
NO. 07-05-0087-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

DECEMBER 29, 2006
 ______________________________

ANIBAL HERIBERTO VALLE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 31ST DISTRICT COURT OF WHEELER COUNTY;

NO. 3972; HONORABLE STEVEN R. EMMERT, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
DISSENTING OPINION

	Because I disagree that the evidence is factually insufficient to support the
conviction, and would affirm the trial court's judgment, I must respectfully dissent from the
Court's decision to reverse.	
	I agree with the Court that the officers' descriptions of appellant's demeanor during
the search of his tractor-trailer rig shed little light on the issue of his knowing possession
of the hidden marijuana.  But, coupled with the undisputed evidence of appellant's sole
control of the rig (1) both before and after the cargo was loaded, I think the inference of
appellant's guilty knowledge of the illicit part of his cargo is sufficiently supported by the
evidence of appellant's cross-country transportation of an empty trailer, followed by his
cross-country transportation of the trailer a quarter-full of cargo; appellant's acknowledged
presence when the cargo was loaded in Los Angeles; the manner in which the cargo was
loaded, with the charcoal bags stacked on the pallet reaching almost to the top of the
trailer, hiding the shorter pallets of corn flour; the nature of the cargo documentation
appellant carried; the $3820 total value of the legal cargo compared with the much greater
value of the marijuana; that, although the cargo documentation was somewhat consistent
with appellant's testimony about the circumstances under which he took possession of the
cargo, the documentation easily can be read to indicate he paid cash, at least for the corn
flour; and appellant's purchase and use of a lock for the trailer after his cargo was loaded. (2) 
I would find that, viewing all the evidence in a neutral light, the evidence supporting an
inference of appellant's guilty knowledge of the presence of the marijuana is not so
obviously weak as to undermine confidence in the jury's verdict.  See Johnson v. State, 23
S.W.3d 1, 11 (Tex.Crim.App. 2000) (setting out factual sufficiency standard of review).
	As I understand the record, except for the invoices and the copy of appellant's truck
lease, the only evidence supporting his versions of the purpose of his trip to Los Angeles
and of the circumstances surrounding the loading of cargo comes from appellant's
testimony.  I conclude also that the jury's apparent rejection of parts of appellant's story
and its finding of his knowing possession of the marijuana are not greatly outweighed by
contrary proof.  Johnson v. State, 23 S.W.3d at 11.         
						James T. Campbell
					                    Justice


Publish.  

 


 

 

 
1. See Menchaca v. State, 901 S.W.2d 640, 652 (Tex.App.-El Paso 1995, pet. ref'd)
(knowledge of presence of contraband inferred from control of vehicle in some
circumstances).
2. United States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993) (finding circumstantial
evidence supported conclusion of truck driver's knowing possession when drugs hidden
and not readily accessible to driver). The facts in Garza are similar to those in our present
case.  After the tractor trailer rig Garza was driving was stopped at a checkpoint, Border
Patrol agents found cocaine concealed in his load of limes.  990 F.2d at 173.  In addition
to his control and ownership of the truck, the appellate court found Garza's guilty
knowledge of the presence of the cocaine was supported by his nervousness and
trembling; a false bill of lading hidden in the truck; his admitted falsification of his log book,
accompanied by an implausible explanation; the "enormous" quantity of cocaine found; and
suspicious circumstances involving Garza's delayed departure and his abandonment of his
unlocked truck for a time.  Id. at 176. The federal court's analysis can be seen as an
application of the same type of "links" analysis Texas courts perform to evaluate evidence
of a defendant's knowing possession of drugs found on premises not solely in the
defendant's possession. See Bethancourt-Rosales v. State, 50 S.W.3d 650, 653-55
(Tex.App.-Waco 2001, pet. ref'd) (citing Garza in links analysis).    


