Janice Kay Allen v. Travis G. Blackwell ( 1993 )

Allen v. Blackwell

    IN THE

TENTH COURT OF APPEALS

No. 10-93-064-CV

     JANICE KAY ALLEN,

                                                                                              Appellant

     v.

     TRAVIS G. BLACKWELL,

                                                                                              Appellee

From the 19th District Court

McLennan County, Texas

Trial Court # 82-1618-1

O P I N I O N

     Janice Allen and Travis Blackwell were divorced on August 18, 1982. Allen was appointed managing conservator of their two children, Lisa and Rachel. Blackwell was ordered to pay child support of $200 per month. On April 15, 1986, Blackwell was named managing conservator of Lisa, and his support obligation was reduced to $100 per month. On April 12, 1988, Blackwell was also named Rachel's managing conservator and, the parties agree, his support obligation terminated entirely.

      On May 8, 1991, Allen filed a motion to modify, seeking to be named managing conservator of Rachel and to have Blackwell pay child support for her. On August 24, 1992, Allen filed a supplemental motion and sought for the first time to have an arrearage of $16,400 for the years 1982 through 1992 reduced to judgment. The court determined that it lacked jurisdiction to reduce the unpaid support payments to judgment because more than four years had elapsed since April 15, 1986—the date Blackwell had been named Lisa's managing conservator, thus terminating his support obligation as to Lisa. Also, more than four years had elapsed since April 12, 1988—the date he had been named Rachel's managing conservator and his support obligation as to Rachel terminated.

      Lisa was born on July 11, 1971, and became an adult on July 11, 1989. Rachel was born on November 15, 1981, and had not attained the age of majority at the time the motion to reduce the unpaid support to judgment was filed.

      In a single point of error, Allen contends that section 14.41(b) of the Family Code should be interpreted to allow an obligee of a support obligation four years from either the date on which the child becomes an adult or the date on which the support obligation terminates. See Tex. Fam. Code Ann. § 14.41(b) (Vernon Supp. 1993). If we were to accept this interpretation, her motion would be timely because it was filed within four years after Lisa became an adult and because Rachel is still under eighteen years of age.

      Section 14.41(b) states:

Time Limitations. The court may not confirm the amount of child support in arrears and may not enter a judgment for unpaid child support payments that were due and owing more than 10 years before the filing of the motion to render judgment under this section. The court retains jurisdiction to enter judgment for past-due child support obligations if a motion to render judgment for the arrearages is filed within four years after

(1) the child becomes an adult; or

(2) the date on which the child support obligation terminates pursuant to the decree or order or by operation of law.

      Section 14.41(b) contains two limitations on the right of a child-support obligee to enforce payment of past-due child support. Id. It imposes a ten-year limitation on past-due obligations, dating backward from the date the motion is filed, and it imposes a jurisdictional requirement by denying the court jurisdiction to entertain such a motion that is not filed within four years of the applicable date. Id. The section is generally regarded as both (1) assuring that some time period is allowed after a support order terminates during which the obligee can seek a judgment for unpaid support and (2) imposing time limits on the obligee's right to compel past-due payments. John J. Sampson, Title Two, Parent and Child, 17 Tex. Tech L. Rev. 1065, 1208 (1986); John J. Sampson, Chapter 14: Conservatorship, Possession, and Support of Children, 21 Tex. Tech L. Rev. 1323, 1461-62 (1990).

      Because the general rule is that a support obligation terminates when the child attains the age of eighteen, we interpret the applicable part of section 14.41(b) to mean:

(b) Time Limitations. . . . The court retains jurisdiction to enter judgment for past-due child support obligations if a motion to render judgment for the arrearages is filed within four years after:

(1) the child becomes an adult; or [if for any reason the support order terminates on any other date,]

(2) the date on which the child support obligation terminates pursuant to the decree or order or by operation of law.

See Tex. Fam. Code Ann. § 14.41(b).

