officer Alfaro activates his patrol lights, and Appellee exits the highway and pulls over. The trial court granted the motion to suppress. It supported its order granting Appellee’s motion to suppress with the following findings of fact and conclusions of law: 1. The trial court finds credible the testimony of Corpus Christi Police Officer D. Alfaro that on April 23, 2017, he observed Sheila Jo Hardin’s vehicle traveling on the highway in front of him in the marked center lane of travel, and that he initiated a traffic stop for failure to maintain a single lane after he observed Hardin’s tires cross over the striped lines marking the center lane without Hardin signaling a lane change, although there were no other vehicles in the vicinity at the time or any other circumstance to suggest that this movement was unsafe. The trial court further finds that a video recording of Hardin’s vehicle made at the time of these observations and entered into evidence at the hearing on [the] motion to suppress supports Officer Alfaro’s testimony. 2. The Court further finds there was no evidence concerning the time of alleged burglaries or the BOLO regarding the U-Haul, the source of the information that a U-Haul was involved in burglaries in the area, or the reliability of the source, and there was no description of the vehicle regarding size, license plate, etc., from which an officer Hardin — 5 could reasonably suspect Defendant’s vehicle might be involved in or have evidence of criminal activity. The trial court concluded that, based upon these facts, Officer Alfaro lacked reasonable suspicion to stop Appellee for committing a traffic offense. The State appealed, arguing that the trial court erred in holding Officer Alfaro lacked reasonable suspicion to stop Appellee for committing a traffic offense. The only argument the State raised on appeal was that the failure to maintain a single lane is a traffic violation, regardless of whether or not it was safe to do so, and that violation provided reasonable suspicion for the traffic stop. 1 The court of appeals rejected this argument and affirmed the trial court’s order suppressing the evidence. The State filed a petition for discretionary review. We granted review to consider whether “The Thirteenth Court of Appeals erred in concluding that the officer who stopped Hardin’s vehicle lacked reasonable suspicion to stop her for failing to maintain a single lane by swerving into another lane, whether or not this movement could be done safely.” We hold that the court of appeals did not err and affirm. 1 State v. Hardin, No. 13-18-00244-CR, 2019 WL 3484428, at 4 (Tex. App.—Corpus Christi Aug. 1, 2019) (not designated for publication). Hardin — 6 Standard of Review As the court of appeals correctly noted, we review a trial court’s ruling on a motion to suppress under a bifurcated standard of review. 2 We give almost total deference to a trial court’s determination of historical facts and credibility when supported by the record. 3 Likewise, we afford almost total deference to a trial court’s ruling on mixed questions of law and fact, if the resolution to those questions turns on the evaluation of credibility and demeanor. 4 When the trial court makes explicit fact findings, as the trial court did in this case, we determine whether the evidence (viewed in the light most favorable to the trial court’s ruling) supports these fact findings. 5 We review legal conclusions, such as the construction of a statute, de novo. 6 Reasonable Suspicion A warrantless traffic stop is a Fourth Amendment seizure that is analogous to temporary detention; thus, it must be justified by 2 Hardin, 2019 WL 3484428, at 2 (citing Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)). See also Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). 3 Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). 4 Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). 5 State v. Kelley, 204 S.W.3d 808, 819 (Tex. Crim. App. 2006). 6 Sims v. State, 569 S.W.3d 634, 640 (Tex. Crim. App. 2019). Hardin — 7 reasonable suspicion. 7 If an officer has a reasonable suspicion that a person has committed a traffic violation, the officer may conduct a traffic stop. 8 Reasonable suspicion exists if the officer has specific articulable facts that, combined with rational inferences from those facts, would lead the officer to reasonably conclude the person is, has been, or soon will be engaged in criminal activity. 9 When making a determination of reasonable suspicion, we consider the totality of the circumstances. 10 Here, the question of whether there was reasonable suspicion to detain Appellee is not a function of Officer Alfaro’s demeanor or credibility. Instead, it turns on the application of a traffic statute to uncontested facts. To resolve the dispute in this case, we must first construe Transportation Code §545.060, “Driving on Roadway Laned for Traffic.” Statutory construction is a question of law that we review de novo. 11 Statutory Construction 7 Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). 8 Garcia v. State, 827 S.W.3d 937, 944 (Tex. Crim. App. 1992). 9 Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007). 10 Curtis v. State, 238 S.W.3d 376, 379 (Tex. Crim. App. 2007). 11 Mahaffey v. State, 316 S.W.3d 633, 637 (Tex. Crim. App. 2010). Hardin — 8 When we interpret statues, we seek to effectuate the collective intent or purpose of the legislators who enacted the legislation. 12 In doing so, we necessarily focus our attention on the literal text of the statute in question and attempt to discern the fair, objective meaning of the text at the time of its enactment. 13 We follow this principle because (1) the text of the statute is the law; (2) the text is the only definitive evidence of what the legislators had in mind when the statute was enacted into law; and (3) the Legislature is constitutionally entitled to expect that the Judiciary will faithfully follow the specific text that was adopted. 14 Our duty is to try to interpret the work of our Legislature as best we can to fully effectuate the goals they set out. 15 Legislative intent isn’t the law, but discerning legislative intent isn’t the end goal, either. 16 The end goal is interpreting the text of the statute. 17 In interpreting the text of the statute, we must presume that every word in a statute has been used for a purpose and that each word, 12 Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). 13 Watkins v. State, 619 S.W.3d 265, 271–72 (Tex. Crim. App. 2021) (citing Boykin, 818 S.W.2d at 785). 14 Mahaffey, 316 S.W.3d at 637–38 (quoting Boykin, 818 S.W.2d at 785). 15 Watkins, 619 S.W.3d at 272. 16 Id. 17 See State v. Mancuso, 919 S.W.2d 86, 87 (Tex. Crim. App. 1996) (citing Boykin, 818 S.W.2d at 785 and TEX. CONST. art. II, § 1 for the proposition that “[i]t is the duty of the Legislature to make laws, and it is the function of the Judiciary to interpret those laws.”). Hardin — 9 phrase, clause, and sentence should be given effect if reasonably possible. 18 We do not focus solely upon a discrete provision; we look at other statutory provisions as well to harmonize text and avoid conflicts. 19 “Time-honored canons of interpretation, both semantic and contextual, can aid interpretation, provided the canons esteem textual interpretation.” 20 Moreover, we read words and phrases in context and construe them according to rules of grammar. 21 When a particular term is not legislatively defined but has acquired a technical meaning, we construe that term in its technical sense. 22 When it has not, we construe that term according to common usage. 23 We may consult standard or legal dictionaries to determine the meaning of undefined terms. 24 18 State v. Rosenbaum, 818 S.W.2d 398, 400–01 (Tex. Crim. App. 1991) (citing TEX. GOV’T. CODE §§ 311.025(b), 311.026(a); State v. Hardy, 963 S.W.2d 516, 520 (Tex. Crim. App. 1997)); Morter v. State, 551 S.W.2d 715, 718 (Tex. Crim. App. 1977) (“Every word of a statute is presumed to have been used for a purpose, and a cardinal rule of statutory construction requires that each sentence, clause, phrase and word be given effect if reasonably possible.”) (quoting Eddins-Walcher Butane Co. v. Calvert, 298 S.W.2d 93, 96 (Tex. 1957)). 19 Watkins, 619 S.W.3d at 272. 20 BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 84 (Tex. 2017). 21 Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014). 22 Watkins, 619 S.W.3d at 272. 23 Id. 24 Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2001); Ex parte Rieck, 144 S.W.3d 510, 512–13 (Tex. Crim. App. 2004). Hardin — 10 Transportation Code § 545.060 and Failure to Maintain a Single Lane At the heart of this case is the construction of the statute that gives rise to the offense colloquially referred to as “failure to maintain a single lane.” Texas Transportation Code Section 545.060(a), titled “Driving on Roadway Laned for Traffic,” gives rise to this traffic offense. Section 545.060(a) provides in relevant part: (a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely. 25 Considering the statute as a whole, the statute is clear and unambiguous. “Nearly” means “almost but not quite.” 26 “Practical” as it is used in the statute simply means “having or displaying good judgment: SENSIBLE.” 27 “Safely” means “free from harm or risk,” “secure from threat of danger, harm, or loss,” or “affording safety or 25 TEX. TRANSP. CODE § 545.060(a). 26 Merriam-Webster’s Collegiate Dictionary 828 (11th ed. 2020). 27 See Webster’s II: New College Dictionary at 867 (1999); see also Black’s Law Dictionary 1418 (11th ed. 2019) (including the definition of “likely to succeed or be effective” as one possible definition of “practical.”); see also The Brittanica Dictionary (2022), https://www.britannica.com/dictionary/practical (including the following possible definitions: “likely to succeed and reasonable to do or use”; “relating to what can or should be done in an actual situation”; “logical and reasonable in a particular situation”). Hardin — 11 security from danger, risk, or difficulty.” 28 No one disputes that we should adopt the common understanding of these applicable terms. The dispute, instead, centers around whether the two statutory subsections create two different offenses or one. A plain reading of the statute reveals that a motorist does not commit an offense any time a tire touches or crosses a clearly marked lane. It is only when the failure to stay “as nearly as practical” entirely with a single lane becomes unsafe that a motorist violates the statute. Subsection (a)(1) does not require a motorist to stay entirely within a single lane; it only requires that a motorist remain entirely within a single marked lane “as nearly as practical.” In other words, a motorist is not actually required to maintain a single marked lane under subsection (a)(1). He or she must “almost, but not quite” stay within the lane. This section is designed to protect motorists from being accused of a crime due to an inability to stay entirely within a single marked lane at all times. 28 Merriam-Websters Collegiate Dictionary 1095 (11th ed. 2020); see also Cambridge Dictionary (2022), https://dictionary.cambridge.org/us/dictionary/english/safely (defining “safely” as meaning “in a safe way; without experiencing or causing danger or harm”); Macmillan Dictionary (2022), https://www.macmillandictionary.com/us/dictionary/american/safely (defining “safely” to mean “in a way that is not likely to cause damage, injury, or harm” and “in a way that does not involve a lot of risk”); Collins Dictionary (2022), https://www.collinsdictionary.com/us/dictionary/english/safely (“If something is done safely, it is done in a way that makes it unlikely that anyone will be harmed.”). Hardin — 12 Subsection (a)(2), on the other hand, prohibits any movement from the lane unless that movement can be made safely. And while the phrase “move from the lane” can include a complete lane change, the scope of the statute is not textually limited to situations in which the driver moves “entirely” from the lane because the legislature did not modify the word “move” with the word “entirely.” Considered in connection with subsection (a)(1), any unsafe weaving out of the lane violates the statute but weaving out of the lane without creating a safety risk does not violate the statute because incidental weaving is still staying “as nearly as practical” entirely within the single lane. Our legislature evinced an intent that these two subsections be read together because they are joined in two ways. First, the legislature’s use of the word “and” in the statute suggests that a driver must both drive in a single marked lane as nearly as practical and not move from that lane unless it can be done safely. 29 The use of the word “and” between two words or phrases most commonly means that the words or phrases on either side of the “and” are required. 30 For example, in the well-known constitutional phrase “cruel and unusual 29 See Antonin Scalia & Bryan A. Garner, Reading Law 116 (2012) (“Under the conjunctive/disjunctive canon, and combines items while or creates alternatives.”). 30 Id. Hardin — 13 punishment” the word “and” signals that a particular punishment must meet both standards to fall within the constitutional prohibition. 31 Second, subsection (a)(1) refers to “a single lane” while subsection (a)(2) refers to “the lane.” Combined with the legislature’s use of the conjunction “and” this reference to “the lane” in subsection (a)(2) is clearly intended as a reference to the “single lane” described in subsection (a)(1). In this way, subsection (a)(2) clarifies that the legislature envisions a driver driving within the single lane in subsection (a)(1) and potentially committing an offense when unsafely moving outside of it. Accordingly, incidental movement outside a single lane will not run afoul of the statute, but unsafe movement will. This is the only construction of the statute that gives effect to both statutory subsections. Even though one subsection arguably refers to a required act and the other refers to a prohibited act, both subsections are necessarily focused on the same conduct—moving out of the same single lane. In this way, both (a)(1) and (a)(2) are dependent upon each other. The phrase “as nearly as practical” is given effect by providing the circumstances in which a motorist does not commit an offense even if he or she fails to stay entirely within a single lane. Invariably the determination of when movement outside of a single lane 31 Id. Hardin — 14 can be characterized as no longer staying “almost, but not quite” entirely within a single lane requires resort to facts that suggest the continued movement outside the single lane is not safe. And that is how the safety requirement in (a)(2) is given effect because it provides a way of evaluating when a motorist’s inability to stay within the lane goes beyond incidental movements outside the lane and rises to the level of a traffic offense. Reading the statute as two separate requirements overlooks the interconnectedness of each subsection. Conversely, reading the statutory subsections as two independent requirements would render subsection (a)(1) unconstitutionally vague. Generally, a penal statute must define a criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement. 32 Had the statute created a duty to stay entirely within a single lane, we might draw a different conclusion. But (a)(1) creates a duty to stay “as nearly as practical” entirely within a single lane. Even assuming a motorist has notice of when he or she is no longer being “practical,” it is impossible for a motorist to know what constitutes “almost, but not quite” practical for purposes of avoiding criminal liability. In this manner, subsection (a)(1), when read alone, 32 Kolender v. Lawson, 461 U.S. 352, 357 (1983). Hardin — 15 not only fails to tell ordinary citizens how they are supposed to drive, it also encourages arbitrary enforcement by leaving the question of when someone fails to drive “as nearly as practical” within a single lane entirely up to the arresting officer. Further, reading the subsections independently of each other would render subsection (a)(2) meaningless. Recognizing an offense for any movement from a single marked lane that is something more significant than driving “as nearly as practical” within a single lane but nevertheless safe would necessarily subsume any offense based upon an “unsafe” movement from that lane. There would be no reason to ever evaluate whether movement from the lane was “safe” if the only necessary showing is whether the movement was no longer “as nearly as practical.” Finally, this reading of the statute would create a conflict with Transportation Code § 545.103, which prohibits a driver from moving right or left on a roadway unless that movement can be made safely. 33 Reading the two statutory subsections as interconnected and dependent 33 See TEX. TRANSP. CODE § 545.103 (“An operator may not turn the vehicle to enter a private road or driveway, otherwise turn the vehicle from a direct course, or move right or left on a roadway unless movement can be made safely.”). Nothing in the text of this statute limits its application to unmarked roadways. To the contrary, the Transportation Code defines “laned roadway” as a type of “roadway.” TEX. TRANSP. CODE §541.302. And the Legislature’s use of the broader term “roadway” in §545.103 evinces an intent that the statute apply to roadways with or without lanes. Hardin — 16 on each other is the only way to give effect to not only the statute at issue but also the statue’s place within the legislative scheme. Consequently, we hold that a person only violates Transportation Code § 545.060(a) if the person fails to maintain a single marked lane of traffic in an unsafe manner. In this case, we are only concerned with whether there was reasonable suspicion for Officer Alfaro to stop Appellee for violating § 545.060(a). The trial court found that Appellee’s tires crossed over the striped lines marking the center lane without Appellee signaling a lane change. This finding is supported by the record, including a video of Appellee’s driving before the stop, which shows the right rear wheel of Appellee’s U-Haul driving on and slightly over the lane divider for a few seconds. But the trial court also found that there were no other vehicles in the vicinity at the time or any other circumstances that would suggest that Appellee’s movement was unsafe. This finding is also supported by the record, and the State does not challenge it on appeal. Given these findings, we agree with the court of appeals that the trial court did not err in granting Appellee’s motion to suppress because without any evidence suggesting that this movement was unsafe, Officer Alfaro lacked reasonable suspicion to stop her vehicle. 34 At most, the record 34 As noted below by the court of appeals, the State does not argue that the BOLO warning provided Officer Alfaro with reasonable suspicion to stop Hardin. State v. Hardin, 2019 WL Hardin — 17 shows that Appellee drove “as nearly as practical” entirely within a single lane, which is not a traffic violation. The State urges us to adopt the position taken by four judges of this Court in Leming v. State. 35 Under that position, the “offense” for failure to maintain a single lane is found in § 542.301 of the Transportation Code, not in § 545.060, which nevertheless sets out the elements of the offense. Section 542.301 states that a person commits an offense “if the person performs an act prohibited or fails to perform an act required” by the applicable subtitle of the Transportation Code. 36 Under this argument, the failure to maintain a single lane constitutes an offense because it amounts to the failure to perform an act required by the Transportation Code, and the movement from a lane in an unsafe manner also constitutes an independent offense because it amounts to the performance of a prohibited act. We disagree. 3484428 at *2 (Tex. App.—Corpus Christi 2019). The only issue raised by the State on discretionary review is whether Officer Alfaro had reasonable suspicion to stop Appellee based upon her failure to maintain a single lane. 35 493 S.W.3d 552, 561 (Tex. Crim. App. 2016). It is tempting to consider this position a “plurality” of the Court, but that is not an accurate designation. As we have explained, a “plurality opinion” is an opinion in a fractured decision that was joined by the highest number of judges or justices. Unkart v. State, 400 S.W.3d 94, 100 (Tex. Crim. App. 2013). But the portion of the opinion in Leming giving rise to the State’s argument was not adopted by a plurality of the Court, as four judges on the Court disagreed with that analysis. See Leming, 493 S.W.3d at 568 (Keasler, J. dissenting); see also Leming, 493 S.W.3d at 573 (Newell, J. dissenting) (“I join Judge Keasler’s dissenting opinion on the issue of the statutory construction of Section 545.060(a) of the Transportation Code because I, too, do not read “and” to mean “or.”). On this issue, Leming resulted in a tie with neither of the two opposing viewpoints gaining a plurality. 36 TEX. TRANSP. CODE § 542.301. Hardin — 18 This interpretation of the statute assumes what it seeks to prove. The general offense provision found in § 542.301 speaks to the general requirement that all violations of the Transportation Code must involve either an act or a failure to act. It does not set out the elements of any specific offense. Nor does it clarify how to construe a statute that characterizes the same conduct as both the failure to perform a required act and the performance of a prohibited act. For example, § 545.066 of the Transportation Code describes two separate acts, stopping before reaching a school bus when the bus is operating a visual signal and starting again before one of three events occurs, namely the bus resumes motion, the bus driver signals the operator to proceed, or the visual sign is no longer actuated. 37 The State’s reading of § 542.301 can apply easily to that statute because it deals with two separate acts. 38 But § 545.060 only deals with one act—moving out of a single marked lane—even though the statute characterizes that conduct as both an act and a failure to act. The general offense provision found in § 542.301 does not speak to that type of situation. 37 TEX. TRANSP. CODE § 545.066. 38 This statute is similar to Transportation Code § 545.053, which deals with passing a vehicle on the left and the moving back to the right safely. TEX. TRANSP. CODE § 545.053. Both § 545.066 and § 545.053 deal with offenses that, by their own terms, cover two separate acts. Hardin — 19 Given this context, § 542.301 is best understood as a general provision recognizing that violating a traffic regulation amounts to a criminal offense regardless of whether the violation flows from an act or a failure to act. That section does not suggest how to determine whether a particular Transportation Code section sets out a single offense, multiple different ways of committing the same offense, or multiple different offenses. Determining those issues requires examination of the specific statutes that actually require or proscribe conduct. Moreover, this interpretation fails to account for the history of the statute. The original statutory provision, Article 6701d, §60, was enacted in 1947 as part Senate Bill 172, a comprehensive set of statutes regulating traffic. 39 The text of Article 6701d, §60 was originally drafted as a single sentence: Sec. 60. Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: (a) The driver of a vehicle shall drive as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such a movement can be made safely. 40 39 See Act of June 3, 1947, 50th Leg., R.S., ch. 421, § 60, 1947 Tex. Gen. Laws 967, 978, repealed by Act of April 21, 1995, 74th Leg., R.S., ch. 165, § 24(a), 1995 Tex. Gen. Laws 1025, 1870. 40 TEX. REV. CIV. STAT. Article 6701d, § 60(a) (Vernon 1977). Hardin — 20 In 1995, the Legislature repealed the Revised Civil Statutes dealing with Traffic Regulations and replaced it with the Transportation Code. 41 The Transportation Code was enacted as part of the state’s continuing statutory revision program, which codified the previous statutes without substantive change. 42 So, even though the statute was later broken up into two different subsections, the Legislature specifically declared its intent that this change was cosmetic and not substantive. Even if we were to assume that the statute was ambiguous, the statutory history suggests that the Legislature has always intended that this subsection create only one offense. Finally, we reject the suggestion that a motorist who drives between two lanes for an extended period of time could never be subject to a traffic stop. Each case involving the review of traffic stop depends upon the unique circumstances of that offense, so it is inappropriate to suggest how this Court would apply this statute to another and obviously incomplete set of facts. But even assuming that this hypothetical behavior does not violate § 545.060, it may provide specific articulable facts to support reasonable suspicion for violation of another offense. 41 See Act of April 21, 1995, 74th Leg., R.S., ch. 165, § 1, 1995 Tex. Gen. Laws 1025, 1025. 42 TEX. TRANSP. CODE § 1.001. Hardin — 21 Indeed, we held in Leming that the officer in that case had reasonable suspicion to stop the defendant for driving while intoxicated regardless of whether he failed to maintain a single lane. 43 Notably, the defendant in Leming was seen driving slowly and swerving radically within his own lane. He also crossed the center stripe of the road moving partially into another lane of traffic. However, the officers testified that they did not stop the defendant immediately because it would have created a safety concern. We held under those circumstances that these facts gave rise to reasonable suspicion for the offense of DWI. 44 Thus, even under circumstances in which a motorist crosses from one lane into another without necessarily raising a safety concern, that behavior can still be considered along with other facts to provide reasonable suspicion to stop for suspicion of driving while intoxicated. Our interpretation of § 545.060 in this case should not be misconstrued or overread to suggest that a traffic stop is always unreasonable in every instance in which a driver weaves in and out of a single lane. 45 43 Leming, 493 S.W.3d at 563-64. 44 Id. at 565. 45 In her concurring opinion, Judge Slaughter observes that Officer Alfaro’s stop could have been justified under a theory that he acted under a reasonable mistake regarding unsettled law. At least one court of appeals has reached a similar conclusion post-Leming. See, e.g., Dugar v. State, 629 S.W.3d 494, 499 (Tex. App.—Beaumont 2021, pet. ref’d.). We take no issue with that holding. However, as the concurring opinion correctly observes, the State Hardin — 22 Conclusion Based on our review of the record and our precedent, we conclude that the detaining officer did not have reasonable suspicion to stop Appellee for violating Transportation Code Section 545.060. Accordingly, the trial court did not err in granting Appellee’s motion to suppress. We affirm the decision of the court of appeals. FILED: November 2, 2022 PUBLISH chose not to make that argument in this case. Therefore, we cannot reverse the trial court’s holding on that theory. State v. Mercado, 972 S.W.2d 75, 78 (Tex. Crim. App. 1998).	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481294/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0154-22 THOMAS GEORGE GRISWOLD, III, Appellant V. THE STATE OF TEXAS ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS ROCKWALL COUNTY Per curiam. OPINION Appellant was charged with stalking by engaging in conduct that is an offense under section 42.07 and/or engaging in conduct he knew or reasonably should have known the complainant would regard as threatening bodily injury or death and did cause the complainant to fear bodily injury or death. See T EX. P ENAL C ODE § 42.072(a). Appellant filed Griswold - 2 a pre-trial motion to quash the indictment, arguing the stalking statute is facially unconstitutional as vague and overbroad due to its incorporation of section 42.07(a)(7) (electronic harassment). The trial court denied the motion. Appellant was convicted and appealed. The Court of Appeals held that section 42.072(a) is facially unconstitutional for vagueness and overbreadth to the extent it incorporates section 42.07(a)(7). Griswold v. State, 637 S.W.3d 888 (Tex. App. – Dallas 2021, pet. filed). The court reversed and remanded the case to the trial court to grant the motion to quash and dismiss the indictment. The State filed a petition for discretionary review arguing that the Court of Appeals erred in finding the stalking statute unconstitutional and in reversing the conviction. We handed down opinions in Ex parte Barton, No. PD-1123-19, 2022 WL 1021061 (Tex. Crim. App. Apr. 6, 2022), and Ex parte Sanders, No. PD-0469-19, 2022 WL 1021055 (Tex. Crim. App. Apr. 6, 2022), in which we upheld the facial constitutionality of a previous version of section 42.07(a)(7). See Acts 2001, 77th Leg., ch. 1222 (S.B. 139), § 1, eff. Sept. 1, 2001. The indictment in this case alleged conduct that occurred on or about January 1, 2007 through April 24, 2018. Therefore, at least a portion of Appellant's case involves a challenge to the version of section 42.07 that became effective after being amended by the legislature in 2017. See Acts 2017, 85th Leg., ch. 522 (S.B. 179), §§ 13, 14, eff. Sept. 1, 2017. The Court of Appeals in the instant case did not have the benefit of our decisions in Ex parte Barton and Ex parte Sanders. Accordingly, we grant the State’s petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to Griswold - 3 the Court of Appeals for further consideration in light of Ex parte Barton and Ex parte Sanders, and to address Appellant's remaining issues if necessary. DELIVERED November 2, 2022 PUBLISH	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481352/	[Cite as Haven v. Lodi, 2022-Ohio-3957.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA ) BRET HAVEN C.A. No. 21CA0074-M Appellant v. APPEAL FROM JUDGMENT ENTERED IN THE VILLAGE OF LODI COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO Appellee CASE No. 21 CIV 0298 DECISION AND JOURNAL ENTRY Dated: November 7, 2022 CALLAHAN, Judge. {¶1} Appellant, Bret Haven, appeals from the judgment of the Medina County Court of Common Pleas dismissing his amended complaint for failure to state a claim. For the reasons set forth below, this Court affirms. I. {¶2} In August 2015, Mr. Haven was hired by the village of Lodi (“Lodi”) as a part-time police officer. Mr. Haven became a full-time police officer in March 2016. On February 10, 2021, the Chief of Police of Lodi recommended to the Mayor of Lodi, who is also the Village Council President, that Mr. Haven’s employment with the Lodi police department be terminated. Lodi terminated Mr. Haven on February 20, 2021. The reason for his termination was that Mr. Haven was “‘dishonest, unfair, having no respect for the rights of others, being rude, being insulting, [conduct unbecoming]’” when he issued a citation to a motorist who was “doing donuts with his car in a snowy parking lot at a trailer park[.]” 2 {¶3} Mr. Haven filed a complaint against Lodi alleging wrongful termination in violation of public policy. Lodi moved to dismiss the complaint for failure to state a claim, asserting that Mr. Haven’s wrongful termination claim failed to satisfy the requisite clarity and jeopardy elements. In response to Lodi’s motion to dismiss, Mr. Haven filed an amended complaint. Lodi filed a motion to dismiss the amended complaint for failure to state a claim, reasserting the arguments in its prior motion to dismiss and adding a new argument that Mr. Haven could not pursue a claim for wrongful termination in violation of public policy because he was not an at-will employee. The trial court scheduled a deadline for Mr. Haven to file a response. Prior to that deadline Mr. Haven moved for a sixty-day extension of the response deadline so that he could issue discovery to Lodi, which he asserted would render moot all the issues in the motion to dismiss. Lodi opposed the motion for extension, but the trial court granted Mr. Haven a sixty-day extension. {¶4} Ten days before his response to Lodi’s motion to dismiss was due, Mr. Haven moved for a second extension of the response deadline. He requested an additional 150 days to conduct depositions in follow-up to Lodi’s discovery responses. Lodi opposed Mr. Haven’s second extension request and Mr. Haven filed a reply. The deadline for Mr. Haven to oppose Lodi’s motion to dismiss passed without him having filed a response brief. Eleven days after the briefing period closed, the trial court denied Mr. Haven’s motion for a second extension and granted Lodi’s motion to dismiss the amended complaint. {¶5} Mr. Haven timely appealed, raising two assignments of error. II. ASSIGNMENT OF ERROR NO. 1 THE COURT OF COMMON PLEAS ERRED TO THE MATERIAL PREJUDICE OF [MR. HAVEN] WHEN IT GRANTED [LODI’S] OHIO CIVIL RULE 3 12(B)(6) MOTION AFTER ERRONEOUSLY CONSTRUING THE ALLEGATIONS IN THE AMENDED COMPLAINT AGAINST [MR. HAVEN] TO MAKE UNFOUNDED FACT INFERENCES AND ERRONEOUS CONCLUSIONS OF LAW FROM THE ALLEGATIONS THEREIN INCLUDING THAT [MR. HAVEN] WAS NOT AN AT-WILL EMPLOYEE ENTITLED TO PURSUE A GREELEY WRONGFUL DISCHARGE CLAIM. {¶6} In his first assignment of error, Mr. Haven argues that the trial court erred in dismissing his amended complaint for failure to state a claim. We disagree. {¶7} This Court reviews an order granting a Civ.R. 12(B)(6) motion to dismiss de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, ¶ 5. A motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim “is a procedural motion that tests the sufficiency of the plaintiff’s complaint.” Pugh v. Capital One Bank (USA) NA, 9th Dist. Lorain No. 20CA011643, 2021-Ohio-994, ¶ 7, citing State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548 (1992). A court may dismiss a complaint for failure to state a claim only when, having presumed that all factual allegations in the complaint are true and having made all reasonable inferences in favor of the plaintiff, it appears beyond a doubt that the plaintiff can prove no set of facts that would permit a recovery. Mitchell v. Lawson Milk Co., 40 Ohio St.3d 190, 192 (1988); O’Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242 (1975), syllabus. However, “unsupported conclusions of a complaint are not considered admitted and are not sufficient to withstand a motion to dismiss.” State ex rel. Seikbert v. Wilkinson, 69 Ohio St.3d 489, 490 (1994). Accord State ex rel. Yeager v. McCarty, 9th Dist. Summit No. 29626, 2021-Ohio-2492, ¶ 5. A court’s consideration of a Civ.R. 12(B)(6) motion to dismiss is limited to the complaint’s factual allegations and any materials incorporated into the complaint. King v. Semi Valley Sound, LLC, 9th Dist. Summit No. 25655, 2011-Ohio-3567, ¶ 8. A “court may not assume as true or even 4 consider facts alleged in a party’s brief or attachments thereto.” Phung v. Waste Mgt., Inc., 23 Ohio St.3d 100, 102 (1986). {¶8} Mr. Haven’s amended complaint set forth a single count for wrongful discharge in violation of public policy. As a general rule, Ohio follows the doctrine of employment at-will. See Mers v. Dispatch Printing Co., 19 Ohio St.3d 100, 103 (1985). However, in Greeley v. Miami Valley Maintenance Contrs., Inc., 49 Ohio St.3d 228 (1990), the Ohio Supreme Court carved out a public policy exception to this rule: “Public policy warrants an exception to the employment-at- will doctrine when an employee is discharged or disciplined for a reason which is prohibited by statute.” Id. at paragraph one of the syllabus. {¶9} A Greeley cause of action may only be brought by an at-will employee. Haynes v. Zoological Soc. of Cincinnati, 73 Ohio St.3d 254 (1995), syllabus. Accord Deadwyler v. Akron Pub. Schools, 9th Dist. Summit No. 21549, 2003-Ohio-7173, ¶ 14. “The identifying characteristic of an employment-at-will relationship is that either the employer or the employee may terminate the employment relationship for any reason which is not contrary to law.” Haynes at 258, citing Mers at paragraph one of the syllabus and Boggs v. Avon Prods., Inc., 56 Ohio App.3d 67, 71 (12th Dist.1990). {¶10} “‘[T]he [employment] relationship between a governmental employer an[d] employee is governed exclusively by statute or legislative enactment.’” Evans v. Shawnee Twp. Bd. of Trustees, 3d Dist. Allen No. 1-20-25, 2021-Ohio-1003, ¶ 9, quoting Cobb v. Oakwood, 789 F.Supp. 237, 240 (N.D.Ohio 1991). The General Assembly has enacted statutes governing the employment of police chiefs and police officers by a village. See R.C. 737.15 to R.C. 737.171, R.C. 737.19. R.C. 737.16 provides for the appointment of a police officer for a village and that the “officer[] shall continue in office until removed therefrom for the cause and in the manner 5 provided by [R.C. 737.19].” R.C. 737.19(B) sets forth the grounds and the procedure for suspension of a police officer by the marshal and provides for discipline or removal of a police officer by the mayor. A police officer may be suspended on the grounds of “incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given them by the proper authority, or for any other reasonable or just cause.” Id. The mayor inquires as to the above citied cause of the suspension and renders a judgment on the charges. Id. Should the charges be sustained, the mayor’s judgment “may be for the person’s suspension, reduction in rank, or removal from the department.” Id. The police officer may appeal the mayor’s judgment to the village’s legislative authority. Id. Based upon R.C. 737.16 and R.C. 737.19(B), a police officer employed by a village “cannot be removed at any time for any reason or no reason, as is the case with employment at[-]will.” Compare Howell v. New Lebanon, Ohio, 2d Dist. Montgomery No. 18323, 2000 WL 1726864, 2-3 (Nov. 22, 2000) (A village employee who filed a Greeley claim was not an employee at-will because the village charter “provide[d] particular bases for removal” of the employee and the employee could not be “removed at any time for any reason or no reason[.]”). Accordingly, a police officer appointed by the mayor of the village pursuant to R.C. 737.16 is not an at-will employee. {¶11} In contrast to those statutes, R.C. 737.17 sets forth minimal requirements for the termination of a probationary village police officer. See Klein v. Woodlawn, Ohio, 1st Dist. Hamilton No. C-75308, 1976 WL 189728, 2 (May 17, 1976). Before a police officer can be finally appointed, the police officer must satisfactorily complete a continuous six-month probationary period. R.C. 737.17. At the end of the probationary period, the mayor may remove or finally appoint the police officer. Id. The decision to remove a probationary officer is solely that of the mayor; neither council nor the marshal are involved in this decision. See Scarpelli v. 6 Put-in-Bay, Ohio, 6th Dist. Ottawa No. OT-94-037, 1995 WL 386462, 3 (June 30, 1995); R.C. 737.17. See also Bruns v. Chippewa Lake, 9th Dist. Medina No. 02CA0110-M, 2003-Ohio-3144, ¶ 9-10. If the mayor chooses to remove the probationary officer, the statute does not afford any rights or procedures to a probationary village police officer for a hearing. See Barnes v. Cadiz, 7th Dist. Harrison No. 01 531 CA, 2002-Ohio-1534, ¶ 12; Klein at 2. Unlike a finally appointed police officer, a probationary police officer lacks the “right[] to be terminated for cause” and a probationary police officer has no “property interest in their employment.” Barnes at ¶ 12. Thus, a probationary police officer under R.C. 737.17 is an at-will employee. Id. at ¶ 13. {¶12} The trial court, after construing the allegations in the amended complaint to be true and making all reasonable inferences in favor of Mr. Haven, granted Lodi’s motion to dismiss the amended complaint for failure to state a claim because it concluded that Mr. Haven could not be an at-will employee. “An essential element of the [Greeley] tort is that the employee was an at- will employee.” Potts v. Catholic Diocese of Youngstown, 159 Ohio App.3d 315, 2004-Ohio- 6816, ¶ 29 (7th Dist.). Accordingly, a plaintiff pursuing a claim for wrongful discharge in violation of public policy must plead and prove that he was an at-will employee. Strausbaugh v. Ohio Dept. of Transp., 150 Ohio App.3d 438, 2002-Ohio-6627, ¶ 36 (10th Dist.). {¶13} Mr. Haven argues that he did plead that he was an at-will employee, but the trial court “refused to take the pleadings as truthful.” Mr. Haven’s amended complaint alleged he “was an employee at will, which means he could not be fired for an illegal reason including a violation of Ohio public policy * * .” Mr. Haven’s allegation that he “was an employee at will[]” was an unsupported conclusion. “Conclusions in the complaint that are not supported by factual allegations in the complaint cannot be deemed admitted and are insufficient to withstand a motion to dismiss.” State ex rel. Yeager, 2021-Ohio-2492, at ¶ 5. As set forth in the following analysis, 7 Mr. Haven failed to plead factual allegations in support of his conclusion that he was an employee at-will. Rather, his factual allegations regarding his employment refuted his conclusion that he was an at-will employee. {¶14} Mr. Haven suggests that the employee handbook supports his conclusion that he was an at-will employee. The employee handbook, however, was not attached to the amended complaint, nor was it referenced in the amended complaint. Instead, excerpts from the employee handbook and discovery responses related to the employee handbook were attached to Mr. Haven’s motions for extension of time to respond to Lodi’s motion to dismiss the amended complaint. However, the “court may not assume as true or even consider facts alleged in a party’s brief or attachments thereto.” Phung, 23 Ohio St.3d at 102. Rather, the court is limited to considering the factual allegations in the complaint and any attachments thereto. See State ex rel. Fuqua v. Alexander, 79 Ohio St.3d 206, 207 (1997). Because “[a] motion to dismiss must be decided only on the basis of the complaint[]” and Mr. Haven did not allege in the amended complaint that the employee handbook provided that Mr. Haven’s employment was at-will, nor did he attach the employee handbook to his amended complaint, we cannot consider or assume as true Mr. Haven’s new allegation that the employee handbook stated he was an at-will employee. See Conrad v. Wooster Community Hosp., 9th Dist. Wayne No. 2553, 1990 WL 163860, 1-2 (Oct. 24, 1990) (holding that the trial court erred when it granted a motion to dismiss because it considered the employee handbook, which was not attached to the complaint, to determine that the employee was at-will). {¶15} Mr. Haven’s amended complaint alleged that he was employed as a police officer for Lodi and Lodi is a statutory village. The amended complaint alleged that Mr. Haven was hired as a part-time police officer in August 2015 and was made a full-time police officer in March 2016. 8 Mr. Haven also alleged that his employment was terminated on February 20, 2021 through the actions of the police chief, mayor, and the council of Lodi. Mr. Haven alleged the grounds for his termination were that he was “‘dishonest, unfair, having no respect for the rights of others, being rude, being insulting, [conduct unbecoming]’” during a traffic stop. {¶16} Based upon Mr. Haven’s allegations, Lodi, as a statutory village, is “bound by the provisions of the Ohio Revised Code[,]” see Bruns, 2003-Ohio-3144, at ¶ 6, and Mr. Haven was a governmental employee whose employment was governed by statute, Evans, 2021-Ohio-1003, at ¶ 9, quoting Cobb, 789 F.Supp. at 240. While the amended complaint did not explicitly state whether Mr. Haven was a probationary or finally appointed police officer for Lodi, there were factual allegations that he was hired by Lodi as a part-time police officer, six months later he was made a full-time police officer, and his termination occurred almost five years later. Further, Mr. Haven’s allegations that he was terminated by the actions of the police chief, mayor, and council and that his termination was based upon him being “‘dishonest, unfair, having no respect for the rights of others, being rude, being insulting, [conduct unbecoming]’” during a traffic stop support the conclusion that he was removed from office for cause and pursuant to the procedures in R.C. 737.19 as is required by R.C. 737.16 for a finally appointed police officer, and that he was not terminated pursuant to R.C. 737.17 which governs probationary police officers. {¶17} Construing the factual allegations as true and making all reasonable inferences in favor of Mr. Haven, Mr. Haven was not a probationary police officer under R.C. 737.17 and subject to removal for any reason; rather, he was a finally appointed police officer whose employment was governed by R.C. 737.16 and R.C. 737.19 and subject to removal only for cause. Therefore, as a matter of law, Mr. Haven was not an at-will employee and a cause of action under Greeley was unavailable to him. See Barnes, 2002-Ohio-1534, at ¶ 12-14; Howell, 2000 WL 1726864, at 3. 9 {¶18} Mr. Haven asserts that the trial court erred in considering whether he was a probationary police officer at the time of his termination because that fact has no relevance to the case. On the contrary, Mr. Haven’s status as a probationary police officer when he was terminated is not only relevant, but dispositive of the issue of whether he was an at-will employee and stated a claim for wrongful discharge in violation of public policy. See Barnes at ¶ 13-14 (Pursuant to R.C. 737.17 a probationary police officer is an at-will employee, and a probationary police officer may have a Greeley cause of action.). {¶19} Mr. Haven argues that the trial court incorrectly interpreted and relied upon R.C. 737.16 and R.C. 737.19 to grant Lodi’s motion to dismiss. Namely, Mr. Haven asserts that neither R.C. 737.16 or R.C. 737.19 create a property right in a village police officer’s employment because these statutes do not provide the police officer with tenure and thus village police officers are at- will employees. Mr. Haven suggests that village police officers are members of the unclassified civil service because village employees are not considered classified public employees and “R.C. 737.19 does not promise any employee will only be terminated for good cause,” but only sets forth a routine procedure for a police chief to discipline a police officer. {¶20} The issue of whether an employee has a property right in his or her continued employment is relevant to whether the employee has any due process rights with respect to termination of their employment. See Cleveland Bd. of Edn. v. Loudermill, 470 U.S. 532, 538-539 (1985). Lodi urges this Court to find Mr. Haven’s tenure argument to be irrelevant in this matter because his amended complaint did not allege a cause of action for deprivation of his due process rights. We agree Mr. Haven has not pursued a due process claim in his amended complaint. Moreover, he is not arguing on appeal that his due process rights were violated. Instead, we understand Mr. Haven’s tenure argument to be limited to the position that village police officers 10 are at-will employees because R.C. 737.19 does not provide a property interest in continued employment. See generally Schmidt v. Newtown, 1st Dist. Hamilton No. C-110470, 2012-Ohio- 890, ¶ 8 (“At-will employees * * do not have a property interest in continued employment.”). {¶21} Mr. Haven asserts that R.C. 737.19 is not equivalent to the civil service statutes governing termination of public employees. We recognize that R.C. 124.34 pertains to civil service employees, but does not apply to village employees. State ex rel. Henderson v. New Richmond, Ohio, 12th Dist. Clermont No. CA2019-11-089, 2020-Ohio-4875, ¶ 31. However, “[c]ourts have analogized the language in R.C. 737.19 governing the termination of village police officers to R.C. 124.34 which governs the tenure, reduction, suspension, removal, and demotion of classified civil servants.” Velazquez v. Bratenahl, 8th Dist. Cuyahoga No. 81592, 2003-Ohio- 878, ¶ 14, citing Shaffer v. W. Farmington, 82 Ohio App.3d 579, 587 (11th Dist.1992) and Stephen v. Barnesville, Ohio, 7th Dist. Belmont No. 97 BA 12, 1999 WL 669491, 3 (Aug. 20, 1999). R.C. 737.16 states that the village police officer “shall continue in office until removed therefrom for the cause and in the manner provided by [R.C. 737.19].” R.C. 737.19(B) governs the termination of village police officers and provides that they “may only be terminated for ‘ * * incompetence, gross neglect of duty, gross immorality, habitual drunkenness, failure to obey orders given them by proper authority, or for any other reasonable or just cause.’” (Emphasis added.) Velazquez at ¶ 13, quoting R.C. 737.19(B). Accordingly, courts have held that “[o]n its face, R.C. 737.19(B) bears a strong resemblance to the police and fire department civil service appeal provisions found at R.C. 124.34.” Shaffer at 587. For instance, R.C. 124.34 lists grounds for suspension, removal or reduction in rank as including “incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, * * * any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.” 11 Moreover, the role of the “appointing authority” (which is frequently a city’s mayor) is similar to the role the village marshal and village mayor play in an R.C. 737.19(B) appeal. The analogy continues with the city’s civil service commission serving in the quasi-judicial capacity which the village’s legislative authority fulfills in an R.C. 737.19(B) appeal. Id. at 587, fn. 1. {¶22} “In Loudermill, the United States Supreme Court held that R.C. 124.34 creates a property interest in continued employment for classified civil servants because such employees can only be terminated for cause.” Velazquez at ¶ 14, citing Loudermill at 538-539. Likewise, R.C. 737.19 creates a property interest in continued employment for a village police officer because village police officers can be terminated “only for just or reasonable cause[]” under R.C. 737.19(B). Velazquez at ¶ 14. See also R.C. 737.16. Accordingly, Mr. Haven’s position that village police officers are employees at-will because R.C. 737.16 and R.C. 737.19 do not provide a property interest in continued employment is not well-taken. {¶23} Mr. Haven also submits that village police officers are employees at-will because a village may terminate the police officers for economic reasons. His argument suggests that village police officers are at-will employees because they may be terminated for reasons other than cause under R.C. 737.19 The Ohio Supreme Court has “concluded that public employees may be laid- off for reasons of economy ‘notwithstanding statutory or charter provisions to the effect that no employee in the classified service shall be removed except for cause * * , the view * * being that such statutory or charter provisions * * * are not intended to restrict the public authorities in their efforts to effect necessary or desirable economies.’” (Alterations in the original.) Gannon v. Perk, 46 Ohio St.2d 301, 312-313 (1976), quoting State ex rel. Buckman v. Munson, 141 Ohio St. 319, 326 (1943). Neither Gannon nor Munson hold that a public employee who, by statute, may 12 only be removed for cause is in-fact an employee at-will because the government is permitted to lay off a civil service employee for economic reasons. {¶24} Lastly, Mr. Haven argues that R.C. 737.19 only creates a scheme for the police chief of the village police department to discipline a police officer for cause and there is not a judicial remedy nor an adequate or exclusive remedy providing for recovery of damages. This argument addresses the jeopardy element in a Greeley cause of action. See House v. Iacovelli, 159 Ohio St.3d 466, 2020-Ohio-435, ¶ 16, 19. While Lodi argued in its motion to dismiss that the amended complaint failed to satisfy the jeopardy element, the trial court did not grant the motion to dismiss on that basis. Accordingly, we will not address this argument in the first instance. See Carriage Ins. Agency, Inc. v. Ohio Farmers Ins. Co., 9th Dist. Summit No. 27259, 2015-Ohio- 2617, ¶ 12. {¶25} Upon review of Mr. Haven’s amended complaint, and presuming all factual allegations as true and construing the reasonable inferences in Mr. Haven’s favor, Mr. Haven has failed to state a claim upon which relief may be granted. Accordingly, we conclude that the trial court did not err in dismissing Mr. Haven’s amended complaint pursuant to Civ.R. 12(B)(6). {¶26} Mr. Haven’s first assignment of error is overruled. ASSIGNMENT OF ERROR NO. 2 THE TRIAL COURT ABUSED ITS DISCRETION IN NOT GRANTING [MR. HAVEN] A SECOND EXTENSION OF TIME TO FILE A BRIEF IN OPPOSITION TO [LODI’S] CIVIL RULE 12(B)(6) MOTION AND TO TAKE ADDITIONAL DISCOVERY WHEN THE EXTENSION WAS SOUGHT BECAUSE OF EVASIVE DISCOVERY RESPONSES MADE BY THE OPPOSING PARTY IN FIRST ROUND DISCOVERY. {¶27} In his second assignment of error, Mr. Haven argues that the trial court abused its discretion when it denied his motion for a second extension of time to file a response to Lodi’s motion to dismiss and to conduct additional discovery. Alternatively, Mr. Haven argues that it 13 was an abuse of discretion for the trial court to deny his second motion for extension and to grant Lodi’s motion to dismiss in the same order and not allow him two weeks to file a response brief. We disagree with both arguments. {¶28} We review a trial court’s decision denying a motion for extension of time to respond to a motion for an abuse of discretion. GMAC Mtge., L.L.C. v. Jacobs, 196 Ohio App.3d 167, 2011-Ohio-1780, ¶ 7 (9th Dist.) See Civ.R. 6(B). “[A] trial court has the inherent power to conduct discovery as it deems appropriate[.]” Riggs v. Richard, 5th Dist. Stark No. 2006CA00234, 2007- Ohio-490, ¶ 15. Thus, a trial court’s decision regarding the regulation of discovery proceedings is reviewed for an abuse of discretion. See Wells Fargo Bank, NA v. Russell, 9th Dist. Summit No. 29005, 2019-Ohio-776, ¶ 18. An abuse of discretion is present when a trial court’s decision “‘is contrary to law, unreasonable, not supported by evidence, or grossly unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25. {¶29} Mr. Haven submits that his second motion for extension of time to respond to Lodi’s motion to dismiss was based upon Lodi’s evasive discovery responses. Mr. Haven asked the trial court for an additional 150 days to conduct discovery and to take depositions regarding a variety of issues, including his status as an at-will employee, which he asserted was a key dispositive issue to the motion to dismiss. Mr. Haven indicated to the trial court that Lodi perjured itself when it responded to the request for admission with a denial that he was an at-will employee and that depositions were needed as to this issue. Mr. Haven did not present any other bases for his second request for extension of time to respond to Lodi’s motion to dismiss. {¶30} Mr. Haven asserts that the trial court’s denial of the discovery motion and the second motion for extension of time to respond to the motion to dismiss prevented him from 14 proving his claims. Mr. Haven has misconstrued the law regarding a motion to dismiss. A motion to dismiss “is a procedural motion that tests the sufficiency of the plaintiff’s complaint.” Pugh, 2021-Ohio-994, at ¶ 7, citing State ex rel. Hanson, 65 Ohio St.3d at 548. The Ohio Supreme Court has explained that review of a motion to dismiss for failure to state a claim is consistent with the notice pleading requirement. York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144-145 (1991). A plaintiff need not “prove his or her case at the pleading stage.” Id. at 145. Rather, “as long as there is a set of facts, consistent with the plaintiff’s complaint, which would allow the plaintiff to recover, the court may not grant a defendant’s motion to dismiss.” Id. {¶31} In this matter, the trial court denied the second motion for extension of time because “[n]o amount of discovery can cure [Mr. Haven’s] own factual assertions contradicting and refuting the requirement that [he] be an at-will employee to be entitled to pursue [a Greeley] cause of action.” Mr. Haven asserts that the trial court abused its discretion in reaching that conclusion. As addressed in the first assignment of error, Mr. Haven’s factual allegations did not support the legal conclusion that he was an at-will employee. Additional discovery cannot remedy these pleading deficiencies. {¶32} Appellate courts in Ohio have concluded that discovery is unnecessary for a trial court to decide a motion to dismiss for failure to state a claim upon which relief can be granted. Wiles v. Miller, 10th Dist. Franklin No. 12AP-989, 2013-Ohio-3625, ¶ 3, 44, quoting Lindow v. N. Royalton, 104 Ohio App.3d 152, 159 (8th Dist.1995). “The completion of discovery is not relevant to the granting of a motion to dismiss[,]” because the trial court’s consideration of a motion to dismiss under Civ.R. 12(B)(6) is limited to the allegations and evidence contained in the complaint and precludes facts outside of the complaint. See Lindow at 159; Crane Serv. & Inspections, LLC v. Cincinnati Specialty Underwriters Ins. Co., 12th Dist. Butler No. CA2018-01-003, 2018-Ohio- 15 3622, ¶ 33, citing Lindow at 159. See Conrad, 1990 WL 163860, at *3 (noting that because a Civ.R. 12(B)(6) motion is based only on the complaint, discovery is of “no consequence until the disposition of the motion to dismiss”). Accordingly, we conclude that the trial court did not abuse its discretion in not allowing further discovery and in denying the second motion for extension of time to respond to the motion to dismiss. {¶33} Alternatively, Mr. Haven asserts that if he could not have five months for further discovery and to file his response brief, the trial court should have given him at least two additional weeks to file his response brief. In this case, Mr. Haven filed his second motion for extension of time ten days prior to the response brief deadline. The trial court denied the second motion for extension and granted Lodi’s motion to dismiss eleven days after Mr. Haven’s response brief was due. While we recognize that the trial court’s ruling on the second motion for extension after the expiration of the filing deadline placed Mr. Haven in a difficult predicament as to how to proceed, this Court has followed the rule of law that “a trial court’s failure to rule gives rise to a presumption that the trial court has denied the motion.” See Jacobs, 196 Ohio App.3d 167, 2011-Ohio-1780, at ¶ 9. A party “cannot rely upon the granting of such a motion and should proceed as if said motion had been denied when it is not promptly granted by the trial court.” Breeding v. Herberger, 81 Ohio App.3d 419, 421 (10th Dist.1992). Mr. Haven did not proceed in this manner and the trial court granted the motion to dismiss after Mr. Haven’s deadline to file his response had expired. See Jacobs at ¶ 9. Accordingly, it was not an abuse of discretion for the trial court to proceed to rule on Lodi’s motion to dismiss after the briefing period had expired and without the benefit of a response brief from Mr. Haven. {¶34} Furthermore, Mr. Haven’s second request for an extension of time only requested an extension of 150 days for discovery and to file his response. He did not request an alternative 16 period of two weeks in the event the trial court denied his request for 150 days. Accordingly, we cannot say that the trial court abused its discretion when it did not provide Mr. Haven two additional weeks to file a response brief. {¶35} Mr. Haven’s second assignment of error is overruled. III. {¶36} Mr. Haven’s assignments of error are overruled. The judgment of the Medina County Court of Common Pleas is affirmed. Judgment affirmed. There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant. LYNNE S. CALLAHAN FOR THE COURT 17 CARR, P. J. SUTTON, J. CONCUR. APPEARANCES: MICHAEL T. CONWAY, Attorney at Law, for Appellant. IRVING B. SUGERMAN and J. ALEX QUAY, Attorneys at Law, for Appellee. DAVID SPORAR, Attorney at Law, for Appellee.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481848/	Staples, J. The appellants’ first exception is to the charge of interest upon a debt lost by the negligence of the executors. It appears that the bond evidencing this debt was executed by Hansbrough and Bell in 1821. Upon the death of the testator in 1825, it passed into the hands of the executors as assets of the estate. Although the bond was then perfectly good, and so continued until the year 1839, the executors never made the slightest effort to collect it. Upon this state of facts the Circuit court rendered a decree against their representatives for the principal of the debt, with interest thereon from the year 1821, the period of payment, to the year 1839, when it is claimed the debt was finally lost by the insolvency of the surviving obligor. The exception taken in the court below, to the report of the commissioner, brings before us the question of the correctness of the decree in this particular. The appellants do not deny the liability of the executors for the principal of the bond; but they insist they are not chargeable with interest, upon the ground that interest being simply in the nature of damages awarded for the detention of the debt, it cannot be known whether the executors, had they sued, would have succeeded in the recovery of any portion of it. The question must be determined without reference to the provisions of the 6th section, chap. 132, Code of 1849; as the entire transaction oceui’red before that section was enacted. Independently of this statute it must be conceded that in Virginia executors and other fiduciaries are not held liable for interest upon debts lost 383by their negligence or other misconduct. See Rootes v. Stone, 2 Leigh, 706; Webb v. Colston, never reported; Report of Revisors, 1848-9. The ground of this exception, as stated by Judge Green in Webb v. Colston, is, that the charge upon the fiduciary of the amount of the debt lost by his default is in1 the nature of damages assessed for a failure to do his duty; which he could not know that he would be liable to pay until so adjudged by a court of justice; and upon general principles he ought not to pay damages for the delay to pay damages. Bow it will be observed, that the reasoning of Judge Green goes to the extent of affirming merely that the executor himself will not be held to pay interest upon the amount with which he is chargeable. It does not affirm that he is not liable for a failure to collect the interest as well as the principal, when he might have done so by the exercise of due diligence. It no where asserts that when a bond given to the testal or passes into the hands of the executor, with constantly accruing interest, and the debt is finally lost by the mismanagement of the executor, that his liability does not extend as well to the interest as the principal. This precise proposition has not beeu touched by any Virginia ease that I have seen. It must, therefore, be regarded as an open question. Its decision depends upon a few very familiar principles of law. If the obligation is due on demand, it is evidence of a present debt payable insianter; and the writ isa demand which entitles the plaintiff to the penalty. The interest is allowed, not because the penalty is forfeited, but because the debt was from the beginning due and payable. Payne v. Britton, 6 Rand., 104; Robinson v. Bland, 2 Burr. R., 1071, 1086. The same rule applies to obligations for the payment of money at a given day. In the absence of au express 384contract they always bear interest from the day appointed! for the payment. This is the rule in Virginia certainly,. whatever it may be in England. It does not matter whether we regard interest as damages given for the detention of the debt, or as a compensation for the use of the money. In the class of contracts just mentioned it is allowed by the court as the judgment of the law. It is in fact a legal incident of the debt, and the right to it. is founded on the presumed intention of the parties. It is true that the debtor may sometimes, under peculiar circumstances, avoid the payment of interest; but these are matters of defence, the burden of which is upon him in all cases. They are offered to show that the obligation to pay the interest has been discharged, and not that it did not originally exist. If no valid ground of defence is shown the judgment is as certainly rendered, for the interest as for the principal, in contracts of the-character just mentioned it is apparent, therefore, that interest is not given as damages at the discretion of the-court or jury, but as an incident of the debt which the-court has no discretion to refuse. The bond executed by Hansbrough and Bell was payable on demand, and is therefore directly within the influence of these principles. But this is not all. The instrument is in the nature of a penal bill or obligation. The rule at common law is well settled, that when the-debt is secured by a penalty, if the condition is not complied with by a payment at the day, the penalty becomes-the debt, and neither tender nor payment after the day-will relieve the forfeiture. The statute, however, provides that judgment shall be-entered for the penalty, to be discharged by the payment, of the principal and the interest due thereon, and the-costs of suit. Code of 1860, chap. 177, § 16. The object of this provision is to give the debtor relief in the-385common law courts upon the same terms as is afforded by courts of equity. In neither court can he be relieved from the penalty except upon the terms of paying both principal and interest. In these cases the interest is treated as part of the debt. Waller v. Long, 6 Munf. 71, 79; Moore v. Fenwick, Va. R. 214; Bonafous v. Rybbot, 3 Burr R. 1373. If this view be correct, the interest upon the bond of Hansbrough and Bell must be regarded as a part of that debt. Had the executor brought suit thereon, judgment would have been entered for the penalty, to be discharged only upon payment of principal and the interest accrued to the date of the judgment, unless, indeed, the debtor had some valid defence; of which there is not the slightest pretence. & • As before stated, the debt was lost in 1839- Down to that period the bond was an available security in the hands of the executor. It was assets of the estate until that time. Indeed the executors can only escape responsibility for full interest to the date of the decree by showing the loss of the debt.. As that loss did not occur till 1839, that period must .fix the date and measure of their liability. The rule of law which exempts a fiduciary from the payment of interest upon a debt lost through his default, is a hard one, and has been remedied by statute. Neither sound policy, nor any well-settled principle, re- • quire that the courts shall extend this exception to interest which was as easily collectable as the principal. It is supposed, however, that this is in conflict with Rootes v. Stone. A copy of the decree of this court in that case has been furnished by the counsel for the appjellee. This decree charges the attorney with the debts lost by his negligence. But we have no means of ascertaining what these debts were. It may be that no 386interest had accrued upon them, or that by the form of the contract or the nature.of the debt, the creditor was entitled to interest only from the date of the verdict of a jury. Upon these points the report of the case in 2 Leigh, 706, furnishes no information. Indeed that report is too meagre and obscure to render the decision a conclusive authority upon this court, in determining the questions involved in the present case. On the other hand, the ease of Holcomb v. Holcomb’s ex’ors, 3 Stockt. R. 281; Stiles v. Grey, 16 Sim. 229, 1 McN. & G. 422; and Powell v. Evans, 6 Ves. R. 839, are strong authorities for the proposition, that in charging an executor or other fiduciary with debts-lost by his negligence, the accrued interest thereon will be regarded as a part of the debt, and the executor will be held liable for it whenever it appears that such interest might have been collected by the exercise of due diligence. This view, I think, is substantially sustained by the reasoning of Judge Green in Webb v. Colston, a case decided by this court, but never reported. Certainly there is nothing in that opinion in direct conflict with the conclusions reached in the present case. Upon the whole, I am satisfied there is no error in the decree of the Circuit court, in holding the estate of the executor responsible for one-half of the principal of the bond of Hansbrough and Bell, and interest thereon, which had accrued up to 1839. After that year-there is no charge of interest upon this debt; and in this respect the decree is correct. The second and fifth exceptions to the commissioner’s report embrace substantially the same matter; and that is the refusal of the commissioner, sustained by the Circuit judge, to allow the executor commissions upon his receipts. The correctness of this decision depends upon the construction to be given to the act of February 16, 3871825, found at page 217, Supplement to the Revised Code. By the 8th section of this' act it is made the duty of the fiduciary not merely to cause his accounts to be settled and adjusted, but also to return them to the proper •court, or to see that the commissioner returns them in due time. It will be seen that this enactment is very different from the provisions of the present law upon the ■same subject. The object, no doubt, was, that parties interested might, by a simple reference to the records of the court, ascertain the condition of the assets, the transactions of the fiduciary and the nature and extent of his liabilities. As the commissioners were appointed, on motion of the' fiduciary, and generally persons of his selection, it was made his duty to return the settlement to the proper court, or to see that the commissioners returned them. If the commissioners failed in their duty in any respect, the remedy was by application to the •court to compel them to complete and return the accounts, orto appoint othei’s, who would perform that duty. At all events, the failure to return the accounts within "the prescribed time was an absolute forfeiture of the commission. In the present case the returns were not made for several years after the period fixed by law; and however hard it may be upon the estate of the executor, the court has no alternative but to enforce the plain mandates of the statute. The appellants’ third exception is to the charge of interest upon the aggregate amount of principal and interest reported against the executor as of the 7th October 1851, the period fixed by the commissioner for •closing the executorial accounts. It has been repeatedly held by this court that so soon ss the purposes of the administration are accomplished 388for the payment of debts against the estate, the executorial accounts should be closed. The balances then found in the hands of the personal representative should be charged against him as borrowed, and the accounts with the legatees settled upon the principles applicable to creditor and debtor. Whether the personal representative shall be charged with interest upon the aggregate of principle and interest thus found against him, depends upon the facts and circumstances of each case. This court has never undertaken to lay down any general rule upon the subject; and in the nature of things it is not expedient or advisable to do so. It is unnecessary, therefore, to review the cases bearing upon this subject, as no certain general principles can be deduced from them. It is very clear, however, that this court has not been favorably inclined to the charge of compound interest against personal representatives, except under very peculiar circumstances. In the present case there is nothing to justify the charge of compound interest against the executors. On the contrary, there is much to repel it. The estate was involved in litigation down to, and even after, the institution of this suit. The complainant, in his amended bill, expresses the apprehension that the estate was not then in a condition for a final settlement and distribution. Although the bill was filed in 1849, so numerous were the parties, so difficult was it to ascertain their names and places of residence, that the cause could not be matured, and the accounts taken, until the year 1860. The commissioner realizing these difficulties, did not undertake to bring the executorial transactions to a close until more than two years after the inception of the proceedings. These facts tend strongly to show that the executors were not in any such default, with regard to the assets in their hands, as to warrant the heavy charge 389of compound interest allowed in this case. As before stated, the commissioner closes the executorial accounts on the 7th of October, 1851; and he reports a balance on that day of eight thousand seven hundred and twenty-one dollars and sixty-eight cents, principal, and ten thousand seven hundred and thirty-one dollars and fifty-four cents interest. Upon these two sums aggregated, the executors are charged with interest from the 17th of October, 1851, by the decree of the Circuit court. This is plainly erroneous. The executors ought to have been charged with interest upon the reported balances found against them only from the date of the decree. The fourth exception is to the charge against the executors of the sum of one thousand and fourteen dollars and 90 cents, on account of a debt due to the estate of Dr.’W'm. Shepherd, from Jas. Shepherd. This exception involves a question of evidence merely; and I shall content myself with simply saying that this charge is fully sustained by the proofs in the cause. It is difficult to see how any other conclusion could have been arrived at, than that reached by the commissioner and the Circuit Judge. The sixth and last exception is to the action of the commissioner in reopening the exparte settlements in the County court, without any particular surcharge and falsification averred in the bill. The rule that administration accounts settled exparte, returned and recorded in the proper court, are to be taken as prima facie correct; liable only to be surcharged and falsified by proper averments, has received the sanction of this court in numerous cases. The inconvenience of the rule has been often felt, and in some few instances exceptions and modifications have been allowed when necessary to attain the justice of the case. The case of Shugart's adm'r v. Thompson, 10 Leigh, 443, is a familiar illustration. There the answer denied 390all the allegations of the bill intended to impeach the exparte settlements: it was not therefore proper to send the cause to account in the absence of evidence to sustain these allegations. Nevertheless an order of account was made, and the parties proceeded with their proofs before the commissioner. The facts there established did not sustain the specific objections urged in the bill to the settled accounts, but they showed other grounds for surcharging the settlement. Judge Stanard said, the court might have required the plaintiff to amend his bill by inserting the further matters of surcharge and falsification, so as to afford defendants the benefit of an explanation and defence by way of answer;' or dispensing with that circuitous and formal proceeding, the court might have permitted the commissioner to proceed with the investigation in like manner as if the matters had been noticed in the bill. If the defendant should object he was taken by surprise, the court should give him time to combat the new charges. If he urged his privilege of defending himself by answer,' that privilege might be secured to him by allowing him to file his affidavit, and giving it all the effect of an answer. In the case before us the exparie settlements made in the County court were erroneous upon their face in bringing charges against the legatees into the executorial accounts, and in allowing the executors commissions upon their receipts. It is also to be observed that these settlements did not profess to he final, or to embrace all the transactions of the executors. The court-, therefore,, very properly referred the accounts to one of its commissioners to settle and adjust. In the progress of the investigation it was discovered that the executors had omitted to charge themselves with various debts lost by their negligence, and with debts due by one of them to *391the testator. With the exception of these omitted items, the commissioner obtained the principal material for his account from the exparte settlements. The only important change in the settlements consisted in the addition of the omitted debts, and in separating the administrator’s accounts proper from those of the legatees. The defendants did not complain of any surprise. They did not insist upon any specifications in writing. They did not claim the benefit of an explanation by way of affidavit or answer. The fullest and most ample investigation .was had; and it is very clear that no injustice has been done in reforming the exparte settlements, and in making the additional charges. Under all these circumstances it will be productive only of expense, delay and trouble to send the cause back for the plaintiff to go through 'with the useless formality of amending his bill by inserting matters already investigated before a commissioner, and in respect to which the defendants have not proposed to make any defence or explanation other than is already made. Tor these reasons I think the Circuit court did not err in overruling the sixth exception. This disposes of all the questions arising upon the exceptions. It will be seen by them that none of them are well taken, except the third, in relation to the charge of compound interest. Tor the error in overruling that exception, this court is reluctantly compelled to reverse the decree, and to remand the case for further proceedings. The other judges concurred in the opinion of Staples, J. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481850/	Bouldin, J., delivered the opinion of the court. Dr. N. M. Osborne, late of the city of Petersburg, died in that city in the year 1869, having duly made his last will, and leaving the appellant, his widow, him surviving, but no children. By the first clause of the will the testator gave to his wife Sarah M. Osborne (the appellant) all his property for life. The second clause is as follows: “I give to her, in fee, her Clover-Hill stock, four thousand dollars of State stock, registered bonds, nine shares of Richmond and Petersburg railroad stock, and twelve shares of Southern railroad stock, to do with as she pleases.” N. M. Osborne, jr., a nephew of the testator, was appointed and qualified as his executor; and a question arose between the executor and the appellant, as to what passed to her under these words, in the second clause of the will: “I give to her, in fee, her Clover-Hill stock.” To settle this question alone, the suit was brought by the appellant, in the Hustings court of the city of Petersburg, from the final decree in which this appeal was taken. The facts, so far as pertinent to the question, are briefly as follows: In the year 1857 the appellant, then Sarah M. Maitland, intermarried with the testator, N. M. Osborne. At the date of the marriage, she was possessed, in her own right, of the following stocks, viz: Clover-Hill railroad company, 50 shares; Richmond & Petersburg railroad company, 9 shares; Southern railroad company 7 shares. After the marriage, and in the same year, (1857.) these shares were all regularly transferred to the said N. M. Osborne, and thereafter stood in his name; and in 1858, several thousand dollars of Virginia State bonds were purchased by Robert E. Maitland, trustee of appellant, with her money, and by her direction were transferred to the testator, N. M. Osborne. Whilst these stocks were standing thus in the name of Dr. Osborne, the number of shares held by him in the Southern railroad company was increased by purchase from seven to twelve shares, five being added. In this state of things, there were two successive stock dividends, (as they are called,) declared by the Southern railroad company, not out of profits realized, but simply by increasing the number of shares in the hands of the shareholder, so as to make the increased number of shares represent precisely the same capital which was before represented by the original number. It was in no sense a dividend of profits, but merely a subdivision of capital stock, describing the same capital by a larger number of shares. Under this process, the interest in the Southern railroad company, held by Dr. Osborne, was described by eighteen shares instead of twelve; and by a precisely similar process his interest in the Clover-Hill railroad company came to be described by seventy shares, instead of fifty; a nominal increase o f twenty shares; but, as we have said, only a subdivision of shares, without increase of property, the increased number of shares representing precisely the same capital stock, neither more nor less. It further appears that when this increase was made, separate scrip for the twenty new shares was made out in the name of Dr. Osborne, and sent to him, and that he subsequently returned that and the scrip for the original fifty shares, and took one certificate for the whole number of seventy shares. 138Such, was the condition of these stocks when Dr. Osborne made his will, and when he died. He had eighteen shares of Southern railroad stock, which included the seven shares acquired by his wife, the five shares purchased of Spencer, and the increased hares on both. He had the nine shares Richmond and Petersburg stock acquired by his wife, and he had the Clover Hill stock —that is to say, seventy shares Clover Hill stock acquired by. his marriage with her. He had no children, and after giving his wife a life estate in all his property he gave her in fee, among other things, "her Clover Hill stock,” “tovdo with as she pleases;” and the question was, What did he mean to give her by those words? The Hustings court held that he intended only the original fifty shares; and gave her those only, and decreed also that she should pay the costs of the suit. Prom this decree Mrs. Osborne has appealed to this court. The question before us is simply this, What stock did Dr. Osborne intend to describe by the words used in his last will? The words themselves are plain and unambiguous. After having given to his wife all his property for life, in the first clause of his will, he goes on in the 2d as follows: “I give her in fee her Clover-Hill stock” (and other things) “to do with as she pleases.” Now it is perfectly clear, that something was intended to be given to the wife in fee, by this language; that that something was “Clover-Hill stock”; and that there was something present to the mind of the testator wliich made it appropriate, in his opinion, that the “Clover-Hill stock’ ’ given to her should be designated “her Clover-Hill stock.” If, then, we can find the subject matter thus described and plainly given to the wife; if we can find Clover-Hill stock under the control of the testator, which, at the date of his will, might be reasonably described by him as “her Clover-Hill stock,” to all such stock Mrs. Osborne is clearly entitled. The word “her,” as used by the testator in describing the stock given to his wife, was not intended to affirm that the property was in the wife; to imply that what he was giving was already hers. He knew the contrary; and the solemn duty he was then performing in giving her the stock, shows that the word was not used in that sense. There was, therefore, some fact present to the mind of the testator which induced the description. Whether there be. such stock, is purely a question of fact, de hors the will. The bequest is plain. The question is: Is there a subject to answer the description? And in solving this question, precedent and authority are of but little service: it must depend solely on the facts of this case. And in making an application of these facts to the bequest under consideration, we need only to bear in mind the following principle, extracted by Judge Redfield from the cases, viz: “It is never required that all the particulars of name or description of person or thing should be precisely accurate, in order to the validity of the provisions of the will. It is always sufficient that the court, after learning the surrounding facts and circumstances, should be able, with reasonable certainty, to declare the intent of the testator.” Bet us then for a moment occupy the stand-point of the testator at the date of his will. He doubtless felt, for he died soon after, that his earthly career was drawing to a close, and that it was necessary and proper for him to make suitable provision for those having meritorious claims upon him. He had a wife, but no children nor descendents. His wife was naturally and in fact the prime object of his bounty; and we find that by the first clause of his will he gives her all his property for life. But he remembered, as it was right and proper that he should remember, that he then held valuable interests wholly acquired through her; interests which, as there were no children of the marriage, would by the law of distributions, pass, as far as they could be traced in kind, to her absolutely, in the event of his intestacy. What so natural and proper as that he should remember these interests at such a moment, and that he should act in relation to them at least as liberally to her as the law would in case of intestacy? We find from the will that he did so act. He acquired by her several thousand dollars Virginia State bonds, the exact amount not proved; the bill says six thousand, the answer several thousand. He gave her in fee four thousand dollars State stock, registered bonds. He held at his death nine shares Richmond and Petersburg railroad stock, acquired through his wife. He gave her dll of them. He had eighteen shares Southern railroad stock, seven original shares, acquired by his wife, and five by purchase. These twelve shares were increased in number by subdivision of capital stock, or increase of shares as it is called, to eighteen, as above mentioned. Without nicely calculating the proportionate increase of the number acquired by his wife, he gave her twelve shares, being rather in excess of her due proportion; and finally, to come to the clause under consideration,(not, however, in the order in which they are mentioned in the will,) he had standing in his name seventy shares Clover Hill railroad stock, acquired, as we have seen, through his wife; 50 original shares acquired on marriage, and twenty additional, added by subdivision of capital stock, or increase of shares, as aforesaid. Separate scrip, as we have seen, was first issued to him for the twenty shares; but he returned his scrip, as well for the original fifty as for the additional twenty shares, and took one certificate for the whole number of seventy shares. He held them unchanged until his death, having at the date of his will, and at his death, no other “Clover Hill stock” than these seventy shares thus acquired through his wife; and he says in his will, “I give to her in fee her Clover Hill stock.” What “Clover Hill stock?” Beyond all question the seventy 139shares Clover Hill railroad stock acquired by the testator jure mariti, and which by the law would be his wife’s—her’s were he to die intestate. He intended to do with this stock precisely what he did with the other interests similarly acquired; which we have seen were given to her in fee. Reading this will, then, by the light of these surrounding facts and circumstances, we think we may declare, not merely with “reasonable certainty,” but almost with absolute “certainty,” that it was the intention of the testator, by the bequest under consideration, to give to the appellant the seventy shares of Clover-Hill railroad stock, '' acquired by him through his wife as aforesaid, and standing in his name at his death. The decree of the Hustings court is, therefore, erroneous, and must be reversed, with costs to the appellant ; and a decree must be entered here in accordance with this opinion, and certified to the Hustings court. The decree was as follows: This day came again the parties by counsel, and the court having maturely considered the transcript of the record and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the Hustings court of Peters-burg erred in holding that the appellant, under the testator’s will, was entitled to only fifty shares of Clover-Hill railroad stock instead of seventy shares, as claimed in her bill. It is therefore decreed and ordered that the said decree of the Hustings court of Petersburg of the 18th of November 1870, be reversed and annulled, and that the appellee, out of the assets of his testator in his hands to be administered, do pay to the appellant her costs by her about her appeal to this court expended. And this court, proceeding to enter such decree as should have been entered by said Hustings court, doth decree and order, that Nathaniel M. Osborne, as executor of Nathaniel M. Osborne, deceased, do transfer in proper form and deliver to Sarah M. Osborne, the complainant in said court, as her absolute property, seventy shares of the stock of the Clover-Hill Railroad Company, owned by the testator, Nathaniel Osborne, deceased, at his death; and that said Nathaniel M. Osborne, as executor as aforesaid, out of the assets of his testator iu his hands to be administered, do pay to said Sarah M. Osborne her costs in said Hustings court expended. Which is ordered to be certified. Decree reversed. STOCK AND STOCKHOLDERS. A. Stock. I. Definition and Nature. II. Lien o£ Corporation on Stock. III. Dividends. IV. Guaranteed or Preferred Stock. V. Liability to Attachment and Garnishment. VI. Taxation of Stock. B. Stockholders. I. Definition and Status. a. Evidence of Membership. IT. The Contract of Subscription. a. Status of Stock Subscriptions Made before Incorporation. b. Manner of Subscribing. c. Defenses to Stock Subscriptions. 1. Fraudulent Representations. 2. Capital Stock Not Fully Subscribed. d. Release from Contract of Subscription. III. Rights of Stockholders. IV. Liabilities of Stockholders. V. Transfer of Stock. VI. Pleading and Practice. A. STOCK. I. Definition and Nature. in General.— “Stock” is defined generally as the sum of all the rights and duties of the shareholders of a corporation. 23 Am. & Eng. Enc. Law 548. Capital Stock.--“Capital Stock” is the fund of money or other property fixed as the basis for conducting the business of the corporation. 23 Am. & Eng. Enc. Law 585. Shares of Stock.--“Shares of Stock” are a species ot incorporeal personal property consisting of rights in the profits, management and assets of the company. 23 Am. & Eng. Enc. Law 588. As said by Allen, P., in Barksdale v. Finney, 14 Gratt. 357, “a share in a joint stock company is not strictly speaking a chattel, but bears a greater resemblance to a chose in action.” See also, Ches. & O. R. Co. v. Paine, 29 Gratt. 506. A deed which conveys all the grantors’ “property, real and personal,” embraces and conveys all their shares of stock in a national bank. Feckheimer v. Nat. Bank, 79 Va. 80. II. Lien of Corporation on Stock. For Any Debt of Stockholder.—In Bohmer v. City Bank, 77 Va. 445, the charter of a bank provided, that “the bank shall have a lien prior to ail others upon any stock held by a stockholder for any debt of said stockholder to said bank." A stockholder, indebted to the bank, borrowed money from a third person and gave him the certificate as collateral with power of attorney to transfer the stock; after becoming bankrupt the original stockholder applied to the bank to transfer the stock, but the bank refused to do so until paid its debt due from the said stockholder. Held, the act incorporating the bank, superseded the general law providing for the transfer of stock, and gave the bank the prior lien for any debt due it from a stockholder, on his stock; hence the bank had the right to be first satisfied before transferring the stock to the lender of the stockholder; nor is this lien waived by the company’s leaving the certificates outstanding. See also, Petersburg, etc., Co. v. Lumsden, 75 Va. 327. For Balance Due upon Shares.—According to statute there is a lien upon the stock of each stockholder in a joint stock company for the balance due upon his shares of stock; and this lien is not discharged by an assignment of the stock. But the statute gives no lien to the company on the stock of a stockholder for any other debts due from him, than that which is due for unpaid stock. Petersburg, etc., Co. v. Lumsden, 75 Va. 327. Neither does this lien extend to paid up shares to secure payment of unpaid subscriptions for other shares; and the sale of such paid up shares for such purpose by the company is void. Shen. Val. R. Co. v. Griffith. 76 Va. 913. 140III. Dividends.—Where the directors fail to declare dividends at the stated time, as directed by the charter, it is not in their power to declare a dividend to extend back over the periods during which they had failed to declare dividends. Gordon v. R., F. & P. R. Co., 78 Va. 502. The owner of certain shares of stock makes a general deed of assignment to a trustee for the benefit of his creditors. Held, the trustee is entitled to have transferred to him for the purposes of the trust, not only the shares, but dividends that maybe due on them. Feckheimer v. Nat. Exch. Bank, 79 Va. 80. If the board of directors of a corporation, when it is insolvent, declare a dividend of net profits, the directors concurring in the act, in their individual capacity, are jointly and severally liable to the corporation’s creditors for the amount of capital stock so divided. Slaymaker’s Adm’r v. Jaffray, 82 Va. 346. IV. Guaranteed or Preferred Stock.—In Gordon v. R., F. & P. R. Co., 78 Va. 513, there is a dictum, to the effect that, stock with guaranteed dividends, means a guarantee of dividends, but not of stock, in a winding up; while preferred stock, as contradistinguished from common stock, has a preference over common stock in a distribution of net profits. It was held in the same case (Gordon v. R., F. & P. R. Co., 78 Va. 501), that, the holders of guaranteed stock are entitled not only to participate in due proportion in the cash dividends declared in favor of the holders of common stock, but also in the issuance of dividend obligations; and the dividends of such guaranteed stock are payable out of gross receipts of the company, and in a division of the assets, must be paid, if need be, to the exclusion of the common stock. For sequel to the above case of Gordon v. R., F. & P. R. Co., 78 Va. 501, see 81 Va. 621, where other points on the subject of guaranteed stock are decided. V. Liability to Attachment and Garnishment.—Thfe shares of a stockholder in a joint stock company, incorporated by and conducting its operations, in whole or in part, in the state are such estate as is liable to be attached in a proceeding instituted for that purpose, by one of the creditors of such stockholder; and such estate may properly be considered, for the purpose of such proceeding, as in the possession of the corporation in which the shares are held, and such corporation may properly be summoned as garnishee in the case. Chesapeake & Ohio R. Co. v. Paine, 29 Gratt. 502. If, in such a proceeding, the stock should appear to be liable to the lien of the attachment, it ought to be sold for the satisfaction of the same under, an order of the court made for that purpose in the attachmentproceeding; butitis error for the court to render a judgment against the garnisheed corporation for the value of the stock, unless it appears that the lien of the attaching creditor on the stock was lost by the act of the corporation. Chesapeake & Ohio R. Co. v. Paine & Co., 29 Gratt. 502. The certificate of shares of stock not being negotiable, an attachment of such stock takes precedence over a subsequent bona fide purchaser thereof without notice. Shen. Val. R. Co. v. Griffith, 76 Va. 913; C. & O. R. Co. v. Paine, 29 Gratt. 502; Massey v. Yancey, 90 Va. 626, 19 S. E. Rep. 184. See monographic note on “Attachments,” appended to Lancaster v. Wilson, 27 Gratt. 624. VI. Taxation of Stock. Shareholders’ Liability.—Section 93 of the Act of February 15th, 1866, for the assessment of taxes, embraces express companies chartered by the State of Virginia; and the present stockholders are personally liable for taxes due to the commonwealth from the company incurred while they were stockholders; for though the charter of an express company did not make the stockholders personally liable for the debts of the company, the said assessment act passed subsequent to the charter, has so far modified the charter as to make them personally liable. Anderson v. The Commonwealth, 18 Gratt. 295. Taxation of Capital Stock as Well as Shares of Stock. —The capital stock and the shares of the capital stock are distinct things, the former belonging to the corporation and the latter to individuals. Both may be taxed, and it is not double taxation. State Bank of Va. v. City of Richmond, 79 Va. 113; Com. v. Charlottesville Perpetual, etc., Co., 90 Va. 790, 20 S. E. Rep. 364. B. STOCKHOLDERS. I. Definition and Status.—A stockholder or shareholder is one who holds membership in a corporation or joint stock company by virtue of owning one or more shares of its stock. 23 Am. & Eng. Enc. Law 779. a. Evidence of Membership.—The books of the corporation are prima facie evidence of its membership, and a party’s name on such books as a member has been held sufficient proof of his status as a stockholder. Vanderwerken v. Glenn, 85 Va. 9, 6 S. E. Rep. 806; Lewis v. Glenn, 84 Va. 947, 6 S. E. Rep. 866; Stuart v. Valley R. Co., 32 Gratt. 146; P., W. & K. R. Co. v. Applegate, 21 W. Va. 172; Donnally v. Hearndon, 41 W. Va. 519, 23 S. E. Rep. 646. But the mere signature of a subscription paper does not perse constitute a contract of subscription to the. stock of a corporation. Stuart v. Valley R. Co., 32 Gratt. 146. II. The Contract of Subscription. a. Status of Stock Subscriptions Hade before Incorporation.—An agreement to subscribe for shares in a corporation to be organized in future is a mere offer which may be withdrawn at any time before the corporation comes into existence and accepts the offer. Stuart v. Valley R. Co., 32 Gratt. 146; Lewis’ Adm’r v. Glenn, 84 Va. 947, 6 S. E. Rep. 866. In West Virginia it is held, that a person who signs and acknowledges an agreement under section 6, c. 54, Code, for the formation of a corporation becomes a subscriber for stock, and is bound to pay for it when the company afterwards becomes incorporated and organized. But one who signs, but does not acknowledge, such agreement, does not become a stockholder, and is not bound for the subscription therein made, unless he in some way acknowledge the existence of the corporation. And if such agreement be not acknowledged at all prior to the issue of the certificate of incorporation, the company does not obtain corporate existence as to those who by such preliminary agreement subscribe stock, and they are not compelled to pay such subscription. Greenbrier Industrial Exposition v. Rodes, 37 W. Va. 738, 17 S. E. Rep. 305. A fundamental variance in the certificate of incorporation from such preliminary agreement will relieve one who by it subscribed stock from payment thereof. Greenbrier Industrial Exposition v. Rodes. 37 W. Va. 738, 17 S. E. Rep. 305. b. Manner of Subscribing.—A subscription to stock may be valid though not formally in compliance 141with the statutory provisions for taking subscriptions. Stuart v. Valley R. Co., 32 Gratt. 146. c. Defenses to Stock Subscriptions. i. Fraudulent Representations.—Where one is fraudulently induced by an agent or promoter of a corporation to subscribe to its capital stock he may repudiate the contract at his discretion. Virginia Land Co. v. Haupt, 90 Va. 533, 44 Am. St. Rep. 939, 19 S. E. Rep. 168; Crump v. U. S. Min. Co., 7 Gratt. 352, 56 Am. Dec. 116; Bosher v. Richmond, etc., Land Co., 89 Va. 455. 16 S. E. Rep. 360, 37 Am. St. Rep. 879; Owens v. Boyd Land Co., 95 Va. 560, 28 S. E. Rep. 950; McClanahan v. Ivanhoe, etc., Co., 96 Va. 124, 30 S. E. Rep. 450; West End, etc., Co. v. Claiborne, 97 Va. 734, 34 S. E. Rep. 900. But .such contracts to purchase stock, induced by fraudulent representation, are not void, but only voidable at the purchaser’s option. Weisiger v. Richmond, etc., Co., 90 Va. 795, 20 S. E. Rep. 361; Wilson v. Hundley, 96 Va. 96. 30 S. E. Rep. 492; Martin v. South Salem Land Co., 94 Va. 28, 26 S. E. Rep. 591. Defendant signed a subscription to stock in a corporation, circulated with a prospectus stating that the corporation was to be located at R.; that the maximum capital was to be $400,000, and that its purpose was limited to “manufacturing locks, bolts, all house hardware, and other articles of a similar character.” Later a second prospectus, under which the corporation was afterwards organized, was circulated for signatures, by which it was stated that the corporation was to be located outside of R.; that the maximum capital was to be $500,000, and the purpose to embrace a large variety of industries. Defendant refused to sign this second prospectus. Held, the defendant was not liable to plaintiff for stock he subscribed to under first prospectus. Norwich Lock Mfg. Co. v. Hockaday, 89 Va. 557, 16 S. E. Rep. 877. “Promissory Representations.”—Mere statements of true intention, or opinions, upon which the subscriber has no right to rely, are not such fraudulent representations as entitle him to a rescission of the contract of subscription. Anderson v. Creston Land Co., 96 Va. 257, 31 S. E. Rep. 82; Wilson v. Hundley, 96 Va. 96. 30 S. E. Rep. 492; Owens v. Boyd Land Co., 95 Va. 560, 28 S. E. Rep. 950. Though in suit to collect assessments to corporate stock from a subscriber, he may set up, under Code, § 3299, the defenses of failure of consideration, fraud in the procurement of the contract, or any other matter which would entitle him to relief in equity, yetitisheld, thatthose defences are personal to him. and do not pass to the transferee of the stock. Lewis v. Berryville Land & Improvement Co., 90 Va. 693, 19 S. E. Rep. 781. Laches in Repudiating Contract.—Laches does not begin to run against a party fraudulently induced to subscribe to stock, until he is chargeable with notice of the fraud. And mere suspicions or random statements heard in public, or in stockholders’ meetings, do not necessarily constitute notice. But after a subscriber’s suspicions are reasonably aroused, it is his duty to investigate at once. The burden of proof In asserting that the subscriber had notice and was guilty of laches is on the corporation. Virginia Land Co. v. Haupt, 90 Va. 533, 44 Am. St. Rep. 939, 19 S. E. Rep. 168; Weisiger v. Richmond, etc., Co., 90 Va. 795, 20 S. E. Rep. 361; Bosher v. Richmond, etc., Land Co., 89 Va. 455, 37 Am. St Rep, 879, 16 S. E. Rep. 360. The capital stock of a joint stock company is the basis of its credit, and every one who deals with it has the right to assume that the stock has been paid in full in money, or its equivalent. As against creditors of the company, its stockholders cannot have their subscriptions rescinded on the ground of fraud and misrepresentations in the procurement thereof, unless proceedings for that purpose are commenced not only as soon as the fraud or misrepresentation is discovered, but as soon as the same, by the exercise of due diligence, might have been discovered. The stockholder must be diligent in discovering the fraud, and prompt in repudiating Ms contract after it is discovered. Martin v. South Salem Land Co., 94 Va. 30, 26 S. 16. Rep. 591; Wilson v. Hundley, 96 Va. 96, 30 S. E. Rep. 492. Affirmance of Contract.—If a party who has been defrauded in the procurement of a contract, elect, on discovery of the fraud, to affirm the contract, his election is final and conclusive. He has but one election to rescind, and, having once elected to affirm the contract, he cannot thereafter disaffirm. Wilson v. Hundley, 96 Va. 96, 30 S. E. Rep. 492. A person who has been induced by the fraudulent representations of an agent of a company to take shares in it, cannot, after he discovers the fraud, elect to retain the shares and sue the company for damages. Wilson v. Hundley, 96 Va. 97, 30 S. E. Rep. 492. Remedies against Agents.—If a shareholder in a joint-stock company is debarred from a rescission of his contract by the insolvency of the company, or any other cause, he is without remedy against the company, and is left to his action against the agent who, by his fraudulent representations, induced him to subscribe for the stock. Wilson v. Hundley, 96 Va. 97, 30 S. E. Rep. 492. 3. Capital Stock Not Fully Subscribed.—When, up to the time of trial, the proposed capital stock of a corporation has not been fully subscribed, a subscriber thereto cannot be even liable for assessment on his subscription, unless there is in the article, or in the general law under which the corporation is formed, a provision to the contrary. Norwich Lock Mfg. Co. v. Hockaday, 89 Va. 557, 16 S. E. Rep. 877; West End, etc., Co. v. Claiborne. 97 Va. 734, 34 S. E. Rep. 900. d. Release from Contract of Subscription.—A release from a contract of subscription to corporate stock can be shown by the acts of both parties to the contract; and any evidence tending to show that the company did not regard a subscriber as a stockholder, or his subscription binding, may be sufficient proof of such release. Stuart v. Valley R. Co., 32 Gratt. 146. Subscriptions to a company’s capital stock are not released by unacted-upon amendments to its charter. Taylor v. Board of Supervisors, 86 Va. 506, 10 S. E. Rep. 433. A material change in the purposes of a corporation, as set forth in the prospectus, will release a subscriber thereto from liability, if made without his consent. Norwich Lock Mfg. Co. v. Hockaday, 89 Va. 557, 16 S. E. Rep. 877. III. Rights of Stockholders. Rights to Sue on Behalf of Corporation.—A stockholder in a corporation has no right to bring a suit in equity in his own name, or for the benefit of himself and other stockholders, upon a cause of action existing in the corporation, and in which the corporation is itself the proper complainant, except where it actually or virtually refuses to institute or prosecute the suit. It must be averred and proved that application was made to the proper authorities to institute suit and they refused, or that such a state of facts exists that the application itself would be 142useless, or the facts charged must be such as to show that it is reasonably certain that a suit by the corporation would be impossible. But the suit, when brought, is still the suit of the corporation, the stockholder being permitted to sue in this manner simply to set in motion the judicial machinery of the court. Mount v. Radford Trust Co., 93 Va. 427, 25 S. E. Rep. 244; B. & O. R. Co. v. City of Wheeling, 13 Gratt. 40; Stevens v. Davison, 18 Gratt. 819. Right to Defend Suit against Corporation.—A corporation must defend a suit brought against it in its corporate name; and a purchaser of stock will not be permitted to do so, unless the corporation has refused to defend. If in such case the officers or agents of the corporation refuse to defend the suit, the court may allow such defense in equity to be made by the stockholders. Park v. Petroleum Co., 25 W. Va. 108. Right to Enjoin Corporation.—Although a stockholder in a corporation may enjoin it from employing the property or powers of the corporation for a purpose wholly or materially different from that which was designed by the act of incorporation, yet it has no right to enjoin it from doing what is in direct furtherance of the object of its creation, and is for the benefit of all the stockholders as such; though it may be injurious to such stockholder in another character; or the interest of some other person or the public may be injuriously affected by the work about to be executed. B. & O. R. Co. v. City of Wheeling, 13 Gratt. 40; Stevens v. Davison, 18 Gratt. 819; Burr’s Ex’or v. McDonald, 3 Gratt. 215. As Agent for Other Stockholders.—A stockholder it an incorporated company is not so jointly interested with the other stockholders, or so identified with the corporation, that his unauthorized and unwarranted acts will be deemed theirs, or in any manner bind them, to their detriment. Western M. & Mfg. Co. v. Peytona, etc., Co., 8 W. Va. 407. Power of Majority to Dissolve.—It was held in Hurst v. Coe, 30 W. Va. 158, 3 S. E. Rep. 564, that a majority of the stockholders of a corporation are not entitled, as a matter of right, toa judicial decree dissolving the corporation, without showing a legal cause therefor; though according to statute the stockholders of a corporation have the absolute right to discontinue the business of the corporation by a vote of the majority of the stockholders at a general meeting thereof. Title to Corporate Property.—In a court of law, the property and rights of an incorporated company belong to the united association, acting in the corporate name and not to the stockholders. The latter, however, are the real owners; and a technical trust thus arises in their favor which will be protected and enforced in a court of equity. Moore v. Schoppert, 22 W. Va. 283; Park v. Petroleum Co., 25 W. Va. 108. Where the stock of a corporation is declared to be personal estate, and the certificates are made transferable on the books of the corporation, and it is authorized to acquire real estate, such estate is vested in it as a corporation, and notin the individual shareholders. The certificate of stock is evidence of the right of the owner to his proportion of the profits or dividends, and on the expiration of the charter, to his proportion of the assets remaining after the payment of the debts; and every purchaser of the stock takes it subject to the same liabilities. Barksdale v. Finney, 14 Gratt. 338. Calls.—In Reilly v. Oglebay, 25 W. Va. 41, itwasheld that a call by the secretary of a corporation, simply on authority of stockholders of one-tenth of the capital stock, was invalid and all proceedings thereunder illegal. IV. Liabilities of Stockholders. In General.—To the extent of his stock, each stockholder is liable individually for the debts of the corporation. Where a stockholder pays the debt of the corporation and takes an assignment thereof to himself, he cannot revive that debt by assigning it to a third party. Hardy v. Norfolk Mfg. Co., 80 Va. 404. In Nimick v. Mingo, etc., Co., 25 W. Va. 184, it was held: (1) That the stockholders of a corporation are individually liable to the creditors thereof, if the same be necessary for the payment of its debts, in addition to their stocks in an amount equal to the stock by them subscribed or otherwise acquired; (2) That this liability is not in the nature of a penalty or forfeiture, but it arises out of the implied promise of the stockholder to assume and discharge the individual liability imposed by the statute, under which the corporation was created; (3) That this liability is not a primary resource or fund for the payment of the debts of the corporation; that it is collateral and conditional to the principal obligation which rests upon the corporation; and is to be resorted to by the creditors only in case of the insolvency of the corporation, or when payment cannot be enforced against it by the ordinary process; (4) That this liability is a security provided by law for the exclusive benefit of the creditors', over which the corporate authorities can have no control; and that this liability is several in its nature, but the right arising out of it is intended for the common and equal benefit of all creditors of the corporation; (5) That in any suit instituted for the purpose of enforcing this liability against the stockholders the corporation is a necessary party. A subscriber to the stock of a corporation cannot escape his liability to pay his subscription, on the ground that he did not pay the sum required to be paid by statute at the time he subscribed. P., W. & K. R. Co. v. Applegate, 21 W. Va. 172; Stuart v. Valley R. Co., 32 Gratt. 146. The stockholders of a corporation having directed the directors to create new stock and sell it; and the directors having instead, acquired original stock and sold it, their act may be ratified subsequently by the stockholders, so’ as to render the sales valid and binding upon the purchasers. Crump v. U. S. Mining Co., 7 Gratt. 352, 56 Am. Dec. 116. If the law authorizes a sale of the stock of delinquent subscribers, and if the sale shall not produce the sum due, then a motion lies against such subscribers for the deficiency. Grays v. Turnpike Co., 4 Rand. 578. On Fictitious Subscriptions.—Fictitious or colorable subscriptions to stock, made and used with intent to induce others to subscribe, with the secret understanding that no liability shall attach to the subscribers, or that they shall be allowed to withdraw, are as binding on the subscribers as if originally made in good faith, and the existence of such subscriptions does not operate as a release of bona fide subscribers. Wilson v. Hundley, 96 Va. 96, 30 S. E. Rep. 492. Stockholders Imputed with Notice of Charter and ByLaws.—A stockholder is bound at his peril to take notice of the charter and by-laws of the company of which he is a member. If he pays any installment on his stock, or participates in any meetings of the stockholders after the charter is obtained, he is 143estopped to deny knowledge of its terms and provisions, however much it may vary from his contract of subscriptions. West End, etc., Co. v. Claiborne, 97 Va. 734, 34 S. E. Rep. 900. A member of a corporation is bound by an act of assembly varying the terms of the original act of incorporation; such act being passed at the instance of a legally constituted meeting of the corporation, although that individual member was not present. Currie’s Adm’rs v. Mut. A. Soc., 4 H. & M. 315, 4 Am. Dec. 517. Statute of Limitations as against Stock Subscriptions.—Under the statute regulating assessments of stockholders the statute of limitations begins to run against an action for unpaid assessments, only from the time such assessment is made. Lewis’ Adm’r v. Glenn. 84 Va. 947, 6 S. E. Rep. 866. In suit wherein a corporation is a party, the decree binds the stockholders, though they be not personally parties; and assessments made, under decree therein, payable to, and collectible by, the trustee of the corporation, may be sued for by him in his own name; and the statute of limitations begins to run against those assessments from the date of the decree. Vanderwerken v. Glenn, 85 Va. 9, 6 S. E. Rep. 806; Hamilton v. Glenn, 85 Va. 901, 9 S. E. Rep. 129. Issue of Stock at Less Than Par.—The guaranty of a land company that those who subscribe to its stock shall not be called upon to pay more than thirty per cent, of the stock subscribed for, may be valid as between the company and its stockholders, but as between the company and its creditors it is not binding, unless the latter had notice of the guaranty when their debts were contracted. Such guaranty is in fraud of the rights of the creditors, and cannot be enforced to their prejudice. The full amount of the subscription must be paid in money, or money’s worth, if necessary to satisfy the demands of the creditors, who have no notice of a different contract between the company and its stockholders at the time when their debts are contracted. Martin v. South Salem Land Co., 94 Va. 30, 26 S. E. Rep. 591, 2 Va. Law Reg. 743. V. Transfer of Stock. In General.—A by-law of a banking corporation, which prohibits a stockholder who is indebted to the bank from transferring his stock without the consent of the board of directors, is void, even though notice of such by-law be endorsed on the certificate of stock. Feckheimer v. Nat. Bank, 79 Va. 80. An option to purchase stock within three years is enforceable, though not in writing. Seddon v. Rosenbaum, 85 Va. 928, 9 S. E. Rep. 326. Bank stock standing in the name of the guardian of an infant, may be sold and transferred by the guardian, and the officers of the bank have no right to control or prevent him from transferring it on their transfer book. Bank of Virginia v. Craig, 6 Leigh 426. The general rule is, that the proper measure of damages for the breach of executory contracts for the sale and delivery of personal property, is the value of the article at the time it should have been delivered, with interest thereon from that date until paid. And there is no distinction, in this respect, between contracts for the delivery of stock, and other executory contracts. Enders v. The Board of Public Works, 1 Gratt. 364. O married M who owned fifty shares of Clover Hill railroad stock. By a resolution of the company the fifty shares is made seventy, and a certificate for the whole is issued to O. O having no children, makes his will, and after giving to his wife his whole estate for her life, says, "I give to her in fee her Clover Hill stock.” Held, looking to all the provisions of the will and the surroundingcircumstances, M took the seventy shares of stock. Osborne v. Osborne’s Ex’or, 24 Gratt. 392. Liability of Transferrer. -The assignor of shares of stock is still liable for unpaid subscriptions, whether installments accrue before or after assignment. Hamilton v. Glenn, 85 Va. 901, 9 S. E. Rep. 129. As against creditor of husband garnisheeing stock, his assignment to his wife endorsed upon the certificate, and reciting that it is for value received, was held not a valid transfer thereof in a case where the evidence shows that he had subscribed for it, that it always stood in his name, and the company’s books evinced no transfer and no payment of the transfer fee; that payment of monthly dues was always by his checks; that recently before the garnishment he had presided at a meeting of the stockholders and mentioned no assignment or proxy; that she had no separate estate and never laid claim to the stock before filing the interpleader. Massey v. Yancey, 90 Va. 626, 19 S. E. Rep. 184. Liability of Transferee.—In Gray v. Kemp, 88 Va. 201, 16 S. E. Rep. 225, the defendant had sold certain stock to the plaintiff at an agreed price which was paid; but the corporation denied that he owned the stock. The defendant then offered to refund, but plaintiff refused to accept the money, and without unreasonable delay sued for damages for breach of contract. Held, the plaintiffs were entitled to recover the value of the stock, or its highest price in market at any time after demand and refusal. Where corporate stock has been transferred to a purchaser, by judicial sale, and such sale is subsequently set aside in a suit between an original stockholder and the corporation, the latter can recover the stock issued to the purchaser at the judicial sale. Webb v. City Council of Alexandria, 33 Gratt. 168. Stock as Security.—It was held in Feckheimer v. Nat. Bank. 79 Va. 80, that § 5, 201 U. S. Rev. Statutes, prohibits banking associations from making loans upon security of shares ol their own stock. In order to bind a bank whose stock is pledged as collateral, notice of the pledge should be given its president, cashier, or other officer at its place of business, and in the usual course of business. Donnally v. Hearndon, 41 W. Va. 519, 23 S. E. Rep. 646. Burden of Proof.—Where the answer of the defendant plainly and directly denies, that the plaintiff or any one on its behalf, ever presented a written request from certain alleged stockholders, asking him to convey or transfer certain stock as alleged in the bill, the onus is cash upon the plaintiff to prove the allegation in his bill. Pithole, etc., Co. v. Rittenhouse, 12 W. Va. 313. VI. Pleading and Practice. Hultifariousness of Bill.—A bill by a number of stockholders against a corporation, alleging fraud in obtaining subscriptions, etc., is not multifarious because each complainant sets forth a different claim. Carey v. Coffee-Stemming Mach. Co. (Va.), 20 S. E. Rep. 778. A bill may be framed in a double aspect, but the alternative case stated must be the foundation for precisely the same relief. Stockholders who come into a court of equity and seek to have their contracts of subscription rescinded on the ground that they were fraudulently obtained, cannot in the same bill complain of the malfeasance and misfeasance of the corporate directors in the management of the 144corporate property, and seek relief which rests upon their relation as stockholders of the defendant company. Such relief must be considered a distinct act of affirmance and ratification of the very transaction which they, in another part of their bill, sought to repudiate. Brown v. Bedford City L. & I. Co., 91 Va. 32, 20 S. 33. Rep. 968. Allegations in Bill.—G. W. B. and C. entered into an agreement to form a joint stock company for the purpose of mining coal, &c. G. and W. put in 137 acres of land and they all jointly put in another tract of 463 acres, which were to constitute the basis of the company. The capital stock was to be sixty thousand dollars, divided as mentioned in the agreement. It was stipulated in the agreement that G. and W. were to receive from the profits of the first coal sent to market eight hundred and ten dollars of the company’s money as a compensation for the excess in value of the 137 acres over the 463 acres. Before any profits were realized the- lands were sold. Held, (1) G. and W. would be entitled to receive the said sum of eight hundred and ten dollars from the proceeds of the sale of the lands if sufficient to pay them, but the remainder of the stockholders would not be personally liable to G. and W. for the respective proportions of the eight hundred and ten dollars, unless they had actually received the proceeds of the sale of the lands or the profits of the coal sent to market; (2) As the bill of G. and W., to compel the other stockholders to pay their respective proportions of the said sum, did not charge that any profits were received, or that the other stockholders had received' the proceeds of the sale of the lands, it must be dismissed. Bainbridge v. Gehring, 3 W. Va. 240. An allegation in a bill against the stockholders of a joint stock company that certain persons mentioned in the bill “constitute, as the plaintiffs are informed, the stockholders of said defendant company” must, on demurrer, be taken as true, and is a sufficient allegation that the persons named constituted the stockholders of the company. Martin v. South Salem Land Co., 94 Va. 29, 26 S. E. Rep. 591. A bill against a corporation and its directors alleged fraud in obtaining the stock subscriptions of the plaintiffs and failure to comply with the corporate charter, stated that plaintiff’s stock had been issued to them and fully paid for, and asked a return of money so paid. Held, that the bill was not demurrable on the ground that plaintiffs sued as stockholders and not as stockholders at the same time. Carey v. Coffee-Stemming Mach. Co. (Va.), 20 S. E. Rep. 778. Averments in Answer.—Where a suit is brought against a corporation, and a purchaser of the stock of the corporation files his answer in defence of the suit without showing that the corporation has refused to defend the suit, it is not error to strike out his answer. Park v. N. Y. & Ka. Oil Co., 26 W. Va. 486. See especially, monographic note on “Answers,” appended to Tate v. Vance, 27 Gratt. 571. Joinder of Parties.—Where a large number of persons have been fraudulently induced to become subscribers to a company by identical representations, they may unite in one bill, praying the cancellation of their subscriptions and make the offending company, and its officers and agents, through whom the fraudulent representations were made, defendants. But creditors of the company cannot be united in the same suit. Their rights and interests are not only diverse, but wholly antagonistic to those of the stockholders. There is an “irrepressible conflict” between the two classes, and if united in the same bill, it will be multifarious for misjoinder of complaints. Brown v. Bedford City Land & Imp. Co., 91 Va. 31, 20 S. E. Rep. 968; Bosher v. Richmond & Harrisonburg Land Co., 89 Va. 455, 16 S. E. Rep. 360, distinguished. Under Code 1873, chapter 57, § 26 (Code 1887, § 1103), a corporation, though dissolved or expired, may be sued to enforce its liabilities, and its stockholders are not necessary parties. Hamilton v. Glenn, 85 Va. 901, 9 S. E. Rep. 129. A corporation being a defendant to a suitin equity, the object of which is to have it declared null, the holders of stock in it are not proper parties to defend the suit. But if in such a case the holders of the stock claiming that if the corporation is annulled they have equitable interests in the property, may be admitted as parties defendants to protect their interests. Washington, Alex. & Georgetown R. R. Co. v. Alex. & Wash. R. R. Co., 19 Gratt. 592. All the stockholders are necessary parties to a bill filed for the purpose of winding up the affairs of a corporation. But where the object of the bill is to subject corporate assets, including unpaid subscriptions to stock, to the payment of corporate debts, they are not indispensably necessary, though it would be more convenient to have before the court all who have not paid in full, except such as are unknown, insolvent, or beyond the jurisdiction oif the court. It is not the duty of creditors to marshal the assets, or adjust the equities between the stockholders. If the stockholders who are parties desire it, they can have the others brought in "by proper proceedings for that purpose. Martin v. South Salem Land Co., 94 Va. 29, 26 S. E. Rep. 591. Action for Recovery of Stock Subscription.—The Act of Assembly approved December 19, 1895, entitled “An Act to prescribe the mode by which unpaid subscriptions to joint-stock companies may be recovered by said companies, their receivers, or assignee,” has no application to a suit by creditors of such companies to recover stock subscriptions, because they are not embraced in the title of the Act. Nor does it apply to a suit in which there has been, before the approval of the Act, a decree entered fixing the rights of the parties, requiring stockholders to pay further sums on their subscriptions, and giving executions therefor, although further proceedings in the case were necessary in order to complete the relief for which the suit was instituted. Such a decree is a final , decree on the merits within the meaning of the Act, and .the case is exempt from the operation of the Act by its very terms. Martin v. South Salem Land Co., 94 Va. 28, 26 S. E. Rep. 591. Removal of Causes to United States Courts.—The plaintiff and the defendant corporation being corporations of this state, the owners of the stock though nonresidents, are not entitled to have the cause removed to the United States court, to have the question of the validity of the corporation decided. Wash., Alex. & Georgetown R. R. Co. v. Alex. & Wash. R. R. Co., 19 Gratt. 592. Equity Jurisdiction.—Equity has jurisdiction where the relief asked for involves accounts, commissioners, questions of fraud, and cancellation of subscription to stock of a corporation. Carey v. Coffee-Stemming Mach. Co. (Va.), 20 S. E. Rep. 778. A bill in equity to ascertain and determine the extent of the individual liability of the stockholders of a foreign corporation can not be sustained. Nimick v. Mingo, etc., Co., 25 W. Va. 184.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481851/	Staples, J. The bill is filed by Mary Hunter, executrix of James Hunter, dec’d, against B. B. Vaughan aud others. It alleges that James Hunter, on the 25th July 1862, purchased from Uriah "Wells certain property in the city of Richmond, at the price of $11,580; the first instalment of -which was paid in cash; that previous to this purchase, Wells, the vendor, had executed three deeds of trust upon the property, for 1he purpose of securing the payment of certain debts due the parties respectively named therein; and it was agreed between Hunter and "Wells, that the former should pay these debts; that it was understood that the creditors had agreed to accept payment in Confederate currency; that two of the deeds were paid and satisfied in this way; and the third, for the benefit of the defendant B.B. Vaughan, would also have been satisfied, but for the refusal of Vaughan to receive the Confederate curroncj when tendered to him in December 1862. The bill further charges that Vaughan knew all the circumstances of the purchase by Hunter; that he became a party to the arrangement, and assented to it; and he ought to be compelled to release the deed of trust held by him, the same having been satisfied by the tender. These averments constitute the main ground upon which the complainants’ application for relief is founded. VaughaD, in his answer, admits that Hunter, in the 402year 1863, requested him to receive payment in Confederate currency, which he declined; but that there was no tender of it, and it was not insisted on by Hunter. He denies that he had any understanding before or after the sale with Hunter or Wells, that Hunter was to pay the debt due to him. He denies that he was a party to the contract of sale, or that he had any knowledge of it until after it was consummated, or that he had at any time agreed to accept payment in Confederate currency. It is true he received the interest in that currency up to January 1863; but it was because he chose to do so, and not because he was bound by any arrangement or promise to that effect. The auswer having thus positively denied the material allegations of the bill, it devolved upon the complainant to sustain them by two witnesses, or one wituess with corroborating circumstances. The only evidence adduced by complainant is a letter written by Vaughan to Hunter the 1st January 1863, and an affidavit of John G. Hunter, taken without notice to the defendant, and excepted to upon that ground. The letter is apparently an answer to an inquiry on the part of Hunter, whether Yaughan would consent to receive the jrrincipal of his debt in the then existing currency. Yaughan replied, that he only told Mr. Wells that possibly things might turn out, that he would receive the principal in currency; but he could not speak certainly about the matter. He further says, he has no use for the money, and cannot accept it; that the money was loaned in ordinary times, and that an attempt to force payment in the then existing state of things could not of course be tolerated, and he is sure would not be attempted. This language certainly does not indicate the existence of an agreement to receive Confederate money for the debt. It tends very strongly to show, 403that Vaughan at least, did not consider that any such , „ , , , , , -arrangement was made, we must then look elsewhere for testimony in support of the bill. Does the x x furnish it, conceding that it is admissible evidence? It does not profess to state facts within the knowledge of the witness; but consists of opinions and inferences deduced by him from the letter already referred to, and the deeds filed in the record. It might be more appropriately considered an argument than a deposition. An answer positive and unequivocal in its terms, cannot be •overthrown by a dozen affidavits of this character. The Chancery court did not err, therefore, in holding that the allegations of the bill were not sustained by the necessary proofs. The next objection taken by the appellant, is, that the person acting as substituted trustee was not properly appointed; the appointment being made by the Circuit court of the city of Richmond, instead of the Chancery court. It is true that by the 6th section, chap. 155, Code of 1873, the Chancery court is clothed with exclusive jurisdiction in the enumerated cases in that section, and also all the jurisdiction vested in the Circuit courts of the State under the provisions of chap. 175. Neither the enumerated cases nor the provisous of chapter 175, however, embrace “motions and other matters” cognizable in other Circuit courts of the commonwealth. These last, by the 4th section of chapter 155, belong exclusively to the Circuit court of the city of Richmond, and not to the Chancery court. And it will be seen by reference to the 8th section of chapter 174, Code of 1873, that in any ease in which the appointment of a new trustee is proper by reason of the death, removal or refusal to act of those named in the deed, application for such appointment may be made to the Circuit, Couuty or Corporation court of the county or corporation 404in which the deed is recorded. These provisions make it very clear that the Circuit court of Richmond is the tribunal for the appointment of trustees in this- and other cases of a similar character. Whether the Chancery court may also exercise jurisdiction in like cases we are not called on to decide. In regard to the notice, it was properly given to the-personal representative of the grantor in the deed, the personal representative of the trustee who was dead, and to the survivor who had removed beyond the limits of the State. It was not necessary that notice should be given to Hunter or his representative, as he was neither a grantor or grantee, nor a surety or other person intended to be secured by the deed. The only remaining objection necessary to be considered is, that the legal title was and is in C. Q. Tompkins. In reply to this objection it has been very properly answered by the counsel for the appellee, that the point is for the first time made in this court, and was not suggested in the court below as a difficulty in the way of a sale under the trust deed; that if the objection had been then urged it might have been removed by an examination into the state of the title, or by the execution of a deed of release. But, apart from all this, I think it is very clear that Tompkins had conveyed to Wells long before the sale to Hunter. The recitals in the agreement between Tompkins and-Wells show that it was understood between them a conveyance was to be made to Wells upon the payment of the instalment of $1,750 of the purchase money due the 20th June 1855; and it is manifest from the recitals in the deed from Wells to Hunter, that Wells had not only paid all the purchase money to Tompkins, but had received from him the legal title. And it is equally manifest that the only lien upon the property now prevailing, is that held by the defend405ant Yaughan; so that a sale by the trustee under that deed will vest in the purchaser a valid title. If there is any other cloud upon the title, it has been raised by this controversy, and will be removed by its termination, under the decree of the court below. That decree, for the reasons stated, must therefore be affirmed. The other judges concurred in the opinion of Staples, J. Decree appirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481852/	Bouldin, J. This case comes before ns upon a writ of error to a judgment of the Circuit court of the city of Richmond. The action was a covenant upon the following obligation: Kottoway, Va., 26th Sept. 1859. $5,000. I have this day borrowed of Mrs. R. B. Parish five thousand dollars, in stock of the State of Virginia,, on which interest is payable semi-annually "; and for the repayment of the same, with the accruing interest, I bind myself, my heirs, &c. Witness, my hand and seal,, this 26th September 1859. W. C. Knight. (Seal-) 407The case was docketed, by consent, on the 14th day of January 1871, and the declaration filed in open court, on the same day. The declaration set out the covenants, and made proferí thereof; and the breach assigned was, that the defendant, although reasonable time for repayment of the said sum of $5,000 had long since elapsed, had not repaid the same. The facts of the case were agreed by the parties, by counsel; a jury was waived, and the case was submitted to the court on the law and facts. Those facts, so far as pertinent to the issue between the parties, were in substance, as follows: On the 26th September 1859, Mrs. R B. Parish, a sister-in-law of the defendant in error, W. C. Knight, with her daughter, was, as she had been for several years, boarding in the family of said Knight, then residing in Nottoway county; and he “borrowed” of her “five thousand dollars, in Virginia State stock,” executing and delivering to her, therefor, the obligation of which we have already given a copy. The stock was borrowed by Knight, to be converted into money, and used in payment of the purchase money of the estate called “AVelton,” then recently purchased by him; and was, in fact, sold by him on the - day of November 1859 for $4,755. Mrs. Parish and daughter continued to reside with Knight down to the 30th of January 1866, when she intermarried with Hudnall; and in contemplation thereof, Knight’s obligation was assigned to Davis, for her separate use; and on and after that day she ceased to board with Knight. Her daughter soon after married also, and ceased to reside with Knight. All accounts for board and charges for interest on Knight’s obligation were fully stated, down to the time of the marriage; and since that time $637.50 had been paid on account of interest. "Receipts passed on both sides, but it was agreed 408that their form was not to affect the construction of the obligation, and they need not be noticed. On or about the 2d of February, 1870, Knight indicated to Mrs. Hudnall his willingness to deliver to her, at par, .State stock to the amount of five thousand dollars; that amount being then worth only about $2,500. She declined to take it; claiming $4,775, with interest on $5,000 from July 1, 1869; to which time it is agreed that interest had been paid. The market value of the stock, when sold by Knight, in November 1859, was $4,775.12. On the 1st day of January, 1860 was $4,575; on the 1st day of January 1861 was the same, $4,575; and on the day of trial was $2,525, without interest. And it was “ further agreed that the defendant may make any defence under the pleas of covenants performed and covenants not broken that he might make under any special plea; and that the court, alike Circuit and Appellate, may draw such inferences from the facts agreed as a jury could be entitled to do.” The Circuit court gave judgment against the defendant for $2,975, being the aggregate of the then value of the stock aforesaid, and interest thereon from July 1, 1869, with interest on said aggregate sum. To this judgment the plaintiff excepted; and the facts agreed are all spread on the record. A writ of error to the judgment was awarded by a judge of this court. The case has been argued with marked learning and ability on both sides; but under the construction which I have placed on the contract it will not be necessary to follow their line of argument. I concur with the learned counsel for the appellee, that the contract before us, “ is either a stock contract or a money contract; it is either a loan of stock and an 409obligation to replace it, or it is a loan of money, the proceeds (or more appropriately the agreed value) of stock, and an obligation to repay it, with interest on the face value of the stock;” or I would add, on the money loaned, which in this case is the same thing. One or the other of these constructions, modified as above, should in my opinion be placed on Knight’s obligation; but, unlike the learned counsel, I think it wholly immaterial, on the facts of this case, which construction shall be adopted. The practical result to the parties will be the same under either construction. The judges of this court differ in opinion as to which is the true construction of the contract. My own opinion is, that it is purely a money -contract; simply borrowing and lending of five thousand dollars, the estimated value of State stock transferred to the borrower, with an obligation to repay the same; the five thousand dollars borrowed, with interest thereon. This, I think, is the literal construction and the legal effect of the obligation, and it is a construction which will do substantial justice between the parties The language of the obligation, which is copied above, imports a loan of money. “ I have this day borrowed from K>. B. Parish, five thousand dollars, (a comma after the word dollars) in stock of the State of Virginia,” &c. He does not borrow bonds or stock of the State for five thousand dollars; but he borrows “five thousand dollars in stock of the State of Virginia (how much stock it required to be worth that sum does not appear on the face of the covenant and is not shown by the facts agreed), and for the repayment of the same, with the accruing interest,” he bound himself, &c., &c. Here, again, it will be observed, the words of the obligation are entirely appropriate to a loan of money, but not at all appropriate to a loan of stock. Had it been the latter, the obligation would have been for its return or 410replacement, and not as here, for the repayment of the-same; language appropriate only to a return of money. And the learned counsel for the appellee has himself acknowledged the justice of this criticism, in stating the propositions before the court. He says, it is either a money contract with an obligation “to repay,” &c., or a stock contract with an obligation “ to replace ,” &c. He uses the right word in the right place. The-language is apt and the distinction pertinent. But there is another reason apparent on the face of this obligation, for treating it as a contract for the loan of money— as an obligation for five thousand dollars — not stock, but money. There is on the margin of the obligation the usual dollar mark, and figures representing five thousand dollars, thus, “$5,000,” showing, as I think unmistakably, when taken in connection with the language,, that it was the intent of the parties to secure to the lender $5,000. And I am fortified in this view of the contract by the construction uniformly placed on similar-language under a like state of facts in construing legacies. Such language has been uniformly held to constitute a money legacy — a general pecuniary legacy— called demonstrative, and not a specific legacy of that much stock. It is contended, however, that such a- construction would be fatal to the appellant’s claim; that the eoutract would be usurious, and therefore void. It is not contended that the rate of interest stipulated for is usurious; for that is only six per cent, on the sum borrowed. But it is contended, that the contract, if treated as an obligation for the payment of five thousand dollars, is usurious and void, because, as alleged by the defendant in error, the State bonds, from which the loan arose, were at the date of the loan below par, and not worth the sum of $5,000, at which they were rated by the parties; that 411they were then worth only $4,775; and being rated at $5,000, the contract was usurious. The conclusion'would be difficult to avoid, were the premises true. "We have, however, the contract before us, showing that Knight borrowed $5,000 worth of stock. But, there is not a word in the facts agreed, literally nothing, showing or tending to show, either the amount of State bonds transferred, or their value at the date of the loan, except the obligation itself. That obligation values the stock, whatever the amount was, at $5,000; and, as I have said, we have literally nothing in the record to show that it was then worth less. But, it is argued that it was below par, because it is an admitted fact that on the-.day of November 1859, Knight sold the same stock for only $4,775. The fact is true, but the conclusion a non sequ tur. The contract was made the 26th of September 1859, and the sale by Kuight on the -day of November 1859 ; (what day does not appear;) and it would be more reasonable to conclude that for some sufficient cause there was a decline in State bonds between those dates; and, more especially, when we remember that these bonds did decline between the date of Knight’s sale and the first of January thereafter, at about the same rate; for it is an admitted fact, that whilst they were worth, at the date of Knight’s sale, $4,775.12, they had declined, on the 1st of January 1860, say, in six weeks, to $4,575, their then value; that decline bearing, it will be seen, very nearly the same proportion to $4,775.12 as the latter sum does to $5,000, and showing a proportionate decline. I see nothing, then, in these figures, which can properly lead us to the conclusion that the stock transferred was over-estimated by the parties; and there is literally nothing in the record from which that can be legitimately inferred as a fact in- the cause. We must, therefore, 412take the estimate of the parties as true; and the contract, in my opinion, is not usurious. This view of the case renders it unnecessary that we should follow the learned counsel in their interesting and exhaustive arguments as to the time when the covenant was broken and the measure of damages. Being in my opinion a simple covenant to pay five thousand dollars, with legal interest thereon, the plaintiff in error was entitled to a judgment for that sum, with interest from the first day of July 1869 till paid, all interest having been fully paid to that date. And in these views Judge Anderson concurs. It is perhaps proper to say, as undue prominence may seem to have been given to a minority opinion, that when the above was prepared the writer supposed they were the views of the court. But a majority of the judges do not concur in those views. They hold that the contract between the parties was for a loan of stock, to be replaced in kind, and notaborrowing and lending of money; that, fairly and reasonably construed, the contract was either for the loan of State bonds for five thousand dollars, of par value, to be replaced by like bonds of like value, with accruing interest; or for the loan of State bonds of the value of five thousand dollars, to be replaced by State bonds of like value, with interest. The practical result of this construction is in all respects the same with that attained. by the views of the minority. The contract can only be performed by returning to the ■lender State stock of the same value with that of the ■stock loaned, viz: $5,000; and that sum, with interest, •must necessarily be the measure of damages for a failure to return the stock. But as the plaintiff in error seems never to have demanded more than the sum of four thousand seven *413hundred and seventy-five dollars, the amount for which the defendant in error sold the stock, soon after the loan, and does not claim more now, it is the opinion of all the judges that judgment should be entered for that sum only, with interest thereon from the first day of July 1869, till paid. We reach this result with the greater satisfaction, because we think it reaches the substantial justice of the case. The plaintiff in error secures all that her stock sold for, very soon after the loan was made; and the defendant in error is made to pay only what he actually realized. We think that neither party contemplated a contract of speculation or hazard. Their relation to each other, at the time of the loan, forbids the idea. The judgment of the Circuit court must be reversed, with costs to the plaintiff in error, and. judgment entered here for four thousand seven hundred and seventy-five dollars, with interest from the first day of July 1869, till paid, and the costs in the Circuit court. Anderson, J. concurred in the opinion of Bouldin, J. The other judges did not concur in the opinion of Bouldin, J., as to the construction of the contract; but all concurred in reversing the judgment, and rendering a judgment in favor of the appellant for the value of the stock at the time of the loan. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481853/	Anderson J. delivered the opinion of the court. By the admission of the appellants, in their answers to plaintiff’s bill, the plaintiff’s intestate, by contract with the firm of James Chieves, was entitled to receive one-fourth part of the net profit realized upon 425the manufactured tobacco, for his services, in lieu of a fixed salary. And the tobacco which was manufactured for the California adventure by the firm, as shown by the entries in their books, was manufactured in the same way all the rest of their tobacco was, and by the firm, under the direction and management of the said Gary, and necessarily constitutes a part of the manufactured tobacco, iu the profit upon which he was entitled to share, there being no preteuce even of an agreement ou his part to except it from the contract. The contract of the appellees with Edward J. Hudson, to give him one-third of the net profits on the tobacco manufactured for the •California' adventure, although enhancing the cost of manufacture, did not authorize them to impose other terms upon Gary, without his consent; and could not deprive him of his right to the one-fourth part of the net profits realized upon that tobacco, he never having surrendered his right thereto, or changed his contract in respect to it. Was this right surrendered by his administrator, the appellant, by his contract made with the appellees, pending this suit? This is the main question. If it was not surrendered, the intestate’s estate is still entitled to one-fourth part of the profits realized by the firm on the manufactured tobacco shipped to California. There is no express stipulation of release or surrender ■in the contract. And it can be implied, if at all, only from the direction to take the balances, as shown iu the “fictory account” and “factory balances,” as the true balances. If that language restricts the commissioner to ■the entries made under those heads of acerunt, and for•bids the correction of any errors, either by taking from, nr adding to, or changing the balances shown by those accounts, as written up, (which would be adhering very closely to the letter,) such restriction could only apply to the account for 1858 and the previous years. It could 426not, and does not, apply to the account for 1859, which-had not been closed on the books. The accounts for 1858- and the previous years, were stated and reported to the , . court, and tl e balances, as shown m “factory account anc^ “i'aet°ry balances,” were taken as true, and showed a balance in favor of the plaintiff’s intestate of $55,281 and 50 cents, after deducting debits of 1859. To this report there was no exception, and the same was confirmed by the court; and the above balance was decreed the plaintiff; and the commissioner was directed to take-an account of the transactions between the parties, not. embraced in said report, up to the 9th of January 1860, upon the same principles which had been agreed upon for the settlement of the previous account. Those principles were, so far as applicable to the statement of the account subsequent to 1858, that the plaintiff's intestate should be treated as an employee of the-firm, entitled to one-fourth part of the profits on the tobacco manufactured, and that his debits for the year-1859, which had r.ot been taken from the balance due on the previous account, if any, should be deducted, without interest, from his proportion of the profits, to the close off the year 1859; the balance to bear interest until paid. These were the principles upon which, by the agreement, the previous account was to be settled. And, in addition, it was stipulated that in its settlement the balances, as-shown by “factory account” and “factory balances,” should be taken as true. But such direction could not be-applicable to the account for 1859, because confessedly the accounts for that year had not been written up, and the balance was not shown ; and therefore could not be taken as true. It was shown by “factory account” for the year 1858, that the manufactured tobacco shipped to California that year, cost the firm $29,423.38, which is credited to “fac427tory account.” But no credit is given for the profits real-J ized on that tobacco. “ Factory account” is credited with 7 cents a pound. But that entry was made in pursuance „ , 1 . , .. . , . of the agreement made by the appellees with Hudson, to which Gary was no party; by which they bound themselves to keep an account of that business and of the net profits, of which Hudson w-as to have one-third. They also agreed that the charge for manufacturing should not be less than 6 nor more than 7 cents a pound, which should include sweetening and flavouring. The language imports that it was the estimated cost of manufacturing; and according to the weight of evidence, it does not exceed the cost. But, be that as it may, they could not limit the profits in that way, so as to impair the right of Gary, under his contract, to the one-fourth part of the actu d profits, without his consent. It was binding only between them and Hudson. And this entry was necessary, and could only have been intended to carry out their contract with Hudson. Then, when they received the returns of sales, a deduction of the cost of the tobacco, as credited to“factory account,” from the net proceeds of sales, would show the profit; from which one-third, which they agreed to give Hudson, should be taken, as a part of the costs to the firm; and the other two-thirds should be credited to “factoiy balances,” or carried to “profit and loss,” which is in effect the same; and out of which, as the profit on manufactured tobacco, Gary, by his admitted contract, was entitled to one-fourth. But the factory account for 1858 did not show this balance, and the balance shown by it was to be taken as true. If no sales had been made of this year's shipments, or if the account and proceeds of sales had not been received by the close of the year 1858, no profit had been realized upon this tobacco at that time; and by the terms 428of the agreement with Garv, as it is set out hv the anpel- , & , , • J 11 lees, he was only entitled to a share of the profits rea ¿¿red. no entry of profits could be credited to “factory balances ” until returns were received. Until then Gary was 110t enti^e<^ to be credited with his share of the net profits. “Factory accouuts” is not credited with the shipments until December 1858, and it is therefore evident that the profits could not be realized in time to entitle Gary to a credit for his one-fourth part by the 31st of December 1858, when the “factory account” for the year -was closed on the books. Uo profit having been realized, as late as the 31st of December 1858, as far as this record show’s, the “factory account” showed the true balance then due Gary. But that could not preclude him from receiving his share in 1859, or subsequently, whenever the profits were realized. But the cost of tobacco credited to “ factory account” is debited to “ adventure to California; ” and as the returns are received, must necessarily be credited to the same. This does not show that the firm in making that entry intended to withhold from Gary his share of the net profits, or to deny his right to it. This evidently appears from the fact that the entry, upon shipment of 1857, to California, was made in the same way, and one-third of the net profits was credited to Hudson, and one-fourth of the two-thirds was credited to Gary. And if so, his administrator, in agreeing to take the balances shown by “factory account” and “factory balances” as true, if his attention had been called especially to the entry aforesaid, could not have interpreted it as an exclusion or denial of his intestate’s right to the one-fourtli part of the net profits on the tobacco shipped to California, when the returns were received and the profits realized. It was proper that this transaction should be kept-separate from other transactions of the factory, in order to ascer429tain Hudson’s share of the net profits. When that was deducted, the net profit of the firm which remained might be carried back to “factory balance,” and thence to “ profit and loss,” ivhich is the summing up of the balances of all the accounts, to show what profits there are for division; or, to avoid that circuity, it might be carried directly to “ profit and loss,” as seems to have been done with the profit on the shipment to California in 1857, which was afterwards divided, and one-fourth ci’edited to John G. E. Gary, who was then living. It would bo more regular, after the amount due Hudson was ascertained and deducted, especially if Gary was not a partner, and ivas entitled only to a share of the profit on manufactured tobacco, to carry the net profit of the firm (the two-thirds) to factory balance account, and to credit Guy, to the debit of “factory balance,” with his one-fourth part of the profit, and carry the bahmee to “ profit and loss ” account, to be divided between the members of the firm. And the administrator, when making this agreement, if his attention had been called to this matter at all, may well have concluded that, when the profits on the shipments of 1858 to California were realized, they would be credited to “factory,” on “factory balance” account. How’ever that may be, there is nothing in the terms of his agreement, or in any fair inference therefrom, to inhibit it. Hor does it appear that it was the intention of the administrator by this contract to surrender his intestate’s undoubted right to share in the profits realized from a part of the tobacco, and a very large portion of it, manufactured in 1858 and 1859. 