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NO. 07-09-0261-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL E
 
 FEBRUARY 3, 2011

 
 

 
 
DALE WINFIELD, GLORIA JOHNSON, AND
JAMES WINFIELD, APPELLANTS
 
v.
 
KAREN SUE PIETSCH, APPELLEE 

 
 

 
 FROM THE 181ST DISTRICT
COURT OF RANDALL COUNTY;
 
NO. 60,121-B; HONORABLE JOHN B. BOARD, JUDGE

 
 

 
Before CAMPBELL, PIRTLE, JJ. and BOYD, S.J.[1]
 
 
MEMORANDUM OPINION
            Appellants,
Dale Winfield, Gloria Johnson, and James Winfield (Winfields), appeal from a
take-nothing judgment granted in favor of Appellee, Karen Sue Pietsch, pursuant
to Rule 166a(c) of the Texas Rules of Civil Procedure, in an action seeking to
set aside the unprobated will of their mother, Jena Beth Winfield, and a
general warranty deed transferring property from Jena to Pietsch, Jena's
daughter.  The Winfields assert the trial
court erred by (1) granting summary judgment in favor of Pietsch and (2)
denying Winfields' motion for new trial. 
The Winfields also assert (3) this Court erred by earlier dismissing for
want of jurisdiction that part of their appeal pertaining to the trial court's denial
of their claims pertaining to Jena's unprobated will.[2]  We affirm.
Background
            On June 18,
2008, the Winfields filed an original petition seeking:  (1) to set aside Jena's unprobated will and a
general warranty deed alleging the instruments were obtained by undue influence
and/or fraud; (2) a declaratory judgment establishing the rights of the parties
to the property in question; (3) damages for tortious conduct; and (4) recovery
of reasonable and necessary attorney's fees. 
Pietsch answered with a general denial and special exception asserting
the trial court lacked jurisdiction over the unprobated will claims.    
            


            I.          No-Evidence
Motion for Summary Judgment
            On March 9, 2009, Pietsch filed a
no-evidence motion for summary judgment. 
The Winfields responded with three affidavits.  Dale Winfield's affidavit stated that, after
their father's death, Jena indicated that she wanted her property to benefit
all of her children and grandchildren and stated she wanted to benefit from her
house during her lifetime.  He also stated
that Jena's handwritten journal indicated she had great love and affection for
her daughter, Gloria Johnson, whom he believed Jena
wanted to include in any transfer of her house. 
He stated that, during the time period wherein Jena decided to execute a
will leaving all her property to Pietsch while excluding the Winfields and
transferring her house to Pietsch, Jena was an elderly woman with "a
propensity to engage in over consumption of wine" and "was taking
pain medication."  
            Richard Naylor, the Winfields'
counsel, executed an affidavit authenticating Jena's handwritten journal
wherein she expressed affection for all her children and Shayla Coon executed
an affidavit authenticating the time records of Bill Cornett, Jena's
attorney.  The billing records disclosed
the following information, in pertinent part:
10/26/05--Drafted Special Warranty Deed,
called our client to see if she wanted a life estate in home.  She said she did, but she doesn't really
understand exactly what documents she needs to have prepared.  She was just wanting
her daughters (sic) name on the deed with hers, actually both of her daughters
(sic) names, Karen Sue Pietsch and Gloria Jean Johnson.  
11/05/05--Prepared general warranty deed.
12/15/05--Conference with Jena Beth Winfield,
discussed warranty deed.  Prepared deed per Jena's instructions leaving off Gloria Johnson.  
 
