Frances Angela Black v. Countryside Village Apartments ( 2013 )

Opinion issued December 10, 2013.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00981-CV
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FRANCES ANGELA BLACK, Appellant
V.
COUNTRYSIDE VILLAGE APARTMENTS, Appellee
On Appeal from the County Civil Court at Law Number 3
Harris County, Texas
Trial Court Case No. 1019126
MEMORANDUM OPINION
Frances Angela Black appeals from a judgment in favor of Countryside
Village Apartments. In a bench trial, the trial court found that Black had violated
her apartment lease by permitting an individual to possess marijuana on the
premises. The county court rendered judgment for Countryside and ordered that
Black be evicted from her apartment. Black appeals, challenging the admissibility
of certain testimony and asserting that the trial court improperly weighed and
evaluated the evidence. We affirm.
Background
Frances Angela Black lives in an apartment at Countryside Village
Apartments in Humble, Texas. Black’s residency at Countryside is part of a
program of the United States Department of Housing and Urban Development.
Certain conditions of her lease prohibit Black from engaging in criminal activity
that threatