                                       In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-18-00227-CV
                            _______________________

               IN THE ESTATE OF JEFFREY ALAN WRIGHT


                      On Appeal from the 1A District Court
                            Jasper County, Texas
                            Trial Cause No. 35848


                           MEMORANDUM OPINION

      Appellant Randall Joseph Wright (Randall) appeals the trial court’s order

admitting the will of his brother, Jeffrey Alan Wright (Jeffrey), to probate.

                                    Background

      Jeffrey died on April 6, 2016. On September 8, 2016, Randall filed an

Application for Letters of Administration and Declaration of Heirship concerning

Jeffrey’s estate. The application asserted that Jeffrey died intestate and named

Jeffrey’s heirs. The application requested that Randall, as Applicant, “be appointed

Administrator of this Estate; that Letters of Administration be issued to Applicant;



                                          1
for an order of the Court declaring the heirship of Decedent; that Appraisers not be

appointed; that all other orders be entered as the Court may deem proper.”

      Curtis Wright (Curtis), also Jeffrey’s brother, filed his Original Answer

denying the allegations in Randall’s petition. On December 14, 2016, Curtis filed an

Application for Probate of Will as Muniment of Title alleging that Jeffrey left a valid

will dated October 2, 2014, witnessed by Clifford Buckner and Terry Kelly, and

naming Curtis as Independent Executor. The purported will, allegedly signed by

Jeffrey, and a Self-Proving Affidavit, allegedly signed by witnesses Clifford

Buckner and Terry Kelly and notarized by Keith Ellis, were attached to the

Application. Randall filed an Original Answer denying the material allegations in

Curtis’s Application and asserting that the will offered for probate was a forgery.

       At a bench trial on September 20, 2017, Curtis testified that he did not see

Jeffrey sign Jeffrey’s will dated October 2, 2014, but believed it was signed in

Kirbyville “on the farm.” Randall testified that he and his brother Curtis’s

relationship deteriorated after Jeffrey’s death when Curtis learned that his mother in

2013 had appointed Randall as power of attorney over her financial and medical

affairs. According to Randall, after Jeffrey died, Curtis had mentioned that he

thought Jeffrey had a will, but Curtis never presented one to Randall prior to Randall

filing the application to probate Jeffrey’s will. The trial court heard the testimony of

                                           2
a handwriting analyst who concluded that the will was not signed by Jeffrey. Clifford

Buckner testified that he witnessed Jeffrey sign the will, Buckner identified his own

signature on the second page before a notary, and said he was with Terry Kelly and

Keith Ellis when he witnessed Jeffrey signing his will.

       On October 4, 2017, the trial court signed an “Order Denying Will to Probate”

and found that “said document was not executed by Decedent and, therefore not

executed with the formalities and solemnities and under the circumstances required

by law to make it a valid will[.]” Curtis filed a Motion for New Trial on the grounds

that

       [t]here is newly discovered evidence in that Terry Kelly, a witness to
       the Will, was previously thought to be unavailable to testify, however,
       Mr. Kelly is available to testify via a bench warrant because he is
       incarcerated in the Texas Department of Criminal Justice at the Gist
       Unit located at 3295 FM 3514, Beaumont, Jefferson County, Texas
       77705.

The trial court granted the motion. Upon orally granting the motion for new trial, the

trial court stated the following on the record:

       Now, I also -- as far as the expert is concerned, you’ve already called
       that expert up here. You paid that money. Unless [Curtis’s counsel]
       wants to call that expert back up here to cross-examine that expert, I’m
       not -- I’m going to take what that expert had to say from before. I have
       it on record as well. I will ask my court reporter to get that for me so I
       can make sure that I have that in front of me as well. I think that’s fair
       enough. If you don’t like that, you can call that -- you can call that
       expert and you can be responsible for paying the expert.