      We are persuaded that this is the correct interpretation for three reasons. First, this interpretation allows a "just and reasonable" result. See Tex. Govt. Code Ann. § 311.021(3) (Vernon 1988). Second, a corresponding section of the Family Code imposing time limits on enforcement of support obligations by contempt has been so interpreted. Tex. Fam. Code Ann. § 14.40(b) (Vernon 1986); Ex parte Walker, 739 S.W.2d 415, 417 (Tex.App.—Amarillo 1987, no writ). Finally, because the Family Code now allows a court to order child support for disabled children over the age of eighteen, this interpretation does not shorten the time to file a motion to reduce unpaid support payments to judgment when those payments were not due until after the child became an adult. Tex. Fam. Code Ann. § 14.051 (Vernon Supp. 1993).

      Because the court correctly interpreted section 14.41(b) as depriving it of jurisdiction to reduce the arrearages to judgment, we affirm. See id. § 14.41(b).

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed December 1, 1993

Publish

le.

      Texas properly draws a distinction between a paid police informant and the average citizen who provides information to the police because they are a victim or witness to a crime. "The reasons for detailing the basis for an officer's belief in information gained from an undisclosed informant simply do not apply where a private citizen, whose only contact with the police or criminal activity is a result of having witnessed a single criminal act committed by another, furnishes law enforcement officials with information and vouches for such information by allowing the officers to use his name." Frazier v. State, 480 S.W.2d 375, 379 (Tex. Crim. App. 1972); see also Esco v. State, 668 S.W.2d 358 (Tex. Crim. App. [Panel Op.] 1982); Hennessy, 660 S.W.2d at 91. A citizen who tenders his name to the police and gives sufficiently detailed information carries an indicia of reliability. Wood v. State, 573 S.W.2d 207, 216 n.2 (Tex. Crim. App. 1978).

      In the instant case, the affidavit in support of the search warrant was based on information supplied by a man known to the police but unidentified in the affidavit. Unlike an anonymous tip, this situation creates fewer doubts with respect to the matter of veracity. See Wayne R. LaFave, Search & Seizure, section 3.4(a), at 598 (1978).

      Under the specific facts, we hold that the affidavit supplied the magistrate with sufficient underlying circumstances to establish the citizen-informant's reliability. We overrule point one.

SUFFICIENCY OF THE EVIDENCE

      In his second point, Satoh argues that there is no evidence to establish the child-victim's age and thus the evidence is insufficient to support a conviction for aggravated sexual assault. He cites article 1.15 of the Code of Criminal Procedure for the proposition that, although he pleaded guilty, the State was required to introduce sufficient evidence of his guilt. See Tex. Code Crim. Proc. Ann. art. 1.15 (Vernon Supp. 1994). Article 1.15 provides that the evidence may be stipulated if the defendant "consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses" and further consents to an oral stipulation of the evidence or the introduction of affidavits to support the judgment. The State argues that article 1.15 is inapplicable to guilty pleas to a jury. See Ex parte Williams, 703 S.W.2d 674, 678 (Tex. Crim. App. 1986).

      Satoh signed a document entitled "Defendant's Plea of Guilty, Waiver, Stipulation and Judicial Confession." However, he scratched through the word "waiver" in the caption. He also marked through several paragraphs regarding waiver of certain rights including the reading of the indictment, the right to a jury trial, and the right to remain silent, and deleted paragraph six which states:

However, I desire to WAIVE and do waive the following rights:

. . .

6. Waive the right to be confronted with the witnesses against me and request the approval of the Court to the stipulation of the evidence by waiving the appearance, confrontation and cross-examination of witnesses, and by my further consenting to the introduction of testimony and evidence by stipulation into the record by the attorney for the State, by oral stipulation, or by written statements of witnesses and any other documentary evidence.

