Michael Anderson v. Thomas Snoddy ( 2015 )

ACCEPTED
06-14-00096-cv
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
5/26/2015 4:11:56 PM
DEBBIE AUTREY
CLERK
NO. 06-14-00096-CV
__________________________________________________________________
FILED IN
6th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT, TEXARKANA,
TEXARKANA, TEXAS
TEXAS 5/27/2015 8:58:00 AM
__________________________________________________________________
DEBBIE AUTREY
Clerk
MICHAEL ANDERSON
Appellant,
v.
THOMAS SNODDY
Appellee.
__________________________________________________________________
On Appeal from Cause No. 548-12
In the 115th Judicial District Court of Upshur County, Texas
Honorable Lauren Parish, Presiding Judge
__________________________________________________________________
APPELLANT’S BRIEF
__________________________________________________________________
Jonathan Wharton
SNOW E. BUSH, JR., P.C.
Texas State Bar No. 24075764
420 N. Center Street
Longview, TX 75601
Tel. (903) 753-7006
Fax (903) 753-7278
jonathanwharton1@sbcglobal.net
ATTORNEY FOR APPELLANT
MICHAEL ANDERSON
May 26, 2015
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellant
lists the following parties affected by this appeal, and their respective appellate and
trial counsel:
Appellant: Michael Anderson
Jonathan Wharton
Snow E. Bush, Jr., P.C.
420 N. Center Street
Longview, TX 75601
903.753.7006
Fax 903.753.7278
jonathanwharton1@sbcglobal.net
Trial and Appellate Counsel for Michael Anderson
Appellee: Thomas Snoddy
L. Charles Van Cleef
P.O. Box 2432
Longview, TX 75606-2432
903.248.8244
Fax 903.248.8249
charles@vancleef.pro
Trial and Appellate Counsel for Thomas Snoddy
1
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
2
INDEX OF AUTHORITIES
STATUTES
Tex. Code Crim. Pro., Art. 17.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. Code Crim. Pro., Art. 17.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Code Crim. Pro., Art. 17.141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
Tex. Occ. Code § 1704.051 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. Occ. Code § 1704.052 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Tex. Occ. Code § 1704.105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Occ. Code § 1704.151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Tex. Occ. Code § 1704.154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
RULES
Tex. R. Crim. Evid. 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Tex. R. Evid. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 39
Tex. R. Evid. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Tex. R. Evid. 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Tex. R. Evid. 405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Tex. R. Evid. 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32, 37
Tex. R. Evid. 613 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
3
Tex. R. Evid. 801 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35
Tex. R. App. P. 44.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
CASES
Anderson v. Snider, 808 S.W.2d 54 (Tex. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Aranda v. State, 736 S.W.2d 702 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . . 31
Brown v. Russell, 703 S.W.2d 843 (Tex. App.—Ft. Worth 1986, no writ) . . . . . . 36
Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d 689 (Tex. App.—
Dallas 2008, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Del Carmen Hernandez v. State, 273 S.W.3d 685 (Tex. Crim. App. 2008) . . . . . . . 33
Ferguson v. State, 97 S.W.3d 293 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32, 34
Fibreboard Corp. v. Pool, 813 S.W.2d 658 (Tex. App.—Texarkana 1991, writ denied)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
In re Ford Motor Co., 988 S.W.2d 714 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . 42
Ho v. State, 171 S.W.3d 295 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) . 40
Moreno v. State, 900 S.W.2d 357 (Tex. App.—Texarkana 1995, no pet.) . . . . . . 37
Quintero v. Citizens and S. Factors, Inc., 596 S.W.2d 277 (Tex. Civ. App.—Houston
[1st Dist.] 1980, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Republic Waste Services, Ltd. v. Martinez, 335 S.W.3d 401 (Tex. App.—Houston
[1st Dist.] 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Smith v. State, 919 S.W.2d 96 (Tex. Crim. App.1996) . . . . . . . . . . . . . . . . . . . . . . 45
4
State v. Wilemon, 393 S.W.2d 816 (Tex. 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Stew. v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . 40
Sw. Bell Tel. Co. v. Vollmer, 805 S.W.2d 825 (Tex.App.—Corpus Christi 1991, writ
denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Thomas v. State, 811 S.W.2d 201 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 45
Will. v. State, 332 S.W.3d 694 (Tex. App.—Amarillo 2011, pet. denied) . . . . 42
5
STATEMENT OF THE CASE
This suit was filed for breach of contract, breach of fiduciary duty, fraud, and
tortious interference with prospective business relationships. CR 32-37. After a jury
trial, a verdict for the defense was returned. CR 67-74. The court rendered a take-
nothing judgment based on that verdict. CR 81-82.
REQUEST FOR ORAL ARGUMENT
Because the fact pattern is complex and the issues presented are uncommon,
the court’s decisional process would benefit from oral argument.
ISSUES PRESENTED
1. Is cross-examination on prior inconsistent statements limited to identical
questions and statements; that is, must the current statement and the prior
inconsistent statement be responsive to the same exact question?
2. Is the trial court permitted to instruct the jury that an attorney’s cross-
examination is “improper impeachment”?
3. Were the judgments nisi offered by the Appellant relevant?
4. Should the Appellant have been permitted to cross-examine the Defendant on
the factors that determine whether a partnership exists?
5. May a witness testify that a “party” accused of misconduct has never been
underhanded in business before?
6. Did the combined effect of the errors in the trial harm Appellant?
6
STATEMENT OF FACTS
Michael Anderson began bounty hunting part-time in the 90s during college.
3 RR 34 & 37. He met Gary Roberts, a private investigator, around 1996. 3 RR 30.
After working with Mr. Roberts for about a year and a half, Mr. Anderson became a
police officer and then enlisted in the army. 3 RR 33-34. In 2005, after eight years in
Iraq, he came back to the states and began doing bounty hunting again. 3 RR 36-37.
Four years later, in 2009, he got a call from Mr. Roberts saying that there is a bail
bond office that could use his help. 3 RR 37-38.
Mr. Roberts had been offered a partnership in Gilmer, Texas. 3 RR 30-31.
Thomas Snoddy told Mr. Roberts that he had a bail bond office and they would split
profits fifty/fifty. 3 RR 30. Mr. Roberts did not have enough time to devote, so he
turned the partnership offer over to Mr. Anderson. 3 RR 31-32.
Mr. Anderson went to meet Mr. Snoddy. 3 RR 38. Mr. Snoddy said that his
Upshur County office was not making any money, so he would rather bring someone
else in as a partner. 3 RR 38. Mr. Snoddy would show Mr. Anderson how the
business works. 3 RR 38. Mr. Anderson would do the daily work and Mr. Snoddy
would provide the financial backing necessary to sign off on bonds. 3 RR 40-41. Mr.
Snoddy did not say anything about someone else owning the business or the
arrangement being anything other than a partnership. 3 RR 38-39.
7
The business was named Fast Action Bail Bonds. Mr. Anderson began signing
for bonds in December of 2009. 3 RR 38. On average, Fast Action Bail Bonds would
have six to eight hundred thousand dollars in outstanding bonds, with at most $1.2
million. 3 RR 41. Per their agreement, Mr. Anderson sent Mr. Snoddy approximately
$76,000 over the course of their two-and-a-half-year business relationship. 5 RR 164.
Mr. Snoddy assured Mr. Anderson that he was financially backing the business. 3 RR
42.
In 2011, Mr. Anderson received a strange phone call from a man who
introduced himself by first name only. 3 RR 42-43. “Harold” told Mr. Anderson that
he, Harold, was the owner of the business. 3 RR 119. That raised some obvious
questions for Mr. Anderson.
At the same time, Mr. Anderson discovered some troubling information about
Fast Action’s financial status with the sheriff’s office. Mr. Anderson had been
attending legislatively-mandated bail bond law courses. 3 RR 45-45; Tex. Code Crim.
