Dirk Lee Bryan v. State ( 1991 )

bryan v. State

NO. 10-90-086-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          DIRK LEE BRYAN,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

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From 220th Judicial District Court

Bosque County, Texas

Trial Court # 89-12-11369-BCCR

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O P I N I O N

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          Appellant was convicted of sexual assault, and a jury assessed his punishment at ten years in prison, probated, and a $10,000 fine. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (Vernon 1989). Points on appeal relate to the charge. The judgment will be reversed and the cause remanded for a new trial.

          Appellant objected that the charge failed to include "mistake of fact" as a defensive issue, claiming that his belief that the victim was promiscuous was reasonable and raised by the evidence. He also requested in writing that the following be submitted to the jury:

You are instructed that it is a defense to prosecution that a person through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

A reasonable belief means a belief that would be held by an ordinary and prudent man in the same circumstances as [Appellant].

Point one is that the court erred when refused to charge on mistake of fact.

          Appellant was charged with penetrating the vagina of the victim with his finger. Promiscuity is a defense to prosecution for sexual assault of a child when "the child was at the time of the offense 14 years of age or older and had prior to the time of the offense engaged promiscuously in conduct charged under Subsection (a)(2)." Id. at § 22.011(d)(1). Section 22.011(a)(2) describes the conduct with which Appellant was charged. Id. at § 22.011(a)(2).

          Mistake of fact is a defense when the defendant mistakenly "formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." Id. at § 8.02(a) (Vernon 1974). Furthermore, the defense of mistake of fact is based solely on the mistaken belief of the defendant, and the conduct of others is considered only to the extent that it contributes to that mistaken belief. Kennard v. State, 649 S.W.2d 752, 758 (Tex. App.--Fort Worth 1983, pet. ref'd).

          Upon timely request, a defendant is entitled to the affirmative submission of every defensive issue raised by the evidence. Sanders v. State, 707 S.W.2d 78, 80 (Tex. Crim. App. 1986). Therefore, because promiscuity of the victim is a defense to sexual assault of a child, Appellant was entitled to an instruction regarding his mistake of fact about her promiscuity if the evidence raised an issue about his mistake of fact.

          The victim met Appellant at a bar. On that night, she became ill in front of Appellant and her parents from drinking too much alcohol. Appellant testified that the victim told him that she had spent a weekend alone with her boyfriend and that, based on her admission, he assumed that she was not a virgin. He also claimed that he observed the victim and her sisters engage in various sexual contact with boys and that the parents apparently condoned their daughters' activities. Furthermore, Appellant's sister had asked him to get the victim and her sisters away from her house because she did not like the way they were touching each other. Appellant's sister testified that she observed the victim and a boy kissing and rubbing each other's buttocks. She said that the boy's hands were "basically [all over the victim's] body."

          Based on this testimony and the record as a whole, the evidence raised the defensive issue of mistake of fact with regard to the victim's promiscuity. Accordingly, because Appellant timely objected to the charge and timely requested the submission of the issue, he was entitled to have the jury consider the defense, and the court erred when it refused to submit an instruction on mistake of fact. Point one is sustained.

          Appellant's second point, that the court erred when it overruled his objection to the charge on promiscuity, is not reached. The judgment is reversed and the cause remanded for a new trial.

                                                                                 BOB L. THOMAS

                                                                                 Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed June 20, 1991

Do not publish

x. Civ. Prac. & Rem. Code Ann. § 14.005(b) (Vernon 2002). We review a dismissal pursuant to Chapter 14 of the Civil Practice and Remedies Code under an abuse-of-discretion standard. Allen v. Tex. Dept. Crim. Just., 80 S.W.3d 681, 682 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ).

      It is undisputed that Walp did not file this suit until thirty-six days after he received the written decision on his grievance. Walp contends that the thirty-one day limit should be equitably tolled because of his attempt to file the lawsuit in the wrong county.

