                                                                                ACCEPTED
                                                                             06-14-00096-cv
                                                                 SIXTH COURT OF APPEALS
                                                                       TEXARKANA, TEXAS
                                                                       5/26/2015 4:11:56 PM
                                                                           DEBBIE AUTREY
                                                                                     CLERK

                        NO. 06-14-00096-CV
__________________________________________________________________
                                                         FILED IN
                                                  6th COURT OF APPEALS
 IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT, TEXARKANA,
                                                     TEXARKANA,   TEXAS
                              TEXAS               5/27/2015 8:58:00 AM
__________________________________________________________________
                                                      DEBBIE AUTREY
                                                          Clerk

                      MICHAEL ANDERSON
                             Appellant,
                                v.
                        THOMAS SNODDY
                             Appellee.
__________________________________________________________________

                      On Appeal from Cause No. 548-12
         In the 115th Judicial District Court of Upshur County, Texas
                  Honorable Lauren Parish, Presiding Judge
__________________________________________________________________

                       APPELLANT’S BRIEF
__________________________________________________________________

                                Jonathan Wharton
                                SNOW E. BUSH, JR., P.C.
                                Texas State Bar No. 24075764
                                420 N. Center Street
                                Longview, TX 75601
                                Tel. (903) 753-7006
                                Fax (903) 753-7278
                                jonathanwharton1@sbcglobal.net
                                ATTORNEY FOR APPELLANT
                                MICHAEL ANDERSON

                                                     May 26, 2015



               ORAL ARGUMENT REQUESTED
                   IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellant

lists the following parties affected by this appeal, and their respective appellate and

trial counsel:

Appellant: Michael Anderson

Jonathan Wharton
Snow E. Bush, Jr., P.C.
420 N. Center Street
Longview, TX 75601
903.753.7006
Fax 903.753.7278
jonathanwharton1@sbcglobal.net
Trial and Appellate Counsel for Michael Anderson

Appellee: Thomas Snoddy

L. Charles Van Cleef
P.O. Box 2432
Longview, TX 75606-2432
903.248.8244
Fax 903.248.8249
charles@vancleef.pro
Trial and Appellate Counsel for Thomas Snoddy




                                          1
                                         TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48




                                                            2
                                      INDEX OF AUTHORITIES

                                                   STATUTES

Tex. Code Crim. Pro., Art. 17.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Code Crim. Pro., Art. 17.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Code Crim. Pro., Art. 17.141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Tex. Occ. Code § 1704.051 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Occ. Code § 1704.052 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Tex. Occ. Code § 1704.105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Occ. Code § 1704.151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Occ. Code § 1704.154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


                                                      RULES

Tex. R. Crim. Evid. 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Tex. R. Evid. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 39

Tex. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Tex. R. Evid. 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Tex. R. Evid. 405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Tex. R. Evid. 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 37

Tex. R. Evid. 613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32



                                                            3
Tex. R. Evid. 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35

Tex. R. App. P. 44.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

                                                            CASES

Anderson v. Snider, 808 S.W.2d 54 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Aranda v. State, 736 S.W.2d 702 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . . 31

Brown v. Russell, 703 S.W.2d 843 (Tex. App.—Ft. Worth 1986, no writ) . . . . . . 36

Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689 (Tex. App.—
Dallas 2008, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Del Carmen Hernandez v. State, 273 S.W.3d 685 (Tex. Crim. App. 2008) . . . . . . . 33

Ferguson v. State, 97 S.W.3d 293 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32, 34

Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex. App.—Texarkana 1991, writ denied)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

In re Ford Motor Co., 988 S.W.2d 714 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 42

Ho v. State, 171 S.W.3d 295 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) . 40

Moreno v. State, 900 S.W.2d 357 (Tex. App.—Texarkana 1995, no pet.) . . . . . . 37

Quintero v. Citizens and S. Factors, Inc., 596 S.W.2d 277 (Tex. Civ. App.—Houston
[1st Dist.] 1980, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Republic Waste Services, Ltd. v. Martinez, 335 S.W.3d 401 (Tex. App.—Houston
[1st Dist.] 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Smith v. State, 919 S.W.2d 96 (Tex. Crim. App.1996) . . . . . . . . . . . . . . . . . . . . . . 45



                                                                  4
State v. Wilemon, 393 S.W.2d 816 (Tex. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . 40

Sw. Bell Tel. Co. v. Vollmer, 805 S.W.2d 825 (Tex.App.—Corpus Christi 1991, writ
denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Thomas v. State, 811 S.W.2d 201 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 45

Williams v. State, 332 S.W.3d 694 (Tex. App.—Amarillo 2011, pet. denied) . . . . 42




                                                                 5
                         STATEMENT OF THE CASE

      This suit was filed for breach of contract, breach of fiduciary duty, fraud, and

tortious interference with prospective business relationships. CR 32-37. After a jury

trial, a verdict for the defense was returned. CR 67-74. The court rendered a take-

nothing judgment based on that verdict. CR 81-82.

                     REQUEST FOR ORAL ARGUMENT

      Because the fact pattern is complex and the issues presented are uncommon,

the court’s decisional process would benefit from oral argument.

                              ISSUES PRESENTED

1.    Is cross-examination on prior inconsistent statements limited to identical
      questions and statements; that is, must the current statement and the prior
      inconsistent statement be responsive to the same exact question?

2.    Is the trial court permitted to instruct the jury that an attorney’s cross-
      examination is “improper impeachment”?

3.    Were the judgments nisi offered by the Appellant relevant?

4.    Should the Appellant have been permitted to cross-examine the Defendant on
      the factors that determine whether a partnership exists?

5.    May a witness testify that a “party” accused of misconduct has never been
      underhanded in business before?

6.    Did the combined effect of the errors in the trial harm Appellant?




                                          6
                            STATEMENT OF FACTS

      Michael Anderson began bounty hunting part-time in the 90s during college.

3 RR 34 & 37. He met Gary Roberts, a private investigator, around 1996. 3 RR 30.

After working with Mr. Roberts for about a year and a half, Mr. Anderson became a

police officer and then enlisted in the army. 3 RR 33-34. In 2005, after eight years in

Iraq, he came back to the states and began doing bounty hunting again. 3 RR 36-37.

Four years later, in 2009, he got a call from Mr. Roberts saying that there is a bail

bond office that could use his help. 3 RR 37-38.

      Mr. Roberts had been offered a partnership in Gilmer, Texas. 3 RR 30-31.

Thomas Snoddy told Mr. Roberts that he had a bail bond office and they would split

profits fifty/fifty. 3 RR 30. Mr. Roberts did not have enough time to devote, so he

turned the partnership offer over to Mr. Anderson. 3 RR 31-32.

      Mr. Anderson went to meet Mr. Snoddy. 3 RR 38. Mr. Snoddy said that his

Upshur County office was not making any money, so he would rather bring someone

else in as a partner. 3 RR 38. Mr. Snoddy would show Mr. Anderson how the

business works. 3 RR 38. Mr. Anderson would do the daily work and Mr. Snoddy

would provide the financial backing necessary to sign off on bonds. 3 RR 40-41. Mr.

Snoddy did not say anything about someone else owning the business or the

arrangement being anything other than a partnership. 3 RR 38-39.

                                          7
      The business was named Fast Action Bail Bonds. Mr. Anderson began signing

for bonds in December of 2009. 3 RR 38. On average, Fast Action Bail Bonds would

have six to eight hundred thousand dollars in outstanding bonds, with at most $1.2

million. 3 RR 41. Per their agreement, Mr. Anderson sent Mr. Snoddy approximately

$76,000 over the course of their two-and-a-half-year business relationship. 5 RR 164.

Mr. Snoddy assured Mr. Anderson that he was financially backing the business. 3 RR

42.

      In 2011, Mr. Anderson received a strange phone call from a man who

introduced himself by first name only. 3 RR 42-43. “Harold” told Mr. Anderson that

he, Harold, was the owner of the business. 3 RR 119. That raised some obvious

questions for Mr. Anderson.

      At the same time, Mr. Anderson discovered some troubling information about

Fast Action’s financial status with the sheriff’s office. Mr. Anderson had been

attending legislatively-mandated bail bond law courses. 3 RR 45-45; Tex. Code Crim.