Pro., Art. 17.10(b). There, he learned how sureties maintain their eligibility to work
in a county.
Certain counties are regulated by bail bond boards. In larger counties, a bail
bond board must be created. Tex. Occ. Code § 1704.051. Smaller counties may
choose to create their own as well. Tex. Occ. Code § 1704.052. The bail bond board
8
licenses bail bondsmen that are eligible to work in the county. Tex. Occ. Code §
1704.105. Only licensed bondsmen may act as a surety in the county. Tex. Occ. Code
§ 1704.151. The licensing requirements are strict, including an application in which
the bondsman executes nonexempt property in trust to the board to satisfy forfeitures.
Tex. Occ. Code § 1704.154.
Upshur County is not a bail bond board county. 3 RR 46. By law, the judge in
each case is supposed to require evidence proving that the surety can satisfy any
possible forfeiture. Tex. Code Crim. Pro., Art. 17.11, Sec. 1. In practice, the trial
court does not examine the surety’s net worth in every case. Instead, the sheriff
creates a list of pre-approved bondsmen who have shown to him that they are
financially sound. 3 RR 46-47; Tex. Code Crim. Pro., Art. 17.141. There is a
requirement for the sureties, though: “Each surety listed under this article must file
annually a sworn financial statement with the sheriff.” Tex. Code Crim. Pro., Art.
17.141.
Mr. Anderson’s concerns led him to request the financial statements on file
with the Upshur County Sheriff. 3 RR 48. He found out that there were no current
statements. 3 RR 48. Fast Action Bail Bonds’ only record was a 2006 fax from
“Snoddy Bail Bonds” with a financial statement from 2003 for a man named Gerald
Todd. 3 RR 48; Plaintiff’s Exhibit 21. This discovery was made in 2012, so the one-
9
year time period listed in Tex. Code Crim. Pro., Art. 17.141 had more than expired.
3 RR 50. Not only that, but the business (Snoddy Bail Bonds) was different than Fast
Action Bail Bonds, and the financial records were for a man named Gerald Todd that
Mr. Anderson had never heard of. 3 RR 51.
At that point, Mr. Anderson realized that he had signed on a million dollars of
bonds without proper financial backing. 3 RR 52. Mr. Snoddy’s name was not signed
to any of the bonds, nor was his name on any document filed in Upshur County. 3 RR
52. Even the assumed name certificate for Fast Action Bail Bonds, which Michael
Anderson had filed on the advice of Mr. Snoddy, did not list Mr. Snoddy as having
any involvement in the business. Defendant’s Exhibit 1; 3 RR 195-96.
Mr. Anderson broke off his business relationship with Mr. Snoddy. 3 RR 54-
55; Plaintiff’s Exhibit 2. In response, Mr. Snoddy transferred the Fast Action Bail
Bonds telephone numbers from Mr. Anderson’s office to his own. 3 RR 57. Verizon’s
records showed that from August 14, 2007, until August 13, 2012, the telephone
numbers in question (903-843-9814 and 903-843-4900) had “Fast Action Bail
Bonds” as the subscriber. Plaintiff’s Exhibit 25 at 2. After the breakup between Mr.
Anderson and Mr. Snoddy, the subscriber became “Bad Boys Bail Bonds,” one of Mr.
Snoddy’s other businesses. Plaintiff’s Exhibit 25 at 2. The phone transfer entirely
stopped Mr. Anderson’s business until he could get a replacement, as his business
10
comes in by phone. 3 RR 63-64. Nevertheless, he obtained new numbers and
continued running the business on his own. 3 RR 56.
After the instant suit was filed for failing to provide a surety and wrongfully
transferring the phone lines, Mr. Snoddy forwarded the phone lines to a gentleman
by the name of Barry Lovely. 4 RR 20-21. Mr. Lovely was a bondsman who worked
out of Harrison County.1 4 RR 142. Nevertheless, he began taking bail bond business
through the Upshur County phone numbers. 4 RR 138. According to one witness, a
bus driver called Norman Chism, Mr. Lovely was answering the telephone lines as
“Michael Anderson.” 3 RR 204-206. The advertisements that were in the newspaper
showed Mr. Anderson’s name and picture for the business, so it behooved him to
answer as the advertised individual. Plaintiff’s Exhibit 20.
Mr. Chism called the number, which was answered by “Michael Anderson.”
3 RR 206. He set up a meeting with “Michael Anderson” at the Taco Bell because
“Michael Anderson” did not have an office in Gilmer. 3 RR 206-07. Mr. Chism then
walked to the advertised address for Fast Action Bail Bonds and met the actual
Michael Anderson. 3 RR 207. Mr. Chism told what happened to Mr. Anderson, who
showed up at the Taco Bell along with Mr. Lovely, and there was an argument. 3 RR
67-68.
1
At the time of trial, Mr. Lovely worked at Schlotzky’s, a sandwich shop. 4 RR 123.
11
Mr. Lovely did not deny that he received the phone call: he was even able to
identify Mr. Chism’s race over the phone as African American. 4 RR 139. Mr. Lovely
testified to a similar course of events as Mr. Chism:
He call me, he say, hey, Barry, is this Barry, I got your money, I was told
to bring you some money. He says where is your office. I say I don’t
have a office in Gilmer. I say I’m coming out of Longview now. He say
where can I meet you. I say, well, meet me at Taco Bell. . . . And when
I got to Taco Bell Mr. Anderson was there.
4 RR 147. The primary difference is that Mr. Lovely denied impersonating Mr.
Anderson and he presented the call as a set-up instead of a genuine customer call. 4
RR 151-52.
Mr. Snoddy denied any knowledge about the impersonation except that it was
“child’s games” being played by Mr. Anderson. 4 RR 29. He asserted that it was a
set-up. 4 RR 29. He contended that he personally owned the phone numbers and he
could do what he wanted with them. 4 RR 92.
As far as the breach of the partnership agreement, Mr. Snoddy’s response was
that he was not a partner but simply a consultant. 4 RR 19. He denied offering a
partnership to Gary Roberts or Michael Anderson. 3 RR 291-92. Mr. Snoddy
maintained that there was a surety for the business. Yet when there were bond
forfeitures, the business itself would pay them from its profits: the alleged surety
would not pay. 4 RR 30-32. Documents he generated said that he received 50% of the
12
profits from the business; 35% of that 50% (or 17.5% of the total profits from the
business) was sent to the surety. Plaintiff’s Exhibit 5. Yet Mr. Snoddy did not know
who the surety was. In deposition, Mr. Snoddy claimed that Harold Stein was the
surety for Fast Action Bail Bonds. 3 RR 327. Mr. Snoddy said that Mr. Stein owned
the business. 3 RR 269-70. Mr. Snoddy said that he sent all the surety payments to
Mr. Stein. 3 RR 270. Mr. Snoddy also denied knowing who Gerald Todd is. 3 RR
327. He said that he did not know Gerald Todd’s address, phone number, he did not
know how he was paid, and he did not even know if he was paid to be a surety. 4 RR
30. Mr. Snoddy did not list Gerald Todd as a person with knowledge of relevant facts.
4 RR 51-52. Mr. Snoddy claimed to have no knowledge about the financial statement
from Gerald Todd that was sent to the Upshur County Sheriff.4 RR 52. He did not
know who sent the fax. 4 RR 52. Mr. Snoddy said that it could have been Mr. Stein
that sent it from Mr. Snoddy’s office. 4 RR 83-84.
Mr. Stein testified that he was not the owner or surety for Fast Action Bail
Bonds. 3 RR 270-271. He has not acted as a surety in over twenty-five years. 3 RR
216. At his deposition, he denied any knowledge about the structure of Fast Action
Bail Bonds. 3 RR 224. He claimed to have no idea what the case was about. 3 RR
224. He had never even been in a business relationship with Mr. Snoddy. 3 RR 218.
His only business dealing in Upshur County was to advertise some phone numbers
13
because he has a broker business in Dallas in which he sometimes refers people to a
bondsman in Upshur County. 3 RR 285 at 3-12.