2sTor is such the effect of his contract. But, if the clause of the contract, which we have been considering, could be construed as restricting the plaintiff to the balance due on the 31st of December 1858, as shewn by “factory account,” and as excluding him from 430a share of the profits on the manufactured tobacco shipped to California prior to that date, we think, from the conduct of the appellees and all the circumstances dis-by the record, that it was a deception practiced upon the administrator; and that in consenting to said contract-, he was not aware that it was liable to such a construction, or that he was surrendering the right of his intestate to one-fourth part of the profit realized upon any part- of the tobacco manufactured by the firm under his direction and management. Mr. Osborne, in his answer, had sworn that the firm “ opened and kept upon their books a ‘factory account,’ which shows, correctly and compactly, for every year, the net profits realized upon manufactured tobacco, to one-fourth part of which Gary was entitled, in lieu of a fixed and stated salary, as compensation for his services.” Upon the recommendation of the commissioner, which was doubtless influenced by this asseveration of Osborne in his answer — (for he says he had carefully examined the papers in the cause before he recommended to the parties the terms of adjustment — though he had only partially examined the books &c. of the firm) — the said recommendation of the commissioner, and also the representation of Osborne, (which was not true, if it excluded the profits on the manufactured tobacco shipped to California,) the administrator acceded to the recommendation of the commissioner. The administrator was entitled to a full and truthful disclosure from the appellees ; and they were hound by the sacred obligations of trust to a dead man’s estate, to make a truthful disclosure. It was made under the •sanctity of an oath; and the plaintiff, upon the faith of it, accepted the terms wThich were recommended. It will be remembered that the want of candor in other representations and disclosures was not then known. The 431•.plaintiff’s intestate had died suddenly, and left no trace ■ or evidence of his relation to the business of James Chieves, or of his just demands against the firm. They refused to allow the plaintiff access to tlieir books, correspondence, &e., to obtain information; but undertook to give him, personally, such information as they chose. And he had to file his bill in chancery against them. Air. Osborne, with his answer, filed an account as an exhibit, showing a balance of §23,999.72, of which he says: “This respondent avers that said account is a true abstract of said Gary’s account on the books of the firm, . and respectfully submits that the plaintiff is not entitled to any further account, and certainly is not entitled to the production of any of the books and papers of said firm, unless he can by proof or affidavit lay the foundation for the belief that said books and papers would, if produced, establish said account to be erroneous.” Of this account Air. Chieves says : “The account filed with the answer of the defendant Osborne is made up from the books, and is a true and correct account of the cre- • dits to which Gary is entitled, and of the sums of money with which he should be charged, and shows truly the balance due him, and is adopted as part of this answer.” Yet the commissioner, in stating an account from their books, shows a balance of §55,281.50, which he reports to the court, and which is confirmed by the court, w'ithout an exception. Afterwards, in the statement of the subsequent accounts, Air. Chieves exhibits an account of the transactions of 1859, showing no profit, but a loss of $1,721.68 for that year. Yet the commissioner reports a profit of §9,569.03, exclusive of the profit on the tobacco shipped to California, which is confirmed by the court; and we think correctly. If these exposures had been made before the agreement in question was entered into by the plaintiff, they would 432have been sufficient to throw him upon his guard. But they were not; and he having no evidence in his possession, and retying upon the appellees for information, if they misled him into a contract, by uncandid disclosures, to the wrong and injury of his intestate’s estate, the court is of opinion that they should not, in conscience and equity, be allowed to take advantage of it. The court is therefore of opinion that there is no error in the decree of the Circuit court, and that the decree of the District court, so far as it reverses it, is erroneous. Let the decree of the District court, so far as it reverses, the decree of the Circuit court, be reversed; and the-decree of the Circuit court be affirmed; and the cause-be remanded to the Circuit court of Petersburg, for further proceedings to be had therein, in conformity with this opinion. Decree or District court or appeals reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481854/	Anderson, J. This was an action of covenant, brought upon an obligation in these words: “Three years after date we bind ourselves, our heirs, &c., to pay to Samuel S. Wrightsman the sum of two thousand dollars, without interest, in funds current in the State of Virginia, being money borrowed by us on joint accouut. 434“As witness our hands and seals this 7th day of July, one thousand eight hundred and sixty-three. (Signed) “EL W. Eowyer. [Seal.] “ Sam’l M. Carper.” [Seal.] The court gave judgment for $277.77, with interest thereon from the 7th of July 1866. To which judgment the plaintiff obtained a supersedeas from one of the judges of this court. Several errors are assigned in the petition. First, setting aside the verdict of the jury of the 9th of September 1871, and granting a new trial; second, setting aside the verdict of the jury of the 6th of April 1872, and granting a new trial; and third, in sustaining the demurrer to the evidence. The grounds of the two first assignments of error will be noticed in considering the last — the demurrer to the evidence. The court does hot seem to have sustained the demurrer. On the contrary it gave judgment for the lowest alternative assessment of damages by the jury. The question as to the plaintiff’s right of recovery was not submitted to the jury, but only the assessment of damages, in case the court should determine the law in favor of the plaintiff. Elpon the demurrer the court was the judge both of the law and the facts, and it was only the province of the jury to assess the damages. Accordingly the jury found the damages to be $2,000, with interest, &c., on one construction of the contract, if the court should so construe it upon the evidence; upon another construction of the contract, if the court should so construe it, they assessed the damages at $277.77, with interest, &c.; and upon another construction of the contract, if the court should so construe it, they assessed the damages at $1,360.50, with interest thereon from the 7th of July 1866 till payment. This verdict seems 435to have covered the whole ground of contention, and to have ascertained what should be the plaintiff’s recovery in damages in either aspect in which the case might be viewed by the court. And the court being of opinion, from the evidence, that the contract was entered into with reference to Confederate States treasury notes as a standard of value, and was to be fulfilled and performed in such notes, gave the plaintiff' judgment for $277.77, with interest, according to the findiug of the jury in such case. And it now devolves upon this court to determine whether, upon the evidence certified, there is error in that judgment. If the bond was the only evidence in the record, it being for a loan of money at a time when Confederate money, as is judicially known, was the only currency; and when contracts were almost universally made with reference to that currency as a standard of value, I think the fair presumption would be that the lending of Confederate money was the consideration of the obligation; that the contract was made with reference to it as the standard of value, and that it wras payable in the same kind of currency. (See Dearing & Rucker; Miller and Franklin v. The City of Lynchburg; Meredith v. Salmon; Walker’s ex’or v. Page & al.; Hilb. v. Peytons; and Calbraith v. The Porcelain Earthenware Co.) And if that were so, I should not be disposed to disturb the judgment of the Circuit court. But I think the parol evidence repels that presumption. It shows that the consideration of the obligation for $2,000, payablefin three yeai’s, without interest, was $2,500 in Confederate treasury notes; from which it would seem that Confederate treasury notes were not the standard of value to which reference was had in the contract. It is also further proved that it was the intention of the parties to fix the 436clay of payment so remote that it would not fall due until after the war; and that the parties considered the probabilities whether it would be payable in Confederate currency or not. The borrowers calculated that the war would result in favor of the Confederate States, and that, although it would be payable in a better currency, it would be Confederate; but that if it did not result in favor of the Confederacy, the bond would have to be discharged in United States currency. This they did not think probable, and therefore, as they were getting $2,500 for $2,000 without interest for three years, they were willing to run the risk. It is evident, from their own testimony, that they were aware of this risk, and that it entered into their calculations; and that they contemplated that this contingency might arise, in which the obligation they were assuming might have to be discharged in United States currency. Thus they made a contract of hazard to pay $2,000, in three years, without interest, not in gold, but in funds current at the maturity of the bond, whether those funds were Confederate or Federal depending upon the result of the war. Such I think is evident from the testimony of the obligors themselves; and it accords with the testimony of the obligee. He did not know what would be current funds after the war, whether Confederate or Federal; but he was willing to run the risk, and to take $2,000 in whatever funds were current when the bond.fell due. So that I am obliged to regard it as a contract of hazard, the risk being the contingency, which was in the contemplation of both parties, whether the war would result for or against their country. Whether such a contract was lawful and could be enforced, whatever might be my opinion if it were an open question, I deem it unnecessary to say, as, since the decision of Boulware v. 437Newton, it lias not been regarded as an open question, that decision having been followed in subsequent cases, but with the declaration that the principle should not be extended in its application: which I understand to mean that unless it clearly appears that the parties contracted with reference to a contingency that the war should result in the overthrow of the Confederacy and the destruction of its currency, and the substitution of United States currency instead, and that it was contemplated and intended by the parties that in such event the contract should be solvable in United States currency, the principle of Boulware v. Newton should not be applied. I think it is evident in this case that it was in the contemplation of the parties that such a contingency might arise, and that, in that event, the obligation should be discharged in the funds which w’ere then current, though it should bo Uuited States currency. But even in Boulware v. Newton it was not hold that the obligor should pay the face of the bond. Judge Ilives, in whose opinion the other judges concurred,says: It w’ould be scarcely proper at this time to anticipate and prejudge a question that may hereafter arise out of the obligation to pay in ‘current funds? This is a grave question, which may not arise, and should not be decided except in a proper case, and upon the fullest consideration.” Then Boulware v. Newton does not go so far as to hold that upon a contract payable in “current funds” the obligee was entitled to recover the face of the bond. The question is raised in this case pointedly by the verdict of the jury. And we come now to its consideration. It can hardly be regarded as an open question. It has been raised and decided by this court in two cases, and in both decided the same way: in Beirne &c. v. Dunlap, 8 Leigh 514; and in the recent case of 438Dungan v. Henderlite, 21 Gratt. 149. The former case was an action of debt upon an obligation, dated June 12, 1833, to pay on the 1st of September 1834 “ the sum of $813.79, in notes of the United States bank or either of the Virginia banks.” There was a demurrer to the declaration, on the ground that debt would not lie. This court held that debt would not lie upon the obligation, and that the demurrer was well taken. Judge Parker said that a contract “to pay $813.79 in bonds or bank paper means bonds or notes calling for that sum.” “Paper,” he says, “ may rise or depreciate in value before the day of payment; and if the day passes when the contract is to be fulfilled, the measure of the obligee’s rights and of the obligor’s liabilities, is the value of the notes on that day, to be ascertained by the verdict of a jury, and awarded in damages.” Again: “Whei’e the named sum is to-be paid in any determinate quantity of a collateral ai’tiele, subject to fluctuation in its-market price, (and what was more so than “ current funds” at the period of the maturity of this obligation and since, except Confederate currency prior to the overthrow of the Confederacy?) the value of that article is the thing due; and as it may be more or less than the named sum for which the creditor is willing to take the article, it must be estimated in damages by a jury.” Again he says: “ It is bank paper the obligors engage to pay and the obligee to receive; and if it is uot paid at the day, it is its value then which may be claimed in damages.” In the same case Judge Tucker says: “ It cannot be questioned that they might, at the day, discharge the note by the tender of notes of the specified banks to the nominal amount, however depreciated they might be. And although the day be past, yet the creditor can only demand that to which he is entitled by the contract. What was the contract % 439To pay so much in hank notes (in this case in ‘current funds’). Suppose them depreciated one-half. Then, if they had been paid at the day, he would have received the value, only $406.89. And if so, the failure to pay then was an injury to him of that amount, and no more.” What is meant by the phrase “current funds” in this obligation ? I think it means, obviously, the paper circulation, whatever it might be, as contradistinguished from specie. Judge Staples, in Meredith & als. v. Salmon, says: “A contract of this sort is substantially the same as a contract to pay in Confedei-ate States notes. 21 Gratt. 762-768. The written contract, or obligation in that case, was to pay in “current funds.” In Dungan v. Henderlite, supra, .the obligation was for $800, payable twelve months after date in the “ currency of Virginia and North Carolina money.” Judge Christian, who delivered the opinion, in which all the other judges concurred, says: “It was substantially a contract to pay Virginia and North Carolina bank notes to a certain specified amount, expressed in words as áppropriate as any other, to signify how much bank paper was to be paid, and is equivalent to an engagement to pay bank notes amounting to $800, or so many bank notes as on their face will nominally make that sum.” In that case the whole court held that au action of debt could not be maintained on the obligation. And the principle decided in Beirne v. Dunlap, which is much relied on in the opinion, is reaffirmed. Judge Christian further says: “ I am of opinion that in this case the obligation of the defendant was to pay, and of the plaintiff was to receive, Virginia and North Carolina State bank notes, and the commodity being of a determinate quantity, subject to fluctuation in its market price, the value of that currency is the thing that is due, and that can only be estimated in damages by a jury.” 440It seems to me that under these two decisions' of this court the principle ought no longer to be questioned, and that it should be regarded as res' adjudicata. To hold that the obligee is entitled to recover the face of the bond in this case would be to go beyond what was held in Boulware v. Newton, and to overturn the decisions of this court in the two cases which I have cited. If the principle of those cases is applied to this, the obligee was entitled to recover only the value of $2,000 in funds current at the maturity of the obligation; and the verdict of the jury has ascertained that to be $1,360.54. The value of that currency has been fluctuating from that day to this, but has been appreciating until it approximates the gold standard. To give a judgment now for the face of the bond, though it might be satisfied in legal tenders, would be to give the obligee more than his contract entitled him to, and would impose a heavier liability on the obligors than their contract imposes; because on the day when this obligation fell due “ current funds,” — that is, United States currency, which was current funds in Virginia, — legal tenders and all were at such a depreciation that $2,000 in such currency, according to the verdict of the jury, was worth only $1,360.54. And if $2,000 in currency was not paid at the day, in the language of Judge Parker, “ it is its value then which may be claimed in damages,” — which, we have seen, is $1,360.54. And in the language of Judge Tucker, in the same case, “ the failure to pay then was an injury to him (the obligee) of that amount, and no more; ” which is reiterated by Judge Christian, for the whole court, in Dungan v. Henderlite, supra. I am of opinion, therefore, both upon reason and authority, that the judgment should have been for $1,360.54. Por the same reasons I think there was no error in 441the judgment of the court, setting aside the two previous verdicts and granting the defendants new trials. Upon the whole I am opinion to reverse the judgment of the Circuit court, and to give judgment for the plaintiff for §1,360,54, to he discharged in gold or its equivalent in United States currency constituting a legal tender for payment of debts, with interest from the 7th day of July 1866 till payment Moncure, P., and Christian, J., concurred with Anderson, J., in reversing the judgment; but they would have given a judgment for the whole amount. Staples and Bouldin, Js., concurred in the opinion of Anderson, J. The judgment was as follows: The court having maturely considered the transcript of the-record of the judgment aforesaid and the arguments of counsel, is of opinion, for reasons stated in waiting and filed with the record, that the judgment of the said Circuit court is erroneous: Therefore it is considered that the same be reversed and annulled, and that the plaintiff'in error recover against the defendants in error his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid here; and this court proceeding to render such judgment as the said Circuit court ought to have rendered, it is further -considered, that the plaintiff’ recover against the defendants thirteen hundred and sixty dollars and fifty-four cents, wdth interest thereon, to be computed after the rate •of six per centum per annum, from the 7th day of July 1866 till payment; to be discharged in gold or its equi*442valent in United States currency constituting a legal tender for tlie payment of debts, and his costs by him about his suit in this behalf expended in the said Circuit court. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481855/	Staples, J. The principal question in this case for our determination is as to the validity of the settlement made John S. Burwell in favor of his wife under the deed of the 2d of October 1844. It is insisted that this set-ti-ement was excessive; that the property conveyed for Mrs. Burw ell’s benefit was far beyond the value of the dower interest relinquished by her; and to that extent at least is fraudulent and void. I do not understand it is seriously maintained that any actual fraud was perpetrated in the execution of the deed; but that Mrs. Burwell received largely more than an equivalent for her contingent. interest in her husband’s estate, and that to the extent of this excess she or her estate is liable to the creditors of her husband. Before examining the evidence upon this point it may be proper to consider very briefly the principles of law applicable to settlements of this character. It may be regarded as well settled in this State, that if a married woman relinquishes her claim for dower on' the faith of a settlement of other property made by her husband, or even if she make a relinquishment under a mere promise that other property shall be settled upon her as a compensation, in either case such settlement in her favor will be held good to the extent of a just compensation for the interest so relinquished. If the value of the property settled exceeds the value of the dower or other interest relinquished by the ypife, the deed will be vacated as to the excess and supported as to the residue. Taylor v. Moore, 2 Rand. 563; William, and Mary College v. Powell, 12 Gratt. 372-’85. In considering what is a proper provision for the wife in such cases, a court of equity will not enter into a strict calculation of the value of the settlement as compared with the property or interests relinquished. It is sufficient that the provision does not appear to be unreasonably excessive. 447In Ward v. Shallet, 2 Vesey sr. 16, Lord Hardwicke said, the settlement would be good against the husband s •creditors, unless proved vastly to exceed the consideration, , ’ , .. . . , . so that from the inadequacy a collusion or fraud was m-tended. In 1 Roper’s “ Husband and Wife,” 327, the rule is thus expressed: “ What is a reasonable proportion or value between the thing given or paid and that settled in consideration of it by the husband, is a calculation and result dependent upon each case in connection with collateral circumstances. The question is incapable of a general definite answer. * * * This alone can be affirmed, that if the settlement be just in general, the •court does not weigh with exactness the particular advantage gained on the one side or the other; but that if the disproportion be so great as would strike any man of common sense with the inadequacy between the settlement and the price given for it, then such circumstance will raise a presumption of fraud so violent as to vitiate the transaction and let in the creditors.” - In Taylor v. Moore Judge Green said, if there was no ground to impute fraud, the transaction might be favored so far as not to weigh uicely the respective values of the things given and received, unless the inequality was so great a3 in itself to amount to evidence of fraud. Judge Coalter expressed the opinion that, in view of the loss and sacrifice attending sales of real estate subject to the wife’s claim for dower, the husband can well afford to give a full price for the relinquishment, and a jury or a commissioner, as the case may be, ought to do the same. What is the value of the wife’s contingent right of dower, the husband being still alive, is difficult to determine with anything like accuracy in any case. It must depend upon the condition aud qualities of the estate ; the ages of the husband and wife respectively — their health and expectancy of life. Ho fixed rule can belaid 448down on the subject. The most that can be said is, that in the absence of fraud the settlement will not he dis-unless it manifestly appear to be grossly excessive. Prese:nt case the question of actual fraud may be thrown out of view. There is. not the slightest ground for imputing it to either of the parties concerned in the transaction. ■ Let us see, then, whether there was any such gross inequality in the settlement as to call for the interference of a court of equity in behalf of the-creditors. The settlement was made in October 1844. Mrs. Burwell was then fifty-four years old, and Mr. Burwell about sixty-eight. Ilis death occurred in 1854, hers in 1869 ; so that she survived him about fifteen years. Her-dower interest in the lands sold for the benefit of the creditors is estimated by the commissioner at a fraction less than two thousand dollars. The property settled upon her by -way of compensation for this interest consisted of three slaves: one of them, an old man, with a_ fractured skull, proved to be an incumbrance; a small girl of very little value; and a woman not estimated by any one as worth more four or five hundred dollars. There was also a lot of farming implements and household furniture, very much used and obviously worth but little; a number of old and worthless horses, besides-sheep and cattle; and a small supply of farm products for the use of the family. If this property, instead of being conveyed to Mrs. Burwell, had been sold under execution for the benefit of the creditors, it is more than probable it would not have realized the estimate placed upon it by the commissioner. That officer, a very intelligent lawyer, and afterwards judge of the County court of Franklin, having all the witnesses before him, and perfectly competent to form a correct estimate of their' 449capacity and intelligence, came to the conclusion that the settlement was not excessive. There is another circumstance which strongly shows the value placed upon the property at the time by persons interested to know and competent to form a correct conclusion upon this subject. The entire arrangement was made with the knowledge and consent of Mr. Bur-well’s securities, bound for him to a large amount — much larger than his estate was ever expected to pay. They were present, with one exception, when the relinquishment by Mrs. Burwell took place and the settlement was made for her benefit. They were invited to attend on that occasion. The entire transaction was conceived and consummated in their interests and for their advantage; and it is very difficult to believe they would ever have assented to it if the settlement was so grossly excessive as is now represented. The arrangement was not only sanctioned by the securities, but it seems that the creditors did not interpose any objection — at least none of them made any complaint until nearly ten years after, when these suits were instituted. The witnesses were examined in 1856 or 1857, more than twelve years after the date of the transaction. They were called on to testify as to matters about which they could not, in the nature of things, be very accurately iuformed — the value of property the greater portion of which had perished or had been long before consumed. I think the commissioner was entirely correct in declaring that the witnesses for the plaintiff did not show such a knowledge of the property as entitled their testimony to much weight. In view of all the circumstances, without attempting to discuss in detail the testimony of the witnesses or to reconcile their conflicting views, I am satisfied the evidence is not sufficient to impeach the 450settlement of 1844, either as fraudulent or as being grossly in excess of the interest surrendered by Mrs. Burwell. In regard to the distributive interest of Mrs. Burwell in her father’s estate, also included in the deed of settlement, it consisted of two very infirm slaves, proved to be worth about five hundred dollars. If this interest could be regarded as a part of Mr. Burwell’s estate at the time the deed was made, it is very questionable, to say the least, whether, wdth the other property, it would render the settlement so excessive as to justify the interposition of the courts. But, throwing this out of view7, it is clear that at the time of the execution of the deed these slaves had not been reduced into the possession of Mr. Burwell, and it was very doubtful if they ever would be. They were then under the control of the administrator for the purpose of paying the debts of his intestate wdth their hires, and no distribution ever in fact took place until 1852; eight years after the settlement. It is very obvious that these negroes could not, in any view, have constituted an adequate provision for Mrs. Burwell; and a court of equity would not only not have aided the creditors in getting possession of them, but, considering the old age of Mr. Burwell and his insolvent condition, it would have interfered in the wdfe’s behalf and required their settlement upon her and for her exclusive use and benefit. Bor these reasons they are not to be treated as belonging to Mr. Burwell’s estate, and ought not to be taken into consideration in estimating the value of the property received by Mrs. Burwell under the deed of settlement. It only remains to bestow a very brief consideration upon the cross bill of the appellee, Rives. A statement 451of facts is, however, first necessary to a proper understanding of the matter. Mr. Burwell, in the deed executed by him for the benefit of his sureties, included slaves. These slaves were sold by the trustee in 1845, purchased by Wiley P. Woods, and left by him with the family of Mr. Burwell. In 1851 he (Woods) conveyed them to trustees for Mrs. Burwell’s benefit; and they remained in her possession until 1859, when the appellee, Rives, caused an execution to be levied upon one of them. Mrs. Burwell thereupon obtained an injunction to the sale. Rives filed an answer, and in October 1860 exhibited his cross bill impeaching Mrs. Burwell’s title, and claiming that while these slaves were nominally purchased by Wiley P. Woods, they were paid for with money furnished by Mr. John S. Burwell. Ro process was ever issued upon this bill, no answer was ever filed, and indeed nothing was ever done to mature it for a hearing; and yet the judge of the Circuit court, by his decree of October 1869, dissolves Mrs. Burwell’s injunction and dismisses her bill with costs, and also awards to Rives’s estate the costs of the cross bill. The decree is erroneous in both respects. It must be remembered that Mrs. Burwell was in possession of these slaves from the year 1848 to the year 1859; and neither Rives nor Lumsden, so far as this record discloses, ever suggested fraud in the purchase under which he claimed. Ro reference is made to the matter in either of the bills filed by them in 1853, although they appear to have investigated and impeached every transaction relating to property or money with which Mrs. Burwell was in any manner even remotely connected. The excuse given by Rives for his delay is altogether insufficient. It is impossible he could have supposed the slaves were the property of Wiley Woods; because they were never in the possession of the latter; 452and the deed on record for eight years previously, made it manifest they were claimed by Mrs. Burwell as her property exclusively. Strange to say, after Rives, according to his own showing, had obtained all necessary information upon the subject, he never moved to dissolve the injunction; nor did he ever take the first step in the prosecution of his cross suit. Both of these cases seem to have been foi’gotten and-abandoned, as nothing was ever done in either of them until they were brought into the decree of 1869. The only solution of this conduct is, that Rives was probably satisfied he could not maintain his pretension, and that he could more safely attack the settlement. I am satisfied that these slaves were not paid for by John S. Burwell. He was at that time utterly insolvent; he had fairly devoted all his propei’ty to his creditors, and it is difficult to see how he could have raised the necessary means to make the purchase. The explanation made by oue of the witnesses is probably the more correct account; and that is, that the money was furnished by Mi’s. Burwell’s relatives. Whether this be true or not, there is not a scintilla of opposing evidence ; and I do not see how we can impute fraud when there is nothing in the testimony or in the nature of the transaction to establish, it. My opinion then is, without considering the question of the effect of the statute of limitations, that the Circuit court erred in decreeing against Mrs. Burwell’s representatives ou account of the propei’ty embraced in the deed of settlement; and erred in dissolving the injunction and in awarding costs upon the cross bill. That decree must, therefore, be reversed, and a decree entered dismissing the original bill of Lumsden and Rives respectively, with costs; dismissing the cross bill without costs; *453no appearance having been entered thereto, and perpetoatmg the injunction of Mrs. Jourwell. The other j'udges concurred in the opinion of Staples, J. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481856/	Christian, J. This is a supersedeas to a decree of the Circuit court of Culpeper county. The record discloses the following facts, which are necessary to be stated in order to a proper application of the legal questions we are called upon to consider: On the 4th day of November, in the year 1847, Marshall Ashby, cf the county of Fauquier, conveyed by deed, executed on that day, a certain tract of land lying in that county, containing three hundred and twenty-nine acres, to Wellington W. Cocke and Daniel F. Cocke, trustees, to be held by them for the use of the 456wife and children of the grantor. Under this deed the wife, Mrs. Lncv Ashby, was entitled to the rents, issues and profits of the land during her life; and at her death it was to be sold and the proceeds equally divided among his children : provided the children at that time should be of the age of twenty-one years; hut if not, then the land was not to be sold until the youngest child then living should arrive at the age of twenty-one years; and in the meantime the rents and profits to be applied to the support and maintenance of the children. In December 1854 Marshall Ashby, the grantor in the above-mentioned deed, having departed this life, and John W. Ashby, one of the cestuis que trust named in said deed, having qualified as guardiaiUof his infant brothers and sisters, the said John ~W. Ashby, in his own right and as guardian of said children, filed his bill in the Circuit court of Fauquier county, in which it was alleged, among other things, that since the death of Marshall Ashby his widow and her children had resided on the land conveyed by him to the Cockes as trustees; but that the proceeds of its cultivation had not been adequate to the proper maintenance and education of the children; that the expenses of the family were necessarily increasing as the children grew older, and that the same inadequacy was yearly becoming greater; that the children had no other estate or property whatever except their interest in this land; that, under these circumstances, it was the common desire of all the family to have the land sold and an investment made of the proceeds elsewhere, where land is cheaper and the costs of living less expensive; that the land lay in a neighborhood where real estate ruled high, and that, owing to the fact that John Marshall of Mai’kham, who owned an adjoining farm, wished to enlarge his real estate, it could be then disposed of for a high price; that in fact a con457tract' for the sale of the land had been entered into by-all the parties interested and the said Marshall, by which he agreed to pay for it the sum of fifty dollars per acre, in payments partly in cash, and with interest on the deferred payments from the time possession should be delivered to him. This contract was filed with the bill, and it was insisted that the interests of the infants and all others interested would be greatly promoted by a sale and confirmation of the contract already made with Marshall. To this bill the trustees and the other cestuis que trust were made parties defendants. They all answered, and all concurred that the interests of all the parties -would be promoted by a sale, and united with the plaintiffs in asking the court to confirm the contract of sale with Marshall. Such proceedings were had in this suit (which is known iu the record before us as the case of Ashby v. Ashby) that on the 20th of September 1855 a decree was entered directing a special commissioner to make sale of said land at public auction upon the following terms : Six thousand dollars of the purchase money to be paid in cash, $3,000 of the residue to be paid on the 1st April 1856, one-half the remainder to be paid on the 1st April 1857, and the balance on the 1st April 1858 — the whole of the deferred payments to carry interest from the 1st day of October 1855. Upon these terms the land vras sold by Special Commissioner Zeph. Turner to John Marshall, who fully complied with the terms of the decree. Some time after the sale to Marshall (the exact date does not appear), there was filed iu the suit of Ashby v. Ashby, in the Circuit court of Fauquier, a petition signed by Mrs. Ashby and her children (together with the husbands of those of the daughters who were married), setting forth that “ since the institution of said suit John 458W. Ashby, acting for himself and other parties interested, had purchased a tract of land lying in Culpeper county, lately the property of John Marshall, dec’d, containing six hundred acres, at the price of $>20 per acre; that the purchase was made for the benefit of all the parties interested in the said trust estate, and to be held in the same manner, upon the same conditions and limitations, and for the same purposes, said trust estate was. held by the trustees "Wellington and Daniel Cocke; that all the parties concerned deemed thepui’chase a judicious and advantageous one, and they prayed that the same should be ratified and confirmed by the court. On the 18th September 1857 the Circuit court of Fauquier entered its decree, confirming the report of Commissioner Turner, who had made sale of the Fauquier land to John Marshall, and directing him to execute and deliver a deed to Marshall whenever the whole of the purchase money should be paid by him; also substituting John W". Ashby as sole trustee in the place of Daniel and "Wellington Cocke. In said decree were the following provisions: “And it appearing to the court, from said petition and affidavits, that the purchase of said tract of land, situated in the county of Culpepei’, made by the said John W". Ashby for the benefit of all the parties interested in the trust estate sold under the decree entered in this cause on the 20th day of September 1855, is a judicious and advantageous one to all concerned, doth adjudge, order and decree that the said purchase be confirmed, and that the payments made by the said John W. Ashby and the said Commissioner .Zeph. Turner out of the proceeds of the real estate (sold under said decree), on account of the purchase money of said land be also confirmed. * * And the court doth further adjudge, order and decree that the said John W. Ashby, who is hei’eby appointed sole trustee in lieu of 459the defendants Daniel F. Cocke and Wellington W. Cocke, do, when the balance of the purchase money of the said Culpeper land is paid, cause to be conveyed to him, by a proper deed of conveyance, the said land, to be held by him as such trustee, under the same trusts and limitations and for the same purposes declared and set forth in the deed of conveyance from Marshall Ashby to the said Daniel F. and Wellington W. Cocke, exhibited with plaintiff’s bill.” It will thus be seen that the Culpeper land was formally accepted by the Circuit court of Fauquier as a proper investment of the trust funds arising from the sale of the Fauquier land; and the Culpeper land was to be held upon the same trusts as the Fauquier land: that is, to the sole use of the said Lucy Ashby, during her life, and at her death to be sold and the proceeds equally divided between the children of the said Marshall and Lucy Ashby, according to the terms and conditions of the deed of November 4th, 1847. Shortly after this arrangement was made, Mrs. Ashby removed with her family to the Culpeper farm, where she resided several years. John W. Ashby, her son and trustee, resided with her and had the general management and superintendence of the farm. On the 26th April 1859, a written agreement was en • tered into between Mrs. Lucy Ashby and her son, the said John W. Ashby, by wtlieh she agreed to convey to him her life estate in said tract of land, upon the consideration that he should qiay to her annually the sum of six hundred dollars during her natural life; and should also qiay off all the debts and demands existing either against the said Lucy Ashby or the said trust estate. Appended to this agreement or endorsed thereon -was a further stipulation that the said Lucy Ashby should live with the said John W. Ashby, and keeqi with her her 460unmarried daughters free from all charge for board; and if she should become dissatisfied with this arrangement she should then have the right to call upon the said John W. Ashby for the principal sum of $10,000, to be otherwise invested for her. It appears that this agreement was never carried into effect by John W. Ashby, who neither paid the debts due from Mrs. Ashby and the trust estate, nor the annuity of $600 to Mrs. Ashby. But it appears from the record that John W. Ashby sold this Culpeper land to one Granville S. P. Triplett in 1863, and that Ashby and wife, on the 21st July 1863 executed a deed, conveying said land to Triplett, aud describing it as “a tract or parcel of land lying in the county of Culpeper, sold by F. Lewis Marshall, acting as commissioner of the Circuit court of Culpeper, in the cause of “F. Lewis Marshall, guardian of the infant children of John Marshall, dec’d, v. Ann G. Marshall and others,” to the said John "W. Ashby, and now in possession of said Ashby, containing 635-J- acres, in consideration of the sum of $60 per acre, &c. Triplett afterwards sold the same land to Briscoe, the appellant in this suit. It becomes necessary to refer here to the proceedings in the suit of Marshall v. Marshall, referred to in the above deed. It seems that there were certain proceedings in the Circuit court of Culpeper, in which F. Lewis Marshall, who filed the bill as guardian of the infant children of John Marshall, was directed, as commissioner of the court, to sell at public auction the tract of land in the bill and pi’oceedings mentioned. He accordingly made sale of the same, and John W. Ashby, being the highest bidder, became the purchaser. He complied with the terms of the sale, paid down the cash payment, and executed his bonds, wdth Lucy Ashby as security, for the deferred payments. The sale was reported to 461the Circuit court of Culpeper and confirmed by that court, and the commissioner directed to collect the bonds as they became due. He did collect the whole of the purchase money, except the sum of $98.96, and a full statement of his account was reported to the court without exception. This report was returned on the 10th November 1858. It seems that no further proceeding was taken in this cause until 15th June 1866, when the petition of Lucy Ashby ivas filed, to be noticed hereafter. It is a conceded fact in the cause, that the purchase thus made by John W. Ashby was the same which was reported to the Circuit court of Fauquier as having been made for Mrs. Ashby and her children, and with the trust fund arising from the sale of the Fauquier Land. It is also a conceded fact that John ~W. Ashby was not known to Commissioner Marshall, or to the Circuit court of Culpeper, as dealing in that purchase with trust funds. There is nothing in the suit of Marshall v. Marshall, in the Circuit court of Culpeper, to show that John W. Ashby was making the purchase with funds that did not belong to Mm, or that the money which he paid was not his. Me, not as trustee, but in his own right, was reported to the court as purchaser, and the sale was regarded, both by the commissioner and the court, as made to him. The purchase money, with the exception of the comparatively small sum of $98.96, was all paid by him as the purchaser recognized by the commissioner and the court; and no doubt if he had paid the whole of the purchase money the court would have directed a deed to be made to him. But it must also be taken, as before observed, as a conceded fact in the case, that not a dollar paid by John W. Ashby was his money, but was the trust money belonging to Mrs. Ashby and her children; and that the purchase thus made by him was, in fact, 462reported to tlie Circuit court of Fauquier as the disposition made of the trust fund, and was accepted by the court as a valid investment of the fund arising from the Fauquier land. The further proceedings necessary to be referred to in the suits of “Ashby v. Ashby” and “Marshall v. Marshall” wore had after the close of the late war. The ease of Ashby v. Ashby was removed to the Circuit court of Culpeper, and the two cases then heard together. On the 15th November 1866 Mrs. Lucy Ashby filed her petition, setting forth the execution of the trust deed by her husband Marshall Ashby, by which the property therein conveyed was settled upon her and her children, the sale of that property through the proceedings referred to in the suit of Ashby and Ashby in the Circuit court of Fauquier, the investment of the purchase money in the Culpeper land, the contract which she entered into with her son John W. Ashby, the failure of John W. Ashby to comply with its terms in any particular. She further alleges that she has been informed that John ~W. Ashby sold the land during the war to one Triplett, and that Triplett sold the same to one Briscoe, wdio now holds possession of the same. She insists, in her petition, that her rights are not affected by the sale of John ~W. Ashby to Triplett nor by Triplett’s sale to Briscoe, Ashby never having any title to said land. She asks that Ashby, Triplett and Briscoe may be required to answer her petition, and that the contract between her and Ashby may be set aside and the possession of the land returned to her; and asks for an account of rents and profits of the land since it has been out of her possession. Before any proceedings wrere had under this petition John W. Ashby filed his amended bill in the Circuit •court of Culpeper, to which the suit of “Ashby v. Ashby ” had been removed, setting forth the former proceedings 463in that suit, the sale of the trust property, and the investment of the proceeds in the Culpeper land, and averred further “ that some time in the year 1863 he sold and conveyed the said Culpeper land to one Granville S. P. Triplett and placed him in possession of said land; which sale he felt authorized to make under a contract between himself and the said Lucy Ashby.” He exhibits with his bill the contract referred to, and asks that Triplett, and the purchaser from him, Briscoe, may be made parties defendant, “in order that the rights of all the parties may be ascertained and properly adjusted.” In May 1867 Mrs. Lucy Ashby and her children filed in the same cause a cross bill, in which they set out with much particularity all the proceedings in the two suits of “Ashby v. Ashby” and Marshall v. Marshall, above referred to. After setting out the agreement between John W. Ashby and Mrs. Lucy Ashby, the cross bill proceeds: “ Your complainants further show that up to the time of this agreement (26th April 1859) the said John W. Ashby lived with his mother upon the same farm, as the superintendent of the business of the farm; but after the agreement he exercised control over it and used it as his own, and lived upon it until after the commencement of the late war, in 1861, the said Lucy Ashby residing with him for a short time. But after the war commenced the said John W. Ashby entered the military service of the Confederate States; and the said Lucy Ashby had to seek board and a home elsewhere. Your complainants further show, that the said John W. Ashby has never paid one cent of the annuity, nor one debt against the said Lucy Ashby or the said trust fund, and has not furnished board for the said Lucy Ashby and her unmarried daughters; that he is now totally insolvent, «unable to pay a dollar of the annuity, or in any way 464fulfill his part of said contract; that the property he had was all lost during the war. Your complainants further that the said Lucy Ashby has no means of supp0r£ excep£ her interest in said tract of land, and has 'or last f°ur or five years been living upon the bounty of her sous-in-law.” After setting out the sale of the land by John W. Ashby to Triplett, and by Triplett to Briscoe, they proceed : “ Your complaiuants insist that as they purchased with the knowledge that John W. Ashby had no legal title and could convey none, they must be held to such title only as John W. Ashby had.” After making Ashby, Triplett and Briscoe parties defendants to this cross bill, they pray “that the said coutract between John "W. Ashby and Lucy Ashby may be set aside, and that the said tract of land may be restored to the possession of the said Lucy Ashby, and be held subject to the provisions of the deed from Mai’shall Ashby to "W". D. and L>. F. Cocke, and as soon as the pui’chase money is fully paid may be conveyed, as required by the decree of the Circuit court of Fauquier made in September 1857.” This cross bill was answered by John W. Ashby, Triplett and Briscoe. Ashby admits all the allegations of the cross bill; admits that he has not complied in any particular with his contract with his mother; that he has paid no part of the annuity he agreed to pay, nor has paid any of the debts against her, or the trust fund, nor furnished board and maintenance to her and her unmarried daughters, as he agreed to do. He says: “ This respondent thought at the time (he entered into the contract with his mother) that his pecuniary circumstances were such as to enable him to pay the annuity to the said Lucy Ashby, and to buy out the interest of her children in said land, and thus perfect the title of the said Trip465lett. The results of the war reduced this respondent to poverty, and he can neither fulfill his obligation to Mrs. Lucy Ashby or perfect the title to Triplett.” Triplett and Briscoe both answer, and claim that they are purchasers for valuable consideration without notice. They both deny that they ever heard of any claim of Mrs. Ashby and her children; that they had neither actual nor constructive notice that the land was subject to any trust or incumbrance in favor of Mrs. Ashby and her children. Triplett, with much detail, avers that he used the greatest diligence to ascertain the state of .the title; that he employed counsel for that purpose, who infoi’med him that the proceedings in the suit of “ Mai’shall v. Marshall ” were all regular, and that all the purchase money except a small sum (less than a hundred dollars) had been paid, and that the pui’chaser, John W. Ashby, wa3 entitled to a deed as soon as the balance was paid; that there was nothing in the papers in that suit to put him on enquiry as to any outstanding equitable title or other incumbrance. Both plant themselves upon the position of bona fide purchasers without notice, and claim the protection of a court of equity. The two causes of “ Ashby v. Ashby” and “Marshall v. Marshall” came on to be heard together on the 13th November 1868, when the court, disposing of the whole controversy, among other things decreed that “ within thirty days after being served with a copy of this decree the said William D. Briscoe” (the last purchaser and now in possession of said tract of land) “ may elect to hold the said land for and during the life of Mrs. Lucy Ashby, provided he will assume and take upon himself all the obligations entered into by John W. Ashby in the agreement aforesaid of the 26th April 1859, and the addition thereto of the 2d May 1859, so far as the same have not been fulfilled and pei’formed by the said John 466W. Ashby. And if the said Briscoe shall fail to make such election within the time aforesaid, then the said Triplett, within thirty days after he has been served with a copy of said decree, may elect to hold the laud for the time, in the manner and upon the terms prescribed in respect to the defendant Briscoe.” It was further decreed “that if the said Tripled and Briscoe shall both decline to make the election aforesaid, or shall fail to make it, in the mode and within the time prescribed for them respectively, then, immediately after the expiration of the time within which the said Triplett is authorized to make such election the said Briscoe shall surrender possession of said land to Mrs. Lucy Ashby or her authorized agent; and if on demand made the said Briscoe shall fail or refuse to do so, then the sheriff of the county is directed to give such possession of said land to the said Lucy Ashby or her agent.” The court further directs (in the failure to make an election) an account of rents and profits, and reserves the question as’to the right of either Triplett or Briscoe to claim compensation for permanent improvements. From this decree an appeal was allowed to this court. The case has been argued in this court very elaborately, and with much learning and ability on both sides. The counsel for Mrs. Ashby and her children have rested the claims of the appellees mainly on the ground that as Triplett purchased confessedly only an equitable ■title, he therefore purchased subject to the prior equity ■of Mrs. Ashby and her children, according to the maxim, •“ que prior est in tempore,potior est injure.” The counsel for the appellant reply to this view, that, as against subsequent purchasers for valuable consideration without notice, the registry acts of this State avoid all unrecorded contracts or deeds selling or conveying the equitable as 467well as those which purport to sell or convey the legal title. The appellant therefore insists that he (with Triplett under whom he claims) occupies the high position, always a favorite of a court of equity, of a purchaser for valuable consideration without notice. The first question we are to consider is, whether the case made by the record is one which comes within the meaning of the registry act. The 4th and 5th sections of ch. 117, Code of 1860, are as follows: “§ 4. Any contract in writing made in respect to real estate or goods and chattels, in consideration of marriage, or made for the conveyance or sale of real estate, or a term therein for more than five years, shall from the time it is duly admitted to record he, as against creditors and purchasers, as valid as if the contract was a deed conveying the estate or interest embraced in the contract. “§ 5. Every such contract, everydeed conveying any such estate or term, and every deed of gift or deed of trust or mortgage conveying real estate or goods and chattels, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, until and except from the time that it is duly admitted to record in the county or corporation wherein the property embraced in such a contract or deed may be.” Uow, as between John W. Ashby (who was substituted trustee in the place of the Cockes, the original trustees) and the cestuis que trust, (the appellees,) it cannot be said there was any such contract as is referred to in the sections above quoted, nor any deed or deed of trust or mortgage respecting real estate. The title of the cestuis que trust was founded on the deed conveying certain real estate to the Cockes, as trustees, by the husband and 468father, Marshall Ashby, the subsequent sale of that real estate by regular proceedings in the Circuit court of Fauquier county, and the decree cf said court directing that the proceeds of sale should be invested by the commissioner of said court in certain lands lying in Culpeper county. The same decree directed that whenever the whole of the purchase money of the Culpeper land was paid, then John W. Ashby, the substituted trustee, “ should cause to be conveyed to him by proper deed of conveyance, the said land to be held by him as such trustee, under the same trusts and limitations and for the same purposes declared and set forth” in the deed from Marshall Ashby to the Coches. But the whole of the purchase money never was paid, a balance being still due to this day, and consequently no deed was ever made, or could be made, to John W. Ashby. What was there, then, to be recorded ? — -what contract in writing, what deed or other evidence of title, legal or equitable, which could have been put on record in the county of Culpeper? John W. Ashby had received no conveyance; he did not have in fact the legal title, and no semblance of a legal title. All he had was an apparent equitable title founded on the fact that he appeared, in the record in the suit in Culpeper, to have paid nearly all the purchase money. But the legal title was outstanding, and could only vest in him when the whole of the purchase money was paid; and then only for the pm-poses of the trusts created by the deed from Marshall Ashby to the Coches. What evidence of title was there in the cestuis que trust which is required to be or could be made a matter of record under the registry act ? Certainly there was no “ contract in writing respecting real estate;” nor was there any deed of gift or deed of trust or mortgage conveying real estate, out of which the title of the appel469lees arose, and which, under the registry acts, is required to be recorded. Their title to the Culpeper land arose out of none of these, but out of the regular proceedings of a court of equity having jurisdiction of the subject matter and the parties. That court held in its hands funds belonging for the most part to infants and married women. These funds were derived from a sale of trust property, being real estate lying in the county of Fauquier, which funds the court had directed its commissioner to invest in lands lying in Culpeper; and when the whole of the purchase money was paid the said land was to be held by a trustee for the appellees upon certain trusts and conditions. I repeat, the title of the appellees was founded upon these proceedings of a court of chancery. Does the registry act require that these proceedings shall be made matter of record in any county where the commissioner of the court may purchase land for an investment of this fund — if so, what part of these proceedings? The decrees only, or the bill, answer, exhibits and depositions ? — all of which are necessary to show the title of the appellees. Must these all be spread on the deed books of Culpeper ? The title of the appellees is not within the terms of the registry act, and is not such a title-as is required to be recorded by that act. For do the 1st and 8th sections of chapter 186, Code 1860, which declare that “ a decree for land shall have the effect of a judgment, and that no judgment shall be a lien on real estate as against a purchaser thei’eof for valuable consideration without notice unless it be docketed,” apply to the case before us. Fone of the decrees in the suit of “Ashby v. Ashby” can be said to be “decrees for land” within the meaning of the statute. ’They were decrees directing the sale of land held in 470trust, and the investment of the fund arising from such sale in other lands, to be held upon the same trusts when the prarchase money was fully paid. It was not a suit settling a controversy inter partes and decreeing the land to one of them; but it was a suit to sell land about which there was no controversy as to the title, and to reinvest the fund in other land about which there was no controversy. The decrees simply first directed a sale of the one tract, and confirmed the investment made hy the court’s commissioner in another tract as judicious and proper, and directed how it should be held when the prarchase money was paid. While these decrees were certainly decrees respecting land, they cannot be said to-be decrees for land, within the meaning of the statute. In my opinion this case does not come either within the provisions of the act requiring a registry of titles,, nor of that requiring a judgment to be docketed. But the appellant’s counsel invoke the aid of the statute in reference to the record of a Us pendens, and insist that they are protected as purchasers of the Culp>eper land by the failure of the appellees to follow the provisions of the 5th section of chapter 186, Code of 1860, in not recording a memorandum of the Fauquier suit in the clerk’s office of the County court of Culp>ep>er. That section provides that “ no lis pendens or attachment against the estate of a non-resident shall bind or affect a prarchaser of real estate without actual notice thereof unless and until a memorandum setting forth the title of the cause, the general object thereof, the-court in which it is pending, a description of the land, and the name of the prarson whose estate is intended to be affected thereby, shall be left with the clerk of the court of the county or corporation in which the land is situate, who shall forthwith record the said memorandum 471in the deed book, and index the same by the name of the person aforesaid.” Flow, what was the Us pendens of the Fauquier case ? Certainly not the Culpeper land. Thai was not the corpus or subject of controversy. The title to that land was not embraced in “the general object” of the Fauquier suit. That general object was the sale of land in Fauquier and the investment of the proceeds in other lands. And who were the “ person or persons whose estate is intended to be affected thereby? ” FTo one residing,:, in Culpeper, or in any way connected with the Culpeper land, but the cestuis que trust, the Ashbys, and no one else. They were the persons whose “ estate was intended to be affected” by that suit; and the sale of their land lying in Fauquier county was the subject of the suit. Suppose they had complied literally with the requirements of the 5th section, and put upon record the lis pendens of the Fauquier case. That record would simply have been as follows: “Flame of parties: ‘Ashby v. Ashby;’ general object of the suit: sale of the real estate conveyed by Marshall Ashby to trustees for the benefit of Mrs. Lucy Ashby and her children, and the investment of the pi'oceeds in other real estate; persons whose estate is to be affected thereby: Mrs. Lucy Ashby and her children.” Row, how could such a memorandum (a literal compliance with the 5th section) have given any information to any human being of the claim of the Ashbys to the Culpeper land? This very statement shows that the doctrine of Us pendens has no application to such a case. “ The rule as to the effect of a lis pendens,” as was said by Judge Green in Newman v. Chapman, 2 Rand., 102, “ is founded upon the necessity of such a rule to give effect to the proceedings of courts of justice. ‘Without it the administration of justice might in all cases be frus472trated by successive alienations of property which was the object of litigation pending the suit, so that every judgment or decree would be abortive where the recovery of specific property was the object.” Its whole object is to keep the subjects in controversy within the power of the court until the decree is entered, and to prevent further suits for the same subjects. Judge Brooke, in French v. Loyall Co., 5 Leigh, 671. It enables the court to hold in its hand the corpus or subject of controversy, and prevent its alienation until it can be disposed of, and it can only affect a purchaser of t¡ie subject in controversy from a party to the suit. French v. Loyal Co., 5 Leigh, 627. In no possible view of the case can it be held that the Culpeper land, (purchased by Triplett and afterwards by Briscoe) was the subject of controversy in the Fauquier suit, or that the title to that land was in any way connected with the “general object” of that suit. There was therefore no obligation on the Ashbys to file with the clerk of the County court of Culpeper the lis pendens of the Fauquier suit, and if it had been filed it would not have given notice to any purchaser of the Culpeper land, because that land was not the subject of controversy in the Fauquier suit. But it is argued that the Ashbys ought to have given notice of their equitable claim to the Culpeper land by filing their petition in the suit of “ Marshall v. Marshall,” asking that the deed be made to them, as their money had been paid for the land; and that if this had been done everybody would have been notified that the land was purchased with their funds, and this would have prevented the purchase of Triplett from John W. Ashby, who had no title. Why should they file such petition? The decree in the Fauquier suit had already directed that when all the pur473chase money was paid for the Culpeper land, a conveyance of the land should be taken by John W. Ashby, as trustee, to be held by him upon the same trusts as were set out in the original deed creating a trust estate from Marshall Ashby to the Cockes. What is there in the record to show that there was any reason to suspect, upon the part of these cestuis que trust, (most of whom were married women and infants,) that this decree would not be carried out in accordance with its terms ? But if there was any obligation on them to file such petition, when was it to be filed? Was it not their privilege to file it at any time before the money was all paid and a conveyance ordered ? If that was their privilege (as I certainly think it was) they have complied with every reasonable requirement, by the proceedings which they took in the Culpeper court before the purchase money was fully paid, and before a conveyance of the land was directed by that court. The appellant in this case can only succeed by maintaining this high ground, that he and Triplett, under whom he claims, are purchasers for valuable consideration without notice. Ho party can occupy a higher ground than that in a court of equity; and if he can maintain that position his title is established and his position impregnable. But let us now trace the source of his title. From lohom did Triplett purchase? And what title did his vendor have or pretend to convey ? He bought of John W. Ashby. It is conceded Ashby never had the legal title; nor did he have the equitable title. He had only an apparent equitable title. That is, he (Ashby) appeared on the record of the suit of “ Marshall v. Marshall” as the purchaser, who had paid nearly all the purchase money of the land sold by decree of the court in that suit. Triplett, therefore, succeeded to the rights of Ashby, his vendor, he taking nothing more, nothing 474less, than was in Ashby. Eow, suppose this was a controversy between these cesiids que trust and Ashby, is it possible that the Culpeper court would, after the facts had been known, decree a conveyance to him? Those facts were, that every dollar of the purchase money he had paid was trust funds which a father and husband had been careful to secure to his wife and children. It must be conceded that the court could not and would not have decreed a conveyance to John "W. Ashby. Uow,. can his unwarranted sale to Triplett prevent the court from decreeing a conveyance to the parties justly and equitably entitled to receive it? Triplett and Briscoe must stand in the shoes of John 'W. Ashby. Admit that they knew nothing of the relation between John "W. Ashby and the appellees; that there was nothing in the record of the case of Marshall v. Marshall to inform.' them of that relation, or that John W. Ashby had paid for the land with trust funds and not his own, or even to put them upon enquiry as to the real state of the title. Conceding all this, yet there was one thing they did. know: They knew the legal title ivas outstanding. They knew’ they wrere purchasing only an equitable title; they knew they were purchasing a title under the control of a court of equity, and took upon themselves the risks and hazards which always attend such a title. The purchaser of such a title cannot occupy the position of a bona fide purchaser without notice. The fact that the legal title is outstanding is of itself notice to him of the-risks which he assumes by becoming the purchaser of a. mere equity, and he takes only what his vendor can convey himself or that which he (the vendor) can call upon, a court of equity to convey to him; and his rights are governed by the maxim “nemo phis juris in alienum transferre potest quam ipse habet.” Slow, it must also be conceded that while John W. 475Ashby appeared ou Me record of the suit of “Marshall v. Marshall” as th„ purchaser of the land sold under a decree of the court, the moment it was known to the court that he was not the real purchaser, but that the funds lie had paid belonged to his cestuis que trust, that court would have decreed a conveyance of this land to them and not to him. How does the transfer of a pretended title from him affect the rights of the parties, or control in any way the power of the court in ordering a conveyance to the cestuis que trust, when, before the purchase money is all paid, and before the time comes when it is necessary and proper to order a conveyance, it appears that in point of fact the purchase money is paid by him in trust funds secured to the appellees? If the contest here was between John W. Ashby and the cestuis que trust, the former could not stand for one moment in a court of equity. His vendor is in no better situation. He stands in his shoes. He gets the title of his vendor and nothing more. If his vendor has neither the legal nor equitable title, his deed conveys nothing. If he has the apparent equitable title only, and no right to call for the legal title, his vendee has no such right, and he must stand or fall by the title of his vendor, which he knew when he purchased it was dependent upon a court of chancery to convey the title, lie buys subject to the power of the court, and holds whatever title he gets “subject to the equities upon it in the hands of his vendor, and has no better standing in a court of equity.” 3 Sugden on Vendors, 350-51 and note. The appellant in this case cannot put himself in the high position of a purchaser for valuable consideration without notice. This court has settled that question against him. In the case of Mutual Assurance Society v. Stone and others, 3 Leigh, 218, 236, President Tucker 476says: “The rule is unquestionable, that he who would protect himself as a purchaser without notice must show himself to be a complete purchaser. If, therefore, either his purchase money remains unpaid, or he has not completed his title by obtaining a conveyance before he has received notice, the notice will affect him; for if he receive that notice before both of those acts are perfected, he ought to stop until the equity is enquired into, or- he will be bound by it. Thus, although he has paid every cent of his purchase money, and the hopeless insolvency of his vendor would prevent his ever recovering it hack, yet, if he has not completed his title by getting a conveyance prior to his notice of the prior equity he must stop, and will not be permitted to go on to secure himself by obtaining the legal title from the common vendor. And this is in strict consonance with justice and in strict analogy with equitable principles. It rests upon the maxim, which prevails in equity as well as at law, Qui prior est in tempore potior est in jure, where two equities are equal the prior equity shall prevail.” In Vattier v. Hinde, 7 Peters’ R., 252, 271, Chief Justice Marshall said: “ The rules respecting a purchaser without notice are framed for the 'protection of him who purchases a legal estate and pays the purchase money without knowledge of an outstanding equity. They apply fully only to the purchaser of the legal estate. The purchaser of an equity is bound to take notice of any prior equity.” So Mr. Justice Story, in speaking of the defence ,of a bona fide purchaser without notice, says (1 Eq. Juris., sec. 64, c. 1st): “The purchaser, however, must in all cases hold a legal title or be entitled to call for it in order to give him a full protection of his defence; for if his title be merely equitable then he must yield to a legal and equitable title in the adverse party.” So also in sec. 4771502, 2d Story Eq , the same author says: “To eutitle himself to this protection the purchaser must not only be bona fide and without notice and for a valuable consideration, but he must have paid the purchase money. So he must have purchased the legal title, and not be a mere purchaser without a semblance of title; for even the purchaser of an equity is bound to take notice of and is bound by a prior equity, and between equities the established rule is that he who has the prior equity in point of time is entitled to the like priority in point of right.” In Adams’ Equity (6th Amer. ed.), p. 340, note 1, in which are collected numerous authorities, it is said: “ The prevailing doctrine in the United States is, that the purchaser of an equitable title takes it subject to all prior equities.” See also 4 Dessan R., 274; 3 Ired. Eq. R., 117; 7 Cranch R., 48; 7 Peters’ R., 252; 10 Peters’ R., 177; 10 How. U. S. R., 185; 11 Serg. & Rawle, 389; 7 Penn. St. R., 165; id., 347. And the same author, referring to the leading case of Bassett v. Nosworthy, says, p. 34: “It appears to be clear, upon the authorities both in this country and in England, that among equal equities the prior in time, whether it be original or intermediate, is the prior in right.” The reason of the distinction between the purchaser of a legal and equitable interest seems to be that the protection accorded to bona fide purchasers is a departure from the general rule of jurisprudence, which holds that no man can transfer a greater right than he possesses, and regards the vendee as standing in the same position as the vendor under whom he claims. This exception was made by equity against the rights and remedies which it had called into being, and in favor of purchasers who bought in good faith, and under the impression that they were acquiring a good legal title. But when the purchase is of a mere equity which owes 478its existence to a court of chancery, and cannot be enforced without its assistance, the reasons for departing from the general maxim “nemo plus juris in alium transferre potest quam ipse habet,” is at an end, and the right acquired by the vendee is necessarily limited to that of the vendor. When, therefore, a purchaser buys an equitable estate or interest with a knowledge of its real character, and without obtaining a legal title, he can found no claim on the mere fact of the purchase, and must stand or fall by the title of the vendor. 2 Lead. Ca. in Eq., 95, and eases there cited. So it was declared in the most unequivocal manner by Ch. J. Marshall, in Shines v. Craig, 7 Cranch R., 34-48, that the purchaser of an equitable title takes it subject to all existing equities; and he relied on this doctrine in the subsequent case of Vattier v. Hinde, 7 Peters’ R., 252, above quoted, as a reason for refusing to protect the defendant as a bona fide purchaser for value. In Chew v. Barnett, 11 Serg. & Rawle, 389, Ch. J. Gibson said: “When it is asserted that a purchaser for valuable consideration takes the title free of every trust or equity of which he has no notice, it is intended of a title perfect on its face; for every purchaser of an imperfect title takes it with all its imperfection on its head. It is his own fault that he confides in a title which appears defective to his own eyes, and he does so at his peril. Bow, every equitable title is incomplete on its face. It is in truth nothing more than a title to go into chancery to have the legal estate conveyed, and therefore every purchaser of a mere equity takes it subject to every clog that may lie on it, whether he has had notice or not. But the purchaser of a legal title takes it discharged of every trust or equity which does not appear on the face of the conveyance, and of which he has not had notice, either actual or constructive.” In addition to the cases above cited I will only refer to 479two recentEnglish decisions which seem strongly to affirm the principles announced in 1he numerous cases above referred to. In Phillips v. Phillips, decided in 1862 and reported in Law Journal 1862 (Vol. XL. Equity) p. 321-326, the Lord Chancellor says: “ How, I take it to be a • clear proposition, that every conveyance of an equitable interest is an innocent conveyance; that is to say, the grant of a person entitled in equity passes only that which he is entitled to in equity, and nothing more. If, therefore, a person seized of an equitable estate, the legal •estate being outstanding, makes an assurance by way of mortgage, or grants an annuity, and afterwards conveys the whole estate to a purchaser, he can only grant to the purchaser that which he has, namely the estate, subject to the annuity or mortgage, and no more. The subsequent grantee takes ouly that which is life in the grantor. Hence, grantees and incumbrancers claiming in equity take and are ranked according to the dates of their securities; and the maxim applies qui prior est in tempore potior est injure. The first grantee is potior, that is potentior. He has a better and superior, because a prior equity. The first grantee has a right to bo paid first, and it is quite immaterial whether the subsequent incumbrancers at the time they took their securities and paid their money had notice of the first incumbrance or not.” Another English ease decided in 1863 is very apposite, and the reasoning of Lord Justice Turner applies with much force to the case before us. He says : “Questions of priority between equitable incumbrancers are in general governed by the rule qui prior est tempore potior est jure; and in deténnining cases depending on the rule we must of course look at the principle on which the rule is founded. It is founded, I conceive, on this principle, that the declaration of a trust vests an estate and .interest in the subject matter of the trust in the person 480in whose favor the trust is created or declared. When, therefore, it is sought to postpone an equitable title created by declaration of trust, there is an estate or interest to be displaced. A vested estate or interest ought not to be displaced on any light grounds. The .case which is here alleged is this,” (and in this respect much resembles the case before us,) “that the defendant Thomas Eyers, acting for himself and other members of his family, trusted everything to Sadlim, permitted him to deal with the mortgage and the moneys secured by it as he thought fit, and created and recognized an apparent oioner&hip in him, and that they ought not, therefore, to be allowed to claim against third parties wrho dealt with him bona fide upon the faith of his apparent title. But upon the ground that there was no proof that the defendants were in any way privy to or cognizant of the dealings of their trustee, it was held that their equity was not to be postponed to those who dealt with him bona fide upon the faith of his apparent title.” It was urged in that case as in this, that the ce&tuis que trust must be presumed to know the acts and conduct of their trustee. But, replying to this view Lord Justice Turner says: “ The very-first principle of courts is, that the cestui que trust places confidence in his trustee; and if it is to be held that a cestui que trust is to be postponed upon the mere ground that he did not enquire into the acts or conduct of his trustee, that principle would be in a great measure if not wholly destroyed.” Upon this review of the cases (both American and English) I think it is clear that in this contest between holders of mere equities, that which is prior in time is prior in right, and must prevail. But it is insisted by the learned counsel for the appellant that this rule applies only between equal equities, and if the junior claimant has a superior equity, or if he 481has the better right to call for the legal title, he must prevail, and the case of Cox v. Romine, 9 Gratt., 28, and cases cited in the opinion of Judge Samuels, are relied on. Iu that case it is said: “It may be laid down as a general rule that between mere equities equal in all other respects, the elder shall prevail. If, however, the junior claimant shall have an advantage at law, or superior equity, such party shall prevail.” Within this exception to the rule, quiprior est tempore potior est jure, which is an exception well established, it is sought to place the appellant and his vendee Triplett. It is insisted that by the negligence and omission of the appellees, Triplett and his vendee wmre misled in paying their purchase money while there was a secret trust in favor of the sppellees, of which it was their duty to give notice. It has already been shown that the title of the appellees was not such a title as the registry acts required to be recorded, and that therefore there was no obligation on them under those acts to make such record in any form in the county of Fauquier. The purchaser can, therefore, only claim a superior equity under that rule which declares that “the equity of a pai’ty who has been misled is superior to his who has wilfully misled him.” The meaning of this rule is, that if a person interested in an estate knowingly misleads another into dealing with the estate as if he were not interested, he will be postponed to the party misled, and compelled to make his representation specifically good. In order to the introduction of this equity it is essential that there be intentional deceit, or at all events that degree of gross negligence which amounts to evidence of an intent to deceive. Adams’ Eq., 6th Am. ed., 337, 319. How, it cannot be said, looking to this record, that this widow and her children, who were mostly married 482women and infants, by any act or omission of theirs, knowingly misled the purchasers in dealing with the estate in which they were interested. There is nothing in the evidence to show that they ever knew of the sale by John W. Ashby to Triplett, and by Triplett to Briscoe. They were certainly not active in any of these transactions. They were entirely passive, and their position warranted them in being so. They had submitted their rights into the hands of a court of chancery. That court had in its hands the trust funds of these cestuis que trust, and ordered its commissioner to invest these funds in the Culpeper lands; and by its decree directed that when all the purchase money was paid, the trustee, John W. Ashby, should take to himself a conveyance of that land to be held upon the same trusts as those by which the husband and father of the cestuis que trust had been careful to secure this fund to them. They had every reason to believe that this decree would be carried out. They had every reason and right to presume that their trustee would carry out the order of the court. There was no rule of law or equity which required them to take a further step in the cause after that decree was rendered. There rvas certainly neither any necessity or propriety íd taking any action towards the assertion of their rights until the time came when the court in Culpeper was to decree a conveyance of the land. That time was w'hen all the purchase money was paid. Before that time they filed their petition asserting their claim, which was duly respected by that court. That court did not err in preferring their claim to that of the appellant and his vendor. They were purchasers of a mere equity; they purchased from a vendor who had neither the legal nor equitable title. They knew' the legal title w'as outstanding; and, in the language of Ch. J. Gibson, in Chew v. Barnett, (supra,) “in truth they 483purchased nothiug more than a title to go into a court of chancery to have the legal estate conveyed to them;” and when they come into that court, they find they are seeking to acquire title to an estate they now know belongs to another. In the expressive language of Judge Tucker, in a case above cited, they ought to be stopped, and not permitted to proceed further in pursuit of the legal title. I am of opinion that the decree of the Circuit court of Culpeper should be affirmed. Anderson, Staples and Bouldin, Js., concurred in the opinion of Christian, J. Moncure, P., concurred in the results. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481858/	Bouldin J. On the application of Dr. Aaron H. Atwood, the intestate of the plaintiff', then residing in the State of New Hampshire, a policy of insurance was, on the 80th of December 1846, issued to Sarah Jane Atwood, then the wife of Dr. Atwood, by the plaintiff in error, an insurance company chartered by the .State of New Jersey, and having its principal office in Newark in that State, insuring the life of Dr. Atwood in the sum of $2,600 for the term of life. The annual premium to he paid was $50.18, and the policy contained the usual clauses vacating the policy in case of failure to pay puuctually the annual premiums on or before the days 499specified for the payment thereof, and providing that all payments previously made and all profits should be forfeited to the company in that eveut. The premiums were all regularly paid or settled for according to the regulations of the company, by Dr. Atwood, down to the 30th day of December 1861, when the last premium fell due. Prior to that time, to wit: about the year 1850, Dr. Atwood removed to the State of Virginia, where he resided until his death, a portion of the time in the city of Richmond, and the residue thereof in the county of Amelia; and during the whole time of his residence in Virginia he paid or settled for the annual premiums aforesaid to B. "W. Knowles, agent of the plaintiff in error in this State, until the 30th day of December 1861. At and before that date war had broken out and was then raging between the United •States, of which the State of New Jersey was a member, .and the Confederate States, of which Virginia was a member, and in consequence thereof Knowles, the agent of the insurance company, declined to receive payment of the premium falling due on the day last mentioned ; but he took a note or bond therefor, subject to the approval of his company. Before the next premium fell due, viz: on the 29th of November 1862, Dr. Atwood died in Amelia county, Virginia; so that at his death every premium, except the last, had been settled for by him. His widow, the defendant in error, was appointed and qualified as his administratrix. Mrs. Sarah Jane Atwood, first wife of Dr. Atwood, to whom the policy was issued, died about two years after her marriage, leaving an only child," who survived her hut a short time, dying in infancy. Dr. Atwood married a second -wife, who died in 1858, leaving three children who are still living; and in November 1859 he mar-’ Tied the defendant in error. After the war was over the 500defendant in error called at the office of the company’s agency in Richmond to ascertain what the company proposed to do; at which time she offered to pay in gold, if required, the amount of her deceased husband’s note for the premium of December 1861. She was informed that if the company should decide to pay the insurance money “the amount of the note could be deducted from it.” This conversation was not with Knowles in person, but with his partner, Walford. Very soon afterwards she received a letter from Walford, in which she is informed that Knowles requires, on behalf of the company, the usual proofs of the death of Dr. Atwood, which were promptly furnished; but no satisfactory settlement being offered by the company, the defendant in error, as administratrix of Dr. Atwood, instituted this suit in the Circuit court of the city of Richmond to recover the amount of insurance money, less the dues on the policy. The material facts proved on the trial were substantially as above stated; and the defendant below demurred to the evidence. The plaintiff’ joined in the demurrer, and the jury assessed the plaintiff’s damage to $2,361.15, with interest from the 1st of December 1865 till paid, subject to the opinion of the court upon the demurrer. The court gave judgment on the demurrer for the plaintiff; and the case comes before this court on a writ of error to that judgment. The case has been ably ai’gued on both sides, and presents on its merits a question of grave interest and importance, viz: the effect of the late war on policies of life insurance, when the underwriters on the one hand, and the assured and insured on the other reside respectively in hostile States. This question has been very recently fully considered by this court, in a case differing in no material aspect from the case now under consideration, and in my judgment has been definitely settled. I allude to the case of The Manhattan Life 501Insurance Company v. Warwick, 20 Gratt. 614. The syllabus of the ease, as stated by the reporter, is as follows : “In July 1847 W of Richmond obtains from the M. Ins. Co. of New York, through their agent in Richmond, a policy of insurance for the life of S his debtor, forfeited if premiums not paid on the day. An endorsement on the policy says, no payment of premiums binding on the company unless the same is acknowledged by a printed receipt signed by an officer of the company. Payments of the premium are made and such receipts given, signed by an officer in New York, countersigned by the agent here, to whom the money is paid, until 1861, when the premium is paid to the agent, but only the receipt of the agent here is given for it, and the company does not receive it. In July 1862 W offers to pay the premium to the agent here, but he declines to receive it, the company having directed him that the premiums must be paid in New York. 8 dies in November 1862. The M. Ins. Co. is liable to This was a judgment of a majority of a full court, after elaborate argument and careful consideration, two judges dissenting; it was therefore the deliberate judgment of this court in a full court. It is true that two of the majority seemed unwilling to yield their assent to all the reasoning of the learned judge who prepared the opinion on that side; but it is very evident that they differed from him only in non-essentials, as they both concurred in the results — in the judgment of the court. That judgment necessarily established the following propositions : 1. That a policy of life insurance, providing for the payment of annual premiums under penalty of forfeiture .of all payments and all interest in the policy for non502payment, is not such a contract of continuing performance as is abrogated by a state of war, when the underwriter is a citizen of one of the hostile communities and the assured and insured are citizens of the other. It is-not abrogated, but suspended merely. 2. In such case the non-payment of premiums by reason of the failure or refusal of the underwriter or his-agent to receive the premiums in consequence of the existence of war does not vacate the policy. These propositions of law were both involved in that, case, and it was absolutely necessary to establish them both before the judgment could rbe affirmed. That judgment having been affirmed by a majority of a full court after able and elaborate argument and grave deliberation on the very points, the decision will be regarded by me as settling the law of Virginia on those-questions. In declaring what the law is, we have been taught that it is essential, “for the sake of obtaining uniformity, consistency and certainty,” to apply to the case in judgment the rules of law which have been established by the wise, learned and just who have preceded us, to adhere to precedent unless manifestly unjust and erroneous. In the language of Parke, J., I would say “it appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests-of law as a science.” The judicial rule, stare decisis, I have always regarded as sound and conservative, and obligatory on courts, but in the present ease it addresses-itself to my judgment with peculiar force, occupying as I do a seat on the bench of this court recently filled by one of the majority in the case referred to — the learned and lamented Judge Joynes. Under such circumstances it would be unseemly in me to attempt to weaken the 503force of that judgment, for I fully concur with Lord ° Kenyon, that “ mischievous indeed to the public” would it be if “ that which was supposed to be law by the dom of our” predecessors should be swept away “in consequence of nexo lights occxxrring to nexo judges.” It will not be done in this case through my aid. I should feel bound, under the circumstances, to follow that decision, even were I doubtful of its propriety; but it is proper that I should say that I entertain no doubt whatever of its propriety. It commands my hearty concurrence and approbation. The reasoning on which it is based is, in my judgment, unanswerable, and I have been gratified to find that although the ground was then unexplored, the judgment of the court has been abundantly sustained by other and subsequent decisions. There are in fact but two cases known to me contra. ' One is the decision of Emmons, J., in the case of Tait, &c., v. The New York Life Insurance Company, in the Circuit court of the U. S. for the western district of Tennessee. Against this, and overthrowing it, we have the more satisfactory decisions of Judge Blatchford, U. S. Circuit court for the southern district of New York, in the case of Hamilton, &c. v. Mutual Life Insurance Company of New York, 9 Blatchford, 234, and of Bond, J., of the Circuit court of U. S. for the eastern district of Virginia, in the recent case of Hancock and wife v. The New York Life Insurance Company, reported 2 Ins. Law Journal, No. 12, p. 903, and also in 13 Am. L. Reg., No. 2, p. 103. Both of these decisions are in accord with The Manhattan Co. v. Warwick. As authority they are each equal at least to that of Judge Emmons. In number, and as I think, in reason, they . overthrow it. The next and only other case in conflict with The Manhattan Company v. Warwick, is the case of Dillard v. Manhattan Life Ins. Co., decided by the Supreme court of Georgia, July term 1871. In that case the 504ground and only ground of the decision was that the . . . . payment of premiums was strictly a condition precedent to the obligation on the part of the company, and being so, neither illegality nor impossibility of performence woi;i^ excuse it. The opinion is very short, and the question whether the condition was not, in its nature and effects, a subsequent condition divestiDg an estate instead of a condition precedent; or if precedent its performance was not necessarily suspended with the entire contract during the war, seems not to have been discussed at the bar. It seems to have been treated, without opposition by counsel, as strictly a condition precedent, and not as a condition forfeiting a previously vested estate or right. Had the court taken the latter view of the condition it is evident the decision would have been different. The judge says, “ were this a case of forfeiture for the failure, we should hold that the forfeiture was prevented by the illegality of the performance of the condition.” Such he thought was not the case. But was not that precisely the character of the condition ? I will answer in the language of Judge Robertson, of the Supreme court of Kentucky, ill the case of New York Life Insurance Company v. Clopton, &c., 7 Bush’s R., 179, decided in August 1870, but not cited in the Geoi’gia case. Speaking of the same condition, the learned judge says, p. 188: “However lawful the condition of avoidance, as prescribed in this case, may be admitted to be, it is in effect a forfeiture which ought not to be favored. To subject to forfeiture all the premiums paid, as well as the five thousand dollars for the loss of life, would be hai’shly and unreasonably penal, for no better cause than the inevitable non-precise payment of another instalment of premium, which the law prevented the appellant from a right to receive. Hone of the parties can be presumed to 505have contemplated such a disabling war, or to have intended hy the condition of avoidance more than voluntary failure to pay, when there toas legal ability to receive the premiums.” “Then, as according to principle and consistent authority, the contract was not dissolved by the war, how can this court, consistently with the spirit of the literal condition and the facts of the case, adjudge the policy avoided by the inevitable non-payment of premiums? Such a decision would seem to be as unreasonable as unjust.” This was the first case on the subject in point of time, having been decided in August 1870; but it was not reported until after March 1871, and was not before this court when the case of Manhattan Co. v. Warwick was decided. They may both be regarded, therefore, as cases of the first impression; and there is a remarkable and instructive concurrence, both in the reasoning and results >of the opinions of Judge Robertson in the former case and of Judge Anderson in the latter. Judge Anderson regards the rights acquired by the assured, under the policy, by previous payment of premiums, as vested rights in an entire contract, subject to defeasance or forfeiture hy a failure to continue the payment of the annual premiums; that this payment was necessary to be made under the contract, “in the performance of a condition, to prevent a forfeiture;” and that it would be revolting to our every sense of right — would be “unreasonable, arbitrary and immoral,” either to hold such a contract abrogated by the war, or by the non-performance of a condition which by reason of war became illegal and impracticable of performance. The supreme court of New York take precisely the same view of the contract aud condition. Judge Peckham, delivering the opinion 506court n ^ie subsequent case of Sands v. New York Life Ins. Co., 50 New York R., 626, 631-2, says: “ It is against sound principle, and at war with the lights of the age, that the debts of individuals should be ™Paired by national difierences; debts, be it understood, that existed by contracts made prior to the war. Clarke v. Morey, 10 J. R., 73. This contract of the parties I do not thiuk was nullified by the war. What was it? As-presented in the complaint and found by the referee it is a contract of insurance by defendant for the life of the insured, for the consideration of so much money received and the annual payment of $160 during the continuance of the policy. It was a valid policy ‘for the life of the-insured,’ to become void by the omission to pay the-agreed annuity. In principle I do not see why it is not like a lease or grant of land in fee, reserving rent, fi> become void if the rent be not paid, if the condition subsequent be not complied with. I do not say that it. would bar the plaintiff’s recovery if the contract were as the defendant insists it is. It is enough to say that such is not this contract. The agreemeut is to insure for the life of the assured. Subsequent failure to pay the annuity when.due defeats the policy. It is a condition subsequent, not precedent.” The supreme courts of the States of Mississippi and New Jersey have also followed and sustained the decision in The Manhattan Company v. Warwick; and it has-been very recently reaffirmed by the unanimous judgment of our own Special Court of Appeals, in the case of The New York Life Insurance Company v. White, in a carefully-considered and well-reasoned opinion by Judge Wingfield. Had these cases been before the Supreme Court of Georgia when the case of Dillard v. The Manhattan Company was decided we think it reasonable-507to conclude that the decision would have been different. But, however that may be, there is certainly no apparent reason why we should disregard and repudiate the well-considered decision of our own Supreme court, and follow the unsatisfactory and unsupported decision of the Supreme Court of Georgia. And especially is there little reason to do so, when we consider that the Virginia decision is not only just and reasonable in itself, but is sustained by the unanimous judgment of our own Special Court of Appeals and by the supreme courts of four at least of the other States, being, so far as I am informed, the only other States, besides Georgia, in which the question has been adjudicated. In support of the decision of this court in the case of The Manhattan Company v. Warwick, we have, then, the decisions of Judges Blatehford and Bond of the Federal courts above referred to, the decision of the Supreme court of Kentucky in New York Life Insurance Company v. Clopton, 7 Bush., 179; the decisions of the Supreme court of New York in Cohen v. New York Life Insurance Company, 50 N. Y. R., 610, and Sands v. same company, Ibid., 626; the decision of the Supreme court of Yew Jersey in the case of Hillyard v. The Mutual Benefit Insurance Company, reported in the second and third numbers of the Insurance, vol. 2, pp. 137 and 175; the decision of the Supreme court of Mississippi in the case of Statham v. New York Life Insurance Company, 45 Miss. R., 58, and the decision of our own Special Court of Appeals above mentioned: Contra, Judge Emmons of U. S. Circuit court and the Georgia case alone. "Without prolonging this opinion by a comment in detail on these cases, some of which haAre gone farther in the same direction than the case of The Manhattan Company v. Wanoick, and without repeating what is better said in those cases, I feel justified in saying that the proposi508tions of law above deduced from the decision of this . , court, in the case oí The Manhattan Company v. Warwick, must be regarded as “res adjudícala,” whether the pay™ent of premiums be treated as in the nature of conditions precedent or not; for, the contract being lawful and merely suspended, but not abrogated by the war, the performance of the condition, which is part of the contract, is suspended also or excused. The language of the Supreme court of New York on this subject in the case of Sands v. New York Life Insurance Co., 50 N. Y. R., above cited, is pertinent and striking. They say, p. 637, “it is equally a condition precedent to a right to recover on a policy that the action shall be brought within the time specified in the policy. The parties have an undoubted right by contract to fix a short statute of limitations obligatory in the given case. Yet war annuls that limitation if necessary, and the action may be brought, wholly irrespective of that provision of the policy. So held in Semmes v. Hartford Insurance Company, 13 Wall., U. S. R., 158, where that was the sole point of the case. If such be its effect upon that provision there is no reason why it shall not save from forfeiture this condition of payment of the premium when due. It is the fault of neither party that it is not paid, and war suspends contracts like this, but does not destroy them.” The opinion of our Special Court of Appeals in N. Y. Life Ins. Co. v. White is to the same effect. I concur in these views and am of opinion that the contract in this case was suspended but not abrogated by the war, and that the rights of the assured under the policy were not forfeited by a failure to perform to the letter the condition of payment of the last premium when due. The performance of that condition was also suspended or excused. But it has been earnestly contended that the judgment is erroneous and should be reversed, because Dr. Atwood was 509neither beneficiary nor contracting party under the policy in question, and there is, therefore, no right of action in his personal representative. That the only child of marriage having survived his mother, became, by the express terms of the policy, sole beneficiary, and that his personal representative alone could maintain the suit. The objection struck me at first as presenting a grave difficulty; but upon a more careful consideration I am satisfied that it is not valid. I think, on the facts of this case, that the husband, Dr. Atwood, must be deemed in law the contracting party; and, as distributee of his deceased son, he had long been the sole beneficiary. The policy, it is true, on its face purports to be issued to Sarah Jane Atwood, wife of Dr. Atwood, and expresses that the premium was paid by her; but it is apparent on the record that she was not the acting party, and that no consideration, in point of fact, moved from her. She lived only two years after her marriage, and consequently not less than thirteen of the fifteen premiums settled by Dr. Atwood must have been settled after her death. It is proved by a witness of the plaintiff in error that the policy was issued on “Aaron H. Atwood’s application,” and it is abundantly shown by the same witness and the other proofs in the cause that the premiums were in fact all settled for by him. A contract nominally with the wife, for such consideration and under such circumstances, is in law a contract with the husband, on which ordinarily he may sue in his own name, even in the lifetime of the wife; and of course the right of action survives to him at her death. In May v. Boisscau, 12 Leigh, 512, all the judges were of opinion that an acknowledgment of debt to a wife would at once enure to the husband, and not survive to the wife, unless it appeared on the face of the contract, or 510otherwise, or by legal intendment, that the consideration , , moved from her — that she was the meritorious cause of the contract; but they held in that case that the court might so intend from the acknowledgment alone, if noth8^011^ appear to the contrary. In this case it is evident, as I have already said, that . , . ’ , . „ J ’ no consideration moved from the wife. The payments were evidently made by Dr. Atwood, thirteen of them ¿after his wife’s death. In such case my opinion is that it ¡is Dr. Atwood’s contract, on which, without the concurrence of his wife, he could, even if an ordinary contract, sue alone. But if not so, the most that could be said is, that it was a contract which both could sue jointly, and \| Dr. Atwood having survived his wife, he became sole ¡contractor, and the legal right to enforce the contract by suit, in either view, was in him, and devolved on his ¡personal representatives. It is insisted, however, that under the 2d section of chap. 116, Code of 1860, p. 558, a right to sue in his own name vested in the child and passed at his death to his personal representatives; and therefoi’e the suit was improperly brought in the name of Dr. Atwood’s representative. ’Without considering the question argued at the bar, whether on the facts of this case any such right existed in the child, under the statute referred to, as is claimed by the counsel for the plaintiff in error, but conceding the claim, I am still of opinion that such right was cumulative merely; that, like the ease of an assigned bond or note, the original right to sue in the name of the contracting party is not destroyed by the new remedy allowed by statute, but on the coiitrary remains in full force. It is proper to add, that in considering this question I have been governed by the principles of the common 511law as enforced in Virginia, there being nothing in the record to show that different rules of law are applicable to the contract in question. My opinion is, that the judgment be affirmed, with ■costs and damages to the defendant in error. Anderson and Staples Js. concurred in the opinion of Bouldin J. Moncure P. and Christian J., whilst they still were of the opinion expressed by them in the Manhattan Insurance Company v. Warwick, yet upon the maxim of stare decisis, they concurred in affirming the judgment in this •case. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481859/	Staples, J. This record presents but a single question for adjudication; and that is, whether a person placed in possession of land under an agreement for a purchase, but who is in default in the payment of the purchase money, is liable to be turned out of possession by ejectment, without previous demand or notice by the vendor. This question has been very recently considered and-decided by the Supreme court of the United States in Burnett v. Caldwell, 9 Wall. U. S. R., 290. It was held in that case, that where the purchaser fails to comply with the terms of the contract under which he obtained possession the vendor may ti’eat the contract as rescinded, and regain the possession by ejectment, without previous demand or notice. It must not be forgotten, however, that this decision was placed avowedly, upon the ground that this was the law as established in Georgia, where the ease originated; and by that law the Supreme court felt itself controlled in adjudicating the rights of the parties. The rule recognized in Georgia has, no doubt, been adopted in other States. In England, however, a different doctrine has long been established; aud it has been there uniformly held, that the vendor having placed the ven514dee in possession, lie cannot, -without a demaud of the possession and a refusal by the vendee, or some wrongful act by him to determine such possession, treat the vendee as a wrong-doer and trespasser, as he must assume him to be in instituting an action of ejectment. Right v. Beard, 13 East’s R., 210; Newby v. Jackson, 1 Barn. & Cress., 448; Roe, ex dem., v. Street, 2 Ad. & El., 329. This doctrine received the sanction of this court in Williamson, trustee, v. Paxton, 18 Gratt., 475-505. It is said, however, this precise point did not directly arise in the case; and the decision is not, therefore, a binding authority for this court. "W hetker it is or not, it is not important now to enquire; as we are all of opinion the rule there announced is a sound and just one and should be adhered to by the courts. A demand of possession before suit brought can rarely subject the vendor to any expense or inconvenience. To the purchaser, in many cases, it is an act of simple justice. If his failure to pay is the result of an inability to comply with his contract, he may prefer to surrender the possession without incurring the costs of an action. If it is the result of misapprehension or inadvertence, as is often the case, a reasonable demand or notification will in general insure an immediate compliance with the obligations of the contract. This is the more important under our statutes, which permit the purchaser in possession under a writing stating the terms of the agreement to defend himself in a court of law by showing a payment or performance of what was contracted to be paid or performed. Justice and sound policy alike demand that he should not be ejected from the possession and compelled to resort to a court of equity without some notification on the part of the vendor of his purpose to rescind the contract, and 515without some reasonable opportunity of completing the . f(1 i IS payment ot the purchase money. Conceding that the purchaser is a mere Laving no interest in the estate recognizable at law, still his possession is lawful, because with the consent of the vendor; and he cannot be treated as a wrong-doer until Ms right is determined by the election of the vendor to revoke the license. What is a reasonable demand or notice does not appear to have been settled. The better rule would seem to be, to treat the purchaser who is in default as a quasi tenant at will, subject to the duties and entitled to all the privileges, so far as demand and notice •are concerned, applicable to that class of tenancies. 1 Lomax Digest, 189; 2 Smith Lead. Cases, 119; Taylor, Landlord and Tenant, sec. 25. For these reasons I am of opinion the judgment of the Circuit court is correct and should be affirmed. The other judges concurred in the opinion of Staples J. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481860/	Staples J. It is objected that the verdict in this case does not specify the estate found in the plaintiff, whether it be in fee, or for life, or for a term of years. The declaration claims an estate in fee, and the plea is not guilty, as in the declaration alleged. The verdict responds to the issue as follows: “We, the jury, upon the issue joined, find that the defendant is guilty in manner and form as the plaintiff in his declaration has complained.” It will be perceived that the verdict does not expressly find an estate in fee in the plaintiff; but it is very clear that the jury intended so to do, and in fact they have substantially found such an estate in him. 518declaration avers that the plaintiff was possessed of an estate in fee; that the defendant entered upon this- and unlawfully withholds the possession from the rpj1(J ¿[efeildant’s plea put the plaintiff upon Pr00f'°f every material allegation in the declaration, and the verdict necessarily responds to every material, avei’ment put in issue by the pleadings, which may be said to include the estate of the plaintiff, the entry and unlawful withholding of the possession by the defendant. The jury, by a general verdict of guilty in manner and form as in the declaration alleged, may and do find all the matters thus included in the issue. "When a less or different estate from that stated in the declaration is ascertained to be in the plaintiff, it is very important that the verdict should, in express words, express what the estate is. "When, howmver, the plaintiff' properly sets forth his estate or interest in his declaration, as for example an estate in fee, I can see no reason why the verdict may not refer to the declaration for the description of the estate. This may be done by a finding for the plaintiff the premises as claimed in the declaration, or indeed by a verdict of guilty upon the issue joined in manner and form as in the declaration alleged. It must be admitted a finding of that sort is not a literal compliance with the statute, and it is only by a somewhat strained construction of its language that this verdict can be sustained at all. This the court feels warranted in adopting purely from a strong conviction that it is absolutely necessary in the interests of justice. This is the second suit for a small tract of land — trust property to which the plaintiff has an unquestionable title. The defendant does not pretend to have any claim to it, legal or equitable. The first suit failed for the want of a preliminary notice, wdiich the plaintiff ought to have given. And now the second is very near sharing the. 519same fate, because the jury were not instructed as to the form of their verdict, although it is presented by the statute, and is of the simplest character. This court, although unwilling to visit upon the plaintiff the consequences of a mere mistake in form, in no way affecting the merits of the case, deems it proper to express its disapproval of the loose and unjustifiable practice pursued in the conduct of the cause. The third and fourth grounds of error are equally untenable. A judgment that the plaintiff’ recover the lands and tenements in the declaration mentioned amounts to the same thing as a judgment that he recover the possession of the premises. In either case the judgment is followed by a delivery of the possession. If the verdict ascertained an estate in fee in the plaintiff, a general, unqualified judgment for the plaintiff is in effect a recovery of the fee simple estate, and is therefore according to the verdict. If, however, there is any irregularity in the form of the judgment or in the manner of entering if, it is not to the prejudice of the defendant, and the defect might be cured by an amendment and affirmance. Ho such amendment is, however, necessary. The last objection is, that the description of the land in the declaration is too vague and uncertain to render judgment upon it, and the description is not aided by the verdict. The statute merely requires that the premises shall be described with convenient certainty, so that from such description possession may be delivered. The description here is plainly sufficient for that- purpose. It points out the locality of the tract by reference to the lands of coterminous owners and the public highways passing it; a form of description equally satisfactory aucl certain as a statement of the metes and bounds ordinarily contained in deeds of conveyance. *520For these reasons I am of opinion there is no error in the judgment of the Circuit court, and the same should therefore be affirmed. Moncure, P., and Anderson and Bouldin, Js., concurred in the opinion of Staples, J. Christian, J., dissented, on the ground that the verdict was too vague. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481861/	Bouldin J. delivered the opinion of the court. The appellant’s objections to the decree of the Circuit court sustaining the award of the arbitrator, although presented in various forms, are in effect but two. I. That there was a mistake of law by the arbitrator apparent on the face of the award. 2. That the award was not final between' the parties, because it did not dispose of the claim of the appellee Thomas to an interest in the land. Awards which are in substance and effect judgments of a tribunal of “the parties’ own selection,” are always favored in law as tending to the repose of society and the suppression of litigation. “ Expedit Reipublicm ut sit finis litium.” It is therefore only in cases of plain and 531palpable mistake of law or fact that courts will interfere with an award otherwise regular. Indeed, on questions of law courts will not interfere with the award unless it he made to appear in some proper manner, that the arbitrator intended to decide according to law, and has plainly mistaken it. In what manner that fact shall be made to appear it is not necessary in this case to decide. Judge Staples, delivering the opinion of this court in the most recent case on the subject, Moore v. Luckess, to be reported 23 Gratt., 160, said, p. 164: “It may be considered as well-settled, that arbitrators being judges of the parties’ own selection, have rightfully the power to decide and finally adjudicate the law and facts of the case submitted to them. They may disregard the law entirely and decide upon principles of equity and good conscience exclusively. If, however, they mean to conform to the law, and they plainly mistake it, such mistake is sufficient to invalidate it.” Invoking the latter proposition of law, the appellant contends that the arbitrator in this case plainly intended to decide according to law, and manifestly mistook the law, in this: that holding the contract in the case to be an “entire contract,” and the hiring an entire hiring for the year, he laid down as a rule of law to control his decision, “that Thomas, if entitled to recover at all upon that contract, is entitled to recover the hire or wages for the vahóle year;” whereas his right of recovery, in case of discharge without cause, should be limited to the amount of damages actually sustained by such illegal discharge. ~We think the proposition contended for by appellant, and not that laid down by the arbitrator, correctly propounds the law of the case; and if we were satisfied that the arbitrator -was controlled in his award by the rule of law thus assumed by him, we should be disposed to set the award aside for manifest mistake of 532law; for we hold that if Thomas had been dischai’ged the day after he was employed, without fault on his part, but on the next day obtained as good or better employment for the year, although he would be entitled to a recovei’y against his employers for breach of contract on their part, he certainly would not be entitled to full wages for the year as the measure of damages. The arbitrator evidently thought otherwise, and laid down the law as above stated; but it is equally evident from the face of the award, that he did not deem it necessary to rely on that rule of law to sustain his aw7ard. In noticing the argument and authorities of the appellant he quotes from Chitty on Contracts, p. 580, as follows: “In order to justify the immediate discharge of a yearly servant, there must be proved against him moral misconduct, pecuniary or otherwise, willful disobedience or habitual neglect and he goes on to say: “As I have already said, there is no such proof in this case. In note 1, p. 579, same book, reference is made to the case of Byrd v. Byrd, 4 McCord, 246, in which it was decided that * where a planter without cause turns away his ovei’seer at a season of the year when it is impi’acticable to get employment, &c., &c., the overseer is entitled to the stipulated wages for the whole time.’ I have no doubt, therefore, that Thomas is entitled to the full amount stipulated to be paid him by the contract.” We think it evident, from what we have thus quoted from the award, that the arbitrator did not base his decision on the pi’ineiple first announced as law; but, taking the rule established by the case in McCord to be law, he was of opinion that Thomas was, even in that view, entitled to full wages. Tie held that Thomas had been dischai’ged without misconduct on his part, when the year was nearly half gone, and he evidently was of opinion that it was then “impracticable to get employment; ” 533and, “therefore,” on the principles of the case of Byrd v. Byrd, independently of his first proposition of law, he regarded Thomas as “entitled to the full amount stipulated to be paid him by the contract.” Taking the view which the arbitrator evidently did of the facts, he regarded Thomas as entitled to his wages under either rule of law referred to by him; and if the award can be sustained under either view, then the objection must fall. Taking, then, the same view of the facts with the arbitrator, as we are compelled to do in this case, we think the rule of law extracted by him from the ease of Byrd v. Byrd, rightly propounded the law of the case; and the award not being in conflict, but in accord therewith, we cannot say that it was made under misapprehension of the law. "Whether the judgment of the arbitrator on the facts of the case was or was not right, is not for us to decide. If the record contains all the facts, we might be inclined to differ widely from him; but the weight and effect of the testimony was submitted to him, and we feel bound by his judgment thereon. The next and only other question necessary to be considered is, whether the award was final? "Whether it disposed of all matters submitted to the arbitrator? It is insisted that it did not dispose of Thomas’ claim to the land — that this claim was a matter of controversy in the chancery cause, and not being disposed of, that the award was not final — was incomplete and void. The chancery suit was brought by "Willoughby & Miner, but abated as to Miner by his death; and the submission was of “ the matters in controversy in this cause between the said "Willoughby and the said Thomas.” These were matters of controversy -with Willoughby, as survivor of Willoughby & Miner, by whom the suit was brought, and for whose benefit it was prosecuted. The 534claim of Thomas was not that- lie had title to the land. That he never had; and any equity he might once have asserted to a portion of it under the contract of himself and Fahnestock with Hall was abandoned when he consented in writing to the conveyance of the entire tract by Hall to Willoughby, under whom Miner claimed. Thomas’ claim was not, in point of fact, to the land, nor to any part thereof, nor was it a claim against the plain' tiffs in the chancery cause, nor against Willoughby alone as survivor. It was not therefore a matter properly in controversy between Willoughby and Thomas. It seems to have been a claim against Miner alone, upon an alleged contract with him, which, if made at all, was secretly made in fraud of Willoughby, and for which Thomas seems from the evidence to have been fully satisfied by Miner. It is doubtful, therefore, to say the least of it,, whether, although in fact relied on in his answer, Thomas’ claim under this alleged contract was, or could have been, an issue in the cause. It amounted íd effect to a charge of fraud against Miner alone, sounding in damages-against him, hut not involving the title of Willoughby & Miner to the land, nor affecting the merits of the controversy. But if it was a claim to an interest in the land, and was submitted to the arbitrator as such, we think it was definitively disaffirmed by the award. That award gave-to Thomas all he claimed under the contract of the 13th of March 1869, with Willoughby & Miner; thus, according to him, in our judgment, the very utmost extent of his rights, and necessarily disaffirming any claim on his-part to the land in question. The arbitrator evidently regarded this as “ res ad/judicaia ” by the decree of the 27th of September 1869, by which a receiver was appointed to take charge of the premises held and occupied by Thomas, until the 1st day of January 1870,. *535“token the said premises shall be turned over to the plaintiffs in the case.” After providing that the receiver might allow Thomas to occupy the premises for the balance of the year on rent, the decree concludes as follows: “But said Thomas shall not occupy said premises longer than the ■first day of January 1870.” This decree was affirmed on appeal, by the District court, 4th judicial circuit, on the 27th January 1870, and the matters involved were treated by the arbitrator, and we think properly, as “res adjudicóla.” That decree substantially affirmed that Thomas had no claim to the land, or any part thereof, after the first day of January 1870, and gave it to the then plaintiff’s, and such we understand to be also the intent and effect of the award. We are of opinion, therefore, that the award covers all matters in controversy between the parties which were submitted to the arbitrator, and that there is no such error or mistake of law or fact on his part as should vitiate his award. The decree of the Circuit court must be affirmed, with costs and damages to the appellee. Decree affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481863/	Anderson, J., delivered the opinion of the court. It is well settled that it is no ground for equitable interference that a party has not effectually availed himself of a defence at law. There are cases in which equity will relieve after verdict, although a defence might have been made at law; but only where there has been no fault or negligence on the part of the defendant or his agents. The rule, as laid down by Chancellor Kent in Foster v. Wood, 6 John. Ch. R., 89, is, “that chancery will not relieve against a judgment at law, on the ground of its 552being contrary to equity, unless the defendant in judgment was ignorant of tbe fact iu question pending the suit; or it could not be received as a defence; or unless he was prevented availing himself of the defence by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” To the same effect is the declaration of the rule by C. J. Marshall, in The Marine Insurance Company of Alexandria v. Hodgson, 7 Crauch R., 332. It must appear that the omission of the defendant to avail himself of the defence at law “ was unmixed with any negligence in himself or his agents.” This rule is absolutely inflexible, and cannot be violated, even w'hen the judgment is manifestly wrrong in law or fact; or when the effect of allowing it to-stand will be to compel the payment of a debt which the defendant does not owe, or which he owes to a third person. 3 Lead. Cas. in Equity, p. 467, and cases cited. It is not sufficient to show that injustice has been done, but that it has been done under circumstances which authorize a court of equity to interfere; because if a matter has already been investigated in a court of competent jurisdiction, according to the ordinary rules of investigation, a court of equity cannot take it upon itself to enter into it again. Ibid, citing Bateman v. Willoe, 1 Sch. & Lef. R., 201. To the same effect is the current of Virginia decisions. Many of them are cited by J. Lee in deliveiing tbe opinion of the court in Slack v. Wood, 9 Gratt., 40. Before Robinson & Fairbanks obtained their judgments against R. M. Smith & Son, the debt due them by the Richmond Publishing Company had been assigned to Watts, Dibrell and Gretter, for a valuable consideration. And tvro of the principal officers of the company were informed of this assignment. In fact, the company had been formally notified of the assignment, as is shown by 553the acknowledgment of its treasurer and secretary, endorsed on the notice, and also by his deposition in the cause. It is true that the president, Tyler, who was served with the process against the company, testifies that he was ignorant of the assignment, and failed to make defence for the company; but, on the contrary, testified and acknowledged that the company was indebted to E. M. Smith & Son by the bonds aforesaid, not knowing that they had been assigned to Watts, &c. lie admits that he knew that it was the intention of R. M. Smith &Son to assign the said bonds to Watts, Hibrell and Gretter; yet before he answered to the process, he did not even take pains to enquire whether that assignment had been made. He knew that he had beeu absent in New York, when the assignment might have been made and notice thereof given to the company, yet after being served with process, without enquiring of the other officers whether an assignment had been made and notice thereof given to them in his absence, or making any preparation for the defence of the company, he goes forward carelessly, not to say recklessly, and acknowledges the company’s indebtedness to E. M. Smith & Son. And upon his acknowledgment or testimony judgment was rendered against his company in favor of Robinson & Fairbanks for the amount of their judgment debt against E. M. Smith & Son. And it is remarkable, and evidences the most, extraordinary negligence on the part of this agent of the company, that on the same day the judgment was rendered against the company, he was informed that the bonds had been assigned by R. M. Smith & Son to Watts and others for a valuable consideration, of wffiich the company had been notified prior to the judgment and execution of Eobinson & Fairbanks against R. M. Smith & Son, and he- did nothing to have the error in the judgment against his corrected, *554which might then have been done; but, as the agent and representative of the corporation allowed the judgment to stand. -A. corporation can only act through its agents, and mus^ abide the consequences of their acts, done within the scope of their authority. This company’s defence- , , , , „ could only be made through its president or other agents; and by their fault and gross negligence it did not avail, itself of its defence at law, and allowed judgment to go against it for the want of defence. It is, therefore, not in the power of a court of equity, without overturning long-established principles, to reopen the investigation, revise the judgment of the court of law, and relieve against it. The court is, therefore, of opinion to affirm the decree of the chancellor. Decree appirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/9350331/	12/23/2022 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0466 No. DA 21-0466 STATE OF MONTANA, Plaintiff and Appellee, v. RYAN HUNTER ZITNIK, Defendant and Appellant. GRANT OF EXTENSION Upon consideration of Appellee’s motion for a 30-day extension of time, and good cause appearing therefor, Appellee is granted an extension of time to and including February 3, 2023, within which to prepare, serve, and file its response brief. KFS Electronically signed by: Bowen Greenwood Clerk of the Supreme Court December 23 2022	01-04-2023	12-26-2022
https://www.courtlistener.com/api/rest/v3/opinions/9350300/	USCA4 Appeal: 22-1906 Doc: 6 Filed: 12/22/2022 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 22-1906 MAI CHAPPEL, Plaintiff - Appellant, v. SPIVEY SHELTON; SARAH SPIVEY, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, Chief District Judge. (2:22-cv-00174-MSD-LRL) Submitted: December 20, 2022 Decided: December 22, 2022 Before NIEMEYER and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit Judge. Affirmed as modified by unpublished per curiam opinion. Mai Chappel, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-1906 Doc: 6 Filed: 12/22/2022 Pg: 2 of 2 PER CURIAM: Mai Chappel appeals the district court’s order dismissing her civil complaint for lack of subject matter jurisdiction. On appeal, we confine our review to the issues raised in the informal brief. See 4th Cir. R. 34(b). Because Chappel’s informal brief does not challenge the basis for the district court’s disposition, she has forfeited appellate review of the court’s order. See Jackson v. Lightsey, 775 F.3d 170, 177 (4th Cir. 2014) (“The informal brief is an important document; under Fourth Circuit rules, our review is limited to issues preserved in that brief.”). We therefore modify the district court’s dismissal order to reflect that the dismissal is without prejudice, and we affirm the dismissal as modified. See 28 U.S.C. § 2106; Ali v. Hogan, 26 F.4th 587, 600 (4th Cir. 2022) (explaining that dismissal for lack of subject matter jurisdiction must be without prejudice). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED AS MODIFIED 2	01-04-2023	12-26-2022
https://www.courtlistener.com/api/rest/v3/opinions/9350422/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00507-CV ___________________________ IN RE AURORA RICO FLORES, Relator Original Proceeding County Court at Law No. 3 of Tarrant County, Texas Trial Court No. 2022-001747-3 Before Walker, Birdwell, and Bassel, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION The court has considered relator’s petition for writ of mandamus and is of the opinion that relief should be denied. Accordingly, relator’s petition for writ of mandamus is denied. Per Curiam Delivered: December 22, 2022 2	01-04-2023	12-26-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481278/	Abatement Order filed November 1, 2022 In The Fourteenth Court of Appeals ____________ NO. 14-22-00741-CV ____________ ADAMS AND REESE LLP, ADAM MASSEY, AND CASSANDRA WALSH, Appellants V. EMERALD ELECTRICAL CONSULTANTS LLC, Appellee On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 2022-25539 ABATEMENT ORDER Notice was filed on October 25, 2022 that appellee is in bankruptcy. Tex. R. App. P. 8.1. According to the notice, on September 15, 2022, appellee, petitioned for voluntary bankruptcy protection in the United States Bankruptcy Court for the Northern District of Georgia under case number 22-20913-JRS. A bankruptcy suspends the appeal from the date when the bankruptcy petition is filed until the appellate court reinstates the appeal in accordance with federal law. Tex. R. App. P. 8.2. Accordingly, we ORDER the appeal abated. When a case has been suspended by a bankruptcy filing, a party may move the appellate court to reinstate the appeal if permitted by federal law or the bankruptcy court. Tex. R. App. P. 8.3. If the bankruptcy court has lifted or terminated the stay, a certified copy of the order must be attached to the motion. Id. A party filing a motion to reinstate shall specify what further action, if any, is required from this court when the appeal is reinstated. See Tex. R. App. P. 10.1(a). For administrative purposes only, and without surrendering jurisdiction, the appeal is abated and treated as a closed case until further order of this court. PER CURIAM Panel Consists of Justices Zimmerer, Spain, and Hassan.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481283/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,423-01 EX PARTE JOSE DAVID ROBLES, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NUMBER13445-D IN THE 350 TH DISTRICT COURT FROM TAYLOR COUNTY Per curiam. ORDER Applicant was convicted of driving while intoxicated and sentenced to ten years’ imprisonment. The Eleventh Court of Appeals affirmed his conviction. Robles v. State, No. 11-19-00358-CR (Tex. App.—Eastland Oct. 21, 2021). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See T EX. C ODE C RIM. P ROC. art. 11.07. Applicant filed this application in the Taylor County district clerk’s office on December 1, 2021. The Court received this writ application on January 4, 2022. On January 19, 2022, this Court denied it on the merits. However, the mandate in Applicant’s direct 2 appeal did not issue until December 21, 2021. Because the mandate had not issued when the application was filed in the county, the conviction was not final for 11.07 purposes and the application should have been dismissed. After reconsideration on its own motion, the Court finds that the application should have been dismissed because the direct appeal was still pending. See Ex parte Johnson, 12 S.W.3d 472 (Tex. Crim. App. 2000). Accordingly, the Court withdraws its prior order denying this application and enters this order dismissing this application. Applicant’s writ application is dismissed. DO NOT PUBLISH DELIVERED: November 2, 2022	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481246/	Petition for Writ of Mandamus Conditionally Granted and Memorandum Opinion filed November 3, 2022. In The Fourteenth Court of Appeals NO. 14-22-00502-CV IN RE UNITED FINANCIAL CASUALTY COMPANY, Relator ORIGINAL PROCEEDING WRIT OF MANDAMUS 234th District Court Harris County, Texas Trial Court Cause No. 2021-79224 MEMORANDUM OPINION On July 12, 2022, relator United Financial Casualty Company (“United Financial”) filed a petition and, thereafter, a supplemental petition for writ of mandamus in this Court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the petition, United Financial asks this Court to compel the Honorable Lauren Reeder, presiding judge of the 234th District Court of Harris County, to vacate the trial court’s June 6, 2022 order denying United Financial’s motion to abate the real party in interest Elizabeth Echeverria’s (“Echeverria”) extra-contractual claims in an uninsured/underinsured motorist coverage suit. We determine that relator is entitled to relief. See Tex. R. App. 52.8(c). BACKGROUND On February 14, 2020, Echeverria was involved in a motor vehicle accident as a passenger in a vehicle operated by Uber driver Samir Tachbaroute (“Tachbaroute”). Carlos Lanausse-Ramos (“Lanausse-Ramos”) allegedly rear-ended Tachbaroute’s vehicle. Echeverria alleges that she sustained physical injuries as a result of this accident. At the time of the accident, United Financial insured Tachbaroute under a commercial auto policy with uninsured/underinsured (“UM/UIM”) coverage. Echeverria made uninsured bodily injury claims under this policy. Before Echeverria and United Financial resolved the claim, Echeverria filed suit against United Financial.1 In the lawsuit, Echeverria seeks declaratory relief to establish entitlement to UIM motorist benefits and for alleged violations of Insurance Code chapters 5412 and 5423; breach of the duty of good faith and fair dealing; violations of the Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA”)4; and fraud. 1 Echeverria also filed suit against Uber Technologies, Inc., Rasier, LLC, Samir Tachbaroute, Carlos Lanausse-Ramos, Progressive Commercial Casualty Company, and Progressive Commercial Advantage Agency, Inc. 2 Tex. Ins. Code Ann. §§ 541.001-.454 (unfair methods of competition and unfair or deceptive acts or practices). 3 Tex. Ins. Code Ann. §§ 542.001-.302 (processing and settlement of claims). 4 Tex. Bus. & Com. Code Ann. §§ 17.41-.63. 2 Although Echeverria has not yet obtained a legal determination that Lanausse- Ramos is liable for the accident and is underinsured, Echeverria brings claims against United Financial for the alleged violations. United Financial filed its verified plea in abatement and motion to abate Echeverria’s extra-contractual claims and a hearing was held on June 6, 2022. At the time of the hearing, the parties advised the trial court that full abatement was not required as Echeverria had provided the requisite Insurance Code and DTPA notices; however, the motion to abate Echeverria s extra-contractual claims was still at issue. The trial court denied the motion to abate Echeverria’s extra-contractual claims. In this original proceeding, United Financial asserts that the trial court abused its discretion by denying United Financial’s motion to abate Echeverria’s extra-contractual claims. We requested that Echeverria file a response to the petition for writ of mandamus; however, no response was filed. MANDAMUS STANDARD OF REVIEW Ordinarily, to be entitled to a writ of mandamus, the relator must show that the trial court clearly abused its discretion, and that the relator lacks an adequate remedy by appeal. In re Dawson, 550 S.W.3d 625, 628 (Tex. 2018) (orig. proceeding) (per curiam). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without regard to guiding legal principles. In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 293–94 (Tex. 2016) (orig. proceeding). A trial court has no discretion in determining what the law is or in applying the law to the facts. Id. at 294; In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding). Thus, the trial court’s failure to analyze or apply the law 3 correctly constitutes an abuse of discretion. See In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). Relator also must demonstrate that it does not have an adequate remedy at law, such as a remedy by an appeal. See In re J.B. Hunt Transp., 492 S.W.3d at 299. The adequacy of appeal as a remedy for an alleged clear abuse of discretion in an interlocutory ruling involves a balance of jurisprudential considerations that “implicate both public and private interests.” In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (per curiam) (internal quotations omitted); see also In re Prudential Ins. Co., 148 S.W.3d at 136. We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. See In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam); In re Prudential Ins. Co., 148 S.W.3d at 136. Mandamus relief is appropriate when a trial court abuses its discretion in denying a motion to abate extra-contractual claims in an UIM case. See In re State Farm Mut. Auto. Ins. Co., 629 S.W.3d 866, 878 (Tex. 2021) (orig. proceeding). ABATEMENT OF EXTRA-CONTRACTUAL CLAIMS Abatement of Echeverria’s extra-contractual claims is required until the declaratory judgment action and breach-of-contract claim have been decided. See In re Allstate Fire & Cas. Co., No. 04-18-00676-CV, 2018 WL 6624885, at 2 (Tex. App.—Austin Dec. 19, 2018, orig. proceeding) (mem. op.) (concluding trial court erred by not granting abatement). An insured’s claim for breach of an insurance contract is distinct and independent from claims that the insurer violated its extra-contractual common law and statutory duties. See State Farm Mut. Auto. Ins. Co., 629 S.W.3d at 873–74 (citing USAA Tex. Lloyds v. Menchaca, 545 4 S.W.3d 479, 489 (Tex. 2018)); see also In re James River Ins. Co., No. 14-20- 00390-CV, 2020 WL 6143163, at 2 (Tex. App.—Houston [14th Dist.] Oct. 20, 2020, orig. proceeding) (per curiam) (mem. op.). UIM claims and bad-faith claims have been recognized as separate and distinct claims, which might each constitute a complete lawsuit within itself. Id. (citing United States Fire Ins. Co. v. Millard, 847 S.W.2d 668, 672 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding)). A UIM insurer has no contractual duty to pay benefits until the liability of the other driver and the amount of damages sustained by the insured are determined. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 818 (Tex. 2006). To recover benefits under a UIM policy, a policy beneficiary must show: (1) the insured has UIM coverage; (2) the other driver negligently caused the accident that resulted in the covered damages; (3) the amount of the insured’s damages; and (4) the other driver’s insurance coverage is deficient. In re Allstate Fire & Cas. Ins. Co., 617 S.W.3d 635, 644 (Tex. App.—Houston [14th Dist.] 2021, orig. proceeding); see also James River Ins. Co., 2020 WL 6143163, at 2 (citing In re Liberty Cty. Mut. Ins. Co., 537 S.W.3d 214, 220 (Tex. App.—Houston [1st Dist.] 2017, orig. proceeding)). An insured first must establish that the insurer is liable on the contract before the insured can recover on extra-contractual claims against an insurer for failure to pay or settle a UIM insurance claim. Id.; see also In re Old Am. Cty. Mut. Ins. Co., No. 13-12-00700-CV, 2013 WL 398866, at 4 (Tex. App.—Corpus Christi-Edinburg Jan. 30, 2013, orig. proceeding) (mem. op.) (stating that “to prevail on their extra-contractual claims against Old American, plaintiffs must first demonstrate that Old American was contractually obligated to pay their uninsured 5 motorist claim.”); In re State Farm Mut. Auto. Ins. Co., 395 S.W.3d 229, 238 (Tex. App.—El Paso, 2012, orig. proceeding) (“Texas insurance law generally conditions recovery for bad faith and extracontractual claims on a recovery for breach of the insurance contract itself.” (quoting Smith v. Allstate Ins., No. H-03-0651, 2007 WL 677992, at 5 (S.D. Tex. Feb. 27, 2007))). ABUSE OF DISCRETION Echeverria alleged that, pursuant to the policy, United Financial was obligated to pay Echeverria UIM benefits for bodily injury caused by Lanausse- Ramos and Tachbaroute. Echeverria further alleged that, although she gave notice that she was seeking UIM benefits under the policy, United Financial failed to provide coverage. With regard to her extra-contractual claims, Echeverria alleged the following against United Financial: violations of Insurance Code chapters 541 and 452; breach of the duty of good faith and fair dealing; violations of the DTPA; and fraud. Echeverria’s extra-contractual claims relate to and are premised on an alleged contractual obligation to pay her UIM claims. United Financial has no contractual obligation to pay Echeverria UIM benefits until Echeverria establishes the liability and underinsured status of Lanausse-Ramos. The introduction of information on Echeverria’s extra-contractual claims during the trial on Echeverria’s breach-of-contract claim would be manifestly unjust. See James River Ins. Co., 2020 WL 6143163, at 3 (citing In re Progressive Cty. Mut. Ins. Co., 439 S.W.3d 422, 427 (Tex. App.— Houston [1st Dist.] 2014, orig. proceeding) (holding that introduction of irrelevant evidence of insured’s claims handling history in unrelated accidents at breach-of- contract trial would be manifestly unjust)). Requiring United Financial to try the 6 extra-contractual claims with the breach-of-contract claim would not do justice, avoid prejudice, or further convenience. See id. (citing Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990)). Therefore, we conclude that the trial court abused its discretion by not abating Echeverria’s extra- contractual claims from her breach-of-contract claim. See State Farm Mut. Auto. Ins. Co., 629 S.W.3d at 877‒878. NO ADEQUATE APPELLATE REMEDY United Financial will lose the important right to have Echeverria’s extra-contractual claims tried with her breach-of-contract claim. See Prudential Ins. Co. of Am., 148 S.W.3d at 136 (stating that appellate court may consider whether mandamus will preserve important substantive and procedural rights from impairment or loss in determining whether relator has adequate remedy by appeal). “When a bifurcated trial is denied in these circumstances, the insurer lacks an adequate appellate remedy for the ‘time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’” State Farm Mut. Auto. Ins. Co., 629 S.W.3d at 878 (quoting Prudential Ins. Co. of Am., 148 S.W.3d at 136). We conclude that United Financial does not have an adequate appellate remedy for the trial court’s denial of the request for abatement. See id. CONCLUSION We conclude that the trial court abused its discretion by denying United Financial’s motion to abate Echeverria’s extra-contractual claims and that United Financial does not have an adequate remedy by appeal. Accordingly, we determine that United Financial is entitled to the requested relief and order the trial court to (1) vacate its June 6, 2022 order denying United Financial’s motion to 7 abate Echeverria’s extra-contractual claims and (2) grant United Financial’s motion to abate the extra-contractual claims. We are confident the trial court will act in accordance with this order and will order the clerk of this court to issue a writ of mandamus only if the trial court fails to comply. PER CURIAM Panel consists of Justices Zimmerer, Spain, and Poissant. 8	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481279/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,220-01 IN RE MARTIN YBARRA, Relator ON APPLICATION FOR A WRIT OF MANDAMUS CAUSE NO. 19-01783-CRF-272-A IN THE 272ND DISTRICT COURT FROM BRAZOS COUNTY Per curiam. ORDER Relator has filed a motion for leave to file an application for a writ of mandamus under this Court’s original jurisdiction. He contends that he filed an application for a writ of habeas corpus in Brazos County on December 8, 2021, and his application has not been properly forwarded to this Court. Respondent, the District Clerk of Brazos County, shall forward Relator’s habeas application to this Court, respond that Relator has not filed a habeas application in Brazos County, or forward a copy of an order designating issues together with correspondence documenting the date the State received Relator’s habeas application. See TEX . CODE CRIM . PROC. art. 11.07, § 3(c) and (d); TEX . R. APP . P. 73.4(b)(5). This motion for leave to file will be held. Respondent shall comply with this 2 order within thirty days from the date of this order. Filed: November 2, 2022 Do not publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481290/	In the Court of Criminal Appeals of Texas ══════════ No. PD-0799-19 ══════════ THE STATE OF TEXAS v. SHEILA JO HARDIN, Appellee ═══════════════════════════════════════ On State’s Petition for Discretionary Review From the Thirteenth Court of Appeals Nueces County ═══════════════════════════════════════ YEARY, J., filed a dissenting opinion in which KELLER, P.J., and KEEL, J., joined. Section 542.301(a) of the Texas Transportation Code provides that “[a] person commits an offense if the person performs an act HARDIN – 2 prohibited or fails to perform an act required by this subtitle.” TEX. TRANSP. CODE § 542.301(a) (emphasis added). Within the referenced subtitle, then, is Section 545.060(a) of the Texas Transportation Code, which contains both a requirement and a prohibition. It reads: (a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely. TEX. TRANSP. CODE § 545.060(a). A plain reading of these statutes together makes clear that a person commits an offense by violating either the requirement that the person (a)(1) drive as nearly as practical entirely within a single lane, or the prohibition that they (a)(2) not move from the lane when that movement cannot be made safely. Today, the Court holds otherwise. It concludes instead that a person does not commit an offense under this provision unless and until he both (a)(1) fails to drive as nearly as practical entirely within a single lane, and (a)(2) moves from the lane when that movement cannot be made safely; in other words, no offense is shown until a driver deviates from a single lane of traffic in an unsafe manner. See Majority Opinion at 16 (“[W]e hold that a person only violates [the statute] if the person fails to maintain a single marked lane of traffic in an unsafe manner.”). 1 1 After being detained on suspicion of the traffic violation at issue in this case, Appellant was found to be in possession of evidence supporting charges of fraudulent possession of identifying information and forgery of a government instrument. Majority Opinion at 3. HARDIN – 3 But, as four of our judges recognized in Leming v. State, 493 S.W.3d 552, 557 (Tex. Crim. App. 2016), “[t]here is a problem with this assessment of the statutory elements[.]” The Court’s lead opinion in Leming explained it this way: It seems to discount the requirement that an operator “drive as nearly as practical entirely within a single lane[.]” It essentially removes what is now Section (a)(1), requiring a driver to stay within his dedicated lane of traffic as much as it is “practical” to do so, entirely from the statute. It makes it an offense only to ignore the prohibition against changing lanes when the conditions for changing lanes are not safe. Id. The Court says that any reading of the statute other than its own ignores the conjunction “and” that separates Subsection (1) from Subsection (2). See Majority Opinion at 12–13 & n. 29 (citing Antonin Scalia & Bryan A. Garner, READING LAW 116 (2012), for the proposition that “and combines items while or creates alternatives”). But Section 545.060(a) does not read like the typical penal code provision that uses the conjunctive “and” to identify constituent elements of a single offense. Such a statute is usually structured as follows: “A) A person commits an offense if the person: 1) . . ., 2) . . ., and 3) . . ..” The use of the conjunctive “and” in a statute structured in this way makes it plain, of course, that the various subsections define necessary HARDIN – 4 elements of the “offense” referenced in the statutory preamble, all of which must be proven to establish commission of the offense. They do not define alternative ways of committing the offense, like the word “or” would be expected to do in that context. Section 545.060(a) of the Transportation Code, however, is structured differently than the typical penal provision. In fact, in and of itself, it is not a penal provision at all. Its opening phrase says nothing about committing an offense. Instead, it begins by identifying to whom, and in what location, it applies: “An operator on a roadway divided into two or more clearly marked lanes for traffic:”. TEX. TRANSP. CODE § 545.060(a). It then sets out a requirement, in Subsection (1): “shall drive as nearly as practical entirely within a single lane[.]” Id. And next, in Subsection (2), it sets out a prohibition: “may not move from the lane unless that movement can be made safely.” Id. Thus, Section 545.060(a) sets out both a requirement and a prohibition—either of which may form the basis for a penal offense under Section 542.301(a)—the actual penal provision in the Transportation Code. See TEX. TRANSP. CODE § 542.301(a) (“A person commits an offense if the person performs an act prohibited or fails to perform an act required by this subtitle.”) (emphasis added). In this way, the subsections of Section 545.060(a) themselves independently establish what constitutes an offense, with each subsection defining a discretely actionable offense—just as the word “or” might in a more typical penal provision. If a person driving on a clearly divided roadway either fails to remain “as nearly as practical within a single lane[,]” or he “move[s] from” one dedicated lane into another when it is not safe to HARDIN – 5 do so, he has committed an offense according to the statutory scheme. 2 That is how the conjunctive “and” works in this statutory context. The Court says that its construction of the statute is the only one “that gives effect to both statutory subsections.” Majority Opinion at 13. It seems to me that the opposite is true. As the lead opinion in Leming explained, as quoted above, the Court’s interpretation effectively reads Subsection (a)(1) out of the statute, making the safety of any deviation from a single lane the lynchpin of a single offense. Otherwise failing to stay within a dedicated lane, even when it is practical to do so, as described in Section (a)(1), will make not a bit of difference so long as the driver does not “move from” that lane in a manner that is unsafe. 3 2 Or, as Judge Richardson explained it in his concurring opinion in Leming: The statute provides that a driver “shall drive as nearly as practical entirely within a single lane,” and a driver “may not move from the lane unless that movement can be made safely.” This means that a person could be in violation of that statute if he or she fails to do either one of the required actions. This interpretation does not turn the “and” into an “or.” The “and” means that both are statutory requirements. It is the potential violation of the statute that incorporates the “or.” 493 S.W.3d at 566 (Richardson, J., concurring). 3 A driver can fail to stay within his dedicated lane without wholly “mov[ing] from” his lane. It would not be unreasonable to construe the phrase “move from” to mean a “move from” one lane completely into another: a change of lanes. Such a reading would nullify the Court’s assumption that the two subsections of the statute address “the same conduct[.]” Majority Opinion at 13. If Subsection (a)(1) deals with swerving partially outside of a dedicated lane (or, more precisely, failing to stay “entirely within a single lane”), while Subsection (a)(2) deals with wholesale lane changes, then the proscribed conduct is not the same from one subsection to the other, and it then makes HARDIN – 6 Still, the Court concludes that there is necessarily an “interconnectedness” between the two subsections that somehow makes them elements of the same offense. Id. at 14. But that perceived “interconnectedness” seems to me to derive solely from the Court’s faulty understanding of the conjunctive “and” between the subsections of the statute. I see no other intrinsic source for it. The Court also claims that my understanding of the statute “would render subsection (a)(2) meaningless.” 