Pro., Art. 17.10(b). There, he learned how sureties maintain their eligibility to work

in a county.

      Certain counties are regulated by bail bond boards. In larger counties, a bail

bond board must be created. Tex. Occ. Code § 1704.051. Smaller counties may

choose to create their own as well. Tex. Occ. Code § 1704.052. The bail bond board

                                          8
licenses bail bondsmen that are eligible to work in the county. Tex. Occ. Code §

1704.105. Only licensed bondsmen may act as a surety in the county. Tex. Occ. Code

§ 1704.151. The licensing requirements are strict, including an application in which

the bondsman executes nonexempt property in trust to the board to satisfy forfeitures.

Tex. Occ. Code § 1704.154.

      Upshur County is not a bail bond board county. 3 RR 46. By law, the judge in

each case is supposed to require evidence proving that the surety can satisfy any

possible forfeiture. Tex. Code Crim. Pro., Art. 17.11, Sec. 1. In practice, the trial

court does not examine the surety’s net worth in every case. Instead, the sheriff

creates a list of pre-approved bondsmen who have shown to him that they are

financially sound. 3 RR 46-47; Tex. Code Crim. Pro., Art. 17.141. There is a

requirement for the sureties, though: “Each surety listed under this article must file

annually a sworn financial statement with the sheriff.” Tex. Code Crim. Pro., Art.

17.141.

      Mr. Anderson’s concerns led him to request the financial statements on file

with the Upshur County Sheriff. 3 RR 48. He found out that there were no current

statements. 3 RR 48. Fast Action Bail Bonds’ only record was a 2006 fax from

“Snoddy Bail Bonds” with a financial statement from 2003 for a man named Gerald

Todd. 3 RR 48; Plaintiff’s Exhibit 21. This discovery was made in 2012, so the one-

                                          9
year time period listed in Tex. Code Crim. Pro., Art. 17.141 had more than expired.

3 RR 50. Not only that, but the business (Snoddy Bail Bonds) was different than Fast

Action Bail Bonds, and the financial records were for a man named Gerald Todd that

Mr. Anderson had never heard of. 3 RR 51.

      At that point, Mr. Anderson realized that he had signed on a million dollars of

bonds without proper financial backing. 3 RR 52. Mr. Snoddy’s name was not signed

to any of the bonds, nor was his name on any document filed in Upshur County. 3 RR

52. Even the assumed name certificate for Fast Action Bail Bonds, which Michael

Anderson had filed on the advice of Mr. Snoddy, did not list Mr. Snoddy as having

any involvement in the business. Defendant’s Exhibit 1; 3 RR 195-96.

      Mr. Anderson broke off his business relationship with Mr. Snoddy. 3 RR 54-

55; Plaintiff’s Exhibit 2. In response, Mr. Snoddy transferred the Fast Action Bail

Bonds telephone numbers from Mr. Anderson’s office to his own. 3 RR 57. Verizon’s

records showed that from August 14, 2007, until August 13, 2012, the telephone

numbers in question (903-843-9814 and 903-843-4900) had “Fast Action Bail

Bonds” as the subscriber. Plaintiff’s Exhibit 25 at 2. After the breakup between Mr.

Anderson and Mr. Snoddy, the subscriber became “Bad Boys Bail Bonds,” one of Mr.

Snoddy’s other businesses. Plaintiff’s Exhibit 25 at 2. The phone transfer entirely

stopped Mr. Anderson’s business until he could get a replacement, as his business

                                         10
comes in by phone. 3 RR 63-64. Nevertheless, he obtained new numbers and

continued running the business on his own. 3 RR 56.

      After the instant suit was filed for failing to provide a surety and wrongfully

transferring the phone lines, Mr. Snoddy forwarded the phone lines to a gentleman

by the name of Barry Lovely. 4 RR 20-21. Mr. Lovely was a bondsman who worked

out of Harrison County.1 4 RR 142. Nevertheless, he began taking bail bond business

through the Upshur County phone numbers. 4 RR 138. According to one witness, a

bus driver called Norman Chism, Mr. Lovely was answering the telephone lines as

“Michael Anderson.” 3 RR 204-206. The advertisements that were in the newspaper

showed Mr. Anderson’s name and picture for the business, so it behooved him to

answer as the advertised individual. Plaintiff’s Exhibit 20.

      Mr. Chism called the number, which was answered by “Michael Anderson.”

3 RR 206. He set up a meeting with “Michael Anderson” at the Taco Bell because

“Michael Anderson” did not have an office in Gilmer. 3 RR 206-07. Mr. Chism then

walked to the advertised address for Fast Action Bail Bonds and met the actual

Michael Anderson. 3 RR 207. Mr. Chism told what happened to Mr. Anderson, who

showed up at the Taco Bell along with Mr. Lovely, and there was an argument. 3 RR

67-68.

      1
          At the time of trial, Mr. Lovely worked at Schlotzky’s, a sandwich shop. 4 RR 123.

                                                11
      Mr. Lovely did not deny that he received the phone call: he was even able to

identify Mr. Chism’s race over the phone as African American. 4 RR 139. Mr. Lovely

testified to a similar course of events as Mr. Chism:

      He call me, he say, hey, Barry, is this Barry, I got your money, I was told
      to bring you some money. He says where is your office. I say I don’t
      have a office in Gilmer. I say I’m coming out of Longview now. He say
      where can I meet you. I say, well, meet me at Taco Bell. . . . And when
      I got to Taco Bell Mr. Anderson was there.

4 RR 147. The primary difference is that Mr. Lovely denied impersonating Mr.

Anderson and he presented the call as a set-up instead of a genuine customer call. 4

RR 151-52.

      Mr. Snoddy denied any knowledge about the impersonation except that it was

“child’s games” being played by Mr. Anderson. 4 RR 29. He asserted that it was a

set-up. 4 RR 29. He contended that he personally owned the phone numbers and he

could do what he wanted with them. 4 RR 92.

      As far as the breach of the partnership agreement, Mr. Snoddy’s response was

that he was not a partner but simply a consultant. 4 RR 19. He denied offering a

partnership to Gary Roberts or Michael Anderson. 3 RR 291-92. Mr. Snoddy

maintained that there was a surety for the business. Yet when there were bond

forfeitures, the business itself would pay them from its profits: the alleged surety

would not pay. 4 RR 30-32. Documents he generated said that he received 50% of the

                                          12
profits from the business; 35% of that 50% (or 17.5% of the total profits from the

business) was sent to the surety. Plaintiff’s Exhibit 5. Yet Mr. Snoddy did not know

who the surety was. In deposition, Mr. Snoddy claimed that Harold Stein was the

surety for Fast Action Bail Bonds. 3 RR 327. Mr. Snoddy said that Mr. Stein owned

the business. 3 RR 269-70. Mr. Snoddy said that he sent all the surety payments to

Mr. Stein. 3 RR 270. Mr. Snoddy also denied knowing who Gerald Todd is. 3 RR

327. He said that he did not know Gerald Todd’s address, phone number, he did not

know how he was paid, and he did not even know if he was paid to be a surety. 4 RR

30. Mr. Snoddy did not list Gerald Todd as a person with knowledge of relevant facts.

4 RR 51-52. Mr. Snoddy claimed to have no knowledge about the financial statement

from Gerald Todd that was sent to the Upshur County Sheriff.4 RR 52. He did not

know who sent the fax. 4 RR 52. Mr. Snoddy said that it could have been Mr. Stein

that sent it from Mr. Snoddy’s office. 4 RR 83-84.

      Mr. Stein testified that he was not the owner or surety for Fast Action Bail

Bonds. 3 RR 270-271. He has not acted as a surety in over twenty-five years. 3 RR

216. At his deposition, he denied any knowledge about the structure of Fast Action

Bail Bonds. 3 RR 224. He claimed to have no idea what the case was about. 3 RR

224. He had never even been in a business relationship with Mr. Snoddy. 3 RR 218.

His only business dealing in Upshur County was to advertise some phone numbers

                                         13
because he has a broker business in Dallas in which he sometimes refers people to a

bondsman in Upshur County. 3 RR 285 at 3-12.