Gerald Todd was not listed as a witness by either party and he was not called
at trial. CR 38 & 57. In cross-examining Mr. Anderson, after only Gary Roberts had
testified, Mr. Snoddy’s attorney prepared a chart that showed Gerald Todd as the
surety for Fast Action Bail Bonds. 3 RR 116-123. Mr. Stein then testified that Gerald
Todd was the surety for Fast Action Bail Bonds. 3 RR 221. In response to a question
about whether he has any documentation for his assertion, he said that “I didn’t know
he was involved until you showed me that chart [prepared by the Defendant’s
attorney].” 3 RR 226 at 2-10; 3 RR 116-123 (creation of chart). Mr. Stein said that
he (Mr. Stein) worked for a company called “Surety Company.” 3 RR 218. The
company received payments, not Harold Stein; when Mr. Stein denied ever receiving
checks for the surety in his deposition, he meant that he did not receive the checks
personally: “Surety Company” received the checks. 3 RR 248. According to Mr.
Snoddy, Gerald Todd would be the effective surety for the business, even if Mr. Todd
did not know that they were using his financial statements, as long as the financial
statements were at the sheriff’s office. 4 RR 33-34.
Neither Mr. Snoddy nor Mr. Stein brought checks or other proof of payment
to trial. 3 RR 294. Sum total, Mr. Snoddy’s records reflected payments of
14
approximately $27,000 to the alleged surety (35% of the $76,500 sent to Mr.
Snoddy). 5 RR 164; Plaintiff’s Exhibit 5. Mr. Snoddy said that he could not
remember what account he sent the money to; he said sometimes he sent checks,
sometimes cash. 4 RR 6. Either way, he no longer has any bank records reflecting
payments. 4 RR 7. His banker disagreed, stating that the records were in fact
available to Mr. Snoddy. 4 RR 219. The checks had been requested in discovery, to
which Mr. Snoddy responded that “I do not have these, I am not even sure payments
were made by check.” 3 RR 293.
According to Mr. Snoddy’s attorney, the lawsuit arose because Mr. Anderson
does not understand “everything that goes on behind this because this is a high, high
finance business. It’s not a hot dog stand, okay. . . . It’s more like an insurance
company than a hot dog stand and that’s how it’s being presented to you is a hot dog
stand. I don’t understand where the hot dogs come from, who made the hot dogs. The
evidence is going to show that it’s not that simple and that even as we stand here
today Mr. Anderson and Mr. Wharton who I get along with famously do not
understand the business.” 3 RR 22-23. “Mr. Anderson would have you believe that
as the sack boy at Brookshire’s it’s important that he know the name and address of
the owners of the Brookshire’s grocery store company. That’s not the way it works.”
3 RR 22.
15
The jury returned a verdict that Mr. Anderson and Mr. Snoddy did not enter
into a partnership agreement, Mr. Snoddy had not committed a fraud, and neither Mr.
Snoddy nor Mr. Lovely tortiously interfered with Mr. Anderson’s business. CR 67-
74. The trial court rendered a take-nothing judgment based on that verdict. CR 81-82.
SUMMARY OF THE ARGUMENT
The trial court’s interruptions, admonitions, and limitations on the plaintiff’s
cross-examination of the defense witnesses were improper. The scope of cross-
examination is relevance: inquiry is allowed into any relevant matter. Certain
procedures must be followed when impeaching a witness with prior inconsistent
statements and a predicate must be laid before introduction of extrinsic evidence of
the prior inconsistent statement. But those procedures do not mean that an attorney
can only cross-examine a witness on a prior statement if the prior statement was made
in response to the same exact question.
The trial court’s instruction to the jury that the defense witnesses had not been
impeached was a comment on the weight of the evidence. No objection was made at
the time, but the comments were incurable and thus no objection was necessary to
preserve them.
The trial court’s exclusion of the judgments nisi as irrelevant was erroneous.
The judgments nisi proved that the plaintiff was personally sued by the county for
16
bond forfeitures, even though he had been promised that there was a surety covering
the forfeitures.
The trial court sustained an objection to cross-examination of the defendant on
his understanding of partnership property law. The objection was that the question
called for a legal conclusion. In fact, there is no limitation on the use of law during
cross-examination (so long as the law is correct), except that witnesses must provide
the factual basis for any conclusion they draw under the law.
The trial court overruled an objection to Harold Stein testifying that he is
unaware of Barry Lovely ever doing anything underhanded in business. That is
improper character evidence.
These errors were harmful and reversible individually. Their combined effect
was to probably cause the rendition of an improper judgment.
17
ARGUMENT
I. Improper Impeachment
A. Introduction
During the plaintiff’s examinations of Harold Stein, Barry Lovely, and Thomas
Snoddy, the trial court continuously interrupted to admonish the plaintiff’s attorney
for “improper impeachment.” 4 RR 109-110. The trial court would make statements
such as, “How many times am I going to have to tell you, if you ask the proper
question and he doesn’t answer it truthfully or he answers it differently than he’s
asked before, that’s impeachment.” 4 RR 110-11. Initially, no objection was made by
the Defendant’s attorney: the court would sua sponte interrupt to admonish the
plaintiff’s attorney against impeachment. 3 RR 221. After several such interruptions,
the Defendant’s attorney began actively objecting. 3 RR 273; 4 RR12-13.
The first time the trial court interrupted, the plaintiff’s attorney was questioning
Harold Stein. 3 RR 221. Harold Stein had just announced that Gerald Todd was the
surety for Fast Action Bail Bonds. 3 RR 221.
Q: Have you ever told anyone about this before today?
A: No one’s ever asked me that question I don’t believe.
Q: Okay. So this is basically a—a—I have never been directly asked
whether Gerald Todd—okay.
THE COURT: I mean, that—wait. Wait. Wait. Mr. Wharton, if
you’re going to impeach the witness, that’s not proper impeachment. If
you’ve got something in a deposition that’s impeachable material, that’s
18
one thing, but that’s improper.
MR. WHARTON: Yes, Your Honor.
Q: Okay. You’ve never—you never told me about this in a
deposition, right?
A: No, sir, I’m not sure you ever asked me, Jonathan.
THE COURT: Are you saying you asked it, Mr. Wharton, because
like I said that’s not proper impeachment.
MR. WHARTON: I see what you’re saying I guess, Your Honor.
Q: Okay. You—you told me in your deposition that you don’t know
the structure of the Fast Action Bail Bond Business in Upshur County,
didn’t you?
A: You know, I haven’t read my deposition. I never got a chance to
see that. I don’t recall what I said to you.
Q: Okay. So if I asked you what’s—
THE COURT: Let’s do this the right way.
MR. WHARTON: Yes.
THE COURT: You got a page and a line. You identify that so Mr.
Van Cleef can also find it. You bring it up here and let the witness read
it and then you ask the question.
MR. WHARTON: Yes, ma’am.
THE COURT: Read it silently, the witness.
MR. WHARTON: And may I—
THE COURT: You can approach.
MR. WHARTON: May I start by asking the question though, the
underlying question—
THE COURT: Sure. I think you did but if you didn’t, go ahead.
MR. WHARTON: Okay. So do you know the structure of the Fast
Action Bail Bond business in Upshur County?
THE COURT: Okay. Don’t answer. I mean, I think you need to
bring that up.
MR. WHARTON: Okay. I’ll bring it up. You’ve already—you’ve
already said no to that or you already said yes, it’s Gerald Todd or
whatever.
THE COURT: Mr. Wharton, I don’t think that’s what he said.
3 RR 221-23.
19
The improper impeachment issues continued in the plaintiff attorney’s re-direct
examination of Harold Stein. On direct, Mr. Stein said that he was a bail bond broker,
meaning that he refers clients that need a bond to a bondsman. 3 RR 216. He
advertises telephone numbers, and when the calls come in, he refers the callers to a
bondsman for a fee. 3 RR 216. In Mr. Snoddy’s cross-examination, he stated that he
actually does another kind of brokerage: “we get sureties to be surety.” 3 RR 236-38.
