William Albert Schatte v. State ( 2011 )

                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                ______________________________

                                                             No. 06-10-00168-CR

                                                ______________________________

                              WILLIAM ALBERT SCHATTE, Appellant

                                                                V.

                                     THE STATE OF TEXAS, Appellee

                                       On Appeal from the 336th Judicial District Court

                                                             Fannin County, Texas

                                                            Trial Court No. 23008

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                     MEMORANDUM OPINION

            William Albert Schatte appeals from his convictions on his plea of guilty, made before a jury, for aggravated sexual assault in four cases, and for one conviction for indecency with a child.  In a unified brief, he complains that the trial court committed reversible error at the punishment phase that requires remanding the cause for a new hearing on punishment.

            In this case, he was convicted for aggravated sexual assault of a child, and was sentenced to ninety-nine years’ imprisonment and a $10,000.00 fine. 

            Schatte raises a single issue on appeal, in which he contends that the trial court erred by admitting evidence of a prior bad act—anal contact with the victim—although the State had not given him notice of its intent to use the evidence, notwithstanding his request for such notice. 

            Because the issue raised in each appeal is identical, for the reasons stated in our opinion dated this day in Schatte v. State, cause number 06-10-00166-CR, we affirm the judgment of the trial court.

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          May 25, 2011

Date Decided:             May 26, 2011

Do Not Publish

4 S.W.3d 810 (Tex. App.--Houston [1st Dist.] 2000, pet. denied); see also Bison Bldg. Materials, Ltd. v. Aldridge, No. 01-05-00330-CV, 2006 Tex. App. LEXIS 8162 (Tex. App.--Houston  [1st  Dist.]  Sept.  14,  2006,  no  pet.  h.);  Poole  v.  USAA  Cas.  Ins. Co., Nos. 14-99-00740-CV, 14-99-01056-CV, 2000 Tex. App. LEXIS 6825, at *4 (Tex. App.--Houston [14th Dist.] Oct. 12, 2000, pet. denied) (not designated for publication); cf. J.D. Edwards World Solutions Co. v. Estes, Inc., 91 S.W.3d 836 (Tex. App.--Fort Worth 2002, pet. denied) (vacatur without directing rehearing). We note, however, that a few of the cases do contain dictum favorable to the position taken by East Texas. See Stolhandske, 14 S.W.3d at 810; see also Aldridge, 2006 Tex. App. LEXIS 8162; Poole, 2000 Tex. App. LEXIS 6825.

4. Tex. Civ. Prac. & Rem. Code Ann. § 171.003 (Vernon 2005); see Pullara v. Am. Arbitration Ass'n, 191 S.W.3d 903, 907 (Tex. App.--Texarkana 2006, pet. denied).

5. East Texas also cites Atlantic Aviation, Inc. v. EBM Group, Inc., 11 F.3d 1276 (5th Cir. 1994). This case is distinguishable because it did not concern an appeal from a denial of an application to confirm and the court concluded the FAA governed the dispute at issue. Although the court noted neither TAA nor UAA "allow appeals from orders which both vacate an award and direct a rehearing of the dispute," the Fifth Circuit's decision relied on the FAA. Id. (construing predecessor to Section 171.098). Because the FAA contains different procedural standards for interlocutory appeals, this case has limited persuasive value.

6. See Me. Dep't of Transp. v. Me. State Employees Ass'n, 581 A.2d 813, 815 (Me. 1990); Neb. Dep't of Health & Human Servs. v. Struss, 623 N.W.2d 308, 312 (Neb. 2001); Caron v. Reliance Ins. Co, 703 A.2d 63 (Pa. Super. Ct. 1997).

7. See City of Ft. Lauderdale v. Fraternal Order of Police, Lodge No. 31, 582 So. 2d 162 (Fla. App. 1991); Max Rieke & Bros., Inc. v. Van Deurzen & Assocs., P.A., 118 P.3d 704, 708 (Kan. Ct. App. 2005); Me. State Employees Ass'n, 581 A.2d at 815; Struss, 623 N.W.2d at 312; Caron, 703 A.2d 63; Boyce v. St. Paul Prop. & Liab. Ins. Co., 618 A.2d 962 (Pa. Super. Ct.1992); Double Diamond Constr. v. Farmers Coop. Elevator Ass'n of Beresford, S.D., 656 N.W.2d 744 (S.D. 2003).