Below this, however, the document contains the following paragraph that was not deleted:

I do further admit and judicially confess that I unlawfully committed the acts alleged in the indictment/information in this cause at the time and place and in the manner alleged and that such allegations are true and correct, and that I am in fact GUILTY of the offense alleged.

      The indictment alleged that Satoh intentionally and knowingly caused the sexual organ of Josh, a child younger than fourteen years of age, to contact his mouth. Satoh pleaded guilty to the jury and did "admit and judicially confess" that he committed the act as alleged in the indictment and was "in fact GUILTY of the offense alleged." In felony cases, a plea of guilty to the jury admits the existence of all necessary elements to establish guilt. Darden v. State, 430 S.W.2d 494, 495 (Tex. Crim. App. 1968). After Satoh pleaded guilty to the jury, the State then introduced testimony to enable the jury to intelligently exercise its discretion in assessing punishment. See Ex parte Williams, 703 S.W.2d at 678. In addition to Satoh's written admission that he committed the act as alleged in the indictment, the jury had before it the photographs. We believe the evidence was sufficient to establish the aggravated sexual assault. We overrule point two.

REBUTTAL WITNESSES

      In his third point, Satoh complains that the court abused its discretion in permitting the State to introduce testimony of two rebuttal witnesses whose names had not previously been disclosed to defense counsel. Satoh filed a pretrial discovery motion asking, among other things, for the State to produce "[a] list of any witnesses the State may intend to call in the trial of this cause, in its case in chief, or as rebuttal or impeachment witnesses or in connection with the issue of punishment." The court did not rule on the discovery motion. Rather, the parties apparently reached some sort of agreement.

      In rebuttal, the State sought to call M.B. Flippen, a psychotherapist, and Joseph Bon-Jorno, the coordinator of the state prison's sex offender treatment program. The State had not disclosed the names of the men as potential rebuttal witnesses. The prosecutor explained that she had agreed to give Satoh a witness list "prior to voir dire not limited as to rebuttal witnesses. . . ." The court questioned the prosecutor on her definition of a "rebuttal witness."

      [STATE]:    Witnesses who I did not know that I would need to call until I saw what their case-in-chief was. I didn't want this to turn into a battle of experts and I was not planning to call anybody to talk about that unless they wanted to make it an issue which in fact they did.

      [COURT]:   Did you have a witness identified to call in quote "rebuttal" end quote to their expert if they called one?

      [STATE]:    I had M.B. Flippen and [defense counsel] was aware that I had already talked to Mr. Flippen about the case. [Defense counsel] was aware of that because he had also contacted Mr. Flippen about testifying and he explained to [defense counsel] that he had already spoken to me about the case and he didn't think it would be appropriate to listen to him talk about the case also so he stopped him before he went into the details of the case is my understanding from discussions with Mr. Flippen.

      [COURT]:   Would you assert that [defense counsel] was aware that you had intended to call Mr. Flippen as a witness?

      [STATE]:    I don't know if they were aware I had intended to call him. They were aware that I had spoken to him about the case. But I wasn't aware that I would call him as a witness until I saw that they had expert testimony regarding pedophiles.

      [COURT]:   When were you aware of that?

      [STATE]:    When they called Dr. Dave.

      [COURT]:   Not before?

      [STATE]:    No, last Friday when we had the motion for continuance, they had some female expert who was supposed to come to my office and look at the evidence. I knew that Dr. Dave had been seeing the defendant, but also knew that Dr. Dave was not anxious to testify in this case and they were trying to find another expert. When she didn't show up to examine the evidence in my office on Friday, I didn't know what their position was going to be as far as expert witnesses went and I didn't know if I would need to call my expert because I didn't plan to call my expert unless they called somebody to testify regarding pedophiles.

      Defense counsel explained that, as he understood it, the State had agreed to give Satoh what he had requested in his discovery motion. Although he was aware that Flippen was a "possibility," "when [the State] gave me the list I thought . . . they were complying with the deal, so I didn't voir dire specifically on Mr. Flippen because I didn't think there was any need to. And for all I know, there may be somebody there on that jury that's a client of his, patient of his, and knows him socially or something like that."