      Gerald Todd was not listed as a witness by either party and he was not called

at trial. CR 38 & 57. In cross-examining Mr. Anderson, after only Gary Roberts had

testified, Mr. Snoddy’s attorney prepared a chart that showed Gerald Todd as the

surety for Fast Action Bail Bonds. 3 RR 116-123. Mr. Stein then testified that Gerald

Todd was the surety for Fast Action Bail Bonds. 3 RR 221. In response to a question

about whether he has any documentation for his assertion, he said that “I didn’t know

he was involved until you showed me that chart [prepared by the Defendant’s

attorney].” 3 RR 226 at 2-10; 3 RR 116-123 (creation of chart). Mr. Stein said that

he (Mr. Stein) worked for a company called “Surety Company.” 3 RR 218. The

company received payments, not Harold Stein; when Mr. Stein denied ever receiving

checks for the surety in his deposition, he meant that he did not receive the checks

personally: “Surety Company” received the checks. 3 RR 248. According to Mr.

Snoddy, Gerald Todd would be the effective surety for the business, even if Mr. Todd

did not know that they were using his financial statements, as long as the financial

statements were at the sheriff’s office. 4 RR 33-34.

      Neither Mr. Snoddy nor Mr. Stein brought checks or other proof of payment

to trial. 3 RR 294. Sum total, Mr. Snoddy’s records reflected payments of

                                         14
approximately $27,000 to the alleged surety (35% of the $76,500 sent to Mr.

Snoddy). 5 RR 164; Plaintiff’s Exhibit 5. Mr. Snoddy said that he could not

remember what account he sent the money to; he said sometimes he sent checks,

sometimes cash. 4 RR 6. Either way, he no longer has any bank records reflecting

payments. 4 RR 7. His banker disagreed, stating that the records were in fact

available to Mr. Snoddy. 4 RR 219. The checks had been requested in discovery, to

which Mr. Snoddy responded that “I do not have these, I am not even sure payments

were made by check.” 3 RR 293.

      According to Mr. Snoddy’s attorney, the lawsuit arose because Mr. Anderson

does not understand “everything that goes on behind this because this is a high, high

finance business. It’s not a hot dog stand, okay. . . . It’s more like an insurance

company than a hot dog stand and that’s how it’s being presented to you is a hot dog

stand. I don’t understand where the hot dogs come from, who made the hot dogs. The

evidence is going to show that it’s not that simple and that even as we stand here

today Mr. Anderson and Mr. Wharton who I get along with famously do not

understand the business.” 3 RR 22-23. “Mr. Anderson would have you believe that

as the sack boy at Brookshire’s it’s important that he know the name and address of

the owners of the Brookshire’s grocery store company. That’s not the way it works.”

3 RR 22.

                                         15
      The jury returned a verdict that Mr. Anderson and Mr. Snoddy did not enter

into a partnership agreement, Mr. Snoddy had not committed a fraud, and neither Mr.

Snoddy nor Mr. Lovely tortiously interfered with Mr. Anderson’s business. CR 67-

74. The trial court rendered a take-nothing judgment based on that verdict. CR 81-82.

                      SUMMARY OF THE ARGUMENT

      The trial court’s interruptions, admonitions, and limitations on the plaintiff’s

cross-examination of the defense witnesses were improper. The scope of cross-

examination is relevance: inquiry is allowed into any relevant matter. Certain

procedures must be followed when impeaching a witness with prior inconsistent

statements and a predicate must be laid before introduction of extrinsic evidence of

the prior inconsistent statement. But those procedures do not mean that an attorney

can only cross-examine a witness on a prior statement if the prior statement was made

in response to the same exact question.

      The trial court’s instruction to the jury that the defense witnesses had not been

impeached was a comment on the weight of the evidence. No objection was made at

the time, but the comments were incurable and thus no objection was necessary to

preserve them.

      The trial court’s exclusion of the judgments nisi as irrelevant was erroneous.

The judgments nisi proved that the plaintiff was personally sued by the county for

                                          16
bond forfeitures, even though he had been promised that there was a surety covering

the forfeitures.

      The trial court sustained an objection to cross-examination of the defendant on

his understanding of partnership property law. The objection was that the question

called for a legal conclusion. In fact, there is no limitation on the use of law during

cross-examination (so long as the law is correct), except that witnesses must provide

the factual basis for any conclusion they draw under the law.

      The trial court overruled an objection to Harold Stein testifying that he is

unaware of Barry Lovely ever doing anything underhanded in business. That is

improper character evidence.

      These errors were harmful and reversible individually. Their combined effect

was to probably cause the rendition of an improper judgment.




                                          17
                                    ARGUMENT

I.    Improper Impeachment

      A.     Introduction

      During the plaintiff’s examinations of Harold Stein, Barry Lovely, and Thomas

Snoddy, the trial court continuously interrupted to admonish the plaintiff’s attorney

for “improper impeachment.” 4 RR 109-110. The trial court would make statements

such as, “How many times am I going to have to tell you, if you ask the proper

question and he doesn’t answer it truthfully or he answers it differently than he’s

asked before, that’s impeachment.” 4 RR 110-11. Initially, no objection was made by

the Defendant’s attorney: the court would sua sponte interrupt to admonish the

plaintiff’s attorney against impeachment. 3 RR 221. After several such interruptions,

the Defendant’s attorney began actively objecting. 3 RR 273; 4 RR12-13.

      The first time the trial court interrupted, the plaintiff’s attorney was questioning

Harold Stein. 3 RR 221. Harold Stein had just announced that Gerald Todd was the

surety for Fast Action Bail Bonds. 3 RR 221.

      Q:    Have you ever told anyone about this before today?
      A:    No one’s ever asked me that question I don’t believe.
      Q:    Okay. So this is basically a—a—I have never been directly asked
      whether Gerald Todd—okay.
      THE COURT:         I mean, that—wait. Wait. Wait. Mr. Wharton, if
      you’re going to impeach the witness, that’s not proper impeachment. If
      you’ve got something in a deposition that’s impeachable material, that’s

                                           18
     one thing, but that’s improper.
     MR. WHARTON: Yes, Your Honor.
     Q:      Okay. You’ve never—you never told me about this in a
     deposition, right?
     A:      No, sir, I’m not sure you ever asked me, Jonathan.
     THE COURT:           Are you saying you asked it, Mr. Wharton, because
     like I said that’s not proper impeachment.
     MR. WHARTON: I see what you’re saying I guess, Your Honor.
     Q:      Okay. You—you told me in your deposition that you don’t know
     the structure of the Fast Action Bail Bond Business in Upshur County,
     didn’t you?
     A:      You know, I haven’t read my deposition. I never got a chance to
     see that. I don’t recall what I said to you.
     Q:      Okay. So if I asked you what’s—
     THE COURT:           Let’s do this the right way.
     MR. WHARTON: Yes.
     THE COURT:           You got a page and a line. You identify that so Mr.
     Van Cleef can also find it. You bring it up here and let the witness read
     it and then you ask the question.
     MR. WHARTON: Yes, ma’am.
     THE COURT:           Read it silently, the witness.
     MR. WHARTON: And may I—
     THE COURT:           You can approach.
     MR. WHARTON: May I start by asking the question though, the
     underlying question—
     THE COURT:           Sure. I think you did but if you didn’t, go ahead.
     MR. WHARTON: Okay. So do you know the structure of the Fast
     Action Bail Bond business in Upshur County?
     THE COURT:           Okay. Don’t answer. I mean, I think you need to
     bring that up.
     MR. WHARTON: Okay. I’ll bring it up. You’ve already—you’ve
     already said no to that or you already said yes, it’s Gerald Todd or
     whatever.
     THE COURT:           Mr. Wharton, I don’t think that’s what he said.

3 RR 221-23.



                                        19
      The improper impeachment issues continued in the plaintiff attorney’s re-direct

examination of Harold Stein. On direct, Mr. Stein said that he was a bail bond broker,

meaning that he refers clients that need a bond to a bondsman. 3 RR 216. He

advertises telephone numbers, and when the calls come in, he refers the callers to a

bondsman for a fee. 3 RR 216. In Mr. Snoddy’s cross-examination, he stated that he

actually does another kind of brokerage: “we get sureties to be surety.” 3 RR 236-38.

