Brett Johnson v. State ( 2009 )

NO. 07-09-0286-CR, 07-09-0287-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 30, 2009

______________________________

BRETT JOHNSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2009-422,579, 2009-422,665; HONORABLE BRAD UNDERWOOD, JUDGE

_______________________________

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

MEMORANDUM OPINION

          Appellant, Brett Johnson, filed a notice of appeal with this Court seeking appeal of his conviction and sentence in trial court cause numbers 2009-422,579 and 2009-422,665. On October 23, 2009, the clerk’s records in these two causes were filed with the Clerk of this Court. Neither clerk’s record contains a judgment convicting appellant in the above identified cause numbers, rather, there are orders dismissing each cause. Concluding that we have no jurisdiction to address these appeals, we dismiss them as moot.

          A threshold question in any case is whether the court has jurisdiction over the pending controversy. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996). A court has jurisdiction to determine whether it has jurisdiction. Roberts, 940 S.W.2d at 657; Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996).

          Appellate courts are prohibited from deciding moot controversies. See Ex parte Flores, 130 S.W.3d 100, 104-05 (Tex.App.–El Paso 2003, no pet.). This prohibition is rooted in the separation of powers doctrine contained in the United States and Texas Constitutions that prohibit courts from rendering advisory opinions. See Tex. Const. art. II, § 1; Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993). A case is moot when (1) a party seeks a judgment to resolve a controversy, but no controversy exists, or (2) judgment is sought on a matter which cannot have any practical legal effect on an existing controversy. Texas Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 846-47 (Tex.App.–Austin 2002, pet. denied). Because appellant seeks relief from a conviction and a sentence that was never rendered, no controversy exists in these appeals. Further, our proceeding with the appeals and rendering opinions and judgments would have no practical legal effect on any existing controversy. Thus, we conclude that the appeals have become moot and dismiss them for want of jurisdiction. See Cabrera v. State, No. 01-02-00513-CR, 2002 Tex.App. LEXIS 5604, at *1 (Tex.App.–Houston [1^st Dist.] August 1, 2002, no pet.) (memo. op.).

          Accordingly, these appeals are dismissed as moot.

                                                                           Mackey K. Hancock

                                                                                    Justice

Do not publish.

umption of community property applies to a potential recovery for personal injuries. Osborn, though, dealt with a potential recovery. Id. at 414. At the time of the Osborn parties' divorce, their personal injury lawsuit had not been tried or settled. Id. at 413. En route to its holding that the trial court erred by treating the entirety of the claims asserted in their personal injury suit as community property, the court noted that the husband Lon Osborn's potential recovery for his personal injuries was his separate property under both the Family Code and case law (citing Graham v. Franco, 488 S.W.2d at 396), noted that other potential recoveries (medical expenses, e.g.) in the parties' suit would constitute community property and finally noted that Sara Osborn's claim for damages for loss of consortium was her separate property. Id. at 414. The court further observed that until the case was tried or settled, the parties' estimates of the dollar amounts or percentages of the recovery attributable to the various claims would be entirely speculative. Id. at 415. It concluded, "Once the case is tried, the jury's answers will determine the amounts to be awarded for each type of injury. If the case is settled, Sara, as one of the plaintiffs, can participate in the allocation of damages to the different claims for damages." Id.

Osborn is not inconsistent with other case law establishing that a spouse who claims property as separate under section 3.001(3) bears the burden to establish its separate character in the same manner as that claimed as separate under sections 3.001(1) or (2). See Cottone v. Cottone, 122 S.W.3d 211, 213 (Tex.App.--Houston [1st Dist.] 2003, no pet.); Licata, 11 S.W.3d at 272; Slaton v. Slaton, 987 S.W.2d 180, 183 (Tex.App.-Houston [14^th Dist.] 1999, pet. denied); Kyles v. Kyles, 832 S.W.2d 194, 199 (Tex.App.-Beaumont 1992, no writ) (all applying presumption of community property to personal injury recoveries). Unlike the potential recovery in Osborn, we deal here with an asset acquired during marriage from the settlement of a lawsuit in which both Robert's separate property claims and community property claims were asserted and settled. The trial court here properly placed on Robert the burden to show that the annuity he claimed as separate property was obtained as a result of his personal injuries and was not compensation for lost earning capacity during marriage or medical expenses. We overrule Robert's second issue.