                                           3
      On June 6, 2018, after holding a new trial, the trial court signed an Order

Admitting Will to Probate as Muniment of Title. On July 9, 2018, the trial court

entered the following written findings of fact and conclusions of law:

                                  Findings of Fact

      A. Jeffrey Alan Wright, Deceased, executed a Last Will & Testament
         prepared by attorney Keith Ellis on October 2, 2014.
      B. The above-mentioned Will was witnessed by Clifford Buckner and
         Terry Kelly on the same day that it was executed.
      C. The Will contained a Self-Proving Affidavit signed by Jeffrey Alan
         Wright, Deceased, Clifford Buckner and Terry Kelly, and notarized
         by attorney Keith Ellis.
      D. Jeffrey Alan Wright, Deceased, died on April 6, 2016 in Jasper
         County, Texas.
      E. Applicant, Curtis Wright, filed his Application for Probate of Will
         as a Muniment of Title on December 14, 2016, in the Estate of
         Jeffrey Alan Wright, Deceased.
      F. Four (4) years had not elapsed since the date of Decedent’s death.
      G. This Court has jurisdiction and venue over the Estate.
      H. On the date said Will was made, October 2, 2014, Decedent had
         attained the age of eighteen (18) years and was of sound mind.
      I. Said Will was not revoked by Decedent.
      J. That all of the necessary proof required for the probate of said Will
         has been made.
      K. That neither the state, a governmental agency of the state, nor a
         charitable organization is named by said Will as a devisee.

                                Conclusions of Law

            The Will executed by Jeffrey Alan Wright, Deceased, on October
         2, 2014, meets the requirements of a Will outlined in the Texas
         Estates Code, and is admitted to probate as a muniment of title.



                                         4
Randall timely appealed the trial court’s Order Admitting Will to Probate as

Muniment of Title.

                                   Evidence at Trial

      At the beginning of the new trial, the trial court confirmed that the handwriting

expert would not need to testify again and that the trial court would consider her

prior testimony for purposes of the new trial. Curtis’s counsel stated that the two

witnesses to the will would be available to testify and that the attorney that prepared

and notarized the will, Keith Ellis, was also available to testify at the new trial.

      Keith Ellis testified that he had known the Wright family “probably 20 years

or more[]”, and was practicing law in 2014 when he prepared Jeffrey’s Last Will and

Testament. According to Ellis, Curtis and Jeffrey stopped by Ellis’s office one day,

Jeffrey “said he needed to do a will, he had cancer and was sick[,]” Ellis said “just

give me all the information,” which Jeffrey provided that day. Ellis testified that he

prepared the will within the next two weeks. Ellis testified he took the will “by their

place in Kirbyville, their land there[]” for Jeffrey to proofread, and Jeffrey said,

“That’s exactly what I want.”

      Ellis testified that Jeffrey then went outside and brought Clifford Buckner and

Terry Kelly inside to witness the execution of the will. Ellis then notarized the Will.

Ellis agreed that Exhibit A appeared to be the Will that he prepared, and that the will

                                           5
contains a self-proving affidavit. According to Ellis, the will was executed by Jeffrey

Wright, and witnessed by Clifford Buckley and Terry Kelly in the presence of Ellis,

Jeffrey Wright was in Ellis’s opinion competent to sign the will, and Jeffrey’s initials

appear on every page. Ellis agreed on cross-examination that he did not have Jeffrey

Alan Wright, Clifford Buckner, or Terry Kelly sign his notary book. But, Ellis

testified he did have his notary seal in his briefcase that day.

      Terry Kelly also testified that when this case first came to trial he was not

available to testify because he was in the Larry Gist State Jail. Terry stated that he

used to work for Curtis, and on the day in question he and Clifford were at Jeffrey’s

because Jeffrey’s daughter “was having a wedding” and Jeffrey had asked Terry to

help get the place “cleaned up[.]” While Terry and Clifford were there outside

cleaning up, Jeffrey came outside and asked them to come inside and sign some

papers, and Jeffrey said it was his will. According to Terry, he and Clifford both

went inside and signed the will.