He testified that he connects young bondsmen with sureties that will provide them
with advice and financial assistance. 3 RR 238-39. This testimony was transforming
Mr. Stein from his apparent position before trial, which was the man Mr. Snoddy
claimed was the surety but who maintained that he had nothing to do with the
business, into the person who had supplied Mr. Snoddy with a good and effective
surety. Mr. Snoddy’s attorney came up with an explanation for his failure to mention
this new role in the business: “Mr. Wharton didn’t ask you about the other kind of
brokerage you do, did he?” 3 RR 236. As a result, the plaintiff’s attorney began cross-
examining Mr. Stein on his failure to mention the claims that were surfacing at trial:
Q: Okay. So you’re saying that the Surety Company was the surety,
quote, you call Surety Company, right?
A: Yes, sir.
Q: And I—and have you ever done—let’s see here. And what
did—what did the, quote, unquote, Surety Company do in relation to
these businesses in East Texas? There are more than one, right?
A: They provided people to put up financial statements to write bail
20
bonds.
Q: Okay, so when I asked you in—
MR. WHARTON: Let me approach, Your Honor.
THE COURT: Is this his deposition?
MR. WHARTON: It is, Your Honor.
Q: And on page 14, line 23, I began, I say: The name of the company
was Surety Company and your answer was yeah, yeah, it was just a
company that had set up, Mr. Smith was involved and he had all
throughout East Texas and Thomas somehow, I’m not sure how Thomas
took over for Mr. Smith, but he took over for them where they were
individual bail bondsmen and we would supply—
THE COURT: Slow down. Slow down.
MR. WHARTON: I apologize, Your Honor.
Q: Where there were individual bondsmen and we would supply
them clients or send them referral business and a Mr. Cathey—
MR. VAN CLEEF: Your Honor, this is not—I’m sorry, I don’t
want to miss an opportunity to object but because I don’t know what
we’re doing. This is not a question.
THE COURT: I’m not sure.
MR. VAN CLEEF: Improper impeachment.
THE COURT: It’s not proper impeachment. So if you—okay.
MR. VAN CLEEF: I object. This is improper impeachment.
THE COURT: I’ll sustain to that if that’s what you’re trying to do
and I’m not sure what it is that you’re claiming is despair between the
deposition and the testimony today but you need to clarify that and then
you need to show the witness a deposition and let him read the questions
and the answers and then you can go into what you were doing if that’s
where you’re going.
Q: Did you tell me anything about this or surety brokerage stuff at
the deposition?
A: I don’t recall if you asked me.
Q: When I asked you about the Surety Company, did you tell me?
Did you—did you—what did you—when you—what you told me was
this—was that you were—that you were bail bond broker and what
Surety Company does is take the bail bond business and refer it to
bondsmen. Didn’t say anything—
A: That—that’s one thing. Absolutely.
21
Q: Nothing, nothing about all this brokerage referral stuff, nothing
like that.
A: You never did ask me that, Jonathan.
Q: Okay. But when I asked you about Surety Company and what it
does—
A: I told you exactly what Surety Company did. What you asked me,
I answered your question directly.
Q: You just—I guess at that time didn’t think it was important to
mention any of this other stuff.
THE COURT REPORTER: Slow down.
THE COURT: Again, this is—why don’t you let me see the
deposition question because if you ask the witness that question that
you’re asking him now and he didn’t answer it, that’s proper
impeachment. But if you just ask the question—
MR. WHARTON: I’ll give you—
THE COURT: —that calls for a specific answer which he answered,
you cannot impeach him from that now. I’m, you know, in the dark here
because I don’t have a deposition.
MR. WHARTON: I can just, see, we can read the deposition at some
point.
THE COURT: Well, I don’t think so not unless it’s proper
impeachment. Let me see the deposition and the question and I’ll read
it silently.
MR. VAN CLEEF: I have a copy. The Court can just hold onto
this.
THE COURT: Just tell me, Mr. Wharton, just tell me what page and
what line and I’ll read the question.
MR. WHARTON: Okay.
THE COURT: I’ve got it. I’ve got it.
MR. WHARTON: Okay. From 14 to 15, page 14 and 15.
THE COURT: The whole, the whole pages.
MR. WHARTON: Yes.
THE COURT: Okay. Mr. Wharton, which question is it you want
me to focus on that you asked specifically where it would be what are
all the duties or whatever all do you do and you don’t have to—I’ve got
it so you can tell me what line.
MR. WHARTON: Your Honor, in response—
22
THE COURT: Not in the response, I’m talking about what question
was it that you asked him because that’s what’s important is the question
that you asked him. So what question is it?
MR. WHARTON: It was a preceding a narrative, Your Honor. So it
wasn’t—it wasn’t in response to a direct question. He’s talking about
what the business does, what they do in relation—we’re asking about
Fast Action Bail Bonds and the Surety Company and what they do and
his response doesn’t indicate anything about this referral.
THE COURT: Again, I’m going to ask you one more time: What
question, what is the question on line what that you asked him?
MR. WHARTON: It’s not a question, it’s in the answer.
THE COURT: Okay. Well, that’s not a proper impeachment.
3 RR 272-76.
These interruptions and rulings were not purely procedural: the impact on the
jury was clearly understood by the parties at the time. The Defendant’s attorney
specifically asked the court “to let the jury know that that was not an impeachment,”
and the court obliged. 4 RR 14 at 15-21. That request was made again later in the
trial. 4 RR 25 at 21-25. The court would regularly instruct the jury that the plaintiff’s
attorney’s cross-examination was “not impeachment.” 4 RR 128 at 23-25.
During one objection, the Defendant’s attorney was allowed to interrupt the
plaintiff’s cross-examination to “voir dire” the witness under the rule of optional
completeness because of the plaintiff’s attorney’s “improper impeachment.” 4 RR 22-
29. The plaintiff’s attorney was cross-examining the Defendant on the issue of Barry
Lovely’s impersonation of Michael Anderson. 4 RR 21. The Defendant had testified
23
in his deposition that “Mr. Anderson has been having people call his phone number
trying to get him to say that he’s Michael Anderson or basically trying to set the guy
up.” 4 RR 29 at 7-17. At trial, Mr. Snoddy denied claiming that the phone calls asking
for Mr. Anderson were a set-up. 4 RR 21-22. When the plaintiff’s attorney began to
read the deposition to Mr. Snoddy, the defense attorney objected to impeaching him:
“Once again that was an impeachment procedure and there was no impeachment.” 4
RR 22 at 21-22. The trial court agreed, and the defense attorney was then told that he
can read the deposition testimony if he would like “under the rule of optional
completeness since it was not read.” 4 RR 26 at 1-6. The defense attorney was then
allowed, during the plaintiff’s attorney’s cross-examination, to read the deposition
testimony, word for word, out loud to the jury. 4 RR 29. That was the very same
deposition testimony that the court would not allow the plaintiff’s attorney to use. 4
RR 22-26.
In another instance, Barry Lovely testified that Mr. Snoddy would call him
when transferring the phone lines to him. 4 RR 129-30. In his deposition, he said that
he did not know when the phone numbers were transferred to him. 4 RR 132-33. The
trial court refused to allow the questioning because “It’s got to be the same question.”
4 RR 133.
The trial court would also interrupt to “clarify” points for the defense
24
witnesses. One defense theory was that Mr. Snoddy owned the phone lines, not Mr.
Anderson, and he would not have given valuable phone lines to someone for no
money. 3 RR 26-27. Yet Mr. Lovely testified that he was transferred the phone lines
without paying Mr. Snoddy anything. 4 RR 133-34. Immediately following one of the
trial court’s instructions that “it’s got to be the same question,” this colloquy took
place:
Q: So you say that you didn’t pay Mr. Snoddy for transferring the
phone line to you.