He testified that he connects young bondsmen with sureties that will provide them

with advice and financial assistance. 3 RR 238-39. This testimony was transforming

Mr. Stein from his apparent position before trial, which was the man Mr. Snoddy

claimed was the surety but who maintained that he had nothing to do with the

business, into the person who had supplied Mr. Snoddy with a good and effective

surety. Mr. Snoddy’s attorney came up with an explanation for his failure to mention

this new role in the business: “Mr. Wharton didn’t ask you about the other kind of

brokerage you do, did he?” 3 RR 236. As a result, the plaintiff’s attorney began cross-

examining Mr. Stein on his failure to mention the claims that were surfacing at trial:

      Q:    Okay. So you’re saying that the Surety Company was the surety,
      quote, you call Surety Company, right?
      A:    Yes, sir.
      Q:    And I—and have you ever done—let’s see here. And what
      did—what did the, quote, unquote, Surety Company do in relation to
      these businesses in East Texas? There are more than one, right?
      A:    They provided people to put up financial statements to write bail

                                          20
bonds.
Q:    Okay, so when I asked you in—
MR. WHARTON: Let me approach, Your Honor.
THE COURT:          Is this his deposition?
MR. WHARTON: It is, Your Honor.
Q:    And on page 14, line 23, I began, I say: The name of the company
was Surety Company and your answer was yeah, yeah, it was just a
company that had set up, Mr. Smith was involved and he had all
throughout East Texas and Thomas somehow, I’m not sure how Thomas
took over for Mr. Smith, but he took over for them where they were
individual bail bondsmen and we would supply—
THE COURT:          Slow down. Slow down.
MR. WHARTON: I apologize, Your Honor.
Q:    Where there were individual bondsmen and we would supply
them clients or send them referral business and a Mr. Cathey—
MR. VAN CLEEF:              Your Honor, this is not—I’m sorry, I don’t
want to miss an opportunity to object but because I don’t know what
we’re doing. This is not a question.
THE COURT:          I’m not sure.
MR. VAN CLEEF:              Improper impeachment.
THE COURT:          It’s not proper impeachment. So if you—okay.
MR. VAN CLEEF:              I object. This is improper impeachment.
THE COURT:          I’ll sustain to that if that’s what you’re trying to do
and I’m not sure what it is that you’re claiming is despair between the
deposition and the testimony today but you need to clarify that and then
you need to show the witness a deposition and let him read the questions
and the answers and then you can go into what you were doing if that’s
where you’re going.
Q:    Did you tell me anything about this or surety brokerage stuff at
the deposition?
A:    I don’t recall if you asked me.
Q:    When I asked you about the Surety Company, did you tell me?
Did you—did you—what did you—when you—what you told me was
this—was that you were—that you were bail bond broker and what
Surety Company does is take the bail bond business and refer it to
bondsmen. Didn’t say anything—
A:    That—that’s one thing. Absolutely.

                                    21
Q:      Nothing, nothing about all this brokerage referral stuff, nothing
like that.
A:      You never did ask me that, Jonathan.
Q:      Okay. But when I asked you about Surety Company and what it
does—
A:      I told you exactly what Surety Company did. What you asked me,
I answered your question directly.
Q:      You just—I guess at that time didn’t think it was important to
mention any of this other stuff.
THE COURT REPORTER:                  Slow down.
THE COURT:            Again, this is—why don’t you let me see the
deposition question because if you ask the witness that question that
you’re asking him now and he didn’t answer it, that’s proper
impeachment. But if you just ask the question—
MR. WHARTON: I’ll give you—
THE COURT:            —that calls for a specific answer which he answered,
you cannot impeach him from that now. I’m, you know, in the dark here
because I don’t have a deposition.
MR. WHARTON: I can just, see, we can read the deposition at some
point.
THE COURT:            Well, I don’t think so not unless it’s proper
impeachment. Let me see the deposition and the question and I’ll read
it silently.
MR. VAN CLEEF:               I have a copy. The Court can just hold onto
this.
THE COURT:            Just tell me, Mr. Wharton, just tell me what page and
what line and I’ll read the question.
MR. WHARTON: Okay.
THE COURT:            I’ve got it. I’ve got it.
MR. WHARTON: Okay. From 14 to 15, page 14 and 15.
THE COURT:            The whole, the whole pages.
MR. WHARTON: Yes.
THE COURT:            Okay. Mr. Wharton, which question is it you want
me to focus on that you asked specifically where it would be what are
all the duties or whatever all do you do and you don’t have to—I’ve got
it so you can tell me what line.
MR. WHARTON: Your Honor, in response—

                                    22
      THE COURT:          Not in the response, I’m talking about what question
      was it that you asked him because that’s what’s important is the question
      that you asked him. So what question is it?
      MR. WHARTON: It was a preceding a narrative, Your Honor. So it
      wasn’t—it wasn’t in response to a direct question. He’s talking about
      what the business does, what they do in relation—we’re asking about
      Fast Action Bail Bonds and the Surety Company and what they do and
      his response doesn’t indicate anything about this referral.
      THE COURT:          Again, I’m going to ask you one more time: What
      question, what is the question on line what that you asked him?
      MR. WHARTON: It’s not a question, it’s in the answer.
      THE COURT:          Okay. Well, that’s not a proper impeachment.

3 RR 272-76.

      These interruptions and rulings were not purely procedural: the impact on the

jury was clearly understood by the parties at the time. The Defendant’s attorney

specifically asked the court “to let the jury know that that was not an impeachment,”

and the court obliged. 4 RR 14 at 15-21. That request was made again later in the

trial. 4 RR 25 at 21-25. The court would regularly instruct the jury that the plaintiff’s

attorney’s cross-examination was “not impeachment.” 4 RR 128 at 23-25.

      During one objection, the Defendant’s attorney was allowed to interrupt the

plaintiff’s cross-examination to “voir dire” the witness under the rule of optional

completeness because of the plaintiff’s attorney’s “improper impeachment.” 4 RR 22-

29. The plaintiff’s attorney was cross-examining the Defendant on the issue of Barry

Lovely’s impersonation of Michael Anderson. 4 RR 21. The Defendant had testified



                                           23
in his deposition that “Mr. Anderson has been having people call his phone number

trying to get him to say that he’s Michael Anderson or basically trying to set the guy

up.” 4 RR 29 at 7-17. At trial, Mr. Snoddy denied claiming that the phone calls asking

for Mr. Anderson were a set-up. 4 RR 21-22. When the plaintiff’s attorney began to

read the deposition to Mr. Snoddy, the defense attorney objected to impeaching him:

“Once again that was an impeachment procedure and there was no impeachment.” 4

RR 22 at 21-22. The trial court agreed, and the defense attorney was then told that he

can read the deposition testimony if he would like “under the rule of optional

completeness since it was not read.” 4 RR 26 at 1-6. The defense attorney was then

allowed, during the plaintiff’s attorney’s cross-examination, to read the deposition

testimony, word for word, out loud to the jury. 4 RR 29. That was the very same

deposition testimony that the court would not allow the plaintiff’s attorney to use. 4

RR 22-26.

      In another instance, Barry Lovely testified that Mr. Snoddy would call him

when transferring the phone lines to him. 4 RR 129-30. In his deposition, he said that

he did not know when the phone numbers were transferred to him. 4 RR 132-33. The

trial court refused to allow the questioning because “It’s got to be the same question.”

4 RR 133.

      The trial court would also interrupt to “clarify” points for the defense

                                          24
witnesses. One defense theory was that Mr. Snoddy owned the phone lines, not Mr.