4 Id. at 15. The reason, if I understand it correctly, is that the Transportation Code already contains a provision that prohibits drivers from “mov[ing] right or left on a roadway, unless movement can be made safely.” Id. at 15. (citing TEX. TRANSP. CODE § 545.103). What I believe the Court is suggesting here is that to read Subsection 545.060(a)(2) to identify a discrete offense, apart from Subsection 545.060(a)(1), would create an offense that would be redundant of the prohibition already set out in Section sense for the Legislature to include a “safety” component to the latter but not necessarily to the former. In any event, I do not think that the “safety” component of Subsection (a)(2) can sensibly be read to apply to the failure-to-stay-wholly-within-a- dedicated-lane requirement of Subsection (a)(1) under any circumstances. But that is what the Court’s construction of the statute accomplishes today: A driver who fails to remain wholly within his dedicated lane will nevertheless escape prosecution under Section 545.060(a), at least so long as that conduct does not take the form of wholly “mov[ing] from” his lane, and then doing so unsafely. But a driver who “move[s] from” his lane unsafely may always be prosecuted, without reference to the requirement to stay wholly within his dedicated lane so long as it is practical. In this way, the Court’s reading of the statute eviscerates Subsection (a)(1). 4 In fact, the Court’s own reading of the statute renders Subsection (a)(1) meaningless. See note 3, ante. HARDIN – 7 545.103: moving right or left on a roadway when it is unsafe to do so. I disagree, however, that Section 545.103 and Subsection 545.060(a)(2) are so co-extensive as to render Subsection 545.060(a)(2) wholly superfluous. Section 545.103 requires safe conditions with respect to any lateral movement on any roadway. Subsection 545.060(a)(2) prohibits any “move from” one dedicated lane into another on a clearly divided road. Depending on how we construe the breadth of the phrase “move from,” Subsection 545.060(a)(2) may only apply to unsafe lane changes, 5 whereas the former would plainly apply to any unsafe lateral movement on any category of roadway. While it might be appropriate to read the two provisions in pari materia (especially if their punishment provisions differed, which they do not), 6 I perceive no redundancy that necessarily undermines my understanding that Subsection (a)(2) of Section 545.060 has a discrete effect from Subsection (a)(1). The Court’s concern in this regard is overinflated. 7 5 See note 3, ante. 6 See Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim. App. 2008) (observing that “a defendant has a due process right to be prosecuted under a ‘special’ statute that is in pari materia with a broader statute when these statutes irreconcilably conflict.”) (quoting Ex parte Smith, 185 S.W.3d 887, 893 (Tex. Crim. App. 2006)). Section 542.301(b) of the Transportation Code provides that, “[e]xcept as otherwise provided, an offense under this subtitle is a misdemeanor.” TEX. TRANSP. CODE § 542.301(b). Neither Section 545.060(a) nor Section 545.103 provides for a punishment that is otherwise than that provided by Section 542.301(b). 7In any event, any redundancy between the two statutes would not be saved by the Court’s present construction of Section 545.060(a)—since it has rendered Subsection (a)(1) of that Section superfluous. All that is left is Subsection (a)(2), which is the very provision that the Court now maintains is redundant of Section 545.103 of the Transportation Code. HARDIN – 8 Finally, the Court argues that the statute’s history supports its conclusion that Section 545.060(a) only sets out a single offense. Majority Opinion at 19–20. The Court first observes that the statutory predecessor to Section 545.060(a) was not divided into subsections, and the full text was contained within “a single sentence.” Id. at 19 (citing former Article 6701d, § 60). Of course, though now divided into subsections, Section 545.060(a) is also still comprised only of a single sentence. That a “single sentence” is involved proves nothing. Continuing its “statutory history” argument, the Court points out that the legislative codification of the statute as part of its “statutory revision program” was not supposed to effectuate substantive changes but was “cosmetic” only. Id. at 20. From this the Court concludes that “the statutory history suggests that the legislature has always intended that this subsection create only one offense.” Id. Missing from this final argument is any indication of what the predecessor statute—Article 9701d, Section 60—was authoritatively construed to mean in the past. As was pointed out in the part of Leming that spoke for four members of the Court, “[t]his Court has yet to construe this statutory language.” 493 S.W.3d at 557. While there were at that time intermediate courts of appeals opinions on the subject, id. at 557 & n.6, prior to Leming, this Court had never construed the statute, in either its present or its former versions. That the codification of Article 9701d, Section 60, was not meant to effectuate a substantive change means nothing in the absence of binding authority construing that former language in the first place. Short of Leming, the proper construction of Section 545.060(a) of the HARDIN – 9 Transportation Code remains today, as far as this Court is concerned, a question of first impression. We have yet to construe the “single sentence” at issue in this case as it appeared in either current Section 545.060(a) of the Transportation Code, or former Section 60 of Article 9701d. Ultimately, nothing about the statute’s history sheds the kind of light the Court suggests. The Court’s approach is also likely to produce problems with interpretation of other parts of the Transportation Code that are written similarly to Section 545.060(a). For example, Section 545.066(a) (Passing a School Bus; Offense) is structured almost identically to Section 545.060(a). Section 545.066(a) contains both a requirement and a prohibition, numbered as subsections (a)(1) and (a)(2), respectively, with each subsection separated by the word “and”. Specifically, Section 545.066(a) provides: (a) An operator on a highway, when approaching from either direction a school bus stopped on the highway to receive or discharge a student: (1) shall stop before reaching the school bus when the bus is operating a visual signal as required by Section 547.701 (Additional Equipment Requirements for School Buses and Other Buses Used to Transport Schoolchildren); and (2) may not proceed until: (A) the school bus resumes motion; (B) the operator is signaled by the bus driver to proceed; or (C) the visual signal is no longer actuated. HARDIN – 10 TEX. TRANSP. CODE § 545.066(a). The Court’s decision today may lead some lower courts to conclude that subsections (1) and (2) of Section 545.066 are “interconnected,” and that since they are paired with the word “and,” an offense will not have been committed under Section 545.066 unless an operator both fails to stop before reaching a bus and then proceeds before the bus resumes motion, etc. But that interpretation will lead to the absurd result that, as long as an operator comes to a complete stop, proceeding in violation of subsection (2) cannot be an offense. After all, a court relying on this Court’s opinion today might say that, because the requirement and the prohibition are connected by the word “and,” that must mean that both must be proved before it can be said that an offense has been committed. And this is only one example of a similar statute found in the Transportation Code. There are many others that may be misconstrued by reliance on the Court’s opinion in this case. See, e.g., TEX. TRANSP. CODE § 545.253(a) (Busses to Stop at All Railroad Crossings); id. § 545.2535(a) (School Buses to Stop at All Railroad Crossings); id. § 545.254(a) (Vehicles Carrying Explosive Substances or Flammable Liquids); id. § 545.255(c) (Moving Heavy Equipment at Railroad Grade Crossing); id. § 545.2555(b) (Report and Investigation of Certain Railroad Crossing Violations); id. § 545.256 (Emerging From an Alley, Driveway, or Building); id. § 545.351(b) (Maximum Speed Requirement). I would adhere to the view of the four judges who joined Part II of the opinion announcing the Court’s judgment in Leming, non-binding though Part II might be. Because the Court today does not, for the HARDIN – 11 reasons outlined above, I respectfully dissent. FILED: November 2, 2022 PUBLISH	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481865/	Moncure, P., delivered the opinion of the court. This is a writ of error to a judgment of the Hustings-court of the city of Richmond, convicting the plaintiff in error, Mahala Johnson, of grand larceny, and sentencing her to confinement in the penitentiary for five years. The offence for which she was prosecuted is declared by the Code, chapter 192, section 14, as amended and re556enacted, first by the act passed February 20, 1866, Acts of 1865-6, p. 89, chap. 23, and again by the act passed March 1, 1867, acts of 1866-67, p. 709, chap. 283, which is in these words: “ § 14. If any person steal from the person of another money or other thing, of the value of five dollars or more, he shall be guilty of grand larceny, and be confined in the penitentiary for a period not less than five nor more than ten years.” The indictment strictly pursued the terms of the statute, and was good in form and substance. It charged the larceny of divers notes of the national currency of the United States, the same being United States treasury notes, the number and denomination of which were to the grand jurors unknown, for the payment of divers sums of money, in the whole amounting to the sum of six dollars, and of the value of six dollars; and divers other notes, &c. (describing them differently), the property and notes of one Alfred Jasper, the said sum of six dollars, &c., being then and there due and unsatisfied to the said Alfred Jasper, from the person and against the will of the said Alfred Jasper. The jury found the accused guilty, and ascertained the term of her confinement in the penitentiary at five years. She moved the court to set aside the verdict and grant her a new trial, upon the ground that the verdict was contrary to the law and the evidence; which motion the court overruled; and she excepted to the opinion of the court. The facts proved on the trial are certified in the bill of exceptions, and are as follows: “That Alfred Jasper was standing upon Cary street, in the city of Richmond, and was holding some money, six dollars, in his open hand, and was counting it, add that Mahala Johnson,the prisoner, came by and took the money out of uis baud 557and walked oft'; lie asked lier for it and several times begged her to return it to him as she walked off; that no force beyond what was necessary to withdraw the money was used; and that finding she would not return the monej7, and wishing to keep the peace, he went immediately to the station-house near by and got a warrant for her arrest, which was shortly afterwards executed upon the prisoner.” The only error in the j udgment assigned in the petition for a writ of error is, that, by the laws of Virginia, the offence of which the prisoner stands convicted cannot be considered larceny from the person. “ Tor in this State ” (she proceeds to say in her petition) “ that offence is divided into two classes, viz: ‘privately stealing,’ and ‘open and violent assault, commonly called robbery.’ And your petitioner is advised that the statute under which she was indicted was not designed for such cases as the one of which she was convicted, but for the cases of those commonly known as ‘pickpockets,’ who properly come under the first class mentioned, i. e., ‘privately stealing.’ ” There is no such offence known to the law of Virginia as “ private ” stealing, from the person of another or otherwise. The law makes no distinction between private and public stealing, except that robbery must, of necessity, be committed publicly. But it is not pretended that the offence in this case was robbery, and therefore nothing further need be said here as to the nature of that crime. There is nothing in our law on the subject of “pickpockets.” The law on which this prosecution is founded uses plain language: “ If any person steal from the person of another money or other thing,” &c. The charge here is in the very words of the statute, of stealing “ from the person of another,” and the proof corresponds literally with this charge in regard to stealing from the person of 558another. It is, that money to the amount aud value of six dollars, belonging to the prosecutor, and in his hands, was, by the prisoner, taken therefrom and carried away. Whether she did it animo furandi or not was a question which belonged to the jury, and they decided it against the prisoner, and the court below refused to set aside their verdict. There is a similar statute to ours in Massachusetts against “stealing from the person of another,” from which, probably, our statute was taken, in defiuiug the offence. That statute was construed by the Supreme court of that State in the Commonwealth v. Dimond, 3 Cush. R., 235, in which it was held, that “'to constitute the offence of larceny ‘by stealing from the person,’ within the Rev. Sts., c. 126, § 16, it is not necessary that the taking should be either openly or violently, or privily and fraudulently; but if it be with the knowledge, though without the dissent or resistance of the owner, the offence is equally committed, provided the taking be with an intention, on the part of the offender, to deprive the owner of his property.” Shaw, C. J., delivered the opinion of the court in that case, in which “it was argued that the act of the defendant, although admitted to be a larceny, is not a stealing from the person, within the meaning of the statute, and that, to make it a stealing from the person, it must either be done openly and against the consent of the party, or privily and without his knowledge. But it must be considered,” said the Chief Justice, “ that the law is somewhat altered in terms in the revised statutes, from the pre-existing law in the statute of 1804, c. 143, § 8, in which the words are: ‘larceny from the person of another, either openly and violently, or privily and fraudulently,’ implying that the act must be the one or the other. The language of the Revised Statutes, c. 126, § 16, is simply: ‘larceny by stealing from the person 559of another.’ The case is within the letter of the present L statute, and the court are of opinion that it is equally within its spirit and purpose.” That case goes further than ours in support of the view which we have presented; for there the old statute on the subject had been different in its terms, and it was argued that while the terms were altered the substance was not intended to be changed. If this case had occurred under the Massachusetts law no question would have been raised as to its coming within the statute, as the offence here was committed openly and against the consent of the party. The great question in that case was, whether the act could be said to be done against the consent of the owner, when the evidence only was that he did not express any assent or dissent. But this very question has already, in effect, been decided by this court, in refusing a writ of error to a j udgment which was rendered by the Corporation court for the city of Lynchburg on the 12th day of April 1878, in the ease of the Commonwealth against Hardwieke. The accused in that case was indicted under the statute in question for grand larceny in stealing a five-dollar note, the property of John Brooks, from the person of the said John Brooks, and was found guilty. A motion was made to set aside the verdict and grant a new trial; which was overruled, and a bill of exceptions was taken to the opinion of the court. It appeared from the facts proved on the trial, which were certified in the bill, that while the said Brooks was holding in his hand a five-dollar note which he was showing to the accused, the latter seized it and ran off with it; that the said Brooks pursued the prisoner, and with the aid of a policeman, whom he happened to meet in the street, he captured the . accused and recovered the money. The accused applied 560to this court for a writ of error to the judgment; and the principal error assigned in his petition was, that the offence proved was not such a one as the statute contemplated, it being contended that the statute was intended to apply only to pickpockets or to those who steal from the person of another secretly. But this court unanimously refused to grant a writ of error in the case. If, therefore, the error assigned in the petition were the only ground for reversing the judgment we would have to affirm it. But, after this ease had been submitted to the decision of the court upon the petition, the counsel for the plaintiff in error appeared in court, and in the presence of the attorney-general, assigned, ore ienus, an additional error in the judgment, viz: that the subject charged in the indictment to have been stolen consists of United States treasury notes and Uational Bank notes, whereas the subject stolen, as described in the certificate of facts contained in the bill of exceptions, was money, six dollars; it not appearing from the said certificate that the said money was such money as is described in the indictment; and, therefore, the jury were not warranted by the facts proved in finding a verdict against the prisoner. We have considered this additional assignment of error, and think it ought to be sustained. It is very probable that the money referred to in the certificate of facts was not specie, but consisted of such notes as are described in the indictment; and that the omission to certifyjthat fact proceeded from a mere oversight, arising from an idea of the court that the only object of the prisoner in taking the bill of exceptions was to bring up to this court for decision the question presented by the petition for a writ of error. However that may be, the bill of exceptions purports to contain a certificate of all the facts proved on the trial; and we can look only to-561that certificate to ascertain what facts wore so proved. Looking to that certificate for the facts, it does not appear that the offence proved by the evidence was the same offence charged in the indictment. "We are therefore of opinion that upon that ground the court below ought to have set aside the verdict and granted a new trial, and that for not having done so the judgment is erroneous and ought to be reversed, the verdict set aside, and the cause remanded for a new trial to be had therein. The judgment was as follows: The court is opinion, for reasons stated in writing and filed with the record, that to constitute the offence of grand larceny in stealing from the person of another money or other thing of the value of five dollars or more, created by the Code, chapter 192, section 14, as amended and re-enacted, first by the act passed February 20,1866 (Acts of 1865-6, p. 89, chap. 28), and again by the act passed March 1, 1867 (Acts of 1866-7, p. 709, chap. 283), it is not necessary that the thing shall be stolen privately. But the court is further of opinion that as it does not appear from the facts certified in the bill of exceptions, that the subject proved to have been stolen by the plaintiff in error from the person of another in this case consisted of United States treasury notes or national bank notes, which are the subject charged in the indictment to have been stolen, there is an apparent variance between the allegata and the probata, and the judgment is, on that ground, erroneous. Therefore it is considered that the same be reversed and annulled; and it is ordered that the verdict of the jury be set aside and the cause remanded for a new trial to be had therein. *562Which is ordered to be certified to the said Hustings & court of the city of Kichmond. T JUDGMENT REVERSED.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481866/	Moncure, P., delivered the opinion of the court. This is a writ of error to a judgment of the Hustings court of the city of Richmond, convicting the plaintiff in error, Mahala Johnson, of grand larceny, and sentencing her to confinement in the penitentiary for five years. The offence for which she "was prosecuted is declared by the Code, chapter 192, section 14, as amended and reenacted, first by the act passed February 20, 1866, Acts of 1865-6, p. 89, chap. 23, and again by the act passed March 1, 1867, acts of 1866-67, p. 709, chap. 283, which is in these words : “§ 14. If any person steal from the person of another money or. other thing, of the value of five dollars or more, he shall be guilty of grand larceny, and be confined in the penitentiary for a period not less than five nor more than ten years.” The indictment strictly pursued the terms of the statute, and was. good in form and substance. It charged the larceny of divers notes of the national currency of, the United States, .the same being United States treasury notes, the number and.denomination of which were to the grand . jurors unknown, for the payment of divers sums of money, in the whole amounting to the sum of six dollars, and of the value of six dollars; and divers other notes, &c. (describing them differently), the property and notes of one Alfred Jasper, the said sum of six dollars, &c., being then and there due and unsatisfied to the said Alfred Jasper, from the person and against the will of the said Alfred Jasper. The jury found the accused guilty, and ascertained the term of her confinement in the penitentiary at five years. She moved the court to set aside the verdict and grant her a new trial, upon the ground that the verdict was contrary to the law and the evidence; which motion the court overruled; and she excepted to the opinion of the court. The facts proved on the trial are certified in the bill of exceptions, and are as follows: “That Alfred Jasper was standing upon Cary street, in the city of Richmond, and was holding some money, six dollars, in his open hand, and was counting it, and that Mahala Johnson, the prisoner, came by and took the money out of his hand and walked off; he asked her for it and several times begged her to return it to him as she walked off; that no force beyond what was necessary to withdraw the money was used; and that finding she would not return the money, and wishing to keep the peace, he went immediately to the station-house near by and got a warrant for her arrest, which was shortly afterwards executed upon the prisoner.” The only error in the judgment assigned in the petition for a writ of error is, that, by the laws of Virginia, the offence of which the prisoner stands convicted cannot be considered larceny from the person. “For in this State” (she proceeds to say in her petition) “that offence is divided into two classes, viz: ‘privately stealing,’ and ‘open and violent assault, commonly called robbery. ’ And your petitioner is advised that the statute under which she was indicted was not designed for such cases as the one of which she was convicted, but for the cases of those commonly known as ‘pickpockets,’ who properly come under the first class mentioned, i. e., ‘privately stealing.’ ” There is no such offence known to the law of Virginia as “private” stealing, from the person of another or otherwise. The law makes no distinction between private and public stealing, except that robbery must, of necessity, be committed publicly. But it is not pretended that the offence in this case was robbery, and therefore nothing further need be said here as to the nature of that crime. There is nothing in our law on the subject of “pickpockets.” The ’aw on which this prosecution is founded uses plain language: "If any person steal from the person of another money or other thing," &c. The charge here is in the very words of the statute, of stealing ‘ ‘from the person of another,” and the proof corresponds literally with this charge in regard to stealing from the person of another. It is, that money to the amount and value of six dollars, belonging to the pros195ecutor, and in his hands, was, by the prisoner, taken therefrom and carried away. Whether she did it animo furandi or not was a question which belonged to the jury, and they decided it against the prisoner, and the court below refused to set aside their verdict. There is a similar statute to ours in Massachusetts against “stealing from the person of another,” from which, probably, our statute was taken, in defining the offence. That statute was construed by the Supreme court of that State in the Commonwealth v. Dimond, 3 Cush. R., 235, in which it was held, that “to constitute the offence of larceny ‘by stealing from the person,’ within the Rev. Sts., c. 126, § 16, it is not necessary that the taking should be either openly or violently, or privily and fraudulently; but if it be with the knowledge, though without the dissent or resistance of the owner, the offence is equally committed, provided the taking be with an intention, on the part of the offender, to deprive the owner of his property.” Shaw, C. J., delivered the opinion of the court in that case, in which “it was argued that the act of the defendant, although admitted to be a larceny, is not a stealing from the person, within the meaning of the statute, and that, to make it a stealing from the person, it must either be done openly and against the consent of the party, or privily and without his knowledge. But it must be considered, ” said the Chief Justice, “that the law is somewhat altered in terms in the revised statutes, from the pre-existing law in the statute of 1804, c. 143, § 8, in which the words are: ‘larceny from the person of another, either openly and violently, or privily a nd fraudulently, ’ implying that the act must be the one or the other. The language of the Revised Statutes, c. 126, § 16, is simply: ‘larceny by stealing from the person of another. ’ The case is within the letter of the present statute, and the court are of opinion that it is equally within its spirit and purpose.” That case goes further than ours in support of the view which we have presented; for there the old statute on the subject had been different in its terms, and it was argued that while the terms were altered the substance was not intended to be changed. If this case had occurred under the Massachusetts law no question would have been raised as to its coming within the statute, as the offence here was committed openly and against the consent of the party. The great question in that case was, whether the act could be said to be done against the consent of the owner, when the evidence only was that he did not express any assent or dissent. But this very question has already, in effect, been decided by this court, in refusing a writ of error to a judgment which was rendered by the Corporation court for the city of Lynchburg on the 12th day of April 1873, in the case of the Commonwealth against Hardwicke. The accused in that' case was indicted under the statute in question for grand larceny in stealing a five-dollar note, the property of John Brooks, from the person of the said John Brooks, and was found guilty. A motion was made to set aside the verdict and grant a new trial; which was overruled, and a bill of exceptions was taken to the opinion of the court. It appeared from the facts proved on the trial, which were certified in the bill, that while the said Brooks was holding in his hand a five-dollar note which he was showing to the accused, the latter seized it and ran off with it; that the said Birookd pursued the prisoner, and with the aid of a policeman, whom he happened to meet in the street, he captured the accused and re-covered the money. The accused applied to this court for a writ of error to the judgment; and the principal error assigned in his petition was, that the offence proved was not such -a one as the statute contemplated, it being contended that the statute was intended to apply only to pickpockets or to those who steal from the person of another secretly. But this court unanimously refused to grant a writ of error in the case. If, therefore, the error assigned in the petition were the only ground for reversing the judgment we would have to affirm it. But, after this case had been submitted to the decision of the court upon the petition, the counsel for the plaintiff in error appeared in court, and in the presence of the attorney-general, assigned, ore tenus, an additional error in the judgment, viz: that the subject charged in the indictment to have been stolen consists of United States treasury notes and National Bank notes, whereas the subject stolen, as described in the certificate of facts contained in the bill of exceptions, was money, six dollars; it not appearing from the said certificate that-the said money was such money as is described in the indictment; and, therefore, the jury were not warranted by the facts proved in finding a verdict against the prisoner. We have considered this additional assignment of error, and think it ought to be sustained. It is very probable that the money referred to in the certificate of facts was not specie, but consisted of such notes as are described in the indictment; and that the omission to certify that fact proceeded from a mere oversight, arising from an idea of the court that the only object of the prisoner in taking the bill of exceptions was to bring up to this court for decision the question presented by the petition for a writ of error. However that may be, the bill of exceptions purports to contain a certificate of all the facts proved on the trial; and we can look only to that certificate to ascertain what facts were so proved. Looking to that certificate for the facts, it does not appear that the offence proved by the evidence was the same offence charged in the indictment. We are therefore of opinion that upon that ground the court below ought to have set aside the verdict and granted a new trial, and that for not having done so the 196judgment is erroneous and ought to be reversed, the verdict set aside, and the cause remanded for a new trial to lie had therein. The judgment was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that to constitute the offence of grand larceny in stealing from the person of another money or other thing of the value of five dollars or more, created by the Code, chapter 192, section 14, as amended and re-enacted, first by the act passed February 20, 1866 (Acts of 1865-6, p. 89, chap. 23), and again by act passed March 1, 1867 (Acts of 1866-7, p. 709, chap. 283), it is not necessary that the thing shall be stolen privately. But the court is further of opinion that as it does not appear from the facts certified in the bill of exceptions, that the subject proved to have been stolen by the plaintiff in error from the person of another in this case consisted of United States treasury notes or national bank notes, which are the subject charged in the indictment to have been stolen, there is an apparent variance between the allegata and the probata, and the judgment is, on that ground, erroneous. Therefore it is considered that the same be reversed and annulled; and it is ordered that the verdict of the jury be set aside and the cause remanded for a new trial to be had therein. Which is ordered to be certified- to the said Hustings court of the city of Richmond. Judgment reversed. LARCENY. I. Jurisdiction. II. Form of Indictment. III. Táking and Asportation. IV. -Kind of Property. V. Owner. VI. Evidence. VII. Verdict. VIII. Punishment. IX. Appeal. I. JURISDICTION. Habeas Corpus.—A free negro or mulatto sentenced to the penitentiary by a court of oyer and terminer for the larceny of $20 is illegally detained and may be discharged under a writ of habeas corpus. According to the act passed the 15th of March 1832, the court had no jurisdiction to make such sentence. Cropper v. Com., 2 Rob. 842. Offence Committed Outside the Commonwealth.— Under act of 1786, re-enacted in 1792, a prisoner was indicted, tried and convicted of feloniously stealing the horse of another citizen of this commonwealth, in a place beyond the limits of the same. Com. v. Gaines, 2 Va. Cas. 172. Offence Committed in Another County.—All the writers at common law, lay it down, that, if goods be stolen in one county, and carried into another, the offender may be indicted in either, because the offence is complete in both. Com. v. Cousins, 2 Leigh 708. Offence in Another Country.—Where goods were stolen in one country and brought by the thief into another country, the latter country, by the English common law, and in the absence of statute, has no jurisdiction. Va. Code 1887, § 3890; Strouther v. Com., 92 Va. 789, 22 S. E. Rep. 852. Time of Examining Trial.—The requirement of five days between the commitment of the magistrate and the sitting of the examining courtis satisfied by five intervening days including one of these days and excluding the other. Both days need not be excluded. And it is immaterial that one of these days is Sunday. Thompson v. Com., 2 Va. Cas. 135; Boyd v. Com., 1 Rob. 691. Allegation of Jurisdiction.—It is error for the circuit court to refuse to set aside the verdict of the jury when there is no evidence in the record showing the offense was committed within its jurisdiction. Hoover v. State, 1 W. Va. 336; Va. Code 1887, § 3999; W. Va. Code 1899, ch. 158, § 10. Jurisdiction of Corporation Courts.—Corporation courts, in cities or towns containing a population of five thousand, have the same jurisdiction, by act of assembly approved April 2, 1870, to try offences committed within their respective limits, that either the circuit or county courts have to try offences within their jurisdiction. Nor was this power taken away by act of April 2, 1873, to regulate jurisdiction of county and circuit courts. Dull v. Com., 25 Gratt. 965-86. (1875.) Under 1 Rev. Code, p. 246, ch. 71, § 7, a county or corporation court had no jurisdiction to try an indictment for petit larceny which alleged a previous conviction for a similar offence. Rider v. Com., 16 Gratt. 499. Jurisdiction of Mayors.—The mayor of Lynchburg by § 1, of the act of March 30, 1871, has concurrent jurisdiction with the corporation court of all petit larcenies, and a sentence by him of the prisoner for petit larceny is sufficient, on a second trial for a similar offence, to bring the accused within the penalty of ch. 199, § 27, of Va. Code 1849; Thomas v. Com., 22 Gratt. 912; Va. Code. 1887, § 3907; Miller v. Com., 88 Va. 618, 14 S. E. Rep. 161; Brown v. Epps, 91 Va. 726, 21 S. E. Rep. 119; Wolverton v. Com., 75 Va. 909. Jurisdiction of Circuit Court.—A free negro was convicted of grand larceny in the corporation court under statute of 1831-2, ch. 22. Held, a writ of error does not lie to that court from the circuit superior court. Anderson v. Com., 5 Leigh 803 [740]. II. FORM OF INDICTMENT. Idem Sonans.—Whether or not two or more names are idem sonans, may be determined by the court upon amere comparison, where the issue is free from doubt; but the modem and approved practice is to submit the question to a jury wherever there is doubt on the question. In this case “Bolen” was held idem sonans with “Bolden." Pitsnogle v. Com., 91 Va. 808, 22 S. E. Rep. 351. Consent.—An indictment for taking and removing a slave from one county to another, with intent to defraud the owner,should state thatsuch taking and removing was without the consent of the owner. Com. v. Peas, 2 Gratt. 629. Misjoinder.—It is not error on an indictment for larceny, to state the incidental circumstances of the crime in various ways to meet the varying phases of proof. Nor will the court in such case compel the prosecutor to elect a single count on which to try the prisoner. Dowdy v. Com., 9 Gratt. 727; Hausenfluck v. Com., 85 Va. 702, 8 S. E. Rep. 683; Anthony v. Com., 88 Va. 847, 14 S. E. Rep. 834. 197Obtaining money or other property by false pretences with intent to defraud is made larceny by statute, if the property so obtained may be the subject of larceny: and it is. therefore, not misjoinder to add such a count to a count for simple larceny. Anthony v. Com., 88 Va. 847, 14 S. E. Rep. 834. Where several articles of property are stolen at the same time and place, though the stolen goods belong to different persons, the stealing is regarded as one transaction, and, therefore, as one offence which may be charged in a single count. Alexander v. Com., 90 Va. 809. 20 S. E. Rep. 782. It was not misjoinder for an indictment to charge in one count a conspiracy to commit larceny and in another count charge the larceny in accordance with the conspiracy. Anthony v. Com., 88 Va. 847, 14 S. E. Rep. 834. Conclusion of Indictment. — Where the statute neither creates the offence, nor adds a new penalty, but only takes away some benefit which the common law allowed the prisoner the indictment need not conclude “contra formam statuti." Certainly such omission is cured after verdict by the statute of jeofails. Chiles v. Com., 2 Va. Cas. 260; Va. Code 1887, § 3999; Va. Const., art. VI, § 26; W. Va. Const., art. II. § 8; Lemons v. State. 4 W. Va. 755. Where the statute makes that an offence was not so at common law, the indictment therefor must conclude as prescribed by the statute. Com. v. Hays, 1 Va. Cas. 122. False Pretences.— An indictment for obtaining money under false pretences, which by Va. Code 1860. p. 796, § 49 (Va. Code 1887, § 3722) is made larceny, may either be for larceny generally, or for the specific acts which this statute says shall be deemed larceny. Leftwich v. Com., 20 Gratt. 716; Duff v. Com., 92 Va. 769, 23 S. E. Rep. 643; Dull v. Com., 25 Gratt. 965-982; Anable v. Com., 24 Gratt. 578. Removal of Goods Distrained.—An indictment for fraudulently removing goods which have been levied on or distrained, which by Va. Code 1887, § 3712, is made larceny, may either be for larceny generally or in terms of the statute or language equivalent thereto. Duff v. Com., 92 Va. 769, 23 S. E. Rep. 643. Offence Felonious.-Where a felony is charged the indictment should state that the offence was committed feloniously. Barker v. Com., 2 Va. Cas. 122; Dull v. Com., 25 Gratt. 965: State v. Vest, 21 W. Va. 796. Description of Property.—In an indictment under the statute making writings and papers of value the subject of larceny, a description of the papers by the name and designation by which they are usually known, and which properly avers the value thereof, is sufficient. Fredrick v. State, 3 W. Va. 695; Pollard's Supp. 1900, § 3994. A description of bank notes which merely states that they were bank notes current within the United States, was held sufficient. Com. v. Moseley, 2 Va. Cas. 154. But an indictment for obtaining “United States currency” by false pretences is not sufficient. There is no law making the stealing of “United States currency,” eo nomine, larceny. Such an indictment is too vague. Leftwich v. Com., 20 Gratt. 716. Under act Feb. 28, 1874, amending § 6 ch. 201, of Code of 1873, an indictment charging the larceny of “United States currency” is sufficient. Dull v. Com., 25 Gratt. 965-974; Va. Code 1887, § 3994. In an indictment for stealing certain notes “purporting on their faces to be, and being notes of banks chartered, etc..” held. the words “and being notes of banks chartered” may be rejected as surplusage, and no proof of such charter is necessary. Pomeroy v. Com., 2 Va. Cas. 342. A charge of larceny of certain paper, of the value of one hundred and ten dollars, without further description thereof is too indefinite. Robinson v. Com., 32 Gratt. 866. Value.—Under the statute making bank notes the subject of larceny no value need be shown. The statute now provides that they shall be deemed to be of the value expressed on their face. Adams v. Com., 23 Gratt. 949; Whalen v. Com., 90 Va. 544, 19 S. E. Rep. 182; Va. Code 1887, § 3709. Tire indictment need not state that the check alleged to have been stolen, remained unsatisfied or unpaid. Whalen v. Com., 90 Va. 544, 19 S. E. Rep. 182. The substitution of the word “price” for “value” is not fatal to an indictment for larceny. The object of stating the value is merely to determine the grade of the offence, and either is sufficient to give the accused notice of the charge preferred against him State v. Sparks, 30 W. Va. 101, 3 S. E. Rep. 40. III. TAKING AND ASPORTATION. In any simple larceny there must be a felonious and complete severance of the property from the possession of the owner thereof, and the thief must have had, at least for an instant of time, complete and absolute control and possession of the stolen property; but where the property has been feloniously taken, the slightest removal, even if it be but a hair’s breadth, with intent to steal the same, is sufficient. State v. Chambers, 22 W. Va. 799; Whalen v. Com., 90 Va. 544, 19 S. E. Rep. 182; Wolverton v. Com., 75 Va. 909; Barker v. Com., 2 Va. Cas. 122. If by fraud or device the owner (not intending to part with his right) be induced to place his property in the hands of another, who acquires possession with a felonious intent to convert it to his own use, the “taking” and trespass are such as are required to complete the offence of larceny. Vaughn v. Com., 10 Gratt. 762; Starkie v. Com., 7 Leigh 752; Walker v. Com., 8 Leigh 743; Johnson v. Com., 24 Gratt. 555. See dissenting opinion in Anable v. Com., 24 Gratt. 563. It must be shown that the original taking was felonious, but the jury has a right to infer from all the facts and circumstances of the case, the felonious intent in the original taking. Tanner v. Com., 14 Gratt. 635; Booth v. Com., 4 Gratt. 526; Blunt v. Com., 4 Leigh 689; Hall v. Com., 78 Va. 678; Perrin v. Com., 87 Va. 554, 13 S. E. Rep. 76; Dull v. Com., 25 Gratt. 965; Richards v. Com., 13 Gratt. 803; Shinn v. Com., 32 Gratt. 899. IV. KIND OF PROPERTY. Goods Lost.—The finder of lost property who, knowing or having reason to know the true owner, appropriates it to his own use is guilty of the larceny thereof. Tanner v. Com., 14 Gratt. 635; Perrin v. Com., 87 Va. 554, 13 S. E. Rep. 76. Bond. —An obligor who obtains possession of his bond by fraud Uteri causa, is guilty of the larceny thereof. And it is no defence that he did not know that his act amounted to larceny. Vaughn v. Com., 10 Gratt. 758. Bank Notes.—Under the act of 1806, a prosecution maybe had for stealing bank notes of another State. The passing of the note as genuine is prima facie evidence that the note is of some value. Robinson v. Com., 32 Gratt. 866; Cummings v. Com., 2 Va. Cas. 128; Com. v. Moseley, 2 Va. Cas. 154; Angel v. Com., 2 198Va. Cas. 228; Pomeroy v. Com., 2 Va. Cas. 342; Moore v. Com., 2 Leigh 761 [702]; Leftwich v. Com., 20 Gratt. 716; Adams v. Com., 23 Gratt. 949; Va. Code 1887, § 3708. Kind of Property.—Checks, kept and used for gambling contrary to the statute, can be the subject of larceny. To hold otherwise would be to run the hazard of encouraging larceny by discouraging gaming. Bales v. State, 3 W. Va. 685. In Davenport v. Com., 1 Leigh 588, it was held that a slave was a subject of larceny. Va. Code 1887, § 3713. See Va. Code 1887. §§ 3710, 3711, 3713, 3717, 3718, and 3719. V. OWNER. The record of the emminino court need not show that the goods stolen were the property of any person. An indictment should, however, give the name of the owner or átate that the goods belong to a person or persons to the jurors unknown; and a statement defective in this respect is not cured by the statute of jeofails. Halkem v. Com., 2 Va. Cas. 4; Mabry v. Com., 2 Va. Cas. 396; Barker v. Com., 2 Va. Cas. 122; Dowdy v. Com., 9 Gratt. 727; Com. v. Moseley, 2 Va. Cas. 154. Allegata and Probata.—If the indictment state the narhe of the owner, the proof at the trial must show the property stolen was the property of that person. Jones v. Com., 17 Gratt. 563; Kobinson v. Com., 32 Gratt. 866. Harried Woman.—An indictment for larceny should not allege ownership in a married woman, but goods in her possession should be laid as the goods of her husband. Hughes v. Com., 17 Gratt. 565. See Va. Code, 1887, ch. 103. Possession.—The indictment need not aver that the property was taken from the possession of the owner, or from the possession of any other person. Thompson v. Com., 2 Va. Cas. 135; Angel v. Com., 2 Va. Cas. 228. An indictment for the larceny of a slave, of the goods and chattels of E. E. and out of the possession .of the said E. E. was held not sufficient, it appearing that the slave was hired to B and at the time of the larceny in the actual possession of B. Com. v. Williams, 1 Va. Cas. 14. Capacity of Owner.—On an indictment for larceny of property belonging to the President, Director and Go. of the Farmers’ of Virginia, the court, after verdict, is bound to presume, that on the trial the capacity of this company to hold property i. e., the corporate existence, was proved to the jury, or admitted by the prisoner. Lithgow v. Com., 2 Va.Cas. 297. Evidence of Ownership.—Upon an indictment for stealing a horse, it is entirely competent for the commonwealth to establish the ownership of the animal by the son in the absence of the father from the state. Taylor v. Com., 77 Va. 692. West Virginia Rule.—In a prosecution for stealing any personal estate it shall be sufficient to prove that when the offence was committed, the actual or constructive possession in whole, or any part of such estate was in the person alleged in the indictment to be the owner thereof. State v. Chambers, 22 W. Va. 784; Va. Code 1887, § 3996; State v. Heaton, 23 W. Va. 781; Richards v. Com., 13 Gratt. 803. Injury to Owner.—A having $1,649 to his credit, draws warrants for an amount exceeding that sum. Warrants are paid in the order of registry. Awas indicted for larceny of a check given in payment of one of the warrants. Held, since there was sufficient money to A’s credit to pay. that warrant and all registered before it, that A could not be convicted of the larceny charged. Anable v. Com., 24 Gratt. 563, VI. EVIDENCE. Other Offences.—On indictment for stealing a watch, proof of the theft of a clock is inadmissible. To allow it would suffer the prisoner to be taken by surprise and would tend to prejudice the jury against him. Walker v. Com., 1 Leigh 574; Robinson v. Com., 32 Gratt. 866. Res Gestas.—On indictment for larceny the commonwealth may prove the presence of the prisoner in the hotel on the night in question, and his acts and conduct therein, not for the purpose of establishing another distinct felony, but as a part of the whole transaction. Burr v. Com., 4 Gratt. 534. Proof of Receiving Stolen Goods.—Under Va. Code 1886, p. 789, § 20 (Va. Code 1887, § 3714) an indictment charging the prisoner with receiving a horse, knowing it to have been feloniously stolen, is sufficient to sustain a conviction for the larceny of said animal. Price v. Com., 21 Gratt. 846; Hey v. Com., 32 Gratt. 946; See Va. Code 1887, §§ 3402, 3712; Pollard’s Supp., §§ 3715, 3719a. In Rutherford v. Com., 2 Va. Cas. 141, it was held that a bank note was not “goods” within the meaning of the act of 1792 against receiving stolen goods. Va. Code 1887, § 3714; Pollard’s Supp. 1900, § 3714a. Proof of Embezzlement.—An indictment for larceny is sustained by proof of embezzlement. Pitsnogle v. Com., 91 Va. 808, 22 S. E. Rep. 351; Va. Code 1887, § 3716; Shinn v. Com., 32 Gratt. 899, and note. One who draws a check on another, with the intention of using the same for his own purpose, and not for the liquidation of the latter’s indebtedness, though probably with the intent to return the same at some future day is guilty of embezzlement of the funds obtained by said check. Shinn v. Com., 32 Gratt. 899. Proof of False Pretences.—An indictment for larceny is sustained by proof that accused obtained the money by false pretences. Anable v. Com., 24 Gratt. 563; Trogdon v. Com., 31 Gratt. 862, and note; Leftwich v. Com., 20 Gratt. 716; Fay v. Com., 28 Gratt. 912; State v. Halida, 28 W. Va. 499; Va. Code, 1887, § 3722; Anthony v. Com., 88 Va. 847, 14 S. E. Rep. 834. Insanity.—On indictment for larceny the plea of “not guilty” puts the prisoner’s sanity in issue. If at the time of the trial there is reasonable ground to doubt the prisoner’s sanity the trial should be suspended until this question is determined. Gruber v. State, 3 W. Va. 699; Va. Code 1887, § 4031; W. Va. Code 1899, ch. 159, p. 1020. Possession of Evidence.—The mere possession of goods which had been actually lost does not furnish any conclusive or prima facie proof of guilt; of itself it does not raise the suspicion of guilt. Hunt v. Com., 13 Gratt. 757; Tanner v. Com., 14 Gratt. 635; Perrin v. Com., 87 Va. 554, 13 S. E. Rep. 76. Exclusive possession of goods recently stolen raises a presumption that the one in possession is the thief. What possession is such recent possession is a question for the jury. Price v. Com., 21 Gratt. 846; Porterfield v. Com., 91 Va. 801, 22 S. E. Rep. 352; Taliaferro v. Com., 77 Va. 411. See contra, State v. Heaton, 23 W. Va. 773; State v. Reece, 27 W. Va. 379. As to presumption in case of compound larceny, see monographic note on “Burglary” appended to Clarke v. Com., 25 Gratt. 908. VII. VERDICT. Surplusage.—In Harvey v. Com., 23 Gratt. 941, the jury, though not authorized so to do, fixed the punishment 199of the prisoner. The court sentenced Mm accordingly, field, the jury’s act was mere surplus-age, the imprisonment being the act of the court. House v. Com., 8 Leigh 755. General Verdict.—A general verdict on an indictment for a misdemeanor Is not a conviction of a felony though the offence is charged to have been done “feloniously.” The word “feloniously” in such case is only used to characterize the intent with which the taking and carrying away were done. Wolverton v. Com., 75 Va. 909. If one of three subjects mentioned in an indictment, might be the subject of larceny, judgment will not be arrested. Harvey v. Com., 23 Gratt. 941. Former Conviction of Similar Offence.—One count of an indictment charges larceny; the other count charges larceny after a former conviction of a similar offence. A verdict of guilty on both counts will not be disturbed. Stroup v. Com., 1 Rob. 754. On indictment the prisoner was charged in one count with petit larceny; in another count with petit larceny after a previous conviction of the same offence. The jury found her guilty on both counts and fixed the punishment at five years in the penitentiary. Held, the verdict was not open to objection. Stroup v. Com., 1 Rob. 754: Va. Code, 1887, §§ 3905, 3907; Stover v. Com., 93 Va. 780, 23 S. E. Rep. 874. Conviction of Lower Offence.—A conviction of petit larceny on an indictment for grand larceny is sufficient though the verdict does not ascertain what goods were stolen nor the value of said goods. Poindexter v. Com., 6 Rand. 667. VIII. PUNISHHENT. Grade of Offence.—When the evidence shows larceny of goods (not from the person) whose aggregate value is less than fifty dollars the offence is not a felony. Alexander v. Com., 90 Va. 809, 20 S. E. Rep. 782; Benton v. Com., 89 Va. 570, 16 S. E. Rep. 725. Punishment for Horse Stealing.—Under acts of 1865-6, p. 88, the minimum punishment for horse stealing was five years. The jury found accused guilty of that offence and fixed his punishment at confinement for three years. In such case, on reversal of the judgment, the prisoner will not be discharged, but remanded for a new trial. Jones v. Com., 20 Gratt. 848. The act of 1819, 1 Rev. Code, ch. 152, p. 575, in relation to horse stealing was repealed by the act of March 14th, 1848. ch. 4. § 15. Lanthrop v. Com., 6 Gratt. 671; Va. Code 1887, § 3707; Pollard’s Supp. 1900, § 3707. Punishment of Negro for Grand Larceny.—The act of February 2, 1873, ch. 32. § 3, provided that the punishment for grand larceny, in the case of a free negro or mulatto, should be that the prisoner receive stripes in the discretion of the jury and be sold into slavery. The said act was held not contrary to the constitution of the state. Com. v. Shelton, 2 Va. Cas. 384; Aldridge v. Com., 2 Va. Cas. 447. Punishment for Two Offences.—A count for larceny may be added to a count for housebreaking with intent to steal, and in such case the jury may find the prisoner guilty on both counts and fix a several punishment for each offense. Speers v. Com., 17 Gratt. 570. See monographic note on “Burglary.” See monographic note on “Autrefois Acquit” appended to Page v. Com., 26 Gratt. 943; monographic note on “Continuances” appended to Harman v. Howe, 27 Gratt. 676, and Va. Code 1887, § 3889. IX. APPEAL. By acts 1870-71, p. 362, one tried by a justice of the peace, for petit larceny, and convicted, has an absolute right of appeal to the county court. And such person is entitled to a trial by jury. Read v. Com., 24 Gratt. 618. In a criminal case, a writ of error lies only where there has been a conviction of a felony or misdemeanor in a circuit court, or where a conviction had in an inferior court has been affirmed by the circuit court. State v. Daugherty, 39 W. Va. 470, 19 S. E. Rep. 872; W. Va. Code 1899, ch. 159, § 7, p. 1019; Va. Code 1887, § 4026.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481868/	Bouldin, J., concurred in the opinion that the offence might be prosecuted under the indictment. He also concurred in the opinion of Christian, J., as to the re*601fusal of the first instruction, and thought that the court below erred in refusiug to give the sixth instruction. The allegata probata must be the same. He referred to Johnson’s case supra. Here there is no proof that Anable ever saw this cheek, or had any connection with it. There was an agent and sub-agent, and the latter was only the agent of the former, not .of An able. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481869/	Bouldin, J., delivered the opinion of the court. The first error assigned in this case is, that the court, after setting aside the verdict of the jury and awarding-the prisoner a new trial, should not have again put him on his trial at the same term of the court. It is not pretended that there is any law requiring, or even authorizing, a continuance of the case, under such circumstances, until the next term of the court, if in the opinion of the court it may be convenient or expedient to try the case at the same term. On the contrary, by the policy of our laws, by which criminal cases are always deemed privileged, and by the provisions of the tenth section of the bill of rights, which guarantees to the accused a speedy trial by jury, it would seem manifest that the court is not only authorized, but that it is its duty to proceed with the trial at the same term, if justified by the state of the docket; and of this the court is the proper and only judge. "We are of opinion, therefore, that there was no error in setting down the case for trial at the same term. The second error assigned is, the refusal of the court to grant the accused a continuance of the cause. This was asked on two grounds: The first ground was, that it was unusual to hurry the accused into trial at the term of the court at which there had already been a trial of I1Í3 cause. This is 609substantially the question already disposed of under the first assignment of error. There being not even a suggestion that any witness was absent, or that by delay any additional testimony on behalf of the accused could be produced, we think that the reason assigned was no ground for a continuance. The next ground was, that the accused had called for a copy of the indictment against him and a list of the jurors summoned to try him, which he did not receive until he was set to the bar on the day of the commencement of his trial. We think there was no error in refusing to grant a continuance for this reason. It is certainly true that the law entitles the accused to a copy of the indictment and a list of the persons summoned as jurors to try him, but it prescribes no time in which this shall be furnished. It was in fact furnished in this case before his trial commenced. He needed no time to understand the indictment, for he had already, and at the same term, been tried on that indictment. The list of jurors was placed in his hands before the trial commenced, and the court doubtless did allow him, or if asked would have allowed him, a reasonable time to examine it. Whether that reasonable time should have been one day or less is a question not before us, because no such motion was made to the court below. The motion was, not for this reasonable delay to examine the list, but for a continuance of the cause until the next term; and this court is of opinion that the motion was properly overruled. The next assignment of error is, to the refusal of the court below to quash the venire facias issued in the cause, and the return thereon. The first reason assigned for quashing the venire facias is, that it was defective and not issued in accordance with 610the statute. That in this case, in which jurors were wanted from beyond the limits of the corporation, and beyond the ordinary jurisdiction of the court, they should have been brought or summoned not by venire facias but by order of the court; and to sustain this objection reference is made to Sess. Acts 1871-’2, p. 84, § 10. That act provides that “in a criminal case in any court, if qualified jurors not exempt from serving'cannot be conveniently found in the county or corporation in which the trial is to be,-the court may cause so many as may be necessary of such jurors to be summoned from any other county or corporation by the sheriff or sergeant thereof, or by its own officer.” It will be seen that nothing is said in the act about the form of process by and under which the jurors aforesaid shall be summoned — ■ whether by venire facias or a simple summons. All that the act requires is, that the judge shall cause them, to be .summoned; leaving it to his discretion entirely how they are to be summoned. In this case the court entered a formal order in the cause, directing the clerk to issue a venire facias, requiring the sergeant of the corporation to summon from, the body of the county of Pittsylvania twenty-four lawfully qualified jurors, &e., &c.; and under this order the clerk issued the very process ordered by the court. The statute required the court to cause the jurors to be summoned. The court did cause them to be summoned by venire facias, and they obeyed the summons. Ve can see no violation of law in this pi’oceeding. On the contrary, the object of the law is fully and in terms accomplished by it. The fact that the clerk may, and indeed must, without formal order of court, issue writs of venire facias within bis county or corporation in proper cases, certainly cannot have the effect of rendering illegal such a writ 611when issued by the clerk to another county or. corporation, under the direct authority and express order of the •court, in a proper case for such order. This court is of opinion that there was no error in the refusal of the court below to quash the venire faeias for the reason stated. Hor did that court err in refusing to quash the return and writ for the reason secondly assigned, viz: that the judge had not given his consent in writing to the appointment of the deputy who executed and returned the writ. That deputy appeared before the judge of the court •during the recess of the court, and took the oath of office, which was in writing, was subscribed by the deputy, and was certified in writing by the judge himself. This was regarded by the judge as a sufficient consent in writing on his part to the appointment of the •deputy; and this court concurs in that opinion. The fourth assignment of error is, that “ the court erred in not sustaining the prisoner’s challenge to the array of jurors,” for reasons set forth in his fourth bill of exceptions. The first and second reasons assigned in this bill, of exceptions have been already disposed of in considering the third assignment of error. The third reason assigned presents greater difficulty and deserves a more serious consideration. It is that the Corporation court of Danville has’no power to summon a jury from beyond the limits of the corporation in a criminal prosecution. The power in a criminal case to summon a jury from beyond the limits of the county or corporation is confined, it is contended, by the amended act of February 11th 1873, Sess. Acts ’72-3, chap. 97, p. 80, to the Circuit courts alone. The power referred to prior to that amended act had been conferred on “any court” in a criminal case, and thus clearly embraced Corpora612tion courts. It is true that the tenth section of the Code of 1860, which conferred the power, as amended by the act aforesaid of February 11, 1873, strikes out the words “ any court,” and refers in terms only to “ Circuit courts;” but it does not follow as a necessary consequence that such power can only be exercised by those courts. The power and jurisdiction of Corporation courts generally, as at present organized, are nowhere prescribed and defined in detail by separate express legislation. The jurisdiction of these courts has been generally conferred, both in the Constitution of the State and in the Acts of Assembly under that Constitution, by reference to the jurisdiction of other courts, and chiefly of the Circuit courts, without stating in the grant of jurisdiction, otherwise than by reference as aforesaid, what that jurisdiction is, except in some special cases. Thus the 14th section of the 6th article of the State Constitution provides as follows : “ For each city or town in the State containing a population of five thousand, shall be elected on the joint vote of the two houses of the general assembly, one city judge, who shall hold a Corporation or Hustings court of said city or town as often and as many days in each month as may be prescribed by law, ioith similar jurisdiction which may he given by law to the Circuit courts of this State,” &c., &c. ¥e are thus referred hy the Constitution itself to the jurisdiction “ which may be given by law to the Circuit courts of the State,” for the extent and character of jurisdiction conferred on the’Corpoi’ation courts; and it would seem from the peculiar terms of the Constitution, that it was the purpose of the framers that whatever jurisdiction might, from timerto time, be conferred on the Circuit courts, would, ipso facto ^attach to the Corporation courts. In prescribing and defining the jurisdiction of the Corporation courts under this law, we find that the legis613lature has pursued the same course. By the act of April 2d, 1870, “ entitled an act to prescribe and define the jurisdiction of the County and Corporation courts of this Commonwealth, and the times and places of holding the same,” Sess. Acts 1870-71, ch. 38, § 7, p. 36, the jurisdiction of the Corporation courts is prescribed and defined as follows: “ § 7. The'several Corporation courts shall, within their respective limits, have the same jurisdiction as the Circuit courts, and the same jurisdiction as County courts, over all offences committed within their limits: provided, that the provisions of this section shall not apply to the courts of the city of Richmond.” And by the act of May 19th, 1870, Sess. Acts 1870-71, ch. 96, p. 117, this section was so amended as to extend the jurisdiction of Corporation courts by the addition of the following words, after the grant to those courts of the criminal jurisdiction of the County courts, viz: xt and also jurisdiction in all other cases which were cognizable by the former Husting courts of the respective cities, under the laws as they existed on the 26th day of January, eighteen hundred and seventy.” These are the provisions under which the Corporation •courts, except that of the city of Richmond, exercise their general powers and jurisdiction; and it will be seen, .as we have already said, that their general jurisdiction is prescribed and defined, not by a separate enumeration ■of their powers and duties, but by reference to the jurisdiction of other courts. When, therefore, in a criminal case, we wish to ascertain what are the powers and •duties of a Corporation court, (other than that of the city ■of Richmond,) we are referred by the Constitution and the laws to the jurisdiction of the Circuit courts; to the powers and duties of those tribunals in such case; and "the same jurisdiction precisely is conferred on the Cor614poration courts. Jurisdiction is defined by both Bouvier and Burrill as follows: “ Jurisdiction is a power-constitution ally conferred upon a court, a single judge or a magistrate, to take cognizance of and decide causes according to law, and to carry their sentence into execution ;” and by the latter, in a more general sense, “power- or right to exercise authority.” The power and authority of the Circuit courts of the State in a criminal case — their-jurisdiction, extends to and embraces the power and duty of summoning, under circumstances, an impartial and duly qualified jury from beyond the limits of the county or corporation; and this being a most important and valuable safeguard to an impartial trial, as well on the-part of the prisoner as of the Commonwealth, we can see-no reason in favor of its exercise by a Circuit court, which would not apply a fortiori to the Corporation courts when exercising the grave functions of a criminal tribunal. Ve say a fortiori, because, from the necessarily contracted limits of such corporations, the necessity for the exercise of this wholesome power must more readily and frequently arise in a corporation than in counties. As the exercise, then, of the power in question is-clearly within the jurisdiction of the Circuit courts, and the same jurisdiction is conferred on the Corporation courts; as both courts have in such cases the same power and authority, we do not regard it a dangerous latitude of construction to hold that this grave and important function, although conferred in terms only on the Circuit-courts, necessarily follows the jurisdiction of both courts-in the eases to which it applies. To hold otherwise would lead to strange results. In the town of Danville, as in other cities and towns of the State, thére is both a Circuit and a Hustings court, both having the same-criminal jurisdiction and bounded by the same narrow 615territorial limits; yet, under the rule contended for, the singular anomaly would be presented of one of these courts exercising this wholesome and ° power, whilst under identically the same circumstances it is denied to the other. We would be reluctant to adopt a conclusion so unreasonable. We are opinion, therefore, that there was no error in ordering the venire facias to the county of Pittsylvania, and that the challenge to the array of jurors for that cause was properly overruled. Por do we think that there is any legal validity in the further objection to the array of jurors, that the mandate of the writ was not obeyed by the officer who executed it; in this, that the jurors near to instead of remote from the vicinage were summoned. The objection is not sustained in point of fact. The nearest juror to the scene of action resided about one-half of a mile beyond the corporate limits of the town of Danville. This is remote from the vicinage. In the eye of the law the entire panel was summoned from places remote from the vicinage. It was summoned from the body of the county of Pittsylvania, and beyond the limits of the corporation; and this, in law, is remote from the vicinage of the alleged crime. The word “remote,” as used in the statute, is a relative term. What would be “ remote ” from the vicinage in a small town like Danville would be near the vicinage in the country, in a sparsely settled county. In a small town of four thousand inhabitants it wrould rarely, if ever, be practicable to summon a panel from a distance of more than one-half of a mile from the scene of the crime, yet the law implies that within such corporation a qualified jury “remote” from the vicinage may be secured; and in point of fact such qualified jury was secured in this very case within the limits of the town of Danville on the first trial of the case. We are of opinion therefore that 616the entire panel having been summoned from the body of the county of Pittsylvania, and beyond the limits of the corporation, was legally summoned. We are further of opinion, that had one of the panel been summoned by mistake or misapprehension of the law, or otherwise, from a place near to instead of remote from the vicinage, the objection, if valid, instead of being made to the array of jurors, should have been made to the individual juror so summoned. The challenge to the array of jurors w7as therefore properly overruled. 5. The court is further of opinion that there was no error in the refusal of the court below, on the motion of the prisoner, to change the venue. The fact that a duly qualified jury was promptly and readily obtained from the county of Pittsylvania demonstrates that a change of venue was unnecessary. 6. iSfor did the court err in refusing to sustain the prisoner’s challenge of J. W. Lee because he was not a qualified voter, and therefore not a juror qualified according to law. The objection to the juror was not that he did not possess the constitutional right to vote, but that he had not been registered, so as to enable him to exercise his contitutional franchise. "We do not regard registration as one of the qualifications of a voter, but merely a convenient means of ascertaining who is entitled to vote. It is evidence only of a pre-existing right, which evidence must, under the registration acts, exist at the time of voting. It does not confer, but is merely proof of, the right. The Constitution confers and secures that right in the following terms: “Every male citizen” (not registered male citizen) “of the United States, twenty-one years old, who shall have been a resident of this State twelve months next preceding any election, shall be entitled to vote on all questions,” &c., &c., excepting only idiots and lunatics, convicts, and persons w7ho since the adoption of *617the Constitution may have fought a duel with deadly weapons, sent or accepted a challenge to fight with such weapons, or knowingly conveyed a challenge, or or assisted in any manner in fighting a duel. In this list of exceptions non-registered persons are not included. The juror Lee was “ entitled to vote” under the terms of the Constitution; and our opinion is, that the court did not err in overruling the motion to exclude him. The last error assigned was, that the commonwealth’s attorney was allowed by the court to make a statement to the jury before the testimony was introduced, “touching the several grades of homicide and the law in reference thereto.” This statement was made by the permission and under the control of the court, and there is no suggestion even that the law, as actually stated to the jury, was inapplicable, or erroneously or improperly stated; and whilst the practice is unusual we cannot say, thus guarded, that it is erroneous. On the whole case we are of opinion that there is no error in the judgment of the Corporation court, and that the same be affirmed. Judgment arrirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481871/	Bouldin, J., delivered the opinion of the court. Doctor J. S. Dorsay Cullen was sent before the grand jury of the Hustings court of the city of Richmond to ' give evidence on behalf of the Commonwealth on au indictment charging John S. Meredith, William L. Royall, William R. Trigg and William B. Tabb with the murder of John B. Mordecai, as principals, in the second degree, and accessories before the fact, the actual killing being charged to have been accomplished by W. Page McCarty. When Dr. Cullen appeared before the grand jury the following question was propounded to him: “ State all you know in regard to a duel alleged to have taken place on the 9th day of May last, near Oakwood, between W. Page McCarty and John B. Mordecai?” Dr. Cullen declined to make any disclosure on the subject to the grand jury, saying to them in substance as follows: ■“I must decline to answer the question because my answer thereto will criminate myself.” The witness was then brought before the Hustings court, and still insisting on his right to decline to answer, that court, after hearing testimony, ordered the witness to answer the question. He again declined for the reason already stated; whereupon the Hustings court adjudged him guilty of a contempt, imposed on him a fine of fifty dollars, and ordered him to be imprisoned for one day. To that judgment Dr. Cullen applied for and obtained a writ of error and supersedeas from one of the judges of this court, on which the case is now before us. The question is, was Dr. Cullen guilty of a contempt of the Hustings court in refusing, for the reason stated by him, to make the disclosure called for by the grand jury and ordered by the court? It is insisted by his counsel that he was not, because he 627has a right guarantied by the Constitution of the State, of which neither legislature nor courts can deprive him, to refuse to answer any question, the answer to which would tend to criminate him; and such it is contended would be the effect of an answer to the interrogatory propounded. Is there such constitutional right ? The right to refuse to answer such questions before any judicial tribunal was the well-3ettled law of England long before the separation of the American colonies from the mother country; but the State of Virginia, ever foremost in proclaiming principles of personal liberty and security, -and providing safeguards to individual rights, was unwilling, when she assumed the attitude of an independent and sovereign State, to leave this great principle and -others of kindred character subject, as at common law, to the mutations of legislative will or to the hazard of judicial discretion. She therefore thought proper, as far back as June 12th, 1776, and prior to the declaration of independence, when forming her own State Constitution, to make a solemn declaration of the rights of the good people of Virginia, “which rights do pertain to them and their posterity as the basis and foundation of government.” And we find that by the 8th section of that declaration it is provided as follows: “ That in all capital or criminal -prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to eall for evidence in his favor, and to a speedy trial by .an impartial j ury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be -COMPELLED TO GIVE EVIDENCE AGAINST HIMSELF; that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.” This section was framed nearly one hundred years .ago by “men of the days gone by.” It was framed for 628the protection of the citizen, and announced great principles of individual right, to be secured to the people of Virginia and their posterity forever; and it stands to this day, untouched in word, syllable or letter, a part of our State Constitution, and a bulwark andsafeguard to the citizen, having for near .a century withstood the shock of revolution and the rage of innovation. The earnest and eminently wise and practical men who framed that declaration, certainly meant something when they solemnly declared that a man shall not be compelled to give evidence against himself. They were not issuing a mere brutum fulmen. On the contrary we think that it was their purpose to proclaim and render inviolable a great practical individual right — to declare as part of the organic law, that no man should anywhere, before any tribunal, in any proceeding, be compelled to give evidence tending to criminate himself, either in that or any other proceeding: in other words, to make the common law thus extended to all cases — parliamentary as well as judicial — a part of the oi’ganic law of the State: and we think it would be unjust to the men who framed and to the men who have so long preserved intact that important provision, were we to confine it only to cases in which a man is called on to give evidence against himself in a prosecution pending against him. This would indeed .be to dwarf the spirit and meaning of a great principle to the most insignificant proportions, and would scarcely be in character with the earnest, wise and practical men who proclaimed it. They certainly would scarcely have thought it necessaiy to guard in their oi’ganic law against an evil which had occurred in no civilized community within the memoiy of men then living, and at the same time to leave to the mutations of legislative will the protection of the citizen from being compelled to give evidence against himself in proceedings against 629others — an evil of a very practical character, and leading directly to the same result: self-accusation. "We do not feel warranted in giving any such narrow and restricted construction to this declaration. It would render the provision wholly nugatory; and we do not think it is required, as has been contended, by the grammatical structure of the section. The portion of that section immediately preceding this important provision does, a3 must be •conceded, refer to proceedings in a pending prosecution, .and declares the rights of the accused in such prosecution ; commencing with the arraignment, and declaring his rights down to the verdict of the jury; each separate •declaration of a right being separated from the others by a comma merely, until, after providing against conviction without a unanimous verdict, the close of that portion of the section is indicated by a semi-colon. Then ■follows the broader declaration, now under consideration : “ if or shall he” (that is “a man,” for it was the rights of man which the men of ’76 were proclaiming,) •“ be compelled to give evidence against himself,” commencing after and followed by a semi-colon; thus affirming, as a distinct and fundamental right, that “a man” shall not be compelled to criminate or accuse himself. Had it been the purpose of the framers of the bill of xights to confine that declaration to a man’s rights when under trial, the rules of grammar and logic would have required its insertion in the body of the preceding sentence, and before the legitimate close of that sentence, providing against conviction without a unanimous verdict. The sentence had already provided for evidence for and against the accused, and had reached final verdict ; and as evidence always precedes and never follows the verdict, neither strict grammar nor sound logic would require that this independent, broad and compre630hensive declaration should be read and construed as part of the preceding sentence. But were this otherwise — were it, in fact, obvious that the primary and strictly grammatical sense of the words and structure of the sentence would lead to the restricted construction contended for, yet, when we consider the-time and circumstances under which that declaration was promulged, and the character and purposes of the-men who made it, we revolt instinctively from a conclusion “so lame and impotent,” and are of opinion that it was intended to be and is, in effect, a complete protection to the citizen against self-accusation — a broad and catholic declaration that he shall not, before any tribunal or in any proceeding, be compelled to give evidence which, on a prosecution against himself, would tend to criminate him; and of this protection, in a proper case for its-application, he cannot be deprived by legislation. We are fortified in the liberal construction we have given to this declaration, by the form in which the same-principle was affirmed by the constitutions of other States, which followed in the wake of Virginia, and made-her bill of rights the basis of their own. Massachusetts, who at that early day evinced a generous rivalry of Virginia in her efforts to declare and vindicate the “rights of man,” announced the principle as follows: “No subject ‘shall’ be compelled to accuse or furnish evidence against himself; ” evidently giving to Virginia’s declaration the broad construction adopted by this-court. The ninth section of the first bill of rights of Pennsylvania, promulged soon after our own, is a substantial' and almost literal copy of our eighth section, but with this difference, that the clause under consideration, which-is a literal copy of ours, follows a colon, instead of a, 631semi-colon; is followed by a colon instead of a semicolon, and commences with a capital letter, thus Hop shall he ” (a man) “ be compelled to give evidence against himself;” and the next and concluding clause is also a literal copy of our own, except that it begins with a capital letter also, and in lieu of the words “that no man be deprived,” it uses the words “Hor can any man be justly deprived, &c.; ” evidently showing thatthe two last clauses ■were considered as announcing general and independent propositions. Delaware, after announcing as the fourteenth section of her bill of rights so much of our eighth section as precedes the clause under consideration, in almost the same words makes a distinct section of the principle announced in that clause, slightly modified as follows, viz: “15. That no man in the courts of common law ought to be compelled to give evidence against himself.” Maryland divided our eighth section into three separate sections — nineteenth, twentieth and twenty-first— corresponding in substance with the three separate clauses of our eighth section. The twentieth section is as follows : “ 20. That no man ought to be compelled to give evidence against himself in a court of common law, or in any other court, but in such cases as have been usually practiced in this State, or may hereafter be directed by the legislature.” We have referred to these several declarations made in the revolutionary era, and very soon after Virginia’s, as showing the cotemporaneous construction of her declaration by the conventions of other States, all showing that the principle secured by the declaration was announced as a separate and general right. We have been pointed to the judicial decisions of but two States, Massachusetts and New York, on the ques632tion before ns; and our conclusions are sustained by the Supreme courts of both States. Emory's case, 107 Mass. R., 172, and the People v. Kelley, 24 New York, p. 74. The terms of the Yew York constitution are far more restricted than our own. They are as follows: “that no person shall be compelled, in any criminal case, to be a loitness against himself; ” and the argument as to the grammatical sense of the clause was earnestly pressed upon the court. Judge Denio said, p. 81: “The primary and most obvious sense of the mandate is, that a person prosecuted for a crime shall not be compelled to give evidence on behalf of the prosecution against himself in that case.” But notwithstanding this impression of the j udge as to “ the primary and most obvious sense of the mandate,” he takes no such narrow and restricted view of this grave constitutional safeguard. On the contrary he goes on to say: “ But there is great force in the argument that constitutional provisions, devised against governmental oppressions, and especially such as may be exercised under the pretence of judicial power, ought to be construed with the utmost liberality, and to be extended so as to accomplish the full object which the author apparently had in view, so far as it can be done consistently with any fair interpretation of the language employed. The mandate that an accused person should not be compelled to give evidence against himself, would fail to secure the whole object intended if a prosecutor might call an accomplice or confederate in a criminal offence, and afterwards use the evidence he might give to procure a conviction on the trial of an indictment against him. If obliged to testify on the trial of the co-offender, to matters which would show his own complicity, it might be said upon a 633liberal construction of the language that he was com- . . pelled to give evidence against himself ; that is, to give evidence which might be used in a criminal case ° ° himself.” People v. Kelley, 24 N. Y. R., p. 82. And in closing the view of the court on this branch of the case, he says: “ It is of course competent for the legislature to change any doctrine of the common law; but I think they could not compel a witness to testify, on the trial of another person, to facts which would prove himself guilty of a crime without indemnifying him against the consequences, because, I think, as has been mentioned, that by a legal construction, the Constitution would be found to forbid it.” Ibid, p. 83. "We approve the reasoning and results of Judge Denio’s opinion, and will add that if such a conclusion ■can be sustained under the very restricted terms of the Yew York Constitution, a fortiori is it proper under the much broader and comprehensive terms of our bill of rights? This important privilege being thus guaranteed to the citizen by the Constitution, the next question is, is the case before us a proper one for its exercise ? It is contended by the attorney-general that it is not, because, by the act of October 11th, 1870, entitled “an act to amend and re-enact section 1, chap. 12, of the Code of Virginia, (1860) with regard to duelling,” it is enacted, among other things, as follows: “ Every person who may have been the bearer of such challenge or acceptance, or otherwise engaged or concerned in any duel, may be required in any prosecution against any person but himself, for having fought or aided or abetted in such duel, to testify as a witness in such prosecution; but any statement made by such person, as such witness, shall not be used against him in any prosecution against him634self.” And it is insisted by the attorney-general that the testimony of no such witness can tend to criminate himself, because no statement made by him can be used as-evidence against him in any prosecution against himself. Ve sympathise fully with the legislature in their efforts-to suppress the barbarous and anti-Christian practice of' duelling. Having its origin in false pride and a mistaken sense of honor, and upheld and sanctioned to a certain extent by a vicious public sentiment, the practice-has lingered in the Southern States much longer than it should have done, although condemned alike by the laws-of God and man ; and notwithstanding it has cost our country the lives of some of her noblest sons. "We-would gladly see it forever banished from our land. The practice is cruel in the extreme, and is founded neither in morals nor in reason, nor in common sense. It has-been well and truly said that it proves nothing, except that the parties, as is commonly the case with male animals, are willing to fight. It not unfrequently results in the-death of one or both of the combatants, and the question which called them to the field of honor (so called) remains-unsettled and is adjourned forever, leaving, quite as often, as otherwise, the injured party the victim and the wrongdoer triumphant. Nothing could be more unsatisfactory and unreasonable, and, as we have already said, we sympathise fully with the legislature in their efforts to suppress so baneful a practice. But we should ever be careful, whilst endeavoring to suppress a great evil, that' we do not ourselves fall into the error of committing a great wrong; not to do wrong that good may-come of it; not to invade the constitutional right of the the citizen. ’We are very reluctantly drawn to the conclusion that such is the effect of the act in question;. that it would deprive the witness of his constitutional 635right to refuse to give evidence tending to criminate himself without indemnity, and is therefore to that extent unconstitutional and void. The privilege claimed in this case is one, as we have seen, which was not only allowed hy the courts, but which for near a century has been carefully guaranteed by the Constitution. Whether such constitutional privilege can be taken away by the legislature at all, on any terms of indemnity, is a question not necessary to be now decided. But we are all clearly of opinion that before it can be taken away there must be absolute indemnity provided, and that nothing short of complete amnesty to the witness — an absolute wiping out of the offence as to him, so that he can no longer be prosecuted for it — will furnish that indemnity. We do not think the act of assembly referred to furnishes such indemnity. It only provides that the “statement” made by the witness shall not be used against him in a ¡prosecution against himself. How, it is apparent that, without using one word of that statement, the attorney for the Commonwealth might in many cases, and in a case like the present inevitably would, be led by the testimony of the-witness to means and sources .of information which might result in criminating himself. This would be to deprive him of his privilege without indemnity. We are of opinion, therefore, that the act of assembly aforesaid, failing to afford complete indemnity, does not deprive the plaintiff in error of his constitutional privilege. But it is further contended that the plaintiff in error was not entitled to claim the privilege in this case, because the court could see from the testimony that his answer to the question propounded would not tend tocriminate him at all. Without deciding whether in this case it was or was not proper for the court to go into-636other testimony than the statement of the witness himself to ascertain whether he was entitled to the privilege claimed or not, this court is well satisfied on that testimony that it was a proper case for the witness to claim his privilege; that the disclosure called for by the interrogatoi’y pi’opounded would tend to criminate him. "Without prejudging the question of guilt or innocence on the facts set out, it will suffice for us to say that there is enough in the settled principles of the common law, and in the statutes against duelling, to lead to the apprehension, at least, that the sui’geon of the party to a duel would be regarded in law as being concerned in, or as aiding and abetting the duel; and we are further of opinion, that there is enough in the testimony to justify Dr. Cullen in the apprehension that a full disclosure of the facts by him would tend to show that, knowing a duel was to be fought near Oakwood, he attended at that place at the instance of one of the parties, to be ready to render his professional services as surgeon to one or both of them, should they be requii’ed; that the duel was in fact fought; and that his services as sui’geon were required and rendered. Such testimony, we think, might tend to criminate the witness, and we are of opinion that he should not have been compelled to make the •disclosure, unless for some other reason he had lost his privilege of refusal. Dut it has been earnestly argued that this is not a proper case to recognize the privilege, because the witness "lias already made elsewhere a full and voluntary disclosure of the facts, and that nothing he could now say would do more to criminate him than has been done .already by that statement. Conceding this to be so, we are by no means prepared to say that it answers the ■claim of the witness to his pi’ivilege. If, as we have "held to be the case, a full disclosure of the facts might 637tend to criminate the witness, we cannot see how that tendency is at all removed by showing that the witness had elsewhere made a statement tending to him. The question before us is not what the witness may have said elsewhere; but whether, when it is apparent that a disclosure from him may tend to criminate him, he shall now, in a pending trial, be compelled to make that disclosure, although he claims his constitutional right of refusal. We do not see that his statements elsewhere have auything to do wfith the question. They are matters of fact wholly collateral, on which issues might be taken. But however that may be, it is utterly impossible for any court to know in advance what additional facts, tending to criminate the witness, might not be elicited by a rigid and searching examination by learned counsel. Indeed, a mere repetition on oath of .the same facts would of itself, as corroborative evidence, tend to criminate him; and we think it would be equivalent to a denial of the privilege altogether to expose the witness to the hazard of such examination. It is contended in the last place that the witness has lost his privilege by waiver; that he has already made a full and voluntary disclosure of the facts before the coroner when holding an inquest over the dead body of the deceased, and was thereby precluded from thereafter asserting his privilege of refusal to answer. We entertain no doubts that a witness may waive his privilege, whether secured to him by the Constitution or otherwise, on the familiar principle that a man may always waive a provision made for his benefit. But the waiver of such a privilege as we are now considering, must always be made understanding^ and willingly, and generally after being fully warned by the court. In 1 Greenleaf Ev., § 451, we are told that whether the 638testimony will tend to criminate the witness or not is a point on which the court is bound to instruct him. And the author goes on to say in the same section: “But in all cases where the witness, after being advertised of his ’privilege, chooses to answer, he is bound to answer everything relative to the transaction.” Without “ being advertised of his privilege,” the witness evidently would not, in the estimation of the learned author, be held as waiving his privilege. The authorities referred to by Mr. Greenleaf, and those commented on at the bar, fully sustain the position that, as a general rule, the witness should be warned as to his privilege before he can be held to have waived it by answering. This is the rule when the answers have been made in the case before the court. It would apply “a fortiori” to a case like this, where the supposed waiver was not made before a court but before a coroner in the country, and when the witness made his statement without being advertised of his privilege “ inops consilii,” and evidently without appreciating the position in which he was placed. Without deciding that a witness can be held in any case to have waived his privilege by answering before a different tribunal, we are clearly of opinion that there has been no such waiver in this case. The result is, that in refusing to answer the interrogatory propounded, Dr. Cullen was exercising a privilege secured to him by the Constitution, and was not guilty of a contempt of court. Judgment of Hustings court reversed and cause remanded, with instructions to allow the witness his privilege of declining to make the disclosure called for, if insisted on by him. Moncure, P., dissented. .Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481872/	Moncure, P., delivered the opinion of the court. This is a writ of ei’ror to a judgment of the Hustings court of the city of Richmond, convicting the plaintiff in error of murder in the first degree, and sentencing him to be hung therefor. There is but one assignment of error in the case; and that is, the admission by the court of certain confessions set out in the bill of exceptions, as evidence against the prisoner. A like confession, previously made to another person (Hulee) had been excluded by the court, no doubt because it was obtained by á temporal inducement — by a promise or hope of favor held out to the prisoner, in respect of his escape from the charge against him, by a person in authority, in the meaning of the rule of law on this subject. And the only question is, whether the subsequent confessions admitted by the court were produced by the same motive which is supposed to have produced the first; or whether the court was justified in believing, from the length of time intervening, or from proper warning of the consequences of confession, or from other circumstances, that the delusive hopes, under the influence of which the original confession is supposed to have been obtained, were entirely dispelled. In the absence of auy such circumstances, the influence of the motive proved to have been offered will be presumed to continue and to have produced the subsequent confessions, unless the contrary is shown by clear evidence. Thompson's case, 20 Gratt. 724; 2 Russ. on Crimes, 838; Greenl. Ev. 257. But the contrary may be shown by clear evidence, and the subsequent confessions ai’e in that case admissible. The only question is, whether the contrary is so shown in this case? The confession was made to Hulee on the morning of, and before the examination of the prisoner before the 641police justice. The subsequent confessions were made on the morning when the prisoner was brought to jail, after liis examination before the police justice. It does not appear that he was carried to jail on the same day of his examination, though he no doubt was. So that there must have been but a short interval of time, perhaps less than a day, between his first and last confessions. The statement in the bill of exceptions in regard to the last confessions is, that after the first confession was ruled out “the Commonwealth inü’oduced a witness, one Charles Jones, a colored man, who is cook at the jail, who testified that on the morning when prisoner was brought to jail witness asked the officer who had just brought him to jail, one Michaels, what prisoner was there for; to which the officer replied, for the murder of Mary Holmes, and he believed he had confessed it; to which witness said: ‘ I reckon not; he certainly wouldn’t be such a fool as to confess it.’ The officer said, ‘Yes, and he wrould do it now if I would let him; ’ and thereupon the prisoner said: ‘Yes, I did it.’ The officer, Michaels, who took the prisoner to jail, stated that the prisoner seemed to be frightened and trembling while the officer was taking him to jail, and seemed to be agitated when he got to the jail; he was near by when prisoner and Jones were talking; did not hear his confession; paid no attention to the conversation between them. And thereupon the Commonwealth introduced another witness, Lucy Kinney, a colored woman, who testified that she was an inmate of the jail, being detained there for nonpayment of a fine; that she knew Horace Venable well, and knew deceased also; that Horace Venable lived at her mother’s house for a long while; that on the morning when he was brought to the jail, after his examination before the police justice, she was washing the porch of the jail; that she spoke to prisoner and said: ‘Hello, 642Horace; what are you doing here?’ and his reply was, that he was there for hilling Mary Holmes-, and that he was sorry that he had done it; to which witness replied that it was too late for him. to be sorry then, he ought to have thought about that before he killed her; and he then said that he was determined if he didn’t have her nobody else should; he was sorry for it now, and if ever he got out of this scrape he-would never get into another. It also appeared that between the time when the statement to Hulee (which had been ruled out) was made and the time when prisoner made the foi’egoing statements to the witnesses, Jones and Kinney, the prisoner had had counsel; that he had had his examination before the police justice and had been warned, both by counsel and by the police justice, against making any statement or confession. The testimony of the witnesses, Jones and Kinney, went to the jury without objection on the part of the prisoner’s counsel. After the examination of the witnesses on the part of the Commonwealth, and the examination of witnesses for the defence had closed, and just as the argument wras about to commence, one of the jurors asked that the witness, Charles Jones, might be recalled, and asked him to repeat his former statement, which witness did; and thereupon the prisoner, by his counsel, moved the court to exclude from the jury the whole of the said conversations that had taken place between the prisoner and Charles Jones, and between the prisoner and Lucy Kinney, which motion the court overruled; to which opinion of the court refusing to exclude the said conversations from the jury, the prisoner, by his counsel, excepted.” "We think it clearly appears from the foregoing statement that after the prisoner made his first confession, and before he made his subsequent ones, he was duly warned against making any confession. The first confession was *643made to a subordinate officer of the police, who advised the prisoner to employ counsel. He did employ counsel, who represented him before the police justice; and he was warned, both by his counsel and by tbe police justice, against making any statement or confession. After his examination before the police justice, and after he had received that double warning from these functionaries, whose advice ought to have been much more potential with him than a mere suggestion of a ministerial police officer, he made his subsequent confessions to persons in the jail. The terms in which the confessions were made indicate that they were true. In assigning his reason for committing the deed with which he was charged, he said, “that he was determined, if he didn’t have her, nobody else should; he was sorry for it now, and if he ever got out of this scrape he would never get into another.” A great deal of stress was laid, in the argument of the prisoner’s counsel before this court, on the fact proved by Michaels, who took the prisoner to jail, that he, “the prisoner, seemed to be frightened and trembling while the officer was taking him to jail, and seemed to be agitated when he got to the jail.” But no degree of alarm or agitation will, of itself, render confessions made during its existence inadmissible. Smith’s case, 10 Gratt. 734, is a striking instance of that fact. But, as was said there, that matter is for the consideration of the jury, and affects the credit, but not the competency of the evidence. The court below was satisfied that the subsequent confessions were voluntary, and therefore admitted them. And we think the court did not err in that respect. "We are of opinion that there is no error in the judgment, and that it ought to be affirmed. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481873/	Moncure, P., delivered the opinion of the court. The offence for which the plaintiff in error was intended to be prosecuted in this case is the offence declared by the Code of 1860, chapter 191, section 9, concerning malicious and unlawful shooting, stabbing, &c. The jury, by their verdict, found the prisoner “guilty of malicious shooting,” and fixed his term of imprisonment in the penitentiary at five years, to which he was accordingly sentenced. And he applied for and obtained from this court a writ of error to the judgment. In his petition for the writ he assigned sundry errors in the said judgment, one of which is, that the verdict found him guilty of no offence at all, having found him guilty merely “of malicious shooting.” The attorney-general rightly ad646mitted that this error was well assigned, and that for this-error the judgment would have to be reversed. If this were the only error in the case it would have to be remanded to the Circuit court for new trial to he had therein upon the said indictment. But the indictment itself is fatally defective, as an indictment for felony, in not charging the offence to have been done “feloniouslyand this also is assigned as an error in the petition. We-think this error, too, is well assigned. There are certain technical terms of description required to be used in the indictment for certain offences which are absolutely necessary to determine the-judgment. Thus the word “feloniously” must be used in every indictment for felony. 1 Chit. C. L. 242 marg.; Davis C. L. 430; 3 Rob. Prac., old ed., 39 ; 2 Va. Ca. 122 Barker's case; 143 Trimble's case; Taylor's case, 20 Gratt. 825. The Code, ch. 191, section 9, does "not expressly declare the offence therein mentioned to be a. felony, but it makes the said offence punishable with confinement in the penitentiary; and all offences so punishable are declared by law to be felonies. Code, ch. 199, section 1. When an offence is so punishable it must be described in an indictment therefor by the term “ feloniously,” whether it be expressly called a felony or not in the law which creates it or makes it so punishable. 2 Va. Ca., 122 and 143, supra. The averment that the-act was done “ feloniously” is so important that the omission of it is an error even after verdict for which the-judgment will be arrested. 3 Rob. Prac., and 2 Va. Ca., supra. And anything which is good cause for arresting a judgment is good cause for reversing it, though no motion in arrest is made. Matthews' and Garner's cases, 18 Gratt. 989. Therefore the plaintiff in error cannot be convicted of felony on the indictment aforesaid; but in order to his 647being tried for the felony aforesaid a nolle prosequi may be entered by the attorney for the commonwealth, with the consent of the court, on the said indictment, and a new and proper indictment may be exhibited and found against the said plaintiff for the said felony; on which new and proper indictment he may he tried, notwithstanding the proceedings had upon the old and defective indictment. 2 Rob. Pr., old ed., 127; 2 Va. Ca. 70-111. The court is, therefore, of'opinion that the said judgmen is erroneous, and ought to be reversed and annulled, and that the verdict should be set aside and the cause remanded to the Circuit court, for further proceedings to be had therein, in conformity with the foregoing opinion. The judgment was as follows: The court is of opinion, for reasons stated in writing and filed with the record, that the verdict found by the jury in this case is fatally defective in finding the prisoner guilty of “malicious shooting” merely, which, in itself, is no offence at all; and if that were the only error in the judgment it would be pi’oper to reverse the judgment, set aside the verdict, and remand the cause for a new trial to be had therein upon the indictment on which the plaintiff in error was formerly tried. But the court is further of opinion that the indictment itself is fatally defective, as an indictment for felony, in not averring that the act therein charged was done “ feloniously;” that the said plaintiff cannot be convicted of felony on that indictment, and that in order to his being tried for the felony intended to be charged against him, to wit: the offence declared by the Code of 1860, chapter 191, section 9, page 784, concerning malicious and unlawful shooting, stabbing, &c., a nolle prosequi may be entered by the attorney for'the Commonwealth, with the *648consent of the court, on the said indictment, and a new and proper indictment may be exhibited and found against the said plaintiff for the said felony, on which new and proper indictment he may be tried, notwithstanding the proceedings had upon the old and defective indictment. Therefore it is considered that the said judgment is erroneous, and that the same be reversed and annulled. And it is ordered that the verdict of the jury be set aside and the cause remanded to the Circuit court for further proceedings to be had therein, in conformity with the foregoing opinion. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481874/	Bouldin, J., delivered the opinion of the court. Several objections have been taken by the counsel for-the plaintiff in error to the judgment of the court below in this case, involving questions of both law and fact, and have been argued with much learning and ability; but in the view taken of the case by this court we deem it necessary to consider only the questions arising under-the last assignment of error. After the jury had rendered a verdict of guilty and fixed the term of the prisoner’s confinement in the penitentiary at ten years, he-moved the court to set aside the verdict and award him a new trial on the following grounds: 1st. Because the verdict had been obtained by surprise. 2d. Because it was not sustained by the evidence. The court overruled the motion and sentenced the prisoner to ten years’ confinement in the penitentiary. To this ruling the prisoner excepted, and prayed the court to certify the facts proved on the trial, which was done accordingly. 651We are of opinion that the Circuit court erred in refusing, under all the circumstances of this case, to grant the new trial. Without recapitulating or very critically analyzing the testimony, we are compelled to say that the evidence adduced to establish the felonious act — the corpus delicti— is, to say the least of it, of a very doubtful and inconclusive character. It consists exclusively of the statements of the person upon whom the offence is charged to have been committed, and is certified by the court as follows: “On the day of June 1873, it being Sunday, about 12 o’clock M., Miss Martha Spencer was at the spring (which is about one hundred yards from her father’s house); had filled her bucket and was sitting down on a rock at the spring; while sitting there some one came up behind her and seized her by the shoulders, pulled her over backwards, her honnet falling over her eyes; the person making the attack spoke to her in a low tone and told her not to make a noise ” (a suggestion which for some reason she seems to have duly respected). “She screamed once” (whether in a similar tone or not dees not appear); “but the bonnet was held over her mouth and eyes so that she was unable to make further outcry, and could only catch a glimpse of her ravisher. Her arms ivere not confined, and she made an attempt to pull the bonnet away from her eyes. She was very weak and nervous, and very much frightened, and notwithstanding her resistance, he accomplished his purpose and ravished her.” This is her own account of the alleged criminal act,, and is all we have directly on that subject. She proves no other violence than enough to draw her backwards by the shoulders from her seat, and to hold her bonnet over her face. Her person was examined by two physicians, and whilst they both testified that it was apparent 652that she had had recent sexual intercourse, they also proved that there was nothing to indicate that it had been accomplished by violence; “ that no bruises were found about the face, arms or person of the prosecutrix, except a small, almost imperceptible, bruise under each knee.” It was also proved that Miss Spencer was “a large, stout woman,” and the accused was a “ medium-sized man, about twentjMhree years old.” Can we say upon such testimony that the criminal act has been established? It would require a large degree of charity and credulity to believe that at noonday, within one hundred yards of her father’s house and within two or three hundred yards of the house of a neighbor (¥m. Spencer), a rape was perpetrated on this large and stout woman, loith both her arms perfectly free, by a medium-sized. man, who neither threatened her with violence nor did anything to disable her, and who, from her own account, had the use of but one arm, the other being employed in holding her bonnet over her face whilst the act was committed; and that all this had been accomplished with no noise to alarm the families which were so near; with not the slightest indication, from the appearance of the ground, that there had been a scuffle; and with no scratch or bruise on the person of the female to show that her chastity had not been violated without a struggle! Such testimony, we think, exceedingly weak, to say the least of it, to show that a rape had been ■committed at all, especially when it appears in the record that the accused, who lived at her father’s house, had previously, in his kitchen, attempted to take improper liberties with Miss Spencer, which she does not appear to have disclosed or resented. But conceding the rape to be established, the evidence to connect the accused with the act is yet more doubt653ful and unsatisfactoi’y. Although the accused had resided at her father’s house for a year or two previous to the occurrence, and was, of coui’se, well known to the witness — voice, features, gestures and person — yet she does not swear to his identity. He spoke to her with his face very near to her’s, yet she docs not say that she recoguized his voice. She says she only caught a “ glimpse of the lower part of his face,” and only saw his back “ at a distance of about fifty or a hundi’ed yards, running away.” What she was doing from the time he left her person until he reached the distance of fifty or one hundred yards does not appear; yet when she did see him she seems to have been perfectly cool and collected, for she can tell that he wore a dirty shirt and a black felt hat. She says that, from the glimpse she had of his face, and the sight she had of his back as he ran away, she believed it ivas the prisoner. And this was all the evidence of identity except the evidence of William Spencer, who lived about two or three hundred yards from the home of the prosecutrix. He proves that he saw, on what day and at what hour does not appear, a man whom he took to be Wilson JBoxley, walking very rapidly along the road leading from Banister Spencer’s, and now and then looking backwards. He called to him and asked, “What’s your hurry?” but received no answer. He was one hundred yards off, and witness was not sure it was Boxley. “The man he saw wore a white chip hat” — not a black felt hat, as proved by Miss Spencer to have been worn by the pei’son who assailed hei\ It was further proved that the accused lived about two miles from the home of Miss Spencei’, and that he remained at his work as usual for three or four days after the occurrence at the spring, when he wa3 charged with this offence by the brothers of Miss Spencer and beaten by them. He then went to the coui’t-house and 654caused a warrant to be issued against them; and it was , .. , not until alter these proceedings that the present prose-was commenced. We think the evidence wholly jnsu:gjcjen^ identify the prisoner as the guilty party. Were this not so, the evidence, to say the most of it, leaves the question of identity extremely doubtful, and, under the circumstances, the verdict of the jury should have been set aside and a new trial awarded, to allow the accused the privilege of introducing the testimony set forth in his own affidavit and that of Dr. Melvin, of which he was evidently deprived by surprise. Dr. Melvin’s testimony, as set forth in his affidavit, would have still further weakened the testimony on the question of identity. He was the committing magistrate, and the testimony of Miss Spencer, as detailed by him, is materially variant from her testimony in court; and the facts set forth in the prisoner’s affidavit satisfactorily explain his failure to have Dr. Melvin before the court. Under all the circumstances, this court is of opinion that the court below erred in refusing to set aside the verdict and to award the prisoner a new- trial. As the cause must be remanded to the Circuit court, it becomes necessary to dispose of the objection to the jurisdiction of that court, so earnestly and ably argued at the bar. The objection was, that as the law stood on the 28th of July 1873, when the case was transferred from the County to the Circuit court, the prisoner had a right to be tried in the County court in which his case was pending, or, at his election, to be sent for trial to the Circuit court; that he did not elect to be tried in the latter court, and therefore his case wras never legally pending in that court. It is certainly true that on the 25th of July 1873 the prisoner had a right to be tried in the County court, •where bis case wms pending; but it is equally true that 655the County court had then undoubted authority, on the ■election of the prisoner or by his consent, to transfer the case to the Circuit court. It is furthermore true, on the first day of August thereafter the jurisdiction of the County court to try the case would cease; and by the mandate of the law it would, without the prisoner’s consent, be transferred to the Circuit court. On the prisoner’s motion the case had already been continued to the next term of the court, and his right to be tried in the County court was, in effect, forever gone, for in three days the new law, depriving the County courts of jurisdiction of the case, would go into ■effect. This was all well known to the court and to the •counsel on both sides, and it is reasonable to conclude that, acting on that knowledge, the transfer to the Circuit court was made with the consent and approbation of the accused. We think so because, under the circumstances then existing, it was manifestly to his interest to give that consent, and because he not only made no objection whatsoever to the transfer, but immediately thereafter applied to be allowed to give bail for his appearance in the Circuit court, which was allowed him .and was given; and because he appeared in that court in • discharge of his recognizance, and submitted to his trial without indicating the slightest objection to the jurisdiction of the court. He was in fact exactly where he would have been had no transfer been made, with the advantage of a full opportunity to meet the charge in the court in which it was absolutely necessary, under the law, which was just about to go into effect, that he ■ should be tried. Under such circumstances we are fully justified in reaching the conclusion that the transfer was in fact made with the prisoner’s consent, and the Circuit court therefore had jurisdiction. We arrive at this conclusion 656the more readily because it is now evidently to the advantage of the prisoner. He must be tried in the Circuit court, and is now in confinement, and it might seriously prolong that confinement were we compelled to go through the inconvenient and useless form of sending the case to the County court, to be by that court immediately sent back where it now is. The judgment of the Circuit court must be reversed,, the verdict set aside, and a new trial awarded. The judgment was as follows: This day came agaiu the parties, by counsel, and the-court having maturely considered the transcript of the record and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the Circuit court erred in refusing to grant to the plaintiff in error a new trial: first, because the verdict of the jury was not sustained by the evidence; and, second, because, under the circumstances, the plaintiff in error was entitled to the benefit of Dr. Melvin’s testimony. It is therefore considered by this court that the judgment of the Circuit court be reversed and annulled, the verdict of the jury set aside, and a new trial awarded; and the case is remanded to the Circuit court for further proceedings. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481875/	Moncure, P., delivered the opinion of the court. This is a writ of error to a judgment of the Circuit court of the county of Charlotte, rendered on the 80th day of September 1878, convicting Susan Thornton of the murder of her husband, William Thornton, by poison, and sentencing her to he hung therefor. The indictment was in the usual form in such cases, and contained two counts. The first was a count charging the said Susan Thornton and one Ed. Kobinson jointly with the commission of the offence, as principals in the first degree. The second charged her as principal in the first degree and Mm as accessory before the fact. On their joint arraignment in the County court, on the ■3d of March 1873, they elected to be tried in the Circuit •court of said county. Afterwards, in the Circuit court, •Susan Thornton, by counsel, moved the court to quash the second count in the indictment, which motion the court sustained ; and thereupon she pleaded not guilty, •and was tried separately. The jury found her guilty of murder in the first degree, as charged against her in the indictment. Whereupon she moved the court to set aside the verdict and grant her a new trial; which motion the court, after taking time to consider, sustained. Afterwards, to wit: in September 1873, she was again tried, and 'again found guilty of murder in the first degree, and judgment was rendered accordingly. The record states that after reading the indictment to the jury, on the second trial, they were charged to en-quire “whether the prisoner be guilty of the murder as charged in said indictment or not guilty; and if they find her guilty of murder in the first degree, say so, and no more; but if they find that she attempted to administer poison with intent to kill or injure, she shall be confined in the penitentiary, so that such term be not 660less than three nor more than five years; but if they find her not guilty, say so and no more; and heai’ken to the evidence.” "Whereupon the ¡irisoner, by counsel, excepted to the reading of the whole of the said indictment to the jury, and the charge given to the jury, for the reason that the second count in the said indictment was quashed on the trial of the prisoner at the last term of this court. Thereupon the court ordered the clerk to read to .the jury only the first count in said indictment, and to charge them to enquire whether the prisoner be guilty of the murder as charged in the said first count in the indictment; which was accordingly done. Whereupon the prisoner, by counsel, excepted to the second reading of said indictment and the charge to the jury. After the second verdict was rendered, the prisoner by counsel moved the court to arrest the judgment; which motion the court overruled; and the prisoner, by counsel, excepted to the said action of the court. Then the prisoner, by counsel, moved the court for a new trial; which motion was also overruled; and the prisoner, by counsel, excepted to the action of the court in that respect also. The five exceptions aforesaid present the questions arising in this cause, which will be considered in the order in which the exceptions were taken. The questions arising on the first and second bills of exception will be considered together. The first states that the whole indictment, including both counts, which are set out in the bill of exceptions, was read to the prisoner when she was put at the bar for trial, and the jury were charged in the words aforesaid. “And no objection having been previously made to the reading of the indictment and the charge given by the clerk, in manner and form as above stated, the prisoner’s counsel here stated that he desired to except to the-reading of the said indictment as above stated, and to the charge as above 661given, and prayed that this, his first bill of exceptions,” might be signed and sealed by the court; which was accordingly done. The second bill of exceptions states that after the indictment had been read, and the jury charged as spedfied in the first bill of exceptions, the indictment, including only the first count, was again read to the prisoner, and the jury were again charged as aforesaid. “And no objection having been previously made to the second reading of the indictment and the second charge to the jury, as above specified, the counsel for the prisoner here stated that he desired to except to reading of the indictment as aforesaid the second time, and the charge of the cleric as aforesaid the second time, and prayed that this his second bill of exceptions” might be signed and sealed by the court; which was accordingly done. The whole indictment, including both counts, having, by mistake, been read to the prisoner, aud the jury charged thereupon, though the second count had previously been stricken out, it was of course proper, when the mistake was discovered, to correct it, by reading again the indictment, including the first count only, and again charging the jury thereupon. When this was done, the case stood as if the mistake had never been made. And this disposes of the first bill of exceptions, which may therefore be considered as out of the case. The main question intended to be presented by the first and second bills of exception, and the only one about which there can be any doubt, is thus stated in the petition for a writ of error in the case: “. that the chai’ge of the clerk to the jury was contrary to law, in this, that the clerk failed to charge the jury as to the different grades of homicide.” We will now proceed to consider that question. 662There is no law requiring the clerk to charge the j ury as to the different grades of homicide in any case. It be-to the court to instruct the jury as to the law, whenever they require instruction, or either of the par^es re(lues^ ^ given. It does not appear that they needed any in this case, or that either of the parties required any to he given. It does not appear that they did not thoroughly understand, at least so far as the case-required it, the different grades of homicide. The prisoner was obviously defended by skillful counsel, who-well understood what the law was, and would have been sure to have the jury fully informed on the subject, if' they had been uninformed on any point which the interest of his client required them to 'understand. He-asked for no instruction to the jury; and the presumption therefore is that they needed none. Supposing them to-have been already well informed; that the counsel on. both sides were agreed about the law, and stated it to the-jury with the approbation of the court, would the verdict be set aside or the judgment be reversed because the clerk did not also instruct them ? The clerk’s instruction or charge is without authority and nothing, except so far as it may be considered as having received the sanction of the court, and thus become the act of the court. As in the case of Allen v. The Commonwealth, 2 Leigh 727, in which the prisoner was indicted for an of-fence the punishment whereof was imprisonment for not less than me nor more than three years; but the-clerk, in charging the jury, stated that if they found the prisoner guilty, his term was to be not less than tioo nor more than three years. The general court considered this charge as equivalent to an instruction from the-court. It was given by an officer of the court, in the usual course of his duty, in the presence and hearing of the court; and not having been corrected by the court, 663was to be regarded as having been sanctioned by it. Al- . , . though its effect did not appear, yet it might have mduced the jury to agree upon the term of hoo years the prisoner’s confinement, believing that to be the minimum, when, if they had been correctly informed of the law, they might have ascertained his imprisonment to be one year only. The judgment was therefore reversed, the verdict set aside, and a new trial ordered. 3 Rob. Pr., old ed., p. 175. Suppose that in that case the clerk had given no charge as to the term'of imprisonment, but the jury otherwise thoroughly understood it, as must be presumed to be the case in the absence of any evidence to the contrary, would the judgment have been reversed on that ground ? Certainly not. To be [sure it is usual and proper for the clerk to charge the jury as to the term of imprisonment of an offence to be tried by them, and also of the different grades of the offence, where it admits of grades, as in most cases of felonious homicide. This information is generally needed by the jury, and it is convenient for them to receive it from the clerk, in the presence and with the sanction of the court, when the jury are charged with the prisoner’s case. But, as said before, the law does not require it, as a matter of course, to be given, whether needed or not. In this case no such information was needed, or would have been appropriate. The charge was murder in the first degree by poison. The prisoner was either guilty of that of-fence or guilty of no offence at all. The law expressly declares murder by poison to be murder of the first degree. And if the prisoner was guilty of the murder as charged in the indictment, she must of necessity have been guilty of murder in the first degree. She could, by possibility, have been guilty of nothing else. And it could not, therefore, have been erroneous to charge the jury to that effect.. To have charged them as to what 664constituted murder m the second degree, or voluntary or . involuntary manslaughter, or as to the measure ox the of each, could have answered no good purpose, and could have had no other effect, if any, than to confuse the jury or mislead them into error. Indeed it does not appear that the first and second hills of exceptions were taken because the clerk did not charge the jury “as to the different grades of homicide.” Nothing is said to that effect in either of those bills. It rather appears that the first was taken ouly because.the whole indictment, including both counts, was read to the jury, and they were charged thereon after the second had been quashed; and that the second bill was taken, only because the first count only was read to the jury, and they were charged thereon after both counts had been read and the jury had been charged thereon, as aforesaid. In each of the said bills it is stated that no objection had been previously made to the reading of the indictment and the charge given by the clerk in manner and form as stated in the said bills respectively. Thus showing that in each case the objection was taken after, and not before, the indictment was read and the charge given to the jury. That part of the charge, which is to the effect that “ if you find that she attempted to administer poison with intent to kill or injure, she shall be confined in the penitentiary, so that such term be not less than three nor more than five years,” was certainly unnecessary and not required by anything in the facts of the case. It was intended to apply to the provision in the Code of 1860, ch. 191, § 7, which declares that “if any free person administer, or attempt to administer, any poison or destructive thing in food, drink, medicine or otherwise,” &c., “with intent to kill or injure another person, he shall, be confined in the penitentiary not less than three 665nor more than five years; ” and also to apply to the provision in ch. 208, § 27, which declares that “if a person indicted of felony be by the jury acquitted of part and convicted of part of the offence charged, he shall be sentenced of such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor.” But though this part of the charge was unnecessary, it could not possibly have prejudiced the accused, and if it could have had any effect .at all, that effect would have been in her favor. We are therefore of opinion that the Circuit court ■did not err in regard to the matter stated in the first .and second bills of exceptions, or either of them. And now, as to the third bill of exceptions. That bill ■states that in the further progress of the case, after the •evidence and arguments of counsel had beeu concluded, .and the court, upon the motion of the prisoner’s counsel, •had instructed the jury as to the law, in terms that were ¡accepted by the counsel on both sides and not objected do by either, the jury retired and in a short time returned into court and rendered the following verdict: “We, the jury, find the prisoner guilty of murderin' the first degree, as charged in the indictment.” And thereupon ¡the prisoner, by counsel, moved the court in arrest of .judgment for the following reasons, viz: First. Because the said verdict does not specify the ¡prisoner by name. Second. For the reason specified in the first and second bills of exceptions. Third. Because the indictment does not charge that the prisoner knew the substance alleged to have been used in producing the death of William Thornton -was a deadly poison. The learned counsel for the accused seems to lay little or no stress upon the ground of error presented by this 666bill of exceptions, and we think properly so. As to the first reason assigned in the said bill, the verdict, as redoes specify the prisoner by name, and the jury,. according to the usual form, is called upon to “listen h> ^¡ie verdict as the court hath recorded it.” To be sure, , ’ the verdict written by the jury seems not to have specified the prisoner by name. But the whole record indicates conclusively that the plaintiff in error ivas the “prisoner,” who was found by the jury “guilty of murder in the first degree, as charged in the indictment.” As to the second reason assigned in the said bill, being-the reasons specified in the first and second bills of exceptions, that objection has already been disposed of. As to the third reason assigned in said bill, although it may have been the general practice formerly to charge,, in an indictment for murder by poison, that the accused knew the substance alleged to have been used in producing death was a deadly poison, yet it was held, as long ago as Mary Blandy’s case (1 Hargrave’s State Trials, 1), referred to by the attorney-general in this case, that such an averment is unnecessary. She was condemned and executed for murder by poison, and no such averment was contained in the indictment against her. A copy of the indictment may be found in 3 Chitt. Crim. Law, p. 773, marg.: and it may now be considered as well settled that such an averment is unnecessary. See Commonwealth v. Earle, 1 Whart. R., 525, also referred to by the attorney-general. See, also, the form of such an indictment in 1 Arch. Cr. Pr. & Pl., with Waterman’s notes, p. 944, top, 256 marg., which contains no such averment. There is, certainly, no good reason for requiring such an averment, in addition to the other averments contained in the indictment; and cei’tainly the defect arising from its omission, if such a defect at any time existed, was cured by the healing effect of our broad 667statute of jeofails in criminal cases; the objection having been made, for the first time, after verdict. ¥e are therefore of opinion that the Circuit did not err in overruling the motion in arrest of judgment. • And now, as to the fourth and last bill of exceptions. That bill states that after the jury had rendered their verdict of “guilty of murder in the first degree,” the' prisoner, by counsel, moved the court to set aside the verdict and award a new trial: first, because the said” verdict is contrary to the law and the evidence; and,second, because of an erroneous statement made to the' jury by the court, in this, to wit: After the evidence and argument of counsel were concluded, the jury retired to’ their room, and after a short time returned into the court-' room, and one of the jurors enquired of the court, in-the presence of all the jury, the prisoner and the coun-' sel, if they had a right in this case to find the prisoner guilty of any less crime than “ murder in the first degree?” The court, understanding the juror as referring to the second count having been quashed, and meaning “if the offence is proven as charged in the indictment,” (though he had not said so in terms,) replied, “bio; she is charged with nothing else; the second count has been quashed.” The juror who made the enquiry then repeated it more explicitly, as if seeking more fully to understand the court, to the effect: “If we believe, from the evidence, that she did administer the poison with intent to kill her husband, and that he died from it, can we find her guilty of anything less than murder in the first degree ? ” The court replied, “If you believe, from the evidence, that she did in person, or through the agency of another acting under her directions, administer poison to her husband, and that she did intend thereby to kill him, and that he 668did actually die therefrom, the law presumes malice, and you ought to find her guilty of murder in the first degree; if you do not thus believe, then you will find her not guilty.” The prisoner’s counsel expressed no dissent or objection to the question, reply or explanations, and took no exception. The-court overruled the motion to set aside the verdict and award a new trial for the reasons aforesaid. We will first consider the second reason above as-, signed, “because of an erroneous statement made to the jury by the court,” as aforesaid. We must take the whole account together, as given in the bill of exceptions, of this alleged erroneous statement made to the jury by the court. If we can suppose it possible that the jury had a right, in this case, in any view of it, to find the prisoner guilty of any less crime than murder in the first degree, certainly they had no such right, understanding the question of the jury to be qualified by the condition “if the offence is proven as charged in the indictment,” as the Circuit court understood it. But it was perfectly competent for the juror to explain his own meaning, and he did immediately explain it, and thus placed it beyond all controversy. So explained, the question of the juror ran thus: “If we believe, from the evidence, that she did administer the poison with intent to kill her husband, and that he died from it, can we find her guilty of anything less than murder in the first degree?” Certainly that question ■could not properly have been answered otherwise than in the negative, and the plainest, and perhaps best an■swer which could have been made to it was, “Ho.” The •court, however, answered the question in detail; and the question is, whether there be anything in that answer -which can make the judgment erroneous? If there be, 669certainly no objection was taken by the prisoner’s counsel on that ground at that time. It is expressly stated in the bill of exceptions that he “ expressed no dissent or objection to the question, reply or explanations, and took no exception.” Still, if there be anything in that answer which is erroneous, and could have prejudiced the prisoner, it might, and no doubt would be proper for the court to give her the benefit of the error now, though not objected to at the time, nor on the motion for a new trial, nor assigned as error in this court. If there be any such error it consists in supposing, if the answer does suppose, that the prisoner might be guilty only as accessory before the fact, and yet be properly found guilty of murder in the first degree, on the indictment in this case. At common law an accessory could not be convicted on an indictment against him as a principal felon, nor could the accessory be convicted until after the conviction of the princip al, though he might be included in the same indictment, and tried at the same time, with the principal. Our statute has made very material changes in the law, in regard to accessories before the fact, in cases of felony. The Code of 1860, p. 813, ch. 199, § 7, provides that “in the case of every felony, every principal in the second degree, and every accessory before the fact, shall be punishable as if he were the principal in the first degree.” And Id., § 9, provides that “ an accessory, either before or after the fact, may, whether the principal felon be convicted or not, or be amenable to justice or not, be indicted, convicted and punished in the county or corporation in which he became accessory, or in which the principal felon might be indicted. Any such accessory before the fact may be indicted, either with such principal or separately.” Far as these changes have gone, they seem not to have 670gone far enough to make an accessory before the fact to ° ° , “ felony liable to be convicted on an indictment against as principal. In England the statute of 11 and 12 Vict. c. 46, s. 1, has gone to that extent, in declaring that “ if any person shall become an accessory before the fact to auy felony, whether the same be felony at common law or by virtue of any statute or statutes made or .to be made, such person may be in dieted, tried, convicted .and ppnished, in all respects as if he were a principal .felon.” “In all cases of felony,” in England, “therefore, the accessory is punishable in the same manner precisely as the principal felon; and he may now be indicted, either as a principal — that is, he may be charged jn the indictment with having actually committed the offence as principal in the first degree — or he may be in-dieted as accessory, as for a substantive felony — or he .may be indicted as accessory, with the principal, at the .option of the prosecutor.” 1 Arch. Cr. Pr. and Pl., by Waterman, top 77, marg. 16. So also in Mississippi the ..statute has gone to that extent, in declaring that “every person who shall be accessory to any murder or other felony 'before the fact shall be deemed and considered as principal, and indicted and punished as such; and -.this, whether the principal has been previously convicted ,or not.” Rev. Code 572, art. 2; Josephine (a slave) v. The State, 39 Miss. R. 647. The statutes of some of the .other States have no doubt gone to the same extent. But ours, as before stated, have not yet gone so far. If, therefore, the Circuit court in this case, in saying to -,the jury that if they believed from the evidence that the ^prisoner did, in person or through the agency of another acting under her directions, administer poison, &c., to her husband, &c., intended to say to them that an accessory ■before the fact to murder might be convicted on an indictment 'against-him as a principal, we think the court 671■erred in that respect. The words “ through the agency ■of another, acting under her direction,” are equally consistent with the idea of the absence or presence of the prisoner at the time of her commission of the offence through such agency. If they were used by the Circuit court in the latter sense, and they could properly be construed in that sense, then there was no error. For a person present, directing, aiding or abetting in the commission of a felony, is a principal in the second degree, between whom aud a principal in the first degree there is no substantial difference, and both may be indicted and convicted as principal in the first degree. But assuming, as it may be proper to assume, that the words were used in the former sense, or at least in either •sense indifferently, and that the court erred in thus using them, is it an error for which the judgment ought to be reversed? It was not excepted to at the time it is supposed to have been committed, nor until after verdict, and on the motion for a new trial. In fact the objection that the words in question convey, and were intended to convey, the idea that the prisoner was, or may have been, a mere accessory before the fact, never has beeu taken by the prisoner or her counsel, either in the court below or in this court. Ho doubt because no such idea ever entered the mind of either. In truth there was nothing in the evidence to afford any foundation for such an idea, and an instruction assuming that the prisoner was a mere accessory before the fact would have been an abstraction, without any sufficient warrant in the evidence for its support. It is therefore at least doubtful whether the ■objection would have been of any avail if tafeen in due time. But not having beeu taken in due time, the question whether it is now available is a very different one from what it would have been if the objection had been "taken in time. The principles applicable to such a case 672were declared by this court m Bull's case, 14 Gratt., 613.lhere was a motion in that case to set aside the verdict misdirection in giving an instruction which was not a^ ^jme_ «(joeg 110^ appear,” said the court, “ that the prisoner was dissatisfied with this instruction at the time it was given, hut the contrary is to-be presumed. He did not except to it nor save the point, but asked the court further to instruct the jury; which further instruction the court gave in the very words in which it was asked. It cannot be expected that a court, in the hurry of a criminal trial, can be always ready to define a crime, or discriminate between the different grades of a crime in the same accuracy of language which would be used by a writer on criminal law. If a party be dissatisfied with an instruction he ought to state his objections at the time in order that the court may have an opportunity of removing them. If no objection be made at the time, nor any exception be then taken on the point saved, but objection be made for the first time after verdict, and in the form of a motion to set it aside, the court will consider whether, under all the circumstances, the party has been prejudiced by the instruction, and if of opinion that a just verdict has been rendered according to the law and the evidence, will not set it aside on account of that objection. Viewing' the case in that aspect, this court certainly cannot say that the Circuit court erred in refusing to set aside the verdict for misdirection.” These principles are at least as applicable to this case as they were to that in which they were declared, and we may well conclude what we have to say on this subject in the words in which the above quotation is concluded, that, “viewing the case in that aspect,this court certainly cannot say that the Circuit court erred in refusing to set aside the verdict for misdirection.” We'will now consider the only remaining question in 673this case, whether the verdict was contrary to the law . and the evidence? being the first reason assigned in the fourth bill of exceptions for setting aside the verdict and ,. , . awarding a new trial. The facts proved on the trial are certified on the record, and are substantially as follows: The prisoner, Susan Thornton, was the wife of William Thornton, and resided with her said husband on the land of Mr. Douglas Hancock, near the Red House, in the county of Charlotte. They lived unhappily together in consequence of an improper intimacy and intercourse between the prisoner and a colored man named Ed. Robinson, who lived on the same place, in a house to himself in Mr. Hancock’s yard. Prisoner was the cook of Mr. Hancock, and, when the day’s work was over, usually returned home to the house of her husband, about one-fourth of a mile distant, though she often stopped at Ed. Robinson’s house, where she sometimes remained with him all night; was frequently seen there at various hours in the night, and sometimes about daylight. She washed for Ed. Robinson. Their intimacy having become generally known in the community, she and Ed. Robinson were summoned before the church of which they were members, the first Sunday in July 1872, admonished of the impropriety of their course, and urged to abandon it; and upon refusal, were each turned out of the church, and their names stricken from the list of members. Prisoner told the church, members, when she was thus arraigned, that her husband was too old for her, could not attend to her, and she meant to get rid of him, and if Ed. Robinson wanted her she would have him, and no one could prevent her. William Thornton was sixty or sixty-five years old, was jealous of his wife’s intimacy with Ed. Robinson, and he and his wife did not live agreeably together on 674that account, though she continued to be recognized and treated by him as his wife, having free access to him and his house as her home. She absented herself more frequently and for longer periods after she was turned out of the church. Ho one lived in the house with them except the children and a colored girl who was hired to assist in taking care of the children during the absence of the prisoner. On Friday the 25th of October prisoner went to the store of Mr. Musgrove, at the Red House, and bought of him two table-spoonsful of arsenic; said she wanted it for her hogs, to prevent them from being stolen. The merchant, Musgrove, told her it was a dangerous and deadly poison, and cautioned her about its use, lest some person might be poisoned by it. During that week William Thornton was working at Mr. J. D. Hancock’s, took his meals from Mr. Hancock’s table, left there as well as ever on Saturday evening, 26th October, about an hour or an hour and a half by sun, to return home, and was taken violently ill during that night, with sick stomach and violent pain in the region of the bowels, with bloody discharges, and with indications of inflammation, and such symptoms as would be produced by poison, but might have been produced by other causes. At that time the colored hired girl was absent, on a yisit to her relations about eight miles oft'; several persons called to see him the next day and for a day or two thereafter; among others Mrs. Hancock, who administered to him a glass of Brandy; his wife was there during his illness; he died the following Thursday, and was buried in a substautial coffin in the usual way on the following Friday. Prisoner was called upon by Mr. Hancock and others; went to Ed. Robinson’s house, of which she had the key, and took out a brown paper containing a small portion 675of a white substance supposed to be arsenic, and delivered it up. She afterwards left the neighborhood; an officer, Mr. Ford, was sent with process to the county of Halifax to arrest her, and was accompanied by Mr. Hancock; they found her, and as they entered the house she threw herself quickly on the bed, with her back to them. Mr. Hancock took hold of her, addressed her by name, when she denied that she was Susan Thorntou, or that she knew Mr. Hancock or his father, and other persons in the neighborhood of the Red House, about whom she was asked; said her name was Sarah Rice, and that she was raised in Halifax; she did not appear much frightened ; afterwards acknowledged that she was Susan Thornton; knew Mr. Hancock and his father, her former master who raised her, and many in the neighborhood about whom she was asked; was fully identified, carried back under arrest to Charlotte and committed to jail. The body of William Thornton was disinterred about four days after his burial; an experienced physician was present and opened the stomach. There were signs of much inflammation ; the liver, lungs and bowels were greatly inflamed. The stomach indicated the presence of some kind of poison, but what kind could not be ascertained by the inspection that was then given. The stomach was afterwards taken out and carried to a chemist, who carefully examined it, subjected its contents to several well known tests, and was fully satisfied of the existence of arsenic therein. The examination of the stomach and analysis of its contents was conducted with great care by Hr. Michie, who had made himself familiar with the mode of detecting the presence of poison, and was fully satisfied of the presence of arsenic in that stomach in sufficient quantity to produce death. Such being the facts of the case, (which speak plainly *676enough for themselves without any comment-,) are they sufficient to sustain the verdict of the jury? Or rather, are they so plainly insufficient as to warrant this court in reversing the judgment of the Circuit court for overruling the motion of the prisoner to set aside the verdict and grant a new trial, on the ground that the verdict was contrary to the law and the evidence ? For that is-the true and only question which we have to decide on the subject now before us. We are clearly of opinion that, according to the well-settled authorities on the subject, we would not be warranted in reversing the judgment on that ground. In Grayson’s case, 6 Gratt. 724, the rules of law in regard to new trials are briefly and clearly laid down. Under the third head, the court say, that “where some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances and presumptions, anew trial will not be granted merely because the court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases the evidence should be plainly insufficient to warrant the finding of the jury. And this restriction applies, a fortiori, to an appellate court.” Without referring in detail to-the many decisions of this court on the subject, it is sufficient to refer to Read’s case, 22 Gratt. 924, 941, 945, where all those decisions are cited, and most of them briefly stated. In this case two juries concurred in finding the prisoner guilty of murder in the first degree ; and the judge who presided at the trial refused to set aside the last verdict, and rendered judgment thereiqion. We think there is no error in the judgment, and that it ought to be affirmed. Judgment appirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481877/	Bouldin, J. The question in this case (on the merits) grows out of the construction of that clause of the codicil to the will of William Womack, deceased, in which, after directing an equal division of the residue of his estate among his children, Francis Jefferson, James Madison, Uancy, Susan and Mary C., to them, their heirs and assigns forever, he qualifies the provision for Mary C. as follows: “Except my daughter Mary C.; and her portion, after deducting forty-nine dollars, I lend unto her during her life, and after her death I give the same to the lawful issue of her body, to them and their heirs and assigns forever.” The question is, what estate did Mary C. take in the residuum under this clause. The codicil was executed in 1830 or 1831, and was admitted to probate in 1831; and the clause in question brings again before the court for consideration the application and effect of the oft-recurring and much tortured rule in Shelley's case. The question has been carefully and ably argued by appellant’s counsel; but it is not my purpose to enter upon an examination of the cases in which it has arisen; for, as was well said by Lord Eldon, in Jesson v. Wright, “the mind is overpowered by their multitude, and the subtlety of distinction between them.” I shall not, therefore, at this late day undertake to discuss the question; but for an able and exhaustive investigation of this and kindred questions, beg leave to commend to the bar and curious 72enciuirers> the very powerful arguments of counsel in Moon v. Stone, 19 Q-ratt. 130; which for pains-taking industry and thorough research have rarely, if ever, , ,, , , -, , been equalled, and never surpassed, by any argument before this court. I think I may assume, as a proposition too plain to be questioned, that the words used in the testator’s will, “I lend to my daughter Mary C. her portion during her life, and after her death I give the same to the lawful issue of her body,” are, when used in a will, standing alone, apt and appropriate words, under the rule, to create an estate tail in Mary 0. as to the realty, and an absolute estate as to the personalty. The question supposed to be debateable is, whether the application of the rule is defeated by the superadded words of limitation, “to them and their heirs and assigns forever:” whether these words plainly indicate the purpose of the testator to provide for a new stock to take by purchase. The contrary has been held by a decided majority of the cases. It must be conceded, however, that there was at one time much conflict in the cases, both in England and America, as to the effect on the rule of such words, and others o± like character. See the English cases on the subject as collected and classified by Mr. Hayes in his excellent treatise, 7 Law Libr. p. , tables 1, 2, 3 and 4, where all the cases will be found. In the case of Jesson v. Wright, above cited, decidéd by the House of Lords, in 1820, the whole subject was fully considered, after an elaborate argument at the bar, in which Lord Eldon said: “Ho ease was ever better argued at this bar;” and words appropriate to create a tenancy in common, superadded to words creating’ an estate tail, were disregarded as repugnant to the 73previous words of limitation; and the rule was strictly applied. This decision was regarded at the time as settling the law of England in favor of a rigid application of the rule as settled by the earlier cases, regardless of such superadded words of limitation; and in that sense it was adopted and approved by this court in the ■case of Moore v. Brooks, 12 Gratt. 135. Judge Allen ■delivering the opinion of the majority of a full court in that case, says, p. 146: “Several eases have occurred since the case of Jesson v. Wright, and although in some instances the principle of that case may not have been followed out, yet the weight of authority is in favor of the rule there announced. The cases on this subject are reviewed in 2 Jarmin on Wills 271, ch. 37, and he concludes that the doctrine of Jesson v. Wright has prevailed, and stands on the soundest principles of construction. Hayes on Estates Tail 100, 7 Law Libr. 54, sustains the same proposition. See also to same effect, Powell on Devises 464, ch. 23, 22 Law Libr. 245.” And at p. 154, same case, Judge Allen concludes his opinion as follows: “I also think that the cases in this court are not in harmony with each other, and that it would be more in conformity with the spirit of the later,'as well as of the earlier cases in this court, and the true doctrine in regard to the rule in question, to hold that the superadded expressions do not clearly indicate an intention to use the terms as descriptive of any other class than heirs.” I think the case under consideration is ruled by the principle of the cases of Jesson v. Wright and Moore v. Brooks. It is true that the superadded expressions here are not the same used in the cases referred to; but I regard the principle established by those as ruling 74this. In the cases referred to, the superadded words would create a tenancy in common, whilst here they amount to a limitation in fee; but neither are suffi- • cient to take the previous limitation out of the operation of the rule, as the cases show. In 1822, in the case of Tidball v. Lupton, 1 Rand. 194, Judge Roane held it to be unquestionable, that an estate tail' would be created by words the same in effect, and, indeed, almost identical with those we are considering. By the first clause of the testator’s will in that case, he devised the premises in question to his daughter, “ Hannah Lupton, and to her and the heirs of her body, and to them and their heirs and assigns forever.” Here, the language is, “ to the lawful issue of her body, to them and their heirs and assigns forever.” The superadded words of limitation are identically the same in both cases. Judge Roane held that these superadded expressions were not sufficient to show an intention-on the part of the testator, that the heirs of Hannah Lupton should take by purchase as a new stock and not by limitation. He says, p. 204: “I am clearly of opinion that if there were nothing else in this will than the first clause, Hannah Lupton took an estate tail in the premises.” It is proper to add, that I have cited this opinion of Judge Roane, to show his individual views of the law on the question under consideration. His construction of the first clause was fortified by another clause; and the decision did not rest on the first clause alone. His views of the question, however, are in accord with a majority of the cases. I am of opinion therefore that the testator’s daughter, Mary 0., took an absolute estate in the slave Martha, and that the bill in this case should have been dismissed on the merits. 