A: You didn’t ask me that question awhile ago.
Q: I’m asking you, this is the question.
A: Occasionally. I mean, he have a phone, he have a phone number.
Occasionally. That’s his phone number. He transferred the number to me
occasionally, the bill have to be paid.
Q: Okay. I’m not asking about the bills, I’m saying you didn’t pay
him to transfer the number to you, that’s what you’re—that’s what
you’re—that’s what you’re saying, right, you didn’t pay him?
A: I thought you just asked me, I said I didn’t pay him for the phone
bill, for the phone number.
Q: I’m not asking about the bill, sir.
A: I’m not understanding, sir.
Q: I’m asking did you pay him to transfer the phone line to you.
THE COURT: What do you mean by transfer?
MR. WHARTON: I—when it’s diverted from—
THE COURT: Like a—
MR. WHARTON: From a—
THE COURT: Kind of like a call forwarding, is that what you
mean?
MR. WHARTON: Maybe. I mean...
THE COURT: Well, I think—the reason I say that is because
there’s been a lot of different words passed around from both—both
parties and there’s two different things that can be happening as I see it
25
and I’m not—I don’t know what the witnesses understand, but I think
if you-all would clarify what your question is it might make it easier on
the witnesses and I’m not sure what the question is, if it’s a forwarded
call or talking about the transferring the account, giving the phone
number to someone, like transferring the ownership of that phone
number versus transferring—that’s what I’m asking so just clarify your
question, what it is your asking.
MR. WHARTON: Yes, ma’am.
4 RR 134-135. After several pages of questioning about the nature of the transfer to
clarify the point for the court, the plaintiff’s attorney returned to the issue of payment
for the transfer of the phone line:
Q: And you’re saying you’ve—you pay the phone bill when it’s
transferred to you.
A: I don’t think I said that.
Q: Okay. Are you saying that?
A: When he transfer the number to me I think I said the phone bill
has to be paid and I never did say I pay the phone bill.
Q: Okay. Do you pay the phone bill?
A: I don’t know if I do or I don’t. I know—I don’t know if I do or I
don’t. He never have gave me a bill and say, hey, pay the bill.
Q: Okay. So who knows, maybe you pay the bill, maybe you don’t,
is that, okay, is that what you’re saying?
A: I know the phone bill is still active so I know somebody pays it.
A: Okay.
MR. VAN CLEEF: Object to the sidebars, Your Honor.
THE COURT: I’ll overrule it.
Q: So you’re not paying Snoddy, Mr. Snoddy for the phone, you’re not
paying—you didn’t pay him to transfer—to forward the phone to you is
what—right?
A: I think that’s what I said awhile ago, sir.
4 RR 137-38.
26
There were additional interruptions, admonitions and instructions during the
cross-examination of Barry Lovely:
Q: All right. Mr. Lovely, according to you, you don’t know why Mr.
Snoddy transferred you the phone number.
A: I don’t know why he transferred me the phone numbers?
Q: That’s my question.
A: The number was transferred because I was doing bonds.
Q: All right. So you’re doing bonds, but you don’t know why. I
mean, the—lot of people doing bonds, right, sir?
A: I assume.
Q: And so but you don’t know why he transferred those phone lines
to you, right?
A: I think I just answered your question when I said I was doing
bonds.
Q: Did he ever—let me—let me ask it this way: Did he ever explain
why he transferred the phone number to you?
A: To do bonds.
Q: Okay. So you remember the deposition we did, it was on August
th
20 of 2013, right?
MR. VAN CLEEF: I need a page and line, please.
MR. WHARTON: Okay.
Q: It was page—page 15, line 2. I’m going to go through this. My
understanding, I’m going to do this so, okay. So you understand—you
remember the—that the date, August 20th, 2013?
A: I don’t remember the date. I know I was in your office for a
deposition, I don’t remember the date it was on.
Q: Okay. Can you—do you see the date on this?
A: Yes, uh-huh.
Q: Okay. What does that say?
A: It says August the 20th, 2013.
Q: Okay. And I was there, right?
A: Yes.
Q: Okay. We asked you a bunch of questions.
A: Yes.
Q: Okay. And I’m going to show you line 2, page 15.
27
A: Okay, I see what you’re saying.
Q: Okay. Do you change your answer?2
THE COURT: What’s the question?
MR. WHARTON: The question was: Did he ever—did Mr. Snoddy ever
explain why he transferred the phone line to you?
THE COURT: Okay. And the answer on the deposition was?
MR. WHARTON: Okay. So I’m allowed—I can read it?
THE COURT: Yes. Yes, you can do that but you just have to do the things
leading up to it which you’ve done so you can do that.
Q: Okay. Okay. Did he ever explain why he transferred that number
to you. And the answer was: I never did say we had a conversation about
it. We transferred it. I said it’s his number. He has the right to transfer
it if he don’t want to transfer it.
MR. VAN CLEEF: Your Honor, that is not the question that Mr.
Wharton asked this witness. This is improper impeachment. He asked the
witness if you ever have a conversation with him. He said no. That’s not what
this—this doesn’t say yes.
THE COURT: I’ll agree. It doesn’t so—
MR. VAN CLEEF: I would ask the jury—
THE COURT: And—okay. The jury will be instructed that that’s not
impeachment, but just go ahead, just move along, Mr. Wharton.
MR. WHARTON: Yes, ma’am.
THE COURT: Getting bogged down.
4 RR126-29.
Eventually it became clear that the trial court would not allow inquiry into
inconsistent statements unless the questions preceding the statements were identical.
The court would instruct the plaintiff’s attorney that he had to announce the page and
line to opposing counsel, show the witness the deposition, allow him to read it, and
then read it out loud. 4 RR 222. But when the plaintiff’s attorney would begin to ask
2
The trial court had previously instructed the plaintiff’s attorney to let the witness read the
deposition testimony before reading it out loud. 3 RR 324 at 1-5.
28
a question, the court would interrupt to say “Okay. Don’t answer. I mean, I think you
need to bring that up.” 4 RR 223. The court would refuse to read the witness’s answer
when determining whether the line of questioning was proper: her concern was only
with whether the questions asked in the deposition and at trial were identical. 3 RR
275-76. At one point, the plaintiff’s attorney began asking the court how
impeachment was supposed to proceed:
MR. VAN CLEEF: Judge, I have to object. When he walks up and
acts like he’s going to—he’s got my client under oath and different
things and it’s got to stop.
THE COURT: I’m going—
MR. WHARTON: How am I going to—
MR. VAN CLEEF: May I finish? He’s telling him to read like four
questions or three questions or two questions. He is not asking the same
question and coming up and showing it to him and then asking him
about that question. He’s asking—
THE COURT: I know.
MR. VAN CLEEF: —two or three and I can’t have that.
MR. WHARTON: Your Honor, how—if he says—he says I didn’t use
the word child games and he used the word child games how am I’m
supposed to do that? I just—I’m trying—
THE COURT: As long—
MR. WHARTON: —to follow your rules.
MR. VAN CLEEF: It’s a bad question.
THE COURT: As long as it’s in the same context it’s not a problem.
MR. WHARTON: So how do I introduce it? How do I—how do I—I’m
trying to follow your ruling.
THE COURT: Let me see it.
MR. WHARTON: Five to fourteen, I believe 14 he says child’s games.
He specifically says Anderson trying to set him up and he specifically
calls it child games.
THE COURT: I’m sorry, did you tell me the wrong page? Did I just
29
miss it?
MR. WHARTON: I believe.
THE COURT: Started here?
MR. WHARTON: I believe so. Mr. Anderson has been having people
call trying to set him up. That’s what he said and then he said he called
it child’s games. Those are specific—
THE COURT: I’m looking for that.
MR. WHARTON: I believe it’s 14, 14 says child games. I don’t—I
don’t know—
THE COURT: Well, okay, this is—
MR. VAN CLEEF: It’s not the same question.