Anderson, and he would not have given valuable phone lines to someone for no

money. 3 RR 26-27. Yet Mr. Lovely testified that he was transferred the phone lines

without paying Mr. Snoddy anything. 4 RR 133-34. Immediately following one of the

trial court’s instructions that “it’s got to be the same question,” this colloquy took

place:

         Q:      So you say that you didn’t pay Mr. Snoddy for transferring the
         phone line to you.
         A:      You didn’t ask me that question awhile ago.
         Q:      I’m asking you, this is the question.
         A:      Occasionally. I mean, he have a phone, he have a phone number.
         Occasionally. That’s his phone number. He transferred the number to me
         occasionally, the bill have to be paid.
         Q:      Okay. I’m not asking about the bills, I’m saying you didn’t pay
         him to transfer the number to you, that’s what you’re—that’s what
         you’re—that’s what you’re saying, right, you didn’t pay him?
         A:      I thought you just asked me, I said I didn’t pay him for the phone
         bill, for the phone number.
         Q:      I’m not asking about the bill, sir.
         A:      I’m not understanding, sir.
         Q:      I’m asking did you pay him to transfer the phone line to you.
         THE COURT:                  What do you mean by transfer?
         MR. WHARTON:                I—when it’s diverted from—
         THE COURT:                  Like a—
         MR. WHARTON:                From a—
         THE COURT:                  Kind of like a call forwarding, is that what you
         mean?
         MR. WHARTON:                Maybe. I mean...
         THE COURT:                  Well, I think—the reason I say that is because
         there’s been a lot of different words passed around from both—both
         parties and there’s two different things that can be happening as I see it

                                             25
      and I’m not—I don’t know what the witnesses understand, but I think
      if you-all would clarify what your question is it might make it easier on
      the witnesses and I’m not sure what the question is, if it’s a forwarded
      call or talking about the transferring the account, giving the phone
      number to someone, like transferring the ownership of that phone
      number versus transferring—that’s what I’m asking so just clarify your
      question, what it is your asking.
      MR. WHARTON: Yes, ma’am.

4 RR 134-135. After several pages of questioning about the nature of the transfer to

clarify the point for the court, the plaintiff’s attorney returned to the issue of payment

for the transfer of the phone line:

      Q:      And you’re saying you’ve—you pay the phone bill when it’s
      transferred to you.
      A:      I don’t think I said that.
      Q:      Okay. Are you saying that?
      A:      When he transfer the number to me I think I said the phone bill
      has to be paid and I never did say I pay the phone bill.
      Q:      Okay. Do you pay the phone bill?
      A:      I don’t know if I do or I don’t. I know—I don’t know if I do or I
      don’t. He never have gave me a bill and say, hey, pay the bill.
      Q:      Okay. So who knows, maybe you pay the bill, maybe you don’t,
      is that, okay, is that what you’re saying?
      A:      I know the phone bill is still active so I know somebody pays it.
      A:      Okay.
      MR. VAN CLEEF:               Object to the sidebars, Your Honor.
      THE COURT:                   I’ll overrule it.
Q:    So you’re not paying Snoddy, Mr. Snoddy for the phone, you’re not
      paying—you didn’t pay him to transfer—to forward the phone to you is
      what—right?
A:    I think that’s what I said awhile ago, sir.

4 RR 137-38.



                                           26
      There were additional interruptions, admonitions and instructions during the

cross-examination of Barry Lovely:

      Q:    All right. Mr. Lovely, according to you, you don’t know why Mr.
      Snoddy transferred you the phone number.
      A:    I don’t know why he transferred me the phone numbers?
      Q:    That’s my question.
      A:    The number was transferred because I was doing bonds.
      Q:    All right. So you’re doing bonds, but you don’t know why. I
      mean, the—lot of people doing bonds, right, sir?
      A:    I assume.
      Q:    And so but you don’t know why he transferred those phone lines
      to you, right?
      A:    I think I just answered your question when I said I was doing
      bonds.
      Q:    Did he ever—let me—let me ask it this way: Did he ever explain
      why he transferred the phone number to you?
      A:    To do bonds.
      Q:    Okay. So you remember the deposition we did, it was on August
         th
      20 of 2013, right?
            MR. VAN CLEEF:             I need a page and line, please.
            MR. WHARTON: Okay.
      Q:    It was page—page 15, line 2. I’m going to go through this. My
      understanding, I’m going to do this so, okay. So you understand—you
      remember the—that the date, August 20th, 2013?
      A:    I don’t remember the date. I know I was in your office for a
            deposition, I don’t remember the date it was on.
      Q:    Okay. Can you—do you see the date on this?
      A:    Yes, uh-huh.
      Q:    Okay. What does that say?
      A:    It says August the 20th, 2013.
      Q:    Okay. And I was there, right?
      A:    Yes.
      Q:    Okay. We asked you a bunch of questions.
      A:    Yes.
      Q:    Okay. And I’m going to show you line 2, page 15.

                                       27
       A:      Okay, I see what you’re saying.
       Q:      Okay. Do you change your answer?2
       THE COURT:           What’s the question?
       MR. WHARTON: The question was: Did he ever—did Mr. Snoddy ever
       explain why he transferred the phone line to you?
       THE COURT:           Okay. And the answer on the deposition was?
       MR. WHARTON: Okay. So I’m allowed—I can read it?
       THE COURT:           Yes. Yes, you can do that but you just have to do the things
       leading up to it which you’ve done so you can do that.
       Q:      Okay. Okay. Did he ever explain why he transferred that number
       to you. And the answer was: I never did say we had a conversation about
       it. We transferred it. I said it’s his number. He has the right to transfer
       it if he don’t want to transfer it.
       MR. VAN CLEEF:              Your Honor, that is not the question that Mr.
       Wharton asked this witness. This is improper impeachment. He asked the
       witness if you ever have a conversation with him. He said no. That’s not what
       this—this doesn’t say yes.
       THE COURT:           I’ll agree. It doesn’t so—
       MR. VAN CLEEF:              I would ask the jury—
       THE COURT:           And—okay. The jury will be instructed that that’s not
       impeachment, but just go ahead, just move along, Mr. Wharton.
       MR. WHARTON: Yes, ma’am.
       THE COURT:           Getting bogged down.

4 RR126-29.

       Eventually it became clear that the trial court would not allow inquiry into

inconsistent statements unless the questions preceding the statements were identical.

The court would instruct the plaintiff’s attorney that he had to announce the page and

line to opposing counsel, show the witness the deposition, allow him to read it, and

then read it out loud. 4 RR 222. But when the plaintiff’s attorney would begin to ask
       2
        The trial court had previously instructed the plaintiff’s attorney to let the witness read the
deposition testimony before reading it out loud. 3 RR 324 at 1-5.

                                                 28
a question, the court would interrupt to say “Okay. Don’t answer. I mean, I think you

need to bring that up.” 4 RR 223. The court would refuse to read the witness’s answer

when determining whether the line of questioning was proper: her concern was only

with whether the questions asked in the deposition and at trial were identical. 3 RR

275-76. At one point, the plaintiff’s attorney began asking the court how

impeachment was supposed to proceed:

      MR. VAN CLEEF:             Judge, I have to object. When he walks up and
      acts like he’s going to—he’s got my client under oath and different
      things and it’s got to stop.
      THE COURT:           I’m going—
      MR. WHARTON: How am I going to—
      MR. VAN CLEEF:             May I finish? He’s telling him to read like four
      questions or three questions or two questions. He is not asking the same
      question and coming up and showing it to him and then asking him
      about that question. He’s asking—
      THE COURT:           I know.
      MR. VAN CLEEF:             —two or three and I can’t have that.
      MR. WHARTON: Your Honor, how—if he says—he says I didn’t use
      the word child games and he used the word child games how am I’m
      supposed to do that? I just—I’m trying—
      THE COURT:           As long—
      MR. WHARTON: —to follow your rules.
      MR. VAN CLEEF:             It’s a bad question.
      THE COURT:           As long as it’s in the same context it’s not a problem.
      MR. WHARTON: So how do I introduce it? How do I—how do I—I’m
      trying to follow your ruling.
      THE COURT:           Let me see it.
      MR. WHARTON: Five to fourteen, I believe 14 he says child’s games.
      He specifically says Anderson trying to set him up and he specifically
      calls it child games.
      THE COURT:           I’m sorry, did you tell me the wrong page? Did I just

                                          29
      miss it?
      MR. WHARTON: I believe.
      THE COURT:            Started here?
      MR. WHARTON: I believe so. Mr. Anderson has been having people
      call trying to set him up. That’s what he said and then he said he called
      it child’s games. Those are specific—
      THE COURT:            I’m looking for that.
      MR. WHARTON: I believe it’s 14, 14 says child games. I don’t—I
      don’t know—
      THE COURT:            Well, okay, this is—
      MR. VAN CLEEF:               It’s not the same question.
      THE COURT:            Thing is, my understanding of the original question
      was that he made these comments in reference to Mr. Lovely and Mr.
      Anderson, and Mr. Anderson basically calling it child games or he
      calling Mr. Anderson’s conduct or something child games or setup, but
      this is a different context that he’s talking about. He’s talking about
      getting phone calls himself and, you know, I mean, bottom line is if
      you’ve got something that is—that is distinct contrast in the question
      that you’re asking, but your question’s got to be right and it’s got to be
      on point. If it’s a little, you know, if it’s a little contextual difference
      then it’s not impeachment.

