                                                                                              ACCEPTED
                                                                                          04-12-00108-CV
                                                                              FOURTH COURT OF APPEALS
                                                                                   SAN ANTONIO, TEXAS
                                                                                     9/14/2015 4:50:36 PM
                                                                                           KEITH HOTTLE
                                                                                                   CLERK
                                       NO. 04-12-00108-CV


                                In the Court of Appeals for the           FILED IN
                                                                   4th COURT OF APPEALS
                               Fourth Supreme Judicial District     SAN ANTONIO, TEXAS
                                 Sitting in San Antonio, Texas     09/14/15 4:50:36 PM
                                                                     KEITH E. HOTTLE
                                                                           Clerk

                       IN THE INTEREST OF M.G.N. AND A.C.N.,
                                 MINOR CHILDREN


                    On Appeal from the 57th Judicial District Court
                               of Bexar County, Texas
                           Trial Court No. 2008-CI-17947
                     Honorable Antonia Arteaga, Judge Presiding


                   APPELLANT’S REPLY TO
       APPELLEE’S RESPONSE TO MOTION FOR REHEARING


TO THE HONORABLE FOURTH COURT OF APPEALS:

        Appellee Monica Noyes’s reply is short on substance and record

references, but long on misstatements and unsupported assertions, among

them:

                George has not, as Monica insinuates, “abandoned” any of
                 his arguments. He has merely focused on certain points
                 for purposes of his motion for rehearing.

                George’s “view of the evidence” argument is not new; it is
                 part of the no-bias argument he has made all along.
                 Monica purports to make a distinction between “viewing”
                 and “evaluating” the evidence, but they are the same. In
                 fact, Scales v. State, to which she refers, uses the term
                 “view.” 380 S.W.3d 780, 782 (Tex. Crim. App. 2012)
                 (“[H]er dismissal was based upon her view of the
Appellant’s Reply to Appellee’s Response to Motion for Rehearing                  Page 1
                 sufficiency of the evidence and deprived appellant of his
                 constitutional right to a unanimous jury verdict.”).

                Juror Turney did not “advocate” his personal opinion to
                 anyone; he simply stated that he held that opinion after
                 hearing the evidence from Monica’s counsel. 7 RR 5-6, 10.

                Monica continues to repeat her assertion that Juror
                 Turney was “intent on introducing inadmissible evidence
                 of his own views” and “poisoning the panel,” but she does
                 not cite any evidence to support this. That is because the
                 evidence shows the opposite: Juror Turney did not share
                 his opinion with any other jurors; after forming that
                 opinion, he approached only the bailiff. 7 RR 5-6. Mr.
                 Turney also specifically stated that he would not share his
                 opinion with the other jurors without the trial court’s
                 permission. 7 RR 10. The judge later instructed him not
                 to do so, and there is no evidence to rebut the
                 presumption that he followed those instructions. Golden
                 Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex.
                 2003) (noting that “unless the record demonstrates
                 otherwise, an appellate court must presume” that jurors
                 followed the trial court’s instructions).

             Furthermore, the trial judge did not make any finding that
              Juror Turney intended to violate her instruction or that he
              intended to “poison” the minds of the other jurors by
              rebutting Monica’s attorney’s false and irrelevant
              insinuations. CR 52-59. Therefore, Monica is precluded
              from making this claim on appeal. Hill v. Hill, 971 S.W.2d
              153, 156 (Tex. App.—Amarillo 1998, no pet.) (“[O]nce
              findings are entered, they serve to ‘form the basis of the
              judgment upon all grounds of recovery and of defense
              embraced therein.’ … In other words, one waives (for
              appellate purposes) a theory of recovery or defense unless
              the proponent of the theory secures a finding on the
              theory or an element of the theory.”) (quoting TEX. R. CIV.
              P. 299).

                George did not ignore the standard of giving deference to
                 the judge’s ruling; he merely referred to facts that displace

Appellant’s Reply to Appellee’s Response to Motion for Rehearing                 Page 2
                 that deference, which, in any event, does not extend to
                 endorsing mere speculation to deprive a party of his
                 constitutional right to a fair trial.

                Monica makes the general assertion that there is evidence
                 supporting the judge’s ruling, but she does not back up
                 that claim with any record references. See TEX. R. APP. P.
                 38.1(i) (requiring an appellant to support assertions with
                 specific record references).

                The “third bench trial” on attorney’s fees to which Monica
                 refers was not the third trial, but the second trial.
                 Furthermore, it was a new trial, and Monica cites no
                 authority in support of her assertion that objections must
                 be made at previous trials to preserve error after those
                 previous trials were erased by a new trial. See TEX. R. APP.
                 P. 38.1(i).

                Monica asserts that, unlike the parties in Ernst and
                 O’Farrill, George did not timely object to the lack of
                 segregation of attorneys’ fees. But she misstates the facts
                 of those cases: in both Ernst and O’Farrill, the appellant
                 waived error by not filing a post-verdict motion. In re
                 Ernst, No. 04-10-00319-CV, 2011 WL 192654, at *3 (Tex.
                 App.—San Antonio Jan. 12, 2011, no pet.) (mem. op.);
                 O’Farrill v. Gonzales, 974 S.W.2d 237, 249-50 (Tex.
                 App.—San Antonio 1998, pet. denied). Unlike those
                 appellants, however, George filed a post-verdict motion
                 for a new trial following both attorneys’-fees bench trials.

        In addition to the substantive reasons for reversal, there is an

important policy consideration: to allow a trial court to dismiss a juror who

has caught the opposing party’s attorney’s misrepresenting the facts to

create a false impression would be to reward, rather than discourage, unfair

trial tactics and would further the public’s unfavorable perception of the

legal profession.

Appellant’s Reply to Appellee’s Response to Motion for Rehearing                Page 3
        For these reasons, as well as those set forth in George’s motion for

rehearing, George renews his request that this court grant his motion and

all relief to which he is entitled.

                                          Respectfully submitted,

                                          /s/ James N. Higdon_____________
                                          JAMES N. HIGDON
                                          State Bar No. 09590500
                                          HIGDON, HARDY & ZUFLACHT, L.L.P.
                                          12000 Huebner Road, Suite 200
                                          San Antonio, Texas 78230-1210
                                          Telephone: (210) 349-9933
                                          Telecopier: (210) 349-9988
                                          Email: jnhigdon@hhzlaw.com

                                          ATTORNEYS FOR APPELLANT
                                          GEORGE C. NOYES

                           CERTIFICATE OF COMPLIANCE

     Appellant certifies that the number of words in this Reply to
Response to Motion for Rehearing, including its headings, footnotes, and
quotations, is: 770.

                                                   /s/ James N. Higdon ____________
                                                   JAMES N. HIGDON

                                CERTIFICATE OF SERVICE

      I certify that a true copy of the foregoing Respondent’s Brief on
Remand was served on Oscar L. Cantu, Jr., attorney for Petitioner, in
accordance with the Texas Rules of Appellate Procedure on August 13,
2015.

                                                   /s/ James N. Higdon ____________
                                                   JAMES N. HIGDON

Appellant’s Reply to Appellee’s Response to Motion for Rehearing                Page 4