            On April 22, 2009, Pietsch objected
to evidence filed in support of the Winfields response, i.e., the affidavits
of Dale Winfield and Naylor's record affidavit appending portions of Jena's
diary or journal.  Pietsch objected to
Dale Winfield's affidavit as being conclusory---containing speculation, legal
argument, and unsubstantiated opinions without any supporting factual
basis.  She asserted Jena's diary or
journal entries and Dale Winfield's affidavit had no relevance to Jena's mental
state or thought processes at the time the deed was executed.  Rather, Pietsch asserted the only evidence
offered by the Winfields of Jena's mental capacity at the time of the execution
of the general warranty deed was Bill Cornett's time records wherein he
indicated he had a conference with Jena, discussed the warranty deed, and
prepared the deed in question as per her instructions.     
            On May 4, 2009, the trial court
issued its order granting summary judgment in Pietsch's favor and stated, in
pertinent part, as follows:
The Defendant having filed objections to the
evidence offered in response to such motion, the Court finds that the
objections filed by Defendant to the Evidence offered by Plaintiffs in Response
to her no evidence motion for summary judgment are well taken and are hereby
sustained, and 
The Court finds that Defendant's motion for
summary judgment is well taken and the same is hereby granted, judgment entered
that Plaintiffs, [the Winfields] take nothing by their cause of action, and
that Defendant recover her costs of court expended herein from such Plaintiffs.
From which judgment execution may issue.  All other relief not expressly granted herein
is hereby expressly denied.
            


            II.         Motion
for New Trial
            On May 27, 2009, the Winfields filed
a motion for new trial based upon "newly discovered evidence" and
attached the affidavits by Gloria Johnson and Yong Menkhoff.  Gloria Johnson stated in her affidavit that,
on May 19, 2009, she "had occasion to visit with Yong Menkhoff a hair
stylist who had done [her] hair and [her] mother's . . . hair for many years
prior to [her] mother's death."  She
further stated that, during the visit, she "learned for the first time
that [Menkhoff] continued to cut/style [her] mother's hair until about one year
before [her] mother's death."
            In her affidavit, Yong Menkhoff
stated that she styled Jena's hair from 1994 through 2008.  During that time, Menkhoff became "well
familiar with her."  They
"often discussed her children, family and what she would like to do with
her property especially her house." 
After Jena's husband died, Jena told Menkhoff that she wanted her house
to pass to her daughter, Gloria Johnson. 
In addition, Menkhoff noticed a change in Jena's behavior after her
husband died, i.e., Jena began slurring her words, prompting Menkhoff to suggest
that Jena see a doctor to find out if she was being over medicated.
            Thereafter, the Winfields motion
for new trial was overruled by operation of law seventy-five days after the
trial court signed its order granting summary judgment.  See
Tex. R. Civ. P. 329b(c); Herrera v. Seton
Northwest Hospital, 212 S.W.3d 452, 462 (Tex.App.--Austin 2006, no
pet.).  This appeal followed. 
            


            III.        Jurisdiction
            On
September 4, 2009, Pietsch filed a motion to dismiss the Winfields' appeal for want
of jurisdiction asserting this Court lacked jurisdiction to hear the Winfields'
appeal related to their claims pertaining to Jena's will.  Pietsch also asserted that the Winfields'
claims related to the general warranty deed were moot because Jena's will
divested the Winfields of any interest in Jena's estate and they failed to
contest the admission of her will in a subsequently filed probate
proceeding.  In a per curiam ruling, as to those claims pertaining to the validity of
Jena's will, this Court vacated the judgment of the trial court and dismissed
that portion of this appeal for want of jurisdiction. 
Discussion
            The Winfields assert summary
judgment in Pietsch's favor was improper because their evidence raised a fact
issue whether Pietsch exerted an undue influence over Jena, or defrauded the
Winfields, by obtaining Jena's signature on the general warranty deed conveying
her residence to Pietsch, to the exclusion of the Winfields.  They also assert the trial court erred in
denying their motion for new trial. 
Finally, the Winfields urge this Court to reverse rather than vacate an
"implied" ruling by the trial court on Pietsch's special exception
contained in her answer that asserted the trial court lacked jurisdiction over
the Winfields will challenge.
            