4 RR 22-25.

      Barry Lovely testified that Mr. Snoddy called him when transferring the phone

lines to him. 4 RR 130. In Mr. Lovely’s deposition, he said that “he doesn’t know

when it’s transferred.” 4 RR 133. Cross-examination on the inconsistency was not

allowed because the questions were not the exact same. 4 RR 133. The plaintiff’s

attorney would maintain to the court that the questions do not have to be identical, but

to no avail:

      MR. VAN CLEEF:             It’s got to be the same question.

                                          30
      THE COURT:         It’s okay. It’s got to be the same question.
      MR. WHARTON: I can’t—it doesn’t have to always be the exact same
      question.
      THE COURT.         Well, I’m going—I’m going to sustain your
      objection. That’s not proper impeachment.

4 RR 133. After the court’s ruling, Barry Lovely became so bold as to announce,

“That’s what I was saying all along from the deposition. I’ve been saying it all

along.” 4 RR 133.

      B.     Law

      “The rule of admissibility of evidence of prior inconsistent statements should

be liberally construed and the trial judge should have discretion to receive any

evidence which gives promise of exposing a falsehood.” Aranda v. State, 736 S.W.2d

702 (Tex. Crim. App. 1987). “The [prior inconsistent statement] rule is not as

complicated as it looks.” Ferguson v. State, 97 S.W.3d 293, 296 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref’d). “When examining a witness about the

witness’s prior inconsistent statement—whether oral or written—a party must first

tell the witness: (A) the contents of the statement; (B) the time and place of the

statement; and (C) the person to whom the witness made the statement.” Tex. R. Evid.

613(a). “If the witness’s prior inconsistent statement is written, a party need not show

it to the witness before inquiring about it, but must, upon request, show it to opposing

counsel.” Tex. R. Evid. 613(b). “A witness must be given the opportunity to explain

                                          31
or deny the prior inconsistent statement.” Tex. R. Evid. 613(c). Finally, “Extrinsic

evidence of a witness’s prior inconsistent statement is not admissible unless the

witness is first examined about the statement and fails to unequivocally admit making

the statement.” Tex. R. Evid. 613(d).

      The rule has two concerns: first, it sets up procedures that must be followed

when examining the witness on a prior inconsistent statement (giving the witness an

opportunity to review and explain the statement); and second, it creates a predicate

that must be laid before extrinsic evidence of the statement is admitted. Ferguson v.

State, 97 S.W.3d 293, 296 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). In this

case, no extrinsic evidence was ever offered, as the witnesses universally admitted to

making the prior statements.

      The rule contains a limitation on the admissibility of impeachment evidence,

not a limitation on the scope of cross-examination. See Ferguson v. State, 97 S.W.3d

293, 297 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). The scope of cross-

examination is relevance. Tex. R. Evid. 611(c) (“A witness may be cross-examined

on any relevant matter, including credibility.”). In Ferguson, the witness admitted to

making an inconsistent statement, but the cross-examiner moved to introduce

extrinsic evidence of the statement anyway. Id. at 295-97. The trial court sustained

the objection to the extrinsic evidence, but also ordered counsel not to “go into” the

                                         32
contents of the statement. Id. at 295. That was erroneous: counsel should have had the

liberty to cross-examine the witness on the contents of the statement. Id. at 297.

      In fact, the rule that properly limits the use of out-of-court statements is the

hearsay rule. Traditionally, introduction of prior consistent statements was referred

to as “bolstering.” Thomas v. State, 811 S.W.2d 201, 208 (Tex. App.—Houston [1st

Dist.] 1991, pet. ref’d). The prior consistent statement was offered to prove that the

in-court testimony was more likely credible because it had been unwavering. Courts

disallowed the bolstering as hearsay. Id. Under the common law, prior inconsistent

statements were only admissible for impeachment purposes. Tex. R. Evid. 801(d); see

Del Carmen Hernandez v. State, 273 S.W.3d 685, 688-89 (Tex. Crim. App. 2008).

      The theory of attack by prior inconsistent statements is not based on the
      assumption that the present testimony is false and the former statement
      true but rather upon the notion that talking one way on the stand and
      another way previously is blowing hot and cold, and raises a doubt as to
      the truthfulness of both statements.

Del Carmen Hernandez, 273 S.W.3d at 689 (quotations omitted).

      The rules have changed, though. Id. (applying the at-the-time new Tex. R.

Crim. Evid. 801(e)(1)(C)). If a hearsay objection is made, counsel must explain his

theory for admissibility, be it that the statement is not offered for the truth of the

matter asserted but rather for impeachment purposes only (which could be

accompanied by a limiting instruction), it is a prior inconsistent statement under oath

                                          33
per Rule 801(e)(1)(A)(i), it is an admission of a party-opponent per Rule 801(e)(2)

(in the case of Mr. Snoddy’s statements), it is a statement made in a deposition in the

same proceeding per Rule 801(e)(3) (in the case of every question about the

deposition statements), or one of the other multitude of exceptions to the hearsay rule.

Counsel could also lodge an objection based on relevance or unfair prejudice or

another established rule of evidence. Tex. R. Evid. 401 & 403. There was not even

a hearsay objection made to the plaintiff’s cross-examination, presumably because

defendant’s counsel knew that every one of the statements inquired into would fit an

exception to the hearsay rule.

      Other than hearsay limiting unsworn statements by a witness (that is not a

party-opponent) outside of a deposition, there is no rule that cross-examination is

limited to inconsistent statements. See Ferguson v. State, 97 S.W.3d 293, 297 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref’d) (“But it was error if the trial court

prevented any further questions about any part of the statement. . . . The trial court

had discretion to prevent impeachment with every sentence in the nine-page

statement, but not to limit cross-examination to the whole document rather than

portions of it.”). That rule would be a significant change in trial procedure: every time

a witness is asked about a statement he has made, counsel could object that the

statement is not inconsistent. It is difficult to fathom what the purpose of such a rule

                                           34
could be, given that the common-law prohibition against bolstering has been

abrogated, at least as far as deposition testimony is concerned. Tex. R. Evid.

801(e)(3). In this trial, it served primarily as a source of interruption and distraction.

If the statements are truly consistent, then there is no “impeachment,” improper or

otherwise: the cross-examination would have effected a bolstering of the witness’s

testimony. The rule applied by the trial court would limit the use of prior inconsistent

statements to only the most effective cross-examinations. The procedures set up in

Rule 613 do not do that: they only give the witness an opportunity to review and

explain the prior statement.

      Even if the rule did limit cross-examination to inconsistent statements, the

cross-examinations detailed above would be proper. They highlighted flatly

inconsistent statements (e.g., Barry Lovely testified that Mr. Snoddy would call him

when transferring the phone lines to him (4 RR 129-30) but had previously testified

that he did not know when the phone numbers were transferred to him (4 RR 132-

33)), failures in memory (e.g., Thomas Snoddy stated “I don’t know if I called the

situation with Barry child games or a setup” (4 RR 21) when he did in those very

terms (4 RR 29)), and statements that had to be either misleading or untrue (e.g.,

when asked what his company does, Harold Stein testified at trial that it provides

sureties for bondsmen versus in his deposition, when he answered the same question

                                           35
by saying that the company refers clients to bondsmen (3 RR 272-76)). The questions

were not improper, and no objection was ever made based on hearsay or any other

rule of evidence except “improper impeachment.”