      Clifford Ray Buckner testified that he is Terry’s brother-in-law, and Clifford

and Terry were at Jeffrey’s property “cleaning up[,]” and they were asked to come

inside. Clifford agreed that his signature appears on the document.




                                           6
      The attorney for Randall offered no testimony or witnesses at the new trial but

stated on the record that it was his understanding that “all testimony given at the

hearing on September 20th, 2017, is before the Court[].”

                                       Analysis

      In one issue, Randall argues that the trial court erred in admitting the will to

probate because the trial court had “previously found, via forensic handwriting

expert, that the Will of Decedent was not executed by Decedent, and there was no

testimony at the second trial to refute said testimony, therefore, there is no evidence,

or in the alternative, the great weight and preponderance of the evidence does not

support such finding, and the Court should find that the Decedent died intestate.” On

appeal, Randall argues that the trial court is bound by its findings in the first trial

that the signature on the will was a forgery, and therefore Jeffrey died intestate, and

no testimony in the second trial refuted or contradicted the handwriting expert’s

testimony. Randall concedes he cites no case law on appeal to support his position.

On appeal, Randall does not challenge the order granting the new trial.

      Granting a new trial has the legal effect of vacating the original judgment and

returning the case to the trial docket as though there had been no previous trial or

hearing. See In the Estate of Fells, No. 09-12-00569-CV, 2013 Tex. App. LEXIS

13203, at **19-20 (Tex. App.—Beaumont Oct. 24, 2013, pet. denied) (mem. op.)

                                           7
(citing Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005));

Markowitz v. Markowitz, 118 S.W.3d 82, 88 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied). “Therefore, when the trial court grants a motion for new trial, the trial

court ‘essentially wipes the slate clean and starts over.’” In the Estate of Fells, 2013

Tex. App. LEXIS 13203, at *20 (quoting Wilkins, 160 S.W.3d at 563). Once the trial

court granted the new trial, the prior findings of the trial court were set aside and had

no preclusive effect.

      After holding the new trial, the trial court entered findings of fact and

conclusions of law. In a bench trial, the findings of fact have the same force and

dignity as a jury’s verdict. See Anderson v. City of Seven Points, 806 S.W.2d 791,

794 (Tex. 1991). In reviewing the legal sufficiency of the evidence, we review the

evidence in the light most favorable to the trial court’s findings, crediting evidence

favorable to the party if a reasonable factfinder could, and disregard contrary

evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005). In reviewing the factual sufficiency of the evidence,

we weigh all the evidence and we will set aside the judgment only if it is so against

the great weight and preponderance of the evidence that it is clearly wrong and

unjust. Id. at 826; see also Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).



                                           8
      Appellant does not state that he is making a legal or a factual sufficiency

challenge, but he generally appears to be arguing that the trial court erred because it

should have believed the testimony from the handwriting expert that was offered at

the first trial, rather than the testimony that was offered at the new trial. The trial

court held a new trial and heard additional evidence. In a bench trial, the trial court

acts as the factfinder, is the sole judge of the weight and credibility of the evidence,

is entitled to resolve any conflicts in the evidence, and may choose which testimony

and witnesses to believe. City of Keller, 168 S.W.3d at 819; see also Golden Eagle

Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The factfinder may

choose to believe one witness over another, and we may not substitute our judgment

for that of the factfinder. Golden Eagle Archery, 116 S.W.3d at 761.

      We overrule the issue raised by Appellant and conclude that the evidence was

legally and factually sufficient to support the trial court’s findings, and we affirm.

      AFFIRMED.


                                                      _________________________
                                                         LEANNE JOHNSON
                                                               Justice


Submitted on January 2, 2020
Opinion Delivered March 12, 2020

Before Kreger, Horton, and Johnson, JJ.
                                           9