            I.          No-Evidence
Summary Judgment
            A.
       Standard of Review
            Because Pietsch's summary judgment
motion was a no-evidence motion, we consider the evidence in a light most
favorable to the non-movant; King Ranch,
Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003), cert. denied, 54 U.S. 1030, 124 S.Ct. 2097, 158 L.Ed.2d 711 (2004),
while disregarding all contrary evidence and inferences.  Id.
at 751 (citing Merrell Dow Pharms., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).  "A no evidence point will be sustained
when (a) there is a complete absence of vital fact, (b) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (c) the evidence offered to prove a vital fact is no more
than a mere scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact."  Id.  In
sum, a no-evidence summary judgment is improperly granted if the respondent
brings forth more than a scintilla of probative evidence to raise a genuine
issue of material fact.  Tex. R. Civ. P. 166a(i); Wal-Mart
Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002).[3]
            B.        Undue Influence and Fraud
            The
Winfields have the burden of proving undue influence was exerted in connection
with the execution of the general warranty deed.  In re Estate
of Woods, 542 S.W.2d 845, 847 (Tex. 1976).  Before an instrument may be set aside on
grounds of undue influence, the contestant must prove: (1) the existence and
exertion of an influence; (2) the effective operation of such influence so as
to subvert or overpower the mind of the person at the time the person is
executing the instrument; and (3) the execution of the instrument which the
maker thereof would not have executed but for such influence.  Id.
(quoting Rothermel v. Duncan, 369
S.W.2d 917, 921 (Tex. 1963)).  
            As to their fraud claims, the
Winfields also have the burden of proving fraud in connection with the
execution of the general warranty deed.  King Ranch, 118 S.W.3d
at 751.  The elements of fraud
are:  (1) that a material
misrepresentation was made; (2) the representation was false; (3) when the
representation was made, the speaker knew it was false or made it recklessly
without the knowledge of the truth and as a positive assertion; (4) the speaker
made the representation with the intent that the other party should act upon
it; (5) the party acted in reliance on the representation; and (6) the party
thereby suffered injury.  Aquaplex, Inc. v. Rancho La
Valencia, 297 S.W.3d 768, 774 (Tex. 2009) (quoting In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001)).
            The Winfields submitted three
affidavits in response to Pietsch's no-evidence motion for summary
judgment.  Two of the affidavits were not
considered by the trial court due to relevancy and evidentiary objections.  That is, the trial court sustained Pietsch's
objections that the affidavits were irrelevant to Jena's state of mind at the
time the deed was executed and were conclusory--containing speculation, legal
arguments, and unsubstantiated opinions.[4]  Thus, the only remaining affidavit supporting
the Winfield's response was the affidavit of Shayla Coon authenticating the
time records of Bill Cornett, Jena's attorney, wherein Cornett indicated that,
on November 26, 2005, Jena asked him to draft a warranty deed with her name and
the names of both her daughters, Pietsch and Johnson, on the deed.  And, on December 15, 2005, Cornett had a
conference with Jena to discuss the deed wherein he was instructed by Jena to
draft the deed "leaving off Gloria Johnson."  This evidence merely indicates that, in the
space of about a month and a half, Jena changed her mind regarding whether or
not she wanted Johnson to be named on the deed. 
There was no evidence of Jena's state of mind at the time she met with
her attorney to finally draft and execute the deed.  Under these circumstances, we cannot say the
Winfields raised a fact issue as to any element of either action--undue
influence or fraud.
            In order to find a fact issue
exists, the Winfields assert that we should consider Menkhoff's affidavit filed
with their motion for new trial.  That we
cannot do.  In summary judgment
proceedings, the Texas Rules of Civil Procedure state, in pertinent part, as
follows:
Except on leave of court, the adverse party,
not later than seven days prior to the day of the hearing may file and serve
opposing affidavits or other written response . . . [and] [t]he judgment sought
shall be rendered forthwith if . . . (ii) the pleadings, admissions,
affidavits, stipulations of the parties . . . on file at the time of the hearing, or filed thereafter and before
judgment with permission of the court, show that . . . there is no genuine
issue as to any material fact and the moving party is entitled to judgment as a
matter of law on issues expressly set out in the motion or in an answer or any
other response.  Issues not expressly
presented to the trial court by written motion, answer or other response shall
not be considered on appeal as grounds for reversal.
Tex. R. Civ. P. 166a(c); (emphasis supplied).     
            Menkhoff's affidavit was first filed
with the Winfields' motion for new trial. 
The affidavit was not on file at the time of the summary judgment
hearing and the Winfields never requested permission to file the affidavit
prior to judgment.  Therefore, having
been filed with the motion for new trial, Menkhoff's affidavit was not before
the trial court at the time it granted summary judgment.  As a result, we cannot consider Menkhoff's
affidavit in our determination whether the Winfields raised an issue of fact precluding
summary judgment.  White v. Wah, 789 S.W.2d 312, 319
(Tex.App.--Houston [1st Dist.] 1990, no writ).  See First Gibraltar Bank, FSB v. Farley, 895 S.W.2d 425, 430
(Tex.App.--San Antonio 1995, no writ). 
Accordingly, point of error one is overruled.
II.         Motion
for New Trial 
            A.        Standard of Review
            Whether a motion for new trial will
be granted or denied is generally a matter addressed to the sound discretion of
the trial court; Jackson v. Van Winkle,
660 S.W.2d 807, 809 (Tex. 1983), overruled
on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 721 (Tex. 2003), and
when, as here, the motion is overruled by operation of law pursuant to Rule 329b(c)
of the Texas Rules of Civil Procedure, the question becomes whether the trial
court abused its discretion by allowing the motion to be overruled.  Herrera,
212 S.W.3d at 462 (citing Limestone
Constr., Inc. v. Summit Commercial Indus. Props., Inc., 143 S.W.3d 538, 542
(Tex.App.--Austin 2004, no pet.)).  This
is a question of law.  Jackson, 660 S.W.2d at
810.  
            A trial court abuses its discretion
when it acts in an arbitrary or unreasonable manner, or it acts without
reference to any guiding principles of law. 
Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  Moreover, every reasonable presumption will
be made in favor of a trial judge's denial of a party's motion for a new trial.  Jackson, 660 S.W.2d at 810; Rivera
v. Countrywide Home Loans, Inc., 262 S.W.3d 834, 844 (Tex.App.--Dallas
2008, no pet.). 
            B.        The Winfields' Motion
            A party
seeking a new trial on grounds of newly discovered evidence must demonstrate to
the trial court that (1) the evidence came to his or her knowledge after the
trial; (2) in the exercise of due diligence, the evidence could not have been
produced earlier; (3) the newly discovered evidence is not cumulative; and (4)
the evidence is so material that it would probably produce a different result
in a new trial.  Waffle House, Inc. v. Williams, 313
S.W.3d 796, 813 (Tex. 2010); Jackson,
660 S.W.2d at 809.  Assuming
without deciding whether the Winfields satisfied the first three criteria, we
find the purported newly discovered evidence was not material and probably
would not have altered the trial court's decision to permit the Winfields'
motion to be overruled by operation of law pursuant to Rule 329b(c) of the
Texas Rules of Civil Procedure.
            "Where the trial court would
have excluded the 'newly discovered evidence' for the same reasons it excluded
other similar evidence during the proceedings, the trial court does not abuse
its discretion in denying the motion for new trial."  Waffle
House, Inc., 313 S.W.3d at 313.  See
Rivera, 262 S.W.3d at 845.  Like Dale Winfield's affidavit, Menkhoff's
affidavit indicates that, after Jena's husband died, Jena mentioned that she
wanted her house to pass to Johnson and was taking medication--possibly causing