8. East Texas contends the Missouri court might decide Stewart differently today. In support of this speculation, East Texas cites Crack Team USA, Inc. v. American Arbitration Ass'n, 128 S.W.3d 580 (Mo. Ct. App. 2004). However, in Crack Team, the trial court did not deny a motion to confirm. Id. The court cited Stewart and noted it was faced with a different factual scenario. Id. At least two recent decisions have indicated Missouri is not retreating from its holding. See Air Shield Remodelers v. Biggs, 969 S.W.2d 315, 316 (Mo. Ct. App. 1998); see also Whitney v. Alltel Commc'ns, Inc., 173 S.W.3d 300, 306 (Mo. Ct. App. 2005) (suggesting right to appeal in dicta).

9. In Vondergoltz, the Fourteenth court noted that, "to the extent an order directing rehearing of an arbitration is analogous to an order granting a motion for new trial, the rule in Texas that the latter is not final or appealable dictates a result contrary to that reached in Stewart by reference to the opposite rule." Id. (citations omitted). But, see discussion in footnote 10 below.

10. East Texas emphasizes that Missouri allows an appeal from an order granting a motion for new trial. We are not persuaded that the differences between the respective policies of Texas and Missouri concerning motions for new trial dictate a different result. There are significant differences between a motion for new trial and a motion to vacate an arbitration award. The standards for granting the motions are extraordinarily different. A trial court has much greater discretion in granting a motion for new trial than in granting a motion to vacate an arbitration award. A motion for new trial is granted by a trial court who heard all of the evidence and observed the demeanor of the witnesses. A motion to vacate is granted by a trial court who at best has a transcript of the arbitration hearings. Because of these significant differences between a motion for new trial and a motion to vacate an arbitration award, the fact that Missouri allows a party to appeal from an order granting a new trial is not a significant factor in our analysis.

11. The San Antonio Court of Appeals adopted the abuse of discretion standard of review in Koch without citing any authority. See Koch, 27 S.W.3d at 95 (arbitration concerning prenuptial agreement). In Henry, the Dallas Court of Appeals cited an opinion reviewing a motion for new trial as authority. Henry, 100 S.W.3d at 509 (citing Chavarria v. Valley Transit Co., 75 S.W.3d 107, 110 (Tex. App.--San Antonio 2002, no pet.)).

12. In the hearing before the trial court in this case, there was no testimony or evidence other than the transcripts of the arbitration hearing and the statements of counsel. Therefore, the trial court is not in an appreciably better position to review the transcripts of the arbitration proceeding than we are. If evidence had been introduced at the hearing, an abuse of discretion standard of review might be appropriate to review any factual findings made by the trial court based on evidence presented at the hearing. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

13. We note East Texas has not alleged any grounds under the TAA. Under that Act, an arbitration award should be vacated if the rights of a party were prejudiced by evident partiality, corruption, misconduct, or willful misbehavior of an arbitrator. IPCO-G&C Joint Venture v. A. B. Chance Co., 65 S.W.3d 252, 256 (Tex. App.--Houston [1st Dist.] 2001, pet. denied); see Tex. Civ. Prac. & Rem. Code Ann. § 171.098 (Vernon 2005). Grounds under the TAA are cumulative of the common law. Riha, 843 S.W.2d at 292.

14. Werline states in his reply brief that he does not concede the trial court could vacate an arbitration award based on a finding of "no evidence" of any given issue. At the hearing before the trial court, however, Werline's attorney stated, "no evidence is about the only way [East Texas] can attack the validity of this particular award." The parties have failed to cite any caselaw authorizing a "no-evidence" review, and our own search has not found any Texas cases recognizing a "no-evidence" review. We are not convinced an arbitration award can be reviewed for legal sufficiency of the evidence. The First Court of Appeals has held: "[i]n the absence of a statutory or common law ground to vacate or modify an arbitration award, a reviewing court lacks jurisdiction to review other complaints, including the sufficiency of the evidence to support the award." A. B. Chance Co., 65 S.W.3d at 256; see also Antone's Import Co., 927 S.W.2d at 33; cf. Kergosien v. Ocean Energy, Inc., 390 F.3d 346, 353 (5th Cir. 2004); Brabham, 376 F.3d at 381-85. However, it is not necessary for us to decide this issue since, as discussed below, there is clearly more than a scintilla of evidence supporting the arbitrator's award.

15. Werline alleges these attempts were made because the alternative lines of business being investigated by Werline were not "going to go anywhere." Clements testified he made the offers, merely as a friend, since he could see Werline was not pleased with the new arrangement.

16. Other than unsworn statements made by counsel for East Texas, the record does not reflect that the arbitrator refused to consult the transcript of the arbitration. But, even if counsel's statements qualify as evidence, this fact is irrelevant since the arbitrator presided over the arbitration and, according to the record, took forty pages of notes.