75But were this otherwise, my opinion is that the claim is purely a legal one, that the plaintiff in the court below showed no good reason for going into a court of equity, and that his bill should have been dismissed for want of jurisdiction. The only color-able ground for equitable jurisdiction is the following allegation: “ That the said slave Martha is still in the possession of said Hall, and has several children, whose names are unknown to your complainants, and the said Hall refuses to make any disclosure, or give them any information on the subject. The prayer, it is true, is for a disclosure by Hall of the names and number of Martha’s children, whether any had been sold, and if so to whom, and what was their value, that an account of hires might be taken of the slaves, and their profits decreed to them, and for general relief. But it will be observed that the only matter of which the complainants allege ignorance in the charging part of the bill was the names of the children, not their number; and they no where allege that they had no means of ascertaining the names except by a discovery from Hall. The answer alleges that the defendant, Hall, had never sold any of the slaves, and denies that he had “ refused to state the number and the names of the children, further than to say that he did not know the names of all, as he does not now. The number he has always stated when called on, and the names might at any time have been obtained by inquiring at his house; and there was no obstacle to their proceeding at law, which they might not by common diligence have removed.” Ho evidence was taken on either side, and the question is, “ Was there proper ground shown for coming into a court of equity to assert the legal title to the slaves in controversy ?” 76The Prin°iple by which we should be governed in responding to this question, was very clearly laid down by Judge Baldwin, speaking for the court, in the case of Armstrong v. Hunton, 1 Rob. R. 323, 326-'7; and has been approved by this court in the recent case of Childress v. Morris, decided at Staunton, 23 Gratt. 802. Judge Baldwin said: “It is perfectly clear as a general rule, that in a bill to substitute an equitable for a legal forum, a prayer for a discovery, without any averment showing its materiality or necessity, is naught. If this court has tolerated a departure from this rule in regard to slave property, (Gregory’s adm’or v. Marks’ adm’or, 1 Rand. 355,) it is when the necessity for a discovery was supposed to be incidental, at least prima facie, to the nature of the demand; as where the suit is to recover a stock of slaves, after a considerable lapse of time, and there has been such an increase as to raise a fair presumption that the plaintiff is ignorant of their names, ages and residences. But even under such circumstances, if it may be inferred from the statements in the bill, or the evidence in the cause, that no such difficulty in point of fact exists, a court of equity will not take cognizance of the case unless there be some other ground for the exercise of its equitable jurisdiction.” Citing Hardin’s ex’ors v. Hardin, 2 Leigh 572. See also Jones v. Bradshaw, 16 Gratt. 355, and Hale &c. v. Clarkson &c., to be reported 23 Gratt. 42, where this qualification of Judge Green’s doctrine in Marks v. Gregory is approved. I think it perfectly apparent from the bill and answer in this case—and there is nothing else— that there existed, in point of fact, no difficulty on the part of the complainants in reaching the facts of their case at law;, and there was no ground or necessity for -a discovery. They allege in the bill ignorance of but 77one fact, and that an unimportant fact, the names of the slave Martha’s children. They do not pretend that they are ignorant of their number or residence, or that they believe that any of them have been sold. The prayer on that subject is purely colorable. Whilst, on the other hand, the defendant swears positively that he had informed them of their number, that none of them had been sold, and that they were all still in his possession. They knew the name of the mother, for they name her in the bill; and we have a right to infer from the pleadings that they knew also the number of her children; and the conclusion is almost irresistible from the whole, that they could, without difficulty, have ascertained their names, if deemed important. But it was not at all necessary to know the names of the children to maintain a suit at law for them. An action of detinue could have been maintained for the slave Martha and her six children, without setting forth their names, and a jury could readily and easily have ascertained their value and hires. The ground alleged for coming into a court of equity was colorable only, and my opinion is that the bill should have been dismissed for want of jurisdiction. On both grounds I am of opinion that the decree of the Circuit court is erroneous, and should be reversed with costs to the appellant; and a decree should be entered dismissing the bill with costs to the defendant in the Circuit court. The other judges concurred in the opinion of Bouldm, J. Decree Reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481878/	Moncube, P. These two cases are founded upon an award, and upon the same award. The controversy in them lies in a narrow compass. I think both cases depend upon a single question, and that is: ££ "Whether the award is within the submission or not as to Sutherlin ?” If it be, then I think it is valid both as to Sutherlin and Buford. But •if it be not within the submission as to Sutherlin, then it is clearly void as to him, and a question will in that case arise, “ Whether it is not therefore void also as to Buford?” Other questions were noticed in the argument, but they seem to me to be free from any doubt or difficulty, and will perhaps be sufficiently answered by what I may say in answer to the main question above stated; though I may notice some of them more particularly in the sequel of this opinion. I will therefore proceed at once to consider the main question, “ Whether the award be within the submission or not as to. Sutherlin ?” There is no principle of law better settled, than that ■an award to be valid must be within the submission. It would be a waste of time to cite cases in support of a principle so well settled. Indeed, it is a self-evident principle. An arbitrator derives all his authority to make an award from the submission. He has no more authority, outside of the submission, to make 80an award between the parties than has any other person. In other words, he has no such authority at all. There is another, principle of law just as well settled as the one already referred to, and that is, that an award, being the judgment of a judge of the parties own choosing, ought to be favorably viewed by the courts; and effect ought to be given to it by them, whenever that can be done consistently with the rules of the law. One of these rules, as we have seen is, that the award must be within the terms of the submission. In 1859, Pollock, a resident of Scotland, sold to-Fitzgerald, a resident of Virginia, a tract of land lying in Pittsylvania county, and deposited the deed therefor to the purchaser in the Bank of Virginia in Danville, it seems, as an escrow, to be delivered on the payment of the purchase money, which, or the greater part of which, was payable in deferred instal.ments. Before the money was paid, or the deed was delivered, the war came on, which, of course, cut off all communication between Pollock and Fitzgerald. During the war, a sale of the land was made by Fitzgerald to Sutherlin, through the instrumentality, it seems, of Buford, who claimed tó be the agent of Pollock, with full authority from him to do what he did. By these means the deed was obtained from the bank and delivered to Fitzgerald, who then conveyed the land to his vendee, Sutherlin. It seems that the latter paid a large portion of the purchase money due by him in Confederate currency to Buford, who received the same, and deposited it from time to time as received in bank to the credit of Pollock. After the war was over, the representative of Pollock (who had died in the mean time), upon inquiry into the state of the case, ascertained what had been done as aforesaid, 81and that Fitzgerald and the bank had both become insolvent, leaving the purchase money due to him by the former, or the greater part of it, unpaid. Thus, of course, a controversy at once arose between Pollock’s representative, and Sutherlin and Buford ; Pollock’s representative claiming that what had been done by Buford as his agent, in regard to the delivery of the deed to Fitzgerald, the receipt of the money from Sutherlin, and the deposit of the same to his, Pollock’s credit in bank, was wholly unauthorized, and that he was entitled to a lien on the land for the payment of the purchase money and interest, which still remained due to him from Fitzgerald. On the other hand, Sutherlin claiming that the said deed was duly delivered; that the purchase money due from Fitzgerald was fully paid, and, at all events, that the said land then in his possession was not liable for the payment of the said purchase money, or any part thereof; and the said Buford claiming that he did not exceed his authority as attorney for said Pollock, and that the money received by him for said Pollock was deposited in the bank of Virginia at Danville to the credit of said Pollock, and had been lost without default on his part by the political and financial results of the late war. Such being the controversy between these parties, it was necessary to have it determined, either by the action of the courts established by law, or by the award' of an arbitrator mutually chosen by the parties for the purpose. The country was then subject to military power, and the courts were composed of judges who had not the confidence of the public. The parties, therefore, naturally preferred to have so important a controversy determined by the award of an arbitrator' chosen by themselves; They suc82eeeded in finding and choosing one who, by their own admission, was suitable.in every respect to perform the duty, and who was willing and consented to do so. . Having agreed to refer the controversy to an arbitrator, and having chosen an arbitrator so fit and competent in every respect, and who seems to have had the entire confidence of all the parties, it was natural and reasonable that they should invest him with the amplest powers to settle the controversy in such manner as he might think to be just and right. And now let us look at the submission, and see whether and to what extent such was actually the case. The submission is by deed, under the hands and seals of the parties, who were Berryman Green, administrator of Mori’is Pollock dec’d, Morris Pollock Jr. (son and sole heir of Morris Pollock deceased), by H. Robertson, his attorney in fact, A. S. Buford, and "W. T. Sutherlin. It bears date the 24th of March, 1869; and after reciting the facts in regard to the nature of the controversy, and the conflicting claims of the parties, it further recites that “ the said Edmond Eitzgerald and the said Bank of Virginia are both insolvent, and the matters of controversy aforesaid involve novel and difficult questions of law as well ■as óf fact.” And then, after stating the qualification of Berryman Green as administrator of Morris Pollock deceased, and the authority of Harrison Robertson as attorney in fact of Morris Pollock Jr., sole devisee and legatee of - Morris Pollock deceased, to submit to arbitration any matter affecting his interest in the premises, it concludes the recitals with one in the following words: “And whereas all the parties interested (except • the insolvent Edmond Eitz83gerald and the Bank of Vii'ginia) are willing to settle and adjust all the matters in controversy aforesaid with the least possible delay and expense, consistent with .justice to all, and to that end have agreed to refer all the said matters of controversy, both of law and of fact, to the arbitrament and decision of Gustavus A. Wingfield, of Liberty, Bedfoi’d county, Virginia, and to be bound by his award as final and decisive, having all confidence in his industry, skill, learning and .judgment, and his impartiality and integrity of character.” After making these recitals, the submission thus proceeds: “ Now, therefore, the said ” (parties, naming them,) “do hereby submit to the arbitrament, award and decision of the said G. A. Wingfield, all the matters of controversy aforesaid, both of law and fact; and do hereby covenant severally, each with the others, and any one of the others, in the penalty of $10,000, to abide by, keep, perform and fulfill, in all things well and truly, the award, arbitrament, decision and orders of the said G. A. Wingfield in the premises, so as such award,” &c., “shall be given in wiiting under the hand of the said G. A. Wingfield within, at the farthest, twelve months next succeeding the date of these presents. “And we do further agree that in ascertaining the facts of the matters of controversy hereby submitted, the said G. A. Wingfield shall and may consider and weigh all the testimony that he can find, or that may be produced to him, relevant to the subject matter, whether the same would be admissible according to the sti’ict rules of evidence in court or not, giving to such testimony such weight as he may think due and proper; and having ascertained the facts of the case, to the best of his means, skill and ability, he shall de84cide and order the rights and duties of the parties in the premises, according to the principles of a court of equity, and shall order and award what shall he done by any or all of the parties.” After empowering the arbitrator to fix his own compensation, and prescribe how the same and his traveling or other expenses should be paid by the parties, or any of them, the submission contains the following concluding clause: “And we do further agree that he shall be at liberty, if he thinks proper, to make his award as to any one or more of the parties, or to any portion of the matters in controversy as aforesaid at any time within the period of twelve months aforesaid, without waiting for a full and final award of all the matters aforesaid; and such award in part shall be binding upon the parties, and in such case he shall go on to complete the full and final award as to the remaining matters as soon as practicable.” We thus see from the submission, that, as might well have been expected from the nature of the controversy, the character and qualifications of the arbitrator, and all the surrounding circumstances, he was invested with the amplest powers for the settlement of' the matters in dispute between the parties, and putting an end to all controversy on the subject. To be sure, he was not expressly empowered to settle any matter whatever of controversy which might possibly exist between the parties, but to settle a particular matter of controversy, which was in fact, no doubt, the only matter of controversy between them. Butin regard to the settlement of that matter, and everything involved in it, he was invested with ample and, indeed, with extraordinary powers. It would have been difficult to-have used expressions stronger than those which were-85used in the submission, to give the arbitrator full and complete power over the subject referred to him. And yet the learned counsel of Sutherlin and Buford contend that these provisions, or some of them, were intended to restrict and not to enlarge the powers of the arbitrator; and they refer to those relative words, such as “ matters of controversy aforesaid,” which they say are carefully used in connection with all the powers conferred on the arbitrator, for the purpose of indicating that they are to be exercised only in regard to the particular claims of the different parties recited in the preamble of the submission. Certainly the submission relates only to the controversy which actually existed between these parties, and which is referred to in general terms in the preamble; but it was plainly intended that the most ample powers should be conferred on the arbitrator in regard to the decision of that controversy, and every question involved in it. Uo intention is manifested in the instrument that those general terms should be construed in any narrow and restricted sense, in ascertaining what was the subject of the reference. On the contrary, the preamble expressly declares that- “ the matters of controversy aforesaid involve novel and difficult questions of law as well as of fact,” and that the parties “are willing to settle and adjust all the matters of controversy aforesaid with the least possible delay and expense consistent with justice to all.” To construe the submission in the restricted sense contended for as aforesaid, would be contrary to the settled rules of law in regard to the subject of arbitration and award, according to which rules that amicable mode of settling controversies has always been highly favored, and has recently become much more 86so both in England and in this country. It would also be contrary to the manifest intention of the parties in this case, as indicated, not only by the terms of the submission itself, but by all the surrounding circumstances. Can we doubt that the parties intended to refer the whole matter of controversy to the final decision of such an arbitrator, one so competent to decide it, and so worthy of confidence in every respect? Can we suppose that they intended to refer only the narrow and single question of lien or no lien as to Sutherlin, and to leave the further and final settlement of the matter to the action of the courts? Their declared object was “to settle and adjust all the matrera of controversy aforesaid,” including the novel and difficult questions of law as well as of fact involved therein, “with the least possible delay and expense consistent with justice to all,” and that they should “be bound by his award as final and decisive.” And they conferred on him the fullest and most extraordinary powers in regard first “to the ascertainment of the facts, and then to the decision and award to be made thereupon. "What is said in the award about “the principles of a court of equity,” was manifestly intended, I think, not as a restriction upon the powers of the arbitrator, but rather as an enlargement of such power, and expressly to show that in settling the controversy and making his award he might apply to the case any principles of a court of equity that might be applied to it by such a court if the case were properly before it. Having examined and considered the submission, I will now proceed to examine and consider the award. It is a very brief and plain instrument, consisting, besides a short preamble, of but three clauses; not setting out any of the testimony in the case, nor any 87part of the process by which the facts were ascertained by the arbitrator; but (after “having ascertained the facts of the case to the best of his means, skill and ability,”) simply deciding what were “ the rights and duties of the parties in the premises according to the principles of a court of equity,” and awarding what should “ be done by any or all of the parties.” The preamble recites that the arbitrator, in pursuance of the submission, proceeded to arbitrate and determine the several matters of difference specified therein, the several parties being present in person, except Morris Pollock, Jr., who appeared by Harrison Robertson, his attorney in fact; and after haying heard the parties, examined their witnesses and documentary evidence, and fully considered the same, as well as the arguments of the counsel of the several parties, had decided and determined, “ and do hereby decide, determine and award, as follows, viz ”: and then follow the three clauses of the award: “1st. That the said William T. Sutherlin do pay to the said Berryman Green, administrator with the will annexed of Morris Pollock, deceased, the sum of $7,574.67, withdnterest thereon after the rate of six per cent, per annum from the first day of May 1865 until payment; and that upon the payment of the same, the said deed from the said Morris Pollock, the elder, to the said Edmond Eitzgerald, bearing date the first day of December 1859, shall be taken and held to be the absolute deed of the said Morris Pollock, and conclusive and effectual for the conveyance of all his right and interest in or to the tract .of land therein mentioned, and the said Morris Pollock, Jr., shall be thereby forever concluded and barred from having or claiming the said land as the heir or devisee of the said Morris Pollock, the elder. 88“ 2d. That the said A. S. Buford do pay to the said Berryman Green, administrator as aforesaid, the sum of $4,456.29, with interest thereon after the rate of six per cent, per annum from the first day of May 1865 until payment; and that the said Buford shall be entitled to receive and have for his own use, whatever sum the said Bank of Virginia may be liable to pay on account of deposits in its branch at Danville, rpade in the name of or to the credit of the said Morris Pollock, after the first day of January 1863; and may use, and the said Berryman Green, administrator as aforesaid, shall allow the said Buford at his own proper costs, to use the name of him (the said administrator) in any proper suit or proceedings, to recover the same from the said bank or any other party who may be liable for the same; and the said Green, as such administrator, shall be entitled to recover all of the said deposits deposited in the branch bank in the name of or to the credit of his said testator before the said first day of January 1863. And “3d.,” &c. This clause relates only to the compensation of the arbitrator. Now, it is not pretended that this award was procured by corruption or other undue means; or that there was any, the least, partiality or misbehavior in the arbitrator. But the objection is that the award is not within the terms of the submission, and that the arbitrator exceeded his authority. If he did, the award, to that extent at least, is certainly void. I will now proceed to enquire whether he did or not. The only objection which has been made to this award to show that the arbitrator exceeded his authority is, that it awards a sum of money to be paid by Sutherlin, instead of awarding, as to him, that Pollock’s representative had a lien upon the land 89claimed by Sutherlin for the balance of the purchase money due to the former by Fitzgerald for the said land; and that in that respect the award is not in pursuance of the submission. If this were so, it is manifest that the objection would be purely technical, and that Sutherlin would be actually benefited by the arbitrator’s making the •award as he did. We may presume, as no doubt was the fact, that the land was worth, and would at any time command in the market, a great deal more money than was awarded against Sutherlin; that Sutherlin was a man of wealth, had the command of money, and would instantly, of course, have paid the amount of the lien upon the land so soon as it was ascertained, and not incur the risk of a sacrifice of the land at a public sale. The arbitrator may therefore very reasonably have supposed that all that Sutherlin desired to know was, whether his land was liable to the lien claimed by Pollock, and, if so, how much money he would have to pay to relieve the land of the incumbrance, and thus to perfect his title; and, taking this view of the subject, the arbitrator therefore may have apportioned the amount due to Pollock’s administrator from Fitzgerald, between Sutherlin and Buford on equitable principles, and awarded the payment by them of their portions respectively, and that upon the payment of -Sutherlin’s portion the land should be discharged from the. said incumbrance, and the deed from Pollock to Fitzgerald become valid and effectual. Of course the arbitrator had no right to exceed his authority, and, if he did so, his award to that extent is invalid, even though he may have supposed, and it may be true in point of fact, that the parties would be benefited by such excess of authority, unless, indeed, they confirmed it afterwards. 90But the question is, “ Did he exceed his authority?” And upon that question what I have just said sheds a stream of light. What authority did the parties intend to confer upon the arbitrator by the submission liberally construed in the light of all the surrounding circumstances ? It is not an unreasonable answer to that question to say that they intended to give him authority to do precisely what he did do by his award. If the arbitrator did not exceed his authority in awarding the payment of a sum of money by Sutherlin, instead of merely awarding that the land was liable to a lien therefor, then the award is not invalid in that respect, even though he may have erred in matter of law or fact in so awarding. All the said matters of controversy, both of law and, of fact, were expressly referred to the arbitrator by the parties, who agreed to be bound by his award as final and decisive. If therefore his award, being within the terms of the submission, was manifestly wrong, both in law and fact, no court could for that cause set it aside: Because the parties preferred to submit their controversy to the final decision of a judge of their own choosing, rather than a court constituted by law,' and it would be not merely an excess, but a usurpation of authority in snch a court to set aside an award, however unjust it might appear to be, merely upon the ground that there was an error of law or of fact in the decision of the arbitrator. But can we say that there is an error of law or fact in the decision of the arbitrator in this case? We do not know what documentary or other evidence there was, or what was said by the parties or their counsel before the arbitrator. None of these matters are set out in the award, nor was it necessary that they should 91be. But the award does expressly affirm that the several parties were present in person, or by attorney in fact, before the arbitrator; and that he heard the" parties, examined their witnesses and documentary evidence, and fully considered the same, as well as the arguments of the counsel of the several parties; and thereupon decided and determined the several matters of difference specified in the submission, and made his said award accordingly. “ Everything is presumed in favor of awards;” is the language of Cabell, J. delivering the opinion of this court in Richards v. RrocJcenbrough’s adm’or, 1 Band. 449, 456. Bow let us presume in favor of this award (and it is certainly not an unreasonable nor an improbable presumption), that it appeared to the arbitrator, from the documentary and other evidence which we see was before him, that it was agreed between the parties that Sutherlin should apply the purchase money due by him for the land to the payment of the balance remaining due by Fitzgerald to Pollock for the same land, and thus should indemnify Fitzgerald, the intermediate vendee of Pollock and vendor of Sutherlin; and that at the time of the award there remained due for the land, by Fitzgerald to Pollock, a balance of $12,030.81, and by Sutherlin to Fitzgerald a balance of $7,574.67. Can there be a doubt but that a court of equity in such a case, at the suit either of Fitzgerald or of Pollock, would decree the balance due by Sutherlin to be applied pro tanto to the payment of the balance due by Fitzgerald to Pollock, and would therefore give a personal decree, as the arbitrator has given a personal award in favor of Pollock’s administrator against Sutherlin for the said balance of $7,574.67, taking care in the decree, as the arbitrator took care in his award, that upon such payment Pollock’s deed to Fitz92gerald should become good and valid, and Sutherlin should hold the land free from any lien or claim on the part of Pollock or his representative? Certainly Fitzgerald would have had a right to such relief in a suit in equity brought by him; and Fitzgerald being insolvent, certainly Pollock’s representative would have had an equal right to such relief in a suit in equity brought by him. All the parties, except Fitzgerald (who was not only insolvent, but I believe also a nonresident of the state), having referred the matters in controversy between them to the decision of an arbitrator, and expressly empowered him to “ decide and order the rights and duties of the parties in the premises, according to the principles of a court of equity,” and to order and award what should be done by any or all of the parties, it follows, as a necessary consequence, that the arbitrator had power to award, and upon the presumption aforesaid, properly awarded as he did, that Sutherlin should pay to Pollock’s administrator the said sum of $7,574.67, with interest thereon as mentioned in the award. But even if the arbitrator erred, and plainly erred, in his decision in this respect, no court has a right to set aside his decision, and make one of its own. All the said matters of controversy, both of law and of fact, were expressly referred by the parties to his decision, which, whether right or wrong, must be final and conclusive,- unless the award be invalid; which it cannot be upon the ground that the arbitrator erred in his judgment, either upon the law ■or the fact. Smith $e. v. Smith ¿•c., 4 Band. 95, is authority upon this point. The question submitted in that case was, whether certain slaves were to be considered as undisposed of by a testator, or were to go to his residuary legatee. The arbitrators de93cided that the property was not bequeathed by the testator; and the court of appeals was clearly of opinion that they mistook the law. But the award was nevertheless held to be binding. 2 Bob. Pr., old ed., p. 195. Other presumptions could, no doubt, be fairly made to sustain the validity of the award; but surely I have already said enough for that purpose; and I am therefore of opinion that the arbitrator did not exceed his authority in awarding that Sutherlin should pay to Pollock’s administrator the sum of $7,574.67, with interest, as aforesaid. These eases were very ably argued by the counsel on both sides, and I would be glad to notice in detail other grounds of objection taken by the counsel of Sutherlin and Buford, and also to review the authorities referred to by them; all or most of which I have examined. But I do not think it necessary to do so, after what I have already said. The learned counsel for those parties contended that the arbitrator awarded what he was not authorized to award, to wit: the payment of money by Sutherlin and Buford respectively to Pollock’s administrator; and omitted to decide what alone he was authorized to decide, to wit: in regard to the conflicting claims recited in the preamble, and especially the claim of Pollock’s administrator to a lien upon the land for the payment of the balance claimed to be due to him by ' Fitzgerald. They seemed to think that the proper and only office of the arbitrator was, to' respond directly to the question of lien or no lien, and other like questions arising on the recitals of the preamble. And that the question of lien or no lien lies at the foundation of the controversy, and was necessary to be decided before and above all other questions in the case. With the high94est respect for the learning and ability of these gentlemen, I think they place a too narrow and restricted construction upon the submission, when it ought to be liberally construed, according to the rules of law which govern all arbitrations, but especially in view of all the surrounding circumstances before referred to. The question of lien or no lien was certainly an all important question in the case, but it was as a means rather than an end which the parties had in view. The end of the controversy was the receipt and payment of money, and the quieting of a title to land. Pollock’s administrator claimed that money was due to him by Fitzgerald for the purchase of land which had not been conveyed to Fitzgerald by a valid deed, but which the latter had sold to Sutherlin; and that he, Pollock’s administrator, had alien on the land for the payment of said purchase money. How it was necessary that the arbitrator should enquire into and satisfy himself upon all these and other like questions arising in the case; but it was not at all necessary that he should state in detail in his award, all the steps taken, and all the facts ascertained by him in the course of his enquiries. The body of the submission, not the preamble, expressly prescribes his duty in this respect. The parties there agree, “that, in ascertaining the facts of the matters in controversy hereby submitted, the said G-. A. Wingfield shall and may consider and weigh all the testimony that he can find, or that may be produced to him, relevant to the subject matter, whether the same would be admissible according to the strict rules of evidence in court or not, giving to such testimony such vreight as he may think due and proper; and having ascertained the facts of the case to the best of his means, skill and ability,” (now we come to what he is to set down in 95his award) “shall decide and order the rights and duties of the parties,” &c., and shall order and award what shall be done by any or all of the parties.” For example, shall decide and award how much money Sutherlin should pay to Pollock’s administrator, if any? What is to be the effect of the deed from Pollock to Fitzgerald upon such payment by Sutherlin? How much money Buford should pay to Pollock’s administrator, if any? and what should be his, Buford’s, right in regard to the money deposited in bank, &c.? In making such an award, the arbitrator necessarily decided all the questions arising in regard to the claims referred to in the preamble, and necessarily decided them in a certain way, which we cannot misunderstand. I have referred to very few authorities in the foregoing opinion, because I think there can be no controversy in regard to the law involved in the case. I might refer to many cases, English and American, in support of what I have said in regard to the favor which is shown to awards; but surely I need not; for their name is legion, and they speak to that effect, una voce. Hone of those decisions tend more strongly iú that direction than do those of this court. Among them are the following: Ross v. Overton, 3 Call 309; Morris v. Ross, 2 Hen. & Mun. 408 ; 1 Rand. 449, Richards v. Brockenbrough’s adm’or; 3 Id. 122, Head v. Muir, &c.; Armstrong v. Armstrongs, 1 Leigh 491; and Bassett’s adm’or v. Cunningham’s adm’or, 9 Gratt. 684. In Richards v. Brockenbrough, the court say that “everything is to be presumed in favor of an award.” In Head v. Muir, &c., Judge Carr, in delivering the opinion of the court, reviews very fully the subject of awards. In Armstrong v. Armstrongs, the same great judge delivered an opinion in which all the *96other judges concurred, in which it was held that “ all fair presumptions shall be made in favor of an award; and if on any fair presumption the award may be brought within the submission, it shall be sustained." In Bassett’s adm’or v. Cunningham’s adm’or, Judge Allen delivered an opinion in which all the other judges concurred, in which the same doctrines are maintained. The result of my opinion is, that in the case of Pollock’s adm’or v. Sutherlin, the judgment of the Circuit court must be reversed, the defendant’s demurrer to the plaintiff’s replication overruled, and the cause remanded for further proceedings to be had therein; and in the case of Buford v. Pollock’s adm’or, the judgment of the Circuit court must be affirmed. Anderson, J. concurred in the opinion of Moncure, P.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481879/	Staples, J. dissented. He thought the arbitrator exceeded his powers. Sutherlin’s case reversed. Bupord’s case ap~ PIRMED.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481880/	Staples, J., delivered the opinion of the court. The first question to be considered is as to the power of the city of Norfolk to impose a license tax upon foreign insurance companies doing business within the limits of that city. This is to be determined upon the provisions of the city charter and the various statutes found in the Code of Virginia relating to the government of towns. The charter provides that “ for the execution of their powers and duties, the city councils may raise annually from taxes and assessments in said city such sums of money as they shall deem necessary to defray the expenses of the same, and in such manner as they shall deem expedient, in accordance with the constitution and laws of this state and of the United States.” Acts of 1870-71, p. 187, 198, § 42. This provision is substantially if not literally the same as that contained in the sixty-ninth section of the charter for the city of Richmond. Acts of 1869-’70, page 138. In the “ Lawyers’ case,” not yet reported, (23 Gratt. 464), it was' decided that the latter section conferred upon the corporate authorities of Richmond the general power of taxation, except only as it may be limited by the laws of the state or of the United States, and includes all persons and subjects of taxation. The objection was made in that ease, that a power to license involves in its exercise the power to prohibit without such license; and that such power vested in a 99municipal corporation is incompatible with the rights of attorneys conferred by their general license to practice in any and every part of the state. This objection did not prevail. Judge Anderson upon this point, speaking for the entire court, conceded that the city authorities could not prohibit attorneys at law, already licensed, from practising their profession within the city limits. The exercise of the vocation was however a civil right and privilege, to which are ■attached valuable immunities and pecuniary advantages, and is a fair subject of taxation by the state and by municipal corporations. The power to impose a license tax upon the profession is included in the general power of taxation given by the sixty-ninth section of the charter, and is not taken away by subsequent limitations. It must be remembered that the questions arising in the “Lawyers’ case” were not hastily decided; they were twice elaborately argued by very able counsel, •and they were very carefully considered by the court. The judges did not agree in their views as to the mode of assessment adopted by the city council of Richmond; but there was an entire concurrence of opinion in regard to the power of taxation. The principles settled by that ease are decisive of this. In neither case is the attempt made to prohibit the exercise of the business or vocation. The license required by the corporation is merely a mode of assessing the tax; if it be reasonable and just, it matters but little by what name it is called. The power to impose fines ■and penalties for a failure to pay the tax required, is not only an incident to the power of taxation, but is expressly conferred by statute. Acts of 1870-’l, sec. 19, page 194; Rev. Code 1873, chap. 54, sec. 32, page 528. 100It only remains to consider whether the legislature has by express' enactment exempted these companies from all municipal taxation. The claim to this exemption is based upon the provisions of the 57th section, chap. 385, Acts of 1871-2, page 484. This section imposes a specific license tax of $200 upon each insurance company doing business in the state, and in addition thereto a tax of one-and-one-half per centum upon the gross amount of all its assessments and premiums received in the state. It further provides, that any company paying this tax, shall be entitled, without payment of any additional tax, to do business in any and every part of the state. It is insisted that the effect of this provision is to relieve insurance companies from the payment of any additional tax, state, county or municipal. As was said in the case of the Orange and Alexandria Railroad Company v. City Council of Alexandria, 17 Gratt. 176, 181, the real purpose of the legislature is the thing to be ascertained; and this is to be done by having regard not only to the literal sense of the words in question, but also to the context in which they stand, the subject-matter of the section, and the reasons and purpose of the exception apparent from its provisions. In that case, the claim of the railroad company to exemption from all municipal taxation, was based upon the language of the twenty-fifth section of the act of March 18th, 1856. That section provided “ that every railroad company paying the tax imposed by that act shall not be assessed with any tax on its lands, buildings or equipments.” This language, though very comprehensive, did not, in the opinion of this court, sustain the claim of the railroad company to the proposed exemption. 101Judge Joynes, with whom the other judges concurred, said that the act to which that section belonged was a general law, imposing taxes for the support the government, and related exclusively to taxes to be paid the state. It only changed the form of taxing the companies, and gave the exemption from the tax in one form, where the tax in the other form has been paid. But no considerations of reason or justice required that this exemption shall be extended to city taxes, for which no commutation was provided, and which was wholly independent of the tax to the state. These observations apply with peculiar force to the case under consideration. The 57th section of chapter 885, Acts of 1871-% upon which plaintiff in error relies, cannot be considered in any sense a contract between the state and the insurance companies. It was adopted purely as a revenue measure for state purposes. It was designed as a substitute for another form of taxation under previous statutes. Under these statutes, a specific tax was imposed upon each agency in the state, to be assessed and collected in the district in which the agency was located. The legislature intended to alter this mode of assessment and collection, and to substitute for it one uniform specific tax, to be paid at the capitol; and thus relieve the insurance companies and their agents of the burden and annoyance resulting from a multitude of state assessments and collections. To place the matter beyond all controversy—to remove all ground for dispute as to the purpose to abolish the local assessments— it was declared that any insurance company complying with the provisions of the act shall be entitled, without the payment of any additional tax, to do business in any part of the state. The statute does 102not use the words “ any other tax,” hut the phrase- “ any additional tax,” clearly implying an exemption from any further state taxation. Long anterior to this legislation, insurance companies, foreign and domestic, were subject to municipal taxation. It is not to be presumed that the-legislature, merely in reforming its plan of assessment and collection, designed to take from the towns- and cities of the state an important branch of their revenue. Certainly no such radical change in the privileges of these municipalities would be established, without any satisfactory and controlling reasons. Hone such are shown to exist in this case. It may be, as is contended there is, a slight increase of taxation upon these companies; but still it does not exceed that imposed upon telegraphy express and transportation companies, and others of a like character. The act makes no discrimination against foreign companies, but places them upon the same footing-with the domestic; and thus removes every pretense for the complaint that the state pursues an invidious and discriminating policy in behalf of her own citizens. That this policy is not regarded as harsh or oppressive is apparent from the fact that these companies are multiplying all over the state, establishing their agencies in every city, and, as we may fairly presume, doing a lucrative and valuable business, among the people. They derive their chief revenue from the towns; within their limits the principal officers and agencies are located; the lives and the dwellings they insure ■ are under the protection of the municipal authorities; the fire departments which secure these dwellings from conflagration, the police which guard *103the life of the citizen against violence, and all the varied and expensive sanitary regulations which promote health, guarding every avenue against the approaches of pestilence, all these operate undoubtedly to the advantage of the insurance companies. In proportion as life and property are made secure, their profits are increased. Are they to enjoy the benefits of good government, without contributing in any degree to its expense ? Are they alone to be exempt from those common burdens which devolve upon all the inhabitants of towns and cities ? It is difficult to believe that such was the purpose of the legislature. And until that purpose is disclosed in the most unequivocal terms, the courts ought not to allow an exemption from a just and reasonable public burden—an exemption inconsistent with the rights and privileges uniformly accorded to Virginia towns, and which must, in some degree, diminish their resources, and affect their interests. For these reasons the judgment of the Corporation court of TsTorfolk must be affirmed. If by this decision injustice is done insurance companies doing business in the state, it is gratifying to know that redress can be readily obtained by application to the legislature. Upon the question of the right of appeal in this case nothing has,been said, because the judges are not agreed upon the subject. The case has been considered and decided upon its merits, at the earnest request of the counsel on both sides, who desired a final settlement of the questions in controversy. Judgment Arrirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482113/	Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS November 7, 2022 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court ___________________________________________ RALPH LEROY MENZIES, Petitioner - Appellant, v. No. 19-4042 ROBERT POWELL, Warden of the Utah State Penitentiary, Respondent - Appellee. ___________________________________________ Appeal from the United States District Court for the District of Utah (D.C. No. 2:03-CV-00902-CVE-FHM) ____________________________________________ Lindsey Layer, Assistant Federal Public Defender (Jon M. Sands, Federal Public Defender, and Eric Zuckerman, Assistant Federal Public Defender, with her on the briefs), Phoenix, Arizona, for Petitioner-Appellant. Erin Riley, Assistant Solicitor General (Sean D. Reyes, Utah Attorney General, Andrew F. Peterson and Aaron G. Murphy, Assistant Solicitors General, with her on the briefs), Salt Lake City Utah, for Respondent- Appellee. _____________________________________________ Before HARTZ, BACHARACH, and EID, Circuit Judges. _____________________________________________ BACHARACH, Circuit Judge. _____________________________________________ Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 2 TABLE OF CONTENTS 1. Mr. Menzies’s Murder Conviction and Sentence ............................10 2. Appellate and Post-Conviction Proceedings ...................................12 3. Federal Habeas Proceedings ..........................................................13 4. Standard of Review ......................................................................13 5. The Utah Supreme Court reasonably rejected Mr. Menzies’s claims of ineffective assistance of counsel during the guilt phase ...........................................................................................15 5.1 Standard for Obtaining Relief Based on Ineffective Assistance of Counsel .................................................16 5.2 Identification Testimony at Trial ................................17 5.2.1 Photo Arrays .............................................................18 5.2.2 Identification of Objects .............................................18 5.2.3 Lineup .......................................................................19 5.3 The Utah Supreme Court’s Disposition of Claims Involving Identification Testimony ..............................19 5.4 Mr. Menzies’s Challenges to the Utah Supreme Court’s Decision .........................................................20 5.4.1 The Photo Arrays ........................................................21 5.4.1.1 Deficiency .................................................................21 5.4.1.1.1 Statement that a Suspect was Already in Custody..........21 5.4.1.1.2 Second Viewing of the Photo Array .............................22 5.4.1.1.3 Lack of an Admonition ................................................24 5.4.1.1.4 False Dichotomy .........................................................25 2 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 3 5.4.1.2 Prejudice ....................................................................26 5.4.2 The Lineup .................................................................27 5.4.3 The Identification of Objects .......................................28 5.4.4 Failure to Investigate the Account of Mr. Larrabee and His Girlfriend .......................................................33 5.5 Failure to Challenge the Testimony of Walter Britton .......................................................................35 5.5.1 The Utah Supreme Court’s Disposition of the Claim .....36 5.5.2 Mental-Health Evidence ..............................................37 5.5.3 Benefits from Testimony .............................................40 5.5.4 Mr. Benitez’s Statement ..............................................43 5.5.4.1 Procedural Default ......................................................43 5.5.4.2 Merits ........................................................................50 6. The trial court’s instruction on reasonable doubt constituted a reasonable application of Supreme Court precedent and conformed to the Constitution ......................................................51 6.1 Reasonableness of the Utah Supreme Court’s Decision ....................................................................52 6.1.1 Substantial Doubt ......................................................53 6.1.2 Willingness to Act ......................................................56 6.2 Absence of a Constitutional Violation ..........................58 7. The Utah Supreme Court reasonably rejected Mr. Menzies’s claim of ineffective assistance of counsel during sentencing ...........59 7.1 The Evidence Presented in State Court ........................59 7.2 Mr. Menzies’s Theories of Ineffectiveness ..................60 3 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 4 7.3 The Attorney’s Duty to Investigate ..............................60 7.4 Bar to Considering Evidence Presented in Federal Court .........................................................................61 7.5 Delayed Investigation of the Mitigating Evidence ........64 7.6 Failure to Investigate Other Mitigating Evidence .........65 7.7 Failure to Present Evidence of Organic Brain Damage ......................................................................67 8. The Utah Supreme Court acted reasonably in rejecting Mr. Menzies’s challenges to the admissibility of documents from his prison file ..............................................................................70 8.1 The Utah Supreme Court reasonably concluded that introduction of mental-health evaluations had not violated the Fifth Amendment ......................................70 8.2 Introduction of Mr. Menzies’s prison file did not deny the right to confrontation, constitute a denial of due process, or entail cruel and unusual punishment .................................................................77 8.2.1 Confrontation Clause ..................................................77 8.2.2 Due Process ................................................................79 8.2.3 Cruel and Unusual Punishment ....................................80 9. The Utah Supreme Court reasonably concluded that the trial court had not violated the Constitution by relying on uncharged aggravating circumstances ............................................................81 9.1 Utah law allowed the prosecution to allege additional aggravating circumstances at sentencing .......82 9.2 Mr. Menzies obtained adequate notice of the aggravating circumstances bearing on the sentence .......84 4 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 5 9.3 The prosecution did not need to prove each aggravating circumstance beyond a reasonable doubt .........................................................................89 9.4 The Utah Supreme Court didn’t violate any constitutional rights by omitting discussion of two aggravating circumstances from the analysis of harmless error ............................................................90 10. The Utah Supreme Court reasonably rejected Mr. Menzies’s challenge to the constitutionality of the aggravating circumstances ..............................................................................91 10.1 Aggravating Circumstances for Murders that are Heinous, Atrocious, and Cruel .....................................92 10.1.1 Merits ........................................................................93 10.1.2 Consideration of Mitigating Factors .............................96 10.2 Sufficiency of the Evidence on Aggravating Circumstances ...........................................................96 10.3 Reasonable jurists could reject Mr. Menzies’s claim involving reliance on duplicative aggravating circumstances .............................................................97 11. In rejecting Mr. Menzies’s challenges involving errors in the trial transcript, the Utah Supreme Court reasonably applied Supreme Court precedent and found the pertinent facts ..................99 11.1 The Utah courts provided the parties with an opportunity to correct errors in the trial transcript ...... 100 11.2 The trial court found no constitutional violation, and the record contained two versions of the transcript ................................................................. 101 11.3 The Utah Supreme Court upheld the trial court’s ruling that the transcript was accurate enough for a meaningful appeal .................................................... 101 5 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 6 11.4 The Utah Supreme Court’s decision was not based on an unreasonable application of clearly established federal law .............................................. 102 11.5 The Utah Supreme Court did not base its decision on an unreasonable determination of fact .................. 106 11.5.1 Reliance on the Docketing Statement ........................ 106 11.5.2 Failure to Provide a Sufficient Transcript of Voir Dire ......................................................................... 108 11.5.3 Omission of a Conference Outside the Jury’s Presence ................................................................... 112 11.5.4 Additions by the Note Reader .................................... 115 11.5.5 Errors Involving Numbers ........................................ 118 12. A certificate of appealability is unwarranted on the admissibility at trial of Mr. Britton’s testimony from the preliminary hearing . .................................................................. 122 12.1 Standard for a Certificate of Appealability ................ 123 12.2 Mr. Britton’s Unavailability ..................................... 124 12.3 Reliability ................................................................ 125 13. Conclusion ................................................................................ 126 6 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 7 Mr. Ralph Leroy Menzies was convicted of first-degree murder in Utah state court and sentenced to death. The Utah Supreme Court affirmed the denial of his motion for a new trial, State v. Menzies, 845 P.2d 220, 242 (Utah 1992), and then affirmed his conviction and death sentence, State v. Menzies, 889 P.2d 393, 396 (Utah 1994). Mr. Menzies sought post- conviction relief, but the state courts rejected his claims. Menzies v. Galetka, 150 P.3d 480, 489 (Utah 2006); Menzies v. State, 344 P.3d 581, 588 (Utah 2014). The state court decisions led Mr. Menzies to seek habeas relief in federal court. The federal district court denied relief, prompting Mr. Menzies to appeal. We affirm. In this appeal, we address eight issues: 1. Ineffective assistance of trial counsel in the guilt phase. To establish ineffective assistance of counsel, a criminal defendant must show that his attorney’s performance was deficient and prejudicial. Mr. Menzies argued to the Utah Supreme Court that his counsel had been deficient by failing to • move for suppression of identification testimony, • investigate the accounts from prosecution witnesses identifying Mr. Menzies, and • challenge the admissibility of testimony from the preliminary hearing. Although these three challenges weren’t made, Mr. Menzies’s trial counsel undermined the prosecution’s case in other ways. Counsel pointed out that the witnesses couldn’t definitively identify Mr. Menzies and challenged the credibility of the 7 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 8 prosecution’s witnesses. Given these challenges to the prosecution’s case, the Utah Supreme Court concluded that trial counsel’s performance was neither deficient nor prejudicial. Habeas relief is warranted only if this conclusion constituted an unreasonable application of the United States Supreme Court’s precedent. Under this standard, habeas relief was unwarranted because the state appellate court had reasonably applied the United States Supreme Court’s precedents. 2. Jury instruction on reasonable doubt. Under the Fourteenth Amendment’s Due Process Clause, a trial court must instruct the jury that the prosecution bears the burden of proving guilt beyond a reasonable doubt. The trial court gave this instruction, adding that the doubt must be substantial and real rather than imaginary. The Utah Supreme Court determined that this additional explanation hadn’t tainted the jury instruction. This determination constituted a reasonable application of the United States Supreme Court’s precedents. 3. Ineffective assistance of counsel in the sentencing phase. At the sentencing phase, counsel’s performance may be deficient if the attorney fails to conduct a thorough investigation of mitigating circumstances. Mr. Menzies’s attorneys conducted a reasonably thorough investigation. So the Utah Supreme Court reasonably rejected Mr. Menzies’s claim of ineffective assistance in the sentencing phase. 4. Introduction of statements made during psychiatric evaluations. The United States Supreme Court has not interpreted the Fifth Amendment to bar admission of a defendant’s un-Mirandized statements made during psychiatric evaluations preceding the charged crime. The psychiatric evaluations—conducted without Miranda warnings—had preceded the alleged murder. So the Utah Supreme Court reasonably rejected Mr. Menzies’s Fifth Amendment challenge to the introduction of his statements for his psychiatric evaluations. 5. Introduction of Mr. Menzies’s prison file. The trial court allowed the prosecution to use Mr. Menzies’s prison file at the sentencing stage, and the Utah Supreme Court upheld this ruling. And the Supreme Court has not 8 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 9 • applied the Sixth Amendment’s Confrontation Clause to sentencing proceedings or • found a violation of due process from the introduction of false or misleading prison records. Given the absence of governing precedent, the Utah Supreme Court acted reasonably in concluding that the introduction of the prison file hadn’t violated Mr. Menzies’s rights to confrontation or due process. 6. Notice of aggravating circumstances. A defendant has a right to notice of aggravating circumstances. The Utah Supreme Court concluded that the State had satisfied this right through the statute identifying the aggravating circumstances that render a defendant eligible for the death penalty. In reaching this conclusion, the Utah Supreme Court reasonably applied the United States Supreme Court’s precedents. Under those precedents, a state appeals court could reasonably conclude that notice could come from Utah’s statutory list of aggravating circumstances. 7. Duplication of aggravating circumstances. In identifying aggravating circumstances warranting a death sentence, the prosecution must provide a meaningful distinction between capital and non-capital murders. The jury found that Mr. Menzies was eligible for the death penalty because he had committed a murder in connection with a robbery and an aggravated kidnapping. After the jury found Mr. Menzies eligible for the death penalty, the trial court found duplicative aggravating circumstances involving pecuniary gain and robbery. The Utah Supreme Court rejected Mr. Menzies’s characterization of these duplicative aggravating circumstances as a violation of the Eighth Amendment. This conclusion constituted a reasonable application of the record and the United States Supreme Court’s precedents. 8. Errors in the trial transcript. A criminal defendant has a constitutional right to a record that’s reliable enough to provide meaningful appellate review. The transcript of Mr. Menzies’s trial contained errors, but Mr. Menzies did not show prejudice to his appeal. Given this failure to show prejudice, the Utah 9 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 10 Supreme Court reasonably rejected Mr. Menzies’s claim involving errors in the trial transcript. Mr. Menzies has not only presented these appellate arguments but also moved to expand the certificates of appealability. In part of this motion, Mr. Menzies argues that he should be allowed to appeal the denial of his claim involving the introduction of testimony from a preliminary hearing. 1 We reject this argument, concluding that no jurist could reasonably credit this claim. So we deny Mr. Menzies’s motion to expand the certificates of appealability. 1. Mr. Menzies’s Murder Conviction and Sentence This case grew out of the 1986 disappearance of Mrs. Maurine Hunsaker. At a gas station where Mrs. Hunsaker had been working, law enforcement had found an empty cashier’s booth and customers waiting to pay. Cash was missing from the register. Two days after Mrs. Hunsaker had disappeared, her corpse was found in a wooded area outside Salt Lake City. Someone had strangled Mrs. Hunsaker and slashed her throat. Suspicion quickly turned to Mr. Menzies. On the morning after Mrs. Hunsaker’s disappearance, two teenagers saw a man and a woman walking into the wooded area. The teenagers heard a woman scream and then saw 1 In this motion, Mr. Menzies also requested expansion of the certificates of appealability to encompass errors in the trial transcript. The Court previously granted this part of the motion. 10 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 11 the man returning to his car. After hearing reports about Mrs. Hunsaker’s body, one of the teenagers (Tim Larrabee) contacted the police and described the man. Based on Mr. Larrabee’s description, the police created a composite drawing of the man and picked three photographs of possible matches, including that of Mr. Menzies. The police showed these three photographs and three others to Mr. Larrabee. From these photographs, Mr. Larrabee picked the one of Mr. Menzies and said that he looked like the man in the wooded area. The police also obtained other incriminating evidence showing (1) Mrs. Hunsaker’s presence in Mr. Menzies’s car and apartment, (2) Mr. Menzies’s possession of Mrs. Hunsaker’s identification cards, and (3) Mr. Menzies’s confession to the murder. First, the police found Mrs. Hunsaker’s thumbprint in the car that Mr. Menzies had been driving. And in Mr. Menzies’s apartment, officers found • roughly the same amount of cash ($116) that had been missing from the gas station and • Mrs. Hunsaker’s purse. Along with the cash and purse, the police matched fibers found on Mrs. Hunsaker’s clothing to carpet fibers in Mr. Menzies’s apartment. 11 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 12 Second, the police found evidence that Mr. Menzies had discarded Mrs. Hunsaker’s identification cards. As the police were investigating Mrs. Hunsaker’s disappearance, they arrested Mr. Menzies on an unrelated charge. Upon his booking into the jail, he raced into a changing room. In that room, an officer later found Mrs. Hunsaker’s identification cards. And Mrs. Hunsaker’s social security card turned up in the belongings of Mr. Menzies’s girlfriend. Third, a fellow jail inmate testified that Mr. Menzies had confessed to killing Mrs. Hunsaker. According to the inmate, Mr. Menzies had admitted cutting her throat. A jury found Mr. Menzies guilty of capital homicide and aggravated kidnapping. After this finding, Mr. Menzies waived his right to sentencing by a jury, opting for the trial judge to decide the sentence. So the trial judge conducted the penalty phase, obtaining additional evidence and eventually sentencing Mr. Menzies to death. 2. Appellate and Post-Conviction Proceedings After sentencing, Mr. Menzies moved for a new trial on the ground that the transcript contained too many errors for appellate review. The trial court denied the motion, and the Utah Supreme Court affirmed the denial of relief as to the transcription errors. State v. Menzies, 845 P.2d 220, 242 (Utah 1992). Mr. Menzies then appealed on the merits, and the Utah 12 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 13 Supreme Court affirmed the conviction and sentence. State v. Menzies, 889 P.2d 393, 396 (Utah 1994). Following the direct appeal, Mr. Menzies sought post-conviction relief in state court, alleging ineffective assistance of counsel. The state trial court denied post-conviction relief. The Utah Supreme Court first remanded for further proceedings, Menzies v. Galetka, 150 P.3d 480, 489 (Utah 2006), and then affirmed the denial of post-conviction relief, Menzies v. State, 344 P.3d 581, 588 (Utah 2014). 3. Federal Habeas Proceedings Mr. Menzies sought federal habeas relief, presenting 43 claims. The district court denied habeas relief, and Mr. Menzies obtained a certificate of appealability on 9 of the claims. In these claims, he alleged ineffectiveness of his counsel during the guilt and penalty stages, error in the jury instruction on reasonable doubt, introduction of inadmissible evidence in the sentencing phase, failure to properly channel the trial judge’s discretion through aggravating circumstances, and errors in the trial transcript. 4. Standard of Review We engage in de novo review of the federal district court’s legal analysis, applying the same standard as the district court. Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013). In district court, review is deferential when the state appellate court has rejected a claim on the 13 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 14 merits. Rainer v. Hansen, 952 F.3d 1203, 1206 (10th Cir. 2020). After the state appellate court has rejected a claim, the federal district court can reach the merits only if the state court’s decision was • contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or • based on an unreasonable determination of the facts given the evidence presented in state court. 28 U.S.C. § 2254(d). To determine whether a state-court decision conflicted with or unreasonably applied clearly established law, we make two determinations. Budder v. Addison, 851 F.3d 1047, 1051 (10th Cir. 2017). We first determine whether the Supreme Court has clearly established the pertinent constitutional protection. House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008). We then ask whether the state court’s decision was contrary to, or involved an unreasonable application of, that precedent. Id. Our deference extends not only to the state court’s legal conclusions but also its factual findings. For these findings, we defer to the state court unless it “plainly misapprehend[ed] or misstate[d] the record in making [its] findings, and the misapprehension goes to a material factual issue that is central to [the] petitioner’s claim.” Ryder ex rel. Ryder v. Warrior, 810 F.3d 724, 739 (10th Cir. 2016) (quoting Byrd v. Workman, 645 F.3d 1159, 1171–72 (10th Cir. 2011)). To overcome the state court’s factual findings, 14 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 15 the petitioner must show that the findings are objectively unreasonable. Smith v. Aldridge, 904 F.3d 874, 880 (10th Cir. 2018). If the state’s highest court acted unreasonably in applying Supreme Court precedent or in finding facts, the district court must decide whether the conviction or sentence had violated federal law or the federal constitution. See Fry v. Pliler, 551 U.S. 112, 119 (2007) (stating that 28 U.S.C. § 2254(d) provides “precondition[s] to the grant of habeas relief . . . , not an entitlement to it”); Hancock v. Trammell, 798 F.3d 1002, 1010 (10th Cir. 2015) (“[E]ven when petitioners satisfy the threshold in § 2254(d), they must establish a violation of federal law or the federal constitution.”). 5. The Utah Supreme Court reasonably rejected Mr. Menzies’s claims of ineffective assistance of counsel during the guilt phase. Mr. Menzies claims ineffective assistance of counsel in the guilt phase based on his attorneys’ failure to • seek suppression of the identification testimony of Mr. Larrabee, a witness who testified that he had seen a man resembling Mr. Menzies in the area where Mrs. Hunsaker’s body was discovered, • investigate the accounts of Mr. Larrabee and his girlfriend, and • investigate and challenge the testimony of Walter Britton, a witness who testified that Mr. Menzies had confessed to the killing. 15 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 16 The Utah Supreme Court rejected Mr. Menzies’s claims, and the federal district court concluded that rejection of these claims was reasonable based on Supreme Court precedent and the record. We agree. 5.1 Standard for Obtaining Relief Based on Ineffective Assistance of Counsel Mr. Menzies’s claim of ineffective assistance is governed by the two- part standard established by Strickland v. Washington, 466 U.S. 668 (1984). Under that standard, courts must determine whether the attorneys’ performance was deficient. See Strickland, 466 U.S. at 687. Performance is deficient when the mistakes are so serious that the attorneys are no longer serving as “counsel” under the Sixth Amendment. Id. In determining whether the deficiency rises to this level, the court ordinarily presumes that counsel’s performance is reasonable and might entail a sound strategy. Id. at 689. To overcome the presumption of reasonableness, a petitioner “must show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. This inquiry is “highly deferential” and must be made without “the distorting effects of hindsight.” Id. at 689. Strategic decisions made after a “thorough investigation” are afforded even greater deference and are “virtually unchallengeable.” Id. at 690. 16 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 17 Even if the representation had been deficient, the federal district court must determine whether the deficiency would have been prejudicial. Id. at 682. Prejudice exists if there “is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694. When a habeas petitioner alleges ineffective assistance of counsel, courts must engage in doubly deferential judicial review. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Deference rests on both the constitutional standard (from Strickland) and the standard for habeas relief. See id. (“The question ‘is not whether a federal court believes the state court’s determination’ under Strickland ‘was incorrect but whether [it] was unreasonable—a substantially higher threshold.’” (quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)) (alteration in original)). Given the two layers of deference, a court must consider “whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Ellis v. Raemisch, 872 F.3d 1064, 1084 (10th Cir. 2017) (quoting Harrington v. Richter, 562 U.S. 86, 105 (2011) (emphasis in Ellis)). 5.2 Identification Testimony at Trial Mr. Larrabee testified at trial that he and his girlfriend had visited the wooded area where Mrs. Hunsaker’s corpse was later found. Mr. Larrabee said that while he was at the wooded area, he had seen a man 17 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 18 and a woman walking closely together. Mr. Larrabee heard them talking, but could not tell what they were saying. About ten minutes later, Mr. Larrabee heard a scream. He assumed that the woman had slipped or had seen an animal. About fifteen to twenty minutes after hearing the scream, Mr. Larrabee saw the man returning alone to the parking lot and an older car that looked like it was in poor condition. 5.2.1 Photo Arrays After hearing reports of the discovery of Mrs. Hunsaker’s body, Mr. Larrabee contacted the police. A police officer responded by showing Mr. Larrabee a photo array of six subjects. Mr. Larrabee initially didn’t pick any of the photographs. But minutes later, he asked to view the photographs again and picked the one of Mr. Menzies, saying that he resembled the man in the wooded area. 5.2.2 Identification of Objects The officers also took Mr. Larrabee to a parking lot and asked him if any of the cars resembled the one he had seen in the wooded area. Mr. Larrabee identified a car that Mr. Menzies had borrowed. The officers also showed Mr. Larrabee a coat belonging to Mr. Menzies. Mr. Larrabee testified that the coat resembled the one that the man had worn in the wooded area. 18 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 19 5.2.3 Lineup Months later, Mr. Larrabee viewed a lineup with eight individuals, including Mr. Menzies. Mr. Larrabee identified another man as the person in the wooded area. So the prosecutor didn’t ask Mr. Larrabee on direct examination about the lineup. But on cross-examination, Mr. Larrabee admitted that he had failed to identify Mr. Menzies during the lineup. To counter that admission, the prosecutor conducted redirect examination. There Mr. Larrabee pointed out that shortly after the lineup, he asked a prosecutor if someone else in the lineup (who was Mr. Menzies) was the suspect. Mr. Menzies’s counsel objected to this testimony and moved for a mistrial. The trial court struck this part of the testimony but declined to grant a mistrial. 5.3 The Utah Supreme Court’s Disposition of Claims Involving Identification Testimony In the Utah Supreme Court, Mr. Menzies complained of trial counsel’s failure to seek suppression of Mr. Larrabee’s testimony about the photo arrays. The Utah Supreme Court rejected this claim based on a failure to show either deficient representation or prejudice. On the issue of deficient representation, the court reasoned that • Mr. Menzies had failed to present evidence of undue suggestiveness and 19 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 20 • trial counsel acted reasonably in pointing out the flaws in Mr. Larrabee’s testimony rather than seeking suppression. Menzies v. State, 344 P.3d 581, 616–19 (Utah 2014). The Utah Supreme Court also found no prejudice based on the failure to show a likely difference in the outcome without the testimony on the photo array. Id. at 619. For Mr. Larrabee’s identification of Mr. Menzies following the lineup, the Utah Supreme Court observed that the trial court had stricken this part of the testimony. Id. at 618. 5.4 Mr. Menzies’s Challenges to the Utah Supreme Court’s Decision In our court, Mr. Menzies again argues that his trial counsel had failed to (1) argue undue suggestiveness in the photo arrays, lineup, and object identifications, and (2) seek suppression of Mr. Larrabee’s identification testimony. A photo array or lineup should be excluded under the Fourteenth Amendment’s Due Process Clause only when the circumstances are “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). 20 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 21 5.4.1 The Photo Arrays Mr. Menzies contends that his trial counsel should have sought exclusion of identification testimony based on undue suggestiveness in the photo arrays. 5.4.1.1 Deficiency The state supreme court reasonably applied federal law and the record when concluding that defense counsel had not acted deficiently in their approach to the photo arrays. 5.4.1.1.1 Statement that a Suspect was Already in Custody In challenging the admissibility of identification from the photo arrays, Mr. Menzies argues that Mr. Larrabee knew that the suspect was already in custody. But the Utah Supreme Court concluded that Mr. Larrabee had viewed the photo arrays before learning that the suspect was in custody. Menzies v. State, 344 P.3d 581, 618 (Utah 2014). This conclusion reflected a reasonable interpretation of the record. In the state post-conviction proceedings, Mr. Menzies argued that the Utah Supreme Court had confused the lineup with the photo arrays, insisting that a law-enforcement officer had told Mr. Larrabee before the photo arrays that a suspect was in custody. See Post-Conviction R. at 12,293. This argument conflicts with Mr. Larrabee’s sworn statement. There he said that the law-enforcement officer’s comment had preceded the lineup, not the photo arrays. Given that sworn statement, the Utah Supreme Court 21 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 22 reasonably found that when the photo arrays were conducted, Mr. Larrabee hadn’t known that the police had anyone in custody. 2 Menzies v. State, 344 P.3d 581, 618 (Utah 2014). Mr. Menzies does not point to any evidence undermining the Utah Supreme Court’s understanding of the timing of the law-enforcement officer’s statements. Under that timing, the officer’s alleged statement would not have supported suppression of Mr. Larrabee’s testimony about the photo arrays. 3 5.4.1.1.2 Second Viewing of the Photo Array Mr. Menzies also argues that his trial counsel should have challenged the admissibility of Mr. Larrabee’s testimony about his second viewing of the photos. According to Mr. Menzies, the second viewing was too suggestive because Mr. Larrabee had examined the photos and couldn’t make an identification. 2 Mr. Menzies also asserts that the “police led Larrabee to believe the suspect was in the photo array.” Appellant’s Opening Br. at 21. Mr. Menzies provides no citation for this assertion. 3 In federal district court, Mr. Larrabee presented a different account: “We [had been] told on more than one occasion by detectives that they had the man responsible in custody, and I assumed that the photos we were shown included the man that was said to be in custody.” R. vol. VII, at 26, ¶ 8. We do not consider this account. In reviewing the Utah Supreme Court’s decision, we consider only the evidence in the state-court record. See Shinn v. Ramirez, 142 S. Ct. 1718, 1731–32 (2022) (“[T]he federal [habeas] court may review the claim based solely on the state-court record.”). 22 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 23 Mr. Menzies failed to preserve this argument by omitting it in district court. See Harris v. Sharp, 941 F.3d 962, 975 (10th Cir. 2019) (“Even in habeas cases involving the death penalty, we consider arguments forfeited or waived when they are raised for the first time on appeal.”). 4 Mr. Menzies’s argument would fail even if he had preserved it in district court. At trial, Mr. Larrabee hadn’t made a firm identification from his second look at the photos; he instead had said only that one of the men (Mr. Menzies) looked “most like” the man seen in the wooded area. When the trial court ruled, it had no precedential opinion in federal or state court addressing the admissibility of this kind of testimony or the effect of reshowing photos after an inability to make an identification. 5 So a fair-minded jurist could justifiably view defense counsel’s failure to object as reasonable. Mr. Menzies points to an out-of-circuit opinion that found undue suggestiveness: Thomas v. Varner, 428 F.3d 491, 504 (3d Cir. 2005). Appellant’s Opening Br. at 21. There the Third Circuit found trial counsel 4 Mr. Menzies has not urged plain error, so we’d decline to apply the plain-error standard even if we were to classify the issue as forfeited rather than waived. See Hancock v. Trammell, 798 F.3d 1002, 1011 (10th Cir. 2015) (declining to consider a forfeited habeas claim because the petitioner had not urged plain error). 5 Mr. Menzies concedes that defense counsel did not challenge the suggestiveness of the photo arrays. Defense counsel instead objected based on a failure to disclose this identification before the trial. Appellant’s Opening Br. at 21–22. 23 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 24 ineffective for failing to move to suppress or object to a suggestive identification after a witness had testified “that he would not have made the identification if the detective had not strongly suggested that the two pictures highlighted were of the perpetrators.” Thomas, 428 F.3d at 504. The Utah Supreme Court could reasonably find no similarly suggestive comments here. So the Utah Supreme Court reasonably concluded that Mr. Menzies’s counsel had not acted deficiently by declining to seek suppression of the second photo array. 5.4.1.1.3 Lack of an Admonition Mr. Menzies also argues that law-enforcement officers failed to admonish Mr. Larrabee that the photo array might not include the suspect. But the Supreme Court has never required this admonition, and our court hasn’t viewed the lack of such an admonition as fatal. E.g., United States v. Worku, 800 F.3d 1195, 1204–05 (10th Cir. 2015) (upholding the introduction of identification testimony based on a photo array even though the law-enforcement officers had allegedly failed to provide the witnesses with admonitions required by department policy); accord United States v. Carr, 761 F.3d 1068, 1076 (9th Cir. 2014) (concluding that identification testimony wasn’t undermined by a police officer’s failure to admonish a witness that the photos might not have included pictures of the suspect). Given this precedent, the Utah Supreme Court could reasonably conclude 24 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 25 that Mr. Menzies’s attorneys hadn’t acted deficiently by declining to challenge the lack of an admonition from the police. 5.4.1.1.4 False Dichotomy Mr. Menzies also asserts that the Utah Supreme Court created a false choice between seeking suppression of the identification testimony and impeaching it after it had been allowed into evidence. He bases this assertion on two sentences in the Utah Supreme Court’s opinion: Mr. Menzies has not raised a genuine issue of material fact regarding trial counsel’s decision to impeach Mr. Larrabee’s . . . testimony. Trial counsel acted reasonably in pointing out the flaws in the testimony rather than seeking to suppress it on the ground that the police used unnecessarily suggestive tactics. Menzies v. State, 344 P.3d 581, 619 (Utah 2015). Mr. Menzies takes these sentences out of context. Right before these two sentences, the court had explained at length why it didn’t regard the identification testimony as unduly suggestive. Id. at 617–19. Based on that explanation, the court stated that it viewed Mr. Menzies’s challenges as attacks on “the weight,” rather than the admissibility, of the identification testimony. Id. at 618. The court did not suggest that defense counsel had to choose between a pretrial motion to suppress and impeachment at trial. We thus reject Mr. Menzies’s assertion that the Utah Supreme Court had relied on a false choice between a motion to suppress and impeachment at trial. 25 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 26 5.4.1.2. Prejudice The Utah Supreme Court also acted reasonably in concluding that Mr. Menzies had not established prejudice. In a single sentence, Mr. Menzies asserts that the result of the trial would have been different if the trial court had suppressed evidence from the photo array. According to Mr. Menzies, the only evidence tying him to the crime scene was Mr. Larrabee’s testimony. But Mr. Menzies disregards much of the evidence tying Mr. Menzies to the murder. See Menzies v. State, 344 P.3d 581, 591 (Utah 2014) (discussing “numerous pieces of evidence indicating that Mr. Menzies killed Mrs. Hunsaker”). In any event, the Utah Supreme Court needed to address prejudice in light of the argument that Mr. Menzies had presented. See Green v. Louder, 29 P.3d 638, 647 (Utah 2001) (stating that the court would not assume the appellant’s burden of arguing and researching an appellant’s contention). He argued only that the defense attorney had a “good chance” of persuading the trial court to strike the testimony of Mr. Larrabee, whom Mr. Menzies called the State’s “star witness.” Appellant’s Opening Br. at 97, Menzies v. State, No. 20120290-SC (Utah Feb. 14, 2013). The Utah Supreme Court rejected this conclusory assertion of prejudice, observing that Mr. Menzies had just “restate[d] the basic prejudice standard and provide[d] no analysis regarding why” he thought that an objection stood a 26 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 27 “good chance” of succeeding. Menzies v. State, 344 P.3d 581, 619 (Utah 2014). Even now, Mr. Menzies does not say what was wrong with the Utah Supreme Court’s reasoning on prejudice. Given that failure, we are hard- pressed to question the reasonableness of the court’s decision on prejudice. See Wellmon v. Colo. Dep’t of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020) (concluding that we review the reasonableness of a state court’s decision “in light of the arguments” that the petitioner had presented in state court). 5.4.2 The Lineup Mr. Menzies also argues that his counsel should have moved to suppress Mr. Larrabee’s testimony that he had asked after the lineup if Mr. Menzies was the suspect. Mr. Menzies contends that the lineup was impermissibly suggestive because (1) his shirt was much darker than the other men’s shirts, (2) irregularities in the photo array had contaminated the lineup, and (3) an officer had told Mr. Larrabee that the suspect had recently gained or lost 20 pounds. Mr. Menzies failed to preserve these contentions by omitting them from the habeas petition. See Harris v. Sharp, 941 F.3d 962, 975 (10th Cir. 2019) (“Even in habeas cases involving the death penalty, we consider arguments forfeited or waived when they are raised for the first time on appeal.”). Mr. Menzies doesn’t deny the omission of these allegations from 27 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 28 his habeas petition. He instead says that (1) he alleged irregularities in the lineup and (2) “the lineup photo was part of the state court record.” Appellant’s Reply Br. at 4. But the district court had no duty to scour the state-court record in search of a habeas theory. So Mr. Menzies waived or forfeited these contentions by omitting them in his habeas petition. Even if Mr. Menzies had not waived or forfeited these contentions, we’d reject them because the trial court struck the testimony about the lineup and told the jury to disregard this testimony. See Williams v. Bagley, 380 F.3d 932, 975 (6th Cir. 2004) (concluding that a habeas petitioner had failed to show prejudice on a claim of ineffective assistance because the trial court had instructed the jury to disregard the testimony). We ordinarily presume that jurors follow instructions, Richardson v. Marsh, 481 U.S. 200, 211 (1987), and Mr. Menzies doesn’t say why we should reject that presumption here. With no such reason, we conclude that the Utah Supreme Court acted reasonably in rejecting Mr. Menzies’s conclusory assertion of prejudice. 5.4.3 The Identification of Objects Mr. Menzies also claims deficiencies in his trial counsel’s failure to seek suppression of Mr. Larrabee’s testimony identifying • the car that he had seen in the parking lot and • the coat that Mr. Menzies had worn. 28 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 29 Mr. Menzies points out that • there were only one or two older cars in the parking lot (where Mr. Larrabee had pointed to the car owned by Mr. Menzies’s friend) and • a detective had shown Mr. Larrabee only a single coat. In the Utah Supreme Court, Mr. Menzies argued that officers had used unduly suggestive procedures to obtain Mr. Larrabee’s identification of the car and the coat. The Utah Supreme Court rejected this argument without discussing this part of the testimony. Menzies v. State, 344 P.3d 581, 618 (Utah 2014). We review the reasonableness of the Utah Supreme Court’s decision based on the arguments presented. See Wellmon v. Colo. Dep’t of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020) (“[U]nder Section 2254(d), we review the reasonableness of a state court’s decision in light of the arguments the petitioner raised in the state court.”). In his post-conviction appeal, Mr. Menzies questioned identification of the car only once. That reference consisted of two sentences in a footnote in the statement of facts: The police may use suggestive identification procedures relating to physical evidence to frame a suspect. Johnson v. Sublett, 63 F.3d 926, 932 (9th Cir. 1995)). This happened here as there were only two or three older cars in the lot, and they did not look like [the car that had been loaned to Mr. Menzies]. Appellant’s Opening Br. at 11 n.16, Menzies v. State, No. 20120290-SC (Utah Feb. 14, 2013). The Utah Supreme Court doesn’t typically consider arguments when they appear only in a statement of facts or in a footnote. 29 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 30 E.g., Pohl, Inc. of Am. v. Webelhuth, 201 P.3d 944, 952–53 (Utah 2008) (failure to develop an argument beyond the statement of facts); Anderson v. Taylor, 149 P.3d 352, 359 (Utah 2006) (declining to consider a request consisting of two conclusory sentences in a footnote); see also Allen v. Friel, 194 P.3d 903, 907–08 (Utah 2008) (stating that a brief is inadequate when it cites authority without developing or analyzing it based on that authority). But let’s assume, for the sake of argument, that Mr. Menzies adequately developed this argument about identification of the car. In the Utah Supreme Court, Mr. Menzies cited only a single Ninth Circuit opinion. Even there, the Ninth Circuit had rejected a habeas petitioner’s challenge to testimony involving identification of a car. Johnson v. Sublett, 63 F.3d 926, 931–32 (9th Cir. 1995). Mr. Menzies supplied the Utah Supreme Court with no other legal authority for his challenge to the testimony identifying his car. Mr. Menzies also failed to support his challenge with any factual basis, stating only that the police had • taken Mr. Larrabee to see vehicles parked in the police lot and • these vehicles included Mr. Menzies’s “beat up 1974 Chevy . . . with a distinguishing dent to the front hood.” Appellant’s Opening Br. at 11, Menzies v. State, No. 20120290-SC (Utah Feb. 14, 2013). Given the cursory legal and factual references, the Utah Supreme Court acted reasonably in summarily rejecting Mr. Menzies’s 30 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 31 challenge as to the car. See Wellmon v. Colo. Dep’t of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020). Mr. Menzies also challenges testimony identifying a coat that he had allegedly worn in the wooded area. For this challenge, Mr. Menzies points out that • the police showed Mr. Larrabee only a single coat and • that coat didn’t match Mr. Larrabee’s earlier description. To resolve this challenge, we consider the reasonableness of the Utah Supreme Court’s “decision in light of the arguments the petitioner raised in the state court.” Id. In the post-conviction appeal, Mr. Menzies’s argument consisted of this sentence, which lacked any citation to the record or to case law: “The jacket show ups were suggestive in that they did not require Larrabee . . . to select Appellant’s jacket from an array of similar jackets.” Appellant’s Opening Br. at 98, Menzies v. State, No. 20120290-SC (Utah Feb. 14, 2013). This sentence provided the Utah Supreme Court with no legal support for his challenge. Nor was there a basis in the case law, for various circuits had held that due process did not require displays of similar objects before allowing testimony identifying an object. See Johnson v. Sublett, 63 F.3d 926, 932 (9th Cir. 1995) (“There is no authority holding that a defendant’s due 31 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 32 process right to reliable identification procedures extends beyond normal authenticity and identification procedures for physical evidence offered by the prosecution.”); see also Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992) (“[I]dentification of clothing is not a procedure so inherently ‘conducive to irreparable mistaken identification’ as to provide the basis for a denial of due process.” (quoting Foster v. California, 394 U.S. 440, 442 (1969))); Inge v. Procunier, 758 F.2d 1010, 1015 (4th Cir. 1985) (stating that identification of a truck isn’t “governed by the constitutional limitations that control the identification of a defendant”). With no legal basis to question the admissibility of Mr. Larrabee’s testimony, the Utah Supreme Court acted reasonably in rejecting the challenge. We thus conclude that the Utah Supreme Court acted reasonably in rejecting Mr. Menzies’s theories of ineffective assistance as to Mr. Larrabee’s identification testimony. 6 6 In a single sentence, Mr. Menzies also asserts that the Utah Supreme Court failed to consider the pertinent factors bearing on the constitutionality of the identification testimony. Appellant’s Opening Br. at 27–28. This assertion is mistaken. The court identified these factors and discussed them at length. Menzies v. State, 344 P.3d 581, 617–19 (Utah 2014). 32 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 33 5.4.4 Failure to Investigate the Account of Mr. Larrabee and His Girlfriend Mr. Menzies also argues that his trial counsel should have interviewed Mr. Larrabee and his girlfriend. For this argument, Mr. Menzies relies on an affidavit from Mr. Larrabee, which stated two points: 1. On the day that I sighted the couple hiking at Storm Mountain, I went there to be alone with my girlfriend . . . . I was primarily interested in having private time with her, and I was focused on this amorous time I had spent with her. [She] and I were kissing on a picnic table after the time that the couple had disappeared from our view. 2. When the male hiker was walking in the direction of the parking lot by himself some time later (1) [my girlfriend’s] back was towards the male hiker; (2) I was watching the male hiker to ensure that he had left the area so that I could enjoy being with [my girlfriend] without her being concerned; (3) there were various shrubs and trees obstructing my line of vision when I was observing the male hiker head towards the parking lot; (4) the distance between myself and the male hiker as he was walking in the direction of the parking lot was between fifty and 100 yards; (5) because of the positions of myself and the male hiker, I could not see his face squarely as he headed in the direction of the parking lot; and (6) the only part of the hiker’s head that I could see was his back, and his right profile. Post-Conviction R. at 12,293. According to Mr. Menzies, his trial attorney should have elicited Mr. Larrabee’s focus on his girlfriend rather than the nearby hiker. The Utah Supreme Court rejected this claim, concluding that the attorney had not acted deficiently or prejudicially by failing to interview Mr. Larrabee and his girlfriend. Menzies v. State, 344 P.3d 581, 617 (Utah 2014). 33 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 34 For this conclusion, the court pointed to three considerations. First, Mr. Menzies’s counsel had cross-examined these witnesses and highlighted the weaknesses of their testimony. Id. Second, “Mr. Menzies d[id] not explain how the jury knowing that Mr. Larrabee’s attention was directed at [his girlfriend] for the purpose of having sexual relations would have changed the outcome of the case.” Id. (emphasis in original). Finally, the jury might have concluded that Mr. Larrabee’s concern over being seen with his girlfriend would have sharpened his attention to others in the area. Id. In our appeal, Mr. Menzies challenges the reasonableness of the Utah Supreme Court’s determinations, arguing factually that Mr. Larrabee’s affidavit undermines his identification testimony. In our view, however, the court was making a legal conclusion (rather than a factual finding) on the significance of the new information. See Wood v. Carpenter, 907 F.3d 1279, 1291 (10th Cir. 2018) (holding that an assessment of the strength of the evidence is a legal determination). 7 The Utah Supreme Court acted reasonably in characterizing the entirety of Mr. Larrabee’s account. The affidavit states that he was 7 Mr. Menzies contends that Wood mischaracterized a Supreme Court opinion (Williams v. Taylor, 529 U.S. 362 (2000)). But we are bound by Wood irrespective of its correctness. See United States v. Walling, 936 F.2d 469, 472 (10th Cir. 1991) (“One panel of the court cannot overrule circuit precedent.”). 34 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 35 “watching the hiker to ensure that he had left the area.” Post-Conviction R. at 12,293. This statement could reasonably suggest that Mr. Larrabee was focused on the hiker, and this focus on the hiker might have triggered memory of details. So the Utah Supreme Court reasonably concluded that Mr. Menzies’s trial counsel hadn’t acted prejudicially in failing to interview Mr. Larrabee. 8 5.5 Failure to Challenge the Testimony of Walter Britton Mr. Menzies’s final challenge to his trial counsel’s performance involves the testimony of Walter Britton, a fellow inmate at the jail. In the preliminary hearing, Mr. Britton testified that Mr. Menzies had • admitted killing Mrs. Hunsaker and • acknowledged a great thrill from cutting her throat. Mr. Britton refused to testify at trial, and the prosecution used his testimony from the preliminary hearing. During the post-conviction proceedings, Mr. Menzies submitted an affidavit from Mr. Britton, which recanted some of his testimony about the confession. See Post-Conviction R. at 12,246. For example, Mr. Britton denied that Mr. Menzies had acknowledged a thrill from cutting Mrs. Hunsaker’s throat, adding: “It is possible that Mr. Menzies may not have 8 Mr. Menzies also says that his attorney should have interviewed the girlfriend. But Mr. Menzies doesn’t say what the girlfriend would have added. 35 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 36 admitted to me that he had killed the victim. I believe that I may have told the police and the court that because I was scared, and facing a lot of prison time on the federal charges.” Id. Finally, Mr. Britton stated that he was taking anxiety medication when he talked to Mr. Menzies: “I felt like I was in a fog . . . and for this additional reason, my statements . . . may have been inaccurate.” Id. Mr. Menzies asserts that his trial counsel should have • discovered evidence of Mr. Britton’s mental illness and impeached him with it, • discovered the benefits that Mr. Britton received from his testimony and impeached him with those benefits, and • interviewed an inmate (George Benitez), who stated that Mr. Britton had described a plan to fabricate testimony about Mr. Menzies in order to obtain a milder sentence. 5.5.1 The Utah Supreme Court’s Disposition of the Claim The Utah Supreme Court rejected Mr. Menzies’s first two assertions. For the assertion about Mr. Britton’s mental illness, the Utah Supreme Court concluded that defense counsel had conducted a reasonable investigation. The attorney had subpoenaed the federal court for mental health records but received no responsive documents. In the Utah Supreme Court’s view, the failure to take additional measures to impeach Mr. Britton with mental health evidence was neither deficient nor prejudicial. Menzies v. State, 344 P.3d 81, 615–16 (Utah 2014). 36 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 37 For the assertion involving benefits from testifying, the court observed that Mr. Menzies’s trial counsel had used the relevant information to challenge Mr. Britton’s credibility: “[Trial] counsel highlighted the weakness of Mr. Britton’s testimony [at the preliminary hearing] by showing that he was eager to testify against Mr. Menzies when he thought he might benefit by doing so, but he stopped cooperating once he realized that benefit would not materialize.” Id. at 616. The Utah Supreme Court did not address the claim involving Mr. Benitez’s account because Mr. Menzies had not raised that claim in the state proceedings. 5.5.2 Mental-Health Evidence Mr. Menzies argues that his attorney should have impeached Mr. Britton with evidence of his mental illness. The evidence appeared in (1) a letter by a psychiatrist, Dr. Breck Lebegue, who had interviewed Mr. Britton to address his competency to stand trial and (2) a report involving Mr. Britton’s competency. 9 In the habeas appeal, Mr. Menzies relies primarily on Dr. Lebegue’s letter. Defense counsel had offered the letter into evidence. But the trial 9 Three other pieces of evidence suggested that Mr. Britton may have been mentally ill: (1) the docket in Mr. Britton’s criminal case contained a motion for determination of mental capacity; (2) Mr. Britton acknowledged that he had undergone a mental health evaluation; and (3) Mr. Menzies had told his attorneys that Mr. Britton was mentally ill. But Mr. Menzies focuses on Dr. Lebegue’s letter. 37 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 38 court excluded the letter because it constituted inadmissible hearsay. Despite that ruling, defense counsel could have • subpoenaed Dr. Lebegue to testify about the contents of his letter or • cross-examined Mr. Britton with the letter. Defense counsel bypassed these opportunities, and Mr. Menzies criticizes this decision. In Utah, the party seeking to admit evidence of mental illness must “show that it actually affects the witness’s credibility.” State v. Stewart, 925 P.2d 598, 601 n.2 (Utah Ct. App. 1996). This showing requires a demonstration that the mental illness “affects the witness’s ability to accurately perceive, recall, and relate events” because “[not] all mental disorders affect a person’s credibility.” Id. at 600. Mr. Menzies argues that Mr. Britton’s mental illness diminished his credibility, focusing primarily on Dr. Lebegue’s letter. For this argument, Mr. Menzies points out that the Utah Supreme Court never discussed the failure to call Dr. Lebegue as a witness. In assessing this criticism, we consider the arguments presented in the post-conviction appeal. See Wellmon v. Colo. Dep’t of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020). There Mr. Menzies referred to this allegation in just a single sentence, stating that he’d alleged defense counsel’s failure to “subpoena Britton’s psychiatrist for trial.” Appellant’s Opening Br. at 86, Menzies v. 38 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 39 State, No. 20120290-SC (Utah Feb. 14, 2013). Mr. Menzies never told the Utah Supreme Court what Dr. Lebegue had said in his letter or would have testified. 10 Given that omission, the Utah Supreme Court acted reasonably in declining to discuss a claim involving his letter. The letter itself provided little reason for defense counsel to call Dr. Lebegue as a witness. In the letter, Dr. Lebegue explained that he couldn’t “derive an opinion” on Mr. Britton’s mental state because the interview had lasted only 30 minutes. Given Dr. Lebegue’s inability to derive an opinion, why call him as a witness? In his reply brief, Mr. Menzies states that Dr. Lebegue found that Mr. Britton could not rationally cooperate with his attorney. This statement misinterprets Dr. Lebegue’s letter. In the letter, Dr. Lebegue explains that he • was asked to render an opinion on Mr. Britton’s ability “to understand the proceedings . . . or to assist in his defense,” and • could not “derive an opinion as to the defendant’s mental state.” Post-Conviction R. at 11,538. Because Dr. Lebegue couldn’t derive an opinion, he recognized that Mr. Britton “may” lack the ability to cooperate with his attorney. Id. at 11,539. 10 Mr. Menzies did cite the letter, but only when stating the reason for Dr. Lebegue’s psychiatric evaluation—not for anything that the doctor had said. 39 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 40 Mr. Menzies omits the word “may”; Dr. Lebegue never expressed an opinion on Mr. Britton’s inability to assist his attorney. Given the qualifier “may,” a fair-minded jurist could reasonably conclude that this possibility wouldn’t affect Mr. Britton’s ability to accurately perceive, recall, and relate events. Dr. Lebegue’s letter could thus support trial counsel’s decision to forgo testimony about Mr. Britton’s mental health. Rather than suggest affliction with a mental illness, trial counsel developed a strategy involving Mr. Britton’s effort to soften his own sentence. Advancing this strategy, Mr. Menzies’s attorney argued that Mr. Britton had accurately recalled the news reports about the murder and used them to fabricate Mr. Menzies’s confession in order to obtain favorable treatment. See Original Trial Tr. at 2671 (arguing that Mr. Britton “had access to all television reports concerning [Mrs.] Hunsaker”). An argument about mental illness could have sunk this strategy by undermining Mr. Britton’s ability to understand his own self-interest. So the Utah Supreme Court appropriately concluded that defense counsel had acted reasonably in declining to challenge Mr. Britton’s testimony with evidence of his mental illness. 5.5.3 Benefits from Testimony Mr. Menzies argues that his trial counsel should have obtained additional evidence of bias to enhance the cross-examination at his 40 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 41 preliminary hearing. The additional evidence concerned Mr. Britton’s cooperation with the prosecutors in Mr. Menzies’s case. The Utah Supreme Court addressed this contention, concluding that the attorney’s investigation was not deficient or prejudicial. This conclusion reflected a reasonable application of Supreme Court precedent and the evidence because the attorney had • elicited substantial testimony about Mr. Britton’s motive to help the prosecution and • presented new trial evidence involving Mr. Britton’s benefit from helping the prosecution. At the preliminary hearing, the attorney cross-examined Mr. Britton, who admitted convictions for bank robberies, stealing, and presenting a forged instrument. Mr. Britton also admitted that he was awaiting his sentencing in one of the robbery cases. The prosecution countered by arguing that Mr. Britton had learned the grisly details from the murderer himself. To rebut that argument, Mr. Menzies’s attorney elicited Mr. Britton’s admission in the preliminary hearing that he had (1) heard news reports about the murder and (2) waited roughly a month before reporting the purported confession. At trial, the attorney couldn’t question Mr. Britton further because he refused to testify again. So the attorney presented new testimony from the 41 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 42 lawyer who had represented Mr. Britton in one of the robbery cases. The lawyer testified that • Mr. Britton had obtained a hearing on a motion to reduce his sentence and • a prosecutor from the Menzies case had supported Mr. Britton’s motion by reporting to the judge that Mr. Britton had testified for the State. 11 Given the cross-examination and new evidence at trial, the Utah Supreme Court could reasonably decline to find a deficiency or prejudice in defense counsel’s method of challenging Mr. Britton’s testimony. Mr. Menzies points out that his attorney didn’t confront Mr. Britton at the preliminary hearing with the prosecutor’s promise to report the cooperation to Mr. Britton’s sentencing judge. But a fair-minded jurist could regard the attorney’s approach as equally effective, for the jury ultimately learned of the arrangement from the new trial evidence. And the Utah Supreme Court could still reasonably conclude that using the statement for additional impeachment would not have dampened Mr. 11 In closing argument, Mr. Menzies’s attorney referred to the impeachment of Mr. Britton, telling the jury that Mr. Britton had benefited from the testimony implicating Mr. Menzies: “[W]hat Mr. Britton got for his testimony here [in Mr. Menzies’s murder case] . . . was an appearance by [the prosecutor] . . . at a [federal court] hearing in which it was presented to the judge that Mr. Britton was a cooperative person, that he had helped the police. That was used to reduce his sentence or for the judge to maintain jurisdiction over him so that hopefully, something could be done down the line.” Original Trial Tr. at 2670–71. 42 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 43 Britton’s credibility. After all, Mr. Menzies’s counsel had already obtained admissions from Mr. Britton that he (1) was a felon awaiting sentencing for robbery and (2) had a prior conviction of forgery. 5.5.4 Mr. Benitez’s Statement Mr. Menzies argues that his counsel was deficient for failing to conduct a pretrial interview of Mr. George Benitez. Mr. Benitez was an inmate housed at the same jail. Mr. Menzies suggests that an interview would have revealed Mr. Britton’s plan to testify about a fabricated confession. The district court concluded that the claim was procedurally barred. We agree. 5.5.4.1 Procedural Default In a declaration filed in federal district court, Mr. Benitez admits that he falsely reported to law-enforcement officers that Mr. Menzies had confessed to killing a woman. See R. vol. VII, at 36–38. The declaration adds that Mr. Britton had told Mr. Benitez about a plan to obtain leniency by fabricating testimony implicating Mr. Menzies in a murder. Id. at 37. Mr. Benitez explains that he had given the false statement about a confession because he was young and scared and had been promised leniency in a pending case. Id. at 36. In the state-court proceedings, Mr. Menzies did not present a claim involving trial counsel’s failure to interview Mr. Benitez. See R. vol. II, at 142 (stating that “[t]his claim was not raised in state court”). In the federal 43 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 44 habeas petition, Mr. Menzies acknowledged that the claim would be defaulted unless he could show cause and prejudice. See id. Mr. Menzies sought to establish cause and prejudice based on the ineffectiveness of his post-conviction attorney. According to the habeas petition, Mr. Menzies’s post-conviction counsel “fell below the standards of a minimally competent capital post-conviction attorney when he failed to raise this meritorious claim.” Id. Given the ineffectiveness of post- conviction counsel, Mr. Menzies relied on Martinez v. Ryan, 566 U.S. 1 (2012). Applying Martinez, the federal district court held that the claim involving Mr. Benitez was procedurally barred. The court rejected Mr. Menzies’s argument that under Martinez, the ineffective assistance of his post-conviction attorney could overcome the procedural bar: “[I]n Davila v. Davis, 137 S. Ct. 2058 (2017), the Supreme Court made clear that Martinez will not be extended to claims of ineffective assistance of post- conviction counsel for failing to raise the ineffective assistance of appellate counsel claims.” R. vol. I, at 1234–35. So Mr. Menzies was procedurally barred from raising “anything to do with the failure to investigate . . . Benitez.” Id. at 1235. Mr. Menzies challenges the district court’s finding of a procedural bar. For this challenge, he contends that the district court erred in applying Davila v. Davis, 137 S. Ct. 2058 (2017) to reject his Martinez argument. 44 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 45 As Mr. Menzies argues, the district court did misapply Davila. Mr. Menzies claimed ineffective assistance of trial counsel, and Davila had addressed “a different kind of defaulted claim—ineffective assistance of appellate counsel.” 137 S. Ct. at 2063 (emphasis added). For claims of ineffective assistance of trial counsel, we may assume for the sake of argument that Martinez applies. See Martinez v. Ryan, 566 U.S. 1, 8 (2012) (“Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.”). Under Martinez, a petitioner may show cause to overcome a procedural default when • a state requires assertion of an ineffective assistance of counsel claim in a collateral proceeding rather than on direct appeal and • the petitioner has obtained ineffective assistance in the collateral proceeding. See Finlayson v. State, 6 F.4th 1235, 1243 (10th Cir. 2021) (discussing Martinez). We assume (without deciding) that Mr. Menzies has satisfied the first Martinez requirement, but conclude that he cannot satisfy the second one. For the first Martinez requirement, Mr. Menzies argues that he could not have brought an ineffective assistance claim on direct appeal in the Utah courts because 45 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 46 • Utah law did not allow him to raise these claims when he filed his opening brief on direct appeal and • Mr. Menzies’s trial counsel also represented him on direct appeal. A Utah rule currently allows parties in a direct appeal to claim ineffective assistance of trial counsel. But Mr. Menzies had filed his opening appellate brief before this rule took effect. See Utah R. App. P. 23B (eff. Oct. 1, 1992). Prior to this rule, Mr. Menzies could not have raised these claims in the direct appeal. See State v. Litherland, 12 P.3d 92, 97–98 (Utah 2000) (discussing the “pre-rule 23B regime”). And Utah law allows post-conviction petitioners to assert new claims of ineffective assistance of counsel if trial counsel has also represented the petitioner in the direct appeal. See Rudolph v. Galetka, 43 P.3d 467, 468– 69 (Utah 2002). Here some of the same attorneys had represented Mr. Menzies at trial and on appeal. So we may assume satisfaction of the first Martinez requirement. But Mr. Menzies falters on the second Martinez requirement. His post-conviction attorney wasn’t ineffective by declining to challenge trial counsel’s failure to interview Mr. Benitez. In considering the attorneys’ performance, we assess both parts of the standard for ineffective assistance of counsel: deficient performance 46 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 47 and prejudice. Davis v. Sharp, 943 F.3d 1290, 1299 (10th Cir. 2019). Both are lacking here. For deficient performance, Mr. Menzies must show that his post- conviction attorneys were ineffective in neglecting to raise a claim involving the failure to interview Mr. Benitez. See Strickland v. Washington, 466 U.S. 668, 687–88 (1984) (“When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.”). But trial counsel need “not interview every possible witness to have performed proficiently.” Young v. Sirmons, 486 F.3d 655, 680 (10th Cir. 2007) (quoting Owens v. United States, 483 F.3d 48, 69 (1st Cir. 2007)). When other sources of information exist, we have regarded trial counsel’s decision not to interview a particular witness as a reasonable exercise of professional judgment. See United States v. Snyder, 787 F.2d 1429, 1433 (10th Cir. 1986); accord Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986) (“A claim of failure to interview a witness . . . cannot establish ineffective assistance when the person’s account is otherwise fairly known to defense counsel.” (quoting United States v. Decoster, 624 F.2d 196, 209 (D.C. Cir. 1976) (en banc))). We consider the reasonableness of the attorney’s judgment based on Mr. Benitez’s statement, which reported Mr. Menzies’s confession in 1986. Mr. Menzies acknowledges that the statement was mentioned in police 47 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 48 reports. See R. vol. II, at 142 (“Police reports clearly indicated that Benitez was interviewed by police about statements made by Mr. Menzies.”). Mr. Menzies’s attorneys could reasonably exercise their professional judgment by relying on Mr. Benitez’s account in the police report. See Williams v. Lemmon, 557 F.3d 534, 539 (7th Cir. 2009) (per curiam) (“[T]his court has held that no constitutional rule forbids lawyers from relying on interviews conducted by the police when deciding whether additional inquiries are in order.”). Mr. Menzies has also neglected to show prejudice from his trial counsel’s failure to interview Mr. Benitez. To establish prejudice, Mr. Menzies must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 669 (1984). A reasonable probability of a different result is lacking here. Mr. Benitez waited 28 years before retracting the 1986 statement, 12 and Mr. Menzies presents no reason to think that Mr. Benitez would have 12 The State argues that Mr. Menzies could not use the declaration because it was not part of the state-court record. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits”). Mr. Menzies does not reply to this argument. But he apparently assumes that he could use the declaration to show cause for a procedural default. Because Mr. Benitez’s declaration doesn’t establish ineffectiveness of post-conviction counsel, we need not decide whether a newly submitted declaration could prevent a procedural default. Cf. Shinn v. Ramirez, 142 S. Ct. 1718, 1737–38 (2022) (discussing the applicability 48 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 49 retracted the statement 28 years earlier if trial counsel had conducted a pretrial interview. And the case against Mr. Menzies included substantial evidence other than statements made to fellow jail inmates. See State v. Menzies, 889 P.2d 393, 401 (Utah 1994) (observing that there was “substantial evidence linking Menzies to the homicide”). So even if trial counsel had interviewed Mr. Benitez and obtained a retraction, Mr. Menzies has not established a reasonable probability of an acquittal. We conclude that Mr. Menzies has not overcome the procedural bar from failing to raise the Benitez claim in state court. 13 of statutory restrictions on evidentiary hearings to new evidence of cause based on ineffectiveness of post-conviction counsel). 13 The State observes that Mr. Menzies brought a separate claim for ineffectiveness of his counsel in the state post-conviction proceedings. See R. vol. II, at 281–310 (Second Amended Petition for Writ of Habeas Corpus, Claim 38). Mr. Menzies has no certificate of appealability on this claim. But Mr. Menzies also challenges his trial counsel’s failure to interview Mr. Benitez. See id. at 142–44. In that claim, Mr. Menzies asserts that “[t]he ineffective assistance of Mr. Menzies’s state post- conviction counsel in failing to raise this claim constitutes cause for the default and resulted in prejudice to Mr. Menzies.” Id. at 142. The district court granted a certificate of appealability on the entirety of Mr. Menzies’s claim for ineffective assistance of trial counsel, which included the challenges involving Mr. Benitez. See R. vol I, at 1307. So we have jurisdiction to consider Mr. Menzies’s challenges involving his post- conviction counsel’s failure to raise a claim on trial counsel’s decision not to interview Mr. Benitez. 49 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 50 5.5.4.2 Merits The claim involving Mr. Benitez’s declaration also fails on the merits. In addressing the issue, we lack a discussion of the merits not only in district court but also in the Utah Supreme Court. Because the Utah Supreme Court did not decide this claim on the merits, Mr. Menzies need not show a failure to reasonably apply Supreme Court precedent. See Cook v. McCune, 323 F.3d 825, 830 (10th Cir. 2003) (“When state courts have not adjudicated a petitioner’s claim on the merits, the AEDPA standards do not apply . . . .”). But Mr. Menzies does bear the burden of showing a right to habeas relief based on a preponderance of the evidence. Beeler v. Crouse, 332 F.2d 783, 783 (10th Cir. 1984) (per curiam). In our view, Mr. Menzies did not show by a preponderance of the evidence that trial counsel’s representation was either deficient or prejudicial. Mr. Menzies bases this habeas claim on a declaration that Mr. Benitez signed roughly 28 years after the trial. In the declaration, Mr. Benitez said that Mr. Britton had acknowledged a plan to fabricate Mr. Menzies’s confession. In the same declaration, however, Mr. Benitez acknowledged that before the trial, he too had told the police that he’d heard Mr. Menzies confess. In the declaration, Mr. Benitez explained that • he had talked to law-enforcement officers at the encouragement of Mr. Britton and 50 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 51 • Mr. Benitez had been young and scared and had told law- enforcement officers that he heard Mr. Menzies confess to the murder. Though Mr. Benitez recanted decades later, he does not suggest that he would have told a different story to defense counsel before the trial. After all, Mr. Benitez was young and scared before the trial and would have had to admit that he and Mr. Britton had lied to law-enforcement officers. Given Mr. Britton’s own incriminating report to law-enforcement officers, we conclude that Mr. Menzies did not show by a preponderance of the evidence that the failure to interview Mr. Benitez had been either deficient or prejudicial. We thus reject this claim of ineffective assistance. ** * In summary, we reject the claims of ineffective assistance of trial counsel. 6. The trial court’s instruction on reasonable doubt constituted a reasonable application of Supreme Court precedent and conformed to the Constitution. Mr. Menzies also challenges the jury instruction on reasonable doubt. For this challenge, Mr. Menzies focuses on the last paragraph of the instruction: If after an impartial consideration and comparison of all the evidence in the case you can candidly say that you are not satisfied of the defendant’s guilt, you have a reasonable doubt. But if after such impartial consideration and comparison of all the evidence you can truthfully say that you have an abiding 51 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 52 conviction of the defendant’s guilt such as you will be willing to act upon in the more weighty and important matters relating to your own affairs, you have no reasonable doubt. A reasonable doubt must be a real, substantial doubt and not one that is merely possible or imaginary. Trial ROA Dkt. No. 857. Mr. Menzies claims that this instruction improperly dampened the prosecution’s burden of proving the crime beyond a reasonable doubt, pointing to the statements that • reasonable doubt must be “real” and “substantial” and “not one that is merely possible or imaginary” and • reasonable doubt is lacking if one has “an abiding conviction of the defendant’s guilt such as [the jury] will be willing to act upon in the more weighty and important matters relating to [the jury’s] own affairs.” Id. 6.1 Reasonableness of the Utah Supreme Court’s Decision The Utah Supreme Court summarily rejected these claims. State v. Menzies, 889 P.2d 393, 406 (Utah 1994). So we must independently review the record and federal law to determine whether the Utah Supreme Court’s result “contravenes or unreasonably applies clearly established federal law” according to the Supreme Court. Aycox v. Little, 196 F.3d 1174, 1178 (10th Cir. 1999). 52 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 53 6.1.1 Substantial Doubt Mr. Menzies argues that the jury instruction incorrectly distinguished between doubts that are substantial and merely possible or imaginary. For this argument, Mr. Menzies relies on Cage v. Louisiana, 498 U.S. 39 (1990) (per curiam), and Monk v. Zelez, 901 F.2d 885(10th Cir. 1990) (per curiam). In Cage, the Supreme Court found error in a jury instruction that had equated reasonable doubt with (1) “such doubt as would give rise to a grave uncertainty” and (2) “an actual substantial doubt” rather than “a mere possible doubt.” 498 U.S. at 40–41. In Monk, we found error in an instruction’s description of reasonable doubt as “a substantial honest, conscientious doubt.” 901 F.2d at 889–91. 14 After Cage and Monk, however, the Supreme Court addressed a similar issue in Victor v. Nebraska, 511 U.S. 1 (1994). There the Court “made it clear that Cage was a narrow decision.” Wansing v. Hargett, 341 F.3d 1207, 1213 (10th Cir. 2003) (discussing Victor). In Victor, the trial court instructed the jury that a reasonable doubt “is an actual and 14 Monk was our case, not the Supreme Court’s. Under 28 U.S.C. § 2254(d)(1), the district court must focus on precedent by the Supreme Court, not our court. See Carter v. Ward, 347 F.3d 860, 863 (10th Cir. 2003) (stating that “an absolute prerequisite for petitioner’s claim is that the asserted constitutional right on which it rests derive in clear fashion from Supreme Court precedent”). So a petitioner cannot satisfy § 2254(d)(1) based on a departure from our opinion in Monk. See Welch v. City of Pratt, 214 F.3d 1219, 1223 (10th Cir. 2000) (concluding that the petitioner’s claim couldn’t satisfy § 2254(d)(1) because it rested on our opinion rather than the Supreme Court’s). 53 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 54 substantial doubt,” but not “a doubt arising from mere possibility, from bare imagination, or from fanciful conjecture.” 511 U.S. at 18. The Supreme Court commented that the reference to “substantial doubt” was “somewhat problematic,” but viewed the rest of the instruction as adequate because it clarified that a doubt was insubstantial only if it involved a “mere possibility,” “bare imagination,” or “fanciful conjecture.” Id. at 19–20. That clarification hadn’t existed in Cage’s jury instruction. Id. at 20. In Victor, the instruction explained that “‘substantial’ is used in the sense of the existence rather than magnitude of the doubt.” Id. So the Victor jury had been properly instructed. Id. at 20–21. Under Victor, the Utah Supreme Court reasonably rejected Mr. Menzies’s challenge to the instruction’s use of the phrase “a real, substantial doubt.” Like the jury instruction in Victor, the jury instruction at Mr. Menzies’s trial contrasted a “real, substantial doubt” to a doubt “that [was] merely possible or imaginary.” Trial ROA Dkt. No. 857. Given the similarity between this language and the language upheld in Victor, the Utah Supreme Court could reasonably consider Mr. Menzies’s jury instruction as permissible under Victor. We addressed a virtually identical challenge in Tillman v. Cook, 215 F.3d 1116 (10th Cir. 2000). There the trial court issued the same instruction, prompting the defendant to argue that the court had unconstitutionally equated reasonable doubt with a real, substantial doubt. 54 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 55 Id. at 1123–24. Like Mr. Menzies, the defendant in Tillman relied on Cage and Monk. Id. at 1121. We rejected the defendant’s argument, distinguishing Cage and Monk in light of the instruction’s contrast with doubt that’s merely possible or imaginary: Like the instruction in Victor, but unlike the Cage and Monk instructions, Mr. Tillman’s instruction distinguishes “a real, substantial doubt” from “one that is merely possible or imaginary.” In Cage, the Court was “concerned that the jury would interpret the term ‘substantial doubt’ in parallel with the preceding reference to ‘grave uncertainty,’ leading to an overstatement of the doubt necessary to acquit.” Not only is the reference to “grave uncertainty” absent from Mr. Tillman’s instruction, but the juxtaposition with “merely possible or imaginary” “makes clear that ‘substantial’ is used in the sense of existence rather than magnitude of the doubt, so the same concern is not present.” Thus, although far from exemplary, the use of the substantial doubt language was not error. Id. at 1125–26 (citations omitted); accord Johnson v. Alabama, 256 F.3d 1156, 1193–94 (11th Cir. 2001) (holding that a jury instruction did not unconstitutionally diminish the standard of reasonable doubt because it contrasted an “actual and substantial” doubt with a doubt that was merely “imaginative or speculative”). We can’t question the reasonableness of the Utah Supreme Court’s result given our own opinion that the same language on “substantial doubt” hadn’t constituted an error. See Mollett v. Mullin, 348 F.3d 902, 913 (10th Cir. 2003) (stating that our prior opinion is relevant because it could serve as a guide in determining the reasonableness of a state supreme court’s application of Supreme Court case law); accord 2 Randy Hertz & James S. Liebman, Federal Habeas 55 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 56 Corpus Practice & Procedures § 32.3 (7th ed. 2021) (stating that “circuit precedents . . . can shed light on the ‘reasonableness’ of the state court’s application of existing Supreme Court precedents”). 6.1.2 Willingness to Act The Utah Supreme Court also acted reasonably in upholding the jury instruction despite the language on a willingness to act. We must assess the reasonableness of the state supreme court’s result based on the arguments presented in state court. Wellmon v. Colo. Dep’t of Corrs, 952 F.3d 1242, 1249 (10th Cir. 2020). In his direct appeal to the Utah Supreme Court, Mr. Menzies challenged the willingness-to-act language by relying on a concurrence by one of the state supreme court justices. See Appellant’s Opening Br. at 85, State v. Menzies, No. 880161 (Utah Sept. 14, 1992) (citing State v. Johnson, 774 P.2d 1141, 1148 (Stewart, J., concurring)). Mr. Menzies offered no authority from the United States Supreme Court supporting his challenge to the willingness-to-act language. Without meaningful input from Mr. Menzies, the state supreme court reasonably applied United States Supreme Court precedent to reject Mr. Menzies’s claim. We too have addressed the same language in the same jury instruction. Tillman v. Cook, 215 F.3d 1116, 1126–27 (10th Cir. 2000). There we concluded that the jury instruction had “correctly conveyed the concept of reasonable doubt to the jury.” Id. at 1127. In light of our own 56 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 57 decision upholding the same language in the same jury instruction, we regard the state supreme court’s decision as reasonable. See pp. 55–56, above. Granted, the United States Supreme Court has criticized the language on a willingness to act. In Holland v. United States, the Supreme Court concluded that the trial court should have explained reasonable doubt “in terms of the kind of doubt that would make a person hesitate to act, rather than the kind on which he would be willing to act.” 348 U.S. 121, 140 (1954) (citation omitted). But the Court held that when the jury instructions were read as a whole, they couldn’t have misled the jury. Id. So Holland does not undermine the reasonableness of the Utah Supreme Court’s consideration of the jury instruction on a willingness to act. See Waine v. Sacchet, 356 F.3d 510, 516 (4th Cir. 2004) (“Holland did not fault the instruction given to the extent of finding error, let alone find a violation of the Due Process Clause.”); Ramirez v. Hatcher, 136 F.3d 1209, 1214 (9th Cir. 1998) (“[N]either the Supreme Court nor any circuit has invalidated an instruction which includes the willingness to act terminology where ‘the charge, taken as a whole, fairly and accurately conveys the meaning of reasonable doubt.’” (quoting United States v. Robinson, 546 F.2d 309, 314 (9th Cir. 1976))). The Utah Supreme Court’s rejection of Mr. Menzies’s challenge to the jury instruction on reasonable 57 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 58 doubt was thus not contrary to or an unreasonable application of clearly established federal law as determined by the United States Supreme Court. 6.2 Absence of a Constitutional Violation Even if Mr. Menzies could show that the Utah Supreme Court’s decision was contrary to or an unreasonable application of United States Supreme Court precedent, see 28 U.S.C. § 2254(d)(1), he still could not obtain habeas relief. See Fry v. Pliler, 551 U.S. 112, 119 (2007) (stating that § 2254(d)(1) “sets forth a precondition to the grant of habeas relief . . . , not an entitlement to it.”). “[E]ven when petitioners satisfy the threshold in § 2254(d), they must establish a violation of federal law or the federal constitution.” Hancock v. Trammell, 798 F.3d 1002, 1010 (10th Cir. 2015). Our court has rejected virtually identical challenges to the same instruction. Tillman v. Cook, 215 F.3d 1116, 1123–27 (10th Cir. 2000). Addressing the phrase “substantial doubt,” we stated that “[l]ike the instruction in Victor, but unlike the Cage and Monk instructions, [the petitioner’s] instruction distinguishes a ‘real substantial doubt’ from ‘one that is merely possible or imaginary.’” Id. at 1125. We recognized use of the problematic phrase “willing to act,” but we reasoned that “the cases have not held ‘willing to act language’ to be reversible error in itself.” Id. at 1127. So we held that “taken as a whole, the instruction correctly conveyed the concept of reasonable doubt to the jury.” Id. 58 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 59 Given our precedent, we would need to reject Mr. Menzies’s challenge on the merits even if the state appellate court had unreasonably applied Supreme Court precedent. 7. The Utah Supreme Court reasonably rejected Mr. Menzies’s claim of ineffective assistance of counsel during sentencing. Mr. Menzies also complains of his attorneys’ handling of the sentencing phase. The Utah Supreme Court concluded that Mr. Menzies had not justified habeas relief, Menzies v. State, 344 P.3d 581, 622–31 (Utah 2014), and this conclusion reflected a reasonable application of Supreme Court precedent and the record. 7.1 The Evidence Presented in State Court In the sentencing phase, the prosecution presented evidence of Mr. Menzies’s criminal record, including convictions for three robberies and an escape. In presenting this evidence, the prosecution argued that Mr. Menzies posed a continuing threat of violence and couldn’t be rehabilitated. Mr. Menzies countered with testimony from a clinical psychologist, an educational psychologist, and a social worker. The clinical psychologist testified that Mr. Menzies’s boyhood had entailed extensive abuse and neglect. In the clinical psychologist’s view, Mr. Menzies suffered from personality disorders but could still change his behavior. The educational psychologist concluded that Mr. Menzies 59 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 60 suffered from mental deficits but might be able to function normally with proper treatment. The social worker testified that during a period of imprisonment before the murder, Mr. Menzies had taken pride in a prison job and had not tried to escape. Despite the presentation of this evidence, Mr. Menzies complains of his counsel’s performance in the sentencing phase. Because Mr. Menzies faced the possibility of the death penalty, the sentencing court considered the evidence on his background and character. See California v. Brown, 479 U.S. 538, 541 (1987) (“[T]he capital defendant generally must be allowed to introduce any relevant mitigating evidence regarding his ‘character or record and any of the circumstances of the offense.’” (quoting Eddings v. Oklahoma, 455 U.S. 104, 110 (1982))). 7.2 Mr. Menzies’s Theories of Ineffectiveness Mr. Menzies maintains that his counsel was deficient in • waiting until the end of the guilt phase to start investigating mitigation, • failing to conduct a reasonable investigation of mitigating evidence, and • forgoing evidence of organic brain damage. 7.3 The Attorney’s Duty to Investigate Attorneys act deficiently when they fail to conduct a “thorough investigation—in particular, of mental health evidence—in preparation for 60 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 61 the sentencing phase of a capital trial.” Hooks v. Workman, 689 F.3d 1148, 1201 (10th Cir. 2012) (quoting Wilson v. Sirmons, 536 F.3d 1064, 1083 (10th Cir. 2008), reinstated sub nom. Wilson v. Workman, 577 F.3d 1284 (10th Cir. 2009) (en banc)). The representation becomes prejudicial if additional mitigation evidence would have created a reasonable probability of a sentence other than the death penalty. Id. 7.4 Bar to Considering Evidence Presented in Federal Court Mr. Menzies asks us to consider evidence that he did not present in Utah state court. This evidence reveals “a multi-generational history of mental illness, substance abuse, and violent physical abuse.” Appellant’s Opening Br. at 50–51. That history includes • his father’s and stepfather’s abuse of his mother and sister and • his family’s extreme neglect of his needs. The federal district court declined to consider this new evidence, limiting review to the record presented in state court. R. vol. I, at 1276–77; see Cullen v. Pinholster, 563 U.S. 170, 186 (2011). In the district court’s view, a procedural bar prevented consideration of evidence if it hadn’t been presented in state court. See R. vol. I, at 1276–77. Mr. Menzies had urged cause for the procedural default from the ineffectiveness of his post-conviction attorneys. The federal district court rejected this argument, reasoning that “attorney error committed during the 61 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 62 course of state postconviction proceedings cannot supply cause to excuse a procedural default that occur[red] in those proceedings.” R. vol. I, at 1300. In our appeal, Mr. Menzies challenges the district court’s application of a procedural bar. For this challenge, he relies on the Supreme Court’s opinions in Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013). Applying Martinez and Trevino, Mr. Menzies asserts that he established cause to overcome a procedural default because • he had needed to raise his claim of ineffective assistance of counsel through a collateral proceeding rather than the direct appeal and • he had obtained ineffective assistance of counsel in the collateral proceeding. We review de novo Mr. Menzies’s legal argument challenging the application of a procedural bar. Banks v. Workman, 692 F.3d 1133, 1147– 48 (10th Cir. 2012) (Gorsuch, J.). We have elsewhere assumed that Mr. Menzies has established the first requirement to overcome the procedural bar (that Utah law required him to make this claim of ineffective assistance in a collateral proceeding rather than in the direct appeal). See p. 46, above. 15 But Mr. Menzies has 15 When Mr. Menzies filed his direct appeal, Utah hadn’t yet changed its rule to allow consideration of ineffective-assistance claims in the direct appeal. See Utah. R. App P. 23B (eff. Oct. 1, 1992). And Mr. Menzies had the same counsel at trial and on direct appeal. So he arguably needed to claim ineffective assistance in a collateral proceeding rather than in the direct appeal. 62 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 63 not satisfied the second requirement, proof of ineffective assistance of counsel in the state post-conviction proceeding. Mr. Menzies argues that his counsel in the collateral proceeding had a conflict of interest. In order to establish a conflict of interest, Mr. Menzies needed to show “a division of loyalties that [had] affected counsel’s performance.” Mickens v. Taylor, 535 U.S. 162, 172 n.5 (2002). Mr. Menzies has not shown a prejudicial division of loyalties. He bases his conflict of interest on the allegation that his post-conviction attorneys had charged too much money. Appellant’s Opening Br. at 49. But Mr. Menzies has not explained how the excessive attorney fees would have affected the attorneys’ performance or compromised their loyalty. Mr. Menzies also contends that his post-conviction attorneys failed to conduct a reasonable investigation on mitigation. But Mr. Menzies lacks support for this contention. His post-conviction attorneys presented the state courts with three new items: 1. an expert opinion from a psychologist, which had attributed Mr. Menzies’s personality disorders to a “brutal childhood,” see Post-Conviction R. at 13,618, 13,610–20, 2. an expert opinion from a neuropsychologist, who had diagnosed Mr. Menzies with “neurological/psychiatric conditions” that had likely impaired his capacity to form intent at the time of the murder, see id. at 12,473–81, and 3. an affidavit from a capital mitigation specialist, who had opined on many new details involving abuse and neglect, see id. at 10,716–20, 15,452. 63 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 64 Given the mitigation evidence gathered and submitted in the state post-conviction proceedings, we conclude that Mr. Menzies’s post- conviction attorneys were not deficient. Because Mr. Menzies hasn’t shown cause to overcome the procedural bar, we limit our review to the evidence presented in state court. See pp. 61–62, above. 7.5 Delayed Investigation of the Mitigating Evidence Mr. Menzies complains that his trial counsel shouldn’t have waited until after the guilt phase to start investigating mitigation evidence. Despite this complaint, Mr. Menzies acknowledges that he had met with one of the trial experts (a psychologist) roughly fourteen months before the trial. But, Mr. Menzies adds, both his trial counsel and the psychologist waited until one or two days before the sentencing to meet with a sister and an aunt, the only relatives to testify for Mr. Menzies. The Utah Supreme Court rejected Mr. Menzies’s challenge, reasoning that “[e]ven if it is true that counsel did not begin the mitigation investigation until after the guilt phase, . . . Mr. Menzies failed to demonstrate how this [would have] prejudiced his case.” Menzies v. State, 344 P.3d 581, 625 (Utah 2014). Mr. Menzies attacks this reasoning, contending that trial counsel should have interviewed other family members, particularly Mr. Menzies’s father and stepparents. According to Mr. Menzies, those family members could have provided insights far beyond the sister’s testimony about the father’s abuses. 64 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 65 In our view, the Utah Supreme Court reasonably rejected Mr. Menzies’s complaint that his attorneys had taken too long to start investigating mitigation evidence. Mr. Menzies had complained that his counsel had waited to interview the aunt and sister until right before the start of the sentencing stage. Regardless of the timing, however, the aunt and sister ultimately testified about “numerous ‘gruesome’ details concerning Mr. Menzies’s abuse and neglect.” Menzies v. State, 344 P.3d at 627. For example, the sister described physical abuse by two stepfathers. Original Trial Tr. at 2910–12, 2915–16. And Mr. Menzies’s aunt described neglect by Mr. Menzies’s mother. Id. at 2950–51. Mr. Menzies presents no evidence suggesting that an earlier investigation would have provided qualitatively different or additional evidence of mitigation. A fair-minded jurist could thus conclude that the Utah Supreme Court had acted reasonably in finding a failure to show prejudice. 7.6 Failure to Investigate Other Mitigating Evidence Mr. Menzies claims that his attorney should have investigated potential sexual abuse by his father and stepparents. The Utah Supreme Court rejected these claims. For the allegation of sexual abuse, the attorney presented no corroboration by Mr. Menzies’s sister, his aunt, or his three mental-health experts. But in state post-conviction proceedings, Mr. Menzies presented 65 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 66 an affidavit from a mitigation specialist, stating that “there was some information provided that indicated [Mr. Menzies] may have been molested by his stepmother.” Menzies v. State, 344 P.3d 581, 626 (Utah 2014) (alteration in original) (emphasis added). The mitigation specialist did not explain the possibility of molestation or identify any supporting evidence. Mr. Menzies also complains that his attorney didn’t try to find the father or stepfathers. The Utah Supreme Court noted that (1) the father had not been seen in twelve years, (2) Mr. Menzies had supplied no information suggesting that the stepfathers could have been available to testify, (3) the aunt and sister had testified for Mr. Menzies, and (4) there was no sign that the father or stepfathers could have provided additional relevant information. Id. at 628. Mr. Menzies presents no basis to question the reasonableness of the Utah Supreme Court’s decision. He says that sexual abuse is often surrounded by secrecy and manipulation, but he does not say what the attorney failed to explore. And even if the attorney should have investigated further, Mr. Menzies does not show how more information about sexual abuse would have made a difference at the sentencing phase. Even now, Mr. Menzies presents no evidence of actual sexual abuse. For similar reasons, Mr. Menzies hasn’t shown that his counsel failed to learn about the other relatives that would have affected the sentencing. The Utah Supreme Court reasonably concluded that Mr. Menzies was just 66 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 67 speculating about the possibility of additional mitigating evidence from family members. This conclusion was at least reasonable based on the state-court record. Mr. Menzies also complains of a failure to investigate his family history. The Utah Supreme Court rejected this claim, reasoning that the defense attorney had presented testimony from experts and family members about Mr. Menzies’s social history, his history of abuse, his mental health, his educational background, his incarcerations, his employment, and his potential for rehabilitation. Menzies v. State, 344 P.3d 581, 628 (Utah 2014). Reasonable jurists might have reached a different conclusion, but Mr. Menzies does not show how we could regard the Utah Supreme Court’s conclusions as unreasonable. 7.7 Failure to Present Evidence of Organic Brain Damage Mr. Menzies also claims that his trial counsel should have presented evidence of organic brain damage. For this claim, Mr. Menzies flags a notation made during his confinement as a juvenile. This notation says that Mr. Menzies “functions below his ability level and was found to have minimal brain damage.” Appellant’s Opening Br. at 63 (citing Penalty Phase, State Ex. 8, at 91). In Mr. Menzies’s view, this notation should have alerted trial counsel to the possibility of organic brain damage. In support, Mr. Menzies points 67 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 68 to a neuropsychological evaluation submitted in the state post-conviction proceedings. The Utah Supreme Court rejected Mr. Menzies’s claim, reasoning that • the experts testifying at the sentencing had “found no supporting evidence in their inquiries” and • such evidence could have undermined Mr. Menzies’s theory of his potential for rehabilitation. Menzies v. State, 344 P.3d 581, 629 (Utah 2014). Mr. Menzies hasn’t shown that the Utah Supreme Court acted unreasonably in concluding that he had failed to show a deficiency in the representation. Though Mr. Menzies points to the possibility of an organic brain injury, he hasn’t pointed to any evidence of an organic injury that trial counsel failed to present. The neuropsychological evaluation submitted in the post-conviction proceedings refers only to a notation of “organic brain syndrome” and “minimal brain dysfunction syndrome” as a juvenile. See Post-Conviction R. at 11,502. But this evidence was presented at sentencing: A clinical psychologist testified about the notation, and the trial court acknowledged the notation when imposing the sentence. Given the discussion of the notation by the clinical psychologist and the trial court, the 68 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 69 neuropsychological evaluation doesn’t show a deficiency from the attorney’s failure to present other evidence of organic brain injury. Nor has Mr. Menzies shown a flaw in the Utah Supreme Court’s analysis of prejudice. Mr. Menzies complains that his trial attorney should have investigated further. But Mr. Menzies doesn’t suggest that he’s ever had a diagnosis of organic brain injury. Without such a diagnosis, Mr. Menzies’s trial counsel reasonably argued that Mr. Menzies could change his behavior. That argument would have been difficult to maintain if the sentencing judge had attributed Mr. Menzies’s violence to an organic brain injury. See Gilson v. Sirmons, 520 F.3d 1196, 1248 (10th Cir. 2008) (observing that evidence of organic brain damage may undermine mitigation arguments by suggesting that the defendant is dangerous and will remain a threat to others); see also Grant v. Royal, 886 F.3d 874, 924–25 (10th Cir. 2018) (rejecting an ineffective- assistance claim in part because additional evidence of organic brain damage “could have been in tension with the mitigation case and had a double-edged effect”). After all, Mr. Menzies hasn’t suggested the possibility of treating his alleged organic brain damage with medication. See Grant, 886 F.3d at 923 (concluding that the state appeals court could reasonably consider the mitigation value of organic brain damage as “significantly weakened” by the lack of any evidence that the negative 69 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 70 manifestations would have been “treatable with medication or other such means”). ** * We conclude that the Utah Supreme Court acted reasonably in rejecting Mr. Menzies’s claims of ineffective assistance in the sentencing phase. 8. The Utah Supreme Court acted reasonably in rejecting Mr. Menzies’s challenges to the admissibility of documents from his prison file. Mr. Menzies also challenges the introduction of his prison file during the sentencing phrase. The Utah Supreme Court acted reasonably in rejecting these challenges. 8.1 The Utah Supreme Court reasonably concluded that introduction of mental-health evaluations had not violated the Fifth Amendment. Mr. Menzies challenges the introduction of evaluations from March 1973, December 1975, September 1976, July 1979, and September 1980. 16 In these evaluations, mental-health professionals had • summarized Mr. Menzies’s family history and record of criminal conduct and 16 Mr. Menzies also refers to psychiatric reports in • February 1973, • February 1976, and • March 1976. 70 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 71 • presented diagnoses, prognoses, and recommendations for treatment. Mr. Menzies complains that the State used these records even though the mental-health professionals hadn’t provided Miranda warnings. 17 In the trial court, Mr. Menzies did not present a Miranda challenge. So the Utah Supreme Court would ordinarily confine its review to the plain-error standard. See State v. Holgate, 10 P.3d 346, 350 (Utah 2000). But here, the court rejected Mr. Menzies’s challenge to the admission of the prison file without discussing the issue. See State v. Menzies, 889 P.2d 393, 406 (Utah 1994) (concluding that “[w]e find Menzies’s other claims But the habeas petition doesn’t mention these reports. 17 The State argues that Mr. Menzies (1) framed the issue beyond the certificate of appealability and (2) failed to identify specific statements that should have been excluded. We disagree with the State’s characterization of Mr. Menzies’s claim. He challenged the introduction of the entire prison file, but he also identified specific evaluations that should have been excluded. See R. vol. II, at 179–80 (Second Amended Petition for a Writ of Habeas Corpus, Claim 18). On appeal, Mr. Menzies challenges the introduction of evaluations within a claim encompassed in the district court’s certificate of appealability. See Appellant’s Opening Br. at 67. Mr. Menzies does not identify specific statements; he instead challenges the use of all the evaluations based on a failure to give him Miranda warnings. Mr. Menzies made that challenge in his habeas petition, and the district court’s certificate of appealability encompasses this challenge. 71 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 72 to be without merit”). So we can’t tell whether the Utah Supreme Court reviewed the issue under the plain-error standard. Without an explanation from the Utah Supreme Court, we give Mr. Menzies the benefit of the doubt, assuming for the sake of argument that the Utah Supreme Court treated the claim as preserved. With this assumption, we determine the reasonableness of the Utah Supreme Court’s decision. See Douglass v. Workman, 560 F.3d 1156, 1168 (10th Cir. 2009) (per curiam) (“In situations like this one [when the court cannot determine whether a state court ruling was on the merits], our cases require us to assume that the state’s review is on the merits and thus afford it § 2254(d) deference.”). For his challenge, Mr. Menzies relies on Estelle v. Smith, 451 U.S. 454 (1981). In Estelle, the trial court ordered a psychiatric examination to evaluate competency. Id. at 456–57. This psychiatrist not only evaluated the defendant’s competency but also testified for the State in the sentencing phase, opining that the defendant was “a very severe sociopath” who lacked remorse and would continue his violent behavior. Id. at 459– 60. In forming these opinions, the psychiatrist relied on the defendant’s statements during the competency evaluation. Id. at 464–65. The United States Supreme Court held that the introduction of the psychiatrist’s testimony had violated the Fifth Amendment. Id. at 468. For this holding, the Court reasoned that the defendant had obtained “no 72 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 73 indication” that the State would use the compulsory examination to gather evidence bearing on the possibility of a death sentence. Id. at 467. Without Miranda warnings, the United States Supreme Court concluded that the trial court should have excluded the defendant’s statements to the psychiatrist. Id. at 469. Applying Estelle, the Utah Supreme Court acted reasonably in rejecting this claim because • Estelle could be distinguished, • the Supreme Court’s precedents would not require consideration of the evaluations as custodial interrogations, and • the Supreme Court’s holdings would not require application of the exclusionary rule in the sentencing phase. The Utah Supreme Court could reasonably distinguish Estelle based on Penry v. Johnson, 532 U.S. 782 (2001). The Penry Court observed that • Estelle had limited its holding to “the ‘distinct circumstances’ presented there” and • the Supreme Court had “never extended Estelle’s Fifth Amendment holding beyond its particular facts.” Id. at 795 (quoting Estelle, 451 U.S. at 466). In Penry, the petitioner challenged the admission at sentencing of a psychiatrist’s opinions from an earlier proceeding. Id. at 793. For this challenge, the petitioner in Penry cited Estelle, arguing that it required exclusion of the psychiatrist’s 73 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 74 opinions in the absence of Miranda warnings. Id. at 793–94. The Supreme Court disagreed, distinguishing Estelle. Id. at 794. The Penry Court interpreted Estelle to consider use of statements when the court required a psychiatric examination involving pending charges of a capital crime. Id. When the psychiatrist elicited the incriminating information in Estelle, “it was [] clear that his future dangerousness would be a specific issue at sentencing.” Id. In Penry, however, the psychiatric examination had preceded the murder. Id. This distinction could reasonably apply here too because Mr. Menzies’s evaluations had preceded the murder charge. So the mental- health professionals conducting the evaluations did not elicit statements for the prosecution to use. The Utah Supreme Court could reasonably rely not only on this difference with Estelle but also on doubt as to the existence of a custodial interrogation. Miranda warnings are required only for custodial interrogations. See Howes v. Fields, 565 U.S. 499, 508–09 (2012). Mr. Menzies alleges a custodial interrogation because he was evaluated while confined on criminal charges. But the United States Supreme Court has considered “custody” a term of art referring to circumstances that are thought generally to present “a serious danger of coercion.” Id. “[S]ervice of a term of imprisonment, without more, is not enough to constitute Miranda custody.” Id. at 512. 