In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.
Anderson v. State, No. 13-15-00430-CR (Memorandum Opinion by Justice Perkes; Panel Members: Justices Benavides and Longoria)
In this direct appeal, Anderson challenged (1) the trial court’s refusal to hear his motion for a directed verdict, and (2) the court’s admission of extrinsic evidence to prove that a prior assault conviction—used to enhance his charge—was perpetrated against someone who qualified as a family member at the time.
Adam Anderson assaulted his then-girlfriend in 2008, while the two were dating. The incident resulted in a 2012 conviction for misdemeanor assault.
Anderson later married the victim, he and assaulted her again in October and December of 2014. Anderson went to trial on one count of continuous assault family violence as well as two counts of third-degree felony assault family violence.
The latter two assault family violence charges were enhanced from Class A misdemeanors to third-degree felonies based on the State’s showing at trial that Anderson had a prior 2012 conviction for assaulting a family member. The prior conviction was for generic assault rather than assault family violence. The State thus introduced evidence of the 2012 conviction, then called Anderson’s wife to testify that she was dating him at the time of the assault leading to such conviction. Under Texas law, a person in a dating relationship qualifies as a family member for purposes of assault family violence. Anderson denied the assault, but he admitted that he was dating the victim at the time of the alleged incident.
After the State finished its case-in-chief, the defense moved for a directed verdict. The court however, insisted that such motions were permitted only at the close of the evidence and instructed the defense to call its next witness. Anderson then testified.
At the close of the evidence, Anderson again moved for a directed verdict, arguing that the State failed to prove a prior conviction for assault family violence. The court denied the motion, and the jury found Anderson guilty on all counts. Anderson appealed.
Held: Anderson failed to preserve error regarding the trial court’s refusal to hear his motion for a directed verdict. Furthermore, the trial court did not err by admitting extrinsic evidence to prove the nature of Anderson’s 2012 assault conviction. The trial court’s judgment was affirmed.
Anderson first challenged the trial court’s refusal to hear his motion for directed verdict at the end of the State’s case-in-chief. Anderson claimed such refusal shifted the burden to the defense and forced him to testify because he did not know the court’s opinion of the State’s case. However, Anderson did not object to the trial court’s refusal to hear his motion. Thus, Anderson did not preserve error.
Furthermore, a motion for directed verdict challenges the legal sufficiency of the State’s evidence. Such a challenge can be asserted at the end of the trial and on appeal, regardless of the trial court’s actions. Moreover, Anderson’s choice to testify was his own, and he could not attribute his decisions about presentation of the evidence to the trial court’s failure to hear his motion.
Assault Family Violence
Anderson next argued that the trial court erred by admitting extrinsic evidence to prove that his 2012 conviction for assault was committed against a person defined as a family member in the Penal Code—namely, Anderson’s then-girlfriend. The Thirteenth Court noted however, that the statutory text does not exclude the use of extrinsic evidence. Thus, the trial court did not err by allowing the victim to testify regarding her relationship with Anderson at the time of the assault giving rise to his 2012 conviction.
Having rejected both of Anderson’s arguments, the Thirteenth Court affirmed the trial court’s judgment.
Burks v. Lehmberg, No. 13-16-00382-CV (Memorandum Opinion Per Curiam; Panel Members: Chief Justice Valdez, Justice Rodriguez, and Justice Benavides)
In this direct appeal from a dismissal, the Thirteenth Court explained why appellant Lamar Burks could not extend his appellate timeline by requesting findings of fact and conclusions of law.
Lamar Burks filed a pro se lawsuit under the Texas Tort Claims Act against the Travis County District Attorney and two Assistant District Attorneys in their individual capacities. The defendants filed a motion to dismiss as well as a plea to the jurisdiction, asserting various grounds for immunity. The trial court held a non-evidentiary hearing and granted both motions on April 13, 2016, dismissing the case. Burks filed a request for findings of fact and conclusions of law on April 29, 2016, followed by a notice of appeal on June 27, 2016.
Held: Burks’ request for findings of fact and conclusions of law did not extend the appellate timeline, and thus his notice of appeal was untimely. The appeal is dismissed for want of jurisdiction.
Generally, a notice of appeal must be filed within thirty days of the appealable order or judgment. If the appellant files a request for findings of fact and conclusions of law the timeline is extended, and the notice of appeal is due within ninety days of the appealable order. However, this extension is only available if such findings of fact and conclusions of law are either required by Texas Rule of Civil Procedure 296 (i.e., in a trial to the court without a jury), or if the trial court conducts an evidentiary hearing. Here, Burks filed a request for findings, but the underlying proceeding was neither a trial to the court nor an evidentiary hearing. Thus, the trial court was under no obligation to issue findings of fact and conclusions of law, and Burks’ request for such did not extend the appellate timeline. Consequently, Burks’ notice of appeal was untimely.