her to slur her words.  Like Dale
Winfield's affidavit, Menkhoff's affidavit also contains unsupported
conclusions related to Jena's mental state. 
Further, Menkhoff's observations were limited generally to behavior
exhibited by Jena while she was at the
salon to get her hair done without any reference to Jena's state of mind at
or around the time she executed the general warranty deed.  Thus, this purported newly discovered
evidence is consistent with evidence rejected by the trial judge during the
summary judgment proceedings, and is not so material that it would probably
produce a different result with regard to the summary judgment granted.[5]  Accordingly, we cannot say the trial court
abused its discretion by denying the Winfields' motion for new trial.  Accordingly, point of error two is overruled.
            III.        Motion to Dismiss--Subject Matter Jurisdiction
            The
Winfields do not disagree with this Court's determination that the trial court
lacked subject matter jurisdiction over the Winfields challenge to Jena's
will.  Rather, they contend that this
Court erred by vacating the trial
court's judgment due to a lack of subject matter jurisdiction insofar as it
pertained to the Winfields' will challenge instead of reversing the trial court's implied ruling erroneously denying
Pietsch's jurisdictional challenge. 
            Importantly, the Winfields are mistaken in their
assertion that the trial court's summary judgment impliedly denied Pietsch's
special exception to the jurisdiction of the trial court contained in Pietsch's
answer because the summary judgment stated that "[a]ll other relief not
expressly granted herein is hereby expressly denied."  To the contrary, in the absence of any
indication in the record that the trial court actually ruled on the issue
raised by the special exception, granting summary judgment does not imply a
ruling on a special exception; Tri-State
Association of Credit Men v. Hinson, 144 S.W.2d 881, 882 (Tex. 1940); Franco v. Slavonic Mut. Fir.
Ins. Ass'n, 154 S.W.3d 777, 784-85 (Tex.App.--Houston [14th Dist.] 2004, no
pet.); Rosas v. Hatz, 147 S.W.3d 560,
562-63 (Tex.App.--Waco 2004, no pet.), even if the judgment includes the
statement that all relief not expressly granted is denied.  In the Estate of J.W. Tyner,
292 S.W.3d 179, 185-86 (Tex.App.--Tyler 2009, no
pet.).  In the absence of a written order
on the special exception, the special exception is waived.  Galien v. Washington Mutual Home Loans, Inc., 209 S.W.3d 856, 862
(Tex.App.--Texarkana 2006, no pet.).[6]  Here, there is no evidence in the record that
Pietsch either brought her special exception to the trial court's attention or
that the trial court ruled on any special exception.  
            When
a lower court lacks subject matter jurisdiction to hear a particular claim that
is brought up on appeal, an appellate
court is empowered to dispose of the claim on appeal by vacating the trial
court's judgment and dismissing the case. 
Tex. R. App. P. 43.2(e).  See generally
Marshal v. Housing Authority of the City of San Antonio, 198 S.W.3d 782,
790 (Tex. 2006) (when subject matter jurisdiction was lacking, Supreme Court
vacated the judgments of the court of appeals and trial court and dismissed the
case).  See also Brown v. Fullenweider, 52 S.W.3d 169, 171 (Tex. 2001); Patterson v. Planned Parenthood of Houston
and Southeast Texas, Inc., 971 S.W.2d 439, 444 (Tex. 1998).  Further, when the trial court lacked subject
matter jurisdiction over a portion of the claims asserted on appeal, an
accepted method of disposition on appeal is to vacate only those portions of
the lower court's judgment that are affected and dismiss the claims over which
the appellate court lacks jurisdiction.  See Brooks v. Northglen
Association, 141 S.W.3d 158, 164 (Tex. 2003).  Having considered the Winfields' contentions,
we are unpersuaded that the appropriate disposition of Pietsch's motion to
dismiss for lack of subject matter jurisdiction would have been to reverse the
trial court's order of summary judgment rather than vacate the judgment only as
to those claims pertaining to the validity of Jena's will and consider, on
appeal, those claims over which the trial court and this Court had subject
matter jurisdiction.              Accordingly, point of error three is
overruled.
 