74 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 75 The Utah Supreme Court could thus reasonably conclude that Mr. Menzies had failed to identify circumstances creating a danger of coercion. For example, the court could base this conclusion on the Fifth Circuit’s opinion in Cobble v. Quarterman, 496 F.3d 430 (5th Cir. 2007). There the court concluded that Miranda does not apply to mental-health evaluations, reasoning that • a psychiatric consultation did not constitute a custodial interrogation because “[the petitioner’s] statements were simply for the purpose of medical and psychiatric diagnosis” and • “[u]nlike the defendant in Estelle v. Smith, [the petitioner] was not ‘faced with a phase of the adversary system,’ but was ‘in the presence of [a] perso[n] acting solely in his interest.’” Id. at 440 (fourth and fifth alterations in original) (quoting Estelle v. Smith, 451 U.S. 454, 467–69 (1981)). Even if the interview had been custodial, the state appellate court could have reasonably declined to apply the exclusionary rule. The United States Supreme Court has not addressed the applicability of the exclusionary rule in the sentencing phase, but we’ve held that the rule doesn’t apply there. See United States v. Hinson, 585 F.3d 1328, 1335 n.3 (10th Cir. 2007) (“The exclusionary rule does not bar the admission of the fruits of an illegal search at sentencing unless the illegal search was conducted with the intent to obtain evidence that would increase the defendant’s sentence.”); United States v. Salazar, 38 F. App’x 490, 495–96 75 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 76 (10th Cir. 2002) (unpublished) (concluding that “even if we assume that [the defendant’s] statements to [law enforcement agents] were obtained in violation of his Fifth Amendment rights, the district court did not err in considering them at sentencing”); accord United States v. Nichols, 438 F.3d 437, 442 (4th Cir. 2006) (“[S]tatements obtained in violation of Miranda, if they are otherwise voluntary, may generally be considered at sentencing.”). Because we’ve held that federal law doesn’t require application of the exclusionary rule in the sentencing phase, we can’t question the reasonableness of the Utah Supreme Court’s disposition of the Miranda claim. See Mollett v. Mullin, 348 F.3d 902, 913 (10th Cir. 2003) (stating that our prior opinion is relevant because it could serve as a guide in determining the reasonableness of a state court’s application of Supreme Court case law); see also 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice & Procedures § 32.3 (7th ed. 2021) (stating that “circuit precedents . . . can shed light on the ‘reasonableness of the state court’s application of existing Supreme Court precedents’”). In conclusion, Mr. Menzies has not shown a failure to reasonably apply Miranda. Though Mr. Menzies relies on Estelle, Penry’s distinctions with Estelle could apply here too. And the Supreme Court’s holdings wouldn’t require (1) consideration of the mental-health evaluations as custodial or (2) application of the exclusionary rule in the sentencing phase. 76 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 77 8.2 Introduction of Mr. Menzies’s prison file did not deny the right to confrontation, constitute a denial of due process, or entail cruel and unusual punishment. Mr. Menzies also claims that the trial court committed constitutional violations in allowing the introduction of his prison file, which contained social histories, incident reports, and information about disciplinary hearings. 8.2.1 Confrontation Clause Mr. Menzies relies in part on the Sixth Amendment’s Confrontation Clause. In state court, however, Mr. Menzies conceded that the United States Supreme Court had “not directly held that the right to confrontation applies to the penalty phase of a capital trial.” Appellant’s Opening Br. at 126, State v Menzies, No. 880161 (Utah Sept. 14, 1992). Without controlling precedent from the United States Supreme Court, our court and other circuit courts have declined to apply the Confrontation Clause in the sentencing phase. See Carter v. Bigelow, 787 F.3d 1269, 1294 (10th Cir. 2015) (rejecting a habeas challenge to the admission of out-of-court statements, reasoning that “[t]he Supreme Court has never held that the Confrontation Clause applies at a capital sentencing”); United States v. Fields, 483 F.3d 313, 335 (5th Cir. 2007) (“Neither the text of the Sixth Amendment nor the history of murder trials supports the extension of the Confrontation Clause to testimony relevant only to penalty selection in a capital case.”); United States v. Harmon, 721 F.3d 877, 888 (7th Cir. 2013) 77 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 78 (“The Confrontation Clause does not apply at sentencing.”); United States v. Egge, 223 F.3d 1128, 1132 (9th Cir. 2000) (“In making factual determinations, a sentencing judge is generally not restricted to evidence that would be admissible at trial.”); Chandler v. Moore, 240 F.3d 907, 918 (11th Cir. 2001) (“[H]earsay evidence is admissible at a capital sentencing.”); see also John G. Douglass, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967, 1980 (2005) (“The [United States Supreme] Court has never said that the right to ‘deny or explain’ sentencing information includes . . . the right to see, hear, and cross-examine the sources of that information.” (quoting Gardner v. Florida, 430 U.S. 349, 362 (1977) (plurality opinion))). Given these opinions by our court and other circuit courts, we do not question the reasonableness of the Utah Supreme Court’s application of clearly established federal law to reject Mr. Menzies’s Sixth Amendment claim. See Mollett v. Mullin, 348 F.3d 902, 913 (10th Cir. 2003) (stating that our prior opinion is relevant because it could serve as a guide in determining the reasonableness of a state court’s application of Supreme Court case law); see also 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice & Procedures § 32.3 (7th ed. 2021) (stating that “circuit precedents . . . can shed light on the reasonableness of the state court’s application of existing Supreme Court precedents”). 78 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 79 8.2.2 Due Process Mr. Menzies also claims a denial of due process because the prison records lacked sufficient indicia of reliability. For this claim, Mr. Menzies relies on Gardner v. Florida, 430 U.S. 349 (1977), and Townsend v. Burke, 334 U.S. 736 (1948). But these cases differed from ours. For example, Gardner addressed reliance on a part of the presentence report that had been withheld from the defendant and his attorney. 430 U.S. at 353–54 (plurality opinion). Though the State had withheld part of the report, the trial judge imposed a death sentence partly in reliance on the contents. Id. at 353. The United States Supreme Court found a denial of due process because the trial court had imposed a death sentence based partly on information withheld from the defendant. Id. at 362. Townsend addressed reliance on mistaken assumptions. 334 U.S. 736, 741. There the defendant had been sentenced based on untrue assumptions about his criminal record. Id. Because the trial judge had not allowed the defendant to challenge the erroneous information, the United States Supreme Court found a denial of due process. Id. Unlike the defendants in Gardner and Townsend, Mr. Menzies had a chance to review the documents used in the sentencing phase. And he points to nothing false or misleading. Given Mr. Menzies’s opportunity to review the documents and his failure to identify anything false or misleading, the Utah Supreme Court could reasonably conclude that 79 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 80 introduction of the documents hadn’t denied due process to Mr. Menzies. See United States v. Lewis, 910 F.2d 1367, 1373 (7th Cir. 1990) (concluding that prison records were admissible at sentencing because the sentencing court could “consider a wide variety of information, including hearsay”). 18 8.2.3 Cruel and Unusual Punishment Finally, Mr. Menzies characterizes the introduction of these documents as cruel and unusual punishment. But he cites no Supreme Court authority for this claim. Given the lack of supporting precedent from the United States Supreme Court, the Utah Supreme Court could reasonably conclude that introduction of the documents hadn’t violated Mr. Menzies’s protection from cruel and unusual punishment. 18 Mr. Menzies also cites the dissent from the state supreme court’s opinion in his direct appeal. There the dissenting justice concluded that the trial judge should have evaluated the relevance and reliability of the documents before allowing them into evidence. For this conclusion, the justice relied on Utah Supreme Court opinions concluding that evidence offered in capital sentencing proceedings must bear relevance and reliability. State v. Menzies, 889 P.2d 393, 408 (Utah 1994) (Stewart. J., dissenting). But clearly established federal law consists of decisions by the United States Supreme Court, not the Utah Supreme Court. See Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013) (stating that clearly established federal law hinges on the United States Supreme Court’s holdings). So the Utah Supreme Court’s dissent doesn’t suggest a failure to reasonably apply clearly established federal law. 80 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 81 9. The Utah Supreme Court reasonably concluded that the trial court had not violated the Constitution by relying on uncharged aggravating circumstances. Mr. Menzies claims violation of the Eighth and Fourteenth Amendments because the trial court relied on three uncharged aggravating circumstances: 19 1. The murder was committed “in an especially heinous, atrocious, cruel manner demonstrated by serious bodily injury to the victim before death.” Utah Stat. Ann. § 76-5-202(1)(q) (1988). 2. The murder “was committed” for “pecuniary or other personal gain.” Utah Stat. Ann. § 76-5-202(1)(f) (1988). 3. The murder “was committed for the purpose of preventing a witness from testifying.” Utah Stat. Ann. § 76-5-202(1)(i) (1988). Original Trial Tr. at 3249–50. Mr. Menzies claims that • these aggravating circumstances hadn’t been charged, supported, or found by the jury, and • the Utah Supreme Court failed to discuss the prejudice from the trial court’s erroneous consideration of the aggravating circumstances involving pecuniary gain and prevention of testimony. In our view, the Utah Supreme Court acted reasonably in determining the facts and in applying clearly established federal law. Though the court 19 Mr. Menzies also says that it was “problematic” for the trial judge to rely on an aggravating circumstance involving a prior felony conviction for threats or violence. But he acknowledges that such evidence existed here and was “typical” of evidence presented in capital sentencing proceedings. He thus doesn’t appear to challenge use of this aggravating circumstance. 81 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 82 omitted any discussion about two of the aggravating circumstances, the omission didn’t violate Mr. Menzies’s constitutional rights. 9.1 Utah law allowed the prosecution to allege additional aggravating circumstances at sentencing. We must consider Utah’s uses of aggravating circumstances. Under applicable Utah law, the death penalty could be imposed only after a conviction of a homicide requiring proof of at least one aggravating circumstance identified in a statutory list. See State v. Tillman, 750 P.2d 546, 569–70 & n.90 (Utah 1987) (discussing Utah Code Ann. § 76-5- 202(1), the Utah capital murder statute in effect at the time of the murder and the trial). “Utah’s statutory scheme incorporate[d] the aggravating circumstances into the definition of the first degree murder offense, thereby initially narrowing the pool of defendants eligible for the death penalty in the guilt phase, rather than in the penalty phase, of the trial.” Id. at 570. After conviction of a murder involving an aggravating circumstance, the trial court needed to conduct a sentencing hearing “to take evidence of additional aggravating factors and any mitigating factors the defendant may be able to prove.” State v. Wood, 648 P.2d 71, 79 (Utah 1982); see Utah Stat. Ann. § 76-3-207(1) (1982). At the sentencing hearing, the court could consider various evidentiary items: [E]vidence may be presented as to any matter the court deems relevant to sentence, including but not limited to the nature and 82 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 83 circumstances of the crime, the defendant’s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court deems to have probative force may be received regardless of its admissibility under the exclusionary rules of evidence. The state’s attorney and the defendant shall be permitted to present argument for or against sentence of death. Aggravating circumstances shall include those as outlined in 76- 5-202. Utah Stat. Ann. § 76-3-207(1) (1982) (emphasis added). The “aggravating circumstances . . . as outlined in 76-5-202” included • the commission of murder “in an especially heinous, atrocious, cruel manner,” Utah Stat. Ann. § 76-5-202(1)(q) (1988), • the commission of murder to prevent a witness from testifying, Utah Stat. Ann. § 76-5-202(1)(i) (1988), and • the commission of murder for personal gain, Utah Stat. Ann. § 76-5-202(1)(f) (1988). The trial court followed the statutory procedure. In the guilt stage, the jury found not only the commission of murder but also the presence of an aggravating circumstance: commission of murder while “engaged in the commission of, attempt to commit, or flight after committing or attempting to commit robbery and aggravated kidnapping.” See Original Trial Tr. at 2693 (jury verdict); see also Utah Stat. Ann. § 76-5-202(1)(d) (1988) (setting forth this aggravating circumstance). Then, after Mr. Menzies waived his right to a jury trial, the trial court conducted a sentencing hearing and obtained additional evidence bearing on the sentence. 83 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 84 In the sentencing phase, the prosecution urged consideration of other aggravating circumstances bearing on selection of the sentence: • “the method and manner of death” (strangling and cutting Mrs. Hunsaker’s throat with a sharp object), • the commission of murder while perpetrating underlying felonies (robbery and aggravated kidnapping), • the commission of murder to keep Mrs. Hunsaker from testifying, • the planning of the murder, and • the lack of remorse. Original Trial Tr. at 2721–23. 9.2 Mr. Menzies obtained adequate notice of the aggravating circumstances bearing on the sentence. In the direct appeal, Mr. Menzies argued that he lacked notice that the State would rely on other aggravating circumstances during the sentencing phase. Appellant’s Opening Br. at 167–70, State v. Menzies, No. 880161 (Utah Sept. 14, 1992). The Utah Supreme Court rejected this argument. See State v. Menzies, 889 P.2d 393, 406 (1994) (“We find Menzies’ other claims to be without merit.”). “[U]nder Section 2254(d), we review the reasonableness of a state court’s decision in light of the arguments the petitioner raised in the state court.” Wellmon v. Colo. Dep’t of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020). 84 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 85 In light of the arguments that Mr. Menzies presented, the state appellate court acted reasonably in finding notice of additional aggravating circumstances. Mr. Menzies had cited only one opinion by the United States Supreme Court. Appellant’s Opening Br. at 168–69, State v. Menzies, No. 880161 (Utah Sept. 14, 1992). That opinion involved a defendant who had received no notice of a possible death sentence. See Lankford v. Idaho, 500 U.S. 110, 127 (1991) (explaining that the “[p]etitioner’s lack of adequate notice that the judge was contemplating the imposition of the death sentence created an impermissible risk that the adversary process may have malfunctioned in this case”). In Mr. Menzies’s case, however, the State had charged capital homicide and made pretrial allegations of aggravating circumstances identified in the state statute. See State v. Menzies, 889 P.2d 393, 397 (Utah 1994). We addressed the sufficiency of statutory notice in Andrews v. Shulsen, 802 F.2d 1256 (10th Cir. 1986). There we squarely held that Utah’s statutory list of aggravating circumstances had provided constitutionally adequate notice. Id. at 1263 n.4. In Andrews, a Utah petitioner had been sentenced to death. Id. at 1259. He sought habeas relief, alleging that the State should have included the aggravating circumstances in the documents constituting the murder charges. Id. at 1263 n.4. We rejected this allegation: “[The habeas petitioner] could have requested a bill of particulars but failed to do so. In any event, statutory 85 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 86 notice of aggravating circumstances satisfies constitutional requirements under the Due Process Clause.” Id. Other circuits have also rejected similar arguments involving notice of aggravating circumstances. See Clarke v. Dugger, 834 F.2d 1561, 1566 (11th Cir. 1987) (concluding that“[i]t is well established under Florida law that a defendant has no right to advance notice of the aggravating circumstances on which the State will rely” and the state statute’s list of aggravating circumstances had satisfied the constitutional requirements); Spinkellink v. Wainwright, 578 F.2d 582, 609–10 (5th Cir. 1978) (concluding that a statutory list of aggravating circumstances provided adequate notice to a defendant facing a possible death sentence). Given our own approach to notice, we can hardly view the Utah Supreme Court’s identical approach as unreasonable. See Mollett v. Mullin, 348 F.3d 902, 913 (10th Cir. 2003) (stating that our prior opinion is relevant because it could serve as a guide in determining the reasonableness of a state supreme court’s application of Supreme Court case law); accord 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice & Procedures § 32.3 (7th ed. 2021) (stating that “circuit precedents . . . can shed light on the ‘reasonableness’ of the state court’s application of existing Supreme Court precedents”). Confronting our precedent, Mr. Menzies argues that 86 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 87 • Andrews relied on an out-of-circuit opinion later overruled and • the Utah statute’s narrowing of the class of persons eligible for the death penalty did not provide adequate notice. We reject both arguments. First, Mr. Menzies observes that our Andrews opinion cited Spinkellink v. Wainwright, 578 F.2d 582 (5th Cir. 1978). To Mr. Menzies, this observation became significant when a newly created Eleventh Circuit allegedly said that the United States Supreme Court’s opinion in Godfrey v. Georgia, 446 U.S. 420 (1980), had overruled Spinkellink. But the Eleventh Circuit said only that Godfrey had superseded Spinkellink’s language “precluding federal courts from reviewing state courts’ application of capital sentencing criteria.” Proffitt v. Wainwright, 685 F.2d 1227, 1261 n.52 (11th Cir. 1982). The Eleventh Circuit did not address Spinkellink’s language about notice. Spinkellink aside, nothing suggests abrogation of Andrews, which is our precedent. Mr. Menzies also argues that the state statutory scheme doesn’t adequately narrow the class of persons eligible for the death penalty. This argument conflates two distinct phases of Utah’s statutory system: eligibility and selection. A defendant becomes eligible for the death penalty only if the jury finds at least one aggravating circumstance. Utah Code Ann. § 76-5-202(1) (1978 & Supp. 1987). If the jury finds at least one aggravating circumstance, the trial advances to the selection phase, 87 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 88 where the sentencer can choose the death penalty only upon a finding that the total aggravation outweighs the total mitigation. State v. Wood, 648 P.2d 71, 83–84 (Utah 1982). The United States Supreme Court has said that the narrowing function takes place when determining eligibility, not selection. Zant v. Stephens, 462 U.S. 862, 878–79 (1983); see also Buchanan v. Angelone, 522 U.S. 269, 275–76 (1998). 20 At the eligibility phase, the prosecution charged an aggravating circumstance: murder in the course of committing robbery and aggravated kidnapping. The State thus supplied notice of the aggravating circumstance to narrow the class of defendants eligible for the death sentence. The United States Supreme Court has never required further notice at the selection stage, so the Utah Supreme Court had no “clearly established federal law” to apply. See Littlejohn v. Trammell, 704 F.3d 817, 825 (10th Cir. 2013) (stating that clearly established federal law hinges on the United States Supreme Court’s holdings). In the absence of “clearly established 20 In Buchanan, the court explained: It is in regard to the eligibility phase that we have stressed the need for channeling and limiting the jury’s discretion to ensure that the death penalty is a proportionate punishment and therefore not arbitrary or capricious in its imposition. In contrast, in the selection phase, we have emphasized the need for a broad inquiry into all relevant mitigating evidence to allow an individualized determination. 522 U.S. at 275–76. 88 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 89 federal law,” Mr. Menzies cannot obtain habeas relief. See House v. Hatch, 527 F.3d 1010, 1021 (10th Cir. 2008) (“Absent controlling Supreme Court precedent, it follows ineluctably that the New Mexico Supreme Court’s decision to uphold the venue transfer cannot be either ‘contrary to, or [] an unreasonable application of clearly established Federal law.’” (quoting 28 U.S.C. § 2254(d)(1))). So Mr. Menzies is not entitled to habeas relief on this claim. See id. at 1018 (“The absence of clearly established federal law is dispositive under § 2254(d)(1).”). 9.3 The prosecution did not need to prove each aggravating circumstance beyond a reasonable doubt. Mr. Menzies also asserts that the jury never found three of the aggravating circumstances: (1) a heinous, atrocious and cruel murder, (2) a murder to prevent a witness from testifying, and (3) a murder for pecuniary gain. This assertion consists of a single sentence within the discussion involving inadequate notice of aggravating circumstances. This sentence does not adequately develop a distinct appellate challenge. See Thompson R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1148 n.3 (10th Cir. 2008) (stating that a single fleeting sentence in an appellate brief “is too inadequately developed to be meaningfully addressed and is deemed waived” (quoting United States v. Martinez, 518 F.3d 763, 768 (10th Cir. 2008))). 89 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 90 Even if Mr. Menzies had developed this challenge, it would appear meritless. The jury found (1) Mr. Menzies guilty of first-degree murder and (2) his commission of murder while “engaged in the commission of, attempt to commit, or flight after committing or attempting to commit robbery and aggravated kidnapping.” Original Trial Tr. at 2693. At the selection phase, the sentencing judge didn’t need to make findings on each aggravating circumstance. Instead, the factfinder had to • compare the totality of aggravating factors to the totality of the mitigating factors and • determine whether a death sentence was warranted. State v. Wood, 648 P.2d 71, 83–84 (Utah 1982). The trial court made that comparison and decided on the death penalty. See Original Trial Tr. at 3268, 3270 (finding that “the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt” and warrant the death penalty). Mr. Menzies cites nothing to require findings on each aggravating factor at the selection stage. 9.4 The Utah Supreme Court didn’t violate any constitutional rights by omitting discussion of two aggravating circumstances from the analysis of harmless error. Mr. Menzies points out that when the Utah Supreme Court addressed harmless error, there was no discussion of two disputed aggravating circumstances (commission of murder for pecuniary gain and prevention of testimony). But as just discussed, the trial court didn’t err by considering 90 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 91 these aggravating circumstances. So the Utah Supreme Court had no reason to discuss harmlessness for these aggravating circumstances. 10. The Utah Supreme Court reasonably rejected Mr. Menzies’s challenge to the constitutionality of the aggravating circumstances. Mr. Menzies also challenges the constitutionality of the trial court’s reliance on two aggravating circumstances: 1. murders that are heinous, atrocious, and cruel, Utah Code Ann. § 76-5-202(1)(q) (1988) and 2. murders committed for pecuniary gain, Utah Code Ann. § 76- 5-202(1)(f) (1988). The Utah Supreme Court concluded that • the trial court had not plainly relied on the aggravating circumstance for murders that are heinous, atrocious, and cruel and • any possible error would have been harmless. State v. Menzies, 889 P.2d 393, 405 (Utah 1994). Without discussion, the court rejected Mr. Menzies’s challenge to the aggravating circumstance for pecuniary gain. Id. at 406 (“We find Menzies’s other claims to be without merit.”). In our view, the Utah Supreme Court acted reasonably. We reject Mr. Menzies’s challenges. 91 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 92 10.1 Aggravating Circumstance for Murders that are Heinous, Atrocious, and Cruel At the time of the trial, the Utah Supreme Court had yet to interpret Utah’s aggravating circumstance for murders that are heinous, atrocious, and cruel. But after Mr. Menzies appealed in state court, the Utah Supreme Court decided State v. Tuttle, 780 P.2d 1203 (Utah 1989). There the court concluded that this aggravating circumstance could satisfy the Constitution only if the defendant had • inflicted “physical torture, serious physical abuse, or serious bodily injury [upon] the victim before death” in a manner “qualitatively and quantitatively different and more culpable than that necessary to accomplish the murder” and • inflicted the abuse while in a “mental state materially more depraved or culpable than that of most other murderers.” Id. at 1215–17 (citations omitted). In Mr. Menzies’s direct appeal, the Utah Supreme Court concluded that application of the aggravating circumstance hadn’t constituted plain error. State v. Menzies, 889 P.2d 393, 405 (Utah 1994). For this conclusion, the court explained that • it had “no solid reason to believe that the [trial] judge thought this was an appropriate situation for reliance on the heinous factor listed in § 76-5-202-1(q),” • the trial judge might have been agreeing with the prosecutor’s statement about “the brutal and heinous nature of the murder,” • the prosecutor’s statement had not referred to § 76-5-202-1(q), and 92 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 93 • any error would have been harmless. Id. 10.1.1 Merits The Utah Supreme Court’s disposition under the plain-error test constituted a reasonable application of the evidence and clearly established federal law. At the sentencing phase, the prosecution had relied on the aggravating circumstance for “the method and the manner of death.” Original Trial Tr. at 2721. For this argument, the prosecution relied on two pieces of evidence: (1) Someone had strangled Mrs. Hunsaker and cut her throat with a sharp object, and (2) the medical examiner had testified that the cutting of Mrs. Hunsaker’s throat had just started her descent into death. Id. at 1620–21, 2721. When announcing the reasons for the death sentence, the trial court found that “the homicide [had been] committed in an especially heinous, atrocious, cruel manner demonstrated by serious bodily injury to the victim before death.” Id. at 3250; see Utah Code Ann. § 76-5-202(1)(q) (1988). But the court didn’t conclude that the prosecution had satisfied Tuttle’s requirements for murders that are heinous, atrocious, and cruel. Given that omission, Mr. Menzies argued that the trial court had failed to narrow the aggravating circumstances, pointing to United States Supreme Court precedent requiring a precise definition to “provide a 93 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 94 meaningful distinction between capital and non-capital murders.” Appellant’s Opening Br. at 158–63, State v. Menzies, No. 880161 (Utah Sept. 14, 1992) (quoting State v. Tuttle, 780 P.2d 1203, 1217 (Utah 1989) and discussing Godfrey v. Georgia, 446 U.S. 420 (1980)). But Mr. Menzies didn’t acknowledge the distinction between the eligibility and selection phases. See Buchanan v. Angelone, 522 U.S. 269, 275–76 (1998) (discussing these two phases). In the eligibility phase, the factfinder narrows the class of defendants eligible for the death penalty by determining whether the crime fits within a particular classification. Tuilaepa v. California, 512 U.S. 967, 973, 983 (1994). In the selection phase, the factfinder determines whether to impose the death penalty on an eligible defendant. Buchanan, 522 U.S. at 275–76. In this phase, the court ordinarily broadens the inquiry to consider “relevant mitigating evidence so as to assure an assessment of the defendant's culpability.” Tuilaepa, 512 U.S. at 973, 983. Although state sentencing procedures don’t always fall neatly into these two categories, Mr. Menzies’s trial involved discrete stages for eligibility and selection. A jury found Mr. Menzies eligible for the death penalty because he had committed a murder in the course of a robbery and an aggravated kidnaping. A separate proceeding followed, where the trial judge found additional aggravating circumstances and selected the death penalty as the appropriate sentence. 94 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 95 But Mr. Menzies identifies no United States Supreme Court opinion requiring precision in the definition of aggravating circumstances at a selection phase that follows a factfinder’s determination of eligibility for the death penalty. For example, in his direct appeal, Mr. Menzies relied mainly on Godfrey v. Georgia, 446 U.S. 420 (1980). In Godfrey, the jury had been instructed on one overly broad aggravator and imposed a death sentence. Id. at 426. Unlike Mr. Menzies, the Godfrey defendant faced the disputed aggravating circumstance before he was deemed eligible for the death penalty. Id. Mr. Menzies also relies on Maynard v. Cartwright, 486 U.S. 356 (1988). But there too, the trial court didn’t provide a separate phase for the jury to decide eligibility for the death penalty. See id. at 358–59. Because the Utah Supreme Court concluded that the trial judge had not relied on the aggravating circumstances for murders that are heinous, atrocious, and cruel, the court didn’t address Mr. Menzies’s challenges. See State v. Menzies, 889 P.2d 393, 405 (Utah 1994). In our view, the court’s conclusion on plain error didn’t implicate any precedents from the United States Supreme Court. Without such precedents, this claim fails for lack of clearly established federal law. See House v. Hatch, 527 F.3d 1010, 95 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 96 1018 (10th Cir. 2008) (“The absence of clearly established federal law is dispositive under § 2254(d)(1).”). 21 10.1.2 Consideration of Mitigating Factors Mr. Menzies also contends that the Utah Supreme Court improperly ignored the mitigating factors. We disagree with Mr. Menzies’s interpretation of the Utah Supreme Court’s opinion. The court referred to “the mitigating factors” and stated that it had reweighed the remaining aggravating factors against the mitigating factors. Id. (quoting State v. Archuleta, 850 P.2d 1232, 1248 (Utah 1993)). We thus conclude that the Utah Supreme Court did not ignore the mitigating factors. 10.2 Sufficiency of the Evidence on Aggravating Circumstances In a single sentence, Mr. Menzies also asserts that the prosecution lacked sufficient evidence of these aggravating circumstances. This sentence was not enough to develop this argument, so it’s waived. See Thompson R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1148 n.3 (10th Cir. 2008) (stating that a single fleeting sentence in an appellate brief “is too inadequately developed to be meaningfully addressed and is 21 The Utah Supreme Court also concluded that any error in considering this aggravating circumstance would have been harmless. State v. Menzies, 889 P.2d 393, 405 (Utah 1994). In challenging this conclusion, Mr. Menzies argues that Utah Supreme Court applied the wrong standard in evaluating harmlessness. But Mr. Menzies has not shown a violation of clearly established federal law in the consideration of this aggravating circumstance. So we need not address Mr. Menzies’s challenge to the Utah Supreme Court’s decision on harmlessness. 96 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 97 deemed waived” (quoting United States v. Martinez, 518 F.3d 763, 768 (10th Cir. 2008))). Even if Mr. Menzies hadn’t waived the argument, though, we’d reject it. For the aggravating circumstance of murder for pecuniary gain, the prosecution presented evidence that (1) cash was missing from Mrs. Hunsaker’s register and (2) roughly the same amount had been discovered in Mr. Menzies’s apartment. The prosecution also presented evidence that Mr. Menzies had killed Mrs. Hunsaker to prevent her from testifying. For example, Mr. Britton testified that Mr. Menzies had admitted killing Mrs. Hunsaker to prevent her from testifying. And Mr. Menzies had been convicted of other robberies based on the testimony of witnesses who had not been killed. The trial court could thus reasonably determine that Mr. Menzies had decided to kill Mrs. Hunsaker to prevent her from testifying. So even without a waiver, we would have rejected Mr. Menzies’s challenge to the sufficiency of evidence on the aggravating circumstances. 10.3 Reasonable jurists could reject Mr. Menzies’s claim involving reliance on duplicative aggravating circumstances. Mr. Menzies argues that the trial court violated the Eighth Amendment by relying on aggravating circumstances that • the murder had been committed while Mr. Menzies was engaged in the commission of, an attempt to commit, or flight after committing, or attempting to commit a robbery and 97 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 98 • the murder had been committed for pecuniary gain. Mr. Menzies contends that these two aggravating circumstances were duplicative because they involved the same acts. On direct appeal, the Utah Supreme Court summarily rejected this argument. See State v. Menzies, 889 P.2d 393, 406 (Utah 1994) (“We find Menzies’ other claims to be without merit.”). We’ve held that the double counting of aggravating factors tends “to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally.” United States v. McCullah, 76 F.3d 1097, 1111 (10th Cir. 1996). Under our case law, double counting occurs if one factor “necessarily subsumes” another. Cooks v. Ward, 165 F.3d 1283, 1289 (10th Cir. 1998) (quoting United States v. McCullah, 76 F.3d 1087, 1111 (10th Cir. 1996)). Similarly, the Utah Supreme Court disallows counting of robbery and pecuniary gain as separate aggravating circumstances: “[R]obbery inherently comprises an attempt to gain pecuniarily. It is nonsensical to say that a defendant who commits a homicide during the commission of a robbery is somehow more deserving of the death penalty because he also committed the murder for pecuniary gain.” Parsons v. Barnes, 871 P.2d 516, 528 (Utah 1994). 98 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 99 Despite these opinions from the Utah Supreme Court and our court, the United States Supreme Court has “never before held that aggravating factors could be duplicative so as to render them constitutionally invalid, nor ha[s] [the Court] passed on the ‘double counting’ theory that the Tenth Circuit advanced in McCullah.” Jones v. United States, 527 U.S. 373, 398 (1999). With no Supreme Court case law condemning the double counting of aggravating circumstances, Mr. Menzies cannot obtain habeas relief on this challenge. See House v. Hatch, 527 F.3d 1010, 1018 (10th Cir. 2008) (“The absence of clearly established federal law is dispositive under § 2254(d)(1).”). 11. In rejecting Mr. Menzies’s challenges involving errors in the trial transcript, the Utah Supreme Court reasonably applied Supreme Court precedent and found the pertinent facts. In his federal habeas petition, Mr. Menzies alleged constitutional violations from the Utah courts’ failure to provide an adequate transcript. The federal district court rejected those claims. So do we. In our view, the federal district court couldn’t grant habeas relief on this claim because the Utah Supreme Court had reasonably • applied Supreme Court precedent to require a showing of prejudice and • determined that Mr. Menzies had not shown such prejudice. 99 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 100 11.1 The Utah courts provided the parties with an opportunity to correct errors in the trial transcript. The trial transcript contained many errors. These errors stemmed in part from the court reporter’s process. She used shorthand notes, then prepared a transcript with help from a note reader and proofreader. The note reader transcribed the court reporter’s notes and marked sections that were hard to read. The court reporter reviewed the note reader’s comments and made corrections. The proofreader then reviewed the entire transcript and made more corrections. Mr. Menzies’s trial counsel discovered numerous errors in the eventual trial transcript and moved for a new trial. The trial court referred the motion to the Utah Supreme Court, which remanded the case to the trial court for proceedings to correct the transcript. On remand, counsel for both sides spent roughly three weeks with the court reporter, trying to correct the mistakes. The court reporter read from her shorthand notes while the attorneys followed along with copies of the original transcript. Together, the court reporter and the attorneys spotted (1) discrepancies between the notes and the transcript and (2) gaps in the transcript (including parts of the voir dire and some of the trial judge’s admonitions to the jury). After the court reporter and attorneys had finished these meetings, the trial court conducted an evidentiary hearing. At that hearing, Mr. 100 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 101 Menzies’s lead trial lawyer testified, pointing to (1) errors in the original transcript that had not been corrected and (2) mismatches between the court reporter’s notes and the original transcript. In the view of Mr. Menzies’s attorney, the note reader had tried to fix problems with the court reporter’s notes without knowing whether these fixes reflected what had been said at the trial. Given the attorney’s testimony, Mr. Menzies argued that the lack of a reliable trial transcript prevented a meaningful appeal in state court. 11.2 The trial court found no constitutional violation, and the record contained two versions of the transcript. The trial court rejected this argument, concluding that the transcript was accurate enough for appellate review. The parties then filed three versions of the transcript with the Utah Supreme Court: 1. the original version, 2. the “California” version, which contains the notes of Mr. Menzies’s lead counsel regarding alleged gaps and errors, and 3. another version containing more notes and corrections. The trial court designated the first two versions as part of the record on appeal. See State v. Menzies, 845 P.2d 200, 224 (Utah 1992). 11.3 The Utah Supreme Court upheld the trial court’s ruling that the transcript was accurate enough for a meaningful appeal. In the state-court appeal, Mr. Menzies advanced legal and factual challenges to the trial court’s ruling. As a legal challenge, he contended 101 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 102 that the trial court had erroneously required him to show prejudice from the errors. And factually, Mr. Menzies contended that the trial court should have found prejudice. The Utah Supreme Court rejected these legal and factual challenges for three reasons: 1. “The clear weight of authority requires a showing of prejudice to overturn a conviction on the basis of transcription errors,” and Utah courts had followed that approach. 2. The cited errors could be reconciled based on the context and didn’t bear on the underlying appellate issues. 3. It was “possible to cure any conceivable prejudicial errors without retrying the case.” State v. Menzies, 845 P.2d 220, 228–29 (Utah 1992). 11.4 The Utah Supreme Court’s decision was not based on an unreasonable application of clearly established federal law. Mr. Menzies challenges this reasoning, arguing in part that the Utah Supreme Court unreasonably applied clearly established federal law. Mr. Menzies failed to preserve this argument, and it’s invalid. In federal district court, Mr. Menzies didn’t argue that the state courts had unreasonably applied clearly established federal law when addressing the transcription errors. As a result, Mr. Menzies failed to preserve this argument for appellate review. See Grant v. Royal, 886 F.3d 874, 909 (10th Cir. 2018) (concluding that the failure to make an argument under § 2254(d)(2) prevented appellate review); Harris v. Sharp, 941 F.3d 102 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 103 962, 975 (10th Cir. 2019) (“Even in habeas cases involving the death penalty, we consider arguments forfeited or waived when they are raised for the first time on appeal.”). Even if Mr. Menzies had preserved this argument, we wouldn’t question the reasonableness of the Utah Supreme Court’s application of clearly established federal law. For clearly established federal law, Mr. Menzies relies on the United States Supreme Court’s recognition of a constitutional right to meaningful appellate review of a criminal defendant’s conviction and sentence. See Evitts v. Lucey, 469 U.S. 387, 393 (1985). This right includes “a ‘record of sufficient completeness’ for adequate consideration of the errors assigned.” Draper v. Washington, 372 U.S. 487, 497 (1963) (quoting Coppedge v. United States, 369 U.S. 438, 446 (1962)). But a record of sufficient completeness does not necessarily mean a verbatim transcript. Mayer v. City of Chicago, 404 U.S. 189, 194 (1971). “Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant’s contentions arise.” Draper, 372 U.S. at 495. When the appellate arguments create a “colorable need for a complete transcript,” the State must show that something less (like part of a transcript or an alternative) would suffice. Mayer, 404 U.S. at 195. 103 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 104 Mr. Menzies’s appeal involved a mistake-riddled transcript rather than a transcript that’s incomplete. Given these mistakes, Mr. Menzies contends that he shouldn’t have had to show prejudice. In applying the precedents of the United States Supreme Court, however, we have held that habeas petitioners challenging transcription errors must show prejudice to their ability to pursue an appeal in state court. Capps v. Cowley, 63 F.3d 982, 983 (10th Cir. 1995); United States v. Clark, 596 F. App’x 696, 699– 700 (10th Cir. 2014) (unpublished); Harden v. Maxwell, No. 00-7032, 2000 WL 1208320, at 1 (10th Cir. 2000) (unpublished). Other circuits have also required habeas petitioners to show prejudice from errors in the trial transcript. Higginbotham v. Louisiana, 817 F.3d 217, 222 (5th Cir. 2016) (per curiam); White v. State of Fla., Dep’t of Corrs., 939 F.2d 912, 914 (11th Cir. 1991); Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986); Mitchell v. Wyrick, 698 F.2d 940, 941–42 (8th Cir. 1983). Given these opinions from our court and others, we can’t question the reasonableness of the state court’s requirement for Mr. Menzies to show prejudice. See Mollett v. Mullin, 348 F.3d 902, 913 (10th Cir. 2003) (stating that our prior opinion is relevant because it could serve as a guide in determining the reasonableness of a state supreme court’s application of Supreme Court case law); accord 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice & Procedures § 32.3 (7th ed. 2021) (stating that “circuit 104 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 105 precedents . . . can shed light on the ‘reasonableness’ of the state court’s application of existing Supreme Court precedents”). The circuit courts’ requirement of prejudice is reasonable given the absence of Supreme Court precedent, for “[t]here is no Supreme Court . . . authority on the due process implications of a state court’s failure to record portions of a criminal trial.” Madera v. Risley, 885 F.2d 646, 648 (9th Cir. 1989). Challenging the prejudice requirement, Mr. Menzies points to Mayer v. City of Chicago, where the Supreme Court addressed the failure to provide a criminal defendant with any transcript. 404 U.S. 189, 190, 198 (1971). But Mayer provides little help because our issue doesn’t involve the failure to provide a transcript. The State provided a transcript of more than 3,000 pages, and Mr. Menzies had a chance to thoroughly review these pages and propose corrections. In circumstances like ours, courts have not read Mayer to relieve a defendant of the burden to show prejudice from transcription errors. For example, the Sixth Circuit observed that “Mayer does not stand for the proposition . . . that where a portion of a trial transcript is missing and unobtainable, and where a defendant makes a claim that could possibly implicate that portion of the transcript, a retrial is always necessary.” Scott v. Elo, 302 F.3d 598, 604 (6th Cir. 2002). Instead, when part of a transcript 105 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 106 is missing, habeas relief is warranted only if the petitioner shows prejudice. Id. Regardless of whether the Sixth Circuit was correct, fair-minded jurists could reasonably conclude that Mayer doesn’t relieve a criminal defendant of the need to show prejudice. As a result, Mr. Menzies’s challenge is not only unpreserved but also meritless. 11.5 The Utah Supreme Court did not base its decision on an unreasonable determination of fact. Mr. Menzies also challenges the factual underpinnings of the Utah Supreme Court’s decision, arguing that the court unreasonably rejected his allegations of prejudice. The federal district court rejected this argument. We do, too. 11.5.1 Reliance on the Docketing Statement In finding no prejudice, the Utah Supreme Court referred to the issues raised in Mr. Menzies’s docketing statement. Mr. Menzies criticizes that reference. But when the court made this reference, the docketing statement provided the only meaningful source to identify the appellate issues. Mr. Menzies points out that when he filed the docketing statement, the court reporter hadn’t yet finished the transcript. Although Mr. Menzies had appealed based on the errors in the transcript, he hadn’t yet appealed 106 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 107 his conviction or sentence. So in Mr. Menzies’s view, the Utah Supreme Court shouldn’t have used the docketing statement to gauge prejudice. Mr. Menzies’s argument ignores later developments in his direct appeal. The Utah Supreme Court addressed the transcription errors before turning to other issues. See State v Menzies, 845 P.3d 220, 224 (Utah 1992) (noting that “we review only issues concerning the adequacy of the transcript” and “do not reach the merits of the conviction and sentence”). After addressing the transcription issues, Mr. Menzies submitted a 199- page brief raising 44 issues involving his conviction and sentence. Appellant’s Opening Br., State v. Menzies, No. 880161 (Utah Sept. 14, 1992). Based on the information in the initial appeal, which involved only transcript issues, the Utah Supreme Court acted reasonably in relying on the docketing statement. When referring to the docketing statement, the court didn’t have the benefit of the briefs in Mr. Menzies’s second appeal, which would later assert other challenges to his conviction and sentence. Those briefs didn’t yet exist. Without the benefit of those briefs, the court needed something to gauge the possible prejudice from the transcription errors. The court thus used the docketing statement as a guidepost to measure prejudice. Of course, Mr. Menzies later submitted the briefs in his second appeal. When he did so, he could have used his newly asserted arguments 107 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 108 to supplement his showing of prejudice. If prejudice hadn’t been apparent earlier from the docketing statement, Mr. Menzies could have shown prejudice by tying the transcription errors to his newly asserted arguments. But Mr. Menzies didn’t do that. He instead incorporated the arguments on the transcription errors that he had made in his first appeal. Appellant’s Opening Br. at 29, State v. Menzies, No. 880161 (Utah Sept. 14, 1992). Given the court’s earlier rejection of these arguments, the Utah Supreme Court summarily rejected Mr. Menzies’s reiteration of his argument from the prior appeal. See State v. Menzies, 889 P.2d 393, 406 (Utah 1994) (“We find Menzies’ other claims to be without merit.”). Given the summary nature of Mr. Menzies’s argument, the court reasonably applied clearly established federal law and the record. See Wellmon v. Colo. Dep’t of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020) (“[U]nder Section 2254(d), we review the reasonableness of a state court’s decision in light of the arguments the petitioner raised in the state court.”). 11.5.2 Failure to Provide a Sufficient Transcript of Voir Dire Mr. Menzies complains not only of the reference to the docketing statement, but also of gaps and errors in the transcription of voir dire. As Mr. Menzies observes, the transcript omitted some questions and answers and contained errors involving the prospective jurors challenged for cause. The Utah Supreme Court addressed these errors, but concluded that the record allowed full and fair consideration of any claim involving jury 108 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 109 selection. State v. Menzies, 845 P.2d 220, 233 (Utah 1992). For Mr. Menzies’s argument that some questions and answers had been omitted from the transcript, the court reasoned that • many answers could be determined from the context of the questioning, • most of the gaps concerned capital punishment and a decision on the sentence was ultimately assigned to the trial judge rather than the jury, • only one to four errors existed for a given prospective juror, • many questions were redundant, and • prospective jurors had obtained a list of questions and could read along, suggesting that the judge had asked each the same questions even when the transcript didn’t fully record what had been said. Id. at 229–31. In considering the effect of the transcription errors on determining the prospective jurors challenged for cause, the court explained that their identities were apparent from the jury list, the polling of the jury after the conviction, and the mid-trial questioning of a juror. Id. at 229. And at the end of the voir dire, Mr. Menzies’s attorney stated that eight prospective jurors had been challenged for cause and not dismissed. Id. So “[t]he record [was] adequate to provide [Mr.] Menzies with a full and fair review of any claim relating to jury selection.” Id. at 233. 109 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 110 Mr. Menzies contends that the Utah Supreme Court made unreasonable factual determinations, insisting that no record existed for much of the voir dire. For this contention, he repeats the argument that the court reporter’s shorthand notes did not record some questions and answers for prospective jurors. From his comparison of the shorthand notes with the transcript first submitted, he argues that the note reader had sometimes copied questions and answers and inserted them for other prospective jurors. Appellant’s Supp. Br. at 6–7. For example, Mr. Menzies cites instances where the court reporter’s notes said only “BLRB” (presumably short for “blurb”). Appellant’s Supp. Reply Br. at 2 (citing Trial ROA Dkt. No. 1931, at 35). And questions like these were not transcribed by the court reporter: • “Would that prevent you from sitting in on this case and trying it on its merits?” [following up on a prospective juror’s answer that a family member was a police officer] • “Do you feel you can listen to the evidence and the evidence alone to reach a fair and impartial verdict?” California Trial Tr. at 151–52 (discussed at Trial ROA Dkt. No. 1931, at 35–36). Mr. Menzies also cites his trial attorney’s testimony about transcription errors involving the names and numbers of the prospective jurors. Appellant’s Supp. Br. at 7 n.6. The attorney testified that 110 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 111 • “[t]here seemed to be a persistent problem with names. . . . Some seemed to be interposed where the note reader[,] who had apparently had written copies of the jury list, had indicated other names,” Trial ROA Dkt. No. 1931, at 29, • “[i]n numerous places on this page [when the court clerk called prospective jurors], the names are either . . . incorrect, and the numbers which the clerk allegedly called out are changed from the typed version [prepared by the note reader] to the version taken down by [the court reporter]. And so it is impossible to tell whether or not they were called in a correct order, or whether improper numbers had been associated with wrong names,” id. at 52, and • the transcript often had failed to identify which prospective juror was speaking, id. at 113. From these errors, Mr. Menzies asserts that his attorney couldn’t determine (1) which prospective juror had been challenged for cause and (2) whether a biased prospective juror had been selected for the jury. We conclude that the Utah Supreme Court acted reasonably in determining the facts. A reasonable jurist could find that the court reporter’s errors in voir dire hadn’t prevented a meaningful appellate challenge like an erroneous denial of a challenge for cause. Contrary to Mr. Menzies’s contention, the transcript properly reflects challenges to the prospective jurors. When voir dire ended, Mr. Menzies’s lead attorney said that she was preserving her challenges for cause even though they’d been denied. See Original Trial Tr. at 892. And on direct appeal, Mr. Menzies argued that the trial court had erroneously rejected challenges for cause, identifying the jurors chosen after being challenged. 111 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 112 Appellant’s Opening Br. at 29–38, State v. Menzies, No. 880161 (Utah Sept. 14, 1992). So the Utah Supreme Court acted reasonably in finding that the transcript had provided Mr. Menzies with a full and fair opportunity for appellate review of jury selection. 11.5.3 Omission of a Conference Outside the Jury’s Presence The transcript also contains a gap when a juror had fainted during the medical examiner’s testimony. When the juror fainted, the trial judge and the attorneys conferred outside the jury’s presence. But this conference was not transcribed. Given the gap in the transcript, the Utah Supreme Court assumed that Mr. Menzies had preserved any conceivable claim relating to the incident. State v. Menzies, 845 P.2d 220, 240 (Utah 1992). Mr. Menzies argues that this assumption wouldn’t protect his right to appeal because his appellate attorney couldn’t have known what had happened. The Utah Supreme Court rejected this argument, so we consider the reasonableness of the court’s analysis in light of the record, Supreme Court precedent, and the arguments presented. See Part 4, above (the record and Supreme Court precedent); Wellmon v. Colo. Dep’t of Corrs., 952 F.3d 1242, 1249 (10th Cir. 2020) (arguments presented). In his opening brief in the first appeal, which addressed the transcription errors, Mr. Menzies said nothing about prejudice. In his reply brief in that appeal, he devoted only one sentence to prejudice: “The 112 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 113 occurrences surrounding the fainting of the juror directly affect this appeal and are not adequately recorded.” Appellant’s Reply Br. at 24, State v. Menzies, No. 880161 (Utah May 30, 1991). The Utah Supreme Court disagreed, reasoning that • the transcript contains all of the medical examiner’s testimony and the trial judge’s discussion with the juror who had fainted, • the trial court did not make any rulings during the excerpt that hadn’t been transcribed, and • the attorneys later reargued the points discussed off the record. State v. Menzies, 845 P.2d 220, 240 (1992). The court’s rationale constituted a reasonable disposition of Mr. Menzies’s one-sentence argument on prejudice. In similar circumstances, we’ve appraised prejudice based on the significance of the excerpts that aren’t transcribed. See United States v. Haber, 251 F.3d 881, 889–90 (10th Cir. 2001) (concluding that “untranscribed portions of the trial in this case do not constitute ‘significant and substantial’ omissions from the trial transcripts” and were not prejudicial). And the Eleventh Circuit has concluded that omission of a bench conference, lasting 1 hour and 45 minutes, was not substantial and significant for a long and complex trial. United States v. Stefan, 784 F.2d 1093, 1102 (11th Cir. 1986). Similarly, the D.C. Circuit has concluded that the failure to transcribe eight bench conferences didn’t require reversal because the gaps didn’t appear 113 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 114 particularly significant and the defendant hadn’t made a specific claim of prejudice. United States v. Winstead, 74 F.3d 1313, 1321–22 (D.C. Cir. 1996). And the Fifth Circuit declined to reverse when the court reporter had failed to transcribe 9 bench conferences, regarding the gaps insignificant when the transcript spanned over 3000 pages. United States v. Aubin, 87 F.3d 141, 149 (5th Cir. 1996). Here the guilt phase lasted 10 days, and 55 witnesses testified. In this long, complex trial, Mr. Menzies insists that his appellate attorneys couldn’t have known what had been discussed at the bench conference. But one of Mr. Menzies’s attorneys at the bench conference (Brooke Wells) later represented Mr. Menzies on appeal. Her presence at the bench conference could bear on the inquiry as to prejudice: When a defendant is represented on appeal by the same attorney who defended him at trial, the court may properly require counsel to articulate the prejudice that may have resulted from the failure to record a portion of the proceedings. Indeed, counsel’s obligation to the court alone would seem to compel him to initiate such disclosure. The attorney, having been present at trial, should be expected to be aware of any errors or improprieties which may have occurred during the portion of the proceedings not recorded. United States v. Selva, 559 F.2d 1303, 1305 (5th Cir. 1977); accord United States v. Charles, 313 F.3d 1278, 1283 (11th Cir. 2002) (per curiam) (“If the same attorney represents an appellant at trial and on appeal, a new trial may be granted ‘only if the defendant can show that the failure to record and preserve a specific portion of the trial visits a hardship on him and 114 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 115 prejudices his appeal.’” (quoting United States v. Preciado-Cordobas, 981 F.2d 1206, 1212 (11th Cir. 1993))). Of course, the attorneys might have forgotten some error made at the bench conference. But the Utah Supreme Court found that (1) the attorneys had later reargued the points discussed in the bench conference and (2) the trial judge hadn’t made any rulings during the bench conference. Mr. Menzies does not challenge these findings. Given Mr. Menzies’s attorneys’ opportunity to reargue the points and rulings from the bench conference, the Utah Supreme Court could reasonably regard the possibility of an unrecorded error as speculation. See Scott v. Elo, 302 F.3d 598, 604–605 (6th Cir. 2002) (concluding that a habeas petitioner had failed to show prejudice from a gap in the transcript of closing argument in part because “the prosecutor could not recall any objections during closing arguments, and defense trial counsel did not dispute the prosecutor’s account”). Mr. Menzies hasn’t identified issues that he could have raised with transcription of the proceedings involving the fainting incident. The omission alone doesn’t signal prejudice. Without more, the Utah Supreme Court acted reasonably in finding that the record had allowed appellate challenges involving the fainting juror. 11.5.4 Additions by the Note Reader Mr. Menzies cites instances when the note reader made additions and corrections to the court reporter’s shorthand notes. In Mr. Menzies’s view, 115 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 116 these additions and corrections prevent a reliable record of the trial proceedings. The Utah Supreme Court rejected this challenge, reasoning that the note reader’s changes created minor discrepancies that were not prejudicial. State v. Menzies, 845 P.2d 220, 231 (Utah 1992). The court saw little significance from these changes because they would bear only on the preservation of particular issues. Id. at 235. Mr. Menzies cites ten changes by the note reader: 1. adding the name of a co-inmate who complained to a jailer, Appellant’s Supp. Br. at 7 (citing Trial ROA Dkt. No. 1931, at 61), 2. clarifying a statement by Mr. Menzies about what had been taken from his cell, id. (citing Trial ROA Dkt. No. 1931, at 72), 3. changing a statement by Mr. Menzies’s trial counsel from “[w]e have come who is in distress in there” to “[w]e have to calm who is in distress in there” (discussing the juror who fainted), id. (citing Trial ROA Dkt. No. 1931, at 78) (emphasis added), 4. correcting testimony from an expert witness that “I would be picking up the . . . SHER” to “I would be picking up the things that would be consistent in depression,” id. (citing Trial ROA Dkt. No. 1931, at 79–80) (emphasis added), 5. changing an expert’s testimony that “there’s a number of them which will parallel the same systems as people who are having psychological problems” to “there’s a number of them who have the same symptoms as people who are having psychological problems,” id. (citing Trial ROA Dkt. No. 1931, at 83) (emphasis added), 6. adding the judge’s statement to the jury (“[W]hile you are excused, please remember the admonitions about talking with anyone, exposing yourself to any publicity regarding this case, 116 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 117 Okay?”), id. (citing Trial ROA Dkt. No. 1931, at 116), even though the court reporter’s notes showed only an asterisk, see California Trial Tr. at 557, 7. using the trial judge’s notes on his findings at sentencing to clarify the court reporter’s shorthand notes, Appellant’s Supp. Reply Br. at 4 (citing Trial ROA Dkt. No. 1931, at 50–51), 8. adding testimony from an expert witness about the name of an enzyme found on a cigarette butt, id. (quoting Trial ROA Dkt. No. 1931, at 59), 9. changing the court reporter’s version of testimony from a jail inmate who had testified that Mr. Menzies admitted to the murder (from “[t]hat came up from the news hearings that he had Friday night” to “[t]hat came up from the news hearings that they had Friday night”), id. (citing Trial ROA Dkt. No. 1931, at 60) (emphasis added), and 10. inserting language from a police report that had not matched the statement in the courtroom, id. (citing Trial ROA Dkt. No. 1931, at 73–75). The Utah Supreme Court reasonably found no prejudice from these discrepancies. Mr. Menzies disagrees, pointing to the court reporter’s apparent use of police reports to supplement the court reporter’s notes. We reject this argument. In the relevant passage, the transcript was addressing a proffer by defense counsel rather than testimony of a witness. See Trial ROA Dkt. No. 1931, at 73–75; California Trial Tr. at 2237. The proffer was heard by the trial court, not by the jury. The jury then heard testimony from a witness, and Mr. Menzies doesn’t identify errors in the transcription of that 117 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 118 testimony. So the state appeals court could reasonably find a failure to show prejudice. The state appeals court also acted reasonably in addressing the other additions by the note reader. In the Utah Supreme Court, Mr. Menzies asserted that the note reader had concocted statements to make sense of the court reporter’s notes. Though Mr. Menzies provided examples, he never said how any of the note reader’s additions would have impeded his ability to appeal a particular issue. Given that omission, the Utah Supreme Court acted reasonably in finding no prejudice from the note reader’s additions. 11.5.5 Errors Involving Numbers Mr. Menzies also points to transcription errors involving numbers. The Utah Supreme Court acknowledged confusion in the transcript as to the numbers involving “addresses, distances, and dates.” State v. Menzies, 845 P.2d 200, 236 (Utah 1992). But in the court’s view, the confusion did not impair Mr. Menzies’s ability to appeal his conviction or sentence. Mr. Menzies argues that the numerical errors impaired the reliability of testimony involving • Mr. Larrabee’s identification of Mr. Menzies in the wooded area and • discovery of Mrs. Hunsaker’s identification cards at the jail. 118 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 119 In our view, the Utah Supreme Court reasonably concluded that Mr. Menzies had not established prejudice from the alleged transcription errors. For Mr. Larrabee’s testimony, Mr. Menzies’s counsel identified only one numerical discrepancy. This discrepancy involved the distance between Mr. Larrabee and Mr. Menzies when they were in the wooded area. Focusing on this discrepancy, Mr. Menzies argued to the Utah Supreme Court that the distance had affected the reliability of Mr. Larrabee’s testimony. But in the Utah Supreme Court, Mr. Menzies never argued that the discrepancy regarding the distance had affected his ability to raise an appellate issue involving Mr. Larrabee’s testimony. With no such argument, the Utah Supreme Court examined the record and concluded that the discrepancy wasn’t prejudicial. The court pointed out that (1) Mr. Larrabee had spotted the man three times and (2) the discrepancy involved only Mr. Larrabee’s first sighting of the man with a woman. See State v. Menzies, 845 P.2d 220, 237 (Utah 1992). The first sighting wasn’t material, the court explained, because Mr. Larrabee acknowledged that he couldn’t see the other man’s face. Id. Given Mr. Larrabee’s inability to see the other man’s face, the Utah Supreme Court concluded that the distance was “not particularly relevant.” Id. Even now, Mr. Menzies doesn’t say why this conclusion was unreasonable. 119 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 120 For Mrs. Hunsaker’s identification cards, Mr. Menzies argues that the times stated in the transcript were essential to the State’s theory (that he had obtained the cards when he abducted her and had then discarded them at the jail). We agree that the times were important to the State’s theory linking Mr. Menzies to the crime. But the discrepancy between the transcript and the court reporter’s notes does not undermine the prosecution’s theory regarding the identification cards. A jail officer testified that he had discovered the cards in a dressing room “between 6:30 and 7:00” p.m. on February 24, 1986. Original Trial Tr. at 1561. On cross-examination, the officer acknowledged saying later that he had discovered the cards at “about 6:30 p.m.” Id. at 1566. Another officer testified that he had arrested Mr. Menzies for an unrelated burglary on February 24 and had brought him to the jail at about 6:40 p.m. Original Trial Tr. at 1540. The second officer reported that Mr. Menzies had broken away from the officers, run into the dressing room where the cards were found, and remained alone there for several seconds. In closing arguments, the parties disagreed in their interpretations of this testimony. The prosecution argued that (1) the times were approximate and (2) Mr. Menzies had arrived at the jail before the first officer’s discovery of Mrs. Hunsaker’s identification cards. Id. at 2622–24. Mr. Menzies’s attorney countered that the first officer had found the cards at 6:30 p.m., which preceded Mr. Menzies’s arrival at the jail. Id. at 2667. As 120 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 121 a result, his attorney asserted, the prosecution had not shown that Mr. Menzies had obtained Mrs. Hunsaker’s identification cards. Id. at 2667–68. Although the times were important to the State’s theory, Mr. Menzies has not shown how the transcription errors had prevented an appellate challenge. Mr. Menzies apparently faults the Utah Supreme Court for failing to infer that the court reporter had misstated these times because she had made other errors about other numbers. But the Utah Supreme Court could reasonably decline to draw that inference, for Mr. Menzies’s attorney had an opportunity to review the court reporter’s notes, compare those notes to the final version of the transcript, and propose corrections. See State v. Menzies, 5 P.2d 220, 224 (Utah 1992). Because this procedure revealed no reporting errors involving the timing of events at the jail, we reject this challenge to the adequacy of the transcript. * * In summary, the Utah Supreme Court reasonably concluded that the transcription errors did not prevent meaningful appellate review of Mr. Menzies’s conviction or sentence. 121 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 122 12. A certificate of appealability is unwarranted on the admissibility at trial of Mr. Britton’s testimony from the preliminary hearing. Mr. Menzies moves to expand the certificate of appealability to challenge the introduction at trial of Mr. Britton’s testimony from the preliminary hearing. Mr. Britton appeared at the trial, but he refused to testify. Mr. Britton explained that he feared for his safety if he testified. Following this refusal to testify, the trial court ruled that (1) Mr. Britton was “unavailable” and (2) the preliminary hearing testimony was admissible. Mr. Menzies moved to suppress the testimony from the preliminary hearing, but the trial court denied the motion. The testimony was then read to the jury. On direct appeal, Mr. Menzies argued that introduction of testimony from the preliminary hearing had violated his right to confront adverse witnesses. The Utah Supreme Court rejected Mr. Menzies’s argument, reasoning that • “every reasonable effort [had been] made to produce Britton at trial,” • “the trial court [had] correctly concluded that Britton was unavailable,” and • “the preliminary hearing testimony as a whole . . . [had] contain[ed] sufficient indicia of reliability to warrant its admission at trial.” 122 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 123 State v. Menzies, 889 P.2d 393, 402–03 (Utah 1994). Mr. Menzies argues that this decision resulted in a violation of the Confrontation Clause. Under the Confrontation Clause, the prosecution could use the preliminary hearing testimony if • Mr. Britton had been unavailable at trial and • the testimony at the preliminary hearing had reflected sufficient indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 65–66 (1980), overruled by Crawford v. Washington, 541 U.S. 36 (2004). 22 Mr. Menzies argues that these conclusions rested on unreasonable determinations of fact, which would allow the district court to consider the merits of this challenge. See 28 U.S.C. § 2254(d)(2). The district court disagreed, as do we. 12.1 Standard for a Certificate of Appealability Mr. Menzies can appeal this ruling only upon the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A). A member of the panel can issue a certificate only if a reasonable jurist could find Mr. Menzies’s appellate argument reasonably debatable. Laurson v. Leyba, 507 22 After the Utah Supreme Court decided the appeal, the United States Supreme Court overruled Ohio v. Roberts. Crawford v. Washington, 541 U.S. 36, 60–70 (2004). But Ohio v. Roberts controlled when the Utah Supreme Court rendered a decision. 123 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 124 F.3d 1230, 1232 (10th Cir. 2007). Applying this standard, we decline to expand the certificate of appealability to encompass this challenge. 12.2 Mr. Britton’s Unavailability The state trial court found that Mr. Britton was unavailable during the trial. And on appeal, the Utah Supreme Court agreed, explaining that Mr. Britton had “repeatedly refused to testify despite the judge’s order to do so” and “every reasonable effort [had been] made to produce Britton at trial.” State v. Menzies, 889 P.2d 393, 402 (Utah 1994). Mr. Menzies challenges this finding. But at trial, defense counsel conceded that Mr. Britton was “technically . . . unavailable.” This concession was understandable given Mr. Britton’s testimony at trial. When questioned by the State and the trial court, Mr. Britton said four times that he was refusing to testify. And when defense counsel asked about a psychological evaluation, Mr. Britton again refused to answer. This refusal prompted the trial court to order Mr. Britton to answer defense counsel’s questions, and Mr. Britton still refused. Given defense counsel’s concession and Mr. Britton’s refusal to answer questions, the Utah Supreme Court acted reasonably in finding Mr. Britton unavailable to testify at the trial. Despite the refusal to testify, Mr. Menzies argues that the prosecution failed to make a good-faith effort to obtain Mr. Britton’s testimony. Again, however, the Utah Supreme Court’s factual assessment 124 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 125 was at least reasonable. The prosecution did obtain Mr. Britton’s presence at the trial. His physical presence wasn’t the problem. The problem was that Mr. Britton refused to testify once he was there. Any jurist would question the prosecutor’s ability to overcome Mr. Britton’s resistance. We thus regard the Utah Supreme Court’s finding of unavailability as reasonable, and no jurist could disagree. 12.3 Reliability The Utah Supreme Court also concluded that Mr. Britton’s testimony at the preliminary hearing had sufficient indicia of reliability. State v. Menzies, 889 P.2d 383, 402–03 (Utah 1994). Mr. Menzies challenges this finding, arguing that his trial attorneys had lacked an adequate opportunity to cross-examine Mr. Menzies at the preliminary hearing. For this argument, Mr. Menzies insists that Mr. Britton lied at the preliminary hearing, falsely denying that a prosecutor had promised a favorable affidavit. Regardless of the truth or falsity of Mr. Britton’s testimony about the alleged promise, fair-minded jurists could reasonably conclude that defense counsel had an adequate chance to ask Mr. Britton about promises from the prosecutor. Indeed, defense counsel did ask Mr. Britton at the preliminary hearing about the possibility of favorable treatment based on his cooperation with law-enforcement officers. 125 Appellate Case: 19-4042 Document: 010110764297 Date Filed: 11/07/2022 Page: 126 Given defense counsel’s opportunity to cross-examine Mr. Britton about this possibility, no jurist could legitimately question the reasonableness of the Utah Supreme Court’s finding on reliability. As the Utah Supreme Court reasoned, “the preliminary hearing transcript indicates that the issue [of Mr. Britton’s credibility] was well-explored.” State v. Menzies, 889 P.2d 383, 403 (Utah 1994). So we deny a certificate of appealability on this claim. 13. Conclusion We affirm the denial of the habeas petition and deny the remaining request to expand the certificate of appealability. 126	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8482115/	UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MONTE SILVER, et al., Plaintiffs v. Civil Action No. 20-1544 (CKK) INTERNAL REVENUE SERVICE, et al. Defendants. MEMORANDUM OPINION (November 7, 2022) This matter is before the Court on Defendants’ 1 [9] Motion to Dismiss. Plaintiff Monte Silver and his Israeli tax firm Monte Silver, Ltd. (together, “Plaintiffs,” separately “Silver” and “Silver, Ltd.”) claim that Defendants violated the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. by failing to issue a “final regulatory flexibility analysis” (“FRFA”) as required when promulgating particular tax regulations. Because the Court agrees it lacks jurisdiction over this matter, and upon consideration of the pleadings, 2 the relevant legal authorities, and the entire record, the Court shall GRANT Defendants’ [9] Motion to Dismiss. 1 Defendants are the United States Internal Revenue Service (“IRS”), the United States Department of the Treasury (“Treasury”), Charles P. Rettig in his official capacity as Commissioner of Internal Revenue, and Janet L. Yellen in her official capacity as United States Secretary of the Treasury. 2 The Court’s consideration has focused on the following documents: • Plaintiffs’ Complaint, ECF No. 1 (“Compl.”); • Defendants’ Memorandum in Support of Motion to Dismiss, ECF No. 9-1 (“Mot.”); • Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendants’ Motion to Dismiss for Lack of Jurisdiction, ECF No. 10 (“Pls.’ Opp.”); • Defendants’ Reply in Support of Motion to Dismiss, ECF No. 11 (“Repl.”); • Defendants’ Supplemental Brief, ECF No. 16 (“Defs.’ Supp. Br.”); and • Plaintiffs’ Supplemental Brief in Opposition to Defendants’ Motion to Dismiss, ECF No. 17 (“Pls.’ Supp. Br.”). In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). 1 I. BACKGROUND For the purposes of the motion before it, the Court accepts as true the well-pleaded allegations in Plaintiffs’ complaint. The Court does “not accept as true, however, the plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court recites only the background necessary for the Court’s resolution of the pending Motion. Before turning to the facts particular to this case, the Court must pause to note that Plaintiffs unsuccessfully maintained a very similar suit in this jurisdiction, Silver v. IRS, 19-cv- 247 (APM) (D.D.C.) (Silver I). As here, Plaintiffs attempted to maintain a cause of action under the Regulatory Flexibility Act to vitiate a regulation effecting a provision of the Tax Cuts and Jobs Act, Pub. L. No. 115-97, 131 Stat. 2054 (2017) (“TCJA” or the “Act”). The Court in Silver I granted summary judgment in favor of the same defendants as here, concluding that Plaintiffs lacked Article III and statutory standing. Silver v. IRS, 569 F. Supp. 3d 5, 8-10 (D.D.C. 2021) appeal docketed No. 21-5116 (D.C. Cir. 2021). In that case, Plaintiffs argued that the Court should set aside a one-time “transition tax” imposed by a regulation effecting the TCJA, a tax to which Plaintiffs were not subject and never paid. Id. at 10. Here, Plaintiffs challenge regulations effecting the TCJA’s provisions revising the “global intangible low-taxed income” (“GILTI”) of certain “controlled foreign corporations” (“CFC”). These tax provisions are complex, although their details are not particularly germane to this case. Suffice it to say, the TCJA changed the tax rate that a U.S. shareholder pays on the foreign earnings of a foreign corporation if those earnings are “repatriated” to the United States. See TCJA § 14101(a); 26 U.S.C. § 245A. In essence, the TCJA sets a GILTI rate that is a U.S. 2 shareholder’s pro-rate share of the aggregate profit of its CFC(s) in excess of a ten percent return on the U.S. shareholder’s pro-rate share of the CFC’s tangible assets. On June 21, 2019, Defendants IRS and Treasury promulgated regulations under the broad heading “Guidance Related to Section 951A (Global Intangible Low-Taxed Income), 84 Fed. Reg. 29288-01. Among other things, it provides instructions on how to calculate a GILTI amount, what domestic entities are subject to GILTI on foreign earnings, and also imposed certain reporting requirements. See 83 Fed. Reg. 51072, 51072-73 (Oct. 10, 2018) (proposed rules). Because these regulations define how GILTI is calculated, they determine, in part, the ultimate amount of tax paid. See, e.g., 26 C.F.R. § 1.951A-1(c) (effective Jan. 22, 2022). Plaintiff Silver is a United States citizen residing in Israel. Compl. ¶ 4. Plaintiff Monte Silver, Ltd. is an Israeli corporation through which Silver provides legal services to, among others, United States citizens and companies. Plaintiff Silver is the sole shareholder on Silver, Ltd.. There is no allegation that either Plaintiff is a U.S. taxpayer or subject to GILTI taxes. Indeed, Plaintiff has conceded in his briefing that “Silver Ltd. cannot owe any GILTI taxes as the tax only applies to the U.S. shareholder.” Opp. at 10 (emphasis original). Plaintiffs further allege that they “have incurred and will continue to incur on-going compliance costs relating to GILTI into the future even though they owe no GILTI tax.” Id. (emphasis added). Again, Plaintiffs’ sole claim is that the Court should set aside the GILTI regulations and remand to Treasury because Treasury did not conduct a FRFA pursuant to the FRA. Neither Plaintiff advances any other claim. 3 II. LEGAL STANDARD A. Federal Rule of Civil Procedure 12(b)(1) Under Rule 12(b)(1), the plaintiff bears the burden of establishing that the court has subject matter jurisdiction. Georgiades v. Martin-Trigona, 729 F.2d 831, 833 n.4 (D.C. Cir. 1984) (“It is the burden of the party claiming subject matter jurisdiction to demonstrate that it exists.”). A court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1). Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015) (“As it must on motions to dismiss for failure to state a claim, a district court considering a motion to dismiss for lack of subject matter jurisdiction accepts the allegations of the complaint as true.”). “Where necessary to resolve a jurisdictional challenge under Rule 12(b)(1), ‘the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.’” Id. (quoting Herbert v. Nat’l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)). B. Federal Rule of Civil Procedure 12(b)(6) Under Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 4 U.S. at 678. In deciding a Rule 12(b)(6) motion, a court may consider “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint,” or “documents upon which the plaintiff’s complaint necessarily relies even if the document is produced not by the plaintiff in the complaint but by the defendant in a motion to dismiss.” Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (citations omitted). III. DISCUSSION Defendants mount three main arguments in favor of dismissal: (1) lack of Article III standing; (2) lack of subject matter jurisdiction under the Anti-Injunction Act and the Declaratory Judgment Act; and (3) lack of statutory standing. 3 First, unlike in Silver I, because Plaintiffs have pleaded that they face future injury, they have established Article III standing. However, the Court concludes that the Anti-Injunction Act bars this action because the Plaintiffs aim to interrupt a tax rule governing who pays what amount of tax. Because the Court lacks jurisdiction, the Court does not address statutory standing, an issue that goes to the sufficiency of Plaintiffs’ claim and not to the Court’s jurisdiction. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 & n.4 (2014). A. Standing “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). To establish standing, Plaintiff bears the burden of demonstrating that he “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. “This set for criteria implements Article III by limiting judicial 3 Initially, Defendants argued both that Plaintiffs lack standing to bring a claim under the RFA and the Paperwork Reduction Act. Plaintiffs have since conceded that they do not attempt to bring a claim under the PRA, so that argument is moot. 5 intervention to only those disputes between adverse parties that are ‘in a form . . . capable of judicial resolution.’” Fl. Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 218 (1974)). At the pleading stage, this requires Plaintiff to “‘clearly . . . allege facts demonstrating’ each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). Where a plaintiff challenges a regulation on a theory of procedural injury, the standing “requirements are modified somewhat.” Nat’l Wildlife Fed. v. U.S. Army Corps of Eng’rs, 170 F. Supp. 3d 6, 11 (D.D.C. 2016). The plaintiff must show “both (1) that their procedural right has been violated, and (2) that the violation of that right has resulted in an invasion of their concrete and particularized interest.” Ctr. for L. and Educ. v. Dep’t of Educ., 396 F.3d 1152, 1159 (D.C. Cir. 2005) (emphasis altered). Increased compliance costs as a result of a procedurally improper rule are sufficient to show such an injury. E.g., State Nat’l Bank of Big Spring v. Lew, 795 F.3d 48, 53 (D.C Cir. 2015); Ass’n of Priv. Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 458 (D.C. Cir. 2012). Beyond injury, however, a plaintiff must further plead redressability, i.e., that “correcting the alleged procedural violation could still change the substantive outcome in the [plaintiff’s] favor.” Narragansett Indian Tribal Historic Pres. Office v. FERC, 949 F.3d 8, 13 (D.C. Cir. 2020) (emphasis omitted). Defendants argue that Plaintiffs have not pleaded an injury that the Court could conceivably redress, nor could Plaintiffs plead such an injury. Defendants insist that Plaintiffs complain only that the underlying GILTI statute is onerous and confusing, and that a remand would not rewrite the GILTI statute. Defs.’ Supp. Br. at 3. Defendants misunderstand Plaintiffs’ complaint. 6 Plaintiffs complain that they “have[] no idea how to comply [both] with GILTI [and] the Final Regulations.” Compl. ¶ 37. They also argue that the instant regulations [are] “extremely complicated and lengthy,” see id. ¶¶ 44-45, and that the lack of “any guide to assist small entities in complying with the Final Regulations,” required under the RFA, has “adversely affected [and] aggrieved” Plaintiffs. Id. ¶¶ 48, 50. Plaintiff Silver explains in a supplemental declaration that, as a result, he and his “company . . . have been forced to spend funds, time[,] and effort to comply with GILTI.” Declaration of Monte Silver, ECF No. 10-9, ¶ 12 (“Silver Decl.”). As Plaintiffs argue on the merits, had Treasury issued a FRFA “to assist small entities in complying with the Final Regulations,” Plaintiffs might spend less “funds, time, and effort to comply with GILTI” in the future. Because, GILTI compliance occurs annually––unlike the one-time fee in Silver I––the Court can fashion relief that could conceivably redress Plaintiffs’ claimed injury. As such, the Court sees no Article III standing issues here. B. AIA Next, Defendants argue that the Anti-Injunction Act and Declaratory Judgment Act strip the Court of subject matter jurisdiction. The Court agrees. As the United States Court of Appeals explained in Cohen, the AIA excludes from the jurisdiction of the federal courts any action “to restrain[] the assessment or collection of any tax.” 650 F.3d at 724 (quoting 26 U.S.C. § 7421(a)). “The AIA has ‘almost literal effect’: It prohibits only those suits seeking to restrain the assessment or collection of taxes.” Id. (quoting Bob Jones Univ. v. Simon, 416 U.S. 725, 737 (1974)). The AIA’s main aim is to “protect[] the Government’s need to assess and collect taxes as expeditiously as possible with a minimum of preenforcement judicial interference, ‘and to require that the legal right to the disputed sums be determined in a suit for refund.” Bob Jones, 416 U.S. at 736-37 (quoting Enochs v. Williams 7 Packaging & Navigation Co., 370 U.S. 1, 7 (1962)). Interpreting Bob Jones, Cohen held that action seeking to set aside a regulation promulgated by Treasury to procedural failures, e.g., failure to provide sufficient notice and comment, is not an action “seeking to restrain the assessment or collection of taxes.” Id. at 727. In other words, under Cohen, the AIA bars an action challenging a particular tax regulation only if it is concerned with “the trigger for levy and collection efforts” or “the actual imposition of a tax against a plaintiff, and [] not third-parties trying to contest the validity of a tax or to stop its collection.” Id. at 726. Cohen’s approach has since been complicated somewhat by the Supreme Court’s decision in CIC Servs., LLC v. IRS, 141 S. Ct. 1582 (2021), issued after the parties completed supplemental briefing. There, the Court reiterated that “a person can typically challenge a federal tax only after he pays it, by suing for a refund.” Id. at 1486. To determine whether an action is precluded, a court must look to “the end or aim to which [the action] is directed.” Id. at 1589. In other words, the court must look to “the claims brought[,] injuries alleged . . . [a]nd[,] most especially, . . . the relief requested.” Id. at 1590 (internal quotation marks omitted). On the one hand, if, “look[ing] to the face of the taxpayer’s complaint,” the action seeks to set aside a rule but not enjoin the collection of a tax related to the rule, then the action is not barred by the AIA. Id. at 1590. On the other hand, “[i]f the dispute is about a tax rule,” in other words, a revenue-raising rule, then “the sole recourse is to pay the tax and seek a refund.” Id. at 1593. Applying this principle, the Court held that the AIA did not bar a suit challenging a regulatory reporting requirement because the plaintiff sought only to enjoin a regulation that did not govern the amount of tax collected or from whom. See id. at 1594. Because neither Plaintiff appears to yet owe GILTI tax, this action presents rather more unique circumstances. Certainly, the regulation at issue here actually imposes tax obligations; it 8 is not, for example, concerned only with “the IRS’s continued retention of [a taxpayer’s] personal financial information” as a function of “information gathering.” See Harper v. Rettig, 46 F.4th 1, 8 (1st Cir. 2022) (applying CIC, concluding that AIA did not bar such a challenge). At the same time, reading the complaint’s requested relief, it is, in actuality, “a challenge to the assessment or collection of a tax itself.” See Franklin v. United States, 49 F.4th 429, 434 (5th Cir. 2022) (applying CIC, AIA barred claim that penalty assessments were invalid under Administrative Procedure Act because injunctive relief would effectively bar collection of penalty tax). The complaint asks that the Court “[d]efer enforcement of the final rule against Plaintiff and all other small entities until such time as the Court finds” the IRS has complied with applicable procedural requirements. Compl. at 14. Pursuant to the TJCA, the IRS must, among other things, promulgate “rules for the application of” some portions of the GILTI tax as defined by statute. See 26 U.S.C. § 951A(f)(b). The IRS did precisely that in the challenged regulations, further defining what entities are subject to GILTI and what amount must be paid. If the Court “defers enforcement” of the challenged regulations, then it enjoins the IRS and Treasury from collecting a tax in an amount and from entities that it has determined must pay the requisite amounts. Pursuant to Supreme Court precedent, the Court must effect the AIA to “permit the United States to assess and collect taxes to be due without judicial intervention.” Enochs, 370 U.S. at 7. Particularly so here, where a challenge to a tax rule is not even brought by a plaintiff due to pay the challenged tax. Because Plaintiffs have sued to block a rule governing who pays a tax and in what amount, CIC mandates that the Court dismiss the complaint as barred by the AIA. 9 IV. CONCLUSION For the foregoing reasons, the Court GRANTS Defendants’ [9] Motion to Dismiss and DISMISSES Plaintiffs’ complaint for want of subject matter jurisdiction. An appropriate order accompanies this Memorandum Opinion. Dated: November 7, 2022 /s/ COLLEEN KOLLAR-KOTELLY United States District Judge 10	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481298/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-59,939-05 IN RE TRACY LANE BEATTY, Relator ON MOTION FOR LEAVE TO FILE A PETITION FOR WRIT OF MANDAMUS AND MOTION TO STAY THE EXECUTION IN CAUSE NO. 241-0978-04 IN THE 241 ST JUDICIAL DISTRICT COURT SMITH COUNTY Per curiam. ORDER We have before us a Motion for Leave to File a Petition for Writ of Mandamus, the accompanying Petition with exhibits, and a Motion for a Stay of Execution. In August 2004, a jury found Relator guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set Relator’s punishment at death.1 1 Unless otherwise indicated all references to Articles in this order refer to the Code of Criminal Procedure. Beatty - 2 This Court affirmed Relator’s conviction and sentence on direct appeal. Beatty v. State, No. AP-75,010 (Tex. Crim. App. Mar. 11, 2009) (not designated for publication). This Court denied relief on Relator’s initial post-conviction application for a writ of habeas corpus. Ex parte Beatty, No. WR-59,939-02 (Tex. Crim. App. May 6, 2009) (not designated for publication).2 We also dismissed Relator’s subsequent application. Ex parte Beatty, No. WR-59,939-03 (Tex. Crim. App. Oct. 14, 2015) (not designated for publication). Relator was subsequently set to be executed on March 25, 2020. In response to a motion to stay and the state of the Covid pandemic, we stayed that execution for a period of sixty days. Ex parte Beatty, No. WR-59,939-04 (Tex. Crim. App. Mar. 19, 2020) (not designated for publication). That stay order lifted automatically. On June 10, 2022, the trial court set Relator’s execution for November 9, 2022. Article 43.141(b-1) states that once the convicting court has set an execution date: Not later than the second business day after the date on which the convicting court enters an order setting the execution date, a copy of the order must be sent by first-class mail, e-mail, or fax to: (1) the attorney who represented the condemned person in the most recently concluded stage of a state or federal postconviction proceeding; and (2) the office of capital writs established under Subchapter B, 2 On August 6, 2004, Relator filed with this Court an application for an original writ of habeas corpus challenging two contempt orders. The Court denied him leave to file that application on October 27, 2004. See Ex parte Beatty, No. WR-59,939-01 (no written order issued). Beatty - 3 Chapter 78, Government Code. Current counsel Thomas Scott Smith asserts that he is “the attorney who represented the condemned person in the most recently concluded stage of a state or federal postconviction proceeding,” but he was not sent a copy of the order in the time or manner required by Article 43.141(b-1). Consequently, he asserts, the trial court has a ministerial duty to reset Relator’s execution date. See Art. 43.141(b-2) (stating that “the exclusive remedy for a failure to comply with Subsection (b-1) is the resetting of the execution date under this article”). Further, because Article 43.141(b-2) provides an exclusive remedy, Relator asserts that he has no other legal remedy. Before we rule on Relator’s Motion for Leave to File a Petition for Writ of Mandamus and the accompanying Petition, we want to hear from the Respondent, the Honorable Jack Skeen, Jr., judge of the 241st District Court. Within two days of the date of this order, Judge Skeen is ordered to answer the following questions: 1. Was attorney Thomas Scott Smith “the attorney who represented the condemned person in the most recently concluded stage of a state or federal postconviction proceeding”? 2. If not, who was? 3. Was “the attorney who represented the condemned person in the most recently concluded stage of a state or federal postconviction proceeding” sent a copy of the order in the time and manner required by Article 43.141(b-1)? 4. If so, when was the order sent? 5. By what manner was the order sent (to what address or number)? Beatty - 4 Judge Skeen may include any additional information in his response that he deems appropriate to resolving the mandamus currently before us. The State is invited to respond within the same time period. IT IS SO ORDERED THIS THE 1ST DAY OF NOVEMBER, 2022. Do Not Publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481256/	Dismissed and Memorandum Opinion filed November 3, 2022. In The Fourteenth Court of Appeals NO. 14-21-00243-CV EX PARTE Z.Q., Appellant On Appeal from the 315th District Court Harris County, Texas Trial Court Cause No. 0000-86707 MEMORANDUM OPINION Appellant Z.Q. attempts to appeal an order in which the juvenile court denied his post-adjudication application for writ of habeas corpus without issuing the writ of habeas corpus or addressing the merits of his request for habeas corpus relief. The State asserts that this court lacks appellate jurisdiction because this order is not an appealable order. We dismiss for want of appellate jurisdiction. I. FACTUAL AND PROCEDURAL BACKGROUND When Z.Q. was a juvenile, he received an adjudication of delinquent conduct for committing both a capital murder and an attempted capital murder, for which he received two determinant sentences of 40 years. Z.Q. was initially placed in the custody of the Texas Youth Commission (“TYC”). In 1997, the juvenile court determined that Z.Q. should be transferred from the TYC to the Texas Department of Criminal Justice, Correctional Institutions Division (“TDCJ-CID”) to complete his sentences. Z.Q. is currently serving his 40-year determinate sentences in the custody of TDCJ-CID. His initial parole review date was in May of 2014. In conducting its parole vote, the Texas Board of Pardons and Paroles (the “Board”) used the extraordinary vote provisions of section 508.046 of the Government Code, which, for release, requires that at least two-thirds of the members of the Board vote in favor of release.1 None of the seven board members voted to release Z.Q. The Board set his next parole review for June of 2017. In July 2015, Z.Q. filed an original application for writ of habeas corpus in the original juvenile court, pursuant to article V, section 8 of the Texas Constitution2 asserting that the Board violated his constitutional right to due process by misapplying the Government Code provisions governing parole panels and votes. He argued that the Board erred in determining his parole under section 508.046, which requires a two-thirds majority vote of the entire Board if the inmate was convicted of an offense under certain sections of the Penal Code.3 Z.Q. argued that section 508.046 did not apply to him because he was adjudicated for capital murder, not “convicted” of that offense, and therefore is not a convicted capital felon. Z.Q. argued that he instead is entitled to have his parole determined by a simple majority vote of a three-member panel as provided for by Government 1 See Tex. Gov. Code § 508.046 (West, Westlaw through 2021 C.S.). 2 See Tex. Const. art. V, § 8. 3 See Tex. Gov. Code § 508.046. 2 Code section 508.045.4 The juvenile court granted habeas corpus relief in favor of Z.Q. ordering the Board to: (1) not subject Z.Q.’s parole determination to the extraordinary vote provisions of Texas Government Code § 508.046; and (2) proceed to have his parole determination made by a standard three-member parole panel under Texas Government Code § 508.45. In a mandamus proceeding filed by the Board, this court concluded that (1) the Board’s alleged misapplication of Government Code section 508.046 did not constitute a violation of Z.Q.’s constitutional rights for which habeas relief is available; and (2) because Government Code section 508.045 does not create a liberty interest that is cognizable on habeas corpus review, the juvenile court abused its discretion in granting habeas corpus relief.5 This court directed the juvenile court to vacate its order granting habeas corpus relief.6 In July 2017, the Board again reviewed Z.Q.’s parole eligibility under the extraordinary vote provisions of Government Code section 508.046 and again denied Z.Q. release on parole. In July 2020, the Board reviewed Z.Q.’s parole eligibility under Government Code section 508.046 and again denied Z.Q. release on parole. In November 2020, Z.Q. filed an application for a writ of habeas corpus in the juvenile court, pursuant to article V, section 8 of the Texas Constitution and Family Code section 56.01(o). Z.Q. again asked the juvenile court to enter an order granting habeas relief and prohibiting the Board from using the extraordinary vote provisions of Government Code section 508.046 to assess Z.Q.’s parole eligibility 4 See Tex. Gov. Code § 508.045 (West, Westlaw through 2021 C.S.). 5 See In re Texas Board of Pardons and Paroles, 495 S.W.3d 554, 560–63 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding [mand. denied]). 6 See id. 3 because Z.Q. was adjudicated for capital murder, not “convicted” of that offense. The State responded in opposition. On April 6, 2021, the juvenile court signed an order denying Z.Q.’s habeas corpus application “without issuing the writ or hearing on the merits” (the “Order”). Z.Q. timely filed a notice of appeal and seeks to appeal the Order. II. ANALYSIS Does this court have appellate jurisdiction to review the Order? The State argues that this court lacks appellate jurisdiction over the Order because the juvenile court denied Z.Q.’s habeas corpus application without issuing a writ of habeas corpus and without considering or resolving the merits of the application. Therefore, we first determine whether we have appellate jurisdiction. Although quasi-criminal in nature, proceedings in juvenile court are considered civil cases; thus, the Supreme Court of Texas, rather than the Court of Criminal Appeals, is the Texas court of last resort for such matters. In re M.P.A., 364 S.W.3d 277, 282 n.2 (Tex. 2012). The Court of Criminal Appeals has determined that it lacks jurisdiction to issue extraordinary writs in such cases, even those initiated by a juvenile offender who has been transferred to the Texas Department of Criminal Justice because he is now an adult. Id. It is the applicant’s age at the time he commits the delinquent acts that determines jurisdiction, rather than his age when applying for habeas corpus relief. Id. Thus, though an application for a writ of habeas corpus is not a normal civil suit, the proceedings regarding Z.Q.’s habeas corpus application and his attempted appeal from the Order are considered to be civil. See id.; See In re Texas Board of Pardons and Paroles, 495 S.W.3d 554, 558 (Tex. App.—Houston [14th Dist.] 2016, orig. proceeding [mand. denied]). 4 People who were children when they engaged in delinquent conduct and were adjudicated by a juvenile district court as having engaged in delinquent conduct may file in a juvenile district court an application for a writ of habeas corpus under article V, section 8 of the Texas Constitution, which gives juvenile district courts plenary power to issue the writ of habeas corpus. See In re Hall, 286 S.W.3d 925, 927 (Tex. 2009); In re Z.Q., No. 14-12-01109-CV, 2013 WL 55991, at 1 (Tex. App.—Houston [14th Dist.] Jan. 3, 2013, orig. proceeding) (mem. op.). There is an important distinction between the issuance of a writ of habeas corpus and the granting of habeas corpus relief based on a claim set forth in a habeas corpus application. See Ex parte Bowers, 36 S.W.3d 926, 926 (Tex. App.—Dallas 2001, pet. ref’d). A writ of habeas corpus does not grant substantive relief; rather the writ is an order issued by a court or judge of competent jurisdiction, directed to the person having the applicant in custody, or under restraint, commanding the person to produce the applicant, at a time and place named in the writ, and show why the applicant is held in custody or under restraint. See Ex parte Walker, 489 S.W.3d 1, 7 (Tex. App.—Beaumont 2016, pet. ref’d). The Supreme Court of Texas, this court, and sister courts of appeals have exercised appellate jurisdiction over appeals from an order in which a juvenile court ruled on the merits of a claim in a post-adjudication application for a writ of habeas corpus. See In re M.P.A., 364 S.W.3d 277, 281–82, 292 (Tex. 2012); In re Z.Q., No. 14-12-00129-CV, 2013 WL 176116, at 1 (Tex. App.—Houston [14th Dist.] Jan. 17, 2013, no pet.) (mem. op.); Ex parte Gardner, No. 10-15-00372-CV, 2016 WL 5944764, at 1–3 (Tex. App.—Waco Oct. 12, 2016, pet. denied) (mem. op.); In re J.W.A., No. 03-03-00464-CV, 2005 WL 2574024, at 3 & n.4 (Tex. App.—Austin Oct. 13, 2005, no pet.) (mem. op.). However, there is no right of appeal from an order in which a juvenile court denies an applicant’s habeas corpus 5 application without issuing a writ of habeas corpus and without addressing the merits of any claim in the application. See Ex parte Villanueva, 252 S.W.3d 391, 393–94 (Tex. Crim. App. 2008); Ex parte T.W.A., No. 10-22-00022-CV, 2022 WL 3655150, at 2 (Tex. App.—Waco Aug. 24, 2022, no pet.) (mem. op.); Ex parte Miller, No. 09-08-00194-CV, 2008 WL 5780816, at 1–2 (Tex. App.—Beaumont Apr. 2, 2009, no pet.) (mem. op.). We therefore examine whether the juvenile court issued a writ of habeas corpus and whether the juvenile court addressed the merits of a claim in Z.Q.’s habeas application. See Ex parte Villanueva, 252 S.W.3d at 393–94; Ex parte T.W.A., 2022 WL 3655150, at 2; Ex parte Miller, 2008 WL 5780816, at 1–2. We review the entire appellate record for this determination. See Ex parte Bowers, 36 S.W.3d at 926. Z.Q. suggests that this court has appellate jurisdiction based on the Supreme Court of Texas’s opinion in Harbison v. McMurray. See 158 S.W.2d 284, 286–88 (Tex. 1942). Though the Harbison court concluded that the Court of Civil Appeals had jurisdiction over an appeal from the denial of habeas corpus relief, the trial court in that case ruled on the merits of the claims in the habeas corpus application; therefore the Harbison case is not on point. See id. at 286, 288. Z.Q. also cites the opinion in In re Commitment of Richards. See 202 S.W.3d 779, 788–89 (Tex. App.—Beaumont 2006, pet. denied). Though the Richards court concluded that it had jurisdiction over the appeal from the denial of habeas corpus relief, the trial court in that case ruled on the merits of the claims in the habeas corpus application; therefore the Richards case is not on point. See id. Z.Q. and the State agree, and the record reflects, that in the Order the trial court denied Z.Q.’s habeas corpus application without issuing a writ of habeas corpus and without holding a hearing on the merits of the application. After reviewing the entire appellate record, we conclude that the juvenile court denied 6 Z.Q.’s habeas corpus application without issuing a writ of habeas corpus and without addressing the merits of any claim in Z.Q.’s habeas corpus application. Therefore, the Order is not an appealable order, and this court lacks jurisdiction to consider appellant’s appeal. See Ex parte Noe, 646 S.W.2d 230, 231 (Tex. Crim. App. 1983); Ex parte Miller, 2008 WL 5780816, at *1–2; Purchase v. State, 176 S.W.3d 406, 407 (Tex. App.—Houston [1st Dist.] 2004, no pet.); Ex parte Bowers, 36 S.W.3d at 926. III. CONCLUSION We conclude that we do not have appellate jurisdiction to review the Order. We order the appeal dismissed for lack of appellate jurisdiction. /s/ Randy Wilson Justice Panel consists of Justices Wise, Poissant, and Wilson. 7	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481287/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,147-01 EX PARTE JASON LEE MOJICA, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20-10-12711 IN THE 221ST DISTRICT COURT FROM MONTGOMERY COUNTY Per curiam. KELLER , P.J., and YEARY and SLAUGHTER , JJ., dissented. ORDER Applicant pleaded guilty to assault on a family member by strangulation and was sentenced to ten years’ imprisonment. Applicant did not appeal his conviction. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07. Applicant contends, among other things, that trial counsel was ineffective for advising him to plead guilty when the complainant had signed an affidavit of non-prosecution. The trial court made findings of fact and recommends that the Court deny relief. However, these findings were made without the benefit of an affidavit from trial counsel or a copy of the complainant’s affidavit of non-prosecution. 2 Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985). In these circumstances, additional facts are needed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant’s claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s name. The trial court shall supplement the record with a copy of the complainant’s affidavit of non- prosecution. The trial court shall then make supplemental findings of fact and conclusions of law as to whether trial counsel’s performance was deficient and Applicant would have insisted on a trial but for counsel’s alleged deficient performance. The trial court shall make specific findings as to (1) whether trial counsel informed Applicant prior to his guilty plea that the complainant in this cause had signed an affidavit of non-prosecution, and (2) how such an affidavit affected the advice he gave Applicant with respect to whether Applicant should plead guilty or go to trial on the charges. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant’s claim. The trial court shall make supplemental findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court’s findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts 3 from hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: November 2, 2022 Do not publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481286/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0145-21 EX PARTE LYLA ORDONEZ, Appellant ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY Per curiam. OPINION Appellant was charged with harassment via electronic communications. See T EX. P ENAL C ODE § 42.07(a)(7). She filed a pre-trial habeas writ application arguing the electronic harassment statute is facially unconstitutional. The trial court denied relief. She appealed, and the Court of Appeals held the statute to be unconstitutionally overbroad. Ex parte Ordonez, No. 14-19-01005-CR (Tex. App. – Houston [14th] Jan. 26, 2021, pet. filed). The State filed a petition for discretionary review arguing that Appellant failed to meet her burden to show the statute is unconstitutionally overbroad and the Court of Appeals erred Ordonez - 2 in finding the statute unconstitutional. In Ex parte Barton, No. PD-1123-19, 2022 WL 1021061 (Tex. Crim. App. Apr. 6, 2022), and Ex parte Sanders, No. PD-0469-19, 2022 WL 1021055 (Tex. Crim. App. Apr. 6, 2022), we held a previous version of the statute, first adopted in 2001, constitutional on its face. See Acts 2001, 77th Leg., ch. 1222 (S.B. 139), § 1, eff. Sept. 1, 2001. Appellant’s case is governed by the 2017 version of the electronic harassment statute. See Acts 2017, 85th Leg., ch. 522 (S.B. 179), §§ 13, 14, eff. Sept. 1, 2017. The Court of Appeals in the instant case did not have the benefit of our decisions in Ex parte Barton and Ex parte Sanders. Accordingly, we grant the State’s petition for discretionary review, vacate the judgment of the Court of Appeals, and remand this case to the Court of Appeals for further consideration in light of Ex parte Barton and Ex parte Sanders. DELIVERED November 2, 2022 DO NOT PUBLISH	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481288/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,970-01 EX PARTE MARCO ANTONIO LOZANO, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. DC78-CR2019-0167*1 IN THE 78TH DISTRICT COURT FROM WICHITA COUNTY Per curiam. ORDER Applicant pleaded guilty to possession of a controlled substance and was placed on deferred adjudication probation. Following the State’s motion to proceed with adjudication of guilt, alleging that Applicant had violated his probation conditions. The trial court found a number of those allegations true, adjudicated Applicant guilty, and sentenced Applicant to eighteen months’ imprisonment in state jail. Applicant did not appeal his conviction. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07. Applicant contends, among other things, that adjudication counsel was ineffective for failing to request a competency evaluation, present mitigating evidence at sentencing, and file a notice of 2 appeal. Applicant also alleges that he is incompetent and was incompetent when he pleaded guilty and when his guilt was adjudicated. Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order both plea counsel and adjudication counsel to respond to Applicant’s claims. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s name. The trial court shall make findings of fact and conclusions of law as to whether adjudication counsel’s performance was deficient and Applicant was prejudiced. The trial court shall also make specific findings as to whether Applicant was incompetent when he pleaded guilty and when his guilt was adjudicated. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant’s claims. The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court’s findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. 3 Filed: November 02, 2022 Do not publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481295/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,158-01 EX PARTE CHARLES GARTON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18F0532-102-A IN THE 102ND DISTRICT COURT FROM BOWIE COUNTY Per curiam. SLAUGHTER , J., filed a concurring opinion. OPINION Applicant was convicted of two counts of aggravated sexual assault of a child and sentenced to eighty years’ imprisonment. He filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07. Applicant contends that he was denied his right to an appeal because counsel failed to timely file a notice of appeal. Based on the record, the trial court has found that counsel failed to timely file a notice of appeal. Relief is granted. Ex parte Axel, 757 S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003). Applicant may file an out-of-time appeal of his conviction 2 in cause number 18F0532-102- from the 102nd District Court of Bowie County. Within ten days from the date of this Court’s mandate, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him on direct appeal. Should Applicant decide to appeal, he must file a written notice of appeal in the trial court within thirty days from the date of this Court’s mandate. Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and the Board of Pardons and Paroles. Delivered: November 2, 2022 Do not publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481296/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,158-01 EX PARTE CHARLES GARTON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18F0532-102-A IN THE 102ND DISTRICT COURT BOWIE COUNTY SLAUGHTER, J., filed a concurring opinion. CONCURRING OPINION I join in the Court’s decision to grant Applicant post-conviction habeas relief in the form of an out-of-time appeal based on ineffective assistance of trial counsel. After Applicant was convicted of two counts of aggravated sexual assault of a child and sentenced to eighty years’ imprisonment on each count, he expressed to trial counsel his desire to appeal the convictions. According to Applicant’s allegations, counsel informed Applicant that he did not intend to represent Applicant on appeal but would provide him the necessary paperwork for perfecting an appeal. Counsel had Applicant sign some paperwork but never advised Applicant on how to perfect his appeal. In support of his Garton - 2 claim, Applicant provided purported text messages between his sister and counsel. Those messages show that Applicant’s sister texted counsel asking about Applicant’s appeal and counsel replied by stating that he would not “forget [Applicant’s] appeal,” that he had filed a motion for new trial thereby extending the window for filing a notice of appeal, and that he intended to file a notice of appeal on Applicant’s behalf. The record reflects that counsel did indeed file a motion for new trial, but, in spite of his assurances, he never filed a notice of appeal. It also appears that counsel never withdrew as counsel of record. In response to Applicant’s habeas allegations, the habeas court ordered trial counsel to provide an affidavit. When counsel did not initially respond within 30 days as ordered, the habeas court entered a second order requiring an affidavit within 7 days. Counsel again failed to respond. Thus, having received no response from counsel, the habeas court had no choice but to resolve Applicant’s claim based solely on the allegations in the application and the text messages from Applicant’s sister. These circumstances highlight two unfortunate recurring themes in our post- conviction habeas review of ineffective-assistance claims. First, it appears that some attorneys are struggling to stay on top of their obligations at the conclusion of their representation, resulting in harm to clients who are then prevented from pursuing the next stage of appellate review of their convictions. Here, counsel clearly failed to carry out his duties at the end of his representation, including failing to file a notice of appeal on Applicant’s behalf. See Ex parte Axel, 757 S.W.2d 369, 374 (Tex. Crim. App. 1988) (“[T]rial counsel, retained or appointed, has the duty, obligation and responsibility to consult with and fully to advise his client concerning [the] meaning and effect of the Garton - 3 judgment rendered by the court, his right to appeal from that judgment, the necessity of giving notice of appeal and taking other steps to pursue an appeal, as well as expressing his professional judgment as to possible grounds for appeal and their merit, and delineating advantages and disadvantages of appeal.”); see also Jones v. State, 98 S.W.3d 700, 703 (Tex. Crim. App. 2003) (stating that “[i]f the defendant decides to appeal, the [trial] attorney must ensure that written notice of appeal is filed with the trial court”). In addition to depriving Applicant of his statutory right to pursue a direct appeal, counsel’s error has also now resulted in both the habeas court and this Court having to expend resources to undo the effects of counsel’s error. Thus, this case serves as a reminder that trial counsel’s role at the post-conviction stage—including filing a motion for new trial, if any; filing a timely notice of appeal; filing a motion to withdraw if counsel will not be completing the appeal; and advising the client on the next steps to pursue an appeal if desired—is critical for ensuring that a defendant’s right to appeal is properly preserved. 1 Failure to fulfill these obligations is not only unprofessional and unfair to clients, but it also wastes judicial resources by spawning the type of corrective post-conviction litigation before us here. Though I recognize that we are all human beings who make mistakes, based on the sheer 1 See American Bar Association, Criminal Justice Standards, Defense Function, Standard 4.9-1(a)- (d), “Preparing to Appeal” (“If a client is convicted, defense counsel should explain to the client the meaning and consequences of the court’s judgment and the client’s rights regarding appeal . . . . Defense counsel should take whatever steps are necessary to protect the client’s rights of appeal, including filing a timely notice of appeal in the trial court, even if counsel does not expect to continue as counsel on appeal. Defense counsel should explain to the client that the client has a right to counsel on appeal (appointed, if the client is indigent), and that there are lawyers who specialize in criminal appeals. Defense counsel should candidly explore with the client whether trial counsel is the appropriate lawyer to represent the client on appeal, or whether a lawyer specializing in appellate work should be consulted, added or substituted.”) (emphasis added). Garton - 4 volume of writ applications this Court sees annually in which this or similar problems arise, I feel that it is my ethical obligation to bring attention to this issue so that attorneys may be reminded of the effect of failing to stay on top of their responsibilities. 2 Second, I have previously noted that, when an attorney is ordered to provide an affidavit in response to an Applicant’s habeas allegations and wholly fails to do so, that attorney violates his obligations under the Texas Rules of Professional Conduct, as well as his oath and the Texas Lawyer’s Creed; thus, it may be appropriate for this Court to take action and require an explanation from counsel. See Ex parte Touchet, 615 S.W.3d 160, 161 (Tex. Crim. App. 2021) (Slaughter, J., concurring) (“An attorney’s complete failure to respond to claims raised against him not only hinders judicial economy, but in some instances may result in the Court’s inability to fully and fairly decide a claim. Such a serious infraction warrants action by the habeas court. If the habeas court fails to take appropriate action, then this Court should do so or at least require habeas counsel to respond.”). 3 Though I agree wholeheartedly with the habeas court’s recommendation to grant relief under these circumstances, it concerns me that counsel will not be required to 2 See Tex. Code Jud. Conduct, Canon 3(D)(2) (“A judge who receives information clearly establishing that a lawyer has committed a violation of the Texas Disciplinary Rules of Professional Conduct should take appropriate action.”). My hope is that attorneys will implement practices that spur them to regularly check on the status of their cases so they may fulfill their duty to meet important filing deadlines for their clients. 3 See also Tex. Disciplinary Rules Prof’l Conduct R. 8.04 (“A lawyer shall not violate these rules [or] . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation [or] . . . violate any other laws of this state relating to the professional conduct of lawyers and to the practice of law.”). Lawyers who violate the Rules may be subject to discipline. Id. R. 1.01(b) & cmts 6-7 (“[A]n incompetent lawyer is subject to discipline,” as is one who neglects “a particular legal matter” or who “frequent[ly] fail[s] to carry out fully the obligations owed to one or more clients.”). Garton - 5 answer either for the underlying failure to file a notice of appeal or his later failure to respond to the habeas court’s order for an affidavit. Perhaps there is some justification for counsel’s conduct, but in the absence of any response from counsel, this Court will never know. I continue to believe that, to ensure the integrity of judicial proceedings and the accuracy of our determinations on post-conviction habeas review, this Court should at least consider issuing a show-cause order in such situations. Allowing such non-responsiveness by counsel to go unaddressed sends a negative message about the importance of post- conviction habeas litigation, undermines this Court’s authority, and ultimately impedes our ability to fairly decide habeas claims. Though a show-cause order is undoubtedly not warranted in all cases, it should be an option for this Court to consider in extreme situations, particularly for repeated infractions. With these comments, I join the Court’s opinion granting Applicant relief. Filed: November 2, 2022 Publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481289/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,025-01 EX PARTE KEVIN JOHNSON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1553641-A IN THE 184TH DISTRICT COURT FROM HARRIS COUNTY Per curiam. ORDER Applicant was convicted of aggravated robbery and sentenced to imprisonment. Applicant, through habeas counsel, filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07. Applicant contends in several grounds that trial counsel was ineffective. There is no response from trial counsel or trial court findings in the habeas record forwarded to this Court. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant’s claims. In developing the record, the trial court may use any means set out 2 in Article 11.07, § 3(d). The trial court shall make findings of fact and conclusions of law as to whether trial counsel’s performance was deficient and Applicant was prejudiced. The trial court may make any other findings and conclusions that it deems appropriate. The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court’s findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: November 02, 2022 Do not publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481285/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,824-01 EX PARTE SHANEA LYNN REEDER, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 5427-A IN THE 31ST DISTRICT COURT FROM WHEELER COUNTY Per curiam. ORDER Applicant pleaded guilty and was convicted of unlawful possession of a firearm by a felon and sentenced to five years’ imprisonment. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07. Applicant contends that his conviction is illegal because the underlying offense used to show that he was a felon was not a final felony conviction. Applicant was serving a deferred adjudication supervision sentence at the time he allegedly possessed a firearm. He alleges that because his guilt had not been adjudicated, he was not a felon and therefore should have not been convicted of unlawful possession of a firearm by a felon. 2 Applicant has alleged facts that, if true, might entitle him to relief. Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s name. The trial court shall make findings of fact and conclusions of law as to whether Applicant had a different felony conviction which could have been used as the predicate offense for this felony conviction. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant’s claim. The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court’s findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: November 2, 2022 Do not publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481228/	NOS. 12-22-00209-CR 12-22-00210-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS § APPEAL FROM THE 241ST EX PARTE: § JUDICIAL DISTRICT COURT LANCE CHARLES CONKLIN § SMITH COUNTY, TEXAS MEMORANDUM OPINION Lance Charles Conklin appeals the trial court’s denial of his applications for writ of habeas corpus seeking bail reduction for two unindicted charges: one for continuous sexual abuse of a child and one for indecency with a child. We reverse and remand. BACKGROUND On May 17, 2022, the 241st District Court in Smith County, Texas signed two warrants for Appellant’s arrest: one for indecency with a child by sexual contact, a second-degree felony, and one for continuous sexual abuse of a child, a first-degree felony. 1 The trial court set the bond at $500,000 on the indecency charge and $1,000,000 for the continuous sexual abuse charge. Appellant was arrested on both charges and filed a writ of habeas corpus seeking a bail reduction to $100,000 in each case, for a total of $200,000, with the condition that Appellant wear a global positioning system (GPS) device and remain in Smith County, with the exception of travel for work. 1 Indecency with a child by sexual contact is a felony of the second degree, punishable by not less than two nor more than twenty years of imprisonment. TEX. PENAL CODE ANN. §§ 12.33(a) (West 2019); 21.11(a)(1), (d) (West 2019). Continuous sexual abuse of a child is a first degree felony punishable by not less than twenty five years to life imprisonment. Id. § 21.02 (b)(1), (2)(A), (h) (West Supp. 2022). A defendant serving a sentence for continuous sexual abuse of a child is not entitled to parole under Texas law. TEX. GOV’T CODE ANN. § 508.145(a)(2) (West Supp. 2022). The trial court held an evidentiary hearing on Appellant’s application for writ of habeas corpus. Appellant called his sister, Amanda Carsten, who testified about Appellant’s community ties, work history, and finances. Carsten testified that she contacted several bondsmen and learned that Appellant would need to post $450,000, obtain “several co-signors,” and provide proof of assets up to the full amount of the two bonds. Carsten testified that Appellant was unable to make bond as it was currently set in both cases. The State entered the arrest warrant affidavits and a print-off of Appellant’s TCIC/NCIC criminal history without objection. After hearing evidence and argument of counsel, the trial court denied Appellant’s application. This appeal followed. BOND AMOUNTS In one issue, Appellant argues that the trial court abused its discretion in declining to reduce the amount of his bail bonds in each case, which he contends are facially excessive and oppressive in consideration of his economic resources and ties to the community. Standard of Review and Applicable Law The decision regarding a proper bail amount lies within the sound discretion of the trial court. TEX. CODE CRIM. PROC. ANN. art. 17.15 (West Supp. 2022). Accordingly, we review the trial court’s denial of a request to reduce bail for an abuse of discretion. See Ex parte Rubac, 611 S.W.2d 848, 850 (Tex. Crim. App. 1981); Clemons v. State, 220 S.W.3d 176, 178 (Tex. App.—Eastland 2007, no pet.) (per curiam). In determining whether the trial court abused its discretion, we do not substitute our judgment for that of the trial court. Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). The purpose of our review is to determine whether the trial court’s decision was made without reference to any guiding rules or principles of law, or in other words, whether the decision was arbitrary or unreasonable. Id. at 380. An abuse of discretion occurs when a trial court’s decision is so clearly wrong as to lie outside the zone of reasonable disagreement. Id. at 391 (op. on reh’g). The burden of proof is on petitioner for reduction in bail to show that the bail set is excessive. Rubac, 611 S.W.2d at 849. The primary purpose of setting a pretrial bond should be to secure Appellant’s presence at trial. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App. [Panel Op.] 1980); Ex parte Rincon, Nos. 04-13-00715-CR—04-13-00718-CR, 2014 WL 2443870, at 1 (Tex. App.— San Antonio May 28, 2014, no pet.) (mem. op., not designated for publication). The amount of 2 the bond necessary to achieve that purpose is committed to the trial court’s sound discretion, although its discretion is bounded and guided by constitutional and statutory provisions. See Ex parte Estrada, 398 S.W.3d 723, 724 (Tex. App.–San Antonio 2008, no pet.). The federal constitution, our state constitution, and our state laws prohibit “excessive” bail. U.S. CONST. Amend. VIII; TEX. CONST. art. I, § 13; TEX. CODE CRIM. PROC. ANN. art. 1.09 (West 2005). Article 17.15 of the code of criminal procedure provides that “bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with[;]” however, “[t]he power to require bail is not to be so used as to make it an instrument of oppression.” TEX. CODE CRIM. PROC. ANN. art. 17.15(1), (2). Although a defendant’s ability to make bail must be considered, it is not a controlling consideration. See id. art. 17.15(4); Rodriguez, 595 S.W.2d at 550. The primary considerations when assessing the reasonableness of bail are the punishments that can be imposed and the nature of the offenses. Ex parte Ramirez-Hernandez, 642 S.W.3d 907, 917 (Tex. App.—San Antonio 2022, no pet.); Ex parte Melartin, 464 S.W.3d 789, 792 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Article 17.15 also requires the consideration of the future safety of the victim of the alleged offense, law enforcement, and the community. TEX. CODE CRIM. PROC. ANN. art. 17.15 (5). Along with the factors in Article 17.15, courts have held there are seven additional factors to be weighed in determining the amount of bond: (1) the accused’s work record; (2) the accused’s family and community ties; (3) the accused’s length of residency; (4) the accused’s prior criminal record; (5) the accused’s conformity with previous bond conditions; (6) the existence of other outstanding bonds, if any; and (7) aggravating circumstances alleged to have been involved in the charged offense. See Rubac, 611 S.W.2d at 849–50. 2 The Evidence We will begin our analysis by summarizing the evidence produced at the hearing regarding the primary considerations, the nature of the offense and the potential punishments, as well as the other factors discussed above. a. Nature of the Offenses and Potential Punishment 2 Though Rubac involved the setting of an appeal bond after conviction, Texas courts have applied the Rubac factors in the review of cases involving pre-trial bail. See Ex parte Emery, 970 S.W.2d 144, 145 (Tex. App.—Waco 1998, no pet.); Ex parte Brown, 959 S.W.2d 369, 372 (Tex. App.—Fort Worth 1998, no pet.); Smith v. State, 829 S.W.2d 885, 887 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). 3 The nature of the offenses and the potential punishment weigh in favor of a high bail amount. If convicted of the continuous sexual abuse of a child charge, Appellant faces twenty- five years to life in prison, without the possibility of parole. See TEX. PENAL CODE ANN. § 21.02 (h) (West Supp. 2022); see also TEX. GOV’T CODE ANN. § 508.145 (a)(2) (West Supp. 2022). Indecency with a child by sexual contact is punishable by two to twenty years of imprisonment. TEX. PENAL CODE ANN. § 12.33(a) (West 2019); 21.11(d) (West 2019). Furthermore, if Appellant were convicted of both offenses in separate proceedings, the trial court could order Appellant to serve the sentences consecutively. See TEX. CODE CRIM. PROC. ANN. art. 42.08 (West 2018). b. Safety of Victim and Community The safety of the victim and the community support a high bail amount. See TEX. CODE CRIM. PROC. art. 17.15(a)(5) (West 2019). The record indicates that Appellant intends to reside at his Mineola residence if released on bond, which is where some of the alleged incidents of sexual abuse took place. Appellant is charged with engaging in approximately twenty different instances of sexual contact with a child younger than fourteen, including oral and anal penetration. Further, the alleged victim of these assaults resides near Appellant in the small part of Mineola that is situated within Smith County. Moreover, the Appellant is charged with indecency with a child involving a second victim. c. Appellant’s Financial Resources and Ability to Make Bail Carsten testified that Appellant owns a 2006 Ford Ranger truck, unencumbered by any liens, worth approximately $5,000, and has approximately $13,000 in cash in his checking account. Carsten testified that Appellant has a minivan he financed through a bank to which he is still making payments and Carsten was unsure of the minivan’s value. She testified that Appellant has no savings or retirement accounts. Carsten testified that Appellant “has two recreational vehicles (RV’s) in his name” but she owns one of them, which is worth $40,000, and the other Appellant personally financed to an elderly couple. She explained that Appellant originally financed the second RV through a bank and owes approximately $26,000 to the bank for the RV. Carsten was unsure how much the couple is paying Appellant towards the RV. Carsten owns the land and home where Appellant resides, free of any liens, and it is worth approximately $100,000. Carsten testified that Appellant could afford to pay $300 monthly for the cost of GPS monitoring if released on bond. 4 Carsten contacted several bondsmen in an attempt to make bail for Appellant and was told that she would have to put down $450,000 in cash, find co-signors, and prove that Appellant had assets totaling the combined bond amount of $1,500,000. Carsten testified that Appellant could not make the bonds in these cases. d. Rubac Factors Carsten testified that Appellant is a thirty-eight-year-old man that has resided in Smith County almost his entire life. He resided at her home in Mineola prior to his arrest and would return to her home to live if released on bond. Carsten testified that Appellant has no contact with their Father or other siblings. She testified that Appellant was employed by a drilling company when he was arrested and would seek employment if released on bond. Carsten testified that Appellant does have a criminal history but has never failed to appear for a court date. However, Carsten testified that Appellant had previously been revoked from probation on a prior offense. Carsten testified that Appellant learned about the current charges in a certified letter and contacted law enforcement but was not told of the outstanding warrants for his arrest. Carsten acknowledged that Appellant was arrested by the United States Fugitive Task Force. It appears from the face of the arrest warrants that Appellant was arrested on May 17, the same day the judge signed the warrants. Analysis Appellant argues that the combined amount of the bonds is approximately twenty times higher than what Appellant and his family can reasonably provide and amounts to a de facto setting of no bond. He argues that he clearly demonstrated to the trial court what his family could furnish as a reasonable amount of bail. The State counters that the bonds are not excessive given the nature of the offenses, the potential punishments, and the safety of the community. The State argues that Appellant is a potential flight risk because he “faces the very real possibility of never getting out of prison if he is convicted of the [] charges” and the “State’s cases are well founded factually – including Appellant’s admissions of guilt.” In further support of their argument that Appellant presents a flight risk, the State points to the fact that Appellant did not turn himself in on the warrants and was instead arrested by the United States Fugitive Task Force. The State also argues that the fact Appellant has access to $13,000 in his checking account, access to other valuable assets, and is currently unemployed, give rise to the inference that Appellant will flee and not face the charges. 5 We disagree with Appellant that the record demonstrates that the bonds are twenty times the amount that Appellant can afford and thus a de facto setting of no bond. We are unsure how Appellant arrived at the “twenty times” calculation. His brief does not explain how he arrived at the calculation and it is unclear to this Court from the evidence how he arrived at this calculation. The evidence shows that Appellant has $13,000 in liquidated assets and owns a truck valued at $5,000. With respect to the RV and the minivan that Appellant owns, it is unclear what equity, if any, Appellant has in the assets. The rest of the assets discussed belong to Appellant’s sister, and she did not expressly state that she would liquidate those assets to help Appellant post the bond, co-sign a bond, or allow Appellant to put up those assets as collateral. Moreover, Carsten testified that no bondsmen agreed to post a bond for Appellant unless he could put down $450,000 in cash, secure co-signors, and prove ownership of assets in the amount of the bonds. Appellant’s trial counsel asked that the trial court set the bonds at $100,000 on each case, for a combined total of $200,000, in addition to $300 a month for GPS monitoring pending trial, however Carsten did not testify that Appellant could afford to post a combined $200,000 bond. Thus, we cannot conclude, as Appellant urges us to, that this is a de facto setting of no bond. See Ex parte Flores, No. 12-21-00079-CR, 2021 WL 3922919, at 2 (Tex. App.—Tyler Sept. 1, 2021, no pet.) (mem. op., not designated for publication) (de facto setting of no bond where court set combined bonds of $825,000, eleven times what the appellant could afford, where the appellant’s sister-in-law testified the appellant could afford a $75,000 bond). Nonetheless, we can conclude, based on the evidence, that the bonds are substantially higher than Appellant can realistically financially afford. See Ramirez-Hernandez, 642 S.W.3d at 920 (defendant should ordinarily offer evidence of his available resources and unsuccessful attempts to post bail in current amount). However, a defendant’s inability to make bail does not automatically render the amounts excessive. Ex parte Mazuera, No. 01-21-00612-CR, 2022 WL 1110989, at 9 (Tex. App.—Houston [1st Dist.] Apr. 14, 2022, no pet.) (mem. op., not designated for publication); see also Ex parte Vance, 608 S.W.2d 681, 683 (Tex. Crim. App. 1980). If a defendant’s ability to make bail controlled, then the trial court’s role in setting bail amounts would be eliminated and the defendant would be in the position to determine the proper amount of bail, which is antithetical to the purpose of a bond. See Milner v. State, 263 S.W.3d 146, 150 (Tex. App.—Houston [1st Dist.] 2006, no pet.). But, bail set in an amount that cannot be satisfied has the potential to displace the presumption of innocence. Mazuera, 2022 WL 6 1110989, at 9; see also Ex parte Bogia, 56 S.W.3d 835, 840 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Appellant was arrested on the warrants in this case on May 17, 2022. His inability to make bail or post a bond since that time is a factor to be considered. See Mazuera, 2022 WL 1110989, at 9; see also Rincon, 2014 WL 2443870, at 3. When bail is so high that a person cannot realistically pay for it, the trial court essentially displaces the presumption of innocence. See Mazuera, 2022 WL 1110989, at 10. Bail cannot be used as an instrument of oppression and bail set in a particular amount, when it assumes that the defendant cannot afford bail in that amount becomes oppressive. Id.; see also Ex parte Durst, 148 S.W.3d 496, 499 (Tex. App.— Houston [14th Dist.] 2004, no pet.) (where bail amount set “solely to prevent [defendant] from getting out of jail,” “bail [was] being used as an instrument of oppression”). Here, there is no direct evidence that the trial court set Appellant’s bonds at $1,000,000 and $500,000 for the express purpose of keeping Appellant incarcerated. cf. Ex parte Harris, 733 S.W.2d 712, 714 (Tex. App.—Austin 1987, no pet.) (trial court stated, “[it would] rather see him in jail than to see someone’s life taken”). But the law only requires bail be set in an amount high enough to give reasonable assurance that a defendant will appear for trial. TEX. CODE CRIM. PROC. art. 17.15(1). Bail amounts in excess of seven figures are almost never required, even in capital cases. See Flores, 2021 WL 3922919, at 4 (citing Ludwig v. State, 812 S.W.2d 323, 323 (Tex. Crim. App. 1991)). Although the appropriate amount of bail is an individualized determination, a review of other cases can be instructive. See id., at * 11. While courts traditionally set high bonds in cases involving offenses against children, the right to a reasonable bail is a complement to and based on the presumption of innocence. Id. The repellant nature of the accusation does not diminish the presumption of the accused’s innocence and the provision in Article 17.15 providing “[t]he power to require bail is not to be used as to make it an instrument of oppression” mandates that bail is not to be used to insure pre-conviction punishment. Id.; TEX. CODE CRIM. PROC. art. 17.15(a)(2). In Clemons, the defendant was charged with two cases of aggravated sexual assault of a child and two cases of indecency with a child. 220 S.W.3d at 177. Initially, total bail was set at $600,000. Id. After a hearing, the trial court reduced total bail for all cases to $400,000 ($75,000 in each of the indecency cases and $150,000 and $100,000 in the aggravated sexual 7 assault cases). On appeal, the Eastland Court of Appeals affirmed. Id. at 179. However, in Clemons, the defendant attempted to persuade his wife to flee to Mexico with him. See id. He also told several persons that he would kill himself rather than go to prison. See id. There are no such circumstances present in the instant case. Moreover, while the State argues that Appellant is a flight risk, there is no direct evidence to suggest that he would flee if released on bail pending trial. We acknowledge that Appellant was arrested by the “fugitive” task force, but it appears from the record he was arrested the same day the warrants were issued. The State offered no testimony or evidence about the circumstances surrounding Appellant’s arrest. And Appellant’s sister offered the following testimony regarding the circumstances surrounding Appellant learning about the charges and his subsequent arrest: Q: Are you aware of the fact that – well, lets talk about something. When your brother first found out that he had a warrant for his arrest, what did he do? A: We did not know that he had a warrant out for his arrest. We knew that he was being accused of something because a lady sent him a certified letter warning him that he was being accused of something. Q: Okay. Did he contact law enforcement and turn himself in to see whether or not there were any warrants? A: Law enforcement actually called him to tell him that he was no longer allowed at certain places, and he asked what it was about, and he was denied the ability to learn what it was about. Q: So did they ever tell him that he had an outstanding warrant? A: No. Q: You’re aware that he was arrested by the United States Fugitive Task Force, correct? A: Yes, sir, I was, because I was there. Based on the arrest warrant affidavits, the mother of one of the victims, J.C., contacted law enforcement on May 1, 2022 and reported that J.C. (the victim in the continuous sexual abuse case) and his friend, D.R., (the victim in the indecency case) made outcry statements regarding sexual assaults perpetrated against them by Appellant. On May 5, the victims were interviewed at the Children’s Advocacy Center in Smith County, and made outcry statements of abuse perpetrated against them by Appellant. On that same day, a Smith County Sheriff’s detective formally interviewed J.C.’s mother. On May 9, a sexual assault nurse examiner examined both 8 victims. On May 17, the investigating detective presented the warrants to the trial court and Appellant was arrested that day. Thus, based on the record, any inference that Appellant was attempting to avoid arrest on the warrants would be purely speculative. In Ex parte Smith, No. 09-06-00104-CR, 2006 WL 1511480 (Tex. App.—Beaumont May 31, 2006, no pet.) (mem. op., not designated for publication), the defendant was charged with aggravated sexual assault of a child and indecency with a child. 2006 WL 1511480, at 1. The evidence showed that defendant had a good work record, no prior criminal history, and significant ties to the prosecuting county. Id. at 2. The magistrate set bail at $250,000 in the aggravated assault case and $200,000 in the indecency case. Id. at 1. After a hearing on the defendant’s request for a bail reduction, the trial court set bail at $125,000 in the aggravated sexual assault case and $75,000 in the indecency with a child case. Id. The court of appeals held these amounts to be excessive and set bail at $50,000 and $25,000. Id. at 7. In Ex parte Bennett, No. 02-07-00175-CR, 2007 WL 3037908, at 4 (Tex. App.—Fort Worth Oct. 18, 2007, no pet.) (mem. op., not designated for publication), the defendant was charged with multiple counts of aggravated sexual assault of a child. 2007 WL 3037908, at 4. In upholding total bail of $600,000, the court noted the serious nature of the offenses and defendant’s failure to maintain contact with his attorney when the bonds were originally set at a lower amount. Id. In this case, there is no evidence Appellant failed to maintain contact with his attorney. Also, unlike Bennett who was not currently employed and only had minimal ties to the prosecuting county, Appellant had employment prior to being arrested, although it was short term, and resided in Smith County for most of his entire life. The State offered no evidence or testimony to contradict Carsten’s testimony. In Ex parte Bratcher, Nos. 05-05-00634-CR, 05-05-00635-CR, 2005 WL 1634971, at 5 (Tex. App.—Dallas July 13, 2005, no pet.) (mem. op., not designated for publication), the defendant was charged with two aggravated sexual assault of a child offenses with total bonds of $1,000,000. 2005 WL 1634971, at 5. In upholding the trial court’s denial of bond reduction, the court noted the defendant had previously been tried and convicted of sexual assault of the same victim and had three prior convictions for sexual assaults against children. Id. The victims in those cases were students at a daycare that the defendant co-owned with his mother who still operated the facility and with whom defendant was going to stay while on bond. Id. Further, the work the defendant would be doing while on bond involved traveling, which would make him a 9 higher flight risk. Id. These facts led the court to find the trial court struck the balance between the presumption of innocence and the State’s interest in assuring the defendant’s presence at trial. Id. In the present case, Appellant does have a criminal history. Carsten testified that he been revoked from a prior probation. However, there is no suggestion in the record that he has a has history of sexual assault or other violence against children. While the State expressed concern that Appellant would reside near his alleged victim, there was testimony that Appellant would agree to GPS monitoring and there is no direct evidence that Appellant would attempt to contact the victims if released on bond. 3 The only evidence offered regarding Appellant’s criminal history was a TCIC/NCIC print-off which reflected four previous arrests: two arrests in 2000 for misdemeanor theft and unauthorized use of a motor vehicle (UUMV), an arrest in 2005 for evading arrest in a vehicle, and an arrest in 2006 for possession of a prohibited weapon. It appears from the print-off that Appellant was acquitted of the theft charge in 2000 but there is no disposition history for the UUMV charge. It also appears Appellant was convicted of the prohibited weapons charge, and there is an entry indicating Appellant served approximately six months in State jail in late 2006 and early 2007, although it is unclear for what charge. In Ex parte Ramirez-Hernandez, the defendant was charged with three counts of aggravated sexual assault of a child against one victim, his stepdaughter. 642 S.W.3d at 912. The bonds were set at $500,000 for one count and $250,000 on the other two counts, for a combined $1,000,000 bond. Id. In that case, the state offered no evidence that the appellant had any criminal history, and the appellant offered testimony that he was employed for the past ten years and could return to his job if released on bond. Id. at 919. Despite not being a citizen of the United States and having no legal status in the United States, the appellant resided in the prosecuting county for the previous fourteen years. Id. The court of appeals determined that the circumstances of the offense, possible sentence and concerns that the appellant posed a flight risk favored a higher bond, but when balanced, did not warrant a combined $1,000,000 bond amount. Id. at 925. Here, the State cites two cases which it argues support the bond in this case: Ex parte Bordelon, No. 04-20-00364-CR, 2021 WL 1988259 (Tex. App.—San Antonio May 19, 2021, 3 The arrest warrant affidavits state that Appellant had access to the victims in each case through his friendship with one of the victim’s mothers, who reported the offenses to the affiant. There is no indication that Appellant has any relationship by blood or marriage to the victims beyond his friendship with one of the victim’s mothers. 10 pet. ref’d) (mem. op., not designated for publication) and Ex parte Greenwood, No. 09-17- 00257-CR, 2017 WL 5179962 (Tex. App.—Beaumont Nov. 8, 2017, no pet.) (mem. op., not designated for publication). The State argues that While neither Bordelon nor Greenwood mirror the instant cases exactly, they each place significant weight upon the serious nature of the sexual offenses against children, the substantial length of the applicable punishment range, the safety of the victims and the community, and the potential risk of flight. All of which are similarly significant factors here along with Appellant’s criminal history. In Bordelon, the appellant was awaiting trial on five felony offenses: one count of continuous sexual abuse of a child; one count of aggravated sexual assault of a child; and three counts of aggravated assault with a deadly weapon. 2021 WL 1988259, at 1. The facts in Bordelon are extraordinary: the appellant was first indicted for continuous sexual abuse of a child, D.B., on March 6, 2014, and while on trial for the offense, a second child, M.R., made an outcry of sexual assault against Bordelon during the trial, which resulted in a mistrial. Id. On November 15, 2015, Bordelon was re-indicted for continuous sexual abuse of D.B. and additionally indicted for aggravated sexual assault of M.R., along with three counts of aggravated assault with a deadly weapon for pointing a shotgun at D.B., his wife Priscilla, and D.B.’s uncle Carl Riley. Id. at 1, 4. The total bonds were set at $1,000,000. Id. at 1. The appellant filed a pretrial writ of habeas corpus seeking a bond reduction, which the trial court denied. Id. at 1. At the hearing, the State offered into evidence the probable cause affidavits supporting the arrest warrants. Id. at 3. The documentary evidence submitted into the record at the hearing revealed that the appellant began touching his daughter’s vagina when she was seven years old, penetrated her with his fingers and penis, and told her not to tell her mother, Priscilla. Id. at 4. With respect to the aggravated assault charges, the affidavit shows that after D.B. told Priscilla about the sexual abuse, the appellant expressed a desire to end his life and pointed a gun at D.B., Priscilla, and Carl before fleeing in his truck. Id. The evidence also showed that M.R. was preparing to testify for the defense when she outcried to the appellant’s trial counsel that the appellant also sexually abused her by penetrating her with his finger when she was six or seven years old. Id. Finally, one report entered into evidence at the hearing reflected the existence of a potential third victim alleging sexual abuse at the appellant’s hands, which was under investigation by law enforcement. Id. Ultimately, the appellate court held that the appellant 11 failed to meet his burden that, under the relevant factors, the trial court abused its discretion considering the nature of the charges, the potential punishments, and the safety of the victim. Id. at 8. We disagree with the State’s contention that Bordelon supports a conclusion that bail in this case is not excessive. As evidenced by the above discussion, the facts of Bordelon are extraordinary in that during the course of the original trial, another victim made an outcry, and a third victim outcried during the investigation into the second victim’s allegations. Id. at 1, 4. Moreover, the appellant in Bordelon threatened his daughter, D.B., the victim in the continuous sexual abuse case, his wife, and D.B.’s uncle with a shotgun after D.B. outcried. Id. Finally, the appellant faced a continuous sexual abuse charge, an aggravated sexual assault of a child charge, and three aggravated assault with a deadly weapon charges. Id. Greenwood is similarly distinguishable. See 2017 WL 5179962, at 4. On September 21, 2016, the appellant was indicted for continuous sexual abuse of a child, alleging that he perpetrated continuous sexual abuse of a child on or about September 1, 2007 through June 14, 2011. Id. at 1. The indictment further alleged that the appellant had previously been convicted of murder. Id. The appellant bonded out on the charge and was subsequently indicted on June 7, 2017 for indecency with a child, which allegedly occurred on February 7, 2017, during the time the appellant was out on bond for the continuous sexual abuse of a child charge. Id. The trial court set bail in the indecency case at $2,500,000. Id. The appellant filed an application for writ of habeas corpus seeking a bond reduction, which the trial court granted, reducing the bond to $1,000,000. Id. The trial court took judicial notice of both charges and stated on the record that it considered the factors set forth in Article 17.15, the nature of the offense and circumstances of both the continuous sexual abuse case and the indecency with a child case, and the safety of the victims and the community. Id.; TEX. CODE CRIM. PROC. art. 17.15. On appeal, the court noted that the appellant had previously been convicted of two counts of murder by strangling two females. Greenwood, 2017 WL 5179962, at 4. The court ultimately held that the appellant did not meet his burden to show that the bond was excessive in light of the evidence that the appellant had previously been convicted of murdering two women and committed the offense of indecency with a child while on bond for the offense of continuous sexual abuse of a child. Id. The State argues that the severity and nature of the charges create a risk to the community and the victims and Appellant’s access to an RV and $13,000 cash make him a flight risk. We 12 agree that the nature and severity of the charges favor a high bond, especially with respect to the continuous sexual assault of a child charge, given the punishment range for the offense. The allegations contained in the arrest warrant affidavit are very serious, and as the State notes, the Appellant faces the possibility of spending the rest of his life in prison. However, we cannot agree with the State that Appellant presents a flight risk based on the evidence in the record. The State offered no evidence that Appellant plans to flee if released on bond. Compare Clemons, 220 S.W.3d at 179 (defendant attempted to persuade wife to flee to Mexico with him and told several persons he would kill himself rather than go to prison). And, as previously discussed, there is no evidence that Appellant attempted to avoid being arrested on the warrants. The only evidence in the record regarding Appellant’s intentions if released on bond is Carsten’s testimony that Appellant plans to seek re-employment, return to her home, and consent to GPS monitoring if released on bond. Moreover, Appellant was born in and has lived in Smith County for most of his life. While Appellant has been revoked from a prior probation, the record is silent as to the circumstances of that violation. There are myriad reasons why a probationer can be revoked from probation; thus, this evidence does not support the inference that Appellant would fail to appear for his trial. And although Appellant spent some months in a state jail facility, the record does not demonstrate the offense for which he was jailed. 