Opinions Released August 17, 2017

Garcia v. State, No. 13-15-00527-CR (Memorandum Opinion by Justice HInojosa; Panel Members: Chief Justice Valdez and Justice Longoria)

In this appeal from a conviction for felony DWI, the Thirteenth Court of Appeals reviewed alleged violations of the Michael Morton Act.

Joe Henry Garcia was indicted for driving while intoxicated with two or more prior convictions for the same offense. During trial, the court admitted the dash-cam video from Garcia’s arrest, and Garcia did not object. In the video—which was played for the jury—Garcia told the arresting officer that he had four prior DWIs. Garcia’s counsel objected after this portion of the video played, and approached the bench to inform the judge that his copy of the video did not have audio at that point. The State responded that they were under the impression Garcia had a working copy of the video, and that the State had used the same technology and original file to burn a copy for the defendant as they had used to burn a copy for the jury. Nonetheless, Garcia moved for a mistrial based on the jury having been told of Garcia’s four prior prejudicial convictions. The State responded that the information was relevant because the State was required to prove at least two DWI convictions as part of the felony offense, and Garcia refused to stipulate to his two prior convictions. The trial court overruled Garcia’s objection, but allowed Garcia’s counsel time to review the video before playing the remainder of the tape for the jury. The State later admitted copies of the judgments from two of Garcia’s DWI convictions into evidence without objection.

The jury found Garcia guilty, and the court sentenced him to ten years’ confinement.

Garcia appealed, challenging the State’s failure to provide his counsel with full discovery in violation of the Michael Morton Act.

Held: There was no evidence that Garcia requested compliance with the Michael Morton Act. Moreover, the evidence of Garcia’s prior DWI convictions was admissible, and the trial court did not abuse its discretion by denying a mistrial on this basis. The judgment was affirmed.

Garcia argued that the State failed to provide full discovery under Texas Code of Criminal Procedure article 39.14—i.e., the Michael Morton Act—and that this failure prevented Garcia from guarding against the disclosure of his incriminatory remarks. The Thirteenth Court of Appeals noted that the trial court was not given an opportunity to review the tape for admissibility, but was only asked to grant a mistrial after the allegedly prejudicial footage had been played for the jury. A mistrial is only warranted in “extreme circumstances” where the prejudicial effect of the evidence cannot be cured. The trial court’s failure to grant a mistrial was reviewed for an abuse of discretion.

Under the Michael Morton Act, the State was required to provide evidence in its custody or control upon the defendant’s request. However, the record did not demonstrate that Garcia ever made such a request. Moreover, the State had no affirmative duty to produce evidence already known to the defendant. Here, the prejudicial evidence challenged by Garcia was his own statement to law enforcement. Thus, the trial court did not err by refusing to grant a mistrial.

The Thirteenth Court also noted that there was no discovery order in the case. Yet, even if there had been a discovery order, there was no evidence of prosecutorial misconduct to support exclusion of the video as a violation of the order. Rather, the State represented that it believed Garcia had a working copy of the dash cam video.

In a footnote, the court further added that Garcia did not raise a Brady violation. The State’s duty to produce material evidence favorable to the accused exists regardless of whether or not the defendant makes a request for such information. However, Garcia’s prior convictions were neither exculpatory nor impeachment evidence. Thus, Brady did not apply.

In sum, Garcia’s challenges regarding the failure to provide adequate discovery in the case were overruled.

The Thirteenth Court then addressed the admissibility of the statements captured in the dash cam video. The State was not prohibited from admitting evidence of Garcia’s prior convictions for DWI because such convictions were elements of the felony offense. Texas courts have held that a defendant may stipulate to prior DWI convictions in such a scenario to avoid the admission of prejudicial evidence, but Garcia refused to do so in this case. Similarly, any prejudice caused by Garcia’s statements on the video was attenuated by the State’s later admission—without objection—of Garcia’s prior judgments of conviction.

Thus, the trial court’s judgment was affirmed.

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In re L.L.O., No. 13-16-00644-CV (Memorandum Opinion by Justice Longoria; Panel Members: Chief Justice Valdez and Justice Hinojosa)

In this appeal from an order modifying a father’s child support obligation to $0, the Thirteenth Court of Appeals analyzed whether the father demonstrated a material and substantial change sufficient to justify the modification.

