                                                                               ACCEPTED
                                                                          03-14-00708-CV
                                                                                 4249886
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                     2/23/2015 3:08:10 PM
                                                                        JEFFREY D. KYLE
                                                                                   CLERK
                CAUSE NO. 03-14-00708-CV

                                                         FILED IN
                                                  3rd COURT OF APPEALS
      IN THE COURT OF APPEALS FOR THE            THIRDAUSTIN, TEXAS
                JUDICIAL DISTRICT                 2/23/2015 3:08:10 PM
                  AUSTIN, TEXAS                     JEFFREY D. KYLE
                                                          Clerk



                    KARLA MERRICK,

                                        Appellant

                             v.

BONNIE HELTER, Individually and as Independent Executor of
         the Last Will and Testament of J.C. Cole, Deceased
                                         Appellee.
_________________________________________________________


   APPELLANT KARLA MERRICK’S REPLY BRIEF
_________________________________________________________



        From the Probate Court #1, Travis County, Texas



                                  PAUL M. BOHANNON
                                  Bohannon Legal PLLC
                                  8300 FM 1960 West, Ste. 450
                                  Houston, Texas 77070
                                  281.798.7466
                                  281.254.7914 Fax
                                  Paul@BohannonLegal.com
                                  SBN 02563500




                                                                 1
           IDENTITIES OF PARTIES AND COUNSEL

         The following is a list of all parties to the trial court’s Final

Judgment in the underlying proceeding, together with the names and

addresses of all counsel in accordance with Texas Rule of Appellate

Procedure 38.1(a):

Appellant/Plaintiff

Karla Merrick

Counsel for Appellant/Plaintiff

Paul M. Bohannon
Bohannon Legal PLLC 8300
FM 1960 West, Ste. 450
Houston, TX 77070

Appellee/Defendants

Bonnie Helter, Individually and as Independent Executor of the Last
Will and Testament of J.C. Cole, Deceased

Counsel for Appellee/Defendant

Alex R. Tandy, Esq.
Scott Phillips
Law Office of Alex R. Tandy, PC.
777 Lonesome Dove Trail, Ste. A
Hurst, TX 76054-6018




                                                                             2
                           TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ................................ 2

TABLE OF CONTENTS ................................................................. 3

ABBREVIATIONS .......................................................................... 4

REPLY ARGUMENT AND AUTHORITIES ................................. 6

Reply 1. Appellee’s Argument Regarding the Texas Estate Code

Converts the Two-Fold Exception into a Singular Exception to the

Testator’s Rights ............................................................................... 6

Reply 2. Coercing One’s Child to Silence is a Further Step Against

Public Policy ..................................................................................... 9

CONCLUSION ................................................................................ 9

PRAYER ........................................................................................ 10

INDEX OF AUTHORITIES .......................................................... 12

CERTIFICATE OF COMPLIANCE.............................................. 13

CERTIFICATE OF SERVICE ....................................................... 13




                                                                                                   3
                           ABBREVIATIONS

Parties:

           “Merrick” refers to Karla Merrick, who was the sole child and

sole natural bounty of the Deceased.

           “Helter” refers to Bonnie Helter, Individually and as

Independent Executor of the Last Will and Testament of J.C. Cole. She

was the Deceased’s half-sister.

           “Deceased” refers to Karla Merrick’s father, the testator in this

case.

Documents:

           “Will” refers to the Deceased’s Last Will and Testament,

dated November 23, 2013, executed on his death bed. (CR: 5)

Record References:

           Citations to the Clerk’s Record are in the form of .. CR [pg.

no.]

           Citations to the Reporter’s Record are in the form of.. RR [pg.

no.]

Hyperlinks

           All references or citations underlined are hyperlinked to the

documents in either Lexis or the internet. Depending upon your

                                                                           4
software, the Lexis links may or may not automatically open. Where a

citation is followed by “Appendix”, that reference is to a copy of the

document in the Appendix. These references are not hyperlinked

internally.




                                                                         5
             REPLY ARGUMENT AND AUTHORITIES

          Appellee’s Brief, in summary, seeks comfort in one very

general proposition:

          1. Only the Texas legislature can establish public policy for

the State, implemented by specific statute.

          2. The Texas Estate Code gives unfettered ability to a testator

to bequeath its property as the testator sees fit.

Appellant Merrick respectfully submits that both propositions are

inappropriately generic, resulting in significant changes in Texas public

policy of the nature that citizens and the legislature would disdain.

 Reply 1. Appellee’s Argument Regarding the Texas Estate Code
 Converts the Two-Fold Exception into a Singular Exception to the
                       Testator’s Rights

          The law in Texas, since at least 1908 in Perry v. Rogers, 52

Tex. Civ. App. 594, 597, 114 S.W. 897, 899 (no writ), has been that a

testator in Texas – even a rapist – can do what it wants with its will –

subject, however, to two fundamental limitations: A testator cannot, by

use of the will, implement or solicit a violation of law. For example, if a

testator imposed a gifting condition that a beneficiary were to received a

gift of a million dollars if the beneficiary killed someone, that clause

would be unenforceable. I submit that Appellees do not contest this


                                                                            6
exception. Hence, Appellees tacitly if not expressly accept Perry v.

Rogers.