II.   Comment on the Weight of the Evidence

      A.     Introduction

      The trial court repeatedly instructed the jury that the plaintiff’s cross-

examinations were not proper impeachment. 4 RR 14 at 15-21; 4 RR 25 at 21-25; 4

RR 128 at 23-25. These instructions were themselves judicial comments on the

weight of the evidence. No objection was made, but the comments were incurable and

thus the issue has not been waived.

      B.     Law

      “The general rule is that a presiding judge at a trial must conduct it in a fair and

impartial manner and refrain from making unnecessary comments or remarks during

the course of trial which may tend to result in prejudice to a litigant, or is calculated

to influence the minds of the jury.” Brown v. Russell, 703 S.W.2d 843, 847 (Tex.

App.—Ft. Worth 1986, no writ). The court “ should exercise reasonable control over

the mode and order of examining witnesses and presenting evidence so as to: (1)

make those procedures effective for determining the truth; (2) avoid wasting time;

and (3) protect witnesses from harassment or undue embarrassment.” Tex. R. Evid.

                                           36
611(a). But the judge should not “convey his or her opinion of the case to the jury and

ultimately influence the jury's decision.” Moreno v. State, 900 S.W.2d 357, 359 (Tex.

App.—Texarkana 1995, no pet.).

      If no objection is made to the comment, incurable harm must be shown. State

v. Wilemon, 393 S.W.2d 816, 818 (Tex. 1965). An example of an improper but not

incurable comment on the weight of the evidence is as follows:

      Q.    Would you tell the jury what you think a partnership is?
      MR. PETERSEN: Objection to that, Your Honor. That is a matter of
      law. The Court will instruct the jury what the law is and not what this
      man thinks.
      MR. HAYNSWORTH: Your Honor, the Plaintiff has alleged that Mr.
      Quintero was engaged in a partnership agreement with Mr. Guzman.
      Now, if they know what a partnership is, I would like to know if Mr.
      Quintero was in such a relation.
      MR. PETERSEN: Your Honor, we pled that by his acts and his conduct
      he was a partner. There is no declared partnership. We will agree to that,
      but by his acts and conduct, he was a partner in this operation.
      THE COURT:          Overrule the objection. This man knows what a
      corporation is, and a sole proprietorship, and he knows what a
      partnership is and that is how he has been operating. I am going to let
      him answer the question. He has testified to all three factors since he has
      been on the stand.

Quintero v. Citizens and S. Factors, Inc., 596 S.W.2d 277, 281-82 (Tex. Civ.

App.—Houston [1st Dist.] 1980, no writ) (emphasis in original). The court held that

the comment standing alone was “clearly improper,” but in context it was a statement

of the witness’s qualification to testify on whether a partnership existed. Id. at 282.



                                          37
With a timely objection, the court could have clarified the purpose of his comment

or given an instruction to the jury to disregard it. Id.

      In contrast, the trial court in this case specifically and repeatedly instructed the

jury that the plaintiff’s cross-examination was not impeachment. The only possible

use of that instruction was to inform the jurors that the witness’s credibility had not

been meaningfully punctured. It was intended as a direct influence on the jury’s

analysis of credibility. There was no other purpose to the instruction. It would have

been absurd and pointless for the plaintiff’s attorney to request an instruction from

the court that its immediately preceding instruction should itself be disregarded: even

if the court had a sudden change of heart and issued the new instruction, the harm

would not have been cured.

      The harm to the plaintiff was compounded by the fact that the trial court was

repeatedly and on its own motion interrupting the plaintiff’s cross-examinations. The

effect was to make it appear that the cross-examinations were highly improper and

the plaintiff’s attorney was out of line in impugning the witnesses’ credibility. The

trial court would not just sustain objections but “clarify” what witnesses were saying

(e.g., at 4 RR 25 when the trial court said in the presence of the jury that the context

of the two inconsistent statements was different) and would then say “that’s not

impeachment.” 4 RR 129; 4 RR 133; 3 RR 276.

                                           38
       This case came down to a contest of credibility. Gary Roberts and Michael

Anderson claimed that Thomas Snoddy offered them a partnership.3 RR 30-31 & 38.

Thomas Snoddy said they were lying. 3 RR 291-92. Norman Chism claimed Barry

Lovely impersonated Michael Anderson. 3 RR 204-206. Barry Lovely denied it. 4

RR 151-52. Michael Anderson was paying forfeitures out of the business profits, but

Thomas Snoddy and Harold Stein said that the business did in fact have a surety, even

if they had no proof of payment. 3 RR 272-76. The jury resolved every one of these

conflicts against the plaintiff after the court repeatedly and directly informed the jury

that the defense witnesses were “improperly impeached.”

III.   Exclusion of Judgments Nisi

       A.    Introduction

       The trial court excluded three exhibits, offered as Exhibits 26, 27 and 28, for

relevance. These exhibits were judgments nisi by the county against Michael

Anderson for bond forfeitures totaling $12,000. The trial court erred by excluding

them as irrelevant.

       B.    Law

       The rule is as follows: “Evidence is relevant if: (a) it has any tendency to make

a fact more or less probable than it would be without the evidence; and (b) the fact

is of consequence in determining the action.” Tex. R. Evid. 401. “Evidence need not

                                           39
by itself prove or disprove a particular fact to be relevant; it is sufficient if the

evidence provides a small nudge toward proving or disproving some fact of

consequence.” Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). It does

not have to be conclusive. See id. For example, when trying to prove that two

criminal defendants (Le and Hoang) were involved in a murder committed by the

appellant, the State was able to use recanted statements from them that the appellant

told them that he was involved in a shooting.

      The statements, even if recanted, indicate that Le and Hoang had
      knowledge that a freeway shooting had occurred. The statements also
      show Le's and Hoang’s willingness to implicate appellant in order to
      exonerate themselves. Evidence that shows Le’s and Hoang’s
      knowledge of the shooting and their willingness to implicate appellant
      is relevant because it makes the State's theory that all three men were
      involved more probable than the theory would be without the evidence.

Ho v. State, 171 S.W.3d 295, 305 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

In a wrongful death case in which the plaintiffs were claiming lost wages, the

deceased’s status as an illegal immigrant was relevant to a determination of his lost

wages: it would have some effect on the wages he could expect to earn over his

lifetime. Republic Waste Services, Ltd. v. Martinez, 335 S.W.3d 401, 406 (Tex.

App.—Houston [1st Dist.] 2011, no pet.).

      C.     Application

      Harold Stein testified that after a forfeiture, the name on the judgment nisi

                                         40
determines who is liable. 3 RR 264-65 & 268-69. If Michael Anderson were named

personally, not as an agent, but as the principal, he would have to satisfy the

judgment. The trial court itself acknowledged the importance of the issue by berating

the plaintiff’s attorney for not offering proof that forfeitures resulted in Michael

Anderson being sued.

      THE COURT:          And even if [the sureties] weren’t paid, nothing
      happened. So if it was a breach, if they didn’t pay, if Mr. Snoddy didn’t
      pay them and it was a breach how is it material?
      MR. WHARTON: Well, they had judgments against them.
      THE COURT:          Well, we don’t have any evidence of that now, do
      we?
      MR. WHARTON: Through testimony.
      THE COURT:          We don’t have any evidence, about any time period
      about any judgment.
      MR. VAN CLEEF:            Or any amount.
      THE COURT:          Or any amount. We don’t.
      MR. WHARTON: Then I can introduce it.
      THE COURT:          Well, good luck with that because I don’t think
      you’ve got any in your materials over there and probably haven’t
      disclosed them to this side.
      MR. VAN CLEEF:            No.

4 RR 197-98.

      The plaintiff subsequently offered three judgments nisi exhibits to prove that

in fact Mr. Anderson was personally named when the business had a bond forfeiture.

5 RR 5-7. Yet when the exhibits were offered, the trial court sustained an objection

to relevance. 5 RR 7-9 & 11-12. No objection or argument was made that the exhibits



                                         41
should be excluded under another rule, such as for being unduly prejudicial or

undisclosed in discovery.