THE COURT: Thing is, my understanding of the original question
was that he made these comments in reference to Mr. Lovely and Mr.
Anderson, and Mr. Anderson basically calling it child games or he
calling Mr. Anderson’s conduct or something child games or setup, but
this is a different context that he’s talking about. He’s talking about
getting phone calls himself and, you know, I mean, bottom line is if
you’ve got something that is—that is distinct contrast in the question
that you’re asking, but your question’s got to be right and it’s got to be
on point. If it’s a little, you know, if it’s a little contextual difference
then it’s not impeachment.
4 RR 22-25.
Barry Lovely testified that Mr. Snoddy called him when transferring the phone
lines to him. 4 RR 130. In Mr. Lovely’s deposition, he said that “he doesn’t know
when it’s transferred.” 4 RR 133. Cross-examination on the inconsistency was not
allowed because the questions were not the exact same. 4 RR 133. The plaintiff’s
attorney would maintain to the court that the questions do not have to be identical, but
to no avail:
MR. VAN CLEEF: It’s got to be the same question.
30
THE COURT: It’s okay. It’s got to be the same question.
MR. WHARTON: I can’t—it doesn’t have to always be the exact same
question.
THE COURT. Well, I’m going—I’m going to sustain your
objection. That’s not proper impeachment.
4 RR 133. After the court’s ruling, Barry Lovely became so bold as to announce,
“That’s what I was saying all along from the deposition. I’ve been saying it all
along.” 4 RR 133.
B. Law
“The rule of admissibility of evidence of prior inconsistent statements should
be liberally construed and the trial judge should have discretion to receive any
evidence which gives promise of exposing a falsehood.” Aranda v. State, 736 S.W.2d
702 (Tex. Crim. App. 1987). “The [prior inconsistent statement] rule is not as
complicated as it looks.” Ferguson v. State, 97 S.W.3d 293, 296 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d). “When examining a witness about the
witness’s prior inconsistent statement—whether oral or written—a party must first
tell the witness: (A) the contents of the statement; (B) the time and place of the
statement; and (C) the person to whom the witness made the statement.” Tex. R. Evid.
613(a). “If the witness’s prior inconsistent statement is written, a party need not show
it to the witness before inquiring about it, but must, upon request, show it to opposing
counsel.” Tex. R. Evid. 613(b). “A witness must be given the opportunity to explain
31
or deny the prior inconsistent statement.” Tex. R. Evid. 613(c). Finally, “Extrinsic
evidence of a witness’s prior inconsistent statement is not admissible unless the
witness is first examined about the statement and fails to unequivocally admit making
the statement.” Tex. R. Evid. 613(d).
The rule has two concerns: first, it sets up procedures that must be followed
when examining the witness on a prior inconsistent statement (giving the witness an
opportunity to review and explain the statement); and second, it creates a predicate
that must be laid before extrinsic evidence of the statement is admitted. Ferguson v.
State, 97 S.W.3d 293, 296 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). In this
case, no extrinsic evidence was ever offered, as the witnesses universally admitted to
making the prior statements.
The rule contains a limitation on the admissibility of impeachment evidence,
not a limitation on the scope of cross-examination. See Ferguson v. State, 97 S.W.3d
293, 297 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). The scope of cross-
examination is relevance. Tex. R. Evid. 611(c) (“A witness may be cross-examined
on any relevant matter, including credibility.”). In Ferguson, the witness admitted to
making an inconsistent statement, but the cross-examiner moved to introduce
extrinsic evidence of the statement anyway. Id. at 295-97. The trial court sustained
the objection to the extrinsic evidence, but also ordered counsel not to “go into” the
32
contents of the statement. Id. at 295. That was erroneous: counsel should have had the
liberty to cross-examine the witness on the contents of the statement. Id. at 297.
In fact, the rule that properly limits the use of out-of-court statements is the
hearsay rule. Traditionally, introduction of prior consistent statements was referred
to as “bolstering.” Thomas v. State, 811 S.W.2d 201, 208 (Tex. App.—Houston [1st
Dist.] 1991, pet. ref’d). The prior consistent statement was offered to prove that the
in-court testimony was more likely credible because it had been unwavering. Courts
disallowed the bolstering as hearsay. Id. Under the common law, prior inconsistent
statements were only admissible for impeachment purposes. Tex. R. Evid. 801(d); see
Del Carmen Hernandez v. State, 273 S.W.3d 685, 688-89 (Tex. Crim. App. 2008).
The theory of attack by prior inconsistent statements is not based on the
assumption that the present testimony is false and the former statement
true but rather upon the notion that talking one way on the stand and
another way previously is blowing hot and cold, and raises a doubt as to
the truthfulness of both statements.
Del Carmen Hernandez, 273 S.W.3d at 689 (quotations omitted).
The rules have changed, though. Id. (applying the at-the-time new Tex. R.
Crim. Evid. 801(e)(1)(C)). If a hearsay objection is made, counsel must explain his
theory for admissibility, be it that the statement is not offered for the truth of the
matter asserted but rather for impeachment purposes only (which could be
accompanied by a limiting instruction), it is a prior inconsistent statement under oath
33
per Rule 801(e)(1)(A)(i), it is an admission of a party-opponent per Rule 801(e)(2)
(in the case of Mr. Snoddy’s statements), it is a statement made in a deposition in the
same proceeding per Rule 801(e)(3) (in the case of every question about the
deposition statements), or one of the other multitude of exceptions to the hearsay rule.
Counsel could also lodge an objection based on relevance or unfair prejudice or
another established rule of evidence. Tex. R. Evid. 401 & 403. There was not even
a hearsay objection made to the plaintiff’s cross-examination, presumably because
defendant’s counsel knew that every one of the statements inquired into would fit an
exception to the hearsay rule.
Other than hearsay limiting unsworn statements by a witness (that is not a
party-opponent) outside of a deposition, there is no rule that cross-examination is
limited to inconsistent statements. See Ferguson v. State, 97 S.W.3d 293, 297 (Tex.
App.—Houston [14th Dist.] 2003, pet. ref’d) (“But it was error if the trial court
prevented any further questions about any part of the statement. . . . The trial court
had discretion to prevent impeachment with every sentence in the nine-page
statement, but not to limit cross-examination to the whole document rather than
portions of it.”). That rule would be a significant change in trial procedure: every time
a witness is asked about a statement he has made, counsel could object that the
statement is not inconsistent. It is difficult to fathom what the purpose of such a rule
34
could be, given that the common-law prohibition against bolstering has been
abrogated, at least as far as deposition testimony is concerned. Tex. R. Evid.
801(e)(3). In this trial, it served primarily as a source of interruption and distraction.
If the statements are truly consistent, then there is no “impeachment,” improper or
otherwise: the cross-examination would have effected a bolstering of the witness’s
testimony. The rule applied by the trial court would limit the use of prior inconsistent
statements to only the most effective cross-examinations. The procedures set up in
Rule 613 do not do that: they only give the witness an opportunity to review and
explain the prior statement.
Even if the rule did limit cross-examination to inconsistent statements, the
cross-examinations detailed above would be proper. They highlighted flatly
inconsistent statements (e.g., Barry Lovely testified that Mr. Snoddy would call him
when transferring the phone lines to him (4 RR 129-30) but had previously testified
that he did not know when the phone numbers were transferred to him (4 RR 132-
33)), failures in memory (e.g., Thomas Snoddy stated “I don’t know if I called the
situation with Barry child games or a setup” (4 RR 21) when he did in those very
terms (4 RR 29)), and statements that had to be either misleading or untrue (e.g.,
when asked what his company does, Harold Stein testified at trial that it provides
sureties for bondsmen versus in his deposition, when he answered the same question
35
by saying that the company refers clients to bondsmen (3 RR 272-76)). The questions
were not improper, and no objection was ever made based on hearsay or any other
rule of evidence except “improper impeachment.”