          Appellee’s statutory argument regarding the public policy

exception cleverly disguises a change in Texas law that has stood for

over 100 years.

          Appellee argues that public policy is established by the

legislature. We agree with that as a first step. Appellee, however, seeks

to lure the Court into abolishing the public policy exception by arguing

that it is the legislature who must change the statute to protect

inheritance rights of children sexually abused by their fathers. Stated

another way, Appellees suggest that Appellant Merrick should become a

galvanizing icon to facilitate the legislature’s attention to the situation –

thereby allowing Helter to tuck the $15 million inheritance into her

purse and ignore the sins that have happened.

          This is wrong – legally wrong. If the only way public policy

applies is by specific statutory provision, then there is only one

exception: a violation of statute. Hence, public policy is no longer an

exception to the testator’s gifting privileges.

          Appellees, hailing from Nebraska, chortle at the multitude of

Texas statutes declaring a public policy against sexual crimes, including

                                                                                7
indecency with a child. Those statutes have no relevance to this case,

they suggest. It makes no difference that Texas has declared, through

many statutes, that sexual indecency with a child – for that matter, even

rape – is against the law. Absent a very specific factual statute, parents

can have their way with their children in Texas.

          Appellees’ argument on page 5 of their brief argues that the

Tex. Est. Code Ann. § 251.002 is absolute: a testator can gift as it sees

fit. Period. Hence, Appellees argue that the Texas Legislature has

sanctioned solicitation and commitment of crimes through the use of

wills. If the statute is absolute (contrary to earlier cited cases), then the

legislature has declared that you can include a bequest conditioned on

killing someone.

          Appellees continue to point to In re Burt’s Estate, 169 A.2d 32

(Vt. 1961) for the proposition that a thoroughly bad man may make a

valid will. Yet In re Burt’s Estate does not state that one can violate the

law or contravene public policy. In fact, the case focused on whether

being mean or of violent character restricted his gifting ability. The

court did not consider whether the will exclusion implemented a

violation of law or of public policy.



                                                                                8
 Reply 2. Coercing One’s Child to Silence is a Further Step Against
                          Public Policy

          Appellees adroitly avoid discussion of the coercion argument.

Texas provides no statute of limitations for indecency with a child. Tex.

Code Crim. Proc. art. 12.01. Deceased’s fraudulent and coercive

conduct against his child, seeking to punish her for confrontation, is

repulsive. More to the point, such conduct could be a tool to avoid

criminal prosecution even at the latter point in his life. Appellees decry

Merrick’s failure to withstand the drunken violence, gun threats, and

beatings to come forward against her father. These are typical

arguments against a victim that has held her outcry inside her heart.

They also are factual arguments advanced to this Court by Appellees in

defending an Order of Dismissal.

          Allowing this type of coercion enables sexual, incestuous

predators to hide from prosecution. And that would be against public

policy.



                            CONCLUSION

          The essential question before this Court is whether it is against

public policy to perpetrate incestuous indecency with a child. If so, the

                                                                             9
Order of Dismissal was improvidently granted. The case should

proceed to trial.

                                PRAYER

          WHEREFORE, PREMISES CONSIDERED, Petitioner Karla

Merrick respectfully prays that this Honorable Court:

          A. Reverse the decision of the Trial Court;

          B. Remand the case to the Trial Court for further proceedings

             consistent with its opinion;

          C. Hold that as a matter of law, it is the public policy of the

             State of Texas that incestuous indecency with a child is

             contrary to the public policy of the State of Texas;

          D. Hold that as a matter of law, it is against the public policy

             of the State of Texas for a parent to use its last will and

             testament as a coercive tool to silence its child about acts of

             indecency with the child.




                                                                            10
E. Costs and such other and further relief as this Honorable

   Court may deem just and proper.



                     PAUL M. BOHANNON




                     Bohannon Legal PLLC
                     8300 FM 1960 West
                     Ste. 450
                     Houston, Texas 77070
                     281.798.7466
                     281.254.7914 Fax
                     paul@BohannonLegal.com
                     SBN 02563500




                                                               11
                                INDEX OF AUTHORITIES


Cases

In re Burt’s Estate, 169 A.2d 32 (Vt. 1961) ............................................. 8

Perry v. Rogers, 52 Tex. Civ. App. 594, 597, 114 S.W. 897, 899 (no writ)
  .......................................................................................................... 6, 7

Statutes

Tex. Code Crim. Proc. art. 12.01 ............................................................. 9

Tex. Est. Code Ann. § 251.002................................................................ 8




                                                                                                             12
                CERTIFICATE OF COMPLIANCE

         COMES NOW the Appellant Karla Merrick and hereby

certifies that this document contains 914 words.

                   CERTIFICATE OF SERVICE


      THIS WILL CERTIFY that undersigned counsel served the

foregoing document on Defendants Bonnie Helter Individually and as

Executor of the Estate of J.C. Cole, by delivery to opposing counsel of

record, Alex R. Tandy, Esq., by EServe this February 23, 2015.




                               PAUL M. BOHANNON



                               Bohannon Legal PLLC 8300 FM 1960
                               West, Ste. 450 Houston, Texas 77070
                               281.798.7466
                               281.254.7914 Fax
                               paul@BohannonLegal.com
                               SBN 02563500




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