The underlying case centered around L.L.O., a child. In 2008, M.R. and E.O.—L.L.O.’s mother and father, respectively—signed an acknowledgement of paternity and filed the acknowledgment with the bureau of vital statistics. In 2015, a judge entered a custody order naming M.R. as managing conservator with the right to designate L.L.O.’s primary residence, and designating E.O. as possessory conservator. E.O. was ordered to pay $350/month in child support, and the parties were instructed to come to a mutual agreement regarding E.O.’s visitation. Both parties had counsel during this SAPCR.

Later, E.O. filed a petition challenging his acknowledgment of paternity. When E.O. attempted to serve M.R. at the address where she received child support payments, he was told that M.R. lived in Mexico and came to the listed address in Texas only on the weekends. E.O. obtained an order authorizing substituted service from the trial court and left copies of the relevant documents at M.R.’s Texas address. However, M.R. did not appear in court.

E.O. then moved to modify his child support payments, reciting that M.R. had taken L.L.O. to Mexico. E.O. asked to be permitted to stop paying child support or to pay it into the court registry until M.R. returned and complied with the court’s order. Over the Attorney General’s objection, the trial court entered a temporary order directing E.O. to continue paying child support but ordering the Attorney General not to distribute the funds to M.R.

The Attorney General then moved for traditional summary judgment, arguing that E.O.’s petition was time-barred. The trial court addressed all pending motions at once. The court denied the Attorney General’s motion for summary judgment, granted E.O.’s motion to modify and ordered that E.O. pay $0 in child support. Although the trial court had previously indicated that it would grant E.O.’s motion for genetic testing and writ of attachment if M.R. did not appear, it did not address or enter a formal order on these issues.

The Attorney General appealed, arguing that the trial court erred by denying its motion for summary judgment and by modifying E.O.’s child support.

Held: The court of appeals lacked jurisdiction to consider the Attorney General’s summary judgment. Regardless, E.O. failed to provide evidence of a material and substantial change in circumstances sufficient to support the modification of his support obligation. Thus, the trial court’s judgment was reversed.

Summary Judgment on Statute of Limitations

The Attorney General first challenged the trial court’s failure to grant its motion for summary judgment. However, the Thirteenth Court of Appeals held that it could not consider the issue. The court reiterated that a summary judgment is an interlocutory order, and absent a statutory provision to the contrary, an appellate court has no jurisdiction over an order denying summary judgment—at the interlocutory stage or after a trial on the merits. The party should asset its challenge to the final judgment, rather than the interlocutory order.

Modification of Child Support

Next, the Attorney General asserted that the trial court abused its discretion by modifying E.O.’s child support to $0/month.

The Thirteenth Court of Appeals reviewed the trial court’s order for an abuse of discretion. The trial court could modify E.O.’s child support if there was a material and substantial change in circumstances, and modification was in the best interests of the child. The Attorney General argued that the trial court’s findings were supported by insufficient evidence, and the Thirteenth Court of Appeals agreed.

The trial court issued findings of fact holding that the circumstances had materially and substantially changed because M.R. was “secreting the child” to Mexico and telling others that E.O. was not L.L.O.’s father. E.O. further testified—and the trial court found—that M.R. was intentionally avoiding returning to the United States because she was aware of E.O.’s attempt to have genetic testing performed. The trial court held that a variance from the general percentage guidelines was in the best interests of the child because E.O. had not been allowed any contact or time with L.L.O., and because M.R. had taken the child to Mexico to avoid genetic testing.

The Thirteenth Court first noted that several of the trial court’s findings were supported by nothing more than E.O.’s counsel’s opening statement. For example, E.O.’s counsel mentioned a comment M.R. made at the time of her divorce from E.O., and the trial court relied on this comment for its finding that M.R. told someone E.O. was not L.L.O.’s father. Similarly, the finding that E.O. had no visitation with L.L.O. was only addressed in E.O.’s counsel’s opening statement.

Moreover, M.R. had the exclusive right to designate L.L.O.’s primary residence, and there was no evidence that E.O. tried to find L.L.O. and visit the child. Nor was there evidence showing when M.R. moved to Mexico. Thus, there was no support for the allegation that M.R. moved to Mexico in response of E.O.’s attempt to have genetic testing performed. The move itself did not constitute a change in circumstances, nor did E.O.’s desire to have genetic testing. To the extent that the move may have changed the parties’ financial circumstances, E.O. did not bear his burden to present evidence of the historical and current finances.

In sum, there was no evidence of a material and substantial change, and the trial court erred by modifying E.O.’s child support to $0. The trial court’s judgment was reversed.

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