


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-06-00237-CV
 
Manuel Villegas,
                                                                      Appellant
 v.
 
Heidi Henke Morse,
                                                                      Appellee
 
 

From the County Court at Law
Walker County, Texas
Trial Court No. 8080CV
 

DISSENTING Opinion





 
Villegas was sued by Morse.  The trial court
rendered an order that clearly did not dispose of all of Morse’s claims.  In
recognition that the order rendered by the trial court was interlocutory
because it did not dispose of all the claims of Morse, a majority of the Court
abated this appeal on September 13, 2006 for entry of a final judgment that did
address all of Morse’s claims against Villegas.  Villegas v. Morse, No.
10-06-00237-CV, 2006 Tex. App. LEXIS 8150 (Tex. App.—Waco Sept. 13, 2006, order)
(not designated for publication).  I dissented.  Id.  I strongly
believed that the proper disposition was to dismiss the appeal for want of
jurisdiction.  Id. at *3.
Nevertheless, the appeal was abated, and the
trial court has rendered what appears to be a final judgment and has also
denied a motion for new trial.  A second notice of appeal filed by Villegas has
now been filed and docketed as appeal number 10-06-00415-CV.  As explained
below, because we already had this appeal, which arose from the same underlying
case, the new notice of appeal should have been filed in this appeal, 10-06-00237-CV,
Villegas v. Morse, rather than being assigned a new docket number.
The proper procedure to be followed when
multiple notices of appeal from the same case are filed is an issue we have
faced before.  Pettit v. Dowell, No. 10-01-00420-CV, 2005 Tex. App. LEXIS 6355, *21 (Tex. App.—Waco Aug. 10, 2005, no pet.) (Gray, C.J., dissenting);
Texas A&M University v. Bading, No. 10-05-00139-CV (Tex. App.—Waco July 27, 2005, order) (not designated for publication); Providence Health Ctr. v.
Dowell, 167 S.W.3d 48, 61 (Tex. App.—Waco 2005, pet. filed) (Gray, C.J.,
dissenting); Duncan v. State, 158 S.W.3d 606, 607 (Tex. App.—Waco 2005,
order); In the Interest of S.H., 110 S.W.3d 53, 55 (Tex. App.—Waco 2002, no
pet.).  But due to an internal miscommunication, and operating under the belief
that the earlier filed appeal had been fully disposed of, the clerk’s office
was told that the new notice of appeal should be docketed as a new
appeal.  However, the first appeal had not been disposed of; it had only
been, over my objection that it should have been dismissed, abated.  But
because the new notice of appeal was filed in the same underlying case, it
should have been filed under the same docket number on appeal.  See
Tex. R. App. P.  12.2(c).  
After all, to get a final judgment was the
purported purpose of the abatement order rather than dismissing the earlier
appeal of the interlocutory order.  Villegas v. Morse, No.
10-06-00237-CV, 2006 Tex. App. LEXIS 8150 (Tex. App.—Waco Sept. 13, 2006, order)
(not designated for publication).  If the appeal had not been abated for
this express purpose, and instead had been dismissed for want of jurisdiction,
the filing of the notice of appeal and assigning it a new docket number would
have been consistent with what had been done before in other appeals.  But
due to the abatement order, rather than a dismissal, the earlier appeal was
still pending; so the proper thing to do now is file this second notice of
appeal under the original docket number.
A dismissal of the earlier appeal would confirm
the propriety of the arguments for dismissal in my earlier dissenting opinion
but would now make a mockery of the rules of appellate procedure.  Given the
current posture into which the majority forced these parties, I would apply the
rules by filing the new notice of appeal in the original docket number,
10-06-00237-CV, and administratively close appeal 10-06-00415-CV.  
          The notice to the parties to show
grounds for continuing this appeal, 10-06-00237-CV, would be unnecessary if the
new notice of appeal is simply filed in the proper appeal.  I believe our
docketing error should be corrected first.  Thus, I dissent to the sending of
the referenced notice.[1]
 
                                                                   TOM
GRAY
                                                                   Chief
Justice
 
Dissenting
Opinion delivered and filed January 24, 2007
Publish


APPENDIX
 
 
 
 
January 24, 2007
 
 
Steven
S. Reilley
Thompson
& Reilley, PC
600
  Travis Street, Suite 7350
Houston, TX 77002
 
RE:              Court of Appeals Number:   10-06-00237-CV
                   Trial
Court Case Number:    8080CV
 
STYLE:       Manuel Villegas
                   v.
                   Heidi
Henke Morse
 
In a
September 13, 2006 order, this Court abated this appeal for entry of a final
judgment that addressed all of Appellee’s claims.  It appears to the Court that
the trial court has entered an October 3, 2006 Order on Plaintiff’s Motion for
Default Judgment and that Appellant has filed a notice of appeal of that Order
and a December 18, 2006 order denying a new trial.
 