4 While we agree there are factors in this case, namely the severity of the offenses, the potential punishments, and the fact that Appellant is accused of sexually abusing two victims that support a higher bail amount, we cannot agree that the evidence supports a total bail amount of $1,500,000. We acknowledge that the appellant has a criminal history which includes a charge for evading arrest which is concerning, despite the age of the arrest. However, except for Bordelon, Bratcher, and Greenwood, in which there were extreme aggravating circumstances that are not present in this case, we are unaware of any cases supporting a bond in excess of $1,000,000 based upon the evidence adduced at the pretrial hearing and the relevant considerations. See, e.g., Ramirez-Hernandez, 642 S.W.3d at 925 ($1,000,000 bond excessive for three counts of aggravated sexual assault of child despite fact that appellant was Mexican citizen without a legal status in United States); Ex parte Williams, No. 12-21-00032-CR, 2021 WL 2816404, at 4 (Tex. App.—Tyler June 30, 2021, no pet.) (mem. op., not designated for 4 The TCIC/NCIC print-off shows that Appellant served a state jail sentence of approximately six months beginning in late 2006, however the entry does not state what offense the Appellant was convicted of and the print- off does not state the disposition of the evading arrest charge for which he was arrested in 2005. 13 publication) (reversing total bail of $600,000 for eight counts of indecency with a child and sexual assault of a child when no proof appellant was flight risk); Ex parte Turner, No. 12-20- 00230-CR, 2021 WL 1916832, at 1 (Tex. App.—Tyler May 12, 2021, no pet.) (mem. op., not designated for publication) (reversing total bail of $500,000 for third degree felony of unlawful restraint involving young children); Ex parte Rean, No. 03-09-00032-CR, 2009 WL 2902707, at 8 (Tex. App.—Austin Aug. 26, 2009, no pet.) (mem. op., not designated for publication) (affirming bail of $250,000 in sexual assault case). As previously discussed, bonds in excess of seven figures are almost never required, even in capital cases. See Flores, 2021 WL 3922919, at 4. Accordingly, after reviewing the record in this case and considering the factors in Article 17.15, we conclude the trial court abused its discretion in denying Appellant’s request for pre- trial reduction of bond and hold the amount of Appellant’s bail is unsupported by the evidence and therefore excessive. We sustain Appellant’s sole issue. DISPOSITION Having sustained Appellant’s sole issue, we reverse and remand this case to the trial court for further proceedings consistent with this opinion. JAMES T. WORTHEN Chief Justice Opinion delivered October 31, 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. 14 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT OCTOBER 31, 2022 NO. 12-22-00209-CR EX PARTE: LANCE CHARLES CONKLIN Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 22-1306-C) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, because it is the opinion of this Court that there was error in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that the judgment be reversed and the cause remanded to the trial court for further proceedings in accordance with the opinion of this Court; and that this decision be certified to the court below for observance. James T. Worthen, Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT OCTOBER 31, 2022 NO. 12-22-00210-CR EX PARTE: LANCE CHARLES CONKLIN Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 22-1307-C) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, because it is the opinion of this Court that there was error in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that the judgment be reversed and the cause remanded to the trial court for further proceedings in accordance with the opinion of this Court; and that this decision be certified to the court below for observance. James T. Worthen, Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481353/	[Cite as Gault v. Medina Cty. Court of Common Pleas Clerk, 2022-Ohio-3955.] IN THE COURT OF APPEALS OF OHIO NINTH APPELLATE DISTRICT MEDINA COUNTY NATHAN GAULT, Plaintiff-Appellant, v. CLERK, MEDINA COUNTY COURT OF COMMON PLEAS et al., Defendants-Appellees. OPINION AND JUDGMENT ENTRY Case No. 21 CA 0082-M Civil Appeal from the Court of Common Pleas of Medina County, Ohio Case No. 20 CIV 0811 BEFORE: Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges of the Seventh District Court of Appeals, Sitting by Assignment. JUDGMENT: Reversed, Vacated and Remanded. Atty. Nicole T. Fiorelli, Atty. Frank A. Bartela, Atty. Patrick J. Perotti, Dworken & Bernstein Co., L.P.A., 60 South Park Place, Painesville, Ohio 44077 for Plaintiff-Appellant and –2– Atty. Terence L. Williams, Atty. John T. McLandrich, Atty. Frank H. Scialdone, Mazanec, Raskin & Ryder Co., L.P.A., 100 Franklin’s Row, 34305 Solon Road, Cleveland, Ohio 44139 for Defendants-Appellees. Dated: November 7, 2022 Robb, J. {¶1} Appellant, Nathan Gault, appeals the November 5, 2021 decision issued by the Medina County Court of Common Pleas granting Appellees’ motion for judgment on the pleadings. Appellant’s class-action complaint contends Appellees, the Medina County Common Pleas Clerk of Courts, the Medina County Treasurer, and the Medina County Board of Commissioners, misconstrued certain sections of the Ohio Revised Code and overcharged litigants court costs and fees consistent with their misconstruction. We reverse and remand. Statement of the Case {¶2} Appellant, Nathan Gault, for himself and others similarly situated, filed a class-action complaint in the Medina County Court of Common Pleas in October 2020. As defendants, he named the Medina County Common Pleas Clerk of Courts, the Medina County Treasurer, and the Medina County Board of Commissioners (collectively hereafter Appellees). Appellant identified three causes of actions claiming he was overcharged for unauthorized fees and costs in his separate divorce proceeding, like other individuals similarly situated, based on Appellees’ misconstruction of several sections of Ohio Revised Code Chapter 2303. {¶3} First, Appellant’s complaint alleged the overall charges for computerization of the clerk’s office is in excess of its statutory authority. He avers he was a party in the Medina County Court of Common Pleas, Domestic Relations Division, case captioned Amanda Gault v. Nathan Gault, Case No. 14DR0527, and at the conclusion of that case, Appellees charged Appellant the costs set forth in the bills of cost attached to his complaint and Appellant paid these fees and costs detailed in the exhibits. Because Appellees allegedly overcharged Appellant and others in the class in excess of the amount permitted by statute, Appellant alleged he and the other potential class members were damaged in the amount of the overcharged fees and costs plus interest. Case No. 21 CA 0082-M –3– {¶4} For count two, Appellant contends Appellees charged him a clerk computer operation fee in excess of the permissible one dollar. He contends Appellees similarly overcharged other members of the proposed class and he and the other unnamed class members were damaged as a result. {¶5} Last, Appellant asserted an unjust enrichment claim contending Appellees overcharged him, and other proposed class members, and Appellees were unjustly enriched as a result of the overcharging. (October 19, 2020 Complaint.) {¶6} In response, Appellees filed an answer and moved for judgment on the pleadings raising several alternative arguments. Appellees’ first argument in their Civ.R. 12(C) motion urged the trial court to dismiss the lawsuit since the issues raised were barred by res judicata. Appellees likewise asserted that the Medina County Court of Common Pleas was unable to consider and address Appellant’s complaint because Appellant was attempting to collaterally attack the domestic relations court’s final judgment via separate litigation. They asserted any attack on that court’s judgment had to be sought from the court in the case that imposed the fees and costs. Appellees argued because Appellant failed to appeal the issue in his domestic relations case, it was too late to do so in these separate proceedings. Moreover, they claimed because Appellant acknowledged paying the fees he was now challenging, his arguments are moot or waived. (January 13, 2021 Motion for Judgment on the Pleadings.) {¶7} Alternatively, Appellees asserted Appellant’s claims failed as a matter of law based on the plain language of the statutes authorizing the clerk of courts to award court costs and computerization fees and Appellant’s statutory interpretations were incorrect. Last, Appellees argued the Medina County Clerk of Courts and the Medina County Treasurer were not capable of being sued since they are not corporate entities, and as such, the claims against them should fail. (January 13, 2021 Motion for Judgment on the Pleadings.) {¶8} Appellant opposed and argued in part he was not required to challenge the fee issue in the underlying domestic relations case because these fees were not assessed via the court’s final judgment but were added well after the final judgment was issued and after the time for an appeal had passed. Case No. 21 CA 0082-M –4– {¶9} Appellant filed his first amended class action complaint in October of 2021 per the trial court’s directive. It identifies the same three claims for relief. In addition, Appellant contended the clerk of courts charged him more than $500 in improper fees and surmised the clerk overcharged the other potential class members collective charges in excess of $500,000. Appellant’s demand for judgment sought in part reimbursement the amount of money he paid in excess of what was allowed by law based on Appellees’ misconstruction of the applicable statutes and overcharging. The exhibits to the complaint consist of three bills of costs from his divorce case, Case Number 14DR0527. The first Bill of Costs, Exhibit A, is dated October 23, 2015. The second Bill of Costs, Exhibit B, is dated October 12, 2017. And the third Bill of Costs, Exhibit C, is dated October 7, 2019. (October 1, 2021 First Amended Complaint.) {¶10} The trial court granted Appellees’ motion for judgment on the pleadings, holding in part: Plaintiff filed his complaint seeking a money recovery against the Medina County Clerk of Courts and related County officials on the grounds he was overcharged in court costs in his divorce action * * . The divorce action was finalized * * 10/13/15 with subsequent bills of costs filed 10/12/17 and 10/9/19 according to the exhibits to the complaint. Plaintiff claims the Clerk misinterprets R.C. 2303.201 in calculating certain computerization fees under R.C. 2303.201 as part of court costs. Defendants seek a Rule 12(C) judgment on the pleadings * * * upon the ground, inter alia, the amount of court costs properly chargeable in his divorce case is res judicata. In other words, Plaintiff was required to raise the issue of proper calculation of costs in his divorce action or appeal thereof[,] and failing to do so, Plaintiff is foreclosed from raising it now in this separate action. Review of Ohio law * * * convinces this Court that Plaintiff was required to challenge his court costs in the prior action, and the doctrine of res judicata prevents him from doing so now in this action. *** Case No. 21 CA 0082-M –5– [The] * * * imposition of costs and responsibility for their payment is in the sole discretion of the trial court entering the judgment. * * * In both civil and criminal cases[,] it is the trial court that imposes the requirement that court costs be paid and determines who shall pay them; this is not the function of the Clerk of Courts. “Under the doctrine of res judicata, a final judgment or decree upon the merits is deemed to be conclusive of the issues addressed in that case and bars a subsequent action between the parties to the previous suit, or those in privity with them, based on the same cause of action. Columbus v. Union Cemetery Assoc. (1976), 45 Ohio St.2d 47, 50. Res judicata applies to issues actually presented in the original action and to issues that could have been presented for adjudication. McGinnis v. Donatelli (1987), 36 Ohio App.3d 120, 121. The doctrine of res judicata is applied to prevent repeat attacks upon a final judgment. Stromberg v. Bd. of Edn. of Bratenahl (1980), 64 Ohio St.2d 98, 100, 413 N.E.2d 1184.” Indian Creek Local School Dist. Bd. of Educ. v. Indian Creek Education Ass'n, 1996 Ohio App. Lexis 464 (7th Dist.). * * * The Clerk tabulates the costs owing and has the authority to institute legal collection actions for same, but as noted above, all court costs in Ohio are imposed by the Court’s orders and collected by the Court’s usual means of execution and process. * * * Court costs are inextricably linked to the case in which they are imposed. *** There is no legal basis in Ohio law to consider imposition of the duty to pay court costs (or the entry of a judgment in the amount of courts costs) as anything other than the act of the court having jurisdiction of the underlying litigations. As a result, the doctrine of res judicata applies. Case No. 21 CA 0082-M –6– Judgment entered in favor of Defendants and against Plaintiff’s complaint. * * * (November 5, 2021 Judgment.) {¶11} The trial court found the imposition of costs and fees and the responsibility for the payment of these fees and costs is the responsibility of the trial court when entering the judgment. Consequently, it held to challenge the imposition of these costs, one must appeal from the final order or judgment in that action. And since Appellant failed to appeal the final order in his underlying case ordering him to pay costs, he was precluded from doing so in separate proceedings. Thus, the trial court entered judgment in favor of Appellees. {¶12} Appellant raises one assignment of error on appeal. Assignment of Error {¶13} Appellant’s sole assignment of error asserts: “The trial court erred in granting defendant-appellees’ motion for judgment on the pleadings on the basis of res judicata where the court costs were not journalized for purposes of appeal.” {¶14} Civ.R. 12(C) motions are for resolving questions of law. State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996). Thus, our review of a judgment on the pleadings is de novo. New Riegel Local School Dist. Bd. of Edn. v. Buehrer Group Architecture & Eng., Inc., 157 Ohio St.3d 164, 2019-Ohio-2851, 133 N.E.3d 482, ¶ 8. {¶15} When considering a motion for judgment on the pleadings, a court’s review is limited to the allegations in the pleadings and the documents attached and incorporated into the pleadings. Green Tree Servicing, L.L.C. v. Olds, 9th Dist. Summit No. 27297, 2015-Ohio-3214, ¶ 22. “Dismissal is appropriate under Civ.R. 12(C) when (1) the court construes as true, and in favor of the nonmoving party, the material allegations in the complaint and all reasonable inferences to be drawn from those allegations and (2) it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief.” Reister v. Gardner, 164 Ohio St.3d 546, 2020-Ohio-5484, ¶ 17. {¶16} Appellant contends his claim does not fail as a matter of law for two reasons. First, the prior action in which the disputed costs were imposed was between Appellant Case No. 21 CA 0082-M –7– and his ex-wife and did not involve the Medina County Clerk of Courts. Thus, there was a lack of privity. {¶17} Second, Appellant also emphasizes he is not challenging the domestic relations court’s authority and act of imposing court costs and fees against him. Instead, he challenges whether Appellees lawfully determined the fees and costs in accordance with governing laws, and because the amount and Appellees’ tabulation were not incorporated via a final judgment or rendered within the time to appeal the domestic relations court’s judgment imposing these fees and costs, Appellant should not be precluded from disputing them now. {¶18} Appellant contends Appellees incorrectly construed the applicable law and overcharged him. He argues he was unable to file a direct appeal as to Appellees’ interpretation and calculation of the amount of his tabulated court costs and fees because the actual total amount of costs and fees were not included in a final order from which he could have pursued a direct appeal. {¶19} Because res judicata does not apply and bar his claims, Appellant asserts his class action complaint is viable and seeks reimbursement of the overcharged fees and costs imposed upon him and similarly situated individuals. {¶20} In concluding Appellant’s claims are barred by res judicata, the trial court found in part that because the issue of costs and fees could have been litigated in the prior litigation, Appellant was precluded from addressing these issues in a subsequent lawsuit based on the doctrine of res judicata. Indian Creek Local School Dist. Bd. of Educ. v. Indian Creek Education Ass'n, 7th Dist. Jefferson No. 94-J-76, 1996 WL 65933, 2. {¶21} We disagree with the court’s conclusion. Although we agree that if Appellant were challenging the requirement that he was ordered to pay costs and fees, then the matter was for the domestic relations court to decide and would have had to be raised via direct appeal from the final judgment. Appellant does not, however, seek to overturn the fact that he was ordered and required to pay fees and costs. Instead, Appellant takes issue with the clerk of court’s determination of the amount he owed. This amount was not incorporated in the final judgment and was not ascertainable during the time to appeal. Case No. 21 CA 0082-M –8– {¶22} According to the pleadings, this issue could not have been adjudicated during the domestic relations proceedings, and thus, res judicata does not apply. Indian Creek Local School Dist. Bd. of Educ. v. Indian Creek Education Ass'n, 7th Dist. Jefferson No. 94-J-76, 1996 WL 65933, 2, citing Stromberg v. Bd. of Ed. of Bratenahl, 64 Ohio St.2d 98, 100, 413 N.E.2d 1184 (1980). Moreover, res judicata bars a subsequent action between the parties to the previous suit, or those in privity with them, based on the same cause of action. Id. Appellant’s complaint seeks the repayment of the allegedly overcharged court costs and fees from Appellees based on Appellees’ alleged misinterpretation of the applicable statutes. Appellant is not seeking reimbursement from his ex-wife, and Appellees were not parties to prior domestic relations proceedings. {¶23} Appellant seeks a determination that he and other individuals have been overcharged for court costs and fees, and as a remedy Appellant seeks reimbursement of the amount he was allegedly overcharged plus interest. Appellant challenges Appellees’ determination of the amount he owed and whether Appellees misconstrued the applicable statutes—not whether Appellees had the authority to impose court costs and fees. When a citizen is allegedly overcharged money by a government entity, the person can generally file suit for reimbursement or equitable restitution in a court of common pleas. See, e.g., Santos v. Ohio Bur. of Workers' Comp., 101 Ohio St.3d 74, 2004-Ohio-28, 801 N.E.2d 441 (when discussing sovereign immunity the court recognizes plaintiff could sue Ohio Bureau of Workers' Compensation in the common pleas court for unjust enrichment); Barrow v. New Miami, 12th Dist. Butler, 2018-Ohio- 217, 104 N.E. 3d 814 (unjust enrichment against the city for improper collection of traffic fines); Barton v. Cnty. of Cuyahoga, 8th Dist. Cuyahoga No. 105008, 2017-Ohio-7171, ¶ 27 (addressing sovereign immunity when a claim seeks equitable relief, as opposed to money damages); Ohio Hosp. Assn. v. Ohio Dept. of Human Services, 62 Ohio St.3d 97, 579 N.E.2d 695 (1991) (finding sovereign immunity inapplicable where requested relief is reimbursement for amounts unlawfully withheld, as opposed to money damages). {¶24} Upon taking the allegations in Appellant’s complaint as true and construing all reasonable inferences drawn from those allegations in favor of Appellant, it does not appear beyond a doubt that he can prove no set of facts entitling him to the relief requested. Civ.R. 12(C); Reister v. Gardner, 164 Ohio St.3d 546, 2020-Ohio-5484, ¶ 17. Case No. 21 CA 0082-M –9– Given the liberal pleading standard that applies when addressing a motion to dismiss, the trial court erred by dismissing Appellant’s complaint. Conclusion {¶25} According to the pleadings, Appellant is not challenging Appellees’ authority to impose costs and fees and require payment, but contests whether Appellees lawfully exercised its authority under the applicable statutes and correctly interpreted the governing law and charged Appellant in a legal manner. Neither the total amount Appellant owed nor Appellees’ methodology for determining the amount he owed were ascertainable via the domestic relations’ final judgment. And Appellees were not parties to the prior proceedings and not in privity with them. Consequently, res judicata does not apply, and the trial court erred by granting Appellees’ motion for judgment on the pleadings. We reverse and vacate the trial court’s November 5, 2021 decision and remand for further proceedings. Waite, J., concurs. D’Apolito, J., concurs. Case No. 21 CA 0082-M [Cite as Gault v. Medina Cty. Court of Common Pleas Clerk, 2022-Ohio-3955.] For the reasons stated in the Opinion rendered herein, the assignment of error is sustained and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Medina County, Ohio, is reversed. The trial court’s November 5, 2021 decision is vacated. We hereby remand this matter to the trial court for further proceedings according to law and consistent with this Court’s Opinion. Costs to be taxed against the Appellees. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. JUDGE CAROL ANN ROBB SEVENTH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT JUDGE CHERYL L. WAITE SEVENTH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT JUDGE DAVID A. D’APOLITO SEVENTH DISTRICT COURT OF APPEALS, SITTING BY ASSIGNMENT NOTICE TO COUNSEL This document constitutes a final judgment entry.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481183/	Electronically Filed Supreme Court SCPW-XX-XXXXXXX 04-NOV-2022 01:58 PM SCPW-XX-XXXXXXX Dkt. 27 ODDP IN THE SUPREME COURT OF THE STATE OF HAWAIʻI ________________________________________________________________ GREGORY WILLIAMSON, Petitioner, vs. THE HONORABLE JAMES H. ASHFORD, Judge of the Circuit Court of the First Circuit, Respondent Judge, and ALLIANCE PERSONNEL, INC., Respondent. ________________________________________________________________ ORIGINAL PROCEEDING (CIV. NO. 13-1-1840) ORDER DENYING PETITION FOR WRIT OF MANDAMUS (By: Recktenwald, C.J., Nakayama, McKenna, and Wilson, JJ. and Circuit Judge Johnson, assigned by reason of vacancy) Upon consideration of the “Emergency Supplement Notification Addition to the Emergency Third Supplement Mandamus Writ to the Emergency Non-Hearing Motion of August 25, 2020,” which was filed as a petition for writ of mandamus on October 24, 2022, the documents attached and submitted in support, and the record, Petitioner has not demonstrated a clear and indisputable right to relief from this court. See Kema v. Gaddis, 91 Hawaiʻi 200, 204, 982 P.2d 334, 338 (1999). Moreover, Judgment in Civil No. 13-1-1840 was filed on December 15, 2015, and Petitioner did not file an appeal of that Judgment. The first petition for writ of mandamus in this original proceeding was denied by order filed on September 4, 2020. Approximately nine months later, on June 15, 2021, Petitioner submitted another document that was filed as a second petition for writ of mandamus in this same original proceeding. This second petition was denied by order filed on June 17, 2021. Approximately one year later, Petitioner filed the subject third petition for writ of mandamus, which this court denies by this order. This original proceeding is closed. Accordingly, IT IS HEREBY ORDERED that the petition is denied. IT IS HEREBY FURTHER ORDERED that the appellate clerk shall process the petition without payment of the filing fee. IT IS HEREBY FINALLY ORDERED that the appellate clerk’s office shall not accept any further filings in this closed proceeding. DATED: Honolulu, Hawaii, November 4, 2022. /s/ Mark E. Recktenwald /s/ Paula A. Nakayama /s/ Sabrina S. McKenna /s/ Michael D. Wilson /s/ Ronald G. Johnson 2	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481207/	Supreme Court of Texas ══════════ No. 21-0775 ══════════ Colton Lester, Petitioner, v. Cecil E. Berg, Seth Johnson, Johnson Law Office, PLLC, Dustin Andreas, and Phillips and Andreas, PLLC, Respondents ═══════════════════════════════════════ On Petition for Review from the Court of Appeals for the Ninth District of Texas ═══════════════════════════════════════ JUSTICE BUSBY, concurring in the denial of the petition for review. Colton Lester was charged with two separate offenses of online solicitation of a minor, and he pleaded guilty to one count of attempted solicitation under a subsection of the statute that had been declared unconstitutional. After obtaining habeas relief, he sued his criminal defense attorneys for malpractice. The trial court granted summary judgment for the attorneys, and the court of appeals affirmed. The court of appeals took the position that the Court of Criminal Appeals’ decision granting habeas relief in Ex parte Lester and our Court’s analysis granting wrongful-imprisonment compensation in In re Lester were wrong, based on the clerk’s record as the court of appeals parsed it.1 Although I agree with my colleagues that this case does not meet the criteria for granting discretionary review, our denial of Lester’s petition is not an endorsement of the court of appeals’ undertaking, or of its conclusion. Lester pleaded guilty to attempted online solicitation of a minor. The trial court ordered deferred adjudication of a “third-degree felony” under Texas Penal Code subsection “33.021(f).”2 Subsection (f) relates to two crimes, subsections 33.021(b) and 33.021(c), which are variations of an offense entitled “online solicitation of a minor.” TEX. PENAL CODE § 33.021. An offense under subsection (c) is a second-degree felony, and an offense under subsection (b) is a third-degree felony.3 Though the State charged Lester with two offenses, Lester pleaded guilty to only one: a third-degree felony corresponding to an offense under subsection (b). The order of deferred adjudication reflects as much, as Lester was found guilty of a third-degree felony. The Court 1No. 09-19-00305-CV, 2021 WL 3196530, at 11 (Tex. App.—Beaumont July 29, 2021) (citing Ex parte Lester, No. WR-88, 227-01, 2018 WL 1736686 (Tex. Crim. App. Apr. 11, 2018) (per curiam), and In re Lester, 602 S.W.3d 469 (Tex. 2020)). 2 Id. at 2–3. 3 An offense under Subsection (b) is a felony of the third degree, except that the offense is a felony of the second degree if the minor is younger than 14 years of age or is an individual whom the actor believes to be younger than 14 years of age at the time of the commission of the offense. An offense under Subsection (c) is a felony of the second degree. TEX. PENAL CODE § 33.021(f). 2 of Criminal Appeals so held, explicitly stating that Lester was convicted of an offense under subsection (b). Ex parte Lester, 2018 WL 1736686, at 1 (“Applicant was convicted of attempted online solicitation of a minor and sentenced to imprisonment. TEX. PENAL CODE § 33.021(b).”). At the time Lester committed his crime, subsection (b) had been declared unconstitutional.4 For that reason, the Court of Criminal Appeals granted Lester’s application for a writ of habeas corpus, declaring his conviction under subsection (b) “not valid.” Id. Relying on that decision, our Court determined that Lester could seek compensation for wrongful imprisonment under the Tim Cole Act. In re Lester, 602 S.W.3d at 475. In its analysis, the court of appeals observed that Lester’s guilty plea also “fits the ‘solicit’ verbiage of section 33.021(c), which has . . . never been held unconstitutional.” 2021 WL 3196530, at 10. The court of appeals theorized that Lester might have been convicted under section 33.021(c), which had no constitutional infirmity. The court of appeals also stated that the “appellate record does not support a finding that Lester’s conduct was not a crime at the time it was committed,” venturing that our Court’s opinion in In re Lester “would be incorrect based on the record now before us.” Id. at 11. The flaw in this analysis is that Lester was not convicted of any crime save an unconstitutional one. As the Court of Criminal Appeals determined, Lester’s conviction under subsection (f) was to an offense 4Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). The Legislature later amended the statute. Act of May 5, 2015, 84th Leg., R.S., ch. 61, § 2, 2015 Tex. Gen. Laws 1036, 1036. 3 under subsection (b), not (c). Ex parte Lester, 2018 WL 1736686, at 1. For that reason alone, the Court of Criminal Appeals granted habeas relief.5 The Court of Criminal Appeals has the final word on matters of criminal law.6 In its opinion, the court of appeals should have adhered to the pronouncements of the Court of Criminal Appeals in matters of criminal law, as well as to this Court’s decision in In re Lester.7 J. Brett Busby Justice OPINION FILED: November 4, 2022 5 A concurring judge would have granted relief based on ineffective assistance of counsel instead. 2018 WL 1736686, at *2 (Yeary, J., concurring). 6 The Texas Constitution provides that the “Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of whatever grade . . .” TEX. CONST. art. V § 5(a) (emphasis added). 7 “It is fundamental to the very structure of our appellate system that this Court’s decisions be binding on the lower courts.” Dall. Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex. 2008). “[I]n reaching their conclusions, courts of appeals are not free to disregard pronouncements from this Court, as did the court of appeals here.” In re K.M.S., 91 S.W.3d 331, 331 (Tex. 2002) (citing Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989) (“This court need not defend its opinions from criticism from courts of appeals; rather they must follow this court’s pronouncements.”)). 4	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481215/	Opinion filed November 3, 2022 In The Eleventh Court of Appeals __________ No. 11-21-00113-CR __________ HAROLD EDWARD MORGAN, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law Erath County, Texas Trial Court Cause No. 48859 MEMORANDUM OPINION Harold Edward Morgan, Appellant, was charged with the offense of assault causing bodily injury, a Class A misdemeanor. See TEX. PENAL CODE ANN. § 22.01 (West Supp. 2022). A jury found Appellant guilty and the trial court assessed punishment at confinement for one year in the county jail. Appellant challenges his conviction in a single issue contending that the trial court abused its discretion in refusing to permit Appellant to question the complainant about a civil lawsuit that she had filed against Appellant. Appellant asserts that the trial court’s ruling violated Rule 613(b) of the Texas Rules of Evidence and Appellant’s Sixth Amendment right to confront and cross-examine witnesses against him. We affirm. Factual and Procedural History On June 10, 2020, Diana Soriano had returned home from work when Appellant knocked on the door. The house where she resided belonged to Appellant. Appellant yelled at Soriano about a water bill, but then he left. However, Appellant returned holding an axe in one hand and a pickaxe in the other. Appellant pushed his way past Soriano’s husband, Guillermo Zaragoza Gonzales, and then attacked Soriano. Soriano suffered a bruise on her chest and a wound on her lower abdomen from the pickaxe. Gonzalez subdued Appellant, and Soriano called 9-1-1. Appellant pursued a trial strategy of attacking Soriano’s credibility. To demonstrate Soriano’s bias against him, Appellant attempted to question Soriano about a civil lawsuit she filed against him. She alleged that in exchange for Soriano’s repair of the house, Appellant had promised to give her the house. According to Soriano, she “invested thousands and thousands of dollars into that home” and “thought it was [hers].” After Appellant’s pickaxe assault on June 10, Soriano no longer wanted to live in the house, and she endeavored to sell it. It was then that she learned that Appellant had never formally signed over the house to her. She hired an attorney after the assault to present a deed to Appellant to execute while he was confined in jail awaiting trial on the assault charge. At trial, Appellant was allowed to ask Soriano about her disputed claim to the house and about her attorney pressing Appellant to sign the deed while in jail. But the trial court did not allow Appellant to inquire into the specifics of Soriano’s civil lawsuit against Appellant. Appellant’s sole issue on appeal is that he was unable to effectively cross- examine Soriano about her civil lawsuit, which he claims was filed to get him to execute the deed presented to him in jail by Soriano’s lawyer. The implication was 2 that Appellant’s refusal to execute the deed would result in reprisals in the tone and content of Soriano’s testimony. According to Appellant, these facts demonstrated Soriano’s potential bias and motive to give false and/or exaggerated testimony against Appellant in his assault trial. Accordingly, Appellant contends that the trial court should have permitted him to ask about the specifics of the civil lawsuit. The trial court allegedly “denied him the right to effectively confront the principal witness against Appellant.” Standard of Review for Exclusion of Evidence We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). An abuse of discretion does not occur unless the trial court acts “arbitrarily or unreasonably” or “without reference to any guiding rules and principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial court’s ruling unless the determination “falls outside the zone of reasonable disagreement.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). The scope of appropriate cross-examination is not unlimited, and the trial court generally has “wide discretion in limiting the scope and extent of cross-examination.” Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009); accord Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley v. State, 493 S.W.3d 77, 93 (Tex. Crim. App. 2016); De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). Confrontation and the Sixth Amendment – No Preservation of Error “Preservation of error is a systemic requirement that a first-level appellate court should ordinarily review on its own motion.” Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997); accord Archie v. State, 221 S.W.3d 695, 698 (Tex. 3 Crim. App. 2007); Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005). Before considering the trial court’s ruling to exclude evidence we must first determine whether Appellant preserved his complaint for appellate review. See Darcy v. State, 488 S.W.3d 325, 328 (Tex. Crim. App. 2016); Bekendam v. State, 441 S.W.3d 295, 299 (Tex. Crim. App. 2014). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Darcy, 488 S.W.3d at 327; Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Wilson v. State, 311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010). Rule 103(a)(2) of the Texas Rules of Evidence, which limits the scope of issues that may be appealed when evidence is excluded, and Rule 33.1(a) of the Texas Rules of Appellate Procedure, which governs error preservation generally, operate together with respect to error preservation regarding a trial court’s decision to exclude evidence. See Golliday v. State, 560 S.W.3d 664, 668–69 (Tex. Crim. App. 2018) (citing Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005)). The explanation given at trial by the proponent of the evidence as to why the evidence is admissible must match the complaint urged on appeal. Reyna, 168 S.W.3d at 177–79; see Golliday, 560 S.W.3d at 670–71; see also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is preserved depends on whether the complaint on appeal comports with the complaint made at trial.”). Here, Appellant argues that the limitation of his cross-examination with regard to Soriano filing a civil suit against him violated his constitutional right of confrontation. See U.S. CONST. amend. VI. However, at trial, when Appellant’s trial counsel sought to question Soriano about the suit, he explained to the trial court that the evidence would go toward her “credibility” and “motive to fabricate a story.” He never raised a constitutional argument for admitting the evidence. Nor did he mention the right of confrontation. Similarly, Appellant’s motion for new trial is 4 devoid of confrontation and Sixth Amendment complaints. Because Appellant did not articulate his right of confrontation, the trial court never had the opportunity to rule on this rationale. See Lopez v. State, No. 03-18-00713-CR, 2020 WL 3468149, at 3 (Tex. App.—Austin June 19, 2020, no pet.) (mem. op., not designated for publication). In our review of the record, we find that Appellant never expressed any confrontation complaint to the trial court. See, e.g., Golliday, 560 S.W.3d at 670–71 (to preserve argument that exclusion of defensive evidence violates constitutional principles, the defendant must state objection with sufficient specificity to make the trial court aware of constitutional grounds). Evidence of a Civil Suit Filed Generally, the scope of cross-examination may, but does not always, include questions regarding civil suits between witnesses and defendants. See Shelby v. State, 819 S.W.2d 544, 545 (Tex. Crim. App. 1991); Cox v. State, 523 S.W.2d 695, 700 (Tex. Crim. App. 1975); Blake v. State, 365 S.W.2d 795, 796 (Tex. Crim. App. 1963). But see Hoyos v. State, 982 S.W.2d 419, 421–22 (Tex. Crim. App. 1998) (holding that trial court did not err in prohibiting cross-examination of the complainant regarding a civil suit against an apartment complex where robbery occurred); Baker v. State, No. 01-12-00554-CR, 2013 WL 2146715, at 2 (Tex. App.—Houston [1st Dist.] May 16, 2013, pet. ref’d) (mem. op., not designated for publication) (holding that the trial court did not abuse its discretion when it limited cross-examination beyond the existence of a divorce action between Baker and his wife and did not allow the question of whether a conviction in the criminal case would benefit his wife in the divorce proceedings). Once the basis of the civil suit and any pecuniary or other interest of the witness in the suit are known to the jury, it is not error to refuse to admit further details of the related civil proceedings. See Cox, 523 S.W.2d at 700. 5 An Offer of Proof–The Voir Dire Examination of Soriano “In order to preserve error regarding a trial court’s decision to exclude evidence, the complaining party must comply with Rule of Evidence 103 by making an ‘offer of proof’ which sets forth the substance of the proffered evidence.” Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009) (citing TEX. R. EVID. 103(a)(2)). A party may complain on appeal about a ruling excluding evidence if the error “affects a substantial right of the party” and the party “informs the court of [the evidence’s] substance by an offer of proof, unless the substance was apparent from the context.” TEX. R. EVID. 103(a). While Rule 103(a) does not require a question- and-answer format, “[c]ross-examination is a circumstance where the questions to be asked may be just as important as the answers to be received.” Moosavi v. State, 711 S.W.2d 53, 55 (Tex. Crim. App. 1986). An offer of proof may consist of a concise statement by trial counsel that includes a reasonably specific summary of the evidence and the relevance of the evidence, or the offer may be in question-and-answer form. Mays, 285 S.W.3d at 889–90. If in the form of a statement, the proffer “must include a reasonably specific summary of the evidence offered and must state the relevance of the evidence unless the relevance is apparent, so that the court can determine whether the evidence is relevant and admissible.” Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). “The primary purpose of an offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and harmful. A secondary purpose is to permit the trial judge to reconsider his ruling in light of the actual evidence.” Mays, 285 S.W.3d at 890 (quoting Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 103.3 (1993)). Failure to make an offer of proof, where the record does not show what the excluded testimony would have been or shown, waives the complaint for appellate 6 review. Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999) (citing Stewart v. State, 686 S.W.2d 118 (Tex. Crim. App. 1984)); see TEX. R. APP. P. 33.1. Appellant challenges the exclusion of two lines of questioning: (1) questions about Soriano’s hiring of a lawyer to present Appellant the deed while Appellant was confined in jail and (2) questions regarding the nature of the related civil suit for ownership of the house. In this regard, the trial court conducted two hearings and permitted a voir dire examination of Soriano outside the presence of the jury. During these hearings, trial counsel for Appellant argued to the trial court the relevance of Soriano’s post-assault civil lawsuit against Appellant and Soriano’s claim to title of the home and property based on an alleged oral agreement to deed the property to Soriano in exchange for improvements made thereto. While the trial court acknowledged that it should give wide latitude when it comes to evidence of bias or interest on the part of the complainant under Rule 613(b), the deed transfer was first requested by Soriano sometime after the assault and Appellant’s arrest. Appellant’s trial counsel responded to the trial court: [Soriano] shows up with her civil lawyer wanting [Appellant] to sign over his property, like a quid pro quo: Give me the property, I’ll back off. Don’t give me the property, I sue you in civil court and continue with these allegations. The State contended that Soriano’s civil suit did not “relat[e] to the facts of this case.” It was not a suit seeking reimbursement of Soriano’s hospital bills or damage to property as a result of the assault. Appellant’s trial counsel acknowledged that Soriano had not sued him “for hitting her with a pick axe” and that [i]t wasn’t a battery suit.” Further, the State argued that there was no direct evidence of a proposed offer by Soriano where she ever said, “[O]h, yeah, I’ll recant and say none of this happened in exchange for your signing over this deed.” The State asserted: “This altercation, this assault, had nothing to do with the civil lawsuit regarding a piece of property.” 7 In voir dire examination of Soriano, she testified that there was indeed an oral agreement that the house would be given to her if she fixed it up, that thousands of dollars were spent over two and a half years to repair the home, that there was no written contract, and that it was not until after the assault that she found out that the property had never been deeded to her by Appellant. Her civil lawsuit related to Appellant’s breach of the oral agreement to transfer ownership of the property. Rulings of the Trial Court The trial court ruled that it would allow Appellant’s trial counsel to ask Soriano how she came to live there and whether or not there was ever a deed prior to the assault but that, pursuant to Rule 403 of the Texas Rules of Evidence,1 Appellant could not address the details of the civil lawsuit. Appellant could make the point that there was some controversy regarding the home, this property, and the ownership of the property. The trial court acknowledged the need to give some leeway to Appellant to expose any interest, financial interest, motive, or ill will between Soriano and Appellant. The trial court went on to state: I’m going to let you ask about whatever the agreement [they had or] didn’t have. You can ask her whether there was a deed or not a deed, and after this occurred, was there a deed taken to the defendant and that’s it . . . . The trial court specifically ruled that it would not allow trial counsel to get into the civil lawsuit itself. Appellant’s trial counsel acknowledged that he understood the trial court’s ruling. He stated: “It’s one of those deals, if I think of a question that I think is -- I’ll approach before I ask something that I think may be subject to any exclusion that I think is necessarily admissible. I’ll stop at the deed being taken to the jail. If I go beyond that, I’ll --” to which the trial court responded, “Well, if you want to go 1 THE COURT: “Under 4.03 [sic], I’m going to keep that out . . . .” 8 beyond that, approach, and if I don’t allow it, then, when we break for lunch, you can put that -- you can make an offer of proof at that time.” Interestingly however, when the jury returned to the courtroom and the cross- examination of Soriano resumed, counsel for Appellant spent thirteen transcribed pages of questions on the record before ever getting into the dispute over ownership of the property and delivery of the deed. Trial counsel for Appellant then spent less than three pages of transcript to question Soriano with regard to the contested issues surrounding the property dispute. Soriano testified that Appellant gave Soriano the house in exchange for fixing it up to make it livable; that no deed was ever given to her; and that, after the incident, she did retain private counsel who presented a proposed deed of ownership to Appellant while he was confined in jail. No other relevant questions were propounded; Appellant’s trial counsel never approached the bench to obtain permission to proceed further in his cross-examination; and no offer of proof was made following cross-examination pursuant to the trial court’s invitation. Appellant was not precluded by the trial court from making any inferences therefrom in his closing argument: We also have to look at there is a property dispute going on. She hires a civil lawyer -- you saw him yesterday. Brady Pendleton -- to go out to the jail and try to get my client to sign over a house that he owns and some property based on some agreement that he gifted it to them, but there was no need for a deed and all until after this happened. Motive. As stated by the Texas Court of Criminal Appeals, “[a] secondary purpose [of an offer of proof] is to permit the trial judge to reconsider his ruling in light of the actual evidence.” Mays, 285 S.W.3d at 890 (quoting Goode et al., supra, § 103.3). It is the “secondary purpose” of an offer of proof that is concerning here. 9 The record reflects the trial court’s earnest efforts to determine the actual evidence being proffered so that it might reconsider its ruling as that evidence was elicited. While Appellant’s trial counsel endeavored to argue relevance during the two hearings, trial counsel did not follow through with the trial court’s invitation to approach the bench with additional questions that Appellant thought were “necessarily admissible” so that, as the cross-examination progressed, the trial court could reevaluate its rulings based on specific questions and specific answers. “It was the responsibility of the appellant to ensure that the substance of the evidence was placed into the record . . . .” Mays, 285 S.W.3d at 891. Other than the fact that Soriano followed up her claim to the property by filing a civil lawsuit, all other relevant information elicited in the voir dire examination of Soriano was ultimately permitted by the trial court in cross-examination and presented to the jury. Any pleadings, admissions, documents, or other questions about the details of the civil lawsuit were not pursued in Soriano’s voir dire examination, motion for new trial, or appellate brief and therefore are not preserved for our review. See Lopez, 2020 WL 3468149, at *3; see also TEX. R. EVID. 613(b)(4) (regarding inadmissibility of extrinsic evidence). Unfortunately, Appellant’s discussion with the trial court on the record does not provide us with a reasonably specific summary of the additional evidence that Appellant’s trial counsel wished to include about the civil suit. It did not allow the trial court to consider the specific questions or further wording contemplated by trial counsel and to consider, in context, whether the questions would or should be allowed. Because Appellant did not move forward with further questions brought to the bench, we cannot tell whether the trial court would have modified its rulings in light of further specific questions rather than something vaguely hypothetical. The restrictions imposed by the trial court were “reasonable,” and by the questions permitted, “[t]he possible animus, motive, or ill will” resulting from Appellant’s failure to deed the 10 property to Soriano was clearly evinced. See Billodeau v. State, 277 S.W.3d 34, 42– 43 (Tex. Crim. App. 2009) (citing London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987); TEX. R. EVID. 613(b)) (defendant’s cross-examination regarding bias issues is subject to reasonable restrictions by the trial court). Appellant Does Not Address The Trial Court’s Ruling Under Rule 403 The trial court’s ruling to exclude the details of the civil suit was expressly based on its balancing of the probative value of that evidence against one or more dangers under Rule 403 of the Texas Rules of Evidence. Even if evidence has some relevance, Rule 403 permits a trial court to exclude that evidence if the “probative value is substantially outweighed by a danger of . . . unfair prejudice.” TEX. R. EVID. 403. Evidence is unfairly prejudicial when it has “an undue tendency to suggest that a decision be made on an improper basis.” Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000) (quoting Montgomery, 810 S.W.2d at 389). Here, Appellant did not address the application of Rule 403 at trial, in its motion of new trial, or in its appellate brief. Recognizing that the trial court was in a superior position to gauge the impact of the evidence, we measure the trial court’s ruling against the rule 403 balancing criteria: (1) the inherent probative force of the evidence along with (2) the . . . need for the evidence against (3) any tendency of the evidence to suggest a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Wells v. State, 558 S.W.3d 661, 669 (Tex. App.—Fort Worth 2017, pet. ref’d) (citing Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006); Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)). 11 Notwithstanding that Appellant ignored any balancing review under Rule 403, we note that the factual basis behind the civil suit had been fully admitted before the jury, and therefore the inherent probative force of the evidence that a civil suit had subsequently been filed by Soriano was weak—as was Appellant’s need for that evidence. Further, in its discretion, the trial court could have perceived that under the circumstances, the significance of a civil suit and the post-assault sequence of events might confuse the jury or distract them from the main issues of the criminal proceeding. We conclude that the trial court did not abuse its discretion in excluding the fact of a filed civil suit. Other evidence—the assault itself and the failure to execute a deed for the property—provided the jury with adequate information to permit them to accept Appellant’s argument that Soriano’s trial testimony regarding the assault or its magnitude may have been motivated by bias or ill will. While Appellant’s complaint that he was prevented from introducing into evidence the civil lawsuit was preserved for appeal, we cannot hold that the trial court abused its discretion by excluding Appellant’s proffered evidence. Importantly, there is no dispute that the altercation was incited by a disagreement over a utility bill, not by Appellant’s failure to convey title to the house. So while the later filed civil suit for title to the property might be a matter of bias, its relationship to the crime was tangential, and the information was substantively cumulative to other evidence that was broadly presented to the jury anyway. Appellant’s closing argument that there may have been bias or ill will on Soriano’s part with regard to her testimony due to the deed dispute, while lightly argued, was not restricted by any ruling of the trial court. Here, the trial court allowed Appellant’s trial counsel to question Soriano as far as he wanted to, absent accepting the trial court’s invitation to approach the bench so that it might consider further questions that trial counsel thought to be “necessarily admissible.” The trial court did not act “arbitrarily or unreasonably” or “without reference to any guiding rules 12 and principles.” See Hill, 499 S.W.3d at 865. Nor did the trial court’s determination “fall[] outside the zone of reasonable disagreement.” See Johnson, 490 S.W.3d at 908. For all of the reasons above, we overrule Appellant’s sole issue on appeal. This Court’s Ruling We affirm the judgment of the trial court. W. BRUCE WILLIAMS JUSTICE November 3, 2022 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Trotter, J., and Williams, J. 13	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481182/	Case: 22-60148 Document: 00516534832 Page: 1 Date Filed: 11/04/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-60148 FILED November 4, 2022 Summary Calendar Lyle W. Cayce Clerk Kingy Ossarius Holden, Petitioner—Appellant, versus Warden S. Reiser, Respondent—Appellee. Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:20-CV-400 Before Stewart, Duncan, and Wilson, Circuit Judges. Per Curiam:* Kingy Ossarius Holden, federal inmate # 29356-001, was convicted in the Northern District of Alabama of, inter alia, being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). He filed a 28 U.S.C. § 2255 motion in that court challenging his § 922(g) conviction, which was denied. Following * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 22-60148 Document: 00516534832 Page: 2 Date Filed: 11/04/2022 No. 22-60148 the issuance of Rehaif v. United States, 139 S. Ct. 2191 (2019), Holden filed a petition under 28 U.S.C. § 2241 in the Southern District of Mississippi, where he is incarcerated, challenging the sufficiency of the evidence supporting his § 922(g) conviction. Concluding that Holden failed to satisfy the § 2255(e) “savings clause,” the district court dismissed the petition for lack of jurisdiction. Holden now appeals, and we affirm. A prisoner may, pursuant to the § 2255(e) “savings clause,” challenge the basis of his federal custody in a § 2241 petition if he shows that the remedy under § 2255 “is inadequate or ineffective to test the legality of his detention.” § 2255(e); Reyes-Requena v. United States, 243 F.3d 893, 901 (5th Cir. 2001); Pack v. Yusuff, 218 F.3d 448, 452 (5th Cir. 2000). “[T]he savings clause of § 2255 applies to a claim (i) that is based on a retroactively applicable Supreme Court decision which establishes that the petitioner may have been convicted of a nonexistent offense and (ii) that was foreclosed by circuit law at the time when the claim should have been raised in the petitioner’s trial, appeal, or first § 2255 motion.” Reyes-Requena, 243 F.3d at 904. In Rehaif, the Supreme Court held that to convict a defendant under § 922(g), the Government must prove, relevantly, that the defendant knew he belonged to the pertinent category of persons barred from possessing a firearm. Rehaif, 139 S. Ct. at 2200. Holden neither avers that he was unaware of his prohibited status as a felon at the time he possessed the relevant firearm nor points to any evidence or theory supporting a finding that he was unaware of his prohibited status. See Abram v. McConnell, 3 F.4th 783, 785-86 (5th Cir. 2021). In fact, he stipulated at trial to having prior felony convictions, which is “sufficient evidence to establish that he knew he was a felon” under Rehaif. United States v. Kieffer, 991 F.3d 630, 635 (5th Cir.), cert. denied, 142 S. Ct. 297 (2021). Consequently, Holden fails to show that the district 2 Case: 22-60148 Document: 00516534832 Page: 3 Date Filed: 11/04/2022 No. 22-60148 court’s savings clause determination was error. See Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). The judgment dismissing the § 2241 petition for lack of jurisdiction is AFFIRMED. 3	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481221/	NO. 12-22-00111-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN THE INTEREST OF § APPEAL FROM THE S.A. AND R.T., § COUNTY COURT AT LAW NO. 2 CHILDREN § ANGELINA COUNTY, TEXAS MEMORANDUM OPINION S.T. appeals the termination of her parental rights and argues that (1) there is no evidence or factually insufficient evidence to prove beyond a reasonable doubt that continued custody of R.T. by S.T. is likely to result in serious physical or emotional damage to R.T.; (2) there is factually insufficient evidence to support a finding that termination of S.T.’s parental rights was in the best interest of the children; and (3) the trial court abused its discretion by finding that S.T.’s appointment as conservator would significantly impair the children’s physical health or emotional development. We affirm. BACKGROUND S.T. is the mother of S.A. and R.T. S.A.’s father is L.A. 1 and R.T.’s father is D.T. 2 On 1 At the conclusion of trial on the merits, the Associate Judge found, by clear and convincing evidence, that L.A. engaged in one or more of the acts or omissions necessary to support termination of his parental rights to S.A. under subsection (E) of Texas Family Code Section 161.001(b)(1). The Associate Judge also found that termination of the parent-child relationship between L.A. and S.A. is in the child’s best interest. Based on these findings, the Associate Judge ordered that the parent-child relationship between L.A. and S.A. be terminated. L.A. is not a party to this appeal. 2 At the conclusion of trial on the merits, the Associate Judge found, by clear and convincing evidence, that D.T. engaged in one or more of the acts or omissions necessary to support termination of his parental rights under subsections (D), (E), and (O) of Texas Family Code Section 161.001(b)(1). The Associate Judge found, beyond a reasonable doubt, that (1) the Department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family and that these efforts proved unsuccessful, and (2) the evidence, including testimony of a qualified expert witness, demonstrates that the continued custody of the child, R.T., by D.T., the parent, is likely to result in serious emotional or physical damage to the child. The Associate 1 February 26, 2021, the Department of Family and Protective Services (the Department) filed an original petition for protection of S.A. and R.T., for conservatorship, and for termination of S.T.’s, L.A.’s, and D.T.’s parental rights. The Department was appointed temporary managing conservator of the children, and the parents of each child were appointed temporary possessory conservator with limited rights, duties, access, and possession. At the conclusion of trial on the merits, the Associate Judge found, by clear and convincing evidence, that S.T. engaged in one or more of the acts or omissions necessary to support termination of her parental rights under subsections (D) and (E) of Texas Family Code Section 161.001(b)(1). The Associate Judge found that R.T. is an Indian Child within the meaning of the Indian Child Welfare Act (ICWA). Additionally, the Associate Judge found, beyond a reasonable doubt, that (1) the Department made active efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family and that these efforts proved unsuccessful, and (2) the evidence, including testimony of a qualified expert witness, demonstrates that the continued custody of the child, R.T., by S.T., the parent, is likely to result in serious emotional or physical damage to the child. The Associate Judge also found that termination of the parent-child relationship between S.T., S.A., and R.T. is in the children’s best interest. Based on these findings, the Associate Judge ordered that the parent- child relationship between S.T., S.A., and R.T., be terminated. S.T. appealed from the Associate Judge’s decision and requested a de novo hearing. After a de novo hearing, the presiding judge of the County Court at Law of Angelina County adopted the Associate Judge’s report, and ordered that the Associate Judge’s order be adopted as an order of the court. This appeal followed. TERMINATION OF PARENTAL RIGHTS Involuntary termination of parental rights embodies fundamental constitutional rights. Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53 S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ denied). Because a termination action “permanently sunders” the bonds between a parent and child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. Judge also found that termination of the parent-child relationship between D.T. and R.T. is in the child’s best interest. Based on these findings, the Associate Judge ordered that the parent-child relationship between D.T. and R.T. be terminated. D.T. is not a party to this appeal. 2 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.). Section 161.001 of the family code permits a court to order termination of parental rights if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West Supp. 2022); In re J.M.T., 39 S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have engaged in any one of the acts or omissions itemized in the second subsection of the statute. TEX. FAM. CODE ANN. § 161.001(b)(1) (West 2022); Green v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d 213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237. Second, termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(b)(2) (West Supp. 2022); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and convincing evidence, and proof of one element does not alleviate the petitioner’s burden of proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39 S.W.3d at 237. The clear and convincing standard for termination of parental rights is both constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911 S.W.2d at 439. Clear and convincing evidence means “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West 2019). The burden of proof is upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240. Standard of Review When confronted with both a legal and factual sufficiency challenge, an appellate court must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. Id. The appropriate standard for reviewing a factual sufficiency challenge to the termination findings is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 3 2002). In determining whether the fact finder has met this standard, an appellate court considers all the evidence in the record, both that in support of and contrary to the trial court’s findings. Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied) Termination under Sections 16.001(b)(D) and (E) We note that S.T. does not challenge every ground upon which the fact finder could have based its decision to terminate her parental rights, specifically subsections (D) and (E). We previously have required a parent to challenge all grounds of termination before we addressed any of the grounds. See In re A.V., 113 S.W.3d 355, 361–62 (Tex. 2003); Fletcher v. Dep’t of Family & Protective Servs., 277 S.W.3d 58, 64 (Tex. App.–Houston [1st Dist.] 2009, no pet.). However, the Texas Supreme Court held that allowing Section 161.001(b)(1)(D) or (E) findings to go unreviewed on appeal when the parent has presented the issue to the court violates the parent’s due process and due course of law rights. In re N.G., 577 S.W.3d 230, 237 (Tex. 2019). In making its holding, the Court relied on subsection (M), which provides that parental rights may be terminated if clear and convincing evidence supports that the parent “had his or her parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E).” Id. at 234; TEX. FAM. CODE ANN. § 161.001(b)(1)(M) (West 2022). As a result, the “collateral consequences of terminating parental rights under [S]ection 161.001(b)(1)(D) or (E) are significant.” In re N.G., 577 S.W.3d at 234. “When a parent has presented the issue on appeal, an appellate court that denies review of a [S]ection 161.001(b)(1)(D) or (E) finding deprives the parent of a meaningful appeal and eliminates the parent’s only chance for review of a finding that will be binding as to parental rights to other children.” Id. at 235. Therefore, due process and due course of law requirements mandate that an appellate court detail its analysis in an appeal of termination of parental rights under Section 161.001(b)(1)(D) or (E) of the Family Code if a parent raises such issues. Id. at 237. Accordingly, in light of the Supreme Court’s decision in In re N.G., we will consider the legal and factual sufficiency of the evidence to terminate S.T.’s parental rights pursuant to 4 subsections (D) and (E) of Texas Family Code Section 161.001(b)(1), even though she does not challenge termination under those subsections. Applicable Law The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(D) (West 2022). Subsection (D) addresses the child’s surroundings and environment. In re N.R., 101 S.W.3d 771, 775-76 (Tex. App.— Texarkana 2003, no pet.). The child’s “environment” refers to the suitability of the child’s living conditions as well as the conduct of parents or others in the home. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). The relevant time frame to determine whether there is clear and convincing evidence of endangerment is before the child was removed. Ybarra v. Tex. Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus Christi 1993, no pet.). Further, subsection (D) permits termination based upon only a single act or omission. In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied). The court may order termination of the parent-child relationship if it finds by clear and convincing evidence that the parent has engaged in conduct, or knowingly placed the child with persons who engaged in conduct, that endangers the physical or emotional well being of the child. TEX. FAM. CODE ANN. § 161.001(b)(1)(E) (West 2022). Scienter is not required for an appellant’s own acts under Section 161.001(b)(1)(E), although it is required when a parent places her child with others who engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.] 2003, pet. denied), overruled on other grounds, In re L.C.L., 599 S.W.3d 79, 85-86 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). Finally, the need for permanence is a paramount consideration for the child’s present and future physical and emotional needs. In re N.K., 99 S.W.3d 295, 301 n.9 (Tex. App.—Texarkana 2003, no pet.); In re M.D.S., 1 S.W.3d at 200. “Endanger” means to expose to loss or injury or to jeopardize. Tex. Dep’t of Human Svcs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re D.M., 58 S.W.3d 801, 811 (Tex. App.— Fort Worth 2001, no pet.). It is not necessary that the conduct be directed at the child or that the child actually suffers injury. Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440. When seeking termination under subsection (D), the Department must show that the child’s living 5 conditions pose a real threat of injury or harm. In re N.R., 101 S.W.3d at 776; Ybarra, 869 S.W.2d at 577. Further, there must be a connection between the conditions and the resulting danger to the child’s emotional or physical well-being. Ybarra, 869 S.W.2d at 577-78. It is sufficient that the parent was aware of the potential for danger to the child in such environment and disregarded that risk. In re N.R., 101 S.W.3d at 776. In other words, conduct that demonstrates awareness of an endangering environment is sufficient to show endangerment. In re S.M.L., 171 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2005, no pet.), overruled on other grounds, In re L.C.L., 599 S.W.3d. at 86-86. We have previously concluded it is illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of persons who live in the home of a child, or with whom a child is compelled to associate on a regular basis in his home, is not inherently a part of the “conditions and surroundings” of that place or home. In re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). Subsection (D) is designed to protect a child from precisely such an environment. Id. Subsection (E) requires us to look at the parent’s conduct alone, including actions, omissions, or the parent’s failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.—Dallas 2003, pet. denied); In re D.M., 58 S.W.3d at 811. Termination under subsection (E) must be based on more than a single act or omission. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied). A voluntary, deliberate, and conscious “course of conduct” by the parent that endangers the child’s physical and emotional well being is required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at 634. As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well being of a child. In re M.R.J.M., 280 S.W.3d 494, 503 (Tex. App.—Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). Endangering conduct is not limited to actions directed towards the child. Boyd, 727 S.W.2d at 533. It necessarily follows that the endangering conduct may include the parent’s actions before the child’s birth and while the parent had custody of older children. See id. (stating that although endanger means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the parent’s conduct be directed at the child or that the child actually suffers injury); see also In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied) (holding that courts may look to parental conduct both before and after child’s birth to determine whether termination is 6 appropriate). Further, the conduct may occur before the child’s birth and both before and after the child has been removed by the Department. Walker v. Tex. Dep’t of Family & Protective Srvs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). A parent’s use of narcotics and its effect on her ability to parent may qualify as an endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re R.W., 129 S.W.3d at 739. Further, evidence that the parent continued to use illegal drugs even though the parent knew her parental rights were in jeopardy is conduct showing a voluntary, deliberate, and conscious course of conduct, which by its nature, endangers a child’s well-being. See In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied); Cervantes-Peterson v. Tex. Dep’t of Family & Protective Servs., 221 S.W.3d 244, 253-54 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Because it exposes the child to the possibility that the parent may be impaired or imprisoned, illegal drug use may support termination under subsection (E). Walker, 312 S.W.3d at 617-18. Domestic violence, want of self-control, and propensity for violence may be considered as evidence of endangerment. In re T.R.L., No. 10-14-00290-CV, 2015 WL 1020865, at 5 (Tex. App.–Waco Mar. 5, 2015, no pet.) (mem. op.); In re C.J.O., 325 S.W.3d 261, 265 (Tex. App.–Eastland 2010, pet. denied) (holding domestic violence may be considered evidence of endangerment supporting findings under (D) and (E)). Criminal acts that also constitute domestic violence need not lead to indictment or conviction in order to be considered under the family code. In re R.S., No. 01-18-00058-CV, 2020 WL 3393069, at 8 (Tex. App.–Houston [1st Dist.] June 18, 2020, no pet.) (mem. op.). A court may consider a parent’s failure to complete a service plan as part of the endangering conduct analysis. In re M.B., No. 02-15-00128-CV, 2015 WL 4380868, at 12 (Tex. App.–Fort Worth July 16, 2015, no pet.) (mem. op.); In re T.H., No. 07- 07-00391-CV, 2008 WL 3351948, at 7–8 (Tex. App.–Amarillo Aug. 12, 2008, no pet.) (mem. op.). TERMINATION UNDER THE INDIAN CHILD WELFARE ACT (ICWA) In her first issue, S.T. argues that the evidence is legally and factually insufficient to prove beyond a reasonable doubt that continued custody of R.T. by S.T. is likely to result in serious physical or emotional damage to R.T. Burden of Proof 7 Subsection (f) of the Indian Child Welfare Act (ICWA) provides “[n]o termination of parental rights may be ordered . . . in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” 25 U.S.C.A. § 1912(f) (Westlaw current through PL 117-214). However, subsection (d) provides that a party seeking to terminate parental rights “shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” See 25 U.S.C.A. § 1912(d) (Westlaw current through PL 117-214). Active efforts include, for example: (1) Engaging the Indian child, the Indian child’s parents, the Indian child’s extended family members, and the Indian child’s custodian(s); (2) Taking steps necessary to keep siblings together; (3) Identifying appropriate services and helping the parents to overcome barriers, including actively assisting the parents in obtaining such services; (4) Identifying, notifying, and inviting representatives of the Indian child’s tribe to participate; (5) Conducting or causing to be conducted a diligent search for the Indian child’s extended family members for assistance and possible placement; (6) Taking into account the Indian child’s tribe’s prevailing social and cultural conditions and way of life, and requesting the assistance of representatives designated by the Indian child’s tribe with substantial knowledge of the prevailing social and cultural standards; (7) Offering and employing all available and culturally appropriate family preservation strategies; (8) Completing a comprehensive assessment of the circumstances of the Indian child’s family, with a focus on safe reunification as the most desirable goal; (9) Notifying and consulting with extended family members of the Indian child to provide family structure and support for the Indian child, to assure cultural connections, and to serve as placement resources for the Indian child; (10) Making arrangements to provide family interaction in the most natural setting that can ensure the Indian child's safety during any necessary removal; (11) Identifying community resources including housing, financial, transportation, mental health, substance abuse, and peer support services and actively assisting the Indian child’s parents or extended family in utilizing and accessing those resources; (12) Monitoring progress and participation in services; (13) Providing consideration of alternative ways of addressing the needs of the Indian child’s 8 parents and extended family, if services do not exist or if existing services are not available; (14) Supporting regular visits and trial home visits of the Indian child during any period of removal, consistent with the need to ensure the safety of the child; and (15) Providing post-reunification services and monitoring. See BUREAU OF INDIAN AFFAIRS GUIDELINES FOR STATE COURTS AND AGENCIES IN INDIAN CHILD CUSTODY PROCEEDINGS, 80 FED. REG. 10146-02, 10150 (February 25, 2015). Standard of Review The beyond a reasonable doubt standard has traditionally been regarded as the decisive difference between criminal culpability and civil liability. Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979) (citations omitted). When we review the sufficiency of the evidence pursuant to the ICWA burden of proof requirements, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found that the requirements of Section 1912(d) and (f) were satisfied beyond a reasonable doubt. See id., 443 U.S. at 319, 99 S. Ct. at 2789; see also City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005) (legal sufficiency review of cases involving termination of parental rights requires the reviewing court to consider all of the evidence, not just evidence favoring the verdict). This standard gives full play to the responsibility of the trier of fact to fairly resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. S.T. challenges the factual sufficiency of the evidence supporting the ICWA grounds, but Texas no longer applies a factual sufficiency review to challenges of evidence requiring proof beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (holding that factual sufficiency standard is indistinguishable from the Jackson v. Virginia legal sufficiency standard). Accordingly, we apply the Jackson v. Virginia standard in reviewing the sufficiency of the evidence supporting termination under the ICWA. In re K.S., 448 S.W.3d 521, 539 (Tex. App.—Tyler 2014, pet. denied). Preventive Measures and Expert Testimony Required When a state seeks to terminate the parental rights of an Indian child, it must prove beyond a reasonable doubt that (1) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful, and (2) the continued custody of the child by the parent or 9 Indian custodian is likely to result in serious emotional or physical damage to the child. See 25 U.S.C.A. §§ 1912(d), (f), 1914 (Westlaw current through PL 117-214). Whether continued custody of the child by the parent or Indian custodian is likely to result in physical or emotional damage to the child must be supported by evidence that includes testimony from a qualified expert witness. See 25 U.S.C.A. § 1912(f). Analysis This case began in January 2021 when Martha Williams, a Department investigator, testified that she investigated a case involving S.A. and R.T., their mother, S.T., and R.T.,’s father, D.T. The Department received a report alleging concerns for the safety and well-being of the children and ongoing domestic violence on the part of D.T. towards S.T., as well as concerns that S.T. and D.T. used methamphetamine around the children and that the domestic violence had escalated. Williams and an officer of the Hudson Police Department went to S.T.’s and D.T.’s house and introduced themselves. According to Williams, S.T. was very aggressive, yelling, screaming, and cursing at her and the officer. S.T. and D.T. allowed Williams and the officer to enter the home. During that time, the officer asked S.T. to calm down and cooperate. When Williams attempted to interview S.T., she was yelling, screaming, and cursing at both Williams and the officer. S.T. finally calmed down, and Williams interviewed S.T., D.T., and all the household members. She informed S.T. and D.T. that they needed to drug test for the Department, but S.T. and D.T. refused. Williams could not recall if the children were present that day. After Williams’s interviews, the Department initiated a safety plan with S.T. and D.T. to ensure the children were safe, which included the requirement that neither parent be left unsupervised with the children. S.T. and D.T. were also told that they could not spend the night at the house. The children would remain in the home with caregivers. Everyone agreed to the safety plan and it went into effect on February 6, 2021. S.T. and D.T. agreed to be drug tested and both tested positive for methamphetamine. Williams stated that the children were unsafe because both parents tested positive for methamphetamine. S.T. and D.T. also violated the safety plan by staying in the house all day and all night, and the caregivers were not being protective of the children. Williams and a caseworker from the family-based services division went to the home for an assessment on February 22, 2021. When they arrived, Williams heard S.T. cursing and yelling at them. Although they were invited inside, 10 S.T. was “very rude,” yelled, and refused to cooperate or listen. Williams and the caseworker determined that the children needed to be removed because the safety plan had been violated. The children were removed and placed in foster care. According to Williams, S.T. knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being. Family Service Plan. Dah-Mairi Scroggins was S.A.’s and R.T.’s caseworker. Upon receiving the case, Scroggins created a family plan of service with S.T. and D.T. and reviewed the plan with them. She also contacted the children’s foster family, went to see the children, and created a child plan for them. Scroggins stated that S.T. was required to maintain stable housing and a stable income, obtain a psychosocial assessment, an ADAC assessment, and an assessment with the Burke Center, and participate in couples counseling with D.T. and individual counseling for anger. According to Scroggins, S.T. completed a “majority” of her family plan of service. However, she noted that S.T. stopped her counseling from October to December 2021. Before January 2022, S.T. and D.T. had a stable home, but Scroggins did not believe it was appropriate for the children. Scroggins stated that initially, both D.T. and S.T. tested positive for methamphetamine. Since then, S.T. has been drug tested monthly, always negative. To Scroggins’s knowledge, S.T. has not had any contact with D.T. since she left him and filed a protective order against him. S.T. recently obtained her own house, a three-bedroom, two bath home. Scroggins stated that is appropriate for the children and is close to S.T.’s brother. However, S.T. only moved into the home approximately one to two months before trial. S.T. is also working at Wal-Mart and has reliable transportation. But Scroggins did not know how much time it would take to feel confident that S.T. would protect the children from D.T. She also had concerns about the family violence between S.T. and D.T., S.T.’s anger, and the stability of S.T.’s home. Scroggins believed that at the time of the children’s removal, S.T. knowingly placed or allowed the children to remain in conditions or surroundings which endangered their physical and emotional wellbeing. Ongoing violence between S.T. and D.T. was one of the problems identified in the service plan. Both S.T. and D.T. participated in couples counseling, completing six sessions before November 2021. Because they were still fighting, the Department ordered additional family counseling. According to Scroggins, the family plan of service is not a 11 checklist, but S.T. had to demonstrate that she learned from the service plan. S.T. did not demonstrate that she learned from counseling because she and D.T. were still fighting in November and December 2021. Scroggins stated that S.T. failed the service plan in that instance. There were three domestic violence incidents between the couple: November 11, 2021, November 13, 2021, and December 25, 2021. Scroggins did not learn of these incidents until close to the new year. Neither S.T. nor D.T. had reported the incidents. In the October 2021 group conference, Scroggins advised S.T. to go to the Family Crisis Center, but after visiting the Center, S.T. determined that she did not need the Center’s help. She again received this opportunity in November 2021. Because the investigator had asked D.T. to leave the home, Scroggins did not believe it was S.T.’s decision to require D.T. to leave their home. S.T. was still defending him and wondering why he could not be in the home. S.T. testified that she has stable employment, having worked at Walmart since May 2021. S.T. completed an ADAC evaluation, a psychosocial assessment, and couples and individual counseling. She did not tell the Department about the November and December incidents because she was scared for her life. She has not had contact with D.T. since December 2021. S.T. admitted that the children witnessed their fighting and drug usage. S.T. denied the children were at risk with her and D.T. She denied that her drug use affected the children even though she used methamphetamine in their presence. However, S.T. agreed that this conduct could endanger the children’s safety and wellbeing. S.T.’s Anger Issues. According to Scroggins, S.T. cannot get along with other people and has poor communication skills. If the caregivers attempted to schedule a meeting between S.T. and her children, Scroggins stated that it would be toxic because S.T. would focus on something that the caregivers are doing wrong and “blow the whole meeting out of proportion.” S.T. “cusses them out” and does not care who is around when she does so. Scroggins recalled a group conference seven or eight months previously when S.T. “blew up” on the attorney ad litem, calling him names. She agreed that S.T. had a violent temper and had been unable to change her behavior even though she attended treatment centers and counseling. Tyra Labette Risby, the CASA representative, also expressed concern about S.T.’s anger and impulse control. She called S.T. in October 2021 about one of her children and S.T. “went off” on Risby and asked that she not call back. Risby further had concerns about S.T.’s 12 stability, permanency, and safety. She was present when S.T. “lit into” the attorney ad litem. Susan Favor, the program director for CASA, admitted that S.T. may have an anger problem. Favor also stated that there may be some evidence that S.T. has been back with D.T. since the trial, but she was not aware that S.T. and D.T. were together again. Domestic Violence. As noted previously, there were three incidents of domestic violence that occurred after the case began: November 11, 2021, November 13, 2021, and December 25, 2021. Lufkin Police Officer Reagan Jordan testified that on November 11, 2021, she was dispatched to an assault in progress, which alleged that D.T. was intoxicated and attempting to assault several members of the household. When she arrived, Jordan made contact with the parties, including Kelly Allen, the caller, Gregory Davis, a member of the household, S.T., and D.T. Jordan described S.T. as distraught, having been involved in some kind of disturbance and having some red marks on the left side of her face and cheek and a small knot above her eyebrow that appeared to be swelling. S.T. told Jordan that she was in the bedroom and D.T. was drinking and very intoxicated. At one point, D.T. became very upset and began yelling. He told S.T. to “go die.” A verbal disturbance ensued, during which D.T. began aggressively advancing towards S.T. and getting in her face. S.T. said that she began to “kind of hit him” to get him out of her face and then D.T. began assaulting her. S.T. stated that D.T. struck her with his knee while she was on the floor. D.T. left and created a disturbance with Davis before going out to the porch. According to Davis, D.T. struck him in his right ear with a closed fist. Jordan stated that D.T. was very intoxicated, was vomiting, and smelled of alcohol. D.T claimed that they were just arguing, denied that anything physical occurred, and described everyone in the house as “snitches.” Based on S.T.’s appearance and statement, Jordan stated that D.T.’s denial was not credible. Jordan arrested D.T. for two counts of causing bodily injury to a family member, including S.T. and Davis. Lufkin Police Officer Christopher McClurg stated that he also responded to the November 11, 2021, call involving D.T. He further responded to a domestic disturbance call involving S.T. and D.T. on November 13, 2021. Dispatch stated that an intoxicated man was in the house, was throwing things, and was attempting to assault people. Further, dispatch informed McClurg that the caller and other persons barricaded themselves in a room to separate themselves, but the male subject was trying to break into the room. When McClurg arrived, he 13 met Allen who stated that an intoxicated D.T. came in the house and began breaking things. Allen stated that D.T. threw a lamp at her and the lamp hit her. McClurg arrested D.T. for assault, family violence, Class C, because Allen was his roommate. Jordan responded to a third call involving S.T. and D.T. on December 25, 2021, early Christmas morning. The caller was again, Allen, who advised dispatch that D.T. was assaulting S.T. and pulled a gun on her. When Jordan arrived, several family members were in the yard. The officers retrieved the gun and secured it, discovering that it was a BB gun, not a rifle. Jordan found S.T. was sweeping the house and her demeanor was different from the first incident. S.T. did not want to talk to Jordan, but Jordan noticed a small amount of dried blood near S.T.’s upper cheek and questioned S.T. about the blood. S.T. told Jordan not to worry about it, but stated that she arrived home from work to find D.T. intoxicated. D.T. locked S.T. out of the bedroom and she had to call Allen to “muscle” the door open. After S.T. gained access to the bedroom, D.T. began striking her multiple times in the face, causing her to have a small scratch to the face. Jordan said that at some point during the argument, D.T. picked up a BB gun. S.T. said she knew it was a BB gun and was not afraid of or threatened by the gun. Jordan spoke to D.T. who, again, stated that the argument was verbal and that nothing physical occurred. Jordan again placed D.T. under arrest for assault, family violence. After each incident, Jordan gave S.T. victim information, known as a “blue form,” which outlined services for victims of domestic violence, including information regarding the Crime Victims Compensation Act, and telephone numbers to the police department, Salvation Army, and women’s shelters. McClurg stated that during the November 11, 2021, call, S.T. told him that she was under investigation by the Department and trying to get D.T. out of the house. He instructed her on what she needed to do to get him out. S.T. admitted that she did not inform the Department of these incidents until the end of December 2021. According to the paternal grandmother, S.A. has told her about family violence such as verbal abuse, yelling, cussing, and whippings, not spankings, or aggressive types of punishment by both D.T. and S.T. Jane Wojansinski, a licensed professional counselor, stated that S.T. began individual counseling in August 2021. She has seen progress in S.T. and testified that she exhibits a lot of the characteristics of someone who has been a victim of family violence. In January 2022, S.T. talked about getting a protective order and not living in the same house as D.T. She has seen 14 increased improvement in her confidence and ability to be independent of D.T., and to maintain healthy boundaries with anyone she brought around her children. According to Wojansinski, S.T. stated that she struggled with not reporting a December 2021 incident because she feared that D.T. would retaliate against her. She was afraid to make choices that could have ramifications from him. Wojansinski was concerned that S.T. did not report the incidents of domestic violence in November or December 2021. S.T. denied physically abusing her children. Abuse Allegations. There was an allegation by S.A. that D.T. attempted to drown her. Jessica Carlisle, a forensic interviewer at the Children’s Advocacy Center, testified that she interviewed S.A., who was approximately ten years old, on January 3, 2022. According to Carlisle, there was an allegation of physical abuse and the alleged perpetrator was D.T. Carlisle said that S.A. told her that one day when she was six years old and her siblings were on the couch asleep, they were instructed to go to bed. S.A. admitted that she was reluctant to go to bed, did not listen, and did not want to go. However, she was instructed by D.T. to go take a bath. When S.A. was in the bathtub, she called out for D.T. to bring her shampoo and conditioner and he did so. Then, she stated that D.T. was sitting on the toilet watching her and became angry. S.A. stated that D.T. attempted to drown her in the bathtub. S.A. kept trying to come up from the bathwater to breathe, but he continuously shoved her head back under the water. D.T. stopped when S.T. came home. He told S.A. not to tell anyone what had happened. She said that D.T. told her something would happen if she were to tell but she could not remember what that was. According to Carlisle, S.A. was consistent with the facts that Carlisle knew at the time and during her outcry. Carlisle stated that S.A. did not seem emotional or upset. When Carlisle asked S.A. if she told an adult, she stated that she told “Grandma.” S.A.’s paternal grandmother testified that she is L.A.’s mother and lives in Michigan. According to the paternal grandmother, S.A. told her something “very disturbing” about D.T. during Christmas 2021. As they were Christmas shopping, S.A. asked her if she could tell her something, but she would have to promise not to cry. She told the paternal grandmother that “[D.T.] tried to kill me, he tried to drown me.” S.A. stated that S.T. was not home, her sister was asleep in her room with D.T., and she was lying down in the living room. D.T. wanted her to take a bath, but she did not want to do so. However, eventually, she went to the bathroom and D.T. pushed her head under water; she tried to get up, but he kept pushing her head under water. 15 He stopped when S.T. came home and told S.A. not to tell anyone what had happened. S.A. said this happened not long before she was removed from the house. S.T. did not believe the alleged attempted drowning occurred because D.T. was asleep at the time. She did not believe anything happened and does not believe it is a credible allegation. She did not know about it until trial, nor did she know about any alleged sexual abuse. At the de novo hearing, S.T. stated that she now believes the allegations, but still did not find the incident credible. Qualified Expert Witness. Rebecca Turner, the Indian Child Welfare social worker for the Choctaw Nation of Oklahoma, is a qualified expert witness (QEW) designated by the Choctaw Nation of Oklahoma to testify on behalf of the tribe and regarding the ICWA. The Associate Judge certified Turner as an expert witness. According to Turner, R.T. is an enrolled member of the Choctaw Nation of Oklahoma. She has discussed this case with the Department caseworkers and reviewed the legal documents in the case, including the original removal affidavit, the permanency reports, police reports, CASA reports, conduct reports from the foster home, and emails from Scroggins. Based on her involvement with the case, she stated that active efforts were employed to prevent the breakup of the family. At the time of the initial removal of the child, D.T.’s and S.T.’s behaviors were not consistent with culturally appropriate parenting among the Choctaw Nation of Oklahoma, including the physical abuse and drug use. From her understanding, both parents were contributors to the domestic violence. She was not aware of any physical damage that S.T. ever inflicted on R.T. Turner has been on the case since May 2021 and attended most, if not all, the hearings. She believed returning R.T. to S.T. would likely result in serious emotional or physical damage to her. She did not believe that S.T. corrected the safety concerns related to her anger issues, or the domestic violence between the couple, and her contribution to that violence. According to Turner, those safety concerns have not been alleviated. In the anger management portion of the service plan, Turner stated that S.T. admitted to contributing to the domestic violence. If S.T. did not get a protective order until January 2022, after three incidents of domestic violence, Turner did not believe S.T. could protect R.T. At the de novo hearing, Turner expressed concerns that S.T. is having an ongoing relationship with D.T. and still has anger management issues. According to Turner, D.T.’s 16 relatives stated that S.T. and D.T. continued to spend the night together, are in a relationship, and that S.T. apologized to him for filing the protective order. Conclusion From the above evidence, a reasonable fact finder could have formed a firm belief or conviction that S.T. used methamphetamine around the children before they were removed, had anger issues, acknowledged three domestic violence incidents after the case began, and did not report those incidents to the Department. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E). The trial court could have also determined that S.T. did not believe or find credible S.A.’s allegation that D.T. attempted to drown her and could have returned to a relationship with D.T. after the trial. See id. Therefore, we hold that the evidence, viewed in the light most favorable to the finding, was sufficiently clear and convincing that a reasonable trier of fact could have formed a firm belief or conviction that S.T. knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the physical or emotional well being of the children, and engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well being of the children. See In re J.F.C., 96 S.W.3d at 266. Although S.T. was no longer using illegal drugs, and had a home and employment, she did not believe that her children were harmed by her drug use and she only left D.T. and obtained a home a mere one to two months before trial. This evidence is not so significant that a reasonable trier of fact could not have reconciled the evidence in favor of its finding and formed a firm belief or conviction that S.T. knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered the physical or emotional well being of the children, and engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the physical or emotional well being of the children. See In re C.H., 89 S.W.3d at 25. Therefore, we hold that the evidence is legally and factually sufficient to support termination of S.T.’s parental rights under subsections (D) and (E) of Texas Family Code Section 161.001(b). See TEX. R. APP. P. 47.1. Further, having viewed the evidence in the light most favorable to the verdict, we conclude that the Department proved beyond a reasonable doubt that (1) active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that the efforts proved unsuccessful, (2) that the continued custody of 17 R.T. by S.T. is likely to result in serious emotional or physical damage to R.T., and (3) that the finding is supported by testimony by an expert witness. See 25 U.S.C.A. §§ 1912(d), (f); Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We overrule S.T.’s first issue. BEST INTERESTS OF THE CHILD In her second issue, S.T. argue the evidence is factually insufficient to support a finding that termination of her parental rights is in the children’s best interest. In determining the best interest of the child, a number of factors have been considered, including (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals; (6) the plans for the child by these individuals; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The family code also provides a list of factors that we will consider in conjunction with the above-mentioned Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West 2019). These include (1) the child’s age and physical and mental vulnerabilities; (2) the magnitude, frequency, and circumstances of the harm to the child; (3) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home; (4) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home; (5) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision; (6) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time; (7) whether the child’s family demonstrates adequate parenting skills; and (8) whether an adequate social support system consisting of an extended family and friends is available to the child. See id. § 263.307(b)(1), (3), (6), (8), (10), (11), (12), (13). The evidence need not prove all statutory or Holley factors in order to show that termination of parental rights is in a child’s best interest. See Holley, 544 S.W.2d at 372; In re J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.–Houston [14th Dist.] 2003, no pet.). In other words, the 18 best interest of the child does not require proof of any unique set of factors nor limit proof to any specific factors. In re D.M., 58 S.W.3d at 801. Undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the child’s best interest. In re M.R.J.M., 280 S.W.3d at 507. But the presence of scant evidence relevant to each factor will not support such a finding. Id. Evidence supporting termination of parental rights is also probative in determining whether termination is in the best interest of the child. See In re C.H., 89 S.W.3d at 28-29. We apply the statutory and Holley factors below. Analysis As noted above, S.T. had anger issues, was dismissive of the effects of her drug use around the children, did not inform the Department of three incidents of domestic violence with D.T. during the case, did not believe that S.A.’s allegations against D.T. were credible, and may have returned to D.T. after the initial trial. The evidence also shows that Scroggins stated that the couple has been fighting throughout the entire case, even when the Department attempted to provide them with help and additional counseling. The Department tried to get S.T. to go to the Family Crisis Center to obtain help. However, Scroggins said, S.T. and D.T. were “adamant” that they were not fighting even though D.T. had been arrested. Scroggins stated that if the parental rights of both parents are terminated, S.A. will live with her paternal grandmother in Michigan. At the time of the de novo hearing, the paternal grandmother’s home had been approved by the State of Michigan. The Department is also in contact with an aunt and uncle in Oklahoma for a possible placement for R.T.. These possible placements are Native American, as R.T. is an “Indian” child pursuant to ICWA. S.T. said that S.A. wanted to go to her paternal grandmother’s house if she could not go home to her mother. Scroggins believed it was significant that S.A. made an outcry to her paternal grandmother in December 2021, but not her mother. Scroggins believes S.A. would be safe with her paternal grandmother in Michigan. According toRisby, the CASA representative, she has met and conversed with the paternal grandmother virtually and believes that it would be a safe and stable home. Risby went to see S.T.’s new home the day before trial and stated that it was appropriate. She was concerned that the children receive safety, permanency, and stability. Risby found it “very significant” that S.A. made an outcry to her paternal grandmother and not her mother, stating that she could have felt secure and unthreatened. Scroggins and Risby believed that it was in the best interest of the 19 children for S.T.’s parental rights to be terminated. Michelle Smith, a foster care specialist with Children’s Hope, testified that she began working with S.A. and R.T. between June 2021 and August 2021. She made monthly visits to the foster home and interviewed them at each visit. Smith stated that the children adjusted to the home and were doing great although there were some behavioral issues. The children reported that they loved the foster home, felt safe at the foster home, and were doing well and happy. Smith stated that the children seemed to be thriving, happy, and healthy. She stated that the children did not express a desire to see their parents. According to S.A.’s paternal grandmother, L.A. is incarcerated in Texas. S.A. is ten years old and the grandmother wishes to adopt her. The paternal grandmother stated that she was at the hospital when S.A. was born and S.A. spends every summer with her. She stated that she and S.A. have a very good relationship. The paternal grandmother has a clean house, room, bed, and toys for S.A. The paternal grandmother believed it was in S.A.’s best interest for L.A.’s and S.T.’s parental right to be terminated. Turner stated that the children are in a traditional foster care placement and the Department is actively seeking an ICWA-compliant placement for R.T. in Oklahoma. She believes that it would be in R.T.’s best interest for S.T.’s parental rights to be terminated for the child’s safety. Although some evidence might weigh against the finding, such as S.T. having a current stable home and employment, this evidence is not so significant that a reasonable fact finder could not have reconciled this evidence in favor of its finding and formed a firm belief or conviction that terminating S.T.’s parental rights is in the children’s best interest. See TEX. FAM. CODE ANN. § 161.001(b)(2); In re J.F.C., 96 S.W.3d at 266. Accordingly, we overrule her second issue regarding best interest. CONSERVATORSHIP In her third issue, S.T. argues that the trial court abused its discretion by finding that her appointment as conservator would significantly impair the children’s physical health or emotional development. We review a trial court’s appointment of a non-parent as sole managing conservator for abuse of discretion and reverse only if we determine the appointment is arbitrary or 20 unreasonable. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Courts have previously held that when evidence is sufficient to terminate parental rights, a trial court does not abuse its discretion in appointing the Department as the child’s managing conservator. See Interest of T.N.R., No. 14-21-00473-CV, 2022 WL 370035, at *7 (Tex. App.—Houston [14th Dist.] Feb. 8, 2022, no pet.) (mem. op.). Because the trial court terminated S.T.’s rights to the children, and we hereby affirm that decision, we cannot say that the trial court abused its discretion in appointing the Department as the children’s permanent managing conservator. Accordingly, we overrule S.T.’s third issue. DISPOSITION Having overruled all of S.T.’s issues, we affirm the judgment of the trial court. GREG NEELEY Justice Opinion delivered October 31, 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. 21 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT OCTOBER 31, 2022 NO. 12-22-00111-CV IN THE INTEREST OF S.A. AND R.T., CHILDREN Appeal from the County Court at Law No. 2 of Angelina County, Texas (Tr.Ct.No. CV-00837-21-02) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed, and that this decision be certified to the court below for observance. Greg Neeley, Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. 22	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481224/	NO. 12-22-00228-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS IN RE: § SHANDI TULLOS, § ORIGINAL PROCEEDING RELATOR § MEMORANDUM OPINION PER CURIAM Relator Shandi Ray Tullos filed this original proceeding contending that Respondent abused his discretion by modifying temporary custody of her minor child, S.R.T., having removed the requirement that Real Party in Interest Martin Shoel Brashear’s periods of possession be supervised until he could produce a negative drug test. 1 On September 30, 2022, this Court conditionally granted the petition and directed Respondent to (1) vacate his order removing the requirements that Brashear’s possession of S.R.T. be supervised by Brashear’s mother and that Brashear pass a drug test, and (2) enter an order reinstating these requirements. By an order to vacate filed with this Court on October 24 and revised temporary orders signed on October 26, Respondent complied with this Court’s opinion and order, rendering this proceeding moot. Accordingly, we dismiss the petition for writ of mandamus as moot. Opinion delivered October 31, 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. 1 Respondent is the Honorable John E. Wells, III, Judge of the 411th District Court in Trinity County, Texas. COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT OCTOBER 31, 2022 NO. 12-22-00228-CV SHANDI TULLOS, Relator V. HON. JOHN E. WELLS, III, Respondent ORIGINAL PROCEEDING ON THIS DAY came to be heard the petition for writ of mandamus filed by Shandi Tullos; who is the relator in appellate cause number 12-22-00228-CV and a party to trial court cause number 23755, pending on the docket of the 411th Judicial District Court of Trinity County, Texas. Said petition for writ of mandamus having been filed herein on August 24, 2022, and the same having been duly considered, because it is the opinion of this Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and ORDERED that the said petition for writ of mandamus be, and the same is, hereby dismissed as moot. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481962/	MONCURE, P., after stating the case, proceeded: The first and principal assignment of error in the decree appealed from in this case is, that credit was not therein given to the trustee, Coltrane, in the settlement of his account as trustee, for eight hundred and ten dollars, claimed by him as having been invested in 1863 or 1864 in Confederate bonds on account of the trust. This is indeed the only assignment of error on account of which, it seems, that an appeal in this case was allowed, though all the assignments of error made in the petition, or ore tenus or in writing, in the argument, will be noticed in this opinion. I do not think there is any error in the decree in respect to the said first and principal assignment of error. The investment of $810 therein mentioned was made out of money the largest part of which the trustee. Coltrane, admits he collected in Confederate money, in the spring of 1863, from C. F. Worrell. He says there were some small amounts collected from other parties, but he cannot state from whom. Now, was he warranted by law in making such collection when and under the circumstances he did? I say no, according to well-settled principles of law. In the spring of 1863 Confederate money was very greatly depreciated, and a fiduciary had not then a right to receive Confederate money at par in discharge of a well-secured specie debt, except under peculiar and extraordinary circumstances. The debt on account of which the said collection was . made was certainly a well-secured specie debt when such collection was made, and was most likely so to continue. Coltrane himself proves that C. W. Worrell, the debtor from whom the collection was made, “was and has been solvent.” But the debt due by Worrell was also secured by a lien on real estate, which was duly recorded. It was a part of the purchase money of land sold and conveyed by William Kyle, trustee for Amos and Darthula Worrell, by deed dated the 23d of February, 1858, and duly recorded on the same day in the clerk’s office of the county court of Carroll, in which county the said land was situate. In the said deed a lien was expressly reserved on the said land for the purchase money. It is not pretended that the land was not ample security for the purchase money. Here, then, was a double security of this debt, the 155solvency of the debtor personally, and the specific lien reserved upon the land. Were there any peculiar and extraordinary circumstances in existence which warranted the collection of the said debt or any part of it in Confederate money at par, depreciated in value as it was in the spring of 1863? Certainly not. What occasion had the trustee, in the execution of his trust, for the money, or any part of it, at that time? None whatever. The only person in the world who had any interest in it was the beneficiary in the trust, who had removed to the state of Missouri before the war, and continued since to reside there. No payment had been made to her by the trustee since the war commenced, and there would be no power to make such payment until the war was ended, Virginia and Missouri being on opposite sides of the belligerent line. No one could tell in the spring of 1,863 when the war would be at an end. That was about the middle of the war. It was the plain duty of this trustee to continue to hold, as he had a right to do and easily might have done, this well and permanently secured specie debt until the end of the war, instead of collecting it or any part of it in tlie spring of 1863 in greatly depreciated Confederate currency at par, only to invest the same ill Confederate bonds, no less depreciated in value below their nominal amount. In regard to the small amounts said by Coltrane to have been collected from other parties, he could not state from whom, the matter is altogether too vague to be of any account. Most, if not all, of the bonds and notes placed in his hands as trustee were doubtless good debts. He says in his answer, that “believing those amounts as secure as he could make them, he deemed it unnecessary to collect and loan the same to others, perhaps not as responsible.” These bonds and notes were placed in his hands as trustee on the 27th of June. 1857. They were all due except the three bonds of C. I'\ Worrell, on the 30th of October, 1857, three and a half years before the war. The trustee had ample time to have collected them before the war, if such collection had been necessary or proper. If he did not do so, it was no doubt because he considered them perfectly good. The bonds of Worrell, we have seen, were not only good by reason of the general solvency of the debtor, but also because they were secured by a lien on real estate; and they amounted to more than double the amount of all the other bonds put together. It may well be assumed in this controversy, therefore, that all of these bonds were good and solvent and well secured, and that the trustee had no power, in the spring of 1863, to receive payment of any of them in depreciated Confederate currency at par. I am. therefore, clearlv of opinion, that there is no error in the decree in respect to the matter of the first assignment of error, and that this position is fully sustained by the cases cited on the subject by the counsel for the appellee. The following are the cases or some of them, which were so cited; Williams’ adm’r v. Skinker, 25 Gratt. 507, 518, 519 and 524; Crickard’s ex’or v. Crickard’s legatees, Id. 410, 418, 419, 424 and 425; Moss v. Moorman, 24 Id. 97; Hannah v. Boyd, 25 Gratt. 692, 701; Ammon’s adm’r v. Wolfe, &c., 26 Id. 621; Walker v. Beauchler, 27 Id. 511. The second assignment of error in the decree (which, however, is not made in the petition for an appeal in the case), is that the appellant is charged with interest during the war. In the ordinary case of debtor and credit- or, where they reside on the same side of a belligerent line, the debt bears interest during the war, which is recoverable, notwithstanding the act of assembly on the subject. But where they reside on different sides of the belligenent line, interest on the debt during the war is not recoverable; and this is not the effect of the said act of assembly, but of principles of law which have been long since recognized and established. This, however, is not an ordinary case of debtor and creditor, but a case in which a trustee holds bonds and notes in his hands for the benefit of a cestui que trust. Can such a trustee avoid liability to his cestui que trust for interest on the trust fund during the war, when he has already collected such interest or may collect it hereafter? It does not appear that the debtors to the trustee for the trust fund, or any part of it, ever have refused or will refuse to pay such interest to the trustee. The fact is, those debtors and the trustee always, during the war, lived on the same side of the belligerent line, and there was always on that side a hand to receive payment of interest from them. A trustee cannot derive a profit from the trust fund without rendering any equivalent therefor. He is bound to execute the trust for the benefit of the cestui que trust, whether the latter live at home or abroad, or the trust is to be executed in peace or in war. If the trust fund be perfectly secure, and bearing interest at the beginning of the war, he cannot voluntarily change it so as to make it insecure and bear no interest. T am therefore of opinion that there is no error in the decree in respect to the matter of the second assignment of error. The third assignment of error in the decree is that the accounts should have been stated on the principle of the cases of Granberry v. Granberry, 1 Wash. 246, and Burwell’s ex’or v. Anderson, adm’r 3 Leigh, 348. (And this assignment of error was made for the first time in the argument.) Without stating what the principle of those cases is, T think it very clear that the account stated by the commissioner in this case is stated on a principle which can do no injustice to the trustee who was bound by the express terms of the trust to apply the interest and so much as might be sufficient of the principal of the trust fund in his hands or under his control, to the sole and separate use of the said Darthula Worrell. She has not received from the trustee, as he admits, the whole amount of the ^interest on the trust fund, which she was certainly 156entitled to receive, and he has not been charged with any interest upon interest in the mode of stating the account. The fourth and last assignment of error in the decree is, that “the direction for the .removal of the fund to Missouri was erroneous. The trustee appointed in Missouri was not legally appointed, and is not entitled to receive the fund.” I think the decree is not erroneous in this respect. The law under which this proceeding for the appointment of a trustee in and the transfer of a trust fund to another state, is in the Code, ch. 135,. §§ 6 and 7, p. 936, and is in these words: “6. When any personal estate in this state is vested in a trustee resident therein, and those having the beneficial interest in the said estate are non-residents of this state, the circuit court of the county or corporation in which the said trustee may reside may, on a petition or a bill in equity, filed for that purpose, order him or his personal .representative to pay, transfer and deliver the said estate, or any part of it, to a nonresident trustee appointed by some court of record in the state in which the said beneficiaries reside. “7. No such order shall be made in the case of a petition until notice of the application shall have been given to all persons interested in the trust estate, nor until the court shall be satisfied, by authentic documentary evidence, that the non-resident trustee appointed as aforesaid has given bond, with sufficient security, for the faithful execution of the trust, nor until it is satisfied that the payment and removal of such estate out of the state will not prejudice the right of any person interested or to become interested therein.” The proceedings in this case for the appointment of a trustee in the state of Missouri are very formal, and there seems to be no defect therein, except that there is no certificate of “the judge of the circuit court of Clinton county, Missouri,” added to the record of that court, attested by the clerk thereof, with the seal of the court annexed, which record is filed as an exhibit in this case. See Code, ch. 173, § 15, p. 1108. But there was no exception or objection to the said exhibit on that ground or any other, either in any of the answers or other proceedings in the case in the court below, nor until the said fifth assignment of error was made to the said decree. I think it was then too late to make the objection for the first time, and that the trustee in Missouri must be considered, as no doubt he was in fact, duly appointed. The case comes within the category of cases to which the statute applies, authorizing a transfer of property of a cestui que trust to another state. “When any personal estate in this state is vested in a trustee resident therein, and those having the beneficial interest in the said estate are nonresidents of this state,” is the language of the statute. Now, Mrs. Worrell is the only person who can be said to have any beneficial interest in the said estate, in the meaning of the statute. During her life she is certainly entitled to the interest on the subject, and so much of the principal as may be necessary for her comfortable maintenance; “and full power is given to her, if she should die before her husband, to dispose of the trust fund by any last will and testament by her to be made and executed as the laws of Virginia direct wills of personal estate to be executed; and in case she should survive her husband, then the funds of said trustee are to be paid over to said Darthula, to be disposed of and used by her as her absolute property.” After this full conveyance of the subject to her or for her use, the deed thus proceeds: “And the said Amos Worrell doth hereby relinquish and release all claims to the said fund for himself and all persons claiming under him, and doth agree that the full control and use thereof shall be in the said Darthula, as herein provided for.” She is certainly entitled to the fund absolutely, subject only, if to anything, to one possible contingency, to-wit: the contingency of her dying before her husband without .having disposed of the trust fend by last will and testament as aforesaid. What would become of the fund in that single contingency it is unnecessary here to decide. But it is a contingency entirely within her power and control, which may at any time easily be exercised by her, and has no doubt already been so exercised. It cannot be regarded by the husband as of any value, and he has interposed no objection, on that or any other ground, to the removal of the trust fund to the state wherein the beneficiary resides. Can the trustee in Virginia interpose any such objection? The only substantial beneficiary having been for many years a resident of the state of Missouri, and intending permanently to reside there, ought not the trust fund be there also? The record shows how inconvenient has been her distant separation from the fund heretofore, how seldom and at what expense she has received any benefit from it, and how beneficial it would be to her to have it near at hand, while no person would be thereby injured. Upon the whole. I am of opinion that there is no error in the decree, at least in substance, and that it ought to be affirmed, after being amended in the form of a draft which I have prepared, as a part of the foregoing opinion. The other judges concurred in the opinion of MONCURE, P. The decree was as follows: This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the said decree and the arguments of counsel, is of the opinion, for reasons stated in writing and filed with the record, that the decree appealed from instead of being as it is, should, and it is accordingly adjudged, ordered and decreed, that it be so amended as to be in words and figures following, to-wit: The cause came on this day to be heard upon 157the bill of complaint, the exhibits filed, the several answers, the depositions of witnesses, the ''rder and decree heretofore entered therein, the report of Commissioner Brown, and argument of counsel. . .nd the court being of the opinion that the first statement of Commissioner Brown is the correct one in this case, with this exception, that the defendant, Tra B. Coltrane, should receive a credit for the amount of Confederate money-paid in taxes in 1864 and 1865, at its par value instead of its scaled value, a further credit of $23.75, of date March 12, 1864, and $147 of date February 1st, 1865, being the difference between the par value of said amount and the scaled value allowed by the r'--~n-nissinner. And the court doth receive, adopt and confirm the first statement of said report with the amendment aforesaid. It is therefore adjudged, ordered and decreed that the complainant, Darthula Worrell, recover against the defendant, Ira B. Coltrane, the sum of $2,557.54, principal, with legal interest thereon from the 20th day of April, 1875. and $495.28. interest, subject to a credit of $23.75, of date March 12th, 1864, and $147, of date February 11th, 1865, to be applied as a credit on the last mentioned amount, to-wit: the $495.28, interest. And the court being satisfied by authentic documentary evidence in the cause that Granville M. Hiatt, of the ‘county of Clinton, in the state of Missouri, in which the said Darthula Worrell resides, has been duly appointed by the circuit court of said county to receive and hold as trustee the fund now held by the said Ira B. Coltrane, as trustee, for the benefit of the said Darthula Worrell, under the deed of trust in the proceedings mentioned, and also that the said Granville M. Hiatt, the now non-resident trustee appointed as aforesaid, has given bond with sufficient security for the faithful execution of the trust, and that the payment and removal of the said fund out of the state will not prejudice the right of any person interested or to become interested therein, it is therefore adjudged, ordered and decreed that the said trust fund now held by the said Coltrane as aforesaid, being the sums of money and interest hereinbefore recovered against him by the said Darthula Worrell as aforesaid, be paid, transferred and delivered to the said Hiatt, the non-resident trustee aforesaid, to be held and disposed of by him as such according to the terms of the deed of trust and the condition of the bond aforesaid. And to enforce the payment of the said sums of money and interest to him, he may sue out executions for the same on this decree and in the name of the said Darthula Worrell for his use as such trustee. And it is further adjudged, ordered and decreed that the said Darthula Worrell recover against the said Ira B. Coltrane her costs by her expended in the prosecution of this suit; and liberty is reserved to her, or her nonresident trustee for her benefit, to apply to this court in this clause hereafter, by motion or petition, for any further order or decree which may be necessary to carry into effect the decree. And it is further adjudged, ordered and decreed that the said decree appealed from, as hereinbefore amended, be affirmed, and that the appellee, Darthula Worrell, recover against the appellant damages according to law ‘and her costs by her about her decree in the appeal expended; which is ordered to be certified to the circuit court of Carroll county. Decree amended and affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481963/	CHRISTIAN, J., delivered the opinion of the court. 158The single question we have to determine in this case is, whether the circuit court erred in sustaining the demurrer to the plaintiff’s bill. The bill charges that the plaintiff and his wife on the 27th November, 1872, executed a deed conveying to his son a certain tract of land therein mentioned, in consideration (as expressed in the deed) that his son “should provide for and take good care of him and his wife so long as they may live, in a comfortable manner, both in sickness and in health;” and for the further consideration (not expressed in the deed) that his said son should build on the land conveyed a good and comfortable dwelling-house. The bill contains further allegations, as follows: “The said Ephraim Wampler fraudulently induced your orator to believe, by his repeated promises and assurances, that if your orator would convey him the said 170 acres of land, that he would take care of and comfortably support your orator and his wife during their entire life, and would-build them a comfortable dwelling-house; and, with a view to make himself and wife comfortable in-their declining years, they were induced to execute said deed, the said Ephraim not only promising to take care of your orator and wife comfortably, but promised and agreed to build your orator a good, comfortable dwelling-house on' your orator’s land for his residence. Your orator avers that the said Ephraim has utterly failed and refused to comply in any respect with his part of said agreement — has utterly failed and refuses to furnish one iota of the consideration promised, and that said promises so made by said Ephraim Wampler were resorted to by him fraudulently for the fraudulent purpose of obtaining said deed, and that your orator relied on said promises, and would not have executed said deed if they had not been made; and your orator charges that said deed was obtained by means of said fraud, so practiced on him by said Emphraim Wampler; that he took possession of said 170 acres of land immediately after said deed was executed, and is still in possession thereof and residing thereon with his family, and has not furnished to your orator and his wife or to either of them anything whatever toward their maintenance or support, but on the contrary has obtained property from your orator to a considerable amount and has not paid him therefor, nor has he built your orator the dwelling-house promised; on the contrary has contented himself with simply putting in a window of four panes of glass in your orator’s own old house in which he now lives, and which is but a miserable cabin, almost entirely unfit for human habitation. Though the said Ephraim has had five years in which to do something toward complying with his said contract, he has done literally nothing towards it, although your orator has freauently urged him to do so, but he has uniformly failed to do so, and .leaves your orator, in his old age, to take care of himself' and his wife as best he can, without the benefit or income which your orator could derive from said land. Your orator charges-that the said contract of his said son amounts to a fraudulent acquisition'and inequitable holding of said land, which a court of conscience will not tolerate or permit, but will hold, as .your orator avers, that said fraud so practiced by said Ephraim Wampler. upon your orator, ^constitutes said Ephraim, an implied trustee, holding said land for your orator’s benefit, and that a court of equity for said fraud will set aside and annul said deed, rescind said contract and remit your orator to his rights in said land.” „ The bill then prays that the deed be set aside and annulled, and the land be reconveyed to the plaintiff, and for general relief. To this bill the defendant demurred; and the circuit court sustained the demurrer, and rendered the following decree: “The court is of opinion that the plaintiff has ample relief at law, and that the demurrer be sustained and the bill dismissed, and that defendant recover of complainant the costs of this suit.” To this decree an appeal and supersedeas was awarded by one of the judges of this court. The court is of opinion that this decree of the circuit court is erroneous. Upon the demurrer, of course, all the allegations of the bill must be taken as true. It is plain that the plaintiff did not have a complete and adequate remedy at law. The consideration for the deed of conveyance for the land, as alleged in the bill, was the comfortable support of the grantor and his wife during their lives, and the erection on the land conveyed of a good and comfortable house. This was a continuing obligation on the p.art of the grantee. It was to continue during the lives of the grantors and each of them. At the end of the first year, or sooner, the grantors had the right of action, if the covenant for support was not complied with, for a breach of the covenant. In such action damages-could be recovered only for the refusal of the grantee to perform his covenant up to the time of the commencement of the suit. But the obligation for support and maintenance continued for an indefinite time, during the lives of the grantors and each of them; it may be for ten or twenty years.. -Must the grantors bring their suit every six months or twelve months for damages for a failure upon the part of the grantee to supply them with food and clothing? And in the meantime, having conveyed their all to the grantee, having deprived themselves of the means of support, must they suffer and starve until by suits at law and executions thev could compel the grantee to supply them with the means of support? But beside the consideration of support and maintenance, another consideration alleged in the conveyance (and this upon demurrer must be taken to be true) was that the grantee should erect upon the land a comfortable dwelling. How could this covenant, so important to the- comfort of the grantees, be enforced, in a suit at law? We think it is clear that the grantors in his case did not have a complete and ade159quate remedy at law. and that upon the facts stated in the record, admitted by the demurrer to be true, a court of equity had the undoubted jurisdiction, there being no complete and adequate remedy at law, if not to compel a specific performance of the contract on the part of the grantee, certainly to rescind the contract, annul and set aside the deed, and put the parties in the same position they were in before the contract was made and deed delivered. But there is another ground of equity jurisdiction in this case. There is a positive and distinct allegation of fraud in the bill. The following allegation is contained in the bill: "The said promises (i. e. for support and maintenance and the building of a comfortable dwelling), so made by said Ephraim Wampler, was resorted to by him fraudulently for the fraudulent purpose of obtaining said deed, and that your orator relied on said promises, and would not have executed said deed if they had not been made. And your orator charges that said deed was obtained by means of said fraud so perpetrated on him by said Ephraim Wampler.” Here, then, we have a distinct and specific charge of fraud, to-wit: that the promises which induced the grantor to part with his land were resorted to by the grantee with a fraudulent purpose and intent to obtain a deed for the land conveyed. Now, fraud is universally conceded to be a ground of equitable jurisdiction. The first province of a court of equity being to enforce truth and fairness in the dealings of men, the prevention and correction of fraud is part of the original and proper office of the court. Courts of equity have an original, independent and inherent jurisdiction to relieve against every species of fraud. Every transfer or conveyance of property, by what means soever it be done, is'in equity vitiated by fraud. Deeds, obligations, contracts, awards, judgments, or decrees may be the instruments to which parties may resort to cover fraud, and through which they may obtain the most unrighteous advantages, but none of such devices or instruments will be permitted by a court of equity to obstruct the requisition of justice. If a case of fraud be established a court of equity will set aside all transactions founded upon it bv whatever machinery they may have been effected, and notwithstanding any contrivance by which it may have been attempted to protect them. These principles have now become axioms of equity jurisprudence. Applying these principles to the case before us, we are of opinion that the decree of the circuit court sustaining the demurrer to the plaintiff’s bill was plainly erroneous. The plaintiff ought to have been permitted to establish by proof the fraud alleged in his bill instead of being dismissed by that court and sent to a court of law to lit! ate his rights, when it is plain, from the very nature of his demand and the continuing obligation of the defendant. the plaintiff could not have a complete and adequate remedy. For these reasons the court is of opinion that the decree of the circuit court sustaining the demurrer and dismissing the plaintiff’s bill be _ reversed and the cause remanded to said circuit court with instructions to overrule the demurrer and require the defendant to file his answer to said bill, that the case may be heard and determined upon bill and answer, and such evidence as either party may lawfully produce. The decree was as follows: This day came again the parties by their council, and the court having maturely considered the transcript of the record of the decree, and the arguments of counsel, is of the opinion, for reasons stated in writing and filed with the record, that the decree of said circuit court sustaining the defendant’s demurrer to the plaintiff’s bill is erroneous. B is therefore decreed and ordered that the said decree be reversed and annulled, and that the appellant recover of the appellee his costs by him expended in the prosecution of his appeal and writ of supersedeas here. And this court, proceeding to render such decree as the said circuit court ought to have rendered, it is further decreed and ordered that the said demurrer be overruled; and the cause is remanded to the said circuit court for further proceedings to be had therein. All of which is ordered to be certified to that court. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481964/	ANDERSON, J., delivered the opinion of the court. A bill was filed at the June rules of the ccunty court of Tazewell county by Mrs. Nancy Harman, widow of Edwin. H. Harman, deceased, and her infant sons, Charles W. Harman and Davis K. Harman, heirs and distributees of the. said decedent, against John Mosby Davis, the administrator of the said E. W. Harman, deceased, and Henry B. Harman and Reuben C. Fudge, his sureties in his administration bond, for their distributive shares in the estate of said decedent. The bill alleges that for a number of years previous to the death of E. H. Harman, he and the said J. M. Davis had been in partnership in the mercantile business on Bluestone. in the county of Tazewell, the profits of which were very handsome; and that in the year 1858 they formed a partnership in the mercantile business with John E. Neel, which was carried on for upwards of a year, at the expiration of which time they bought out the said Neel and continued the business themselves, until the war put a stop to all transactions of the kind; and the said E. H. Harman entered the service of the Confederacy and was^ killed in battle. And the said J. M. Davis being the sole survivor of the firm, it devolved on him to settle up the partnership concerns, and to receive in his capacity as administrator of the said E. H. Harman, his share of the partnership fund and effects, and to account for and pay over the same to them, his distributees. And the prayer of the bill was that he should be compelled to settle the said partnership accounts. and his administration accounts, and account for and pay over to them their distributive shares in the estate of said decedent. and for general relief. The defendant, J. M. Davis, answered the bill, to which the plaintiffs replied generally, and an account was ordered and tak.en and reported, showing a balance against the administrator, J. M. Davis, of $7,942.39; to which the defendants filed exceptions, and depositions were taken. Said exceptions were afterwards withdrawn, and the following decree was entered: “This cause came on to be heard this the 2d of July, 1873, upon the papers heretofore read, and the report of Samuel C. Graham and the exceptions thereto; and the defendants withdrawing all exceptions to said report, admit here in court that the defendant, Davis, as administrator of E. H. Harman, H. B. Harman and R. C. Fudge, his securities in his administration bond, are responsible to the complainants, the widow and distributees of E. H. Harman, for the sum of $5,000. the amount with which the said Davis and his sureties admit themselves to be chargeable for distribution among the said widow and said children, with interest from the 1st of February, 1873, and the complainants, the widow and heirs-at-law of said E. H. Harman, being willing and consenting here in court to accept the said $5,000 and interest as aforesaid, in full satisfaction and discharge of their claim against the said administrator and his sureties,” the court proceeded to decree, by and with the consent and agreement of all the parties, that the said complainant. Nancy Harman, recover of said defendants $1,-666.6654 with legal interest thereon from February 1st, 1873, till paid, and that Charles W. Harman and Davis K. Harman, infant children of E. H. Harman, suing by Nancy Harman, their next friend, recover of said defendants $3,333.33, with interest from February 1st, 1873, till paid. And the defendants, by like agreement of all said parties, were allowed to make payment in three equal installments, in ten, twenty and thirty-six months from the date of the decree, and if punctually paid no execution to, issue; and it was decreed that the complainants recover their costs. And it was agreed that all the unpaid claims due the estate of E._ -H. Harman were the property of said Davis. 161The first installments falling due and being unpaid, the plaintiffs caused executions of fi. fa. to be issued therefor, and thereupon the defendants brought their bill in the circuit court of Tazewell county against them, praying an injunction to said executions, which was granted, and upon the coming in of the answer of Nancy Harman, was, by a decree of the court of the 18th of May, 1875, dissolved. And on the 10th day of September, 1875, the said J. M. Davis, administrator of E. H. Harman, deceased, H. B. Harman and Reuben C. Fudge, sureties of said Davis as administrator as aforesaid, by leave of the court, filed their bill of review and obtained an injunction to restrain the plaintiffs, Nancy Harman and others, from all further proceedings under the decree rendered in the case of Nancy Harman and others against J. Mosby Davis and others in the bill of review mentioned, to which bill the defendants filed their answers — the infant defendants by guardian ad litem; and the cause coming on to be heard on the 18th of November, 1875, the court was of opinion that there was error apparent on the face of the decree complained of, in that it was a decree by consent, and some of the complainants being infants could not be bound thereby, and because refunding bonds were not required to be executed by the complainants before payment by the administrator. And for these reasons and causes of error decreed that the decree of the 2d of July, 1873, be reversed and annulled, from which decree the defendants to the said bill of review appealed to this court, which is the case now to be decided. The court is of opinion that it was not error to decree in that cause in favor of the plaintiffs because some of them were infants. The defendants were adults, and admitted that they were chargeable for distribution to the widow and children of F H. Harman, deceased, with the sum of $5,000, and interest thereon from the first day of February, 1873, till paid, for which the defendant, Davis, as administrator of E. H. Harman, and his securities in his administration bond, are responsible to the complainants, the widow and distributees of the said E. H. Harman, deceased. And the courl says the complainants, the widow and heirs aforesaid, being willing and consenting here in court to accept the same in full satisfaction and discharge of their claim against the said administrator and his sureties, “it is therefore adjudged, ordered and decreed, by and with the consent and agreement of all the parties,” as hereinbefore set out, a decree for the distribution of that sum admitted to be due for distribution, by the administrator and his sureties in full satisfaction and discharge of all that is due them from the administrator and his sureties. There is no claim made by the widow and distributees for more, nor dissatisfaction expressed by them with the amount decreed in their favor, but the complaint comes from the administrator and his sureties, that they admitted their liability for more than they ought, and they seek to be released fro.m this acknowledgment on the ground that some of the parties to whom they acknowledged it to be due were infants. It is very clear that they being under no disability, their acknowledgment could not be impaired or affected by the fact that those to whom they acknowledge themselves indebted were infants. But they contend that their acknowledgment ought to be binding upon them because it was made as a concession to the complainants upon the consideration that it would be received in full satisfaction and discharge of all they owed them; that the complainants did agree to receive it as such, but that some of them are infants, and are not bound by that agreement, and may, after they attain majority, refuse to be bound by it and compel them to pay more. If there is any ground for their complaint that they acknowledged a larger indebtedness than they were in fact owing, and they are prepared to show it. they surely can have no ground for the apprehension that after the infants attain majority they may be able to have the decree complained of set aside and annulled, and subject them to the payment of an additional sum. It is not a motion of the infants to be relieved from a consent decree, which allowed them less than they were entitled to, upon the ground that they were incapable of giving their consent by reason of their infancy; but it is a motion by the adult administrator and his sureties to be relieved from a decree for a sum which they acknowledged in open court was due from them to the complainants, and which decree was entered by their consent and the consent of the complainants, in full satisfaction of all their claim against the defendants, because two of the complainants were infants. The administrator must be presumed tobe well informed as to the condition of the estate and the state of the accounts between him and his intestate, and it is presumable that he would not have acknowledged a larger indebtedness to the distributees, or a larger sum in his hands for distribution than truth and justice required. The account taken by the commissioner showed a much larger amount due from the administrator to the estate; but there were still some outstanding debts of the decedent which had not been paid, and the administrator contended that some of his vouchers evidencing disbursements, had been erroneously rejected by the commissioner; but upon the whole, he was willing to acknowledge an indebtedness to the complainants — an amount in his hands, not for paying debts and distribution, but for distribution, of course after paying debts — an amount for which he and his sureties were responsible, not _to creditors and distributees, but to the distributees, the complainants, of $5,000. with mterest thereon as specified; and was willing that the plaintiffs should take a decree therefor in full satisfaction and discharge of their whole claim. They agree to it, and the court entered such a decree, by consent and agree162ment of all the parties. The plaintiffs are satisfied with it, and seek to .enforce it, and do not ask to be released from it, on the ground of the disability of two of them by reason of infancy. But the defendants seek to be released from it on the ground that it is not binding on the infant plaintiffs, they being incapacitated to give their consent. But that could be no ground for' relieving them from the decree in favor of the adult plaintiff. And in this case the court is of opinion that it is no ground for releasing them from the decree in favor of the infant plaintiffs. Although the infants were incapable of consenting to the decree, it is binding upon them, if for their benefit — as binding as it would have been if no' consent had been given. An infant plaintiff is as much bound by a decree as an adult. Brown v. Armstead. 6 Rand. 594. Unless the court was satisfied that this decree was for the benefit of the infants, it would have been error to have entered it as a consent decree. And this court, having the whole case before them, and being satisfied that the decree was for the benefit of the infants, and that they are therefore bound by it, there is no error upon the face of the decree on this account for which it could be reviewed or reversed. The court is further of opinion- that the decree of the 3d of July, 1873, sought to be reviewed , is not erroneous, because it contains no provision requiring the plaintiffs to execute refunding bonds before enforcing payment. Such a provision would have been incompatible with the evident intent and legal effect of the decree, which was that the sum decreed to be paid by the administrator and his sureties was in his hands for distribution amongst them, which could not have been so if there were outstanding and unsatisfied debts of the estate for which it- was liable; and that the defendants were responsible to them for that amount, which could not have been so if it were chargeable with the payment of debts due from the estate; and that the same was to be paid them in full of their entire interest in the estate, and that all debts due the estate or the different co-partners, of which the defendant, Davis, was the surviving partner, were to be his property, not liable for any further claim on their part for distribution, but liable, of course, for any debts of the estate ■which might'be outstanding and unsatisfied. Consequently a provision in the _decree requiring the plaintiffs to give obligations to refund any proportion of debts which might thereafter be recovered against the estate, would have been incompatible with the legal effect and intent of the decree. And furthermore, the defendants acknowledging 'that the amount specified was in the hands of the administrator for distribution, and consenting to a decree in favor of the plaintiffs against them for their respective proportions thereof, was a waiver of any - right of the administrator to require refunding bonds.- ' The court is therefore of opinion to reverse the decree of'the 18th of November, 1875, of the circuit court of Tazewell county, to dissolve the injunction, and dismiss the plaintiffs' bill of review with costs. The decree was as follows: This day came again the parties by their jCounsel, and the court having maturely considered the transcript of the record of the said decree and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that there is no error in the decree of said circuit court rendered on the 3d day of July, 1873, and in the proceedings mentioned, for which the same ought to have been reviewed and opened; and hence that the. decree of said court rendered on the 18th day of November, 1875, and which is the subject of this appeal, is erroneous. Therefore it is decreed and ordered, that said decree of 18th November, 1875, be reversed and annulled, and that the appellants recover of the appellees their costs by them in the prosecution of their said appeal here expended. And this court proceeding now to render such decree in the premises as the said circuit court of Tazewell county ought to have rendered, it is further decreed and ordered, that the injunction awarded in the cause depending on the bill of review in the proceedings mentioned be dissolved, and that said bill of review be dismissed, and that the defendants in said bill (who are the appellants here) recover of tbe plaintiffs in the same their costs by them about their defence to said bill expended; which is ordered to be certified to the said circuit court of Tazewell county. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481210/	Opinion filed November 3, 2022 In The Eleventh Court of Appeals __________ No. 11-22-00183-CV __________ IN RE ROBERT STEVEN CHILDRESS Original Mandamus Proceeding MEMORANDUM OPINION Relator, Robert Steven Childress, filed this original petition for writ of mandamus requesting we find that Judge Shane Long, the county judge for Palo Pinto County, Texas, has neither set a hearing nor ruled upon Relator’s motions regarding the removal of the executrix of his mother’s estate. Relator further requests that we order Judge Long to set such motions for a hearing and to rule on the motions. On October 25, 2022, the underlying proceedings were transferred to the 29th Judicial District Court. See TEX. EST. CODE ANN. § 32.003(a)(2) (West 2020) (a county court may transfer contested probate proceedings to a district court in counties with no statutory probate court). Consequently, the Respondent can no longer provide the relief Relator seeks, and Relator’s petition for a writ of mandamus is now moot. See In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding) (“A case becomes moot if a controversy ceases to exist between the parties at any stage of the legal proceedings[.]”). In this regard, mandamus cannot be issued against a new judge for the alleged acts and omissions of a former judge. See In re Baylor Med. Ctr. at Garland, 280 S.W.3d 227, 228 (Tex. 2008) (orig. proceeding). We, as does any court, lack jurisdiction to decide a moot controversy. In re Guardianship of Fairley, 650 S.W.3d 372, 379 (Tex. 2022). Accordingly, we dismiss the petition for writ of mandamus for want of jurisdiction. PER CURIAM November 3, 2022 Panel consists of: Bailey, C.J., Trotter, J., and Williams, J. 2	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481232/	NUMBER 13-22-0275-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG SOLAR MOSAIC, LLC AS SUCCESSOR IN INTEREST TO SOLAR MOSAIC, INC. AND STREAMLINE ENERGY, LLC, Appellants, v. ANDREW BROWN, Appellee. On appeal from the County Court at Law No. 4 of Nueces County, Texas. MEMORANDUM OPINION Before Chief Justice Contreras and Justices Benavides and Tijerina Memorandum Opinion by Justice Benavides Appellants, Solar Mosaic, LLC, as successor in interest to Solar Mosaic, Inc. and Streamline Energy, LLC, and appellee, Andrew Brown, have filed a joint motion to dismiss this appeal pursuant to the terms of a settlement agreement. They request that we dismiss the appeal with each party bearing their own costs of the appeal. The Court, having examined and fully considered the joint motion to dismiss, is of the opinion that it should be construed and granted as a motion to dismiss. See TEX. R. APP. P. 42.1(a)(1) (allowing the court to dismiss an appeal or affirm the appealed judgment in accordance with a motion filed by the appellant); id. R. 42.1(a)(2) (allowing the court to render judgment, set aside the judgment without regard to the merits and remand, or abate the appeal and permit proceedings in the trial court in accordance with an agreement); In re Marriage of McQueen, 597 S.W.3d 53, 54 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (order). Accordingly, we reinstate this case, grant the joint motion to dismiss, and dismiss the appeal. Pursuant to the agreement of the parties, costs will be taxed against the party incurring the same. See id. R. 42.1(d) (“Absent agreement of the parties, the court will tax costs against the appellant.”). Having dismissed the appeal at the parties' request, no motion for rehearing will be entertained, and our mandate will issue forthwith. GINA M. BENAVIDES Justice Delivered and filed on the 3rd day of November, 2022. 2	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481284/	IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,423-04 EX PARTE JOSE DAVID ROBLES, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 13445-D IN THE 350TH DISTRICT COURT FROM TAYLOR COUNTY Per curiam. OPINION Applicant was convicted of driving while intoxicated and sentenced to ten years’ imprisonment. The Eleventh Court of Appeals affirmed his conviction. Robles v. State, No. 11-19-00358-CR (Tex. App.—Eastland Oct. 21, 2021). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See T EX. C ODE C RIM. P ROC. art. 11.07. Applicant contends that he was denied his right to file a pro se petition for discretionary review due to a breakdown in the system. Our records indicate that Applicant mailed a letter regarding the filing of a pro se petition for discretionary review within the thirty day window to do 2 so, but for some reason this Court did not receive it until over sixty days after its mailing. As a result, Applicant was denied his right to file his petition for discretionary review. Relief is granted. Ex parte Riley, 193 S.W.3d 900 (Tex. Crim. App. 2003). Applicant may file an out-of-time petition for discretionary review of the judgment of the Eleventh Court of Appeals in cause number 11-19-00358-CR. Should Applicant decide to file a petition for discretionary review, he must file it with this Court within thirty days from the date of this Court’s mandate. Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional Institutions Division and the Board of Pardons and Paroles. Delivered: November 2, 2022 Do not publish	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481305/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Ex parte Joseph Gomez Appellate case number: 01-20-00004-CR & 01-20-00005-CR Trial court case number: 1657519 & 1657521 Trial court: 338th District Court of Harris County The motion for rehearing is denied. It is so ORDERED. Judge’s signature: /s/ Peter Kelly Acting for the Court Panel consists of Justices Kelly, Landau, and Farris. Date: November 1, 2022	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481965/	STAPLES, J., delivered the opinion of the court. At the time of the commencement of this controversy, in the year 1871. the Virginia and Tennessee Railroad Company was required, by act of the legislature, to report annually to the auditor of public accounts the estimated value of all its real and personal estate of every description. It was also required to report quarterly the net earnings of the road for the three preceding months, and at the same time to pay into the treasury of the state the taxes imposed by law. So that the companv, instead of being assessed in the different counties in which its road was located, was assessed as an entirety. The assessment for state taxes was not made, as in ordinary cases, by the township assessors, but by the company itself to the auditor of public accounts, and the taxes were paid, not to the county treasurer, but directly into the state treasury. The same provisions were applied to the other railroad companies and canal companies, and, with some modifications, to the insurance and telegraphic companies doing business in the state. This mode of assessment and taxation has been continued and is still pursued by the legislature. Acts of 1869-70, page 332; Acts of 1870-71, page 93. In the year 3871, the County of Washington claimed the right to impose the county levies upon the property of the Virginia and Tennessee Railroad Company in that county, and it caused to be assessed for that purpose the road-bed and other real estate within its limits. This claim was resisted by the company, but was sustained both by the county and circuit courts of that county. The case is brought here by writ of error to the judgment of the last-named court. The grounds upon which the parties respectively rest their pretensions will be considered in the course of this opinion. An examination of the various acts of the legislature on the subject will show that for many years the county levies and poor rates were confined to the titheables within (heir limits. Real and personal property was not made the subject of county levy until long after the revisal of 1819. At what precise period this was done I have not been able to ascertain, as the acts of the general assembly showing the fact cannot be had in this place. It was probably as far back as the year 1824 or J 835. See 2 Rev. Code 1819, page 63; Code of 1849, page 277, sec. 4. But under all the acts subjecting properly to county levies, the levy in every case was limited to those subjects assessed with state taxes within the county. Under former constitutions and laws the practice was for the justices of the county, a majority being present, to settle the accounts of the county, and to proceed to lay the levy upon property assessed with state taxes according to the land and property books as made out by the commissioner of the revenue for state purposes. The result was that under no circumstances could there be a county levy upon property unless it. was assessed within the county •for state taxation. This was the uniform rule, never departed from prior to the adoption of the present constilution. It is claimed, however, that that "instrument has changed the law upon this subject, and that power is now conferred upon the county authorities respectively to lay the county levies upon all subjects of taxation not specially exempt under the constitution, independently of legislative sanction, and whether such subjects are or are not assessed for purposes of state taxation. It will be admitted that when an enactment, constitutional or legislative, is relied on as effecting a radical change in the policy of the government, as pursued for forty years — a policy founded upon sound reason and common justice — the language of such enactment ought to be very explicit in its terms. More especially is this true when applied to the subject of taxation, a subject peculiarly within legislative discretion, involving the highest attributes of sovereignty and affecting all classes and conditions of society. The legislature is invested with complete power over the subject of taxation, except so far as may be otherwise provided in the constitution. On the other hand, the counties are mere auxiliaries of the government, established simply for the more effective administration of justice; and the power ■of taxation as confided to them is a delegated, trust, and is to be strictly construed. They 164act not by virtue of any inherent power, but as mere agencies of the state. City of Richmond v. Daniel, 14 Gratt. 385; 21 Gratt. 604, 617. In this case it is claimed that an independent sovereign power not only of imposing taxes, but also of designating the subjects of taxation, is conferred upon each board of supervisors in every county and township of the state. It cannot be going too far to say that the men composing these boards are not generally elected with reference to such duties. nor are they qualified by their pursuits, information or position for the exercise of a trust so delicate and responsible. It is difficult to believe it was ever intended to confer upon these boards a power which the state would never bestow upon her magistrates at a time when the county court was composed of some of the most intelligent and responsible citizens of the state. The provision of the constitution relied on as conferring this power is found in section 2, article 7, of that instrument. That section, after providing that each county shall be divided into townships, in each of which there shall be annually elected one supervisor and certain other officers therein named, declares: “The supervisors of each township shall constitute the board of supervisors for that county, and shall assemble at the courthouse thereof on the first Monday of December in each year, and proceed to audit the accounts of said county, examine the books of the assessors, and regulate and equalize the valuation of property, fix the county levies for the ensuing year, apportion the same among the several townships, and perform such other duties as shall be prescribed by law.” The words relied on as conferring the power in question are, “to fix the county Wies for the ensuing year, and apportion the same among the various townships.” The learned counsel for the county of Washington, in commenting upon these words, insists they confer upon the supervisors authority to ascertain the levy, to establish a levy and to impose a levy, and to divide the same among the several townships; and that this is but an exercise of the taxing power under the constitution. All this may be conceded, and the question still arises,'how are •the supervisors to ascertain the subjects of taxation for the county levy? To what source are they to look for the necessary information to guide them with respect to the taxable property? The answer is found in the section already cited, which declares they shall “examine the assessors’ books.” And a subseauent section of the same article provides that the general assembly, at its first session after 'the adoption of the constitution, shall pass such laws as may be necessary to give effect to the provisions of this arricie. The legislature accordingly provided for the election of assessors; it prescribed that'their duties and powers should be the same as those of the former commissioners of the revenue; it required them to assess the property of their respective townships; to make out the land and property books in the manner required of the commissioners of the revenue — a copy of which was to be sent to the auditor of public accounts, another delivered to the county treasurer, and another to the clerk of the county for the use of the board of supervisors. Acts of 1869 and 1870, pages 80 and 282. These are the books to which the constitution refers, by»which the state taxes are ascertained and collected, and by which the supervisors must be governed, as were the former justices of the peace, in laying the county and township levies. The conclusion is inevitable, therefore, that the board of supervisors in laying the county levies must look to the books provided for the state assessment, and to the subjects of taxation as contained in those books. This must be so, unless we are to suppose that - the framers of the constitution intended to inflict upon the state a complex and expensive system requiring two sets of assessors, one for the state and the other for the counties, with two sets of books containing different valuations of property and different subjects of taxation. The more reasonable presumption is, that they legislated with reference to the former system, simply substituting the supervisors in place of the justices, and confining the county levy to such property, real and personal, as was assessed with a state tax within the county. Acts of 1869 and 1870, § 74, p. 284; p. 306, § 47. It is very true that the section already quoted also confers upon the board of supervisors the power to equalize and regulate the valuation of property. I am free to confess that, after the most careful examination and reflection, I am unable to . say what these words precisely mean. It is very probable they were taken from the constitution of some one of the northern states, where they have equalization boards, as they are called. These boards have a sort of appellate power for the purpose of an equalization, in case the assessment of one district is found to be relatively higher or lower than that of another, so that if the general taxes were to be assessed upon it, the district would pay more or less than its due proportion. This is not done by changing individual assessments, but by fixing the aggregate for the several districts at what in .the opinion of the board they shall be. so that general taxes may be levied according to this determination, in.stead of on the assessors’ footings. This is the construction generally given to the laws relating to the equalization boards in other states. Cooley on Taxation, p. 290. But whatever mav be the meaning of the words in our constitution just quoted, it is very clear the power to regulate and equalize the valuation _ of property cannot be construed' as giving authority to change the assessors’ books and to prescribe new subjects of taxation .different from those assessed by the state. The learned counsel for the County of Washington maintain that the legislature, in various acts passed from time to time since the adoption of the constitution, has recognized this power as vested in the board of 165supervisors; and in support of this position he relies upon the fact that the legislature in prescribing the duties and powers of the supervisors, has used the same words contained in the constitution. I submit to the learned counsel, this is reasoning in a circle. If the words in question had a fixed, well-ascertained meaning, we might easily understand what the legislature intended in incorporating them in one of its statutes. Sometimes the legislative department, finding great difficulties in the construction of a constitutional provision, embodies it in a statute, leaving it to the courts to give to it the proper interpretation. But in the present case we are left in no difficulty as to the meaning of the legislature. In the very first act on the subject, passed S)th of July, 1870, Acts of I860 and ’70, page 333, the supervisors o£ the respective counties are required to convene the 1st of July, 1870, and to lay the comity levy for the year 1870, according to the provisions of sections 2, 3 and 4 of chapter 53. Code of 1860, so far as the same are applicable. One of the sections thus referred to limits the levy in express terms to property assessed with state taxes within the county. This act was followed by the act of March 19th, 1872 which confers upon the supervisors authority to “fix the amount of the county levies for the ensuing year, to order the levy on all male persons over twenty-one years of age, and on all property assessed with state taxes within the county;” or the order of levy may be a certain sum on all male persons over the age of twenty-one years, and for a certain per centum upon the amount of the state tax, and to apportion the same among the various townships of the county. Acts of 1871 and ’72, page 291. Th'- "<-t of March 26th, 1875, contains substantially the same provisions. Acts of 1874 and ’75, page 355. These enactments show that the legislature was of opinion that the supervisors are not clothed with the power of assessment and taxation under the constitution, without the aid of legislation. They further show that the design was to adhere to the policy pursued for forty years, and to confine the county levies to those subjects assessed with state taxes within the respective counties. It is said, however, that the words “within the county,” refer to the location of the property, and not to the place where the assessment may be made; and the stntute ought to be construed as if it read: “the board of supervisors shall have power to order the levy on all property within the county assessed with state taxes.” Tt is sufficient to sav that the words used in the art of 1872 and in all tbesubsequent acts, are the same as those used in the Code of 1849, the Code of 1860, and indeed in all the acts prior to the adoption of the present constitution. Their meaning', as used in these prior enactments, was well understood, and that is. that the countv levies were confined to property assessed with state taxes within the countv by thp commissioners of the revenue. It must be presumed that the legislature, in adopting the same words in the I more recent enactments, intended to give J them the construction uniformly given to ' them. There is but one act ever passed by the' legislature which at all militates against this view, and that is the act of March 15th, 1872. It is there provided that “where a railroad or canal shall pass through more than one of the counties of the state, the report (of the company) shall show the estimated value of the property herein-above classified that may be within the limits of each of said counties; and it shall be the duty of the auditor of public accounts to furnish the board of supervisors of each of the counties of the state through which any rail-read or canal passes, such estimated value of the property herein-above specified, as appears from such report to be within the limits of each of said counties.” Now, it would seem to be very clear that the object of this enactment was to furnish a basis for the assessment and imposition of county levies upon the various railroads of the state, ■nd thus to remove all the difficulties growing out of a want of legislation upon that subject; and yet we find at the next session of ‘ the legislature, April 5th, 1872, an act was passed in which it is expressly provided that section 91. just cited, shall not authorize the supervisors in any county through which said railroad or canal may pass, to assess, levy or collect any tax for county or township purposes on the valuation of properties classified in the report required by the said 91st section of the assessment act. The provisions of the act of March 15th, 1872, have been omitted in all the subsequent acts on the subject. If, therefore, the legislature at one time manifested a purpose to charge the various railroads of the state with county levies, that purpose was immediately abandoned and never again asserted. The whole theory of our system of taxation is based upon the idea that it is prepared bv the representatives of the people upon \| due deliberation and reflection, and when ¡ thus prepared for state purposes it may be j safely applied to the counties and other local \| agencies of the commonwealth. And any ] rule of construction and doctrine which ¡ would give to these agencies a power of taxation under the constitution, independent ¡ of all legislative supervision and control, is in violation of the uniform policy of the I state, and contrarv to the true principles of the government. When, therefore, the con- ¡ stitution gives the supervisors authority “to fix the county levies,” it only means thev shall ascertain and fix the amount of such levies, and the amount thus ascertained is to be collected from such subjects of taxation as are prescribed by the legislature. It has been argued, however, that under the present constitution taxation, whether imposed by the state, county or corporation bodies, shall be uniform; and all property, both real and personal, shall be taxed in proportion to its value, to be ascertained as prescribed bvlaw. And in this respect the present constitution differs very materially 166from that of 1851. And further, that the legislature has no power to exempt any property from county levy if it so desired. See § 1, art. 10 of the constitution. Let all this be conceded, and still it is not perceived in what way it helps the County of Washington. If all property must be taxed as well by the county as by the state, it can be done only in the manner prescribed by law. As already stated, the constitution makes it the duty of the legislature to pass such laws as are necessary to carry its provisions, relating to taxation, into execution. The legislature has made no provision for imposing county levies upon the railroads of the state. So far from it, as has been seen, it has by inevitable implication exempted them from such levies. If the commissioners of the revenue, or the assessors in the different counties, should make an assessment of the railroad track, or other property within their limits, such assessment would constitute no just basis of taxation. A part of a railroad running through one county may be of little value, but if taken in connection with the whole, it may be as valuable as any other part. As was said by the supreme court of Kentucky: “A railroad, from one end to the other, is an entirety. Fragmentary taxation or sales might be unjustly vexatious and injurious to the owners, prevent the destination of the road, and disturb the public use and interest. To avoid such evils and absurdities. the law treats a railroad and all its appurtenances as one entire thing, not legally subject to coercive severance or dislocation. In that consolidated character it must be taxed for state revenue, and cannot be a fit subject for local taxation by the separate counties through which it runs.” Applegate v. Ernst, 3 Bush. R. 648. And in Gulph R. R. v. Moores, 7 Kansas R. R. 210, it was said: “A railroad is an entire thing, and should be assessed as a whole. It would be almost as easy and reasonable to divide a house or a locomotive into portions and assess each portion separately as to divide a railroad into portions and assess each portion of it separately.” The policy of Virginia has uniformly been in accordance with the views expressed in these cases. Prior to the war the assessment and taxation were based upon the dividends, or upon the receipts of the companies, ascertained by reference to the number of passengers or the amount of freight transported. Code of 1849, ch. 39, § 1 to 5; Code of 1860, p. 300. Since the war, as has been already seen, the tax has been upon the net earnings of the respective roads, paid quarterly into the treasury. The state has, therefore, never regarded any mere local assessment of a part of a railroad within a county as furnishing any reliable basis of taxation.^ At the very time the legislature was providing for the reassessment of. lands throughout the commonwealth, in the year 1870. it required the railroads and .canals to be assessed, not with reference to any valuation so made, but entirely upon different principles. These considerations plainly show that the assessment of lands made in the different counties by the assessors of the several townships, for purposes of state taxation and county levy, were never designed to include the property of the railroad and canal companies located in those counties. It would be most extraordinary indeed that the legislature should repudiate the whole system of local assessment and taxation as utterly unjust, and impracticable when applied to railroads, and at the same time ^confer upon the supervisors of each county the power to apply that system' to the same railroads in its most objectionable form, based upon crude and conjectural valuations by men without the necessary qualifications or means of information for such duties. It is impossible to foresee the mischiefs that„would flow from such a policy, if every county from Norfolk to Bristol is to be invested with the power of assessing and taxing^ the railroad within its limits, and it is easy to see that this company, if not taxed out of existence, would have to bear the most grievous burdens, far beyond its resources. It is stated by counsel that the state tax on that portion of the road between Lynch-burg and Bristol, is ten thousand dollars. It is conceded that if the other eight counties between those points impose a levy in proportion to that of Washington County, the amount will exceed fifteen thousand dollars, five thousand dollars more than the entire state tax. One of the counsel of the appellant, upon a calculation made by him. estimates the county levies as three times the amount of the state tax. However all this may be, it is most obvious that the legislature, so far from making any provision for imposing the county levies upon the railroads of the state, has plainly evinced a purpose to prohibit the imposition of county levies in such cases. And until the legislature makes the necessary provision for carrying the constitution into effect in this particular, neither the supervisors of the county nor the courts can furnish aremedyor supply the want of proper legislation. In this connection it may not be amiss to quote from the observations of a very eminent author upon what are termed self-executing provisions in a constitution. He says: “That although all the provisions of a constitution are to be regarded as mandatory, there are none which from the nature of the case are as incapable of compulsory enforcement as are directory provisions in general. The reason is, that while the purpose may be to establish rights, or to impose duties, they do not in and of themselves constitute a sufficient rule by means of which such right may be protected or such duty enforced. In such cases, before the constitutional provision can be made effectual, supplementary legislation must be had, and the provision is in its nature mandatory to the legislature to enact the needful legislation, though back of it there lies no authority to enforce the command. Sometimes the constitution, in terms, 167requires the legislature to enact laws on a particular subject, and here it is obvious that the requirement has only a moral force. The legislature ought to obey it, but the right intended to be given is only assured when the legislation is voluntarily enacted. Illustrations may be found in constitutional provisions requiring the legislature to provide, by law, uniform and just rules for the assessment and collection of taxes. These must lie dormant until the legislation is had. They do not displace the law previously in force, though the purpose may be manifest to do away with it by the legislation required.” Cooley’s Constitutional limitations, pp. 99, 100. These observations of the learned author could hardly be more apposite if they had been made with direct reference to the provision of the constitution now under consideration. But in taking the view just now presented, it is by no means conceded that the constitutional provision requiring all property to be taxed according to its value, has any application to county levies. Under the constitution of 1851. taxation was required to be equal and uniform throughout the commonwealth, and all property was to be taxed according to its value. It was held by this court that these provisions did not apply to county levies, but solely to taxation for purposes of state revenue. So that while the state taxes were required to be equal and uniform, the county levies were not subject to any such condition. Gilkeson v. The Frederick Justices, 13 Gratt. 577. Under the present constitution the rule of uniformity and equality is applied to county taxation as well as to the state, but it does not therefore necessarily follow that the rule requiring all property to be taxed according to its value, is also to be applied to county taxation. Upon this point we do not desire to express any opinion. It is a very grave and important question, only to be decided upon the fullest consideration. This *case is readily disposed of upon other grounds already presented. I think that the supervisors of Washington County were not authorized to impose the county levies upon the property of the Virginia and Tennessee Railroad Company, not assessed with state taxes in that county. If the County of Washington and other counties of the state are improperly deprived of a source of revenue from property within their limits, it is for the legislature to apply the remedy. It is worthy of remark, however, that no such power has ever been asserted by any of the counties until the present claim was put forth by the County of Washington; nor, so far as our information extends, has there been any complaint of injustice done to the counties by the system of taxation adopted by the state with respect to her railroad companies. But without pursuing the topic further, T am of the opinion that the circuit court and county court of Washington County erred in refusing to exonerate the company from the payment of county levies and township taxes assessed against it by the County of Washington for the year 1870, and for that error both of said judgments must be reversed and a judgment entered in conformity with the views herein expressed. The judgment in each case is the same, except that the first orfly referred to county and township levies. The second was as follows: This day came again the parties by their counsel, and the court having maturely considered the transcript of the record of the judgment aforesaid, and the argument of counsel, is of the opinion, for reasons stated in writing and filed with the record, that the county court and the circuit court of Washington County erred in refusing to exonerate the plaintiff in error, the Virginia and Tennessee Railroad Company, from the county levy, township, ^school and road taxes for the year 1873. It is therefore considered by the court, that the said judgment of the said circuit court be reversed and annulled, and that the defendant in error pay to the plaintiff in error its cost by it expended in the prosecution of its writ of error and supersedeas here. And this court proceeding to render such judgment as the said circuit court ought to have rendered, it is further considered, that the judgment of the said county court be reversed and annulled, and that the defendant in error pay to the plaintiff in error its costs by it expended in the prosecution of its writ of error and supersedeas in the said circuit court. And it is further considered that the plaintiff in error be and it is hereby exonerated from the payment of the county levy and township, school and road taxes of the County of Washington for the year 1873, and recover of the county the costs of its motion in said county court. All of which is ordered to be certified to the said circuit court. Judgment reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481966/	BURKS. J., delivered the opinion of the court. The court is of opinion, that the several writs of fieri facias, proceedings under which were enjoined by the judge of the circuit court of Wythe county, were irregularly and unlawfully issued. * Every execution should conform accurately to the judgment or decree which it is used to enforce. There is a substantial reason for this requirement. Where the judgment or decree is satisfied by execution in the hands of an officer, the .defendant is entitled, for his protection, to record evidence of the discharge. This evidence is not furnished by an execution, although duly returned satisfied by an officer, which does not correspond with the judgment or decree. I The decree of the said circuit court in' the i suit of Harkrader & als. v. Snavely & als., pronounced on the 31st day of December, 1876, confirmed the report of Commissioner English, which ascertained the several amounts due from the defendant, Snavely, and his sureties (the present appellants), to the plaintiffs, respectively; but it did not order the defendants to pay those amounts to the several plaintiffs, or give the latter any recovery against the defendants. On the contrary, in express terms, it ordered payment to be made to H. E. Harkrader, attorney in fact of Robert C. Harkrader, and foreign guardian of the infant plaintiffs, and “conservator” (committee) of F. E. Harkrader. It would seem clear that on this decree, as it originally * stood, as to these several amounts, only one execution could have been issued, and that in the name and on behalf of H. E. Harkrader for the aggregate of the several sums ascertained by the commissioner’s report. Indeed, the decree expressly provides that “the said H. E. Harkrader has 169leave to sue out his fieri facias against the said defendants for the amounts decreed him.” If there be any doubt as to whether only one execution could have been sued out for the aggregate of the sums fixed by the report, or separate executions for the several amounts, still, in either case, the execution or executions must have been in the name and on behalf of Ii. E. Harkrader, to whom, and to none other, payment was ordered to be made. On appeal, this decree was partially reversed by the decree of this court rendered on the 25th day of September. 1877. It was expressly reversed and annulled, so far as it directed the appellants (Snavely and others) to pay over to the foreign guardian, H. E. Harkrader. the sums respectively found due to the appellees by the report of Commissioner English; and it was provided,'that the said H. E. Harkrader, the foreign guardian, should have leave to file his petition in the said circuit court, after due advertisement as prescribed by the statutes, and upon such petition so filed, the said circuit court should decree to be paid over to him the several amounts respectively due from the former guardian, Snavely, as already ascertained by said report of Commissioner English. The decree of the circuit court gave costs jointly in favor of the plaintiffs against the defendants. As to these costs, the language of the decree aforesaid of this court is as follows: “And it is further decreed and ordered, that said circuit court shall, through one of its commissioners, ascertain what proportion of the costs were incurred in taking evidence in reference to the sale of said infants’ real estate, and of the evidence certified from the state of Illinois as to the qualifications of said foreign giuardian, and the costs of printing the same, and such costs so ascertained shall be, upon a final decree, decreed against the said H. E. Harkrader.” Now, under this decree, it is manifest that no execution could be properly sued out by any party without the further action of the circuit court. The infants, as already seen, could not rightfully sue out executions, because no money was decreed to be paid to them, and H. E. Harkrader, the foreign guardian, could sue out none, because the decree, so far as it ordered payment to be made to him, was reversed and annulled, and a further decree by the circuit court was required before he could lawfully receive anything. And as to the costs, the decree of this court would seem to contemplate a postponement of payment until the enquiry directed by this court should be ordered and made. The court is further of opinion, that although the appellants had their remedy by motion to craash the executions, which motion, under the statute (Code of 1873, ch. 183, § 40). might have been made, after reasonable notice, as well before the judge of the said circuit court in vacation as before said court in term; yet this remedy, under the circumstances of this case, was inadequate, and therefore the injunction was proper. Every court has a perfect right to watch over the execution of its judgments, and where its process has been irregularly or fraudulently used, to quash it, as being the best and speediest mode of doing justice. Hendricks & Taylor v. Dundass, 2 Wash. 50. Of- whatever form the writ of execution may be, it must conform to the judgment; and if it does not, it will be quashed on motion. Herman on Executions, § 403, pp. 619, 620, citing Reese v. Burts, 39 Geo. R. 565. When the statute law authorized the issuing executions on decrees, it clothed the courts of chancery with the power of watching over such process and correcting any abuses arising under it, to the same extent and by the same means that courts of law use. Carr. J., in Windrum v. Parker & als., 2 Leigh 361, 367. And in deciding upon all questions in respect to executions on decrees, the courts of chancery are bound to abide by the common law and statutes respecting executions at law. Green, J., S. C. 369. The motion to quash, as provided by our Code, ubi supra, must be “after reasonable notice,” and such notice, whatever may be the grounds on which the motion is based, does not of itself suspend the execution of the writ. Herman on Executions, § 405, p. 621, citing cases from Alabama, Louisiana and Mississippi. The executions in this case were issued on the 10th day of October, 1877. and were returnable on the 3d day of December following, which was the first day of the then next term of the circuit court of Wythe county. The bill of the appellants, charges that the Harkraders (the plaintiffs named in the executions), “are all non-residents.” This allegation of the bill, on the motion to dissolve the. injunction without answer, must be taken as true. Notice of the motion to quash could have been served only by publication thereof once a week for four successive weeks in a newspaper published in this state. Code of 1873, ch. 163, § 2. Before the motion, therefore, could have been regularly made, the apprehended mischief under the executions might have been accomplished; the property of the appellants might have been seized and sold under process irregular and illegal. It is no answer to this view to say that the indebtedness of the appellants was ascertained and fixed by the report of the commissioner which was confirmed by the decree, and that, therefore, the appellants could not be injured by executions compelling payment. Although the amounts due were definitely ascertained, there was no order in the decree, as modified by this court, for payment, and without such order, or what is equivalent thereto, there could be lawfully no execution to compel payment. An order to pay, or recovery in some form, is an essential prerequisite to an execution to compel payment. In Shackelford v. Apperson, 6 Gratt. 451, it was held by this court, Judge Baldwin delivering the opinion, that the execution in ¡hat case having issued irregularly and un'awfully, it was competent for the court to -mash it in term time, or for the judge in va170cation to restrain proceedings upon it by an injunction order. The remedy resorted to in that case was a bill with injunction. The court below, by its decree, had dissolved the injunction and dismissed the bill. The decree was reversed and the bill and injunction ordered to be reinstated. At the date of that decision there was no statute authorizing a motion to quash an execution to be made before a judge in vacation, but if there had been such a statute, as there now is, the decision would doubtless have been the same, if it had appeared, as in this case, that notice of the motion could not have been given in time to make the remedy effectual. In this case notice to the sheriff, as we have seen, would not of itself have suspended the execution of the writs in his hands, and hence the necessity of the injunction to restrain him. The court is therefore of opinion, that the decree of the said circuit court, in so far as it adjudges and orders that the injunction theretofore awarded be dissolved as to all the executions in said decree mentioned, except the execution for costs, is erroneous, and should to that extent be reversed and annulled. The said circuit court should have wholly overruled the motion to dissolve said injunction as to all the executions mentioned in the decree. So much of said decree, therefore, as has been declared to be erroneous, must be reversed and annulled, and the residue thereof affirmed, the injunction, to the extent it was dissolved, be reinstated, and the cause remanded for further proceedings to final decree in conformity with this opinion. The decree was as follows: This day came again the parties by their counsel, and the court having maturely considered the transcript of the decree aforesaid and the argument of counsel, is of *the opinion, for reasons stated in writing and filed with the record, that the several writs of fieri facias in the said decree mentioned, proceedings whereon were restrained by the injunction order made by the judge of said circuit court, were irregularly and illegally issued. The court is further of the opinion that, although the appellants had a remedy by motion to quash the said executions, yet this remedy, under the circumstances of this case, was inadequate, and therefore they were entitled to file their bill, and to the injunction awarded thereon to enjoin, inhibit and restrain the appellees from all further proceedings on said executions. The court is therefore of the opinion, that the said decree of the said circuit court, to the extent that it dissolves the said injunction, is erroneous. The said circuit court should have wholly overruled the motion to dissolve the said injunction, not only as to the execution for costs in said decree mentioned, but as to all the other executions therein mentioned; it is therefore decreed and ordered, that the said decree of the_ said circuit court, so far as the same is hereinbefore declared to be erroneous, be reversed and annulled, and the residue thereof be affirmed; and that the appellees pay to the appellants their cost by them expended in the prosecution of the appeal aforesaid here. And the cause is remanded to the said circuit court, with directions to reinstate the said injunction so far as the same has been dissolved by the decree aforesaid, and for further proceedings in the cause to a final decree in conformity with the. opinions and principles herein expressed and decreed; all of which is ordered to be certified to the said circuit court of Wythe. Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481301/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Eduardo Marcos Lujan v. The State of Texas Appellate case number: 01-22-00771-CR and 01-22-00772-CR Trial court case number: 21-0249-K26 and 21-0250-K26 Trial court: 26th District Court of Williamson County According to a motion to abate filed by appellant, he pleaded guilty to the offenses of possession of a controlled substance and unlawful possession of a firearm by a felon. Appellant pleaded guilty to these two offenses without an agreed recommendation from the State concerning punishment. The trial court sentenced appellant in both causes on September 7, 2022 to five years imprisonment in the Texas Department of Criminal Justice, with sentences to run concurrently. The trial court signed a certification of the defendant’s right to appeal finding that these were not plea-bargain cases and appellant had the right to appeal punishment. Appellant filed notices of appeal on September 7, 2022. On October 31, 2022, appellant filed unopposed motions to abate both appeals, stating that appellant no longer wished to pursue his appeals. Attached to these motions are statements signed by appellant stating that he would like to abate his appeals and he understands that “this means that the appeal will not continue, and the sentence will remain as it is.” Because appellant has indicated that he no longer wishes to continue these appeals, the Court will consider these motions to abate to be motions to dismiss these appeals unless appellant responds within 10 days of the date of this order explaining why the Court should not construe the motions to abate as motions to dismiss the appeals. It is so ORDERED. Judge’s signature: /s/Richard Hightower Acting individually Date: November 3, 2022	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481303/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: In re Molina Healthcare of Texas, Inc. Appellate case number: 01-22-00809-CV Trial court case number: 2022-26514-7 Trial court: 164th District Court of Harris County On October 31, 2022, relator, Molina Healthcare of Texas, Inc., filed a petition for writ of mandamus contending that the trial court asserting that the trial court abused its discretion “in denying Molina’s Motion to Stay Discovery” pending the trial court’s consideration of Molina’s jurisdictional challenge. In connection with its mandamus petition, Molina filed a motion for emergency temporary relief, requesting that “the Court enter an order staying discovery in the underlying case” pending this Court’s consideration of the petition for writ of mandamus. In its motion, Molina contends that as a result of the trial court’s order denying its motion to stay discovery, it “is now required to respond to discovery requests issued by [r]eal [p]arty in [i]nterest, Patrick Shih, M.D., P.A.” Molina argues that “such discovery is improper until Molina’s jurisdictional challenge is adjudicated,” and “emergency relief is appropriate to maintain the status quo” pending this Court’s consideration of the mandamus petition. Relator’s motion for temporary relief is denied. It is so ORDERED. Judge’s signature: /s/ April Farris Acting individually Date: November 1, 2022	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481967/	MONCURE, P., delivered the opinion of the court. The claim in controversy in this case is a claim of the appellant, James W. Preston, under John M. Preston as assignee of a bond of the appellee, Grayson County, for the sum of twelve hundred dollars, dated on the 27th day of September, 1860, payable on the 1st day of November, 1861. and given in pursuance of an order of the county court of said county, made on the 24th day of July, 1860; which said sum was a part of the sum subscribed by said county towards the construction of “The Wilson Creek and South Fork Turnpike Company,” to which company, as obligee, the said bond was made payable. The main defence relied on in the court below was, that payment of the amount of the bond had been made by the obligor, the appellee, Grayson County, to the obligee, “The Wilson Creek and South Fork Turnpike Company” 171aforesaid, without having received notice of the assignment of said bond either from the said assignee, John M. Preston, or from any other source. The said defence was sustained by the judgment of the court below, and the question we now have to decide is, whether there be error in that judgment which requires its reversal, or whether it must not be affirmed. The law involved in the case can admit of no controversy. It is too well settled, and has been too long established to require even the citation of authority to sustain it. That law is, that payment by an obligor to an obligee of the amount of a bond which has been assigned, the obligor having no notice of such assignment at the time of such payment, is a valid payment and discharge of the debt. This proposition of law was not. and could not be controverted in the argument. The only controversy in the case, therefore, is one of fact, viz: Whether payment of the bond was in fact made by the obligor to the obligee; and if so, whether at the time of such payment the obligor had notice of the prior assignment of the bond to John M. Preston. We think it clearly appears from the record that such payment was in fact made, and made without notice on the part of the obligor at the time of such payment that the bond had been assigned to John M. Preston. On the 7th day of April, 1875, the appellant presented his said claim for allowance to the board of supervisors of Grayson County, on consideration whereof the said board refused to allow said claim or any part thereof. From which decision of the board an appeal was taken by the appellant to the county court of said^ county. On the 23d of November, 1875, the judge of said court being so situated as to render it improper, in his opinion, for him to preside at the trial of said appeal, on motion of the appellant it was ordered that the cause be removed to the circuit court of Grayson County for trial, and the clerk of the countv court was ordered to certify the same to the clerk of the circuit court, together with the papers in the cause. On the 7th of July, 1876, on the motion of the defendant, the appellee, Grayson County, it was ordered by the said circuit court that the issues in the cause be: First. Whether or not the bond has been paid by the defendant to the plaintiff or to any one under whom he claims. Second. Whether or not the plaintiff’s right to recover the money mentioned in the bond has been barred by a former judgment. Third. Whether the said bond is the bond of the defendant. On the 2d of July, 1877, the parties by their attorneys, by consent, submitted all matters of law and fact to the judgment of the said circuit court, which, having fully heard the evidence and argument ' of counsel, took time to consider thereof. And on the 6th day of July, 1877, came again the parties by their attorneys, and the court having maturely considered the transcript of the record, the testimony of witnesses and the argument of counsel, was of opinion that there was no error in the judgment and decision of the supervisors aforesaid, and affirmed the same with costs to the appellee. From that judgment of the said circuit court the appeal to this court, now under consideration, was obtained. Upon the trial of the cause in the said circuit court, two bills of exceptions were taken by the appellant to opinions of the court given against him. On these two bills the only questions presented for our decision by the record arise. All the evidence introduced on the trial on either side is set out in these two bills, and the question arising on the second of them, is whether, according to the said evidence, regarding it all to be admissible, there is any error in the judgment. The question arising on the first is as to the admissibility of certain of the evidence. We will consider, in the first instance, the question arising on the second of these bills, to-wit: Whether, upon the whole evidence, regarding it all as admissible, there is any error in the judgment. In other words, whether, upon the whole evidence, so regarded, the said bond was paid by the appellee and obligor. Gray-son County, to the obligee, The Wilson Creek and South Fork Turnpike Company, without notice of the prior assignment of the bond- to John M. Preston, the circuit court having given judgment for the defendant on the issue joined on the plea of payment, though deciding for the plaintiff on the two other issues aforesaid. Regarding all the evidence as admissible, we cannot see how there can be any doubt upon the question. The evidence shows conclusively that on the 24th day of July, 1860, an order was made by Grayson County court for the execution of the bond in question, which was accordingly thereafter exeecuted. On the day after that order was made, to-wit: on the 25th day of July, 1860, there was a levy made by Grayson County court for twelve hundred dollars, for Wilson Creek and SouthFcrkturnpikeroad, which was intended to be in payment of the bond for the sum directed by the said order made on the previous day, to be executed as aforesaid. The evidence shows why the levy was made on that day instead of being postponed for a year, as some of the justices seem to have preferred. Tt was competent for the county, of course, to anticipate the time of payment if the levy should be ready for payment before the bond should become payable. In that case the matter could be adjusted by a discount of interest. The money may have been due by the county when the bond was executed, and the time given on the bond may have been matter of accommodation to the county, as it doubtless was. But whether so or not, the county had a right to anticipate the day of payment of the bond. By making the levy a year later than it was made, the money might not be ready in time. The bond was executed on the 27th of September. 1860, and was passed by the obligee to John M. Preston on the second of October, 1860. 172It is not pretended that John M. Preston ever gave any notice to the county of the assignment of the bond to him, as he certainly ought to have done if he desired to make the county liable to him. He knew very well that the mode of payment of the debt by the county would be by levy, and that without such notice the levy would be in favor of the obligee, and that payment of the money would necessarily be made by the sheriff of the county to the obligee unless notice of the assignment should be previously given to the sheriff. The assignee was therefore egregiously in fault in not having given such notice if he desired to hold the county liable to him. In fact he seems to have credited entirely the turnpike company aforesaid. He was deeply interested in that work and had contributed to its execution, and was willing further to contribute thereto by advancing the amount of this bond to the company, and holding the bond only as collateral security of a promise made him by the company, and assigned to him in its stead state bonds which it expected to receive. Therefore, at the time this bond was passed to him by the company an assignmént was given to him in these words: “October 2, 1860. “I have this day passed to John M. Preston a bond on the County of Grayson for twelve hundred^ dollars, in payment of a debt due to said Preston for money ’loaned to The Wilson Creek and South Fork turnpike road;'the bond on Grayson County is due the 1st day of November, 3861. And I hereby agree and promise to lift said bond as soon as I receive some state bonds on the state of Virginia. “(Signed) W. C. Parks, President.” At the same time said Preston executed a receipt for the bond in these words: “October 2, 1860. “I have this day received from Colonel W. C. Parks, president of The Wilson Creek arid South Fork Turnpike Company, a bond on the County of Grayson for $1,200, due the 1st day of November, 1861, which I am to_ hold until said Parks, president. &c.. receives some 'bonds from the state of Virginia to enable him to pay to me a debt due for money loaned said company, agreeable to a written agreement. “(Signed) John M. Preston.” It was upon this latter promise that Mr. Preston no doubt mainly relied, and not on the idea of getting the money from the county. Had he purchased a bond of the county and looked to it for payment, he would doubtless have forthwith notified the county of the assignment. But he confidently looked to the company to get the state bonds and pass a sufficient amount of them to him to cover the amount of the county bond. But he was disappointed in that expectation. No bonds seem to have been obtained from the state, no doubt because of the trouble in which the state soon thereafter was involved. At all events, there is no proof of any notice to the county of assignment of its bond to Pr.eston. And on the 14th of January, 1861, the sheriff of the county, or his deputy, being ready to pay the levy, accordingly paid it to the said company, taking from its treasurer a receipt in these words: “Received of William R. Baker, D. S., twelve hundred and twelve dollars, payment in full on the claim allowed by the county court to The Wilson Creek and South Fork Turnpike Company for the year 1860. “(Signed) W. G. Young, “Treasurer of the W. C. & S. F. T. P. Co. “January the 14th, 1861.” The record shows no trace of any claim against the county on account of the said assignment to Preston, from the date thereof, to-wit: October 2, 1860, until July 2, 1869, nearly nine years, when the appellant presented the said bond to the county court of said county, and moved said court to make a levy for the same, with interest in his favor, which motion the said court overruled and refused to lay the said levy. To which op'nion and judgment of the court the appellant excepted. And in the bill of exceptions it is 'expressly stated that “it appears to the court, that on the 25th day of July, 1866, a levy was made by the court for $1,200, foi the road mentioned in the bond, and which amount went into the hands of the sheriff of Grayson County, and which amount, the court is of opinion, was to pay said bond.” Notwithstanding the said bill of exceptions, no appeal appears to have been taken from the said judgment of the countv court in July, 1869, and no further demand appears to have been made by the apoellant againstJhe county on account of said bond until the 7th day of April, 1875, nearly six years after said judgment, and more than fourteen years after said assignment, when the claim was presented to the board of supervisors as before stated. We deem it unnecessary to set out the evidence in this case to show that the fact is as before stated in regard to the payment of the bond to the obligee without notice of the assignment. Such is the plain meaning of the evidence, construed in the ordinary way. But construed as it must be in an appellate court revising a judgment of an inferior court, on evidence which is certified in a bill of exceptions to the judgment, there can be no room for question. We are therefore of opinion that the circuit court did not err in giving judgment for the defendant on the plea of payment. We do not admit that judgment ought not to have been given for the defendant on the plea of “former judgment;” but it is unnecessary to decide that question in this case. The only remaining question is, whether the court below erred in not excluding the answer of G. W. Cornett as' evidence in the case, as stated in the first bill of exceptions. It seems to be only necessary to state th.e case as presented by the record to show that there is no error in the judgment in 173this respect. The witness, Cornett, stated that in 1860 he was commonwealth’s attorney for Grayson County; that as such he was present in that year when the county levy was laid by the county court, on the 25th July, and also on the day before, when the order was made for the issue of the bond in controversy; that a majority of the justices were present on both days, but that most of them were assembled to lay the levy in an upstairs room, whilst the residue were sitting in court, and that the full court was only present in the court-room when the levy had been agreed on and was reported and finally voted; that whilst the consultation in the up-stairs room was in progress, witness was called in to advise the said justices, and did so, and then said Cornett was asked *the following question: “Will you state what the levy of $1,200 to The Wilson Creek and South Fork turnpike road laid by the county court of Gray-son, on the 25th July, 1860, was made to pay; and if you know for what, please state your means of knowledge?” To which question the witness answered that he knew said levy had been laid to pay off the bond which the order of the day before had authorized to be issued, and that he knew this because one of the points of discussion in the consultation aforesaid had been whether a levy to pay said bond should be made in the year 1860, or be deferred till the year 1861, and that as to this point mainly, he had been called upon for his advice; that there were two parties, some for an immediate levy and some for deferring it, &c.; that he had advised an immediate levy, because the other expenditures to be levied for that year were less than they had been, and since the levy had to be made — since it was understood that no further call on the county would be made by the company —it was better to make it and be done; which advice prevailed. Whereupon the plaintiff excepted to said answer as an attempt to vary the effect of the record by inconsistent parol testimony, and moved the court to disregard said answer, but the court overruled said exception and received said answer as proper evidence; to which opinion and action of the court the plaintiff excepted. We can see nothing in this answer which is at all inconsistent with the record, or which can properly be considered as an attempt to vary the effect of the same. Upon the whole we are of opinion that there is no error in the judgment, at least to the prejudice of the appellant, and that the said judgment ought to be affirmed. Judgment affirmed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481968/	ANDERSON, J., delivered the opinion of the court. The court is of opinion that there is nothing in the record to show that the debt of James A. Beville to Mrs. Jane E. Moore, as evidence by his note, and secured by deed of trust on his house and lot, is not genuine and bona fide, and for the consideration appearing on the face of said papers. The proof is that Mrs. Moore after the death of her husband, which occurred in the fall or winter of 1877, received $5,000 in money, in payment of his life policy, and that she loaned $1,000 of it to her brother, the said James A. Beville, for which he executed to her the said note and deed of trust. She at another time loaned him $800 or $850, which was secured upon horses and other personal property, which they call “livery stock.” That deed is absolute on its face, but was evidently intended only as security. She admits this debt was paid. And the bond for $800/ with credits endorsed upon it, showing its entire satisfaction, is exhibited by James A. Beville with his deposition. It is alleged by the creditors of Benjamin Beville, father of said James A., that the said lot was purchased and paid for by the said Benjamin, who caused the same to be conveyed to his said son in fraud of his creditors, and that Mrs. Moore had notice of it when she loaned the money on said security, and thereby became a participant in the fraud. It is a well established principle, that fraud must be proved, and cannot be presumed. Both James A. Beville and Mrs. Moore denv the allegation of fraud, and the latter denies that she had any knowledge of it, if there was fraud in the procurement of the title to the lot by the grantor. James A Be-ville testifies that he never, informed her or any one that the lot was acquired by him from his father. And Mrs. Moore, in answer to the question, if she ever had any intimation or knowledge of any kind that her father had advanced or paid the purchase mone3r on this house, of James A. Bevilie’s at the time of or prior to her loan of $1,000 to James A. Beville, swears that she never had. Her language is, “none in the world.” And she declares, in answer to another question, that she loaned. the money upon the faith of James Bevilie’s deed to the land: There is proof positive that Benjamin Be-ville was indebted to his son, and that Colonel Boyd was indebted to him, and that he told his son Colonel Boyd wished to sell him a lot, and proposed to him that if he would take it in payment of what he owed him, that they would make the trade; which his son agreed to. And the next day they went to see Boyd, and met him near where his (witness) house is. They walked up to where Susan Bumgardner now lives; and Colonel Boyd gave him the option to take that lot or the one he now owns. He told him he would take the latter, and his father directed Colonel Boyd to have the deed made to him. Colonel Boyd does not remember the particulars, though he says they might have occurred as stated, and what he does remember is consistent with the foregoing statement. The foregoing is proved by James A. Beville, who does not appear to have any pecuniary interest in the question. He files with his deposition his account against his father, being for money loaned and work done; and swears to the correctness of it. Although he was under age, he had entered the army of the Confederacy, and having been wounded in the service in 1862, was at home for about eight months, when he made a large portion of the amount of his account by dealing in liquor. A portion of the money was made before he entered the army — his father giving him his time — and which, together with money he sent home to him from the army, and the money he had made by dealing in liquor, which he loaned his father, constitutes his account, of all which he says he kept memoranda in his memorandum book, from which the account exhibited was copied, and which book he exhibited when asked to do so by the adverse counsel. There is no evidence in the record contradicting the testimony of this witness, or to impeach his credit; nor is there any direct testimony to prove that Mrs. Moore had any knowledge or intimation of fraud, if there was fraud, in thé transaction between Benjamin Beville and her grantor at the time she made him the loan and took the deed of trust as security, or prior thereto. But the plaintiffs in the original suit and defendants to Mrs. Moore’s bill of injunction, rely on circumstances to establish the alleged fraud in this transaction, and Mrs. Moore’s knowledge of it. They charged that Benjamin Beville was largely indebted, and had previously executed a 175deed, to-wit: on the 28th of September, 1860, conveying to his son-in-law, A. A. Moore, all his property, real and personal, with the fraudulent intent of hindering and delaying his creditors in the recovery of their debts; and thence infer that he caused the deed to be made to his son with the same fraudulent intent. And Mrs. Moore having admitted that she had been informed by her father that said deed of September, I860, had been made with such intent, they contend that it is thence inferable that she was aware that he caused the deed for the lot in question, of the 15th of September, 1863, to be made to his son James, with the same fraudulent intent, although she denies having had any such knowledge. But the latter transaction seems to be distinct from and to have had no connection with the former, and to have occurred about three years thereafter. And the deed to secure her loan was made nearly nine years thereafter, six years after the deed conveying the lot to James A. Beville was made and recorded. And the adverse parties had acquiesced in his possession and ownership during that whole period without setting up any claim upon it to satisfy their debts, and for several years afterwards. But she testifies that she never had an intimation or knowledge of any kind that her father had advanced or paid the purchase money on this house and lot of James A. Beville. Again, she swears that she never heard from any one that her father paid the money for this house a-nd lot and had the deed made to James. She also says she does not know when the lot in question was sold to James. But if she had no knowledge that her father had paid the purchase money for the lot and had the deed made to James, how can she be charged with notice of fraud in the conveyance of the title to James? We will attempt no further analysis of her testimony, but will only remark that, when fairly construed, we think there is no part of it inconsistent or in conflict with the citations we have made from it; and she manifests in no part of it a disposition to withhold anything she knows, but the whole is characterized with perfect frankness, when her answers are prejudicial to her interest as well as when they are in her favor. And the court is of opinion that the plaintiffs in the original bills and the defendants in the injunction bill, have wholly failed to invalidate the deed of trust executed by James A. Beville and wife on the house and lot in question, to secure the loan of $1,000 from Mrs. Moore. But the defendant, David Sexton, claims to be substituted to the rights and remedies of the Southwestern Bank, which, he alleges, has a judgment lien upon the said lot, which is prior to the lien of the plaintiff. It is the judgment of said bank against Benjamin Beville, who, he contends, had an equitable title to the lot in question. Commissioner English, in his report, says it seems to have been rendered and docketed in August, 1861 — more than two years orior to the date of the deed from Robert C. Kent, commissioner, to James A. Beville, and about eight years prior to the conveyance of the same lot, with the improvements he had put upon it, in trust, to secure the loan he had made from his sister, Mrs. Moore. We have seen that if said lot was purchased by Benjamin Be-ville, and paid for out of his own means, and that he caused the deed for it to he made to his son James, in fraud of his creditors, that Mrs. Moore had no knowledge of it when she lent her money to the said James, on the faith of said lot as a security, and he conveyed it in trust to secure her; and consequently that her deed was valid and unaffected by the fraud between Benjamin and James A. Beville, if any such existed. If the account given by James A. Beville of that transaction is true, and his father, Benjamin Beville. was indebted to him, and an agreement was made between them that if he would agree to take a lot from Colonel Boyd in satisfaction of what he owed him, he would purchase it from Colonel Boyd for him, and pay Boyd the price of the lot out of a debt Boyd was owing him, and that in pursuance of that agreement the lot was purchased from Boyd and conveyed to him, the said James, the said Benjamin did not thereby acquire any equitable title or interest in said lot which could subject it to the lien of the said judgment of the Southwestern Bank. But if this were not so — if the said Benjamin Beville had purchased the said lot and paid for it out of his own means, and had it conveyed to his said son in fraud of his creditors, of which the proof in the record is by no means full and satisfactory, we have seen that Mrs. Moore, being a purchaser of the legal title thereof six years afterwards, for value, without notice of the fraud, if there was fraud, or of any equity in Benjamin Be-ville, is unaffected by the fraud, and her title is good against any equity of Benjamin Beville — is it good against the equity of the creditor of Benjamin Beville by virtue of his judgment lien? If the said Benjamin Beville ever held any interest in said lot there is nothing upon record to show it. There is a clear title conveyed by R. C. Kent, commissioner of the court, to James A. Beville for the lot in question. The said deed passes Col. Boyd’s title directly to him, and it is made to him in pursuance of a decree of the county court of Wythe county of the 15th of September, 1863, to which David Sexton was a party, and which recites thai it was theretofore purchased by David E. Boyd under a prior decree in said cause ordering the sale of Thomas J. Boyd’s lands for the sum of seven hundred and fifty dollars, which has been paid to said Kent as receiver; and the deed proceeds, “therefore, in consideration of the premises aforesaid, and of a transfer from said David F. Boyd to said James A. Beville, the said Robert C. Kent, commissioner as aforesaid, doth hereby grant, with special warranty, unto the said James A. Beville and his heirs and ass-'gns, a lot or parcel of land,” therein described, which is the lot in question. And 176the deed goes on further to state as follows: “The above-named lot, purchased and paid for as aforesaid by said David F. Boyd, has been sold by him, by Thomas J. Boyd, his attorney-in-fact, in pursuance of a power of attorney executed by said David F. Boyd, and filed with the papers of said cause, for a valuable consideration, to the said James A. Beville, which consideration has been paid by said Beville to Thomas J. Boyd as attorney-in-fact of the said David F. Boyd,” the receipt whereof is acknowledged. “Therefore the said Robert C. Kent, commissioner as aforesaid, is hereby authorized and directed to convey the said lot of land to the said James A. Beville in the stead of the said David F. Boyd.” This deed was put upon record and was notice to the world, and instead of giving notice that Benjamin Beville was an intermediate purchaser, absolutely excludes the idea, because it represents that the sale was made by the commissioner to David F. Boyd, and by him, by his attorney, directly to James A. Beville, and the payment of the purchase money by said James A. Beville to the said attorney of David F. Boyd, and that the commissioner was authorized by him to make the conveyance directly to the said James A. Beville, and the name of the said Benjamin Beville is nowhere alluded to in the said deed. If it were true that Benjamin Beville had a secret equitable ^interest in the said lot, which is contradicted by the recitals of the deed, could the creditor’s judgment lien attach to that so as to over-reach the legal title of the purchaser from James A. Beville Jor value and without notice? The docketing of the judgment is required to give notice' to subsequent purchasers. But the docketing of a judgment against Benjamin Beville could give no notice of a lien of the judgment upon the land of James A. Beville, the holder of the legal title, by virtue of a secret equitable title which Benjamin Beville once had to the land, of which the bona fide purchaser for value from James A. Beville of the legal title, had no notice. The deed of trust from Janies A. Beville to R. C. Kent for the benefit of David Sexton, was made subsequent to the deed of trust given to secure the debt to Mrs. Moore, and any admissions made by him in that deed could not be binding on Mrs. Moore. Upon the whole, the court is of opinion that there is error in the decrees of the circuit court so far as they invalidate said deed of 29th of April, 1869, or subject said lot to the lien of any judgment or judgments against Benjamin Beville as against the said security of Jane E. Moore, or give priority to the subsequent deed of trust executed by James A. Beville for the benefit of David Sexton, or which require the sale of said lot for any purpose inconsistent with priority of right in the said Jane E. Moore, and to this extent said decrees must be reversed with costs, and in all other respects the court is of opinion to affirm them. BURKS, J., dissented Decree reversed.	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481358/	Opinion issued November 3, 2022 In The Court of Appeals For The First District of Texas ———————————— NO. 01-22-00031-CV ——————————— TURNER SPECIALTY SERVICES, LLC, Appellant V. MICHAELA HORN, INDIVIDUALLY AND AS NEXT FRIEND OF G.H. AND M.M., MINORS, AND ATRELLE HORN, Appellees On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2020-42026 MEMORANDUM OPINION Justin Horn died while performing his job for his employer appellant Turner Specialty Services, LLC (Turner Specialty). Appellees Michaela Horn, both in her individual capacity as Justin’s spouse and as next fried of their two minor children, along with Justin’s mother, Atrelle Horn, (collectively, the Horns), sued Turner Specialty and four other defendants.1 Among their claims, the Horns asserted that Justin died as a result of Turner Specialty’s gross negligence. Turner Specialty filed a special appearance, asserting that the trial court had neither general nor specific jurisdiction over it. The trial court signed an order denying the special appearance, and Turner Specialty appealed.2 Because the record demonstrates that Turner Specialty has sufficient minimum contacts with Texas, we conclude that the trial court has specific jurisdiction, and we affirm the order. Background Turner Specialty is a Louisiana limited liability company headquartered in Baton Rouge, Louisiana. It provides turnaround maintenance services at refineries and petrochemical facilities in states along the Gulf of Mexico, including Alabama, Mississippi, Louisiana, and Texas. In 2019, around 20 percent of Turner Specialty’s revenue was attributable to Texas projects. Turner Specialty has one office in Texas, but its parent company, Turner Industries, has additional offices in Texas, which Turner Specialty utilizes for certain purposes. For instance, Turner Specialty uses the personnel offices of Turner Industries in Texas for hiring and onboarding its 1 The other defendants are not parties to this interlocutory appeal. 2 See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(7) (authorizing interlocutory appeal of order granting or denying special appearance). 2 employees. In July 2020, Turner Specialty had 1,270 employees, with 157 of those employees working in Texas. Turner Specialty contracted with Hunt Refining Company to provide catalyst work at Hunt’s refinery in Tuscaloosa, Alabama. Catalyst work involves working in enclosed spaces, such as large tanks and reactors, in an inert atmosphere lacking oxygen. Because of the lack of oxygen, catalyst workers wear air supply equipment, including a helmet, while working. The catalyst work at the Hunt Refinery involved cleaning the inside of large tanks or reactors in an inert atmosphere. Catalyst workers are specialized workers who are in limited supply in the United States. In March 2019, Turner Specialty was seeking catalyst workers for the work at the Hunt Refinery. At that time, Justin, a Texas resident, was a catalyst worker employed by a Texas company, Cat-Spec, Ltd.—a catalyst service provider and competitor of Turner Specialty. Turner Specialty employee Jesse Faught knew Justin. On March 5, 2019, Faught texted Justin to determine whether Justin was interested in working for Turner Specialty at the Hunt Refinery. Justin indicated that he was interested, and Faught gave Justin’s contact information to Turner Specialty employee John Ellis. Ellis texted Justin and then spoke with him on phone about the job. Ellis explained that the catalyst work at the Hunt Refinery would last only 30 days but told Justin that he would use him for other jobs if he could. Turner Specialty offered Justin more 3 money than he was making at Cat-Spec, and he accepted the job offer. At the time of the communications, Justin was in Texas and Faught and Ellis were in Louisiana. Turner Specialty pays Turner Industries to use Turner Industries’ personnel office located in Beaumont, Texas. After Justin accepted the job offer, Turner Specialty directed Justin to go to the Beaumont personnel office on March 14, 2019. There, Justin filled out pre-employment paperwork, underwent drug testing and a physical examination, and received online safety training from Turner Specialty on which he was tested. Ten of the fifteen members of the catalyst crew on which Justin later worked at the Hunt Refinery also were Texas residents who received their initial safety training from Turner Specialty in Texas. Turner Specialty transported Justin and other employees from Texas to the Hunt Refinery in Alabama, where Justin started work on March 16, 2019. Once there, Justin and other members of the catalyst crew received additional training. That training related to the catalyst work. More specifically, the training covered working in confined spaces; concerned how to use air supply equipment, including a helmet, in an inert atmosphere; and involved emergency rescue procedures. To perform the catalyst work, Turner Specialty supplied Justin and the catalyst crew with air supply equipment, including helmets, that it had purchased from Edelhoff Technologies, U.S.A., LLC—a Texas limited liability company based in Texas. Turner Specialty had an agreement with Edelhoff to maintain and repair 4 the equipment and to train Turner Specialty’s employees on the equipment’s use and maintenance. Turner Specialty had purchased four helmets from Edelhoff in December 2015. One of those helmets was Helmet 29. In August 2016, Turner Specialty contacted Edelhoff, notifying it that Helmet 29 needed repair due to a broken screw. Turner Specialty sent Helmet 29 to Edelhoff in Texas where a repair was made. Edelhoff then sent it back to Turner Specialty. On March 26, 2019, Justin died while performing catalyst work at the Hunt Refinery. At the time, he was working in an inert atmosphere and wearing air supply equipment purchased from Edelhoff, including Helmet 29. On July 15, 2020, Justin’s wife, Michaela, individually and as next friend of their two minor children, filed a wrongful death suit. Michaela sued Edelhoff, asserting products-liability and negligence claims, and she sued premises owner, Hunt, for negligence. She also sued Justin’s employer, Turner Specialty. Because Turner Specialty subscribed to Texas workers’ compensation insurance, which paid death benefits to the Horn family, Michaela asserted only a gross negligence claim against Turner Specialty in the suit. See TEX. LAB. CODE. § 408.001(a)–(b) (providing that, except for instances of intentional acts or gross negligence, recovery of workers’ compensation benefits is “the exclusive remedy” for worker’s legal beneficiaries against worker’s employer for employee’s death). Later, Justin’s 5 mother, Atrelle, was added as a plaintiff, and two defendants were also added: (1) Turner Specialty’s parent company, Turner Industries, which was sued for negligence, and (2) another company, which had also supplied equipment, including alarms and sensors, for the catalyst work. In their live pleading, the Horns claimed that, “[a]t the time of his death, Justin Horn worked for Defendant Turner Specialty Services, LLC and/or Turner Industries Group, L.L.C.” The Horns alleged that, when he died, Justin was wearing an “Air Supply System” manufactured by Edelhoff that “was owned and/or in the control of Turner Specialty Services, LLC and/or Turner Industries Group, L.L.C. and/or Hunt.” They asserted, “Suddenly, and without warning to Justin Horn, the Air Supply System malfunctioned, depriving him of oxygen” and that, “[a]s a result, Justin Horn subsequently suffocated and died.” The Horns premised their strict products liability claim against Edelhoff on allegations that “the Air Supply System was defective and in an unreasonably dangerous condition” when Edelhoff sold it to Turner Specialty. Alternatively, they claimed that Edelhoff had “altered or modified the Air Supply System, rendering it defective and unreasonably dangerous.” The Horns also asserted that Edelhoff was negligent because it had not properly maintained the air supply equipment and had not properly trained “employees responsible for inspections and maintenance” of the equipment. 6 The Horns’ negligence claims against Turner Industries were based in part on allegations that it had failed to properly train its employees. In making the gross negligence claim against Turner Specialty, the Horns generally alleged that Turner Specialty’s “acts and omissions when viewed from the standpoint of [Turner Specialty], involved an extreme degree of risk, considering the probability and magnitude of the potential harm to [the Horns].” Turner Specialty and Turner Industries filed separate special appearances. Each asserted that the trial court lacked general or specific personal jurisdiction. Relevant to specific jurisdiction, Turner Industries challenged the Horns’ allegation that it had been “doing business” in Texas because it had “committed a tort in the State of Texas at facilities it owns, and/or leases, and operates, including at its leased facility in Beaumont, Texas.” Specifically, the Horns alleged that Turner Industries had “negligently trained, hired, and/or retained Texas residents who formed the crew conducting catalyst work that Justin Horn was doing on the date of the incident” and that the “negligent training, hiring, and/or retention of Texas resident workers contributed to Justin Horn’s death.” Turner Industries asserted that the Horns’ allegations that it had “negligently trained, hired, and/or retained Texas residents who formed the crew conducting the Catalyst work Justin Horn was doing on the date of the incident” were false because Turner Industries had not employed or trained Justin or the catalyst crew. Turner 7 Industries offered the affidavit of Gerald Braud, an executive vice president of both Turner Industries and Turner Specialty. Braud testified that, while Turner Specialty was a subsidiary of Turner Industries, they were separate companies. He also testified that the catalyst work at the Hunt Refinery was provided by Turner Specialty, not Turner Industries, pursuant to a contract between Hunt and Turner Specialty. Braud averred that Turner Industries “did not recruit, train, or employ Justin Horn or any other member of the Catalyst crew that was performing the Catalyst work at the Hunt Refinery.” Rather, “[t]he Catalyst crew, including Justin Horn, were employees of [Turner Specialty].” Turner Industries also asserted that it was not subject to general personal jurisdiction in Texas because it was not “essentially at home” in Texas, as required for general jurisdiction. To support jurisdiction over Turner Specialty, the Horns alleged in their live pleading that Turner Specialty had “conduct[ed] a substantial amount of business in Texas.” They also alleged that Turner Specialty had recruited Justin, a Texas resident, to perform the catalyst work at Hunt Refinery and that Turner Specialty had entered into an oral employment contract with Justin to be performed in Texas. They further alleged that Turner Specialty had a contract with Edelhoff for the purchase, maintenance, and repair of the air supply equipment in Texas. 8 In its special appearance, Turner Specialty acknowledged that it, not Turner Industries, had hired and employed Justin. Turner Specialty also acknowledged that it had contacted Justin to work on the Hunt Refinery job because he possessed the specialized skills necessary to do the catalyst work, but Turner Specialty denied that it knew that Justin was in Texas or a Texas resident at the time its representatives contacted him, and it denied that it had entered into an oral contract with Justin. Turner Specialty further asserted that the Horns’ claim against Turner Specialty did not arise out of or relate to its business dealings with Edelhoff. Turner Specialty also acknowledged that it had provided safety training in Texas to Justin and to other members of the catalyst crew who were Texas residents. But it minimized the importance of the Texas safety training: Any attempt by [the Horns] to establish personal jurisdiction over [Turner Specialty] with allegations of training in Texas, i.e., that [Turner Specialty’s] failures to train, or failure to properly train Justin Horn occurred in Texas, and such failures caused or contributed to the alleged Alabama-incident, also fail to establish personal jurisdiction over [Turner Specialty]. Turner Specialty offered the affidavit of James Watkins, its vice president. Regarding the training, Watkins testified that “Justin Horn traveled to Tuscaloosa, Alabama, arriving on or about March 15, 2019 and began safety training specific to the job as described below in Alabama on or about March 16, 2019 at [Hunt’s] facility with the majority of the other members of his Catalyst crew.” Watkins continued, 9 The only training received in Texas by Justin Horn and the Texas residents hired by [Turner Specialty] who worked on Justin Horn’s Catalyst crew was basic Safety and Health[] Orientation (“SHO”) training when they were initially hired. The SHO training involved on- line training with regard to general safety principles, not safety training specific to inert atmosphere work as further described herein. All other training including the training relevant to the Catalyst work at the Hunt Refinery was provided by [Turner Specialty] to Justin Horn and Horn’s Catalyst crew outside the State of Texas. This training included confined space, confined space attendant, helmet user qualification, fresh air supply, and rescue. Confined space training involves training to work in enclosed tanks, vessels or other confined spaces. Confined space attendant training concerns training for personnel who monitor the access to and assist entrants into the confined space. Helmet user qualification and fresh air supply training pertains to training regarding the helmet and air supply equipment for use in the inert atmosphere inside the confined spaces. Rescue training involves training concerning what to do in case of an emergency. Turner Specialty labeled Justin’s safety training in Texas as “fortuitous.” It cited Watkins’s testimony indicating that newly hired Turner Specialty employees underwent the onboarding process at whatever personnel office was the most convenient for them. Thus, if a new hire, like Justin, lived in Texas, he would be onboarded in the nearest Texas personnel office rather than being required to travel to Turner Specialty’s personnel office in Louisiana. Turner Specialty also contended that its contacts with Texas, including the training that it provided to Justin in Texas, were not substantially connected to the litigation. It asserted that “the incident from which Plaintiffs’ claims arise occurred in Alabama, and therefore, the operative facts of this litigation from which the claim arose—or TSS’ actionable conduct—occurred in and concern Alabama.” Turner 10 Specialty claimed that the safety training that Justin received in Texas “[did] not relate to the operative facts of the incident made basis of this lawsuit, nor would they satisfy the requisite ‘substantial connection’ between the operative facts and the forum.” It asserted that the catalyst training, which occurred in Alabama, was the training that had a “substantial connection to the operative facts of the litigation.” Turner Specialty also asserted that, while it conducted business in Texas, it was not subject to general jurisdiction because it did not have sufficient systematic and continuous contacts to render it “at home” in Texas. In their special-appearance response, the Horns claimed that the trial court had general and specific jurisdiction over Turner Specialty. Addressing specific jurisdiction, they asserted, inter alia, that the safety training provided in Texas by Turner Specialty to Justin and to 10 of the 15 members of the catalyst crew supported the trial court’s specific personal jurisdiction over Turner Specialty. The Horns offered Turner Specialty’s discovery responses, which confirmed that Justin and 10 members of the catalyst crew had received safety training in Texas and that Justin had received the safety training in Texas 12 days before his death. The Horns’ evidence included a 29-page printout reflecting that, in conjunction with the Texas safety training, Justin had completed an eight-module safety test at the Beaumont office. 11 Following a non-evidentiary hearing, the trial court granted Turner Industries’ special appearance but denied that of Turner Specialty. Turner Specialty now appeals the denial of its special appearance.3 Personal Jurisdiction In one issue, Turner Specialty contends that the trial court erred by denying its special appearance. A. Standard of Review As a question of law, we review de novo whether a trial court has personal jurisdiction over a nonresident defendant. See Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 8 (Tex. 2021). Resolving this question of law, though, may require a court to decide questions of fact. Id. When, as here, the court does not issue findings of fact for its special-appearance decision, we presume that all fact disputes were resolved in favor of the decision and imply all relevant facts necessary to support the judgment that are supported by the evidence, unless they are challenged on appeal. See id.; M & F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 885 (Tex. 2017). B. Applicable Legal Principles “Texas courts may assert in personam jurisdiction over a nonresident if (1) the Texas long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise 3 The Horns did not appeal the order granting Turner Industries’ special appearance. 12 of jurisdiction is consistent with federal and state due-process guarantees.” Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The Texas long- arm statute permits personal jurisdiction over a nonresident doing “business in this state.” TEX. CIV. PRAC. & REM. CODE § 17.042. The statute lists three activities that constitute “doing business”: (1) contracting with a Texas resident when either party is to perform the contract in whole or in part in Texas; (2) committing a tort in whole or in part in Texas; and (3) recruiting Texas residents for employment inside or outside of Texas. Id. However, these listed activities are non-exclusive. See id. (stating that listed activities are “[i]n addition to other acts that may constitute doing business” in Texas); Kelly v. Gen. Interior Constr., Inc., 301 S.W.3d 653, 659 n.9 (Tex. 2010) (noting list is non-exclusive). “[T]he long-arm statute’s broad doing- business language allows the statute to reach as far as the federal constitutional requirements of due process will allow.” Moki Mac, 221 S.W.3d at 575 (internal quotation marks omitted). Thus, when “doing business” is alleged as a ground for personal jurisdiction, “we only analyze whether [the nonresident defendant’s] acts would bring [it] within Texas’ jurisdiction consistent with constitutional due process requirements.” Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009). To satisfy due-process requirements, personal jurisdiction may be exercised over a nonresident defendant only if two requirements are met: (1) the defendant has 13 “minimum contacts” with the forum state and (2) the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice. Luciano, 625 S.W.3d at 8; Moki Mac, 221 S.W.3d at 575. A defendant establishes minimum contacts with a state when it purposefully avails itself of the privilege of conducting activities within the forum state. Retamco Operating, Inc., 278 S.W.3d at 338. Purposeful availment is the touchstone of the jurisdictional due-process analysis. Luciano, 625 S.W.3d at 9. “There must be ‘some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’” Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The Supreme Court of Texas has identified three distinct aspects of the “purposeful availment” requirement. First, only the defendant’s contacts with the forum are relevant because a nonresident should not be called into court in a jurisdiction solely as a result of the unilateral activity of another party or third person. Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 785 (Tex. 2005). Second, the defendant’s acts must be purposeful, as opposed to random, isolated, or fortuitous. Id. Third, the defendant must seek some benefit, advantage, or profit by availing itself of the jurisdiction. Id. A defendant’s contacts with a forum can give rise to either specific or general jurisdiction. Moki Mac, 221 S.W.3d at 575–76. As discussed below, here, we focus 14 on specific jurisdiction. To constitute the minimum contacts required for a Texas court to exercise specific jurisdiction over a nonresident defendant, the defendant’s contacts with Texas (1) must be purposeful, as discussed above, and (2) the cause of action must “arise from or relate to” those forum contacts. Id. A trial court determines a special appearance “on the basis of the pleadings, any stipulations made by and between the parties, such affidavits and attachments as may be filed by the parties, the results of discovery processes, and any oral testimony.” TEX. R. CIV. P. 120a(3); see Touradji v. Beach Capital P’ship, L.P., 316 S.W.3d 15, 23 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“The plaintiff’s original pleadings as well as its response to the defendant’s special appearance can be considered in determining whether the plaintiff satisfied its burden.”). On appeal, the scope of our review of a ruling on a special appearance includes all the evidence in the record. PetroSaudi Oil Servs. Ltd. v. Hartley, 617 S.W.3d 116, 132 (Tex. App.—Houston [1st Dist.] 2020, no pet.). The plaintiff bears the initial burden of pleading allegations sufficient to bring a nonresident defendant within the provisions of the Texas long-arm statute. Kelly, 301 S.W.3d at 658. Once met, the burden shifts to the defendant to negate all bases of personal jurisdiction alleged by the plaintiff. Id. Here, even aside from their allegations that Turner Specialty entered into contracts with Texas residents to be performed in Texas and recruited Justin, a Texas resident, to work for Turner 15 Specialty, the Horns’ allegation that Turner Specialty had “conduct[ed] a substantial amount of business in Texas” alone was sufficient to meet the minimal pleading requirement to satisfy the long-arm statute. See Devon Energy Corp. v. Moreno, No. 01-21-00084-CV, 2022 WL 547641, at 5 (Tex. App.—Houston [1st Dist.] Feb. 24, 2022, no pet.) (mem. op.) (holding that allegation that defendant did “a substantial amount of business in Harris County, Texas” satisfied initial, minimal pleading requirement). Thus, Turner Specialty had the burden to present evidence negating the Horns’ alleged bases for personal jurisdiction. See Kelly, 301 S.W.3d at 658. C. Analysis Although the Horns cite a number of contacts with Texas to support their assertion that the trial court has specific jurisdiction over Turner Specialty, we conclude that Turner Specialty’s conduct of providing safety training to Justin and his crewmates in Texas sufficiently supports specific jurisdiction. See Moncrief Oil Int’l Inc. v. OAO Gazprom, 414 S.W.3d 142, 151 (Tex. 2013) (recognizing that single contact with Texas may support jurisdiction); Nogle & Black Aviation, Inc. v. Faveretto, 290 S.W.3d 277, 282 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (focusing on one of “many different contacts” nonresident defendant had with Texas to hold that defendant was subject to specific personal jurisdiction). As discussed, the jurisdictional evidence showed that Turner Specialty provided Justin online safety training at the Beaumont personnel office 12 days before his death. In 16 conjunction with the training, Justin completed an eight-module safety test. And the evidence showed that two-thirds of Justin’s crewmates received safety training in Texas. As acknowledged by Turner Specialty in its special appearance, the Horns raised lack of proper training by Turner Specialty as conduct “caus[ing] or contribut[ing] to the alleged Alabama-incident” involving Justin’s death. We begin by determining whether the Texas safety training constituted purposeful availment. See Moki Mac, 221 S.W.3d at 576. As noted, the purposeful availment analysis considers not only the conduct of the defendant, as opposed to the plaintiff or a third party, but also considers whether those contacts were random or fortuitous and whether the defendant benefitted from those contacts. See Michiana, 168 S.W.3d at 785. In its brief, Turner Specialty characterizes its conduct of providing safety training to Justin in Texas as fortuitous. We disagree. Here, Turner Specialty’s representatives, Jesse Faught and John Ellis, initiated contact with Justin seeking his in-demand skills as a catalyst worker. The jurisdictional evidence—specifically, Ellis’s deposition testimony offered in support of the special appearance—showed that Ellis “directed” Justin to the Beaumont personnel office to complete the onboarding process, which included the safety training. Ellis qualified his testimony by stating that he directed Justin to the Beaumont office because it was a more convenient location for Justin than Turner Specialty’s Louisiana office. But the evidence showed that sending Justin to the 17 Beaumont office was not an anomaly or specific to Justin. Watkins testified in his affidavit that Turner Specialty paid Turner Industries to use the Beaumont personnel office to onboard Texas residents that it hired. Dwight Braud, an executive vice president for Turner Industries and Turner Specialty, characterized the Beaumont office as “a shared personnel office” between Turner Specialty and Turner Industries. And, as noted, 10 other Turner Specialty employees on Justin’s catalyst crew also received initial safety training from Turner Specialty in Texas. In short, the evidence showed that Turner Specialty directed Justin to complete the onboarding process, including the safety training, at their Beaumont personnel office. No evidence showed that the decision regarding where Justin would receive the safety training was made or initiated by him. Cf. id. at 787. Nor does the evidence show that the location of where Justin received the safety training was random or fortuitous. Turner Specialty paid Turner Industries to share the Beaumont personnel office for purposes of onboarding and training Texas residents that it hired. Had Turner Specialty wanted to avoid jurisdiction in Texas it could have required Justin to complete the safety training outside of Texas. See id. at 785 (“[A] a nonresident may purposefully avoid a particular jurisdiction by structuring its transactions so as neither to profit from the forum’s laws nor be subject to its jurisdiction.”). The trial court also could have reasonably inferred that Turner Specialty benefited from providing the safety training to Justin in Texas. By 18 onboarding and training employees in a location more convenient for them, it is reasonable to infer that Turner Specialty incentivized Texas residents to work for Turner Specialty. And, by doing so, Turner Specialty acquired workers, like Justin, who had skills that were in limited supply. For these reasons, we conclude that, by conducting safety training as part of the onboarding process in Texas, Turner Specialty purposefully availed itself of the privilege of conducting activities in Texas. See id. But “purposeful availment alone will not support an exercise of specific jurisdiction.” Moki Mac, 221 S.W.3d at 579. The defendant’s liability must also arise from or relate to the purposeful forum contacts. Id. “This so-called relatedness inquiry defines the appropriate ‘nexus between the nonresident defendant, the litigation, and the forum.’” Luciano, 625 S.W.3d at 14 (quoting Moki Mac, 221 S.W.3d at 579). In Moki Mac, the Supreme Court of Texas held that, for a cause of action to arise from or relate to purposeful forum contacts, “there must be a substantial connection between those contacts and the operative facts of the litigation.” Id. at 585. Since then, the United States Supreme Court in Ford Motor Company v. Montana Eighth Judicial District Court clarified that specific jurisdiction does not “always require[e] proof of causation—i.e., proof that the plaintiff’s claim came 19 about because of the defendant’s in-state conduct” because “some relationships will support jurisdiction without a causal showing.” 141 S. Ct. 1017, 1026 (2021). The Court explained, None of our precedents has suggested that only a strict causal relationship between the defendant’s in-state activity and the litigation will do. As just noted, our most common formulation of the rule demands that the suit ‘arise out of or relate to the defendant’s contacts with the forum. The first half of that standard asks about causation; but the back half, after the ‘or,’ contemplates that some relationships will support jurisdiction without a causal showing. Id. (internal citation omitted). The Supreme Court cautioned, however, “[t]hat does not mean anything goes” because the phrase “‘relate to’ incorporates real limits” to adequately protect nonresident defendants. Id. There must be an “affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that t[ook] place” in the forum. Id. at 1031 (quoting Bristol-Myers Squibb Co. v. Superior Court. of Cal., 137 S. Ct. 1773, 1776 (2017)). In Luciano, the Supreme Court of Texas declined to determine whether, after Ford, its “substantial connection” standard found in Moki Mac “exceed[ed] the bounds of due process.” 625 S.W.3d at 16 n.5. The court explained that it need not make that determination because its holding “rest[ed] on the Supreme Court’s analysis in Ford Motor Co.—a case whose factual circumstances resemble[d] those 20 [in Luciano]—to determine whether a product liability lawsuit ‘arise[s] out of or relate[s] to’ a nonresident defendant’s contacts with the forum state.” Id. After Ford and Luciano, this Court recognized that the relatedness inquiry “does not require a strict causal relationship between the defendant’s in-state activity and the litigation” but also recognized that it “requires that there be a connection between the nonresident defendant’s purposeful contacts in Texas and the plaintiff’s suit.” Weeks Marine, Inc. v. Carlos, No. 01-21-00015-CV, 2021 WL 4897714, at 3 (Tex. App.—Houston [1st Dist.] Oct. 21, 2021, pet. filed) (mem. op.) (citing Luciano, 625 S.W.3d at 14). In Ford, the Supreme Court upheld specific jurisdiction against the defendant, Ford, because there was “a strong relationship among the defendant, the forum, and the litigation,” citing that tripartite connection as being “the essential foundation of specific jurisdiction.” 141 S. Ct. at 1028 (internal quotation marks omitted). Thus, in determining whether the suit arises out of relates to a defendant’s contacts with the forum, we focus on the connection between the litigation, the defendant, and the forum. See id.; Moki Mac, 221 S.W.3d at 584–85. And, in making this determination, we are mindful that the relatedness inquiry does not require a strict causal relationship between the defendant’s in-state activity and the litigation. See Luciano, 625 S.W.3d at 14 (citing Ford Motor Co., 141 S. Ct. at 1026). 21 Here, the issue of whether Turner Specialty’s failure to properly train Justin and his crewmates caused or contributed to his death is an operative fact of the Horns’ gross negligence claim against Turner Specialty, and the safety training that Turner Specialty provided to Justin and his crewmates in Texas is directly related to that claim. See Nogle, 290 S.W.3d at 284 (holding that nonresident defendant’s contract with Texas-based engineer to design inspection procedure for wing spar supported specific jurisdiction when plaintiffs asserted negligence in design and inspection of wing spar). Thus, the direct relationship between Turner Specialty’s in-state conduct and the complained-of liability—that is, the relationship among the defendant, the forum, and the litigation—are sufficiently close to support specific jurisdiction over Turner Specialty. See Ford Motor Co., 141 S. Ct. at 1032; Moki Mac, 221 S.W.3d at 575–76. Turner Specialty argues that the Texas safety training does not have a strong enough relationship or substantial connection to the gross negligence claim because the incident occurred in Alabama, not in Texas. In support of this proposition, Turner Specialty cites Moki Mac. There, the Supreme Court of Texas determined that there was no specific jurisdiction over Moki Mac, a Utah-based tour company, sued in Texas for wrongful death by the parents of a teenager who died in Arizona while hiking with Moki Mac. Id. at 573, 585. Like here, the decedent died outside the Texas forum, but unlike here, there were no allegations of negligent conduct by the 22 non-resident defendant in Texas that led to his death. See id. at 573. The only connection Moki Mac had to Texas was sending an advertising brochure and a release to Texas, which the parents alleged contained misrepresentations on which they relied. See id. Unlike the Texas-based misrepresentations in Moki Mac, which were tangential to the plaintiffs’ core negligence claim, here, Turner Specialty’s alleged Texas-based conduct in providing improper safety training is an alleged basis for Turner Specialty’s liability. See Glencoe Capital Partners II, L.P. v. Gernsbacher, 269 S.W.3d 157, 167 (Tex. App.—Fort Worth 2008, no pet.) (distinguishing Moki Mac on ground that Texas misrepresentations, there, were “tangential to the plaintiffs’ core negligence claim,” whereas alleged Texas misrepresentations in Glencoe constituted operative facts of plaintiff’s claims). As noted, we are mindful that the relatedness inquiry does not require a strict causal relationship between the defendant’s in-state activity and the litigation, but, here, the Horns allege that the improper training, at least in part, caused or contributed to Justin’s death. Thus, Turner Specialty’s liability, if any, arises directly from and relates to the Texas safety training. Turner Specialty also points to the principle of “interstate federalism” to challenge jurisdiction. In Ford, the Supreme Court recognized that the rules comprising the minimum-contacts requirement “reflect two sets of values—treating 23 defendants fairly and protecting ‘interstate federalism.’” 141 S. Ct. at 1025. Interstate federalism is “the component of federalism doctrine that concerns the relative powers of the several States.” Hood v. Am. Auto Care, LLC, 21 F.4th 1216, 1221 (10th Cir. 2021) (citing Ford, 141 S. Ct. at 1025). “[P]rinciples of interstate federalism, which recognize that ‘[t]he sovereignty of each State implies a limitation on the sovereignty of all its sister States,’ protect defendants from ‘the coercive power of a State that may have little legitimate interest in the claims in question.’” Id. (quoting Bristol-Myers Squibb, 137 S. Ct. at 1780–81). In Ford, the Supreme Court held that the principles of interstate federalism were served, in each of the two underlying products-liability suits, by subjecting Ford to personal jurisdiction in Montana and Minnesota, respectively, in suits filed by resident plaintiffs whose defective Ford vehicles had crashed and caused injuries in those states. 141 S. Ct. at 1023. The Court rejected Ford’s argument offered to support personal jurisdiction in Washington and North Dakota where each vehicle had been purchased by its original owner many years earlier but otherwise had no other connection with the suits. Id. at 1030–32. The Court noted that, in each of those two states, the suit would “involve[] all out-of-state parties, an out-of-state accident, and out-of-state injuries,” resulting in “a less significant relationship among the defendant, the forum, and the litigation’” Id. at 1030 (internal quotation marks omitted). The Court noted that “each of the plaintiffs [had] brought suit in the most 24 natural State”—Montana and Minnesota—where the plaintiffs resided and where the injuries incurred. Id. at 1031. Here, Turner Specialty asserts that “the most natural State” for the instant suit is Alabama because that is where the incident occurred—thereby equating Alabama in this case with Montana and Minnesota in Ford and equating Texas with Washington and North Dakota. But that comparison is not apt. Justin was not a resident of Alabama but a resident of Texas. Justin had only been in Alabama for 10 days when he died performing a job for which he had been recruited, hired, and partly trained in Texas. In short, the facts here are not as clear-cut with respect to an interstate federalism analysis as they were in Ford. Nevertheless, we are mindful that, in Ford, the Court explained that the principles of interstate federalism supported jurisdiction in Montana and Minnesota because each state had significant interests in “providing [their] residents with a convenient forum for redressing injuries inflicted by out-of-state actors” and in “enforcing their own safety regulations.” Id. at 1030 (brackets in original; internal quotation marks omitted). Likewise, Texas has an interest in providing a convenient forum for its residents, when, as here, the resident was recruited, hired, and trained in Texas by an out-of- state actor who then transported the resident to another state to perform a short-term job in a potentially lethal environment. For these reasons, we conclude that the principles of interstate federalism do not tip the scale in favor of Alabama. 25 Turner Specialty also contends that its “actionable conduct that is substantially related to the operative facts of this litigation concerns the training and supervision of the air supply equipment that [Turner Specialty] provided to the Catalyst crew in Tuscaloosa, Alabama,” not its Texas conduct. Undeniably, the Horns have alleged conduct by Turner Specialty in Alabama to support their liability claim. “But the contacts an entity forms with one jurisdiction do not negate its purposeful contacts with another.” Luciano, 625 S.W.3d at 10. In other words, just because Turner Specialty could be subject to personal jurisdiction in Alabama does not mean that it cannot be subject to jurisdiction in Texas. See id. Turner Specialty further asserts that, of the training that Justin and his crewmates received, only the training in Alabama is important to the jurisdictional analysis. It cites Watkins’s affidavit in which he testified that the Alabama training pertained to the catalyst work whereas the Texas training covered “general safety principles, not safety training specific to inert atmosphere work.” Turner Specialty contends, “[T]here is no evidence that any training in Texas, directly or even tangentially, relates to the circumstances surrounding the incident. Rather, it is much more likely that the Catalyst training provided in Alabama, to the extent relevant at all, could be ‘at issue.’” However, whether the Texas safety training caused or contributed to Justin’s death presents “merits-based questions that should not be resolved in a special appearance.” Nogle, 290 S.W.3d at 284; see Moki Mac, 221 26 S.W.3d at 583 (declining to adopt jurisdiction rule that “would require a court to delve into the merits to determine whether a jurisdictional fact is actually a legal cause of the injury”); Michiana, 168 S.W.3d at 791 (stating special appearance involves consideration of only jurisdiction, not merits or liability). For the reasons discussed, we conclude that Turner Specialty purposely availed itself of conducting activities in Texas and that the Horns’ gross negligence claim arises from or relates to those activities. We hold that the allegations and the evidence establish that Turner Specialty had sufficient minimum contacts with Texas to be subject to specific personal jurisdiction.4 We further hold that the trial court did not err when it denied Turner Specialty’s special appearance. Thus, we overrule Turner Specialty’s sole issue.5 4 On appeal, Turner Specialty does not argue that the trial court’s exercise of personal jurisdiction over it would offend traditional notions of fair play and substantial justice—the second prong in the jurisdictional analysis. Thus, we do not address that aspect of personal jurisdiction. See Lucas v. Ryan, No. 02-18-00053-CV, 2019 WL 2635561, at 10 (Tex. App.—Fort Worth. June 27, 2019, no pet.) (mem. op.) (citing TEX. R. APP. P. 38.1(f), (i)); Twyman v. Twyman, No. 01-08-00888-CV, 2009 WL 1331341, at 7 (Tex. App.—Houston [1st Dist.] May 14, 2009, no pet.) (mem. op.); Bos. Med. Grp., Inc. v. Ellis, No. 14-06-00801-CV, 2007 WL 2447360, at *3 n.1 (Tex. App.—Houston [14th Dist.] Aug. 30, 2007) (mem. op.). 5 Because our holding that Texas has specific personal jurisdiction over Turner Specialty is dispositive, we need not address Turner Specialty’s challenge to general jurisdiction. See TEX. R. APP. 47.1. 27 Conclusion We affirm the trial court’s order denying Turner Specialty’s special appearance. Richard Hightower Justice Panel consists of Chief Justice Radack and Justices Landau and Hightower. 28	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481359/	Opinion issued November 3, 2022 In The Court of Appeals For The First District of Texas ———————————— NO. 01-22-00082-CV ——————————— NICHOLAS NORTHFELL, Appellant V. TAYLOR NORTHFELL, Appellee On Appeal from the 280th District Court Harris County, Texas Trial Court Case No. 2021-62671 MEMORANDUM OPINION Appellant, Nicholas Northfell (“Nick”), challenges the trial court’s issuance of a final protective order prohibiting him from, among other things, committing family violence against appellee, Taylor Northfell, and their three minor children. In his sole issue, Nick contends that the evidence is legally insufficient to support the trial court’s issuance of the protective order. We affirm. Background On September 28, 2021, Taylor filed an application for a protective order against her husband, Nick, alleging that he had “engaged in conduct that constitutes family violence” and had “committed acts that were intended . . . to result in physical harm, bodily injury, assault, or sexual assault or were threats that reasonably placed [Taylor] in fear of imminent physical harm, bodily injury, assault, or sexual assault.” Taylor further alleged that Nick had engaged in conduct “reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” her and their children. In her attached affidavit, Taylor testified that she and Nick had been married since 2014 and had three children, ages two, six, and eight. She testified: Nick loses control of his temper and becomes physically violent when he is angry. The problems becomes much worse when he is drunk. Nick drinks in excess, even when in the presence of our children. Nick needs to stop drinking and get his anger under control and without the assistance of this court this will never happen. I am afraid for myself and for our children. On October 11, 2016, Nick became “extremely intoxicated” at a friend’s wedding rehearsal dinner. Taylor testified that she: tried to persuade Nick to leave the party because he was so drunk. When I was able to get him outside, he push[ed] me down the stairs. After that, I asked my brother to help me carry him on to the bus 2 because he had passed out. When he woke up, he thought he had urinated on himself and was embarrassed and began to berate me and spit on me. My father had to take him home in a taxi. Taylor also testified that, at home during the fall of 2016, Nick was “drunk” and “kept trying to force himself on” her. She “repeatedly told him to stop, but he refused and [she] could not escape.” Nick “pushed [her] over the stove in the kitchen and forced [her] to have intercourse against [her] will.” Taylor further testified that, on the night of September 26, 2021, Nick was intoxicated, and she locked herself in her bedroom. Nick banged on her bedroom door and yelled at her to open it. When she refused, he broke through the door, damaging the frame. He grabbed Taylor’s arm and held her as she tried to crawl away. When their daughter began crying nearby, Nick released Taylor, but “grabbed” their daughter and held her as he continued to yell at Taylor. When Taylor escaped to the kitchen, Nick pursued her, while still holding their daughter. He later went to Taylor’s bedroom, “threw her suitcase into the living room,” and pushed Taylor out the front door of the house. Taylor testified that she left because she was afraid of Nick. The next day, Nick did not return her messages, and she learned that he did not take the children to school. She was frightened and called the police. After a hearing, the trial court issued a temporary ex parte order and set a hearing on the application.1 Nick answered, denying the allegations. 1 See TEX. FAM. CODE § 83.001. 3 At the hearing on the application, at which Taylor and Nick appeared with counsel, the trial court admitted into evidence Taylor’s application, supporting affidavit, and the temporary order. At the hearing, Taylor testified in further detail about the events at issue. She again noted that she and Nick had been married since 2014 and had three children, ages two, six, and eight. She testified: “I think he [has drunk] every single day that I’ve known him.” She had seen him “almost finish” a “fifth” of vodka in four or five hours2 and had “never seen him stop drinking for maybe more than a couple days.” She stated that he “gets violent when he’s drinking.” Taylor testified that, in 2016, at a friend’s wedding rehearsal dinner in Guadalajara, Mexico, Nick became so intoxicated that he was “incoherent” and “falling over at the table.” When Taylor tried to get him to leave, he got mad and pushed her down a flight of steps and onto the ground, injuring her back. He also “passed out” in the grass. Taylor’s brother got Nick to a shuttle bus and laid him across the back seats. When he awoke, Nick thought he had urinated on himself, was embarrassed, and spat at Taylor. Taylor’s father intervened. At home during the fall of 2016, Nick had been drinking and “forced himself on [Taylor] over the stove in [their] kitchen,” and she was unable to free herself. She 2 A “fifth” is a unit of volume formerly used for distilled beverages that is equal to one fifth of a gallon. See Bates v. State, 494 S.W.3d 256, 262 n.1 (Tex. App.— Texarkana 2015, pet. ref’d). 4 testified that, although she “said no to him the whole entire time,” he “pushed [her] over the stove” and “just had sex with [her] anyways.” Taylor also testified that, in 2019, Nick was intoxicated, got into an auto collision, and left the scene, as follows: A. [Nick] had gone out to a bar and came home completely trashed. And the next day I had to go to work and I went to work, but I just felt like something was off, so I called my boss and I told her I just couldn’t go in. And I had drove back home and he had parked his car in front of our house, which I found to be weird. And I just drove passed it and I noticed that the front end has been smashed in. Q. When you say he was trashed the night before, what did you mean by that? A. Like he came home, I would say in a blackout state. Q. When—so what happened after you saw the front of the car? A. I went inside and I asked him what happened and he had no idea. Q. Okay. Did he eventually tell you anything about what happened? A. He says he think[s] he hit a green pick-up truck. He doesn’t really remember. Q. How did he refer to that incident? A. Like— Q. What did he call it? A. He did a hit and run. Q. Okay. And what concerns did you have when he said that? A. I asked him, I was like, what if you hurt somebody. I mean he could have killed somebody. I don’t know. Taylor noted that, during that same “bender,” which went on for “at least three” days, Nick said that he wanted to kill himself and “smashed a beer bottle over 5 his own head.” There was “glass everywhere,” “he was profusely bleeding from his forehead,” and there was blood all over the patio and carpeting of their house. On September 26, 2021, when Taylor arrived home at around 8:00 p.m., she saw that Nick was intoxicated. He was talking to himself and being loud and erratic. Taylor noted that, during the previous two months, at her request, she had been sleeping in the master bedroom and Nick had been sleeping in a guest room. She went into her bedroom and closed the door and locked it. Her two older children were asleep upstairs and her two-year-old daughter was sleeping on a couch “[r]ight outside” the master bedroom door. Taylor testified that Nick went outside and peered into her bedroom window at her. He then came back inside and tried to get into her bedroom. He eventually “broke into [her] bedroom and broke the door off the frame.” The trial court admitted into evidence a series of video clips, with audio, taken from Taylor’s phone, including a clip of Nick yelling and cursing at Taylor through the bedroom door, banging on the door, and demanding to be let into the room, with Taylor pleading that he leave her alone, and a clip of Nick breaking through the door. Taylor testified that, when Nick entered her room, he grabbed her by her left arm, pulling her from the bed and trying to take her phone from her hand. She “tried to scramble to the other side of the bed” and their daughter, who had been sleeping on the couch outside her bedroom, woke up and began crying. The family dog was 6 also on the bed. Taylor testified that Nick released her arm, picked up the crying child, and demanded that Taylor leave the house. The trial court admitted a clip of Nick lunging at Taylor and reaching toward her and a clip of Nick holding their child and demanding that Taylor leave the house. The trial court also admitted photographs of the broken door and Taylor’s arm. Taylor testified that she got dressed and tried to leave, but that Nick blocked the doorway with his body. Once she got through, Nick followed her to the kitchen, where he grabbed her hand and tried to take her phone by “crushing” her hand and “banging it up against the wall.” Nick eventually let her go and went to her bedroom and took her suitcase, still packed from visiting her brother the weekend before, and threw it into the living room. When Taylor picked up her suitcase, Nick pushed her through the front door. Taylor noted: “He told me that I better get my effing dog too and then I couldn’t get her. And so when he shut the door, I kind of remember myself just yelling for him not to hurt her.” But, Nick “wouldn’t answer.” Taylor further testified: A. Well the next day, he wouldn’t answer the phone. I had tried to call him. I had had my mom try to call him, my brother try to call him. I called the schools. He didn’t take the kids to the school. Q. When you left the house, where were the children? A. They were still inside. Q. Okay. And why did you leave them there? A. Because I was afraid if I stayed they would get hurt. 7 Q. And so you went to your brother’s house. And then when is the next time you saw him, if you did? A. Next day. Q. What happened then? A. That’s when we tried to get a hold of him and we couldn’t get— he wouldn’t answer our phone calls and he had kept the kids home from school. Q. Okay. What concerns did you have about that? A. Honestly, I was kind of afraid that he had killed himself or something or hurt the kids. Q. Has he ever threatened to kill himself before? A. Yes. Taylor testified that Nick verbally abuses her in front of the children, that he has punched holes in the walls in their house, and that she has had to take the children upstairs because Nick was smashing furniture. She further testified that Nick was “really mean” to the family dog, “Sandy,” and that Sandy was scared to go near him because he yelled at her and hit her. She noted that Nick had left the children alone in the swimming pool in their backyard while he was drinking at a neighbor’s house. Nick testified: “I probably drink four times a week, five times a week.” He noted that, “on an average day,” he drinks “maybe a few beers,” but that, “on occasion,” he drinks “twelve or more beers in a day” and drinks vodka. He admitted that he had been drinking at the rehearsal dinner on October 11, 2016. He testified, however, that he was “fine” and “just sitting at the table.” He asserted that Taylor made him get on the bus without cause and that he eventually 8 walked outside and got on the bus. He noted that there were no stairs outside and that he did not recall falling down. Nick admitted having engaged in sexual intercourse with Taylor “many times” while he was intoxicated but denied that he had ever assaulted her. With respect to Taylor’s testimony about the 2016 sexual assault, Nick testified that he recalled the “act” but “never recalled her saying no to [him].” Nick admitted that he had “smashed” a “glass cup” on his head, but denied that he had been drinking or that he was trying to kill himself. He asserted, rather, that he had lost control of his “emotions.” He admitted that he had wrecked his car in 2019, but denied that he was intoxicated. He testified that “somebody in front of [him] stopped in their lane” and that he hit them, but that they had left the scene. He did not report the matter to the police or to his insurance company. Nick admitted that he had been drinking on September 26, 2021, but denied that he was intoxicated. He testified that Taylor came home at around 8:00 p.m. and went into her bedroom. Minutes later, he heard her lock the door. He admitted that he “got up and went outside and was looking through the window” at her. He believed that Taylor had been unfaithful and that she was “sending pictures of herself to other guys.” He knocked on the door and said that they needed to talk. He testified that, when Taylor refused, he broke through the door because “she was avoiding the 9 situation.” He admitted that, when he saw Taylor filming him, he “reached and grabbed the phone from her.” He testified that she followed him into the kitchen and tried to retrieve it from him. While they were screaming at each other, their youngest daughter, who was asleep on a nearby couch, woke up and started crying. Nick returned Taylor’s phone to her, went and picked up the child, and followed Taylor back into her bedroom. He admitted that, while still holding their daughter, he called Taylor a “fing asshole” and yelled at her to “leave the fing house.” He stated that Taylor then packed and went to her brother’s house. Nick denied that his conduct was a product of intoxication, but asserted that he was angry and that Taylor had provoked him. He admitted that he had put his fists through the sheetrock walls in the garage, but asserted that they were “redoing the garage walls.” He denied breaking furniture in the house, denied that he is a danger to his children, and denied having ever left them alone in a swimming pool. On January 11, 2022, the trial court issued an “Amended Final Protective Order,” stating: The Court finds that Applicant, [Taylor] and Respondent, [Nick] are married and have three (3) children . . . . The Court finds that family violence has occurred and that family violence is likely to occur in the future. The Court finds that Respondent, [Nick], has committed family violence. The Court finds that there are reasonable grounds to believe that Applicant was a victim of a sexual assault under Texas Penal Code 22.011 and Chapter 7(B) of the Texas Code of Criminal Procedure. The Court finds that the following protective orders are for the safety and welfare and in the best 10 interest of Applicant and other members of the family and household and are necessary for the prevention of family violence. The Court finds that good cause [exists] to prohibit Respondent from communicating in any manner with Applicant, or any Protected Person, except through Respondent’s attorney or a person appointed by the Court, with the exception of communications regarding the minor children . . . , which will be restricted to Our Family Wizard. (Emphasis added.) In its order, the trial court identified Taylor and each of the children as a “Protected Person” and decreed that Nick was: 1. Prohibited from committing family violence; mental and emotional injury; physical injury; . . . . 2. Prohibited from doing any act that is intended to result in physical harm, bodily injury, assault, or sexual assault against any Protected Person. 3. Prohibited from doing any act that is a threat that reasonably places any Protected Person in fear of imminent physical harm, bodily injury, assault, or sexual assault. 4. Prohibited from committing abuse of a child of the family or household . . . . 5. Prohibited from communicating directly with any Protected Person in a threatening or harassing manner. 6. Prohibited from communicating a threat through any person to any Protected Person. 7. Prohibited, on the basis of good cause shown, from communicating in any manner with any Protected Person except through Respondent’s attorney or a person appointed by the Court, unless Respondent is exercising court ordered possession and access. 11 8. Prohibited from engaging in conduct directed specifically toward any Protected Person, including following the Protected Person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the Protected Person. 9. Prohibited from going to or near, or within 200 yards of, any location where any Protected [P]erson is known by Respondent to be and further prohibited from remaining within 200 yards after Respondent becomes aware of the Protected Person’s presence, unless Respondent is exercising court ordered possession and access. 10. Prohibited from going to or near the residence or place of employment or business of any Protected Person. Respondent is prohibited from going to or near Applicant’s residence . . . and Applicant’s place of employment . . , and is specifically ORDERED to maintain 200 yards therefrom, unless Respondent is exercising court ordered possession and access. 11. Prohibited from going to or near the residence, childcare facilities, or schools [the children] normally attend[] or in which [the children] normally reside[]. Respondent is prohibited from going to or near [specified locations]. Respondent is further prohibited from going to or near the children’s residence . . . and is specifically ORDERED to maintain 200 yards therefrom the schools and residence, unless Respondent is exercising court ordered possession and access. 12. Prohibited from removing [the children] from the possession of [Taylor], unless Respondent is exercising court ordered possession and access. 13. Prohibited from harming, threatening, or interfering with the care, custody, or control of a pet . . . that is possessed by or in the actual or constructive care of any Protected Person. 14. Prohibited from transferring, encumbering, or otherwise disposing of property mutually owned or leased by Applicant and Respondent, except when in the ordinary course of business. 15. Prohibited from possessing a firearm or ammunition . . . . 16. Prohibited from interfering with Applicant’s use of the residence . . . , including but not limited to disconnecting utilities or telephone service or causing such services to be disconnected. 12 In its order, the trial court granted Taylor exclusive use and possession of the residence and ordered that Nick pay temporary spousal support. In addition, it granted Taylor exclusive possession of the children and ordered that Nick pay child support. The trial court granted Nick electronic access to the children, ordered that he complete a Battering Intervention and Prevention Program, parenting course, and substance-abuse evaluation, and stated that it would consider granting Nick possession and access to the children after a Compliance Hearing. The trial court further found that there are reasonable grounds to believe that [Taylor] was a victim of sexual assault under the Penal Code 22.011 and Chapter 7(B) of the Code of Criminal Procedure. The Court therefore finds that the Court may grant a protective order for a period that is longer than [a] two-year period. IT IS THEREFORE ORDERED that this Order shall continue in full force and effect for the protection of [Taylor] for the next sixteen (16) years, or until December 6, 2037. IT IS FURTHER ORDERED that this order shall continue in full force and effect for the protection of [the children] until December 6, 2026. Legal Sufficiency of the Evidence In his sole issue, Nick challenges the legal sufficiency of the evidence supporting the trial court’s finding that “family violence is likely to occur in the future.” 13 Standard of Review We review the sufficiency of the evidence supporting a trial court’s findings in a protective order under the same standards that we apply in reviewing jury findings. Teel v. Shifflett, 309 S.W.3d 597, 604 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). When, as here, an appellant challenges the legal sufficiency of the evidence supporting an adverse finding on an issue on which he did not have the burden of proof, he must demonstrate that no evidence supports the finding. See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). We will sustain a legal-sufficiency or “no-evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We consider the evidence in the light most favorable to the finding and indulge every reasonable inference that would support it. Id. at 822. In a bench trial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. at 819. Thus, it may choose to believe one witness and to disbelieve another and may resolve any conflicts in the evidence. See id. 819–20. 14 Applicable Law The Texas Family Code defines “family violence” as: an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault . . . . TEX. FAM. CODE § 71.004(1). Family Code section 81.001 provides that a trial court “shall render a protective order as provided by Section 85.001(b) if the court finds that family violence has occurred and is likely to occur in the future.” Id. § 81.001. Section 85.001 provides: (a) At the close of a hearing on an application for a protective order, the court shall find whether: (1) family violence has occurred; and (2) family violence is likely to occur in the future. (b) If the court finds that family violence has occurred and that family violence is likely to occur in the future, the court: (1) shall render a protective order as provided by Section 85.022 applying only to a person found to have committed family violence; and (2) may render a protective order as provided by Section 85.021 applying to both parties that is in the best interest of the person protected by the order or member of the family or household of the person protected by the order. (c) A protective order that requires the first applicant to do or refrain from doing an act under Section 85.022 shall include a finding that the first applicant has committed family violence and is likely to commit family violence in the future. 15 (d) If the court renders a protective order for a period of more than two years, the court must include in the order a finding described by Section 85.025(a-1). Id. § 85.001; see also id. §§ 85.021 (governing contents of protective order applying to any party), 85.022 (governing contents of protective order applying to person who committed family violence). A trial court may issue a protective order for a period exceeding two years if it finds that “the person who is the subject of the protective order” “committed an act constituting a felony offense involving family violence against the applicant . . . , regardless of whether the person has been charged with or convicted of the offense.” Id. § 85.025(a-1)(1) (emphasis added). Discussion Here, the trial court’s order states that it found (1) that “family violence has occurred” and (2) that “family violence is likely to occur in the future.” See id. §§ 81.001, 85.001(a). The trial court found that Respondent, [Nick], has committed family violence. The Court finds that there are reasonable grounds to believe that Applicant was a victim of a sexual assault under Texas Penal Code 22.011 . . . .” A person commits the second-degree felony offense of sexual assault if he “intentionally or knowingly” “causes the penetration of the . . . sexual organ of another person by any means, without that person’s consent.” TEX. PENAL CODE § 22.011(a)(1)(A), (f). “A sexual assault under Subsection (a)(1) is without the 16 consent of the other person if: . . . the actor compels the other person to submit or participate by the use of physical force, violence, or coercion.” Id. § 22.011(b)(1). The record shows that Taylor testified that, on an occasion that occurred at their home during the fall of 2016, Nick had been drinking and “forced himself on [Taylor] over the stove in [their] kitchen,” and she was unable to free herself. Although she “said no to him the whole entire time,” he “pushed [her] over the stove” and “just had sex with [her] anyways.” See id. § 22.011(a)(1)(A), (b)(1). Nick testified that he recalled the “act” but “never recalled her saying no.” The trial court, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, chose to credit Taylor’s testimony and to discredit that of Nick. See City of Keller, 168 S.W.3d at 819. The evidence is legally sufficient to support the trial court’s finding that Nick committed sexual assault. See, e.g., Edoh v. State, 245 S.W.3d 606, 609 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Under the Family Code, “family violence” includes an act of sexual assault by a family member against another family member. See TEX. FAM. CODE § 71.004(1). Thus, the evidence is likewise legally sufficient to support the trial court’s finding that Nick “has committed family violence.” See id. §§ 81.001, 85.001(a)(1). On appeal, Nick does not challenge this finding. Rather, Nick challenges the legal sufficiency of the evidence supporting the trial court’s finding that “family violence is likely to occur in the future.” See id. 17 §§ 81.001, 85.001(a)(2). “[A] single act of family violence supports a finding that [the actor] is likely to engage in future family violence.” Vinzant v. Helduser, No. 01-21-00633-CV, 2022 WL 3588756, at 7 (Tex. App.—Houston [1st Dist.] Aug. 23, 2022, no pet.) (mem. op.); Boyd v. Palmore, 425 S.W.3d 425, 432 (Tex. App.— Houston [1st Dist.] 2011, no pet.) (“The statutory language . . . does not require that a likelihood finding be based on more than one act of family violence.”). In addition, in cases involving protective orders against family violence, evidence that a person has engaged in abusive conduct in the past permits an inference that the person will continue this behavior in the future. Lewis v. Yancy, No. 01-19-00348-CV, 2020 WL 7251448, at 5 (Tex. App.—Houston [1st Dist.] Dec. 10, 2020, no pet.) (mem. op.); Teel, 309 S.W.3d at 604 (“The trial court reasonably could have concluded that future violence is likely to occur based on the testimony showing a pattern of violent behavior.”). Here, the evidence shows that Nick not only committed an act constituting a felony offense involving family violence against Taylor, but also, as discussed above, that he engaged in a pattern of violent conduct throughout their marriage. Thus, there is more than a scintilla of evidence supporting the trial court’s finding that Nick is likely to engage in family violence in the future, and the evidence is legally sufficient to support the trial court’s finding. See TEX. FAM. CODE §§ 81.001, 85.001(a)(2); Vinzant, 2022 WL 3588756, at 7 (“Vinzant’s commission of a felony 18 offense involving family violence on June 10, 2021 permits a finding that he is likely to engage in future family violence.”); Boyd, 425 S.W.3d at 432 (“Boyd’s commission of an act of family violence during the October 2009 incident would permit a finding that he was likely to engage in future family violence.”); Teel, 309 S.W.3d at 604; see also City of Keller, 168 S.W.3d at 810. Nick asserts that the 2016 sexual assault is too remote in time to support the trial court’s finding. However, “[n]othing in the statute places a time constraint on the acts of family violence that a trial court can consider when presented with an application for a protective order.” Caballero v. Caballero, No. 14-16-00513-CV, 2017 WL 6374724, at 4 (Tex. App.—Houston [14th Dist.] Dec. 14, 2017, no pet.) (mem. op.); see Wilkerson v. Wilkerson, 321 S.W.3d 110, 117–18, 121 (Tex. App.— Houston [1st Dist.] 2010, pet. dism’d) (finding likelihood of future family violence based on threats of physical harm occurring six years prior to application for protective order); see also Kuzbary v. Kuzbary, No. 01-14-00457-CV, 2015 WL 1735493, at *5 (Tex. App.—Houston [1st Dist.] Apr. 14, 2015, no pet.) (mem. op.) (holding that acts of family violence that occurred two to four years before application for protective order not too remote to support issuance of order). Because the trial court’s findings are supported by legally sufficient evidence, we hold that the trial court did not err in issuing its protective order. See TEX. FAM. CODE §§ 81.001, 85.001. 19 We overrule Nick’s sole issue. Conclusion We affirm the trial court’s “Amended Final Protective Order.” Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Landau and Hightower. 20	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481306/	COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON ORDER Appellate case name: Ex parte Joseph Gomez Appellate case number: 01-20-00004-CR & 01-20-00005-CR Trial court case number: 1657519 & 1657521 Trial court: 338th District Court of Harris County The motion for en banc reconsideration is denied. It is so ORDERED. Judge’s signature: /s/ Peter Kelly Acting for the Court Panel consists of Chief Justice Radack and Justices Kelly, Goodman, Landau, Hightower, Countiss, Rivas-Molloy, Guerra, and Farris. Date: November 1, 2022	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481308/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00167-CV ___________________________ IN THE INTEREST OF K.C. AND N.T., CHILDREN On Appeal from the 158th District Court Denton County, Texas Trial Court No. 18-9648-158 Before Sudderth, C.J.; Birdwell and Bassel, JJ. Opinion by Chief Justice Sudderth OPINION The primary issue in this appeal from a judgment terminating the parent–child relationship (1) between Mother and K.C. and N.T and (2) between Father and K.C. 1 is an issue of first impression: whether the trial court lost jurisdiction by failing to extend the Texas Family Code’s automatic-dismissal deadline before its expiration when one of its extension orders omitted either a date certain or a time frame by which a new dismissal date could be calculated and a subsequent extension order was rendered too late. 2 Because we hold that the trial court lost jurisdiction over the suit automatically, we vacate the trial court’s judgment and dismiss the underlying suit without prejudice to refiling. Background On October 17, 2018, after receiving a referral of “neglectful supervision” by Mother, the Department of Family and Protective Services filed a petition requesting to be named temporary managing conservator of K.C. and N.T. The same day, the trial court signed an order naming the Department as the children’s temporary managing conservator. Mother was served on October 18, 2018, and Father was served on October 16, 2019. 1 At the time of trial, N.T.’s father’s identity was unknown; therefore, the trial court’s judgment terminated the parent–child relationship between N.T. and his unknown father. 2 We have found no Texas Supreme Court authority addressing this precise issue, nor has this court decided it previously. 2 Before service of the suit on Father, Mother and the Department agreed to an extension of the initial dismissal date, October 21, 2019, to April 17, 2020. The trial court signed an order extending the dismissal deadline according to the agreement. On February 11, 2020, after a permanency hearing, the trial court signed an order again listing the dismissal date as April 17, 2020, and also setting trial for March 30, 2020. On March 13, 2020, the Texas Supreme Court issued its First Emergency Order Regarding the COVID-19 State of Disaster (1st Order), 596 S.W.3d 265 (Tex. 2020). In that order, the court gave Texas courts the authority, “[s]ubject only to constitutional limitations,” to “[m]odify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than 30 days after the Governor’s state of disaster has been lifted.”3 Id. at 265 (emphasis added). On March 19, 2020, the Texas Supreme Court issued its Third Emergency Order Regarding the COVID-19 State of Disaster (3rd Order), in which it clarified that the 1st Order applied to Family Code Section 263.401 deadlines and that those deadlines “may or must be modified or suspended . . . to avoid the risks of 3 Governor Abbott first issued the disaster proclamation on March 13, 2020. Tex. Gov. Proclamation No. 41-3720, 45 Tex. Reg. 2094, 2094–95 (2020). He has renewed it each month since then, most recently as of October 19, 2022. Tex. Gov. Proclamation No. 41-3934, ____ Tex. Reg. ____, ____ (2022); see Tex. Gov’t Code Ann. § 418.014(c) (providing that state of disaster declared by governor may not last more than 30 days unless renewed). 3 disaster and still protect the interests of all involved in these difficult circumstances.” 596 S.W.3d 266, 267 (Tex. 2020).4 On March 20, 2020, Mother and Father reached the following mediated settlement agreement with the Department: a. The parties agree to remove this case from the jury trial docket and ensure it is placed on the bench trial docket. b. The parties agree to convene the bench trial if at all possible due to the COVID - 19 [pandemic], on the trial date or to reasonably set this matter on a bench trial docket immediately thereafter if not possible. c. The parties agree to immediately convene the trial so that the out of state placement options can be explored. d. The parties agree that such reconvening of the trial is for the purpose of extending the dismissal date so that th[e] out of state placement options can be considered. Instead of convening trial, the Department moved on April 13, 2020, to extend the dismissal deadline from April 17, 2020, to “a date specific within 30 days of the end of the statewide disaster declaration.” [Emphasis added.] 4 Both the 1st and 3rd Orders were initially effective until May 8, 2020, and were further extended until June 1, 2020. Twelfth Emergency Order Regarding the COVID-19 State of Disaster (12th Order), 629 S.W.3d 144, 146 (Tex. 2020); 3rd Order, 596 S.W.3d at 267; 1st Order, 596 S.W.3d at 265; see also C.C. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-21-00587-CV, 2022 WL 1121428, at 2 (Tex. App.––Austin Apr. 15, 2022, no pet.) (mem. op.) (explaining effect of 1st and 3rd Orders, listing other emergency orders dealing with Section 263.401 extensions, and noting that “as the COVID-19 pandemic continued through 2020 and 2021, the Supreme Court authorized additional extensions of the automatic dismissal date, which had the effect of permitting the trial court to continue extending the dismissal date with each successive Supreme Court order”). 4 On April 14, 2020, the trial court signed an order5 purporting to extend the dismissal date.6 In the order, the trial court found that “[t]he COVID-19 pandemic and subsequent” 1st Order constituted extraordinary circumstances justifying an extension of the dismissal deadline and that the deadline “shall be extended.” But the order did not list how long the dismissal deadline should be extended, nor did it list a specific date for dismissal; it simply stated, “The dismissal date is extended to __________________________,” and it noted, “The final trial date is reset to __________________________, 2020 at 9:00 A.M.” The order also set the next permanency hearing––“[p]ursuant to § 263.306(a-1)(7), Texas Family Code”7––for May 11, 2020. The court’s online docket entry for that day simply records the order’s title.8 The recitals stated that the order had been “presented to the Court.” 5 At the time the trial court signed the April 14, 2020 extension order, the 6 Governor had extended the March 2020 disaster proclamation for 30 days effective April 12, 2020. Tex. Gov. Proclamation No. 41-3730, 45 Tex. Reg. 2602, 2602–03 (2020). Section 263.306(a-1) governs permanency hearings before rendition of a final 7 order. Tex. Fam. Code Ann. § 263.306(a-1). The docket sheet included in the clerk’s record, which contains only five 8 entries, does not have an entry for April 14, 2020. See In re A.F., No. 02-19-00117- CV, 2019 WL 4635150, at 9 & n.7 (Tex. App.––Fort Worth Sept. 24, 2019, no pet.) (explaining differences and similarities between docket sheet entries and entries in court’s case management system). 5 On April 21, 2020, the court administrator sent a Notice of Final Trial, setting June 22, 2020, as the trial date. After a permanency hearing either on May 8 or May 11, 2020,9 the trial court issued an order reciting that the dismissal and final trial dates had been set for June 22, 2020. On May 26, 2020, the Texas Supreme Court issued its Seventeenth Emergency Order Regarding the COVID-19 State of Disaster (17th Order), which provided as follows: 3. Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public— . . . .... b. in all proceedings under Subtitle E, Title 5 of the Family Code, specifically including but not limited to Section 263.401(b): (i) modify or suspend a deadline or procedure—whether imposed by statute, rule, or order—for a stated period not to exceed 180 days; (ii) extend the dismissal date for any case previously retained on the court’s docket for an additional period not to exceed 180 days from the date of this Order. 9 The trial court signed the permanency-hearing order on May 8, 2020, and the clerk’s stamp on the order is May 8, 2020, but the order’s recitals state that the hearing was held on May 11, 2020. We will presume for our analysis that the hearing was held on May 8, 2020. 6 609 S.W.3d 119, 120 (Tex. 2020) (emphasis added). Pursuant to the 17th Order, on June 24, 2020, the trial court entered an agreed order that purported to further extend the dismissal date to November 20, 2020. After several more dismissal-deadline extension orders, trial commenced on October 18, 2021. However, the trial court recessed the trial on Mother’s motion. Although the trial resumed on January 4, 2022, the trial court recessed it again because it “went beyond the allotted docket time.” Trial recommenced and was completed on March 28, 2022. The trial court signed the final termination order on May 9, 2022. Underlying Case Automatically Dismissed Mother and Father both contend that the underlying suit was dismissed automatically under Section 263.401(c), either in April 2020 or in June 2020. According to our analysis of the plain language of the Texas Supreme Court’s COVID-disaster-related emergency orders allowing extensions of the Family Code’s automatic-dismissal deadline, we agree. Family Code Section 263.401 establishes certain deadlines for cases filed by the Department that request termination of the parent–child relationship. See Tex. Fam. Code Ann. § 263.401. According to that section, unless the court has commenced the trial on the merits or granted an extension under subsection (b) or (b-1) 10 of Section 10 Subsection (b-1) applies to the setting of a new dismissal deadline after the trial court grants a mistrial or a new trial, or after the appellate court remands the suit, and the case remains pending on the trial court’s docket. Tex. Fam. Code Ann. § 263.401(b-1). 7 263.401, “on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the [D]epartment as temporary managing conservator, the court’s jurisdiction over the suit . . . is terminated and the suit is automatically dismissed.” Id. § 263.401(a). To retain the suit before the automatic dismissal, the trial court must find that extraordinary circumstances necessitate continuing the Department’s temporary managing conservatorship and that continuing the conservatorship is in the child’s best interest. Id. § 263.401(b) (requiring also that if trial court retains the suit, it must render an order (1) scheduling a new automatic-dismissal date and setting trial on the merits no later than the 180th day after the initial dismissal date and (2) making further orders for the child’s safety and welfare as necessary to avoid further delay). If the trial court extends the dismissal date but does not commence the trial on the merits no later than the day before the extended dismissal date, “the court’s jurisdiction over the suit is terminated and the suit is automatically dismissed without a court order.” Id. § 263.401(c); In re J.R., 622 S.W.3d 602, 605 (Tex. App.—Fort Worth 2021, orig. proceeding [mand. dism’d]). An extension order rendered on or after the automatic-dismissal date cannot operate to revive jurisdiction that has already been lost. J.R., 622 S.W.3d at 605; see also In re G.X.H., 627 S.W.3d 288, 301 (Tex. 2021) (“[A] trial court’s failure to timely extend the automatic dismissal date before that date passes . . . is jurisdictional . . . .”); In re J.R.T., No. 09-21-00361-CV, 2022 WL 802557, at 4 (Tex. App.–– Beaumont Mar. 17, 2022, no pet.) (mem. op.). 8 The Department contends that the trial court’s April 14, 2020 order properly extended the automatic-dismissal deadline,11 arguing that under the 1st and 3rd Orders, the trial court was not required to comply with Section 263.401(b) and was required to instead simply grant an extension before or on the April 17, 2020 dismissal deadline: “The trial court was not required to set a new dismissal date, because the order was not issued under § 263.401, and the trial court properly set the case for a permanency hearing on May 11, 2020.” See A.N. v. Tex. Dep’t of Fam. & Protective Servs., No. 03-22-00099-CV, 2022 WL 3638211, at 2–3 (Tex. App.––Austin Aug. 23, 2022, no pet. h.) (mem. op.) (holding that when trial court has extended dismissal deadline under one of the Texas Supreme Court’s COVID-disaster-related emergency orders, automatic dismissal does not occur when extension order entered on day set for dismissal because extensions under the Texas Supreme Court’s emergency orders, other than first extensions, are not pursuant to Section 263.401(b)). We agree with the Department that the trial court was not required to comply with all of Section 263.401(b) to properly extend the dismissal deadline. See In re C.D., No. 05-21-00768-CV, 2022 WL 484559, at 2 (Tex. App.––Dallas Feb.17, 2022, no pet.) (mem. op.) (noting that although trial court ordinarily may not grant more than one Section 263.401(b) extension, the Texas Supreme Court’s COVID-disaster-related 11 We agree with the Department that because the order was entered before the April 17, 2020 dismissal deadline, the trial court had not lost jurisdiction on April 14, 2020, the date the order was signed. 9 emergency orders allow additional extensions). But even if the trial court was not required to comply with all of Section 263.401(b)’s requirements to properly extend the dismissal deadline and thereby retain jurisdiction, its April 14, 2020 extension order nevertheless failed to comply with the express language of the only other authority on which it could have relied––the 1st Order. That order expressly authorized the trial court to extend the deadline only “for a stated period,” 12 which was to end “no later than 30 days after the Governor’s state of disaster has been lifted.” 1st Order, 596 S.W.3d at 265. Thus, according to the 1st Order’s plain language, the trial court’s extension had to identify some fixed amount of time by which the dismissal date could be calculated. The Department cites no authority holding that an open-ended extension order that omits any time frame or end date for the extension 13 suffices to comply with the 1st Order. See Neurological Assocs. of San 12 Black’s Law Dictionary defines “stated” as “[f]ixed; determined; settled” or “[e]xpressed; declared.” Black’s Law Dictionary (11th ed. 2019). Merriam-Webster defines “period” as “a chronological division” or a “STAGE.” Period, Webster’s Third New Int’l Dictionary (2002). As we do with statutes, we construe the Texas Supreme Court’s COVID-disaster-related emergency orders according to their plain terms, giving the words used their ordinary meanings unless different meanings are apparent from the context or unless giving the terms those plain meanings would lead to absurd results. Prescod v. Tkach, No. 02-21-00162-CV, 2022 WL 246858, at 5 (Tex. App.––Fort Worth Jan. 27, 2022, no pet.) (mem. op.); W. Harwood 334B Land Tr. v. Clement, No. 02-20-00216-CV, 2021 WL 1229973, at 4–5 (Tex. App.—Fort Worth Apr. 1, 2021, no pet.) (mem. op.). 13 This case is distinguishable from those cases in which the trial court orally granted an extension before the dismissal deadline because nothing in this appellate record indicates the trial court made such an oral order. See In re O.D., No. 09-22- 00104-CV, 2022 WL 5237908, at 2–5 (Tex. App.––Beaumont Oct. 6, 2022, no pet. 10 Antonio, P.A. v. Torres, No. 04-21-00120-CV, 2022 WL 1559101, at 3 (Tex. App.–– San Antonio May 18, 2022, no pet.) (mem. op.) (“[N]othing in the [1st O]rder suggested an automatic modification or suspension of deadlines and procedures.”); In re J.L.J., 645 S.W.3d 294, 298 (Tex. App.––Houston [14th Dist.] 2022, pet. denied) (holding that the terms of the 33rd emergency order––substantially similar to the other COVID-disaster-related emergency orders––“establish that the extension is not automatic”). But cf. In re J.D.A.S., No. 14-22-00115-CV, 2022 WL 3365259, at 2–3 (Tex. App.––Houston [14th Dist.] Aug. 16, 2022, no pet.) (mem. op.) (holding that trial court’s standing order, issued according to 1st Order, “that all cases already on an extended dismissal date shall be retained for up to 180 days pas[t] the extended dismissal date,” operated sufficiently to extend dismissal deadline); C.C., 2022 WL h.) (mem. op.) (holding on-the-record oral order––“I’m going to exten[d] it under the most recent emergency order. . . . Six-month extension.”––sufficient to extend dismissal deadline); In re E.C.R., 638 S.W.3d 755, 765–67 (Tex. App.––Amarillo 2021, pets. denied) (holding sufficient oral order extending dismissal deadlines “until 30 days after the State of Emergency is lifted”); In re J.-R.A.M., No. 10-20-00221-CV, 2020 WL 7866877, at 1–3 (Tex. App.––Waco Dec. 30, 2020, pet. denied) (mem. op.) (holding July 2020 on-the-record oral order to reset trial to August 11, 2020, three days after August 8 dismissal deadline, sufficient to extend dismissal deadline according to 18th emergency order); see also Tex. Fam. Code Ann. § 101.026 (allowing trial court in Family Code case to pronounce ruling “orally in the presence of the court reporter or in writing”). But cf. In F.S., No. 09-22-00114-CV, 2022 WL 4371008, at 5–6 (Tex. App.––Beaumont Sept. 22, 2022, no pet. h.) (holding on-the-record order that granted extension according to party’s motion but that did not “set a future trial date” was sufficient to extend dismissal deadline under Section 263.401(b), when primary issue was whether lack of Section 263.401(b)-required findings of extraordinary circumstances and good cause were not made on the record or in writing). 