      The defense attorney argued that a judgment nisi is not a judgment: it “is what

starts the case not ends the case and there’s no indication on there basically any

money was paid.” 5 RR 7 at 21-25. That is close to true:

      A judgment nisi, commonly used in bond forfeiture proceedings, is a
      provisional judgment entered when an accused fails to appear for trial.
      A judgment nisi triggers the issuance of a capias and it serves as notice
      of the institution of a bond forfeiture proceeding. It is not final or
      absolute, but may become final. Nisi means “unless,” so a judgment nisi
      is valid unless a party takes action causing it to be withdrawn.

Williams v. State, 332 S.W.3d 694, 696 n.2 (Tex. App.—Amarillo 2011, pet. denied).

It operates similarly to a trial court’s award of attorneys’ fees for an appeal that has

not yet happened: the award is conditioned on the defendant appealing and losing that

appeal. See In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998); Sw. Bell Tel.

Co. v. Vollmer, 805 S.W.2d 825, 834 (Tex.App.—Corpus Christi 1991, writ denied).

      That does not make the judgments nisi irrelevant. They indicated that when

bonds were forfeited, Mr. Anderson was personally named in suits by the State. He

was liable on those bonds, not Thomas Snoddy or Harold Stein or Gerald Todd or any

other surety. The judgments nisi did not conclusively prove the amount that Mr.

Anderson lost due to bond forfeitures by themselves, since they could be undone if



                                          42
the criminal defendant showed good cause for his non-appearance at a later hearing.

They proved that there was no surety standing behind Fast Action Bail Bonds except

Michael Anderson himself, even though Mr. Anderson had paid Mr. Snoddy

approximately$76,000 over the course of their two-and-a-half-year business

relationship. 5 RR 164. That was the ultimate issue in the breach of contract and fraud

causes, and it was decided without the aid of critical evidence.

IV.   Cross-Examination Based on the Law

      The trial court refused to allow cross-examination by the plaintiff’s attorney

of Thomas Snoddy on the issue of ownership of partnership property after

termination. 3 RR 298-99. The defendant objected that the questions called for a legal

conclusion. 3 RR 298-99. Later, the trial court also sustained an objection on

questions related to the law governing whether a partnership had been created. 3 RR

305-06.

      “An improper legal conclusion is one that does not provide underlying facts to

support the conclusion.” Cooper v. Circle Ten Council Boy Scouts of Am., 254

S.W.3d 689, 698 (Tex. App.— Dallas 2008, no pet.). For example, the statement “I

acted properly . . . and have not violated the [DTPA] . . . [and] did not breach my

contract” is an improper legal conclusion and is therefore incompetent evidence.

Anderson v. Snider, 808 S.W.2d 54, 54-55 (Tex. 1991). In contrast, if the facts

                                          43
underlying the conclusion are included, the witness may testify to the legal

conclusion. Cooper, 254 S.W.3d at 699-700.

      The questions here did not call for unsupported legal conclusions. Rather, they

asked for Mr. Snoddy’s understanding of the law, particularly on the ownership of

property that had been transferred to a partnership. 3 RR 298. That questioning was

important because Mr. Snoddy was being accused of tortiously interfering with Mr.

Anderson’s business by disconnecting the phone lines and transferring them to

himself and Mr. Lovely. CR 33-34. The characterization of the telephone numbers as

partnership property was one of the ultimate issues for the jury, as if the property was

owned by Mr. Snoddy, as he claimed, he would not be liable for transferring the

number. If the telephone number was owned by the partnership, he would not have

that right. Mr. Snoddy’s belief and understanding as to ownership would also affect

the determination of his mental state: that is, if he mistakenly believed that he still

owned the telephone line, despite contributing it to the partnership, that would tend

to prove that his interference was not tortious.

V.    Character Bolstering

      The defendant used impermissible character evidence to bolster Barry Lovely’s

testimony that he did not impersonate Michael Anderson. Harold Stein was asked, “Is

it your impression that Mr. Lovely has—does underhanded business practices?” 3 RR

                                          44
258 at 24-25. The plaintiff objected and it was overruled. 3 RR 259 at 1-3. Mr. Stein

answered “I don’t know of any underhanded.” 3 RR 259 at 10.

      Character evidence is generally prohibited. Tex. R. Evid. 404(a). That is the

rule for good character as well as bad. Smith v. State, 919 S.W.2d 96, 102 (Tex. Crim.

App.1996) (en banc). One of the exceptions in criminal cases, listed under Tex. R.

Evid. 404(a)(2), is that the accused may offer evidence of his pertinent trait. Thomas

v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [14th Dist.] 1984, pet. ref’d).

Similarly, in civil cases, a party accused of conduct involving moral turpitude may

offer evidence of the party’s pertinent trait. Tex. R. Evid. 404(a)(2)(B).

      Even if Barry Lovely were a “party” (despite not being named as a defendant

in the lawsuit), evidence of the party’s pertinent trait must be offered in a specific

manner. That is, “When evidence of a person’s character or character trait is

admissible, it may be proved by testimony about the person’s reputation or by

testimony in the form of an opinion.” Tex. R. Evid. 405(a)(1). It is only on cross-

examination that specific instances of conduct may be inquired into. Tex. R. Evid.

405(a)(1). Harold Stein’s testimony was not on reputation or opinion: it was

testimony that Barry Lovely does not engage in bad conduct. That is impermissible.

Since credibility was a major issue in the case, evidence that improperly bolstered the

defense witnesses’ did serious harm to the plaintiff’s case.

                                          45
VI.   Cumulative Error

      The combined effect of the errors throughout the trial probably caused the

rendition of an improper judgment. Tex. R. App. P. 44.1(a). Although the errors in

this case are reversible alone (particularly the “improper impeachment” problems and

the exclusion of the judgments nisi), “When several errors exist but are not

considered reversible, all errors considered together could present cumulative error

requiring reversal.” Fibreboard Corp. v. Pool, 813 S.W.2d 658, 695-98 (Tex.

App.—Texarkana 1991, writ denied).

      In a case hinging almost entirely on credibility, the trial court improperly

limited cross-examination of the defense witnesses and instructed the jury that the

defense witnesses had not been impeached. One defense witness was allowed to

bolster the character of another. Evidence demonstrating that the supposed surety was

not the one sued for forfeitures was excluded. Inquiry was not allowed into the

defendant’s understanding of the law on partnership property. Even if these errors

were not reversible alone, together they created a substantial probability that the jury

would not come to a proper verdict based on relevant and credible evidence.

                                      PRAYER

      For the reasons stated above, Appellant respectfully requests that this court

grant him a new trial.

                                          46
                                       Respectfully submitted,

                                       SNOW E. BUSH, JR., P.C.
                                       420 N. Center Street
                                       Longview, TX 75601
                                       Tel. (903) 753-7006
                                       Fax. (903) 753-7278
                                       E-mail: jonathanwharton1@sbcglobal.net


                                       By: /s/ Jonathan Wharton
                                              JONATHAN WHARTON
                                              STATE BAR NO. 24075764
                                              ATTORNEY FOR APPELLANT,
                                              MICHAEL ANDERSON

                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing has
been delivered to L. Charles Van Cleef, counsel for appellee, on this the 26th day of
May, 2015.
                                              /s/ Jonathan Wharton
                                                 JONATHAN WHARTON


                      CERTIFICATE OF COMPLIANCE

       I hereby certify that the Appellants Brief (as measured under Tex. R. App. P.
9.4(i)(1)) contains 10,533 words as counted by Microsoft WordPerfect on this the
26th day of May, 2014.

                                                /s/ Jonathan Wharton
                                                 JONATHAN WHARTON




                                         47
                        NO. 06-14-00096-CV
__________________________________________________________________

 IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT, TEXARKANA,
                              TEXAS
__________________________________________________________________

                      MICHAEL ANDERSON
                             Appellant,
                                v.
                        THOMAS SNODDY
                             Appellee.
__________________________________________________________________

                      On Appeal from Cause No. 548-12
         In the 115th Judicial District Court of Upshur County, Texas
                  Honorable Lauren Parish, Presiding Judge
__________________________________________________________________

                APPENDIX TO APPELLANT’S BRIEF
__________________________________________________________________

Final Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 1

Jury Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 2

Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 3




                                                             48
TAB 1
TAB 2
TAB 3