Therefore, the Court may
dismiss this appeal unless, within 14 days from the date of this letter, a
response is filed showing grounds for continuing this appeal.
 
Sincerely,
 
Sharri Roessler, Clerk
 
 
___________________________
By:  Nell Hegefeld, Deputy Clerk
 
CC:    Bennie
D. Rush




[1]
The notice is attached to this dissenting
opinion as an appendix.



 on the neighbor’s property without
permission.  The neighbor with the tractor said he has seen someone fitting
Williams’s description open a gate and go on the property where the car was
stuck and that the man’s vehicle was the same one that he later pulled out of
the mud that evening.
            Several days later, Waco
Police interviewed Williams, who stated that on the Saturday evening when Erica
had last been seen, he and Erica had gotten in her car, with him driving, and
they argued.  He admitted he was mad at her for going to a club.  When he
slowed the car because of traffic, Erica jumped out of the car window, and he
never saw her again.
            Kimberly Roddy, the sister
of Williams’s cousin whom Williams had asked for help with his stuck car, was
told by her mother that Williams’s girlfriend was missing.  Kimberly had also
been told that Williams had gotten stuck while fishing.  Acting on a hunch, on
May 8, Kimberly went to the property with her brother (Williams’s uncle who had
helped get his car unstuck), and they began to look around.  She saw a silver
chain, then a clump of hair.  The uncle, who was on horseback, reached the tank
area and found a decomposing body in a shallow grave.  The body was determined
to be Erica’s, based on identifying tattoos.  She had no clothing on the top
half of her body and was wearing blue jeans.
            Williams was arrested a few
days later, and at the time, he had a bag with “PCA” (a Waco company) shirts in
it.  Williams had a fresh blister on one hand; the State theorized he got it
from digging the grave.  Two abandoned vehicles were found near the grave.  A
shovel was found in one.  In the other, decomposition was found on the seat,
along with hair and tissue on the floorboard.  In the backseat were bags of
women’s and men’s clothing.  The women’s clothing was determined to be
Erica’s.  The men’s clothing included a PCA shirt, sneakers, and jeans, which
had Erica’s blood on them.  The jeans and sneakers were the same size as those
on Williams when he was arrested.  While he was incarcerated pre-trial,
Williams approached another inmate about providing him with an alibi.
            The medical examiner could
not determine the anatomic cause of Erica’s death because of decomposition, but
based on all the circumstances, he determined that she died as the result of
homicidal violence of undetermined etiology.  A forensic entomologist who
examined larvae, pupae, and maggots from her body testified that their age
coincided with her body being placed outside on May 3.
            The State’s theory was that
Williams murdered Erica on the night of April 28, took her body to his parents’
former property, with which he was familiar and where he knew there were
abandoned cars, and put her body in one of the cars.  He then returned on May 3
and partially buried her body, but his car got stuck and others thus became
aware of his presence at the location where her body was found on May 8.
            Williams argues in his first
issue that, while there may be evidence that he had something to do with her
death, there is no evidence that he had the mens rea to intentionally or
knowingly cause Erica’s death or to intentionally cause her serious bodily
injury and commit a clearly dangerous act that caused her death.  See Tex. Pen. Code Ann. § 19.02(b)(1, 2)
(Vernon 2003).  Instead, he argues, because her cause of death was unknown, he
just as well could have committed manslaughter or criminally negligent
homicide.
            A culpable mental state is invariably
proved by circumstantial evidence.  Giddens v. State, 256 S.W.3d 426,
434 (Tex. App.—Waco 2008, pet. ref’d); see Dillon v. State, 574 S.W.2d
92, 94 (Tex. Crim. App. 1978).  The jury may infer intent from any facts in
evidence that the jury determines prove the existence of an intent to kill.  Brown
v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003).  The issue on appeal
is not one of theoretical possibility, but whether, under the circumstantial
evidence, it is reasonable to infer that the defendant had the requisite culpable
mental state.  See Dillon, 574 S.W.2d at 95; see also Hooper, 214
S.W.3d at 14.
            Based on Williams’s conduct
toward Erica before her death, including their volatile relationship and his
anger for her going to a club and making her leave with him on the night of her
disappearance, and his incriminating conduct after her disappearance, a
rational juror could find, beyond a reasonable doubt, that Williams
intentionally or knowingly caused Erica’s death.  The evidence is legally
sufficient, and we overrule issue one.
            Issue two asserts that the
evidence is factually insufficient on mens rea.  The Court of Criminal
Appeals recently overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim.
App. 1996) and factual-sufficiency review.  See Brooks v. State, 323
S.W.3d 893, 895 (Tex. Crim. App. 2010).  The court held that the Jackson v.
Virginia legal-sufficiency standard is the only standard a reviewing court
should apply in determining the sufficiency of the evidence.  Id. 
Because we cannot review the evidence for factual sufficiency, and because we
have already reviewed it for legal sufficiency, we overrule issue two.
            In his third issue, Williams
asserts that the trial court abused its discretion in refusing to grant a
mistrial.  Early in voir dire by the trial court, a venireperson said that she
believed she had read that Williams was purported to be a habitual criminal and
that it might affect her ability to serve.  She did not elaborate further, and
the trial court made no comment.  No other venireperson said that he or she had
read or heard any media coverage.  The venireperson was struck for cause.
Before the State began its voir dire,
and outside the venire panel’s presence, Williams suggested that the panel be
quashed and also moved for a mistrial on the ground that the venireperson’s
statement essentially informed the panel that Williams had prior felony
convictions.  When the State suggested that the panel be asked if the
venireperson’s comment affected any of them (such as, whether any comment by
any venireperson has been affected by another’s comment), Williams asserted
that the venireperson’s “habitual” comment would be reinforced.  During the
defense’s voir dire, the issue was not broached.
            The trial court then denied
the mistrial motion, and Williams did not request an instruction to disregard. 
When a party’s first action is to move for mistrial (as opposed to an objection
or a request for an instruction to disregard), the scope of appellate review is
limited to whether the trial court erred in not granting the mistrial.  Young
v. State, 137 S.W.3d 65, 69-70 (Tex. Crim. App. 2004).
We review a trial court’s denial of a
motion for mistrial for an abuse of discretion.  See Hawkins v.
State, 135 S.W.3d 72, 76-77 (Tex. Crim. App. 2004).  A mistrial is
appropriate only for highly prejudicial and incurable errors.  Simpson v.
State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003).  “Only in extreme
circumstances, where the prejudice is incurable, will a mistrial be required.” 
Hawkins, 135 S.W.3d at 77.  In most instances, an instruction to
disregard will cure the prejudicial effect.  Wesbrook v. State, 29
S.W.3d 103, 115-16 (Tex. Crim. App. 2000).  An instruction to disregard is
presumptively inadequate only in the most blatant cases; only offensive or
flagrantly improper conduct warrants reversal when there has been an
instruction to disregard.  Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.
Crim. App. 1994).
 