II. Comment on the Weight of the Evidence
A. Introduction
The trial court repeatedly instructed the jury that the plaintiff’s cross-
examinations were not proper impeachment. 4 RR 14 at 15-21; 4 RR 25 at 21-25; 4
RR 128 at 23-25. These instructions were themselves judicial comments on the
weight of the evidence. No objection was made, but the comments were incurable and
thus the issue has not been waived.
B. Law
“The general rule is that a presiding judge at a trial must conduct it in a fair and
impartial manner and refrain from making unnecessary comments or remarks during
the course of trial which may tend to result in prejudice to a litigant, or is calculated
to influence the minds of the jury.” Brown v. Russell, 703 S.W.2d 843, 847 (Tex.
App.—Ft. Worth 1986, no writ). The court “ should exercise reasonable control over
the mode and order of examining witnesses and presenting evidence so as to: (1)
make those procedures effective for determining the truth; (2) avoid wasting time;
and (3) protect witnesses from harassment or undue embarrassment.” Tex. R. Evid.
36
611(a). But the judge should not “convey his or her opinion of the case to the jury and
ultimately influence the jury's decision.” Moreno v. State, 900 S.W.2d 357, 359 (Tex.
App.—Texarkana 1995, no pet.).
If no objection is made to the comment, incurable harm must be shown. State
v. Wilemon, 393 S.W.2d 816, 818 (Tex. 1965). An example of an improper but not
incurable comment on the weight of the evidence is as follows:
Q. Would you tell the jury what you think a partnership is?
MR. PETERSEN: Objection to that, Your Honor. That is a matter of
law. The Court will instruct the jury what the law is and not what this
man thinks.
MR. HAYNSWORTH: Your Honor, the Plaintiff has alleged that Mr.
Quintero was engaged in a partnership agreement with Mr. Guzman.
Now, if they know what a partnership is, I would like to know if Mr.
Quintero was in such a relation.
MR. PETERSEN: Your Honor, we pled that by his acts and his conduct
he was a partner. There is no declared partnership. We will agree to that,
but by his acts and conduct, he was a partner in this operation.
THE COURT: Overrule the objection. This man knows what a
corporation is, and a sole proprietorship, and he knows what a
partnership is and that is how he has been operating. I am going to let
him answer the question. He has testified to all three factors since he has
been on the stand.
Quintero v. Citizens and S. Factors, Inc., 596 S.W.2d 277, 281-82 (Tex. Civ.
App.—Houston [1st Dist.] 1980, no writ) (emphasis in original). The court held that
the comment standing alone was “clearly improper,” but in context it was a statement
of the witness’s qualification to testify on whether a partnership existed. Id. at 282.
37
With a timely objection, the court could have clarified the purpose of his comment
or given an instruction to the jury to disregard it. Id.
In contrast, the trial court in this case specifically and repeatedly instructed the
jury that the plaintiff’s cross-examination was not impeachment. The only possible
use of that instruction was to inform the jurors that the witness’s credibility had not
been meaningfully punctured. It was intended as a direct influence on the jury’s
analysis of credibility. There was no other purpose to the instruction. It would have
been absurd and pointless for the plaintiff’s attorney to request an instruction from
the court that its immediately preceding instruction should itself be disregarded: even
if the court had a sudden change of heart and issued the new instruction, the harm
would not have been cured.
The harm to the plaintiff was compounded by the fact that the trial court was
repeatedly and on its own motion interrupting the plaintiff’s cross-examinations. The
effect was to make it appear that the cross-examinations were highly improper and
the plaintiff’s attorney was out of line in impugning the witnesses’ credibility. The
trial court would not just sustain objections but “clarify” what witnesses were saying
(e.g., at 4 RR 25 when the trial court said in the presence of the jury that the context
of the two inconsistent statements was different) and would then say “that’s not
impeachment.” 4 RR 129; 4 RR 133; 3 RR 276.
38
This case came down to a contest of credibility. Gary Roberts and Michael
Anderson claimed that Thomas Snoddy offered them a partnership.3 RR 30-31 & 38.
Thomas Snoddy said they were lying. 3 RR 291-92. Norman Chism claimed Barry
Lovely impersonated Michael Anderson. 3 RR 204-206. Barry Lovely denied it. 4
RR 151-52. Michael Anderson was paying forfeitures out of the business profits, but
Thomas Snoddy and Harold Stein said that the business did in fact have a surety, even
if they had no proof of payment. 3 RR 272-76. The jury resolved every one of these
conflicts against the plaintiff after the court repeatedly and directly informed the jury
that the defense witnesses were “improperly impeached.”
III. Exclusion of Judgments Nisi
A. Introduction
The trial court excluded three exhibits, offered as Exhibits 26, 27 and 28, for
relevance. These exhibits were judgments nisi by the county against Michael
Anderson for bond forfeitures totaling $12,000. The trial court erred by excluding
them as irrelevant.
B. Law
The rule is as follows: “Evidence is relevant if: (a) it has any tendency to make
a fact more or less probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.” Tex. R. Evid. 401. “Evidence need not
39
by itself prove or disprove a particular fact to be relevant; it is sufficient if the
evidence provides a small nudge toward proving or disproving some fact of
consequence.” Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). It does
not have to be conclusive. See id. For example, when trying to prove that two
criminal defendants (Le and Hoang) were involved in a murder committed by the
appellant, the State was able to use recanted statements from them that the appellant
told them that he was involved in a shooting.
The statements, even if recanted, indicate that Le and Hoang had
knowledge that a freeway shooting had occurred. The statements also
show Le's and Hoang’s willingness to implicate appellant in order to
exonerate themselves. Evidence that shows Le’s and Hoang’s
knowledge of the shooting and their willingness to implicate appellant
is relevant because it makes the State's theory that all three men were
involved more probable than the theory would be without the evidence.
Ho v. State, 171 S.W.3d 295, 305 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
In a wrongful death case in which the plaintiffs were claiming lost wages, the
deceased’s status as an illegal immigrant was relevant to a determination of his lost
wages: it would have some effect on the wages he could expect to earn over his
lifetime. Republic Waste Services, Ltd. v. Martinez, 335 S.W.3d 401, 406 (Tex.
App.—Houston [1st Dist.] 2011, no pet.).
C. Application
Harold Stein testified that after a forfeiture, the name on the judgment nisi
40
determines who is liable. 3 RR 264-65 & 268-69. If Michael Anderson were named
personally, not as an agent, but as the principal, he would have to satisfy the
judgment. The trial court itself acknowledged the importance of the issue by berating
the plaintiff’s attorney for not offering proof that forfeitures resulted in Michael
Anderson being sued.
THE COURT: And even if [the sureties] weren’t paid, nothing
happened. So if it was a breach, if they didn’t pay, if Mr. Snoddy didn’t
pay them and it was a breach how is it material?
MR. WHARTON: Well, they had judgments against them.
THE COURT: Well, we don’t have any evidence of that now, do
we?
MR. WHARTON: Through testimony.
THE COURT: We don’t have any evidence, about any time period
about any judgment.
MR. VAN CLEEF: Or any amount.
THE COURT: Or any amount. We don’t.
MR. WHARTON: Then I can introduce it.
THE COURT: Well, good luck with that because I don’t think
you’ve got any in your materials over there and probably haven’t
disclosed them to this side.
MR. VAN CLEEF: No.
4 RR 197-98.
The plaintiff subsequently offered three judgments nisi exhibits to prove that
in fact Mr. Anderson was personally named when the business had a bond forfeiture.
5 RR 5-7. Yet when the exhibits were offered, the trial court sustained an objection
to relevance. 5 RR 7-9 & 11-12. No objection or argument was made that the exhibits
41
should be excluded under another rule, such as for being unduly prejudicial or
undisclosed in discovery.
The defense attorney argued that a judgment nisi is not a judgment: it “is what
starts the case not ends the case and there’s no indication on there basically any
money was paid.” 5 RR 7 at 21-25. That is close to true:
A judgment nisi, commonly used in bond forfeiture proceedings, is a
provisional judgment entered when an accused fails to appear for trial.