      Courts apply the doctrine of equitable tolling “sparingly.” Hand v. Stevens Transp., Inc. Employee Benefit Plan, 83 S.W.3d 286, 293 (Tex. App.—Dallas 2002, no pet) (quoting Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 457, 112 L. Ed. 2d 435 (1990)). Factors to be considered in deciding whether this doctrine should be employed are: (1) lack of actual notice of the filing requirement; (2) lack of constructive knowledge of the filing requirement; (3) plaintiff’s diligence; (4) absence of prejudice to the defendant; and (5) plaintiff’s reasonableness in remaining ignorant of the filing requirement. See id. (citing Jobe v. INS, 238 F.3d 96, 100 (1st Cir. 1999)).

      There are really two filing requirements at issue here. The first is the 31-day limit established by section 14.005(b). Walp was plainly aware of this requirement. The second is the mandatory venue provision of section 15.019 of the Civil Practice and Remedies Code which provides in pertinent part, “[a]n action that accrued while the plaintiff was housed in a facility operated by or under contract with the Texas Department of Criminal Justice shall be brought in the county in which the facility is located.” Tex. Civ. Prac. & Rem. Code Ann. § 15.019(a) (Vernon 2002).

      Walp contends that his suit did not “accrue” until he received notice that his grievance was denied. Thus, he contends that Walker County is the county of proper venue. However, “a cause of action accrues . . . when ‘the wrongful act effects an injury.’” Lubbock County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (quoting Computer Assocs. Intl., Inc. v. Altai, Inc., 918 S.W.2d 453, 461 (Tex. 1996)). The fact that an inmate must first pursue this claim through the prison system’s inmate grievance system does not alter the time or location in which the “wrongful act” occurred. See id. (cause of action against county for reimbursement accrued when alleged overpayment made to county, not after claim has been rejected following presentment to commissioners court).

      Walp is presumed to know the law. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 n.3 (Tex. 1990); Dewhurst v. Gulf Marine Inst. of Tech., 55 S.W.3d 91, 97 (Tex. App.—Corpus Christi 2001, pet. denied). Therefore, Walp is charged with constructive knowledge of the mandatory venue requirement. See Bank One Tex., N.A. v. Ameritrust Tex., N.A., 858 S.W.2d 516, 521 (Tex. App.—Dallas 1993, writ denied). Walp’s status as a pro se litigant does not change this. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Goss v. Bobby D. Assocs., 94 S.W.3d 65, 69 (Tex. App.—Tyler 2002, no pet.); Giddens v. Brooks, 92 S.W.3d 878, 880-81 (Tex. App.—Beaumont 2002, pet. denied); Foster v. Williams, 74 S.W.3d 200, 202 (Tex. App.—Texarkana 2002, pet. denied).

      At least one court has determined that the filing of a lawsuit in a county of improper venue does not support a request for equitable tolling. See Heart Hosp. IV, L.P. v. King, 116 S.W.3d 831, 836-37 (Tex. App.—Austin 2003, pet. filed).

      We also note that Walp could have been more diligent in filing his suit. He acknowledges that he received notice from the Walker County district judge on August 13 that his suit should be filed in Liberty County. However, he did not mail his petition to the Liberty County district clerk until six days later. Walp had three days in which to revise his petition and send it to Liberty County to meet the 31-day requirement. While his conduct does not amount to a gross lack of diligence, his delay is a factor the court may have considered in declining to equitably toll the 31-day requirement. See Hand, 83 S.W.3d at 293.  

      In light of the foregoing, we cannot say that the trial court abused its discretion by denying Walp’s request to toll the 31-day requirement of section 14.005(b). See Allen, 80 S.W.3d at 682; Hickson, 926 S.W.2d at 398. Accordingly, we overrule Walp’s first point.

      We need not address the remainder of Walp’s points. We affirm the judgment.

FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Affirmed

Opinion delivered and filed March 10, 2004

[CV06]