      The court continued questioning defense counsel and the prosecutor:

      [COURT]:   Since the State did not know for sure whether the defense was going to call an expert in this case, it remained a possibility that the defense was going to call an expert in the case. And if the State, if the defense did call an expert, it was your intent to call Mr. Flippen as your rebuttal expert witness.

      [STATE]:    Yes, it was.

      [COURT]:   That being the case, why did you not give his name as a potential witness prior to voir dire?

      [STATE]:    Because pursuant to the agreed pretrial order, I was not obligated to give his name since I had stipulated that I would provide a list of the witnesses. That was not limited as to rebuttal witnesses. And I didn't think that it was—that I was obligated to give his name.

      [COURT]:   Well, we've got one of those complicated situations here. If I had made the ruling in a contested discovery hearing, what I would have ruled was or would be that it doesn't make any difference where you call them in the order of trial, case-in-chief or rebuttal, if you've identified them as potential witnesses that you may or may not call during the course of the trial, then you're obligated to share them with the defense so that the defense can exercise [its] legitimate right of talking to the jury about any connections they might have with that potential witness. And if I had made that ruling if presented to me, then you would be in violation of it. But we have a different situation in this case because I did not make a ruling, but the lawyers apparently came in and said quote "we've agreed" unquote. A dangerous shortcut that we sometimes indulge and what you have agreed to is based on your interpretation of what a quote "rebuttal witness" is unquote. I don't believe it's ever a reasonable interpretation of that term to mean that merely because you intend to call them in rebuttal that you can shield them from disclosure. If you had the pretrial intent to call a witness, they are not immune from disclosure. Now, the rebuttal exception comes into play when you first determined the need for rebuttal testimony during the course of the trial and then have to go out and find it and you could not have known about it in advance. That's the exception to pretrial disclosure of potential witnesses. I don't think any other rule makes sense. But here we have an agreement. So, I'm going to permit the man to testify.

      On the defendant's motion showing good cause, the court may order the State to produce evidence in its possession material to the action. Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon 1979). This right of limited discovery is independent of the defendant's constitutional right of access to exculpatory evidence. Kinnamon v. State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990). A defendant does not have a general right to discovery of evidence in the State's possession. Id. Decisions involving the pretrial discovery of evidence which is not exculpatory, mitigating, or privileged are within the court's discretion. Id.

      Because the parties "agreed" to Satoh's discovery motion, the court did not rule on the motion and did not order the State to provide the requested information. Thus, the court did not abuse its discretion in allowing the undisclosed witnesses to testify. We overrule point three.

      We concur with the court's assessment of this prosecutor's failure to disclose the names of the rebuttal witnesses—if the State has identified them as potential witnesses (and the prosecutor admitted that she had identified Flippen as a potential witness), the State is obligated to share the names of rebuttal witnesses in response to a proper discovery order. As the court stated, had he ruled on Satoh's discovery motion, the State's actions in this case would have been in violation of that order. The prosecutor stated that she intended to call Flippen if Satoh called experts. She also was aware that Satoh was attempting to procure expert testimony—yet she still did not disclose Flippen's name. By overruling point three, we do not condone the actions of the State in failing to disclose the names by relying on the fact that they were rebuttal witnesses.

NON-BIFURCATED TRIAL

      In his final point, Satoh complains that the court erred in submitting the case to the jury in a non-bifurcated trial, citing article 37.07, section 3, of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3 (Vernon Supp. 1994). This section simply allows evidence of a defendant's prior criminal record, his general reputation, and his character to be offered after a finding of guilt. Satoh pleaded guilty to the jury and therefore the jury heard evidence to enable it to assess punishment. See id. art. 26.14 (Vernon 1989). Satoh did not object to the non-bifurcated trial and presents nothing for our review. We overrule point four and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed June 1, 1994

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