In his first issue, Robert argues the trial court erred in characterizing the annuity resulting from the settlement agreement as community property. Courts are barred by our state constitution from divesting a spouse of separate property when dividing their property on divorce. Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139-42 (Tex. 1977).

Courts have recognized more than one method by which a party can trace and identify the amounts of a personal injury recovery belonging to the community and separate estates. See Dale Joseph Gilsinger, Annotation, Spouse's Cause of Action for Negligent Personal Injury, or Proceeds Therefrom as Separate or Community Property, 80 A.L.R. 5th 533 (2000). If the recovery is obtained through a settlement and the settlement agreement allocates amounts to specific elements of damages, those allocations may be sufficient to overcome the community property presumption. Licata, 11 S.W.3d at 274. The same rationale is applicable to allocations established by jury answers or findings of fact supporting a judgment. See Osborn, 961 S.W.2d at 415. The parties in a divorce proceeding can also stipulate the amounts of a personal injury settlement attributable to various elements of damages. See Slaton, 987 S.W.2d at 183 n.1. In Slaton the parties stipulated what portions of a personal injury settlement were recovery for damages to the community estate. The spouses then presented evidence of their individual damages resulting from the personal injury to determine the recovery belonging to their separate estates. Id.

It is clear that the annuity in dispute here was issued as recovery for Robert's personal injuries. The parties here also agree the settlement included recovery for loss of earning capacity and medical expenses. Robert does not contend that language in the settlement documents addresses the allocation of the settlement among the damage claims he asserted. Nonetheless, pointing to the presumption that community funds are withdrawn first from a commingled fund, ⁽⁵⁾ Robert argues "the evidence reflects, conclusively, that all community interest in the fund was withdrawn and expended prior to the divorce proceeding," so the remainder of the annuity is part of his separate estate.

To identify the community interest in the settlement fund, Robert relies on the testimony that all his actual medical expenses incurred during the marriage had been paid. That evidence may permit an inference of the value of the past and future medical expense damages that Robert sought in his petition in the personal injury suit. But that evidence says little or nothing about the amount, or the proportion of the total settlement, for which the medical expense claim was settled. See Gleich v. Bongio, 99 S.W.2d 881, 883 (Tex. 1937) (ownership of marital property proportionate to consideration supplied by separate and community estates).

Although Tamela does not challenge Robert's calculation of the value of his claim for damages for loss of earning capacity during the marriage, his argument concerning the community interest in the recovery resulting from settlement of that claim suffers from the same weakness. The value Robert placed on the claim at trial of his divorce does not demonstrate the amount for which he settled it some four years before.

The record does not reflect clear and convincing evidence of the allocation of Robert's settlement among the various elements of damages he asserted. The trial court did not err in finding that Robert did not overcome the presumption that the remaining payments due under the annuity were community property. We overrule his first issue and affirm the judgment of the trial court.

James T. Campbell

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. The trial court's findings of fact state that the annuity carried minimum guaranteed payments of $3,141,400. The settlement agreement and annuity provided for Robert's designation of a beneficiary for the guaranteed payments in the event of his death before their completion.

3. The divorce decree dissolved the marriage on the ground of adultery. Robert acknowledged he had fathered two children by another woman during the marriage.

4. The semiannual annuity payments designated for the benefit of their children were excepted. Tamela was given control over the payments designated for one of the children, and Robert given control over those for the other child.

5. Under that presumption, when an account includes both separate and community funds, we presume the separate funds "sink to the bottom" and that community funds are withdrawn first. Hill v. Hill, 971 S.W.2d 153, 158 (Tex.App.-Amarillo 1998, no pet.). Where the balance did not fall below the amount shown as separate, the spouse has adequately identified the remaining funds as separate property. Smith v. Smith, 22 S.W.3d 140, 146 (Tex.App.-Houston [14^th Dist.] 2000, no pet.); Sibley v. Sibley, 286 S.W.2d 657, 659 (Tex.Civ.App.--Dallas 1955, writ dism'd w.o.j.). We express no opinion on the application of the community-out-first presumption on these facts.