Pierce v. State, 234 S.W.3d 265, 268 (Tex. App.—Waco
2007, pet. ref’d); see also Archie v. State, 221 S.W.3d 695, 699 (Tex.
Crim. App. 2007).  We must uphold the trial court’s ruling if it was within the
zone of reasonable disagreement.  Archie, 221 S.W.3d at 699.
To show that a trial court abused its
discretion by refusing to quash a venire panel, the appellant must show that
(1) other members of the jury panel heard the remark, (2) they were influenced
by it to the prejudice of appellant, and (3) that the juror in question or any
other juror who may have had a similar opinion was forced on the appellant.  Callins
v. State, 780 S.W.2d 176, 188 (Tex. Crim. App. 1989).  Assuming that other
venirepersons heard the comment at issue, nothing in the record shows that they
were influenced or, if any were influenced, that they sat on the jury.  Williams
does not show harm.  See, e.g., McGee v. State, 923 S.W.2d 605, 607-08
(Tex. App.—Houston [1st Dist.] 1995, no pet.); Nelson v. State, 881
S.W.2d 97, 101-02 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d); see also
Berkley v. State, 298 S.W.3d 712, 713 (Tex. App.—San Antonio 2009, pet.
ref’d); Bottenfield v. State, 77 S.W.3d 349, 356 (Tex. App.—Fort Worth
2002, pet. ref’d).  Without a record that supports his claim of irreparable
harm, Williams cannot show that the trial court abused its discretion in
refusing to grant a mistrial.  We overrule issue three.
            We
affirm the trial court’s judgment.
 
 
 
REX D. DAVIS
Justice
 
Before
Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion
delivered and filed February 9, 2011
Do
not publish
[CRPM]
 