Conclusion
            The trial
courts judgment is affirmed.   
 
                                                                                    Patrick
A. Pirtle
                                                                                          Justice  




[1]John T. Boyd, Chief Justice (Ret.),
Seventh Court of Appeals, sitting by assignment.  Tex. Gov't Code Ann. § 75.002(a)(1) (West 2005).


[2]The
Winfields originally sought to "set aside" an unprobated will
allegedly executed by Jena.  The trial
court denied relief and the Winfields appealed. 
Pietsch moved to dismiss that portion of the appeal pertaining to the
unprobated will based on a lack of subject matter jurisdiction.  We agreed and on October 2, 2009, dismissed
this appeal as it pertained to the validity of that will.  Subsequent to the perfection of this appeal,
that will was admitted to probate in Cause No. 2009-191-P in the County Court
in and for Randall County.  The Winfields
did not contest the admission of that will, nor did they appeal the order
admitting it to probate.  Instead, they
maintain that they did not have actual notice of the proceedings sufficient to
contest the will when presented to the County Court.  They do not address whether they had notice
sufficient to contest the probate of that will by direct appeal, restricted
appeal, or bill of review. 


[3]Less than a scintilla exists when the
evidence is "so weak as to do no more than create a mere surmise or
suspicion" of a fact.  King Ranch, 118 S.W.3d at 751 (citing Kindred v. Con/Chem, Inc., 650 S.W.2d
61, 63 (Tex. 1983)).  More than a
scintilla of evidence exists when the evidence "rises to a level that
would enable more reasonable and fair-minded people to differ in their
conclusions."  Id. (citing Merrell Dow Pharms., 953
S.W.2d at 711)).


[4]The Winfields did not appeal the trial
court's evidentiary ruling.


[5]Limestone Const., Inc. v. Summit Commercial Indus. Properties, Inc., 143 S.W.3d 538 (Tex.App.--Austin
2004, no pet.) is of no assistance to the Winfields.  In Limestone,
a default summary judgment was
granted against Summit by operation of law. 
Id. at 540.  A new trial was subsequently granted because
Summit's attorney filed an affidavit indicating he had no prior notice of the
summary judgment motion or the hearing.  Id. 
Being a default summary judgment, the Limestone court did not apply the elements for determining whether
any evidence was newly discovered.  Id. at 544-46.  Rather, assuming the truth of the affidavit
by Summit's attorney, the Limestone
court held that it need not consider any subsequent evidence offered by
Limestone refuting the affidavit's statements because Limestone did not request
a hearing on Summit's motion for new trial.  Id. at 546-47. 
Here, assuming the truth of Menkhoff's affidavit, her affidavit still
does not offer any evidence of Jena's state of mind at or around the day she executed the general warranty deed.   


[6]At oral argument, Winfields' counsel asserted that, in
failing to bring her special exception before the trial court, Pietsch waived
any objection she might have had to the trial court and/or this Court asserting
subject matter jurisdiction over the Winfields' will challenge.  Although Pietsch waived any remedy pursuant
to her special exception before the trial court by proceeding to judgment
without bringing the special exception to the trial court's attention, this
waiver did not vest the trial court with jurisdiction, nor did it prevent her
from subsequently filing a motion to dismiss on appeal premised on a lack of
subject matter jurisdiction.  Subject
matter jurisdiction is fundamental; Federal Underwriters Exchange v. Pugh, 174
S.W.2d 598, 600 (Tex. 1943), cannot be waived; In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 642 (Tex. 2009)
(citing Alfonso v. Skadden, 251
S.W.3d 52, 55 (Tex. 2008)), and can be raised at any time.  Tex. Ass'n of Bus. v.
Tex Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).   