11 1121428, at 3 (holding same for similar standing order, which extended the statutory dismissal deadline for all pending TDFPS-filed cases “until November 22, 2020”). In other words, the COVID-disaster-related emergency orders are not self-executing; they provide for outside limits on extensions, but they do not dictate how long such extensions must be within the permissible limits. Even assuming that the April 14, 2020 order operated to extend the dismissal deadline to at least the date stated therein (May 11, 2020), it could not have extended the dismissal date beyond June 11, 2020––30 days after the date the then-effective Governor’s disaster proclamation was to expire 14––at the time it was rendered. See 12th Order, 629 S.W.3d at 144; 1st Order, 596 S.W.3d at 265. Before that time, on May 8, 2020, the trial court rendered an order stating, “[T]he Court determines that the date for dismissal of this cause shall be June 22, 2020,” and further setting a final trial date: “[T]he Court determines that this suit shall be and is hereby set for trial on June 22, 2020 . . . .” But that date was beyond 30 days after the expiration of the then-effective Governor’s disaster declaration. Thus, if the suit was validly extended by the April 14, 2020 order to allow a further extension on May 8, 2020, the “stated period” for the May 2020 extension would have expired on June 11, 2020, before the extended June 22, 2020 dismissal date set in the order. No trial court order extending 14 The Governor’s April 12, 2020 proclamation extending the disaster declaration was effective for 30 days until renewed; thus, it was effective until May 12, 2020. Thirty days after that date is June 11, 2020. 12 the deadline past June 11, 2020, was signed after the Governor renewed his disaster proclamation effective May 12, 2020. See Tex. Gov. Proclamation No. 41-3734, 45 Tex. Reg. 3397, 3397 (2020). However, even if we were to further assume that the deadline extension to June 22, 2020, could have been effective, the trial court nevertheless failed to timely extend that deadline. On June 17, 2020, Father filed a motion to continue the trial setting, but he did not ask for a continuance for a certain time frame or until a date certain. 15 The trial court’s online docket note for June 22, 2020, states only “Continuance Granted”;16 it does not say for how long a continuance was granted or reference a date when it was to end.17 Not until June 24, 2020––two days after the dismissal date––did the trial court sign an agreed order further extending the dismissal date to Noted at the top of the proposed order submitted with the motion for 15 continuance is the following: “REJECTED. THE MOTION WILL NEED TO BE HEARD UNLESS AN AGREED ORDER IS SUBMITTED. SB.” The docket sheet in the clerk’s record contains no entry for June 22, 2020. 16 Nothing in the appellate record indicates that the trial court held a hearing on that date. 17 The 17th Order was in effect on June 22, 2020. That order allowed for the extension of Section 263.401(b) deadlines in “any case previously retained on the court’s docket for an additional period not to exceed 180 days from” May 26, 2020, i.e., November 22, 2020. 17th Order, 609 S.W.3d at 120 (emphasis added). “Additional” is defined as “existing or coming by way of addition”; “ADDED”; or “FURTHER.” Additional, Webster’s Third New Int’l Dictionary (2002). Thus, like the 1st Order, the 17th Order provided neither for an automatic extension nor an open-ended one; the trial court was required to identify some time frame by which the extension could be calculated. 13 November 20, 2020, and setting final trial for October 19, 2020.18 By the time this order purporting to extend the dismissal deadline was rendered, the automatic- dismissal date had already passed; thus, this order could not have revived the trial court’s jurisdiction. See J.R., 622 S.W.3d at 605. The Department urges us to adopt the reasoning of the Austin Court of Appeals in A.N.––that the Section 263.401(c) automatic dismissal did not occur on June 22, 2020, because second and subsequent dismissal-date extensions according to one of the Texas Supreme Court’s emergency orders are not extensions according to Section 263.401(b), which allows for only one extension. 2022 WL 3638211, at 2. To the extent that the Department argues that A.N. allows a trial court to retain 18 This case is distinguishable from other cases in which the trial court extended the deadline by a general docket entry. In In re O.O., after a hearing that was not made part of the appellate record, the trial court made a docket entry in a companion case: “[R]eturn in 60 days; 401 extensions.” No. 13-21-00411-CV, 2022 WL 1559725, at 7 (Tex. App.––Corpus Christi–Edinburg May 17, 2022, pet. denied) (mem. op.). The appellate court held that the entry was sufficient to show extension of the dismissal deadline, especially considering that according to G.X.H., the appellate court could presume that the trial court made the required Section 263.401(b) findings on the missing record. Id. at 7–8 (citing G.X.H., 627 S.W.3d at 299). In In re K.T.S.N., not only did the challenged extension orders contain dates certain by which the extended deadline could be calculated, but also the appellate court held that the last extension deadline was extended by Rule of Civil Procedure 4 when it fell on Thanksgiving Day. No. 01-21-00456-CV, 2022 WL 96737, at 5–7 (Tex. App.––Houston [1st Dist.] Jan. 11, 2022, pet. denied) (mem. op.). But even if these cases were not distinguishable, the trial court had already lost jurisdiction by not extending the dismissal deadline by June 11, 2020, i.e., 30 days after the then-expiration of the Governor’s April 12, 2020 state of disaster declaration. 14 jurisdiction by rendering an extension order the day after the dismissal deadline set according to one of the COVID-disaster-related emergency orders or beyond––rather than on the actual dismissal deadline itself––we disagree. See C.D., 2022 WL 484559, at 2 (holding that “for the [trial] court to retain jurisdiction by extending the dismissal date . . ., the court must actually extend the dismissal date before it expires”); see also J.R.T., 2022 WL 802557, at 4; In re J.R., 622 S.W.3d at 605. Moreover, the reasoning of A.N. does not compel a different result here because in that case, the trial court had signed its second extension order on the dismissal date itself, not a day or more after. 2022 WL 3638211, at 1. Accordingly, we hold that the reasoning of A.N. does not apply here. We sustain Mother’s second issue and Father’s first issue. Because those issues are dispositive, we need not address Mother’s and Father’s other issues on appeal. See Tex. R. App. P. 47.1. Conclusion Having determined that the underlying suit was automatically dismissed under Family Code Section 263.401(c), we vacate the trial court’s judgment as void and dismiss the Department’s suit without prejudice to refiling and without prejudice to the trial court’s rendering a new emergency order under Family Code Section 262.102. See Tex. R. App. P. 43.2(e); Tex. Fam. Code Ann. § 262.102; In re J.R., 652 S.W.3d 508, 515–16 (Tex. App.––Houston [14th Dist.] 2022, pet. filed.); J.D.A.S., 2022 WL 15 3365259, at 5; In re A.M., No. 07-19-00391-CV, 2020 WL 1174579, at 3 (Tex. App.– –Amarillo Mar. 11, 2020, no pet.) (mem. op.). /s/ Bonnie Sudderth Bonnie Sudderth Chief Justice Delivered: November 3, 2022 16	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481317/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00215-CV ___________________________ DEMETRIA WASHINGTON, Appellant V. YELLOWFIN LOAN SERVICING CORP., AS THE SUCCESSOR IN INTEREST TO OPTION ONE MORTGAGE CORPORATION, Appellee On Appeal from County Court at Law No. 3 Tarrant County, Texas Trial Court No. 2020-003712-3 Before Sudderth, C.J.; Birdwell and Bassel, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION I. Introduction This is an appeal from a suit to recover the balance due on a second lien purchase money note. Following a bench trial, the trial court awarded Appellee Yellowfin Loan Servicing Corp. a judgment against Appellant Demetria Washington for $22,517.11, as well as attorney’s fees. In eight issues, Washington argues that the debt was not properly accelerated due to notice not being sent in the required manner and that the trial court therefore erred by awarding damages, that the trial court abused its discretion by overruling her objections to the notice documents, and that the trial court abused its discretion by admitting testimony about the notice documents and the amount due. Because we hold that none of Washington’s issues have merit, we affirm. II. Factual Background 1 At the bench trial, Matthew Miller, the President of Yellowfin, testified that he is the custodian of records and that he is familiar with the manner in which records are created and maintained by Yellowfin. He explained that he had executed a business-records affidavit and that the records attached to the business-records affidavit were contained within Yellowfin’s business records. The business-records 1 Because Washington does not raise challenges to the note or to Yellowfin’s status as note holder, we omit the details regarding the note’s inception and history and focus instead on the testimony and evidence relevant to Washington’s notice arguments. Additional facts are included, as needed, within the analysis of various issues. 2 affidavit and attached business records were included in Plaintiff’s Exhibit No. 1, which was the sole exhibit admitted during the bench trial. The business records included the following documents: • “Purchase Money Note (Fixed Rate – Second Lien)”; • various allonges to the note; • “Purchase Money Deed of Trust”; • “Assignment of Deed of Trust”; • “Loan Amortization Schedule”; • a letter from Yellowfin to Washington with the heading “Notice Under Fair Debt Collection Practices Act”; • a document from Hatteras—a vendor that generated documents on Yellowfin’s behalf—stating that it had received a request from its client “SFYELL10” to generate a demand letter to Washington on January 14, 2020; • a letter from Yellowfin to Washington with the heading “Notice of Intent to Accelerate and Right to Cure”; • a document from Hatteras stating that it had received a request from its client “SFYELL10” to generate an intent letter to Washington on February 25, 2020; • a letter from Yellowfin to Washington with the heading “RE: Notice of Acceleration”; and • a document from Hatteras stating that it had received a request from its client “SFYELL10” to generate an acceleration notice to Washington on March 25, 2020. 3 The three Hatteras documents concluded with “I certify that the above is true and correct to the best of my knowledge” and a line stating, “Signature of Hatteras, Inc. Representative.” Before the exhibit was admitted, Washington asked and received permission to take Miller on voir dire. Washington questioned Miller about the three notice letters, and Miller explained that the notice letters were generated and sent by his letter vendor Hatteras. Miller said that he gives Hatteras “the information and the letter[,] and they mail the letter.” He stated that he had “included an affidavit” to reflect that the notice of acceleration had been sent. Miller’s reference to the Hatteras documents as “affidavits” caused some confusion, but Yellowfin’s counsel clarified that the Hatteras documents were actually certifications.2 Washington objected to the admission of the exhibit, arguing that the notice letters were generated by a third party; that the business records were untrustworthy and constituted hearsay; and that if they were admissible, they should be given no probative weight. The trial court stated, I think what you’re [Washington’s counsel] arguing really goes to the weight and not the admissibility of the document because -- .... . . . [Miller is] saying, [“T]hese are in my business records, I asked these people to send a letter, [and] they told me they did.[”] Now, 2 Later during his testimony, Miller explained that Hatteras sends all of Yellowfin’s letters and that Yellowfin uses Hatteras “because they have the certification that tells us when they mailed it out.” 4 whether or not the trier of fact believes that they did based on [Miller’s] statement to the best of [his] knowledge . . . goes to the weight that a finder of fact gives to these documents. But I don’t think it goes to the fact that they can be . . . admitted. The trial court overruled Washington’s objections and admitted the exhibit. Throughout the bench trial, although Washington did not testify, her counsel argued that Yellowfin had not proved that it had sent notice of intent to accelerate to Washington. The trial court, however, disagreed and concluded, “So it seems like certainly by the time [Washington] was served she had notice. But I also have documents that indicate that [Yellowfin] transmitted the notice. And . . . more likely than not, I believe the notice was sent and the acceleration as well.” III. Analysis 3 A. Evidentiary Challenges - the Admissibility of and the Weight to be Given to the Notice Documents and the Hatteras Documents, as well as to the Testimony on Such Documents In her third, fourth, fifth, and sixth issues, Washington challenges the following documents that were admitted into evidence: “Notice Under Fair Debt Collection Practices Act,” “Notice of Intent to Accelerate and Right to Cure,” and “Notice of Acceleration” (collectively, the Notice Documents). Washington contends that the trial court abused its discretion by admitting the Notice Documents, by giving the 3 Although Washington sets forth eight issues under the heading in her brief labeled as “Issues Presented – TRAP 38.1(f),” the argument section found on pages 10 to 21 of her brief does not contain a single heading or any labels to designate which issue she is arguing. Washington has therefore put an onerous burden on this court to attempt to decipher what arguments she is making for each of her eight issues, many of which are similar or overlapping. 5 Notice Documents any probative value, by overruling her hearsay objection to the Notice Documents, and by overruling her lack-of-trustworthiness objection to the Notice Documents. In her seventh issue, Washington argues that the trial court abused its discretion by overruling her lack-of-personal-knowledge objections to Miller’s testimony about the Notice Documents. We set forth the standard of review applicable to these issues and then address and reject each of Washington’s arguments. We review a trial court’s evidentiary rulings for abuse of discretion. Owens– Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it acts without regard for any guiding principles. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995). We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989). 1. The Notice Documents are admissible under the business- records exception to the hearsay rule. In Washington’s third issue, she generally challenges the trial court’s admission of the Notice Documents. Because Washington failed to delineate her arguments in the argument section of her brief, it is unclear what her specific argument is as to the Notice Documents’ admissibility. She includes one statement that the Notice Documents “fail to meet the business[-]records predicate of TRE 902(10) and TRE 803[](6) as their forwarding to the maker of the documents has been disclaimed.” 6 Additionally, in her fifth issue, Washington argues that the trial court abused its discretion by overruling her hearsay objection to the Notice Documents. We address these issues together and conclude that the Notice Documents were properly admitted under the business-records exception to the hearsay rule. Properly authenticated records of regularly conducted business activity can be admitted into evidence as an exception to the hearsay rule. Tex. R. Evid. 803(6). The law on the admissibility of business records was succinctly stated by the First Court of Appeals as follows: Under Rule 902(10), business records are self-authenticating and require no extrinsic evidence of authenticity if they meet the requirements of Rule 803(6) and are accompanied by an affidavit that complies with subparagraph (B) of the rule and any other requirements of law. Tex. R. Evid. 902(10). Subparagraph (B) provides a template for a sufficient affidavit, which enumerates the elements of Rule 803(6), discussed above. Tex. R. Evid. 902(10)(B). Rule 902(10)(B) “does not require the affiant to identify the particular person who originally created the business record in order to satisfy the authentication predicate.” H2O Sols., Ltd. v. PM Realty Grp., LP, 438 S.W.3d 606, 622 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). “Testimony by a witness or affiant identifying the exhibits as the business records of the proponent of the evidence ‘is sufficient evidence to satisfy the authentication requirement of Rule 901(a), regardless of whether the witness had personal knowledge of the contents of this evidence.’” Id. (quoting Concept Gen. Contracting, Inc. v. Asbestos Maint. Servs., Inc., 346 S.W.3d 172, 181 (Tex. App.—Amarillo 2011, pet. denied)[] (brackets omitted)[)]. Savoy v. Nat’l Collegiate Student Loan Tr. 2005-3, 557 S.W.3d 825, 834 (Tex. App.— Houston [1st Dist.] 2018, no pet.); see also Simien v. Unifund CCR Partners, 321 S.W.3d 235, 242 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (op. on reh’g) (holding that 7 business records that were generated by a third party were admissible with a standard business-records affidavit). Here, the crux of Washington’s arguments takes aim at the admissibility of the Notice Documents while ignoring the business-records affidavit to which they were attached and under which they were admitted. Washington’s argument—that “their forwarding [of the Notice Documents] to the maker of the documents has been disclaimed”—appears to be a reference to when Miller was asked if he had sent out the notice of acceleration and he answered, “Through my letter vendor Hatteras . . . .” Washington implies that Miller was required to have personal knowledge that the Notice Documents were mailed. Miller, however, testified that he had provided Hatteras with the information for the letters; that Hatteras had sent the letters, as shown by the certifications; and that Miller had printed the certifications and had kept them as part of Yellowfin’s business records. Under the rules of evidence pertaining to business records, it was not necessary for Miller to have personal knowledge that the Notice Documents were mailed; it was enough that Miller’s affidavit identified the documents as records that were kept in the normal course of Yellowfin’s business. See Savoy, 557 S.W.3d at 834. Moreover, Washington makes no attack on the actual 8 business-records affidavit4 or its compliance with Rule 902(10)(B). 5 We therefore agree with the trial court’s conclusion that Washington’s attacks go to the weight that a factfinder can give to the Notice Documents, not to their admissibility. Accordingly, we overrule Washington’s third and fifth issues. 2. A business-records affiant is not required to have personal knowledge of the records. In her seventh issue, Washington argues that the trial court abused its discretion by overruling her lack-of-personal-knowledge objections to Miller’s testimony about the Notice Documents. Assuming that Washington preserved this issue for review,6 the law (as set forth in the preceding issue) is clear that a business- 4 Washington’s brief makes arguments attacking an affidavit, but it appears that those arguments are directed at the Hatteras documents, which Washington appears to treat as affidavits instead of certifications. 5 In fact, Washington apparently conceded in the trial court that Miller’s business-records affidavit complied with Rule 902(10) when her counsel stated that the Hatteras documents needed to be done like Miller’s “affidavit [that] was carefully crafted by [Yellowfin’s counsel]. And that is, [‘]I am the custodian of records of the plaintiff and am familiar with the manner in which its records are created and maintained by virtue of my duties and responsibilities.[’]” Additionally, the appellate record demonstrates that the business-records affidavit and accompanying records were filed on May 13, 2021, which was more than a month prior to the bench trial. See Tex. R. Evid. 902(10)(A) (requiring the record’s proponent to serve the record and the accompanying affidavit on each party to the case at least fourteen days before trial). 6 Washington made a late objection based on prior inconsistent testimony relating to whether Miller had personal knowledge that the Notice Documents were sent; the trial court sustained that objection. Other than that sustained objection, it is unclear when Washington specifically objected to Miller’s testimony on the basis of lack of personal knowledge and had her objection overruled; the record reflects that 9 records affiant is not required to have personal knowledge of the contents of the records. See id.; In re A.T., No. 02-04-00355-CV, 2006 WL 563565, at 3 (Tex. App.— Fort Worth Mar. 9, 2006, pet. denied) (mem. op.) (stating that a business-records affiant is not required to have personal knowledge of the contents of the records but must have personal knowledge of the manner in which the records were prepared). We hold that the trial court thus did not abuse its discretion by overruling Washington’s lack-of-personal-knowledge objections to Miller’s testimony about the Notice Documents, and we overrule Washington’s seventh issue. 3. The trial court was entitled to decide the weight to be given to the Notice Documents. In her fourth issue, Washington argues that the trial court abused its discretion by giving the Notice Documents any probative value. Although couched as an issue attacking the Notice Documents, most of the arguments in Washington’s brief are actually directed at the Hatteras documents certifying that the Notice Documents had been sent. But no matter whether her arguments are directed at the Notice Documents or the Hatteras documents, we cannot say that the trial court abused its discretion by finding that the documents had probative value. Here, there is no doubt that the Hatteras documents were probative of whether the Notice Documents were sent. Yellowfin, through Miller’s business-records affidavit, established that both the Notice Documents and the Hatteras documents Washington mentioned Miller’s lack of personal knowledge when she objected on other grounds to the Hatteras documents. 10 were kept in the regular course of its business. Each of the Notice Documents and the Hatteras documents reflect the same address that Washington included in her pro se answer; thus, the documents are internally consistent. Moreover, Washington did not provide any evidence at trial that she did not receive the Notice Documents. It was within the trial court’s purview to weigh the evidence. See Gonzalez v. Wasserstein, No. 01-20-00826-CV, 2022 WL 3268528, at 9 (Tex. App.—Houston [1st Dist.] Aug. 11, 2022, no pet.) (mem. op.) (“Unless the evidence is conclusive, the factfinder is entitled to weigh the evidence and to assess witness credibility.” (citing City of Keller v. Wilson, 168 S.W.3d 802, 816–17 (Tex. 2005))); In re K.H., No. 10-21- 00073-CV, 2021 WL 4080261, at 4 (Tex. App.—Waco Sept. 8, 2021, pet. denied) (mem. op.) (“In a bench trial, the trial judge is the factfinder who weighs the evidence, resolves evidentiary conflicts, and evaluates the demeanor and credibility of witnesses.”). In weighing the Notice Documents and the Hatteras documents and determining that they had probative value, the trial court did not act without regard for any guiding principles.7 Accordingly, we overrule Washington’s fourth issue. 7 We note that nowhere in her brief does Washington argue that the Notice Documents or the Hatteras documents were more prejudicial than probative. The only mentions of “probative value” in the argument section of her brief are as follows: • “The improper documents were also objected to as Hearsay, Not Trustworthy, failure to meet the business[-]records predicate[,] and of no probative value[;] however[,] the court overruled said objections and admitted the improper documents and ruled [in] [Yellowfin’s] favor based 11 4. The trial court did not abuse its discretion by admitting the Notice Documents into evidence over Washington’s lack-of- trustworthiness objection. In her sixth issue, Washington argues that the trial court abused its discretion by overruling her lack-of-trustworthiness objection to the Notice Documents and admitting them into evidence. In the argument section of her brief, we find two places in which Washington makes the general argument that the Notice Documents “are not trustworthy . . . as their forwarding to the maker of the documents has been disclaimed.” Washington’s trustworthiness argument fails because the business- records affidavit, along with Miller’s testimony, prove the trustworthiness of the Notice Documents. Documents created or authored by third parties are admissible as the business records of another business if “(a) the document is incorporated and kept in the course of the testifying witness’s business; (b) that business typically relies upon the accuracy of the contents of the document; and (c) the circumstances otherwise indicate the trustworthiness of the document.” Kirk v. Nat’l Collegiate Student Loan Tr. upon said documents although there is nothing in the documents that stated [the] documents were mailed to the property address CMRRR as required”; • “Absent and [sic] documentary evidence of probative value that the required notice was provided[,] [Yellowfin] can only prove its case via testimony”; and • “Additionally, the tri[al] court erred in giving the documents it erroneously allowed into evidence any probative value.” 12 2003-1, No. 01-17-00722-CV, 2019 WL 966625, at 4 (Tex. App.—Houston [1st Dist.] Feb. 28, 2019, no pet.) (mem. op.) (quoting Simien, 321 S.W.3d at 240–41). Here, Yellowfin provided evidence demonstrating that the Notice Documents, which were attached to Miller’s affidavit, met the preceding three requirements. In his affidavit, Miller averred that he is the custodian of Yellowfin’s records and is familiar with the manner in which its records are created and maintained; that the facts stated in the affidavit were within his personal knowledge and are true and correct; that the Notice documents were incorporated and kept in the regular course of Yellowfin’s business; that “[i]t is typical within the course of [Yellowfin’s] business to rely upon the accuracy of the contents of such records”; that the documents “are trustworthy as they were made in conjunction with a promissory note and lien on the purchase of residential real property, which is a heavily regulated industry with significant federal and state laws ensuring proper record-keeping and compliance with lending laws”; and that it was the regular course of business for an employee or representative of Yellowfin to transmit information to be included in such record. As set forth above, Miller testified at trial about Yellowfin’s practice of having Hatteras send out all its letters and about how Miller had provided Hatteras with the information for the Notice Documents in this case. Moreover, the Notice Documents contain the same address that Washington included in her pro se answer. Based on this evidence, we conclude that the trial court did not abuse its discretion by determining that the Notice Documents and accompanying business- 13 records affidavit showed sufficient indicia of trustworthiness to be properly admitted as business records. See id. at 5–6 (holding that heavily redacted schedule attached to business-records affidavit was not improperly admitted over a trustworthiness objection because, among other things, there were no date discrepancies among the documents). We overrule Washington’s sixth issue. B. Sufficiency Challenges In her first and eighth issues, Washington challenges the sufficiency of the evidence to prove a condition precedent to Yellowfin’s recovery and an affirmative defense to recovery. We set forth the standard of review before analyzing her challenges. We may sustain a legal-sufficiency challenge—that is, a no-evidence challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of law or of evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In determining whether legally sufficient evidence supports the challenged finding, we must consider evidence favorable to the finding if a reasonable factfinder could, and we must disregard contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller, 168 S.W.3d at 827. We indulge “every reasonable inference deducible from the evidence” in support of the challenged 14 finding. Gunn, 554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)). When a party attacks the legal sufficiency of an adverse finding on an issue on which the party had the burden of proof, the party must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Cath. Diocese of El Paso v. Porter, 622 S.W.3d 824, 834 (Tex. 2021). In reviewing a “matter of law” challenge, we must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). If no evidence supports the finding, then we will examine the entire record to determine if the contrary position is established as a matter of law. Id. We will sustain the issue only if the contrary position is conclusively established. Id. Evidence conclusively establishes a fact when the evidence leaves “no room for ordinary minds to differ as to the conclusion to be drawn from it.” Int’l Bus. Mach. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 235 (Tex. 2019). Anything more than a scintilla of evidence is legally sufficient to support a finding. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727–28 (Tex. 2003). More than a scintilla exists if the evidence rises to a level that would enable reasonable and fair- minded people to differ in their conclusions. Gunn, 554 S.W.3d at 658. On the other hand, no more than a scintilla exists when the evidence offered to prove a vital fact is so weak that it creates no more than a mere surmise or suspicion of its existence. 15 McAllen Hosps., L.P. v. Lopez, 576 S.W.3d 389, 397 (Tex. 2019); Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). 1. Notice Was Given in Accordance with the Note In her first issue, Washington argues that the note was not lawfully accelerated because there was no evidence that the Notice Documents were “sent via CMRRR as required by the Purchase Money Note and Deed of Trust.” Yellowfin responds that it gave proper notice of its intent to accelerate pursuant to the notice requirements set forth in the note. We agree. The law generally on the notice that must be given before accelerating a note is as follows: When a secured promissory note gives the holder the option to accelerate the maturity of the note upon the maker’s default, equity demands notice of several events, unless notice is specifically waived. First, the holder of the note must present the note before accelerating it, demand payment of the past[-]due installments, Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863 (Tex. 1975), and advise the maker that the note will be accelerated and the entire balance will become due and payable if the delinquency is not cured. Ogden v. Gibraltar Sav. Ass’n, 640 S.W.2d 232, 233 (Tex. 1982). Thereafter, absent payment of the delinquency, the holder must give notice that the debt has been accelerated. [Id.] That notice cuts off the debtor’s right to cure the default and gives notice that the entire debt is due and payable. See Faulk v. Futch, 147 Tex. 253, 214 S.W.2d 614 (1948). Baldazo v. Villa Oldsmobile, Inc., 695 S.W.2d 815, 817 (Tex. App.—Amarillo 1985, no writ) (footnote omitted). 16 Washington argues that the Notice Documents did not constitute proper notice because there is no evidence that the notices were “sent via CMRRR as required by the Purchase Money Note and Deed of Trust.” In the argument section of her brief, Washington states that it is the deed of trust, not the note, that required notice to be sent via CMRRR. However, the record reflects that the deed of trust required that notice be sent via certified mail (there is no mention of return receipt requested) and that the note required only that notice be mailed.8 Here, Yellowfin filed suit to recover the balance due on the note, requesting a judgment against Washington. Under the terms of the note, Yellowfin was required to give notice by mail; the note did not require CMRRR or even certified mail. As explained above in the analysis of the evidentiary challenges, Yellowfin put on evidence through Miller’s testimony and the Hatteras documents to show that the Notice Documents had been mailed to Washington. Washington takes aim at the Hatteras documents, arguing that they do not meet the standards for an affidavit. During the trial, Yellowfin’s counsel clarified that the Hatteras documents were not affidavits but were instead certifications that were included within Yellowfin’s business records. Based on the record, which includes the 8 The note contains the heading “9. MAILING OF NOTICES TO BORROWER,” which states, “You or I may mail or deliver any notice to the address above. You or I may change the notice address by giving written notice. Your duty to give me notice will be satisfied when you mail it.” At the outset of the note, it states that “[a] word like ‘you’ or ‘your’ means the Lender or ‘Note Holder.’” 17 trial court’s statements about the documents before it overruled Washington’s objections,9 it does not appear that the trial court treated the Hatteras documents as separate affidavits but as documents included within the business records submitted by Yellowfin, along with the business-records affidavit by Miller. The trial court determined that the documents were admissible under the business-records exception to the hearsay rule and that Washington’s attacks on the documents went to their weight, not their admissibility. Washington further argues that even if the Hatteras documents were admissible, they “merely stated that a request to send out a particular correspondence was requested to be sent without any evidence or statement that it was sent.” However, the evidence about the acceleration notice was not limited solely to documentary evidence. During the defense’s case in chief, Miller was cross-examined by Yellowfin’s counsel about Yellowfin’s relationship with Hatteras. Miller stated that Yellowfin had sent “thousands of letters” to Hatteras and that there had never been any indication that Hatteras had failed to send any of the letters that they represented that they had sent. Yellowfin’s counsel further asked Miller about whether the letters were making it to their intended recipients: Q . . . [H]ave you been contacted by note holders or by people that you have been trying to contact by letters thus indicating that they are receiving the letters that you believe Hatteras is sending? The trial court’s statements are set forth in the background section of this 9 opinion. 18 A Yes. Q So based on your conduct of business and your relationship with Hatteras, do you believe that Hatteras is sending the letters you asked them to send? A Yes. Moreover, although Washington also argues that Miller lacked the personal knowledge to testify about whether Hatteras had forwarded the Notice Documents, Miller in his role as President of Yellowfin had personal knowledge of (1) the company’s business records, which included the Hatteras documents, and (2) the company’s relationship and history with Hatteras. And, again, the trial court was free to believe or disbelieve the documentary and testimonial evidence that the Notice Documents had been sent. See Gonzalez, 2022 WL 3268528, at 9; K.H., 2021 WL 4080261, at 4. Moreover, there is no evidence in the record that Washington did not receive notice. Having determined that the note did not require the Notice Documents to be sent via CMRRR and having reviewed the evidence under the applicable standard of review, we hold that there is more than a scintilla of evidence showing that notice was sent as required by the terms of the note, and we overrule Washington’s first issue.10 10 In her second issue, Washington argues that the trial court erred by awarding damages because the trial court “included damages as if the debt [were] properly accelerated.” Because we have held that the debt was properly accelerated, we overrule Washington’s second issue. 19 2. No Offsets or Payments Pleaded or Proven In her eighth issue, Washington argues that the trial court abused its discretion by overruling her objections and admitting any testimony from Miller as to the amount due on the note given his lack of personal knowledge.11 Immediately preceding the section labeled as “Conclusion” at the end of her brief, Washington sets forth the following, which we presume is the argument related to her eighth issue: 1) Appellant [sic] failed to prove all just and lawful offsets were allowed. Appellant [sic] [t]estified that he did not know if any payments were made after 2007. Appellant [sic] further testified that he calculated the amount due on his own. Consequently, the amount due is not accurate given there is a question if any payments were made and not credited. [Record citations omitted.] Although Washington’s issue is couched as an attack on the trial court’s ruling on an alleged objection to Miller’s testimony about the amount due on the note, her argument is actually an attack on the sufficiency of the evidence to prove an Washington’s argument appears to be based on questions that her counsel 11 asked during his voir dire of Miller: Q [By Washington’s counsel] [T]here hadn’t been a payment on this note since 2007, has there? A I -- I do not know. Q And you purchased this [note] when? A I purchased this in 2019. After reviewing the record citations that Washington cites to within her eighth issue, we are unable to find whether she made the specific objection that she argues on appeal. 20 affirmative defense. Yellowfin responds that Washington failed to plead the affirmative defense of payment in either of her petitions. We agree. Payment is an affirmative defense that the defendant has the burden to plead and prove. See Tex. R. Civ. P. 94; Haddington Fund, LP v. Kidwell, No. 05-19-01202-CV, 2022 WL 100111, at 12 (Tex. App.—Dallas Jan. 11, 2022, pet. denied) (mem. op.). If a party wishes to prove payment, he must affirmatively plead payment and file an accounting of the payments. Tex. R. Civ. P. 95. Absence of a proper plea of payment renders evidence as to payment inadmissible. Id.; Haddington Fund, 2022 WL 100111, at 12. An affirmative defense not properly raised in pretrial pleadings is generally waived. Villarreal v. Myers, No. 13-20-00215-CV, 2022 WL 868537, at 7 (Tex. App.—Corpus Christi–Edinburg Mar. 24, 2022, no pet.) (mem. op.) (citing MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 136–37 (Tex. 2014)). Because Washington failed to plead the affirmative defense of payment and file an accounting of payments as required under Rules 94 and 95, she has waived her argument that possible payments were not credited against the balance of the note. See Tex. R. Civ. P. 94, 95; Haddington Fund, 2022 WL 100111, at 12 (holding that Rule 95 prohibited appellees from introducing any evidence of payments not admitted by appellants because appellees did not describe their payments with particularity or file an account stating the nature of any payments); Nitishin v. Fed. Debt Mgmt., Inc., No. 05-95-00531-CV, 1996 WL 76232, at 5 (Tex. App.—Dallas Feb. 21, 1996, no writ) (“[Appellant] did not plead the affirmative defense of payment. [Appellant] is 21 therefore barred from proving any additional credits or offsets to the outstanding principal amount not admitted by [appellee].”). Alternatively, there is no basis for Washington’s contention on appeal that payments were not credited as she did not produce any evidence of payments at trial. 12 Miller testified that Yellowfin had agreed to waive any payments that were due prior to when it acquired the note and that Yellowfin was seeking to recover only the post-waiver principal of $22,517.11. Yellowfin’s business records included a payment schedule showing that the initial balance on the note was $25,650.00 in 2005 and that the balance due, assuming all payments had been made through June 1, 2019, would have been $22,517.11. Washington did not produce any evidence to contradict this amount. Because Washington neither pleaded the affirmative defense of payment nor put on evidence of any payments, she did not establish as a matter of law that she was entitled to any offsets on the balance of the note; thus, the uncontradicted evidence on the note’s balance supports the judgment against Washington for $22,517.11. Accordingly, we overrule Washington’s eighth issue. 12 In fact, her counsel stated during his motion for directed verdict, “And I would suggest to you that 12 years with no payment is knowledge that a contract is terminated.” 22 IV. Conclusion Having overruled each of Washington’s eight issues, we affirm the trial court’s judgment. /s/ Dabney Bassel Dabney Bassel Justice Delivered: November 3, 2022 23	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481310/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00180-CV ___________________________ IN THE INTEREST OF A.P., B.P., D.P., AND A.P., CHILDREN On Appeal from the 322nd District Court Tarrant County, Texas Trial Court No. 322-701923-21 Before Sudderth, C.J.; Womack and Walker, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION I. INTRODUCTION Appellant B.P. (Mother) appeals the trial court’s order terminating her parental rights to her children A.P. (Andrew), B.P. (Billy), D.P. (David), and A.P. (Amy) (collectively the Children).1 The trial court found that the Department of Family and Protective Services had proved four conduct-based grounds for termination and that termination was in the Children’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (O), (P), (b)(2). The trial court awarded permanent managing conservatorship of the Children to the Department. In two issues, Mother contends that the evidence is legally and factually insufficient to support termination of her parental rights and that the trial court abused its discretion by admitting certain evidence. We will affirm. II. BACKGROUND A. The Family’s Prior CPS History In 2017, Mother tested positive for amphetamine and methamphetamine use.2 This concerned Child Protective Services (CPS) because Mother was one of the 1 To protect the identities of the Children, we use aliases to refer to them, their parents, and others connected to this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2). 2 Amphetamine is a metabolite of methamphetamine. See In re C.W., No. 02-21- 00252-CV, 2022 WL 123221, at 7 n. 9 (Tex. App.—Fort Worth Jan. 13, 2022, no pet.) (mem. op.); In re R.A., No. 02-18-00252-CV, 2019 WL 490121, at 3 (Tex. App.—Fort Worth Feb. 7, 2019, no pet.) (mem. op.). 2 primary caretakers of her children.3 Mother also allowed Father to fire a gun while the children were in the home asleep. CPS investigated the family and ruled out physical abuse towards Billy, David, Andrew, and Alicia by Father but found “reason to believe” neglectful supervision towards the children by both parents.4 The children were removed from Mother and Father’s home and placed with family out of state. However, the children were back living with Mother and Father by September of that year, when CPS again investigated allegations of neglectful supervision and drug use. Both parents were given multiple drug tests, which they passed, and CPS ruled out neglectful supervision. In January 2018, CPS investigated allegations that Mother was still using methamphetamine. But she again tested negative for all substances, and CPS ruled out neglectful supervision. In March 2018, Mother gave birth to Amy. The family relocated often, and CPS investigated allegations of physical neglect in January 2020 after the family was evicted from their apartment. Although CPS was concerned that the children did not look to be in good shape, the investigator ruled 3 The youngest child the subject of this termination case, Amy, was not yet born in 2017. Mother and Father had another daughter, whose initials are also A.P. and whom we will refer to as Alicia, who ran away in December of 2020 and is not a party to this case. 4 After investigating allegations of child abuse or neglect, CPS will assign one of five possible dispositions: (1) reason to believe (based on a preponderance of the evidence); (2) ruled out; (3) unable to complete; (4) unable to determine; or (5) administrative closure. C.W., 2022 WL 123221, at 6 n. 7. 3 out physical neglect towards all five of the children by either parent. In December of that year, CPS investigated allegations that David was being put into a box. There were also concerns that Mother and Father had been inconsistent with picking up the children and that the children were being “abandoned” at the end of the day. CPS ruled out the allegations of physical abuse but assigned the disposition “Unable to Determine” to the neglectful-supervision allegations against both parents. That same month, the parents reported that Alicia had run away “with some guys.”5 B. Post-2020 Investigation and Removal Before running away, Alicia accused her father of physical abuse and claimed that she was left at home alone for extended periods of time without food. She also told Tarquetta Jones, a CPS investigator, about “some domestic violence between the parents.” Jones interviewed Alicia, Billy, and David at school and the other children and Mother and Father at the hotel where they were living at the time. While they were at the hotel, police arrived in response to a complaint about child abuse. Mother told Jones that she was not going to do anything the Department asked of her. Jones returned to the hotel multiple times but was eventually told that the family was no longer there. She then had a special investigator (SI) assigned to the case. The SI found that the family was still staying at the hotel, and he saw Father there. Father told the SI that the family was in the process of getting “a long-term place to live.” According to the Department, Alicia had been on “runaway status” since 5 December 20, 2020. 4 Father also made an appointment to meet with the SI but did not keep it. The SI made continued attempts to talk to the family but had no further contact with them at the hotel after that one brief encounter with Father. In May 2021, Father was arrested and charged with possession of methamphetamine—a felony. See Tex. Health & Safety Code Ann. §§ 481.102(6), 481.115(b). The SI visited Father in jail and interviewed him. Father admitted that he used methamphetamine and told the SI that the methamphetamine he was caught possessing had “nothing to do with” Mother. On June 14, 2021, the Department closed the CPS case Jones had been working on since December with the disposition “Unable to Complete” assigned to the allegations against Mother and Father of neglectful supervision and physical abuse towards all the children and emotional abuse towards Alicia. Allegations of refusal to accept parental responsibility towards Alicia were ruled out. Late on the night of June 16, 2021, North Richland Hills Police informed the Department that two officers had found the family “squatting” in a home that did not belong to them. Night Response Investigator Joel Juarez responded to the scene, where the officers expressed concern that Mother and Father had used their smaller children to break into the home through a window in the back. One of the officers stated that this had been the second time he knew the family had broken into a home. He also told Juarez that he had concerns that Mother was possibly under the influence of mind-altering substances—pills. Juarez was unable to gain access to the home 5 where the family had been squatting, but the police informed him that the only food found in the home was cake. The children were very hungry, and food from McDonald’s had to be brought to them because they had not eaten all day. Both officers expressed concerns that Mother and Father were not truthful with the police and had been providing them false information. Mother was arrested that night for warrants on outstanding tickets and was later charged with criminal trespass and making false reports to peace officers. Both Mother and Father were indicted with burglary of a habitation for squatting in the home where they were found. Juarez spoke to Father, who admitted to using marijuana but denied using methamphetamine. Juarez confronted Father about his admission to using methamphetamine the previous month. Father denied making that admission and told Juarez that the “pipe” that was found in his possession was his friend’s and not his. He told Juarez that he did not know of anybody that could come and assist with the children. Juarez also talked to Billy, who was five years old at the time. Billy told Juarez that Mother and Father fought. He pointed to a car window and said his family had “broken glass” but did not give further details. Juarez discussed the case with his superiors and was advised to remove the children. At the CPS office, Andrew, the oldest son, told Juarez that the family have moved from hotel to hotel and were looking for a house. Juarez observed that Andrew was constantly checking up on his brothers and younger sister and would delegate orders to each of his siblings, who in 6 turn would listen to him. He would answer for his siblings when questions were asked. Andrew admitted that he personally potty-trained Amy and that he is the one who cares for the kids. The Children went into foster care on June 17, 2021. Andrew and Amy were placed in a foster home together, and Billy and David (the twins) were placed in a different foster home. Mother, Father, and the Department agreed to a temporary visitation schedule whereby Mother and Father were allowed to visit the Children once a week and communicate with them through phone calls, texts, and email. Jones, Juarez, and others met with Mother and Father and developed a family plan of service to assist the family and make sure the Children were safe. On July 22, 2021, the trial court held a full adversary hearing, see Tex. Fam. Code Ann. § 262.201(a), (e), and ordered Mother and Father “to comply with each requirement set out in the Department’s original, or any amended, service plan during the pendency of this suit.” The service plan included requirements that Mother and Father complete parenting classes and a drug and alcohol assessment, as well as random drug testing, a mental health assessment, and individual counseling. Mother was specifically required to “refrain from any criminal activity.” Mother refused to comply with these or any other provisions of the court-ordered service plan, and on 7 December 11, 2021, she was arrested for possession of methamphetamine.6 Father was arrested for burglary of a habitation on January 14, 2022. The trial court held multiple permanency hearings ahead of the final trial, see Tex. Fam. Code Ann. § 263.002, and made further orders for both parents to submit to drug tests by urinalysis and hair strand. Mother took only one drug test, a urinalysis on April 8, 2022, which came back negative for any drugs. Father tested positive for amphetamine and methamphetamine on March 31, 2022. C. Trial This case proceeded to trial on May 17, 2022. Neither Mother nor Father was present at the trial.7 All the investigators testified as witnesses for the Department. Jones described Mother as “very abrasive and not cooperative” in their first interaction. Mother had told Jones that she felt harassed by the Department, that none of the allegations were true, and that she was not going to cooperate or do anything that the Department asked her to do. Jones testified that she was concerned about Mother’s history of drug use and had asked her multiple times to take a drug test. Mother claimed that she had taken several drug tests in the past outside of the Department, they were negative, and she did not need to test for the Department. 6 The record reflects that Father was arrested on the same date but does not indicate the reason for his arrest. 7 Mother appeared only through her attorney. Father was pro se, and the trial court found that he was duly and properly notified and wholly made default. Father has not appealed. 8 Mother got “very angry” and “upset” when Jones contacted her about taking drug tests and asked Jones never to contact her again. According to Jones, Mother said the allegations against her “were all lies.” Jones also testified about her interviews with Alicia, Billy, and David. Over an objection from Mother’s attorney, Jones testified that Alicia made an outcry of physical abuse by Father, complained of being left at home alone for extended amounts of time without food, and said that there had been domestic violence between the parents when the Children were present. Alicia also showed Jones a video of Mother and Father that Jones found “concerning.”8 Jones assigned the disposition “reason to believe” to the parents’ latest CPS case. Juarez testified about his work on this case, including his interviews of Father, Andrew, and Billy. He also explained that there were “concerns about the children being self-sufficient.” He testified that Andrew’s acting as a caretaker was “typically a sign of neglectful supervision”—something the Department sees “a lot of times where children are . . . left to their own devices [because] parents are out doing things, not necessarily good things.” He added that the Children “really relied on [Andrew] . . . for control of the situation” and “for comfort.” Juarez also recalled Father representing himself at a prior hearing in this case. According to Juarez, Father was When Jones began to testify about the contents of the video, Mother’s 8 attorney objected, and the trial court sustained the objection. The video was not offered in evidence and is not in the appellate record. 9 “very upset” with him, the Department, and everything that had happened and was talking out loud while witnesses were testifying. Juarez also testified that he “saw no immediate signs of malnourishment” when he saw the Children on the night of June 16, 2021. He could tell they had not bathed in a few days, but the Children did not have “eminent hygiene issues.” None of the Children asked him about their parents. Alyssa Dougharty, a permanency specialist, testified as the Department’s final witness. She testified that from the beginning, she had concerns with the family “instability and drug usage and some mental health concerns for [Mother].” Dougharty testified to the parents’ lengthy CPS history and that she had been part of the development of the service plan in this case. She testified that Mother and Father were given a copy of the service plan and had an opportunity to have it explained to them. They did not agree to work their required services; they claimed that they were good parents and that the Children were not removed for any legal reasons and should never have been removed. Even after a contested show-cause hearing, both parents maintained that “the investigators lied” and that the Children were not removed legally. Dougharty testified that neither parent made any progress on any of her concerns. Mother never started or completed any of her required services. Father signed up for parenting classes in November 2021 but did not start them or any of his other services. 10 Dougharty also testified about Mother’s December 2021 arrest. She testified that Mother admitted that she had methamphetamine on her but that, at the time, she had been looking for her missing daughter and had to encounter some “sketchy” people, one of whom had the methamphetamine. Dougharty explained that a parent is mentally unable to care for children if she is under the influence of substances and that the Department does not want any children around that type of environment. She further testified that Father had tested positive for methamphetamine in March 2022 but stated that “he did not know how the tests were positive[,] as he is randomly drug tested through his job, and he was negative previously the prior month.” Dougharty testified to thirteen occasions on which the parents were asked to take drug tests, and Mother did not show up to take any of them. Father tested positive for methamphetamine and amphetamine the only time he took a requested test. Dougharty testified that neither parent demonstrated an ability to provide their children with a safe and stable environment. Mother had indicated to her that she was selling houses as a realtor and was living at her boss’s house in Tyler, Texas, but she never gave Dougharty an address for the house. In addition, there was no evidence that Mother was a realtor. Similarly, Father told Dougharty that he lived in a small one-bedroom apartment but never gave Dougharty the address, only a ZIP code. He claimed he made steady income as a car mechanic, but Dougharty never received verification of this. In the wintertime, both parents represented to Dougharty that they had just finished construction on a house, but they never 11 provided an address for that either. Even after Dougharty had explained to the parents that she needed to know where they were living so that she could view the residence and “ensure that the home [was] safe and free of hazards for the children and to see if there[ were] any other members possibly residing in that home to run background checks to make sure that they[ were] cleared and okay to be around the children,” the parents still did not give her any home addresses. Dougharty further testified that, when the Children first came into foster care, they were “really shut off, hyperactive, [and] unable to pay attention[ or] focus.” She also testified to some concerning behaviors that the three youngest siblings had; Amy was “very defiant” and “very upset most of all [sic] the time” and did not want to listen to the foster parents, and the twins were very chaotic and destructive. At the time of trial, they had been doing better. Therapies were put in place for all the Children to address the Department’s concerns. Billy and David were both prescribed Adderall, and Billy was also taking Guanfacine. Dougharty testified that services were available for the foster parents or any future placements. She described Andrew as still being “shut off” and “really down and depressed recently.” He liked to stay to himself and spent most of his time in his bedroom, which he had stated he did with his biological family as well. She testified that the Children required more attention and a keener eye than other children in her caseload, and she did not think that either Mother or Father was able to provide that necessary level of care. She 12 testified that the Children’s current placements were able to meet their physical and emotional needs. Dougharty also testified that both Mother and Father made the vast majority of their scheduled weekly visits with the Children. She confirmed that the Children were happy to see their parents and interacted with and hugged them. However, she also testified that Mother and Father would bring the Children coloring books and toys, most of which did not work, “so the kids just really kind of looked at them.” They would also bring the Children “open containers of grapes, some stuff from 7-Eleven, sodas, [and] some energy drinks.” Amy started getting really sick after the visits, and the trial court ordered that all foods the parents brought to the visits had to be presealed and prepackaged. Dougharty also witnessed Mother try to show the Children photographs of the “home” that she claimed Father and she had, but the “home” pictured was just a construction center, not a completed house like she had represented to Dougharty. Mother also told the Children that they would be going home soon and that they should not be in foster care. Dougharty testified that these false promises led to behavior issues. She did not believe that any of the Children should be returned to the parents: The children were removed due to instability, drug usage, mental health concerns. We put services in place to address those concerns, such as: The random drug testing, the mental health evaluation, drug and alcohol assessment, individual counseling . . . . 13 .... However, [the parents] never completed or started any of those services, and they never elevated any of those concerns that we had since the beginning of this case. Dougharty also testified that, despite extensive efforts to find a placement option for the Children with relatives, the Department had not located a safe, stable placement for the Children—other than their current foster homes. She testified that the foster parents were not adoption-motivated, but the Department would continue looking for adoption-motivated placements, as well as placements where the Children could all be together. Ultimately, the Department planned to have all the Children adopted as a sibling group. Charging instruments from the parents’ criminal cases, alleging four offenses committed by Mother and two by father—all within the span of a couple months in 2021—were admitted in evidence without objection. Mother had been charged with criminal trespass, two counts of making a false report to a peace officer, and burglary of a habitation; Father had been charged with possession of methamphetamine and burglary of a habitation. Dougharty testified that neither Mother nor Father had been found guilty of any of these allegations, and the cases were still ongoing. She explained why the court terminating Mother and Father’s parental rights was in the Children’s best interests: As stated previously, . . . the concerns at the beginning were drug usage, instability, mental health concerns. Again, . . . services were put in place to address those concerns for the parents; however, throughout the 14 entirety of the case, the parents have never addressed any of those concerns that we’ve had. They’ve actually just . . . stated that the children shouldn’t be removed[,] and they fought constantly against everything and made no progress and shown no evidence of any behavorial [sic] changes or anything . . . . The trial court found by clear and convincing evidence that termination of each parents’ relationship with the Children was in the Children’s best interest and that both parents had . . . knowingly placed or knowingly allowed the [Children] to remain in conditions or surroundings which endanger the physical or emotional well-being of the [Children], pursuant to § 161.00l(b)(l)(D), Texas Family Code; . . . engaged in conduct or knowingly placed the [Children] with persons who engaged in conduct which endangers the physical or emotional well-being of the [Children], pursuant to § 161.00l(b)(l)(E), Texas Family Code; . . . failed to comply with the provisions of a court order that specifically established the actions necessary for the [parents] to obtain the return of the [Children] who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the [Children]’s removal from the parent under Chapter 262 for the abuse or neglect of the [Children], pursuant to § 161.00l(b)(l)(O), Texas Family Code; . . . used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the [C]hildren, and (1) failed to complete a court-ordered substance abuse treatment program; or (2) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance, pursuant to § 161.00l(b)(l)(P), Texas Family Code[.] See Tex. Fam. Code Ann. § 161.001(b). The trial court entered an order terminating Mother’s and Father’s parental rights. Mother appeals from this order. 15 III. DISCUSSION In the first of her two issues, Mother argues that no evidence or insufficient evidence supports the trial court’s findings and that the trial court erred in permitting hearsay testimony of what a child told an investigator. Because the evidence is legally and factually sufficient to support the trial court’s findings under Family Code Subsections 161.001(b)(1)(D) and (E) and to support the trial court’s best-interest finding, and because any error in the admission of the hearsay testimony was harmless, we will overrule Mother’s issues and affirm the trial court’s termination order. A. Sufficiency of the Evidence For a trial court to terminate a parent–child relationship, the party seeking termination must prove two elements by clear and convincing evidence: (1) that the parent’s actions satisfy one ground listed in Family Code Section 161.001(b)(1); and (2) that termination is in the child’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re Z.N., 602 S.W.3d 541, 545 (Tex. 2020). Evidence is clear and convincing if it “will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007; Z.N., 602 S.W.3d at 545. Due process demands the heightened standard of clear and convincing evidence because “[a] parental rights termination proceeding encumbers a value ‘far more precious than any property right.’” In re E.R., 385 S.W.3d 552, 555 (Tex. 2012) 16 (quoting Santosky v. Kramer, 455 U.S. 745, 747–48, 102 S. Ct. 1388, 1391–92 (1982)); J.F.C., 96 S.W.3d 256, 263 (Tex. 2002); see also In re E.N.C., 384 S.W.3d 796, 802 (Tex. 2012). In a termination case, the State seeks not just to limit parental rights but to erase them permanently—to divest the parent and child of all legal rights, privileges, duties, and powers normally existing between them, except the child’s right to inherit. Tex. Fam. Code Ann. § 161.206(b); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently, “[w]hen the State seeks to sever permanently the relationship between a parent and a child, it must first observe fundamentally fair procedures.” E.R., 385 S.W.3d at 554 (citing Santosky, 455 U.S. at 747-48, 102 S. Ct. at 1388). For the same reason, we carefully scrutinize termination proceedings and strictly construe involuntary-termination statutes in the parent’s favor. E.N.C., 384 S.W.3d at 802; E.R., 385 S.W.3d at 563; Holick, 685 S.W.2d at 20–21. To determine whether the evidence is legally sufficient in parental-termination cases, we look at all the evidence in the light most favorable to the challenged finding to determine whether a reasonable factfinder could form a firm belief or conviction that the finding is true. Z.N., 602 S.W.3d at 545. The factfinder may draw inferences, but they must be reasonable and logical. Id. We assume that the factfinder settled any evidentiary conflicts in favor of its finding if a reasonable factfinder could have done so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved, and we consider undisputed evidence even if it is contrary to the finding. Id.; In re J.F.C., 96 S.W.3d at 266. That is, we consider evidence favorable to the finding if a 17 reasonable factfinder could, and we disregard contrary evidence unless a reasonable factfinder could not. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). The factfinder is the sole judge of the witnesses’ credibility and demeanor. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009). We must perform “an exacting review of the entire record” in determining the factual sufficiency of the evidence supporting the termination of a parent–child relationship. In re A.B., 437 S.W.3d 498, 500 (Tex. 2014). Nevertheless, we give due deference to the factfinder’s findings and do not supplant them with our own. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). We review the whole record to decide whether a factfinder could reasonably form a firm conviction or belief that the Department proved one or more of the conduct-specific grounds on which the termination was based and that the termination of the parent–child relationship would be in the children’s best interest. Tex. Fam. Code Ann. § 161.001(b); In re C.H., 89 S.W.3d 17, 28 (Tex. 2002). If the factfinder reasonably could form such a firm conviction or belief, then the evidence is factually sufficient. C.H., 89 S.W.3d at 18– 19. 1. Analysis of the (D) and (E) grounds for termination Because the evidence pertaining to Subsections (D) and (E) is interrelated, we conduct a consolidated review of those subsections. See In re S.H., No. 02-17-00188- CV, 2017 WL 4542859, at 10 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op.); In re T.N.S., 230 S.W.3d 434, 439 (Tex. App.—San Antonio 2007, no pet.). 18 Subsections (D) and (E) provide that the trial court may order the termination of a parent’s rights if it finds by clear and convincing evidence that the parent has (D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; [or] (E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child[.] Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E). “Endanger” means to expose to loss or injury, to jeopardize. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); In re J.T.G., 121 S.W.3d 117, 125 (Tex. App.—Fort Worth 2003, no pet.). Under Subsection (D), it is necessary to examine the evidence related to the environment of the child to determine if the environment was the source of the endangerment to the child’s physical or emotional well-being. J.T.G., 121 S.W.3d at 125. The conduct of a parent in the home can create an environment that endangers the physical and emotional well-being of a child. Id. Given the nature of environment-based endangerment, it logically follows that the relevant timeframe for an environment-based endangerment finding under Subsection (D) is prior to the child’s removal. In re A.O., No. 02-21-00376-CV, 2022 WL 1257384, at 9 (Tex. App.—Fort Worth Apr. 28, 2022, pet. denied). Illegal drug use by the parents and drug-related criminal activity by the parents “likewise support[ ] the conclusion that the children’s surroundings endanger their physical or emotional well-being.” J.T.G., 121 S.W.3d at 125. 19 Under Subsection (E), the relevant inquiry is whether evidence exists that the endangerment of the child’s physical well-being was the direct result of the parent’s conduct, including acts, omissions, or failures to act. See id.; see also Tex. Fam. Code Ann. § 161.001(b)(1)(E). Termination under Subsection (E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the parent is required. J.T.G., 121 S.W.3d at 125. It is not necessary, however, that the parent’s conduct be directed at the child or that the child actually suffer injury. Id.; Boyd, 727 S.W.2d at 533. The specific danger to a child’s well-being may be inferred from parental misconduct standing alone. In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). “As a general rule, conduct that subjects a child to a life of uncertainty and instability endangers the physical and emotional well- being of a child.” Id. Illegal drug use and its effect on the parent’s life and her ability to parent may establish an endangering course of conduct. Id. Criminal activity that exposes the parent to incarceration may also endanger a child. In re I.L., No. 02-18- 00206-CV, 2018 WL 5668813, at 5 (Tex. App.—Fort Worth Nov. 1, 2018, no pet.) (mem. op.); In re A.N.D., No. 02-12-00394-CV, 2013 WL 362753, at 2 (Tex. App.— Fort Worth Jan. 31, 2013, no pet.) (mem. op.). Endangering conduct is not limited to actions directed towards the child. Boyd, 727 S.W.2d at 533. It necessarily follows that the endangering conduct may include the parent’s actions before the child’s birth, while the parent had custody of older children, including evidence of drug usage. J.O.A., 283 S.W.3d at 345. We may consider conduct that occurred outside the child’s 20 presence in our review. Walker v. Tex. Dep’t of Fam. & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Here, the evidence shows a history of drug usage and criminal activity on Mother’s part, culminating in an unstable living environment that endangered the physical or emotional well-being of the Children. This was evident in the conditions in which the Children were found when they were removed and the behavior issues they displayed when they first went into foster care.9 Investigator Juarez personally witnessed eight-year-old Andrew acting in a parental role toward his younger siblings, which Juarez testified is “typically a sign of neglectful supervision . . . where children are left to their own devices.” He linked the Children’s behavior to “the family’s lack of cooperation and bouncing around from place to place,” and he testified that the Children “really relied on Andrew . . . for control of the situation.” Mother argues that the Department “presented no evidence that [Mother]’s children were ever seen, found, or believed to be in any condition or surrounding which endangered their physical or emotional wellbeing.” We cannot agree. The evidence at trial painted a grim picture of the conditions and surroundings in which Mother had placed the Children. In 2017, when she was the mother of four young 9 “According to the investigator,” Mother writes in her appellate brief, “the children all were happy, healthy, clothed, fed, and clean.” Mother does not specify which “investigator” she is referring to here, but Investigator Juarez testified at trial that he “could tell that [the Children] hadn’t bathed . . . in a few days, [and t]hey were very hungry. . . . McDonald’s had to be brought in because they hadn’t eaten all day.” 21 children, Mother tested positive for amphetamine and methamphetamine use. About a month later, police responded to an incident wherein Father brought out a gun and shot it in their apartment. CPS removed the children for neglectful supervision by the parents. After regaining custody of their then-four children, rather than improve their lifestyle, Mother and Father continued to shuffle their family around from impermanent home to impermanent home, and they had another child in the process. Their eldest daughter, Alicia, disappeared after making an outcry of abuse and showing Investigator Jones a “concerning” video of Mother and Father. In early 2021, when Mother and Father were again being investigated for neglectful supervision and physical abuse, Father told Investigator Lee that they were still “in the process of . . . getting . . . a long-term place to live.” Mother and Father continued to elude investigators until Father was arrested for possession of methamphetamine in May, just over a month before the Children were removed. Father admitted to using methamphetamine and marijuana, and both Mother and Father acknowledged that the pipe found during Father’s arrest was used for smoking methamphetamine. By the time of removal, Mother and Father had both been arrested and had evidently used their Children to break into someone else’s home, where the family was found living as squatters. Additionally, Mother and Father had failed to keep the Children well-fed; Investigator Juarez testified that, when he first met the Children late that night, they were “very hungry” and had not eaten all day. 22 Mother also argues that “[n]o evidence was presented that [Mother] or [F]ather had used or were using any illegal drugs in the presence of the children” and that “[n]o evidence was presented that the children were ever exposed to any illegal drug or dangerous condition.” The following testimony by Investigator Jones belies Mother’s argument: Q. And was there also discussion of [Father]’s arrest? A. Yes. Q. And what was the discussion regarding [Father]? A. We asked about a pipe being found during the arrest. And [Mother and Father] denied that it was their pipe, that it was some guy they picked up on the street. Q. So they acknowledged there was a pipe? A. Yes. Q. And what did they acknowledge regarding the pipe was used for? A. Meth. Q. Okay. [Father] was charged criminally for that; is that correct? A. Yes. .... Q. (BY [THE DEPARTMENT]) Is it concerning to you that they were even putting any weight towards that story that someone gave them a pipe or was responsible? Is it concerning that they were even around someone with a meth pipe? A. Yes. 23 Q. Okay. Why? A. Because the children were with them. Q. Okay. Were the children residing in a home or a car, or where were they residing with them? A. I think they were squatting at a home during that time. [Emphasis added.] In addition to the pre-removal conduct we have discussed, the trial court also heard testimony and saw evidence that Mother and Father continued to abuse drugs after the Children were removed. Mother admitted that she had methamphetamine on her in December 2021, and Father tested positive for methamphetamine and amphetamine less than two months before the termination trial. This, combined with the evidence of Mother’s amphetamine and methamphetamine use in 2017 and her repeated failure to take drug tests when asked by the Department—or ordered by the trial court—supported an inference that she was endangering the Children by using illegal drugs. See In re W.E.C., 110 S.W.3d 231, 239 (Tex. App.—Fort Worth 2003, no pet.) (stating that factfinder “could reasonably infer that appellant’s failure to complete the scheduled screenings indicated she was avoiding testing because she was using drugs”); In re E.R.W., 528 S.W.3d 251, 264–65 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“A parent’s decision to engage in illegal drug use during the pendency of a termination suit, when the parent is at risk of losing a child, may support a finding that the parent engaged in conduct that endangered the child’s physical or emotional well-being.”); In re M.M., No. 04-21-00463-CV, 2022 WL 24 1096381, at 4 (Tex. App.—San Antonio Apr. 13, 2022, no pet.) (mem. op.) (“Mother’s failure to drug test is considered a positive test result under the law and supports an inference that she is still using drugs.”). Such an inference is not rendered unreasonable by the evidence that Mother intermittently tested negative, especially in light of her erratic behavior, transient living situation, and consistent refusal to complete or even attempt to complete her service plan or to cooperate with the Department, all of which are consistent with drug abuse. Further, the trial court could reasonably have found that Mother knowingly placed the Children with Father, who was abusing illegal drugs, and that she endangered the Children’s emotional well-being by making false promises to them. Whether we view the evidence in the light most favorable to the judgment or weigh all of the disputed evidence, see In re A.C., 560 S.W.3d 624, 630–31 (Tex. 2018), a reasonable factfinder could form a firm belief or conviction that Mother (1) knowingly placed or knowingly allowed the Children to remain in conditions or surroundings that endangered the physical or emotional well-being of the Children and (2) engaged in conduct or knowingly placed the Children with persons who engaged in conduct that endangered the physical or emotional well-being of the Children. Thus, the evidence is legally and factually sufficient to support the trial court’s two endangerment predicate findings under Subsections (D) and (E). See Tex. Fam. Code Ann. § 161.001(b)(1)(D) and (E). Because only one finding alleged under Section 161.001(b)(1) is necessary to support a termination order, we need not address 25 the sufficiency of the evidence to support the trial court’s two other predicate findings. See Tex. Fam. Code Ann. § 161.001(b)(1)(O), (P); In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); In re D.M., 58 S.W.3d 801, 813 (Tex. App.—Fort Worth 2001, no pet.). 2. Analysis of the best-interest finding Mother also challenges the legal and factual sufficiency of the trial court’s finding that termination was in the Children’s best interest. See Tex. Fam. Code Ann. § 161.001(b)(2). Although we generally presume that keeping a child with a parent is in the child’s best interest, In re R.R., 209 S.W.3d 112, 116 (Tex. 2006), the best- interest analysis is child-centered, focusing on the child’s well-being, safety, and development, A.C., 560 S.W.3d at 631. In determining whether evidence is sufficient to support a best-interest finding, we review the entire record. In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). Evidence probative of a child’s best interest may be the same evidence that is probative of a Subsection (b)(1) ground. Id. at 249; C.H., 89 S.W.3d at 28; see Tex. Fam. Code Ann. § 161.001(b)(1), (2). We also consider the evidence in light of nonexclusive factors that the factfinder may apply in determining the child’s best interest: (A) the [child’s] desires . . . ; (B) the [child’s] emotional and physical needs[,] . . . now and in the future; (C) the emotional and physical danger to the child now and in the future; 26 (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the [child’s] best interest . . . ; (F) the plans for the child by these individuals or[, if applicable,] by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the [parent’s] acts or omissions . . . indicat[ing] that the existing parent–child relationship is not a proper one; and (I) any excuse for the [parent’s] acts or omissions. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (citations omitted); see E.C.R., 402 S.W.3d at 249 (stating that in reviewing a best-interest finding, “we consider, among other evidence, the Holley factors” (footnote omitted)); E.N.C., 384 S.W.3d at 807. These factors are not exhaustive, and some listed factors may not apply to some cases. C.H., 89 S.W.3d at 27. Furthermore, undisputed evidence of just one factor may be sufficient to support a finding that termination is in the child’s best interest. Id. On the other hand, the presence of scant evidence relevant to each factor will not support such a finding. Id. In this case, only one factor—the Children’s desires—weighed neither in favor of nor against termination of Mother’s parental rights to the Children. None of the Children testified at trial, and all four of them were under ten at the time of trial and therefore too young to express their desires. See In re J.G., No. 02-20-00038-CV, 2020 WL 3410503, at 7 (Tex. App.—Fort Worth May 28, 2020, no pet.) (mem. op.) (holding trial court was entitled to find that this factor weighed neither in favor of nor 27 against termination when none of the children testified at trial, none of their maturity levels were shown at trial, and some of the children were too young to express their desires); In re D.W., 445 S.W.3d 913, 926 (Tex. App.—Dallas 2014, pet. denied) (holding desire-of-child factor as neutral where children did not testify at trial and there was no evidence showing sufficient maturity of children ages nine, eight, six, and five years old being able to express a living preference). The other Holley factors all weigh in favor of the trial court’s finding that termination of Mother’s parental rights was in the Children’s best interest. Dougharty testified to the Children’s emotional and physical needs and that they required more attention and a keener eye than other children in her caseload. She also testified that neither Mother nor Father was able to provide the necessary level of care, but the Children’s current placements were able to meet their physical and emotional needs. Further, the trial court could have likewise inferred that Mother’s drug problems were going to continue and that, because Mother had a continuing pattern of drug abuse, she did not have the ability to meet the Children’s physical and emotional needs now and in the future. See In re N.H., No. 02-22-00157- CV, 2022 WL 4374638, at 13 (Tex. App.—Fort Worth Sept. 22, 2022, no pet. h.) (mem. op.). At the time of removal, the Children were found squatting in a home, they had not eaten all day or been bathed in a few days, and the only food for them to eat was cake. The evidence also showed that Mother had used (or at least possessed) illegal 28 drugs when the Children were with her and that she continued to use drugs after the removal. Dougharty also testified about Mother’s false promises to the Children and the behavioral issues that manifested afterward. The trial court could reasonably have inferred from this evidence that Mother’s bad parenting posed an emotional and physical danger to the Children and that she would place the Children in emotional or physical danger if they were returned to her. Based on the same evidence, as well as Dougharty’s testimony that a parent is “mentally unable to care for children” if she is under the influence of drugs like what Mother had been using, the trial court also could have reasonably doubted Mother’s parental abilities. By contrast, there is no evidence in the record that the Children were in any emotional or physical danger in their foster homes. Dougharty actually testified to how much better the Children had been doing since they were removed and placed in foster care. According to Dougharty, the Children’s current placements are able to meet their physical and emotional needs. Dougharty also testified about the therapies that had been put in place for the Children and that those programs would be available for the foster parents or any placements in the future. Dougharty also explained the different means the Department was using to connect the Children with adoption-motivated foster parents. When considering this factor—the programs available to assist the individuals seeking custody to promote the Children’s best interests—the contrast between Mother and the Department is even more marked. Mother consistently 29 refused to cooperate with the Department or address any of its concerns, even amid very serious allegations and even after the Children were removed and she was faced with losing her parental rights to them. Mother’s uncorroborated claims that she was working on her services and receiving counseling through a provider outside of the Department do not shift this factor in Mother’s favor, especially considering her pattern of drug use. See Tex. Fam. Code Ann. § 263.307(b)(10) (considering willingness and ability of family to complete counseling services); In re A.C., 394 S.W.3d 633, 642 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (fifth Holley factor weighed against mother who completed parts of Department’s family services plan but continued to use drugs and never completed entire program); Robinson v. Tex. Dep’t of Protective & Regul. Servs., 89 S.W.3d 679, 688–89 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (upholding termination in children’s best interest when mother continued to use drugs and left ameliorative family support programs incomplete). In fact, the trial court reasonably could have disbelieved that Mother received any counseling or other services at all; Mother never signed a release of information or gave Dougharty any contact information to confirm that Mother was actually doing these services. See In re M.S., No. 02-21-00007-CV, 2021 WL 2654143, at 17 (Tex. App.—Fort Worth June 28, 2021, pet. denied) (mem. op.) (“On this record, questioning Mother’s credibility was not unreasonable.”). The Children were not in adoption-motivated foster homes. However, the trial court had no evidence before it of Mother’s plans for the Children. Mother’s 30 position, as relayed through Dougharty’s testimony, appeared to have been that the Children should not have been removed. She told the Children that they would be “going home soon” and that they should not be in foster care. The trial court may have reasonably inferred from this that Mother wanted the Children back in her custody, but she had no specific plans for them if she regained custody. The Department’s plans, on the other hand, were to have the Children adopted all together as a sibling group. Generally, it is in a child’s best interest to keep siblings together whenever possible. A.O., 2022 WL 1257384, at 14. We cannot speculate as to the stability of some prospective home into which the Children might be placed someday, but we can see from the record that, in the years leading up to the termination, Mother did not provide a stable, permanent home for the Children. We have stressed that “children need permanency and stability,” In re G.V., III, 543 S.W.3d 342, 350 (Tex. App.—Fort Worth 2017, pet. denied), and that stability and permanence are “paramount” in the upbringing of children. In re M.E.- M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied). Dougharty testified that Mother “had a history of . . . stating she lived somewhere and never providing proof of that.” Mother and Father had stated that they were living in a new home and “that they finished the construction surprisingly fast,” but the photograph of the “home” that Mother showed the Children did not match what she had described. Because Mother was “[u]nstable herself,” she had no stability to offer the Children. M.S., 2021 WL 2654143, at 19. A reasonable factfinder could infer from 31 the testimony at trial that, while the Children’s current foster placements may not be permanent, they are safe and stable. Mother’s obstinate refusal to complete her court-ordered services also indicates that her parent–child relationship with the Children was not a proper one. Dougharty testified that both parents were provided a copy of the service plan “[m]ultiple times” and had an opportunity to have it explained to them. Even after Dougharty discussed with Mother the importance of completing the services, Mother still insisted that there was “no reason” for her to work on her services. The only excuse Mother offered was that the Children were not legally removed. As Dougharty put it, services were put in place to address those concerns [of drug usage, instability, and mental health] for the parents; however, throughout the entirety of the case, the parents have never addressed any of those concerns that we’ve had. They’ve actually just . . . stated that the children shouldn’t be removed[,] and they fought constantly against everything and [have] made no progress and shown no evidence of any [behavioral] changes or anything . . . that would [indicate they were able] to properly care for the children. The trial court, as factfinder, could have reasonably inferred from these acts or omissions that Mother did not want her children back, as she steadfastly refused to do what needed to be done to secure their return (and her parental rights). Additionally, the Children’s behavioral issues and significant improvement in foster care, as well as Mother’s drug use, false representations to the Children, and failure to bathe or feed the Children or provide them with a safe, stable, permanent home all indicate that 32 their parent–child relationship was not a proper one. David even told Dougharty that he would “still be okay” if he never got to see his parents again. In sum, not one of the nine Holley factors weighs against the trial court’s best- interest finding. One factor is neutral, and the rest weigh in favor of the trial court’s finding, some strongly so. Taken together, Mother’s “inability to provide a stable home[ or] remain gainfully employed, and her failure to comply with the service plans and successfully complete drug treatment all support the trial court’s finding that termination was in the [C]hildren’s best interest.” In re D.C., 128 S.W.3d 707, 717 (Tex. App.—Fort Worth 2004, no pet.). Viewing the evidence in the light most favorable to the trial court’s best-interest finding, we conclude that a reasonable trier of fact could have formed a firm belief or conviction that termination of Mother’s parental rights is in the Children’s best interest. See J.F.C., 96 S.W.3d at 266. Further, based on our exacting review of the entire record and giving due deference to the factfinder’s findings, we likewise conclude that the evidence is factually sufficient to support the trial court’s best-interest finding. See C.H., 89 S.W.3d at 18–19. Thus, under the applicable standards of review, we conclude that the evidence is legally and factually sufficient to support the trial court’s finding by clear and convincing evidence that termination of the parent–child relationship between Mother and the Children is in the Children’s best interest. See J.G., 2020 WL 3410503, at 10. Accordingly, we overrule Mother’s first issue. 33 B. Hearsay In her second issue, Mother argues that the trial court erred in allowing, over Mother’s objection, Investigator Jones to testify as to hearsay statements made by Alicia about alleged abuse: Q. Now, [Alicia] is not a part of this case; is that correct? A. Correct. Q. And why is she not a part of this case? A. She eventually ran away. Q. Okay. And when did that occur? A. I think December of 2020. Yup. .... Q. Okay. And the first -- at the beginning of this case, you interviewed, you said, the children. A. Uh-huh. Q. Let’s go back to that. Where did you meet [Alicia]? A. At school. Q. And did you discuss the concerns with [Alicia]? A. Yes. Q. And did she make any outcries of abuse or neglect? A. She did. Q. And what were those outcries? A. Physical abuse -- 34 [MOTHER’S ATTORNEY]: Objection. Hearsay. THE COURT: Overruled. Q. (BY [THE DEPARTMENT]) You can answer. A. Physical abuse by the father and then being left at home -- home alone for extended amounts of time, not having food, and she also voiced some domestic violence between the parents. The Department responds that Mother’s argument regarding hearsay lacks merit, that the hearsay at issue “is clearly not inadmissible hearsay,” that Mother has presented no argument to show harm, and that the record establishes no harm occurred. We agree with the Department that Mother has failed to show harm. Even when clear and convincing evidence justifies termination, we may reverse a judgment and remand the case to the trial court if it reversibly erred by admitting evidence. See Tex. R. App. P. 44.1; Tex. Dep’t of Hum. Servs. v. White, 817 S.W.2d 62, 63 (Tex. 1991) (applying predecessor to rule 44.1). “Hearsay” means a statement that (1) the declarant does not make while testifying at the current trial or hearing and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Tex. R. Evid. 801. Hearsay is not admissible unless a statute or other rule prescribed under statutory authority provides otherwise. Tex. R. Evid. 802. Once the opponent of hearsay evidence makes the proper objection, it becomes the burden of the proponent of the evidence to establish that the testimony fits within an exception to the general rule prohibiting the admission of hearsay evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004). 35 Applying these rules to Alicia’s “outcries,” we first address the Department’s contention that Alicia’s statement (as referenced by Jones) “was not offered to prove the truth of the matter asserted.” The Department asserts that “the statement was offered by Investigator Jones to show there existed concerns that required investigation by the Department” but does not explain why the Department had “concerns” if it did not believe Alicia’s statement. Nor has the Department explained how or why Alicia’s statement was relevant if it was not offered to prove the truth of the matter asserted. If the only relevance of an out-of-court statement is to prove the truth of the matter asserted, then the statement is hearsay even though the proponent asserts that it is offered to prove only the fact that the statement was made. See Tex. R. Evid. 401 (defining “relevance”), 402 (only relevant evidence admissible), 801 (defining “hearsay”); Case Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 782– 83 (Tex. App.—Dallas 2005, pet. denied) (rejecting argument that notes offered to prove truth of matters asserted were not hearsay but admissible as “operative facts” where notes had no relevance apart from truthfulness of assertions made therein); Williams v. Ford Motor Co., No. 04-01-00839-CV, 2003 WL 21010601, at *1 (Tex. App.—San Antonio May 7, 2003, pet. denied) (mem. op.) (reasoning that either excluded reports were offered for truth of matters asserted and thus were perhaps “relevant” but were inadmissible hearsay “or the reports were not offered for their truth and were patently irrelevant”). We conclude that Alicia’s statement to Investigator Jones “falls squarely within the definition of hearsay and therefore must 36 meet one of the hearsay exceptions to be admissible.” Volkswagen of Am., Inc, 159 S.W.3d at 907. We review a trial court’s decision to admit evidence for an abuse of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020). A trial court abuses its discretion if it acts without reference to any guiding rules or principles—that is, if its act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620. An appellate court also must uphold the trial court’s evidentiary ruling if the record shows any legitimate basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Under this standard, we cannot uphold the trial court’s ruling admitting the hearsay testimony over Mother’s objection. The proponent of hearsay has the burden of showing that the testimony fits within an exception10 to the general rule prohibiting Mother primarily argues in her second issue that the trial court’s ruling was 10 error notwithstanding Section 104.006 of the Texas Family Code: In a suit affecting the parent-child relationship, a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and 37 the admission of hearsay evidence, Volkswagen of Am., Inc, 159 S.W.3d at 908 n.5, and the Department has wholly failed to meet that burden here. The Department has not articulated any exception to the rule against hearsay that applies to the challenged testimony, and we are aware of none. See Robinson v. Warner-Lambert, 998 S.W.2d 407, 411 (Tex. App.―Waco 1999, no pet.) (“Robinson has not cited any authority allowing such an exception to the hearsay rule[,] and we find none.”). We hold that the trial court abused its discretion in overruling Mother’s hearsay objection. This error, however, was harmless. To obtain reversal of a judgment based on an error in the trial court, the appellant must show that the error occurred and that it probably caused rendition of an improper judgment or probably prevented the appellant from properly presenting the case to this court. Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005). We will not reverse a trial court’s judgment because of an erroneous evidentiary ruling unless the ruling circumstances of the statement provide sufficient indications of the statement’s reliability and: (1) the child testifies or is available to testify at the proceeding in court or in any other manner provided for by law; or (2) the court determines that the use of the statement in lieu of the child’s testimony is necessary to protect the welfare of the child. Tex. Fam. Code Ann. § 104.006. We agree that this exception to the rule against hearsay does not apply to Alicia’s statement to Jones. The trial court did not conduct the necessary hearing and make the findings required by the statute for the hearsay to be admissible under this provision. 38 probably, though not necessarily, caused the rendition of an improper judgment. Gunn v. McCoy, 554 S.W.3d 645, 668 (Tex. 2018); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012). The complaining party must usually show that the whole case turned on the evidence at issue. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (op. on reh’g); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995). If erroneously-admitted or -excluded evidence was crucial to a key issue, then the error was likely harmful, but not conclusively or per se harmful. Gunn, 554 S.W.3d at 668. “Likely” does not mean “definitely,” and “we apply the same standard—whether the erroneous exclusion of evidence probably caused the rendition of an improper judgment—even when the excluded evidence related to a key issue.” Id. at 668–69, 671; JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 165 (Tex. 2015). We examine the entire record in determining harm.11 Gunn, 554 S.W.3d at 671; U-Haul Int’l, Inc., 380 S.W.3d at 136. Error in admitting evidence is generally harmless if the rest of the evidence was so one-sided that the error likely made no difference. Gunn, 554 S.W.3d at 668; JLG Trucking, 466 S.W.3d at 165. Here, the record makes 11 The Department argues that “the record establishes no harm occurred because the same purported hearsay matters were admitted at other places in the record without objection.” The Department follows this contention in its brief with citations to the record where we find testimony about previous CPS history of Father and Mother. Because we conclude that the erroneously admitted hearsay was harmless for other reasons, we need not decide whether this other evidence in the record proved the same facts. 39 clear that the whole case did not turn on the evidence at issue, and as we have laid out in our foregoing analysis, the other evidence admitted at trial was very one-sided. The other evidence we have recited in our evidentiary-sufficiency review all came in without objection or over objections that Mother has not made into complaints on appeal. In light of the other evidence supporting the trial court’s termination findings, the hearsay testimony was “not controlling on a material issue dispositive to the case” and was therefore harmless. Interstate Northborough P’ship, 66 S.W.3d at 220. Because the trial court’s error is not reversible, we overrule Mother’s second issue. IV. CONCLUSION Having overruled both of Mother’s issues on appeal, we affirm the trial court’s judgment. /s/ Dana Womack Dana Womack Justice Delivered: November 3, 2022 40	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481319/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-22-00040-CR ___________________________ BENJAMIN ANDREW COLE, Appellant V. THE STATE OF TEXAS On Appeal from the 432nd District Court Tarrant County, Texas Trial Court No. 1583879D Before Birdwell, Bassel, and Womack, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION I. Introduction A jury found Appellant Benjamin Andrew Cole guilty of two counts of indecency with a child. See generally Tex. Penal Code Ann. § 21.11. The jury assessed Cole’s punishment at four and one-half years’ imprisonment for each count. After hearing victim-allocution statements, the trial court granted the State’s request to have the two terms of imprisonment run consecutively and sentenced Cole. On appeal, Cole raises two issues arguing (1) that the trial court reversibly erred by pronouncing sentence after receiving victim-allocution statements and by allegedly modifying the sentences assessed by the jury and (2) that this court should reform the judgments to allow his sentences to run concurrently. The State argues that Cole failed to preserve his argument regarding the timing of the pronouncement of his sentences; that it was within the trial court’s purview, not the jury’s, to order the sentences to run consecutively; and that Cole failed to preserve his argument regarding any alleged modification of his sentences. Because we hold that Cole’s arguments were not preserved for our review, we affirm the trial court’s judgments. II. Background Cole was arrested and charged with three counts of indecency with a child. At the conclusion of his trial, the jury found Cole guilty on the first two counts and acquitted him regarding the third. During the punishment phase, the jury assessed punishment at four and one-half years’ confinement for each count. Prior to 2 sentencing, the following exchange—which is the sole basis for Cole’s appeal— occurred: [THE COURT]: It is my understanding at this time that the victims would like to use their right of allocution; is that correct? [PROSECUTOR]: Yes, sir. THE COURT: You may proceed. We are off the record. (Allocution) THE COURT: All right. We’re back on the record. The Defendant will stand with his lawyers. Counsel, is there any legal reason why sentence should not be pronounced? [DEFENSE COUNSEL]: No, Your Honor. [PROSECUTOR]: Judge, before you sentence him, the State would request that the sentences be served consecutively. THE COURT: All right. Do you have anything to say, Counsel? [DEFENSE COUNSEL]: First we would ask that they run concurrently. THE COURT: All right. That request is -- the request is granted. They will run consecutively. [The trial court pronounced the sentence.] THE COURT: All right. State, are there any other matters that need to be taken up before we proceed further? [PROSECUTOR]: No, Your Honor. THE COURT: Anything on behalf of the Defense? 3 [DEFENSE COUNSEL]: No, Your Honor. III. Analysis In Cole’s first issue, he argues that it was reversible error for the trial court— after hearing victim-allocution statements—to grant a motion for his sentences to run consecutively. Specifically, Cole argues that the trial court violated Texas Code of Criminal Procedure Article 42.03, Section 1,1 when it heard victim-allocution statements before pronouncing his sentence and that the trial court allegedly modified his sentence by ordering his sentences to run consecutively. For us to consider Cole’s complaints on their merits, we must first determine whether his complaints were preserved at trial. A complaint regarding the admission of victim-allocution statements must be preserved at trial. See generally Mays v. State, 318 S.W.3d 368, 392 (Tex. Crim. App. 2010); Guevara v. State, 97 S.W.3d 579, 583 (Tex. Crim. App. 2003). Similarly, a complaint regarding the timing of the reading of victim-allocution statements must also be preserved at trial. See Rogers v. State, No. 06-20-00126-CR, 2021 WL 1916477, at 1 (Tex. App.—Texarkana May 13, 2021, no pet.) (mem. op., not designated for publication); McFadden v. State, Nos. 10-13-00038-CR, 10-13-00039-CR, 2014 WL The relevant portion of Texas Code of Criminal Procedure Article 42.03, 1 Section 1 provides that a court may allow victim-allocution testimony (1) after punishment has been assessed and the court has determined whether or not to grant community supervision in the case, (2) after the court has announced the terms and conditions of the sentence, and (3) after sentence is pronounced. Tex. Code Crim. Proc. Ann. art. 42.03, § 1(b). 4 2566480, at 2 (Tex. App.—Waco June 5, 2014, pets. ref’d) (mem. op., not designated for publication).2 To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion sufficiently stating the specific grounds, if not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Montelongo v. State, 623 S.W.3d 819, 822 (Tex. Crim. App. 2021). Further, the party must obtain an express or implicit adverse trial-court ruling or object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State, 595 S.W.3d 216, 223 (Tex. Crim. App. 2020). With regard to Cole’s argument directed at the timing of when the victim- allocution statements were read, Cole failed to raise any objection to the victim- allocution statements and thus failed to preserve this complaint for our review. As set forth above, Cole did not object when the trial court mentioned proceeding to the victim-allocution statements; at that point, the trial court had not pronounced sentence, and Cole had the opportunity to object to the victim-allocution statements being heard before the pronouncement of his sentence. Cole also failed to object immediately after the allocutions when the trial court inquired whether there was “any legal reason why sentence should not be pronounced.” Cole further failed to raise the 2 Although Rogers and McFadden are unpublished opinions with no precedential value, Tex. R. App. P. 47.7(a), “we consider unpublished opinions with similar facts instructive and cite them in agreement with their guidance as to the application of settled law.” Thetford v. State, 643 S.W.3d 441, 451 n.19 (Tex. App.—Fort Worth 2022, pet. ref’d) (citing Cain v. State, 621 S.W.3d 75, 81 n.8 (Tex. App.—Fort Worth 2021, pet. ref’d)). 5 issue after the pronouncement of his sentence when the trial court asked if there was “[a]nything [further] on behalf of the Defense?” The case that Cole relies on, Aldrich v. State, is distinguishable on its facts. 296 S.W.3d 225, 258 (Tex. App.—Fort Worth 2009, pet. ref’d) (op. on reh’g). In that case, the State asked to have “some unidentified people read unsworn statements to the trial court” before the trial court sentenced the appellant, and defense counsel timely raised a specific objection to the timing of the victim-impact statements prior to the reading of the statements in open court, stating, “I could be wrong, but I thought that the sentence was supposed to be invoked, and then the statements.” Id. No such objection was made here. Instead, this case is similar to Rogers. In that case, the appellant argued that the trial court erred by admitting victim-impact testimony before sentencing. Rogers, 2021 WL 1916477, at 1. The appellant, however, did not object to the victim’s statement but instead agreed to allow her statement to be read to the trial court. Id. The Texarkana Court of Appeals, citing Mays, held that the appellant had failed to preserve his complaint for review. Id. Because Cole failed to raise any objection to the victim-allocution statements, despite multiple opportunities to do so, Cole failed to preserve his complaint at trial regarding his sentence being pronounced after the victim-allocution statements were read. See id.; see also McFadden, 2014 WL 2566480, at 1–2 (holding that appellant 6 failed to preserve similar issue when he abandoned his objection to having victim- impact statements read before punishment was pronounced in second case).3 Cole also argues within his first issue that the trial court committed harmful error by modifying the sentences assessed by the jury after the receipt of the victim- allocution testimony in violation of Article 42.03, Section 1(b). Cole, however, fails to show that any modification occurred or that he preserved this complaint. In the case that Cole relies on, the following sequence of events occurred: • The trial judge accepted the jury’s punishment verdict and imposed the “standard” conditions of community supervision, including sex-offender registration; • after the trial judge completed his oral pronouncement of the sentence and community supervision conditions, he permitted allocution statements; • immediately thereafter, the trial judge imposed additional conditions of probation, including the requirement that the appellant sell his home and that he serve 180 days in the county jail; and • the appellant objected and obtained an adverse ruling from the trial court. See Johnson v. State, 286 S.W.3d 346, 347–48 (Tex. Crim. App. 2009). We are not presented with a similar sequence of events. 3 In his reply brief, Cole contends that the error in allowing victim-allocution statements before pronouncing the sentence constituted a waivable-only right, but he cites no cases showing that it is not a forfeitable right. Moreover, we are unpersuaded by his attempt to distinguish Mays, Guevara, and Rogers. 7 Here, the trial court did not pronounce an initial sentence and then a second, different sentence after the victim-allocution statements. Instead, the trial court pronounced the sentence once, and it was the same sentence assessed by the jury in each case.4 We have therefore not been presented with a record that shows any modification occurred. Additionally, although the trial court ordered the sentences to run consecutively, the Code of Criminal Procedure places that decision solely within the trial court’s discretion. See Tex. Code Crim. Proc. Ann. art. 42.08(a); 5 Byrd v. State, 499 S.W.3d 443, 446 (Tex. Crim. App. 2016) (“‘Normally, the trial judge has absolute discretion to cumulate sentences,’ so long as the law authorizes the imposition of Cole concedes in his brief that “there is nothing in the record to reflect 4 whether the trial court was affected by [the allocution testimony].” 5 The relevant portion of the governing statute on cumulative or concurrent sentences states that the cumulation is part of the judgment and that it is within the trial court’s discretion to make a cumulation order: When the same defendant has been convicted in two or more cases, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction. . . . [I]n the discretion of the court, the judgment in the second and subsequent convictions may either be that the sentence imposed or suspended shall begin when the judgment and the sentence imposed or suspended in the preceding conviction has ceased to operate[] or that the sentence imposed or suspended shall run concurrently with the other case or cases, and sentence and execution shall be accordingly[.] Tex. Code Crim. Proc. Ann. art. 42.08(a) (emphasis added). 8 cumulative sentences.”). 6 The jury therefore could not have decided to omit sentence cumulation from the assessed punishment because whether to cumulate the sentences was not for the jury to decide. Moreover, Cole did not object after the trial court pronounced the sentences and ordered them to run consecutively. See, e.g., Aubrey v. State, 750 S.W.2d 6, 8 (Tex. App.—Texarkana 1988, pet. ref’d) (“It was clear that the sentences for the two different convictions were being cumulated, so [appellant] was aware of that fact and had an opportunity to object or to present evidence in opposition to the cumulative portion of the sentence.”). Nor did he file a motion for new trial to raise this issue. Cole has thus failed to preserve this argument for our review. See Wells v. State, Nos. 09-10-00236-CR, 09-10-00237-CR, 2010 WL 3724753, at 2 (Tex. App.— Beaumont Sept. 22, 2010, no pet.) (mem. op., not designated for publication) (“[A]fter the trial court pronounced sentence and ordered that [appellant’s] sentence[s] . . . would run consecutively . . . , [appellant] did not object, nor did he file a motion for new trial. Therefore, [appellant] did not preserve this issue for review.”); cf. Davis v. State, No. 05-19-00625-CR, 2020 WL 5015276, at 14 (Tex. App.—Dallas Aug. 25, 6 Here, the law authorized the imposition of cumulative sentences, and Cole does not argue otherwise. Cole was convicted of two offenses of indecency with a child under Texas Penal Code Section 21.11; both offenses occurred on or about May 1, 2003; and both offenses involved the same victim. See Tex. Penal Code Ann. § 3.03(b)(1), (2)(A) (stating that if the accused is found guilty of more than one offense arising out of the same criminal episode, the sentences may run concurrently or consecutively if each sentence is for a conviction of an offense under an enumerated list of offenses, including one under Section 21.11); see also id. § 3.01 (defining “criminal episode”). 9 2020, no pet.) (mem. op., not designated for publication) (“While appellant requested a concurrent sentence, he did not object when the trial court ordered a consecutive sentence. Nor did appellant raise this issue in his motion for new trial. As a result, appellant has not preserved this issue [challenging a cumulation order on Eighth Amendment grounds] for . . . review.” (footnote omitted)).7 Accordingly, we overrule Cole’s first issue.8 IV. Conclusion Having overruled Cole’s first issue, which is dispositive of this appeal, we affirm the trial court’s judgments. /s/ Dabney Bassel Dabney Bassel Justice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: November 3, 2022 7 To the extent that Cole raises the argument that the State’s motion to cumulate the sentences was untimely, he also failed to raise any objection on that ground and thus did not preserve that argument for our review. See Tex. R. App. P. 33.1(a). 8 Given our disposition of Cole’s first issue, we need not address his second issue arguing that if the trial court committed error in pronouncing the sentence after victim-allocution statements were read, then we should modify the judgment to order the sentences to run concurrently. See Tex. R. App. P. 47.1. 10	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481312/	In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00112-CR ___________________________ TAYTON SETH FINLEY, Appellant V. THE STATE OF TEXAS On Appeal from County Criminal Court No. 5 Tarrant County, Texas Trial Court No. 1607688 Before Kerr, Bassel, Walker, JJ. Opinion on Rehearing by Justice Walker OPINION ON REHEARING After reviewing the State’s motion for rehearing, we grant the motion, withdraw our September 22, 2022 opinion and judgment, and substitute the following in their place. Appellant Tayton Seth Finley appeals from his conviction for misdemeanor assault causing bodily injury to his ex-girlfriend, T.G.1 Finley argues that the trial court denied him his Sixth Amendment Right to Confrontation by allowing T.G. to testify at trial while wearing a mask. We will reverse the trial court’s judgment and remand the case for a new trial because the trial court erred in allowing T.G. to testify behind a mask without sufficient findings related to T.G.’s particular need to wear a mask, and because such error was harmful. I. BACKGROUND A. TRIAL PROCEEDINGS 1. T.G. Testifies While Wearing a Mask Finley’s jury trial took place in late July 2021. Masks were voluntary for anyone in the courtroom, including witnesses. T.G.—the sole complainant and eyewitness to the alleged assault—took the witness stand while wearing a surgical mask that covered her nose and mouth. Finley’s counsel requested that the trial court require T.G. to remove her mask while she testified, citing Finley’s Sixth Amendment right to face-to- 1 In their appellate briefs, both parties refer to the complaining witness by her initials, T.G. We will follow their lead. 2 face confrontation. Specifically, he worried that the mask would interfere with the jury’s ability to evaluate T.G.’s facial expressions and demeanor. The State countered that Finley’s request was nothing more than an attempt to “harass and annoy the victim” and pointed to the “situation in the world” as the basis for allowing T.G. to keep her mask on. The State proffered that the issue boiled down to one of T.G.’s comfort amidst the COVID-19 pandemic: [I]f [T.G.] feels most comfortable testifying with a mask on in a room with many[,] many people in it and . . . she doesn’t know their background or whether or not they are coughing. I believe it is entirely within her right and it does not affect Crawford or the 6th Amendment right to confront witnesses. I believe actually the Supreme Court orders from Texas have been very clear [that] we should do as much as possible to protect people during in-person proceedings. So for that reason, if she wants to wear a mask, I’d ask that she be allowed to wear a mask. Finley’s attorney responded that, in his estimation, proper social distancing accommodations had been made in the courtroom in accordance with then-current CDC guidelines and Texas Supreme Court COVID-19 emergency orders.2 He did, however, concede that he might need to approach T.G. while she testified “to show her some documents.” 2 At the time of Finley’s trial, the supreme court’s thirty-eighth emergency order was in effect. See Thirty-Eighth Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 900, 900 (Tex. 2021). This order required that, “subject only to constitutional limitations,” courts should take all “reasonable action to avoid exposing court proceedings and participants to the threat of COVID-19.” Id. Further, a trial court was permitted to conduct jury proceedings if the local administrative judge had adopted “minimum standard health protocols for court proceedings” to include “masking, social distancing, or both.” Id. at 901. 3 The trial court denied Appellant’s request, citing the emergency orders: But I think that [the State] is correct. The overall tenure of these orders has been that we do whatever we can to protect each other, the community, from the Covid virus. So if [T.G.] wants to wear a mask, I’m not going to tell her she can’t. 2. T.G.’s Testimony T.G. testified that, after a night out drinking, she and Finley had gotten into an argument on their drive to his house. The argument escalated when they arrived at the house and Finley purposefully crashed his vehicle into a fence outside his house. He then pulled T.G. out of the car by her hair, and he beat her with his fists. According to T.G., Finley then dragged her into the house and continued to beat her with his fists which caused her to lose consciousness. After two days of persistent pain and swelling from the assault, T.G. went to the hospital. She initially reported that she sustained her injuries after falling from a horse. But after examining her injuries, hospital staff asked the police to come to the hospital to speak with T.G. Though reluctant, T.G. eventually explained to police that she had been assaulted by Finley. 3. Additional State’s Evidence A nurse testified that she had helped treat T.G. at the hospital. Her testimony consisted mainly of reading from T.G.’s medical records because, at the time of trial nearly two years after the incident, the nurse did not specifically remember treating T.G. The medical records showed that T.G. had indicated to the nursing staff that 4 her injuries were caused by Finley beating her. These injuries included deep bruises to her chest and shoulder. The State also called multiple police officers who had interviewed T.G. about the assault allegations. One of the officers who spoke with T.G. at the hospital noticed bruising on her arm and described her as “anxious” and “concerned.” Another officer who spoke with T.G. on the phone testified that he had viewed photographs of T.G. after the alleged assault and that her injuries appeared consistent with those obtained during an assault. He also viewed photographs of the driveway where Finley reportedly crashed his vehicle and testified that “the ground appeared to be chewed up” and that part of the fence was missing its panels. Finally, a victim assistance specialist for the police department testified as an expert about the various cycles of domestic violence. She testified that she did not know any details about Finley’s case but that it was common for victims of domestic violence to be fearful of talking to law enforcement or of prosecuting an assault allegation. She also testified that it was common for victims to have trouble remembering certain details of a traumatic event. 4. The Verdict During deliberations, the jury informed the trial court that it could not reach a unanimous decision. However, after receiving an Allen charge from the trial court, the jury returned a guilty verdict. See Allen v. United States, 164 U.S. 492, 501, 17 S. Ct. 5 154, 157 (1896). Finley was sentenced to 300 days in jail and fined $4,000. This appeal followed. B. APPEAL ABATED FOR PARTICULARIZED FINDINGS 1. Abatement Order Beyond the non-evidentiary arguments of the parties, no evidence was offered at trial to explain T.G.’s need to wear a mask, and the trial court failed to announce on the record or file any findings related to T.G.’s particular need to wear a mask. Accordingly, and on our own motion, we abated this appeal on July 15, 2022, and ordered that the trial court supply us with “case-specific, evidence-based findings pertaining to whether it was necessary for T.G. particularly to wear a mask while she testified.” See Maryland v. Craig, 497 U.S. 836, 855, 110 S. Ct. 3157, 3169 (1990) (holding that the trial court must hear evidence and make case-specific findings that use of special courtroom procedure that permitted a child to testify in the absence of face-to-face confrontation of defendant was necessary “to protect the welfare of the particular child witness”); Haggard v. State, 612 S.W.3d 318, 325–28 (Tex. Crim. App. 2020) (applying Craig necessity-findings rule in Texas case involving an adult witness); see also Romero v. State, 136 S.W.3d 680, 684–85 (Tex. App.—Texarkana 2004) aff’d, 173 S.W.3d 502 (Tex. Crim. App. 2005) (same). We further ordered the trial court to “notify this court if the trial court require[ed] more than forty-five days to make and file these findings.” 6 2. First Supplemental Record On August 19, 2022, the trial court submitted its first supplemental clerk’s record that did not include any particularized findings but merely supplemented the clerk’s record with three documents devoid of any explanation: (1) a COVID-19 operating plan for the Tarrant County judiciary implemented by the local administrative judge, (2) an order of assignment showing that Finley’s case had been assigned for all purposes to a retired judge, and (3) a case docketing sheet.3 The operating plan, which went into effect on June 7, 2021, permitted in-person proceedings but required judges to take “reasonable steps to protect judges and court staff from contracting COVID-19.” People who had been exposed to or were showing symptoms of COVID-19 were prohibited from entering court facilities. Further, courts were ordered to establish policies and procedures to minimize the likelihood that court participants would violate social-distancing rules. The plan did not address the wearing of masks. 3. Abatement Hearing Record and Findings On September 22, 20224—the same day that we issued our original opinion— the trial court supplemented the appellate record with a transcript of a non- 3 The docketing sheet, which already existed in the original clerk’s record before this court, recited basic information about Finley’s case such as plea, verdict, and punishment details. 4 We were given no explanation for the record being supplemented more than three weeks beyond the forty-five-day deadline provided in our abatement order. 7 evidentiary5 abatement hearing that had been held on August 17, 2022. This transcript includes thirty-six findings of fact orally pronounced by the trial court that were subsequently reduced to writing and filed with this court on September 29, 2022. Though lengthy, for context we will recite each written finding in its entirety: 1. This trial was held during a time of disaster declarations, declarations of public health disaster, and emergency orders issued by various governmental entities in response to a deadly global pandemic caused by a contagious virus. 2. This is not a case where face-to-face confrontation was denied. The witness was physically present in court along with all the other participants in the trial: [Finley], 1 defense counsel, 2 prosecutors, 2 bailiffs, 1 court reporter, 6 jurors, and 1 judge. The witness testified in open court in a public courtroom in the presence of [Finley] and his counsel. The witness did not testify via closed circuit television, Zoom or other electronic means, nor was the witness behind a screen or other similar barrier preventing [Finley] and his counsel, or other trial participants, including the jury, from physically viewing and observing the witness during her testimony. 3. The witness did not wear any type of disguise during her testimony. She did not have on sunglasses or a hat of any kind. She wore a surgical- type mask. 5 The reporter’s record of the abatement hearing shows that no witnesses were called but contains two exhibits. State’s Exhibit 1 is a copy of the supreme court’s fortieth Covid-19 emergency order. See Fortieth Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 911, 911 (Tex. 2021) (effective August 1, 2021). The second exhibit—marked as “Court’s Exhibit 1”—is a document titled “Current and Emerging Health Issues” created by the Tarrant County Public Health department (TCPH). Under the heading “COVID Surge!,” a number of statistics purportedly show a rising trend of COVID-19 cases, deaths, and hospitalizations in Tarrant County as of July 19, 2021. The trial court, sua sponte, judicially noticed this document for record purposes and noted that the document was copied from a TCPH presentation made to the Tarrant County Commissioner’s Court on the day before Finley’s trial commenced. 8 4. There is no issue in this case regarding the identity of the witness. She was known to [Finley]. She had lived with [Finley] and had a child with [Finley]. 5. If the Craig requirements apply, the court finds there was an important public policy of protecting the participants in the trial, as well as the public, for the following reasons: a. at the time of the trial there was a deadly global pandemic caused by a contagious virus; and b. most, if not all, of the Emergency Orders of the Supreme Court of Texas, the Office of Court Administration’s various Guidance and Best Practices documents, the various Declarations of Disaster and the Executive Orders from the Governor of the State of Texas, the various Declarations of Local Disaster due to Public Health Emergency issued by the Tarrant County Judge and County Commissioners, the Tarrant County Health and Safety Policy established by the Tarrant County Commissioners Court, and the Local Operating Plans established by the Tarrant County judiciary (to all of which the court takes judicial notice) dealt with matters of safety for court participants and the public during said pandemic. 6. The court takes judicial notice of, and finds, the courtroom in which this trial was held was at all times open to the public during the trial. 7. The court takes judicial notice of, and finds, the witness entered the courtroom wearing a surgical-type mask. 8. The court made a reasonable deduction from the fact the witness was wearing a surgical-type mask that she wanted to continue wearing the mask. 9. The court takes judicial notice of, and finds, that while the witness was in the courtroom and testifying before the jury, there were at all times at least[] 14 other people present ([Finley] and his counsel, 2 prosecutors, 2 bailiffs, 1 court reporter, 6 jurors, and 1 judge). 10. The court makes a reasonable deduction from the facts and circumstances of this trial and so finds that the witness could not have 9 known what precautions, if any at all, other than possibly wearing a surgical-type mask, any of the other persons in the courtroom had taken to avoid exposure to and spreading of the Covid-19 virus. 11. The court makes a reasonable deduction from the facts and circumstances of this trial and so finds that none of afore-mentioned participants in the trial could have known what precautions, if any at all, other than wearing a surgical-type mask at the time, the witness had taken to avoid exposure to and spreading of the Covid-19 virus. 12. The court finds the witness was employed in a health-care facility and makes a reasonable deduction from that fact that the witness had more specialized knowledge of the importance of and the need to wear a surgical-type mask to avoid exposure to and spreading of the Covid-19 virus. 13. The court finds the witness never indicated a desire to remove her surgical-type mask before or during her testimony. 14. The court finds the objection to the witness wearing a surgical-type mask was made immediately after the witness was called to the witness stand and before she began her direct examination testimony. 15. The court finds [Finley] and his counsel were given the opportunity to move closer to the witness while she was testifying but apparently chose not to do so because they did not do so. 16. The court finds that defense counsel did not request the witness wear a face shield instead of the surgical-type mask. 17. The court finds that at no time was any offer of proof made, or requested to be made, of any particularized reason to require the witness to remove the surgical-type mask, which [Finley] would know since he and the witness lived together for some time and have a child together. 18. The court finds the witness was under oath while testifying. 19. The court finds during the witness’ testimony, she was visible to [Finley], his counsel, the prosecutors, the jury, and the court. 10 20. The court finds [Finley], prior to beginning cross-examination of the witness, did not renew or re-urge his objection to the witness testifying during cross-examination while wearing a surgical-type mask, cross- examination being the time when the witness was literally being confronted on behalf of [Finley]. 21. The court finds the witness was subjected to contemporaneous, rigorous, thorough, and effective cross-examination by defense counsel in the presence of [Finley], prosecutors, the jury, and the court. 22. The court finds the direct examination of the witness in the presence of [Finley], defense counsel, prosecutors, jury, and the court lasted approximately 59 minutes (time outside presence of the jury has been omitted). 23. The court finds the cross-examination of the witness in the presence of [Finley], defense counsel, prosecutors, jury, and the court lasted approximately 135 minutes (time outside presence of the jury has been omitted). 24. The court finds the witness was approached by defense counsel during cross-examination at least 6 times in the presence of the jury. 25. The court finds [Finley], through defense counsel, was given full and ample opportunity to cross-examine the witness, and did so. 26. The court finds [Finley], through defense counsel, was given full and ample opportunity to confront the witness face-to-face and to look her in the eye, and did so. 27. The court, considering the totality of the circumstances, finds that the witness wearing a surgical-type mask while testifying did not impede [Finley]’s right to confront the witness against him in such a manner to make the process unfair to [Finley]. 28. The court, considering the totality of the circumstances, finds [Finley]’s right to confront the witness against him was not constitutionally infringed. 29. The court finds that allowing the witness to wear a surgical-type mask while testifying was a reasonable method of ensuring the important 11 public policy of protecting the participants in the trial and the public during a time of disaster declarations, declarations of public health disaster, and emergency orders issued by various governmental entities in response to the deadly global pandemic caused by a contagious virus. 30. The court finds that allowing the witness to wear a surgical-type mask while testifying was at most a minimal, if any, imposition on [Finley]’s right to confront the witness while ensuring the important public policy of protecting the participants in the trial and the public during a time of disaster declarations, declarations of public health disaster, and emergency orders issued by various governmental entities in response to the deadly global pandemic caused by a contagious virus. 31. The court finds that any imposition on [Finley]’s right to confront the witness was tailored to address the circumstances in existence at the time of the trial, to wit: a time of disaster declarations, declarations of public health disaster, and emergency orders issued by various governmental entities in response to the deadly global pandemic caused by a contagious virus, and ensured the important public policy of protecting the participants in the trial and the public. 32. The court finds the witness meets the definition of “victim” as set forth in Article 56A.001 (7), Texas Code of Criminal Procedure. 33. The court finds the witness has the right to be treated with fairness pursuant to Article 1, Section 30(a) of the Constitution of the State of Texas. 34. The court finds that, given the totality of the circumstances, allowing the witness to wear a surgical-type mask as she desired while testifying in a public trial during a time of disaster declarations, declarations of public health disaster, and emergency orders issued in response to the deadly global pandemic caused by a contagious virus, was treating her with fairness as required by Article 1, Section 30(a) of the Con[]stitution of the State of Texas while balancing [Finley]’s right to confront the witness against him, with little or no restriction and no harm to [Finley]. The court finds both [Finley] and the witness were afforded the ability to, and did, exercise constitutional rights guaranteed to them. .... 12 [35.] I’ll take Judicial notice that at the time of this trial the Delta variant of the Covid 19 virus was dominant. And when I say protecting the public and the participants of the trial from the virus, I mean that allowing her to wear the mask since she wanted to do that was specifically necessary to do that; and [36.] In July of 2021 I think everyone knew, including me, that the virus was spreading, that this was a public health situation, that we were inundated with—from news media, governmental agencies, CDC, basically anybody who had an opinion on it was telling us what we should do and what we shouldn’t do, so, yeah, of course, the Court was aware of the situation at the time. And all that informs the decision of the Court of she wants to wear a mask, and when all this is going on I didn't see a reason to require her not to. II. ANALYSIS The Confrontation Clause is an important facet of the United States Constitution. It is imperative that defendants have the opportunity to confront their accusers face-to-face. When that accuser is masked while testifying at a jury trial against the defendant, the Confrontation Clause is implicated because the jury is denied the opportunity to read the accuser’s face and fully judge their credibility. This is particularly true when the accuser is the sole eyewitness to the alleged crime. There is good reason, after all, why we have expressions in American parlance such as “bald- faced lie,” or the older expression of “bare-faced truth”—because much can be gleaned about a person’s countenance and truthfulness from their unobstructed facial expressions. In a single issue, Finley argues that his Sixth Amendment right to face-to-face confrontation was violated when T.G. was permitted to testify while wearing a mask 13 that covered her nose and mouth. Among several sub-issues, Finley posits that reversal is required because the trial court made no case-specific findings as to why it was necessary for T.G., in particular, to wear a mask at trial. The State responds that Finley’s confrontation right was not violated because the trial court’s decision to allow T.G. to wear a mask furthered an important public policy—“ensuring the safety of everyone in the courtroom during a global pandemic”—and because the reliability of T.G.’s testimony was not impaired by doing so. On the issue of particularized findings, the State argues that particularized findings are not required in the COVID-19 context.6 In any event, says the State, the trial court’s pronouncement at trial that courts shall “do whatever we can to protect each other, the community, from the Covid virus” and its supplemented thirty-six findings satisfied any such need for particularized findings. A. PARTICULARIZED FINDINGS 1. Applicable Law The Sixth Amendment protects an accused’s right to confront, face-to-face, any witnesses that testifies against him. U.S. CONST. amend. VI; Coy v. Iowa, 487 U.S. 1012, 1017, 108 S. Ct. 2798, 2801 (1988); Haggard v. State, 612 S.W.3d 318, 324 (Tex. Crim. App. 2020). The primary aim of this confrontation right is to not only test a Notably, the attorney for the State conceded outright at oral argument before 6 this court that the trial court had not, in fact, made any such findings particular to T.G. 14 witness’s memory and conscience but to compel him “to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242–43, 15 S. Ct. 337, 339 (1895). A jury’s ability to view a witness’s facial expressions is paramount to the confrontation right because the face is “the most expressive part of the body and something that is traditionally regarded as one of the most important factors in assessing credibility.” Romero, 173 S.W.3d at 505–06 (stating that allowing a witness to testify while disguising his face would “remove the ‘face’ from ‘face-to-face confrontation’”). However, “[a]lthough face-to-face confrontation forms the core of the values furthered by the Confrontation Clause, [the Supreme Court] has nevertheless recognized that it is not the sine qua non of the confrontation right.” Craig, 497 U.S. at 847, 110 S. Ct. at 3165 (internal citations and quotations omitted). Instead, a defendant’s confrontation right may be satisfied absent a physical, face-to-face confrontation “only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850. To show such necessity, the trial court must hear evidence and then make a case-specific, evidence-based finding that the departure from the face-to- face confrontation right is necessary to protect the well-being of the particular witness. Id.; see Haggard, 612 S.W.3d at 324–26; Romero, 136 S.W.3d at 690–91. However, the trial court commits constitutional error when it dispenses with the 15 accused’s confrontation right based on an insufficient finding of necessity. See Haggard, 612 S.W.3d at 327–28. 2. The Trial Court’s Findings Were Insufficient as to T.G. Particularly The trial court’s findings can be broadly grouped into four categories: (1) general pronouncements about the COVID-19 pandemic and the court’s duty to protect the trial proceedings and participants from infection; (2) facts related to the trial court’s management of the courtroom and trial proceedings; (3) conclusions of law related to whether Finley’s Confrontation right was improperly infringed upon; and (4) findings related to T.G.’s testimony. Understandably, the State and the trial court repeatedly raise the same refrain, “But, COVID-19.” We acknowledge the multitude of difficult decisions thrust upon trial courts in the face of the pandemic and appreciate this trial court’s considerable efforts to protect its courtroom and trial participants from the deadly virus. Nevertheless, neither a generalized pronouncement by the trial court that courts were to protect against COVID-19 exposure nor the existence of governing, state- and county-level COVID-19 disaster orders met this case-specific burden. See Romero, 136 S.W.3d at 690–91 (“Satisfaction of this general standard requires more than a mere showing that public policy would be served; instead, it demands that trial courts make case-specific findings of necessity, justifying the infringement of a defendant’s right to confront his or her accusers face to face.”) 16 Here, it is the fourth category of findings on which we must focus. Simply put, T.G. should not have been permitted to testify while wearing a mask unless the trial court could articulate, from the evidence before it, a justifiable reason why she specifically, in this particular trial, needed to wear a mask in a courtroom where masks were not otherwise required. There are two sets of findings ostensibly aimed at showing this necessity. First, after outlining that the courtroom contained at least fourteen people from whom T.G. could not ascertain whether they had taken proper precautions against the virus, the trial court found that T.G. “was employed in a health-care facility.” From this, the court deduced that T.G. had a “more specialized knowledge of the importance of and the need to wear a surgical-type mask” to avoid viral exposure and spread. But the plain finding that T.G. worked at a healthcare facility was not sufficient to show her specific need to wear a mask. While it is true that T.G. testified that she worked at a nursing home, this fact came into evidence for purposes not relevant here and was never argued as a basis for T.G.’s need to wear a mask. Rather, there was no evidence that established her actual duties at the nursing home, that she did have “specialized knowledge” as to the necessity of wearing a mask, or, for example, that she was susceptible to spreading the virus to a high-risk population. And even if the evidence supported that T.G. had a “specialized knowledge” about pandemic mask-wearing in a general sense, that fact would say nothing about her own need to wear a mask in this particular trial. See Craig, 497 U.S. at 855–56, 110 S. Ct. at 17 3168–69 (explaining that, even though it is generally known that the State has a “transcendent interest in protecting the welfare of children” to allow certain child victims to testify in the absence of face-to-face confrontation, trial courts must still make sufficient evidence-based findings that such is needed to protect the welfare of each particular child witness) (internal quotations omitted). Second, citing T.G.’s status as a crime victim entitled to be treated with fairness under the Texas constitution, the trial court found that allowing T.G. to testify while wearing a mask during the pandemic “was treating her with fairness as required by Article 1, Section 30(a) . . . .” See Tex. Const. art. I, § 30(a)(1). While we are sympathetic to T.G.’s rights as the purported victim in this case, it remains that this finding does not provide an evidence-based explanation for why T.G. specifically needed to wear a mask under these circumstances. At best, this finding establishes only the trial court’s general belief that fairness permitted T.G.—or presumably any victim under these circumstances—to do so. On the other hand, because the trial court did not mandate face coverings during Finley’s trial, it apparently believed that all participants were adequately protected in the courtroom without needing to wear masks. We are given no explanation as to why T.G. herself needed the protection of a mask when others did not. At no point in these proceedings—not at any pretrial hearing, at trial, on appeal, or upon abatement of the appeal—has any evidence been adduced to explain why T.G. needed this special protection. 18 The State argues that this is not an issue of concern because the trial court was imbued with the authority to allow masked testimony by Texas Supreme Court COVID-19 emergency orders that ordered trial courts to take all reasonable action to protect participants from the virus. See, e.g., Thirty-Eighth Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 900 (Tex. 2021). We are not persuaded by this argument for two reasons. Chiefly, the reasonable-action mandate from those orders was specifically made “subject only to constitutional limitations.” See, e.g., id. at 900. In other words, trial courts were ordered to take protective steps against COVID-19 only if those steps did not infringe upon a defendant’s constitutional rights—such as his Sixth Amendment right to confrontation. See id. Additionally, the order effective in July 2021 at the time of Finley’s trial did not contain a face-covering mandate, which shows an evolution away from the stricter directives of previous orders that did require face coverings in the courtroom. Compare id. (containing no face-covering requirement) with Thirty-Sixth Emergency Order Regarding COVID-19 State of Disaster, 629 S.W.3d 897, 898 (Tex. 2021) (requiring face coverings to be worn over the nose and mouth). Finally, the State argues that particular findings as to the individually-masked witnesses are not required in the COVID-19 context given the important public- policy need for courts to protect their participants from the disease. The State points 19 us to several non-Texas cases to support this contention.7 We are not swayed by these cases largely because they either ignore or outright abandon—without precedent—the clear directive from Craig that courts make such findings. Instead, the State invites us to follow suit and to fashion a COVID-19-pandemic exception which would alleviate the need for the trial court to enter the requisite findings. We decline the invitation. We have found no pandemic-era Texas cases applying the Craig factors to a masked-witness situation. However, one of our sister courts was recently asked to determine whether a defendant’s confrontation right was violated when two witnesses were permitted to testify at trial via two-way Zoom teleconferencing technology. See Dies v. State, No. 05-20-00951-CR, 2022 WL 3097816, at 6 (Tex. App.—Dallas Aug. 4, 2022, no pet. h.). In Dies, the trial court heard evidence that one witness had just tested positive for COVID-19 and that the other was 38 weeks pregnant, lived two hours away, and had been advised by her doctor not to travel. Id. at 1–2. The trial court found that these conditions warranted allowing the witnesses to testify remotely. Id. at 4. The Fifth Court of Appeals held—after explaining that Texas courts indeed must make evidentiary, case-specific findings before dispensing with the face-to-face right—that the Craig factors had been satisfied by the trial court. Id. at 6. See United States v. James, No. CR-19-08019-001PCT-DLR, 2020 WL 6081501, 7 at 1 (D. Ariz. Oct. 14, 2020); United States v. Crittendon, No. 4:20-CR-7 (CDL), 2020 WL 4917733 (M.D. Ga. Aug. 21, 2020), at 6; State v. Modtland, 970 N.W.2d 711, 720 (Minn. Ct. App. 2022). 20 We will follow the Dies court’s lead in declining to abandon the Craig particularized-findings requirement in the pandemic context. Accordingly, we hold that the trial court erred when it allowed T.G. to testify while wearing a mask in the absence of a sufficient particularized finding as to her particular need to do so. B. HARM ANALYSIS Having held that the trial court erred, we must determine whether such error was harmful. See Haggard, 612 S.W.3d at 328. 1. Applicable Law A denial of physical, face-to-face confrontation is reviewed for harmless error. Coy, 487 U.S. at 1021, 108 S. Ct. 2798; see Chapman v. California, 386 U.S. 18, 23, 87 S. Ct. 824, 17 (1967). Constitutional error is harmful unless a reviewing court determines beyond a reasonable doubt that the error did not contribute to the conviction. Tex. R. App. P. 44.2(a). The State has the burden to prove that the error is harmless beyond a reasonable doubt. Haggard, 612 S.W.3d at 328. That is, if we are unable to conclude beyond a reasonable doubt that the error did not contribute to the conviction, we must reverse and order a new trial. Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010). In the context of the denial of face-to-face confrontation, the harm analysis “cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation” because “such an inquiry would obviously involve pure speculation.” Coy, 487 U.S. at 1021– 21 22, 108 S. Ct. at 2803. Instead, harm must be determined based on “the remaining evidence.” Id. While our determination should consider “any circumstance apparent in the record that logically informs the harm issue,” a number of factors can aid our analysis: (1) importance of the witnesses’ testimony to the prosecution’s case, (2) whether the testimony was cumulative, (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, (4) the extent of cross-examination otherwise permitted, and (5) the overall strength of the prosecution’s case. Haggard, 612 S.W. at 329. 2. Error Not Harmless Beyond a Reasonable Doubt Arguing that any error was harmless here, the State focuses on factors three, four, and five. According to the State, many of the details testified to by T.G. were corroborated by other evidence at trial, such as medical records and police interviews. Further, the State argues that the extent and duration of T.G.’s cross-examination— which spanned nearly three hours—bears in favor of the error being harmless. Finally, the State contends that its case was strong because T.G.’s testimony itself was strong. We see it differently than the State. Having found error in allowing T.G. to testify while wearing a mask, we must set aside her testimony and analyze harm based on the remaining State’s evidence. See Haggard, 612 S.W.3d at 628. Materially, that evidence consisted of: 22 1. the nurse’s testimony, derived mainly from medical records, concerning T.G.’s injuries; 2. testimony from multiple police officers describing T.G. as “anxious” and “concerned” two days after the alleged assault, characterizing her injuries as consistent with an assault, and indicating that pictures showed that the ground near Finley’s driveway appeared “chewed up” and that his fence was missing some panels; 3. pictures of T.G. taken at the hospital that showed bruising; and 4. expert testimony from the victim assistance specialist that domestic violence victims are often reluctant to report their abuse and often have trouble remembering details of their trauma. Viewing this evidence, and considering the significance of T.G.’s testimony to the State’s case, we are unable to conclude beyond a reasonable doubt that the trial court’s error did not contribute to Finley’s conviction. T.G. was the purported victim and sole eyewitness to the alleged assault. Thus, she was not only important to the State’s case; she was its main witness. Without her testimony, the State’s case would have been severely weakened because it had no other first-hand account of the offense. Such weakness is accentuated by the fact that—even with T.G.’s testimony—the jury was initially unable to reach a unanimous decision, returning its guilty verdict only after receiving an Allen charge. Accordingly, we hold that the State failed to meet its burden establishing from other evidence that the error was harmless beyond a reasonable doubt. Id. III. CONCLUSION A defendant’s constitutional right to face-to-face confrontation—which includes allowing the jury to analyze the facial expressions of each witness—cannot be 23 dispensed with easily. Safeguards have been constructed to ensure that the right is infringed upon only when there exists an important and articulated reason to do so. And it is easy to see why: a witness’s face conveys vital information to the jury about the veracity and reliability of their testimony. See Mattox, 156 U.S. at 242–43, 15 S. Ct. at 339. Allowing a witness’s face to be obscured from the jury would, as the Court of Criminal Appeals has stated, “remove the ‘face’ from ‘face-to-face confrontation.’” Romero, 173 S.W.3d at 505–06. It is for these reasons that we cannot overlook the trial court’s error in allowing T.G. to testify while wearing a mask without articulating a sufficient, case-specific reason as to why it was necessary. Thus, having held that the trial court erred and that such error was not harmless, we reverse and remand for a new trial. /s/ Brian Walker Brian Walker Justice Publish Delivered: November 3, 2022 24	01-04-2023	11-07-2022
https://www.courtlistener.com/api/rest/v3/opinions/8481415/	BALDWIN, J., delivered the opinion of the Court. The appellant incurred no responsibility to the appellee by his sale as trustee, under the deed of trust in the proceedings mentioned, of the land thereby conveyed. Acting as trustee, he sold at public auction, such property and such title only as were vested in him by the deed, according to the terms therein prescribed, without any warranty ; and it is not pretended that in Conducting and accomplishing the sale, he was guilty of any fraudulent act or misrepresentation, or even fell into any error or irregularity whatever. Nor does the appellee in his bill seek relief against him upon any other ground than the allegation, that a part of the proceeds, of the trust sale remain in his hands, and ought to be subjected to the equity asserted against the other defendants. The equity asserted by the appellee is founded upon an alleged deficiency in the-tract of land conveyed by the trust deed,, arising out of an alleged defect in the title of Richard Hoomes, the grantor therein, to a part of the land embraced within the boundaries thereof. And if that equity can be established, it must be upon the supposition that the grantor and cestuis que trust in the deed are to be affected by such defect of title. In this case, the question does not occur whether the purchaser at such a sale by the trustee, is' entitled to the benefit of a clause or covenant of warranty in the conveyance from the grantor to the trustee. Here there is no clause or covenant of warranty in the deed: And if the purchaser is entitled to relief, it must be upon the ground of a mistake in regard to the subject-matter of the contract. We need not consider whether there may not be cases of mistake, in respect to the identity of land sold by the trustee with that conveyed by the grantor, which would be proper for relief in a Court of equity. Here if there was any mistake, it was not of that nature. The property sold was the identical property conveyed by the deed; and there was no room for any mistake, unless in regard to the validity of the grantor’s title. A mistake in respect to that matter, is no ground for relief to a purchaser, where he takes upon himself the risk as to the title, as he does when he purchases land without agreement, express or implied, for a conveyance with warranty of the title. The principle upon which equity relieves against a mistake in the estimated quantity of land sold, has no application to a case like this. The foundation of such relief is, that the price agreed upon by the parties must be presumed to have been influenced by the estimated quantity, unless it appears that they intended a contract of hazard; and the mistake is corrected not only in cases of deficiency, but also in cases of excess. Here there was no estimate of the quantity as bétween the trustee and the purchaser, but a mere statement thereof in the grantor’s conveyance to the trustee. That statement was mere matter of description, and was no element of the contract between the grantor and the 95trustee, for which the consideration enured not from the trustee, but the cestuis que trust, and was in no wise dependent upon the supposed quantity of the land. The purpose of the conveyance was, that the property should be sold by the trustee, at all events, for whatever it would bring, and the grantor undertook no responsibility either as to title or quantity. If the quantity had turned out after the sale by the trustee to be greater than that mentioned in the deed, neither he, nor the grantor, nor the cestuis que trust, could have exacted from the purchaser compensation for the excess; and by parity of reason, they are not responsible for a deficiency. There is no principle, therefore, -whether of defective title or deficient quantity, upon which the appellee is entitled to relief; and it is unnecessary to consider the other questions of law and fact which have been discussed at the bar. And the Court is of opinion, that the decree of the Circuit court is erroneous. Decree reversed with costs, restraining order set aside, and bill dismissed with costs.	01-04-2023	11-07-2022

Subsets and Splits

No community queries yet

The top public SQL queries from the community will appear here once available.