A judgment nisi triggers the issuance of a capias and it serves as notice
of the institution of a bond forfeiture proceeding. It is not final or
absolute, but may become final. Nisi means “unless,” so a judgment nisi
is valid unless a party takes action causing it to be withdrawn.
Williams v. State, 332 S.W.3d 694, 696 n.2 (Tex. App.—Amarillo 2011, pet. denied).
It operates similarly to a trial court’s award of attorneys’ fees for an appeal that has
not yet happened: the award is conditioned on the defendant appealing and losing that
appeal. See In re Ford Motor Co., 988 S.W.2d 714, 721 (Tex. 1998); Sw. Bell Tel.
Co. v. Vollmer, 805 S.W.2d 825, 834 (Tex.App.—Corpus Christi 1991, writ denied).
That does not make the judgments nisi irrelevant. They indicated that when
bonds were forfeited, Mr. Anderson was personally named in suits by the State. He
was liable on those bonds, not Thomas Snoddy or Harold Stein or Gerald Todd or any
other surety. The judgments nisi did not conclusively prove the amount that Mr.
Anderson lost due to bond forfeitures by themselves, since they could be undone if
42
the criminal defendant showed good cause for his non-appearance at a later hearing.
They proved that there was no surety standing behind Fast Action Bail Bonds except
Michael Anderson himself, even though Mr. Anderson had paid Mr. Snoddy
approximately$76,000 over the course of their two-and-a-half-year business
relationship. 5 RR 164. That was the ultimate issue in the breach of contract and fraud
causes, and it was decided without the aid of critical evidence.
IV. Cross-Examination Based on the Law
The trial court refused to allow cross-examination by the plaintiff’s attorney
of Thomas Snoddy on the issue of ownership of partnership property after
termination. 3 RR 298-99. The defendant objected that the questions called for a legal
conclusion. 3 RR 298-99. Later, the trial court also sustained an objection on
questions related to the law governing whether a partnership had been created. 3 RR
305-06.
“An improper legal conclusion is one that does not provide underlying facts to
support the conclusion.” Cooper v. Circle Ten Council Boy Scouts of Am., 254
S.W.3d 689, 698 (Tex. App.— Dallas 2008, no pet.). For example, the statement “I
acted properly . . . and have not violated the [DTPA] . . . [and] did not breach my
contract” is an improper legal conclusion and is therefore incompetent evidence.
Anderson v. Snider, 808 S.W.2d 54, 54-55 (Tex. 1991). In contrast, if the facts
43
underlying the conclusion are included, the witness may testify to the legal
conclusion. Cooper, 254 S.W.3d at 699-700.
The questions here did not call for unsupported legal conclusions. Rather, they
asked for Mr. Snoddy’s understanding of the law, particularly on the ownership of
property that had been transferred to a partnership. 3 RR 298. That questioning was
important because Mr. Snoddy was being accused of tortiously interfering with Mr.
Anderson’s business by disconnecting the phone lines and transferring them to
himself and Mr. Lovely. CR 33-34. The characterization of the telephone numbers as
partnership property was one of the ultimate issues for the jury, as if the property was
owned by Mr. Snoddy, as he claimed, he would not be liable for transferring the
number. If the telephone number was owned by the partnership, he would not have
that right. Mr. Snoddy’s belief and understanding as to ownership would also affect
the determination of his mental state: that is, if he mistakenly believed that he still
owned the telephone line, despite contributing it to the partnership, that would tend
to prove that his interference was not tortious.
V. Character Bolstering
The defendant used impermissible character evidence to bolster Barry Lovely’s
testimony that he did not impersonate Michael Anderson. Harold Stein was asked, “Is
it your impression that Mr. Lovely has—does underhanded business practices?” 3 RR
44
258 at 24-25. The plaintiff objected and it was overruled. 3 RR 259 at 1-3. Mr. Stein
answered “I don’t know of any underhanded.” 3 RR 259 at 10.
Character evidence is generally prohibited. Tex. R. Evid. 404(a). That is the
rule for good character as well as bad. Smith v. State, 919 S.W.2d 96, 102 (Tex. Crim.
App.1996) (en banc). One of the exceptions in criminal cases, listed under Tex. R.
Evid. 404(a)(2), is that the accused may offer evidence of his pertinent trait. Thomas
v. State, 669 S.W.2d 420, 423 (Tex. App.—Houston [14th Dist.] 1984, pet. ref’d).
Similarly, in civil cases, a party accused of conduct involving moral turpitude may
offer evidence of the party’s pertinent trait. Tex. R. Evid. 404(a)(2)(B).
Even if Barry Lovely were a “party” (despite not being named as a defendant
in the lawsuit), evidence of the party’s pertinent trait must be offered in a specific
manner. That is, “When evidence of a person’s character or character trait is
admissible, it may be proved by testimony about the person’s reputation or by
testimony in the form of an opinion.” Tex. R. Evid. 405(a)(1). It is only on cross-
examination that specific instances of conduct may be inquired into. Tex. R. Evid.
405(a)(1). Harold Stein’s testimony was not on reputation or opinion: it was
testimony that Barry Lovely does not engage in bad conduct. That is impermissible.
Since credibility was a major issue in the case, evidence that improperly bolstered the
defense witnesses’ did serious harm to the plaintiff’s case.
45
VI. Cumulative Error
The combined effect of the errors throughout the trial probably caused the
rendition of an improper judgment. Tex. R. App. P. 44.1(a). Although the errors in
this case are reversible alone (particularly the “improper impeachment” problems and
the exclusion of the judgments nisi), “When several errors exist but are not
considered reversible, all errors considered together could present cumulative error
requiring reversal.” Fibreboard Corp. v. Pool, 813 S.W.2d 658, 695-98 (Tex.
App.—Texarkana 1991, writ denied).
In a case hinging almost entirely on credibility, the trial court improperly
limited cross-examination of the defense witnesses and instructed the jury that the
defense witnesses had not been impeached. One defense witness was allowed to
bolster the character of another. Evidence demonstrating that the supposed surety was
not the one sued for forfeitures was excluded. Inquiry was not allowed into the
defendant’s understanding of the law on partnership property. Even if these errors
were not reversible alone, together they created a substantial probability that the jury
would not come to a proper verdict based on relevant and credible evidence.
PRAYER
For the reasons stated above, Appellant respectfully requests that this court
grant him a new trial.
46
Respectfully submitted,
SNOW E. BUSH, JR., P.C.
420 N. Center Street
Longview, TX 75601
Tel. (903) 753-7006
Fax. (903) 753-7278
E-mail: jonathanwharton1@sbcglobal.net
By: /s/ Jonathan Wharton
JONATHAN WHARTON
STATE BAR NO. 24075764
ATTORNEY FOR APPELLANT,
MICHAEL ANDERSON
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing has
been delivered to L. Charles Van Cleef, counsel for appellee, on this the 26th day of
May, 2015.
/s/ Jonathan Wharton
JONATHAN WHARTON
CERTIFICATE OF COMPLIANCE
I hereby certify that the Appellants Brief (as measured under Tex. R. App. P.
9.4(i)(1)) contains 10,533 words as counted by Microsoft WordPerfect on this the
26th day of May, 2014.
/s/ Jonathan Wharton
JONATHAN WHARTON
47
NO. 06-14-00096-CV
__________________________________________________________________
IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT, TEXARKANA,
TEXAS
__________________________________________________________________
MICHAEL ANDERSON
Appellant,
v.
THOMAS SNODDY
Appellee.
__________________________________________________________________
On Appeal from Cause No. 548-12
In the 115th Judicial District Court of Upshur County, Texas
Honorable Lauren Parish, Presiding Judge
__________________________________________________________________
APPENDIX TO APPELLANT’S BRIEF
__________________________________________________________________
Final Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 1
Jury Charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 2
Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab 3
48
TAB 1
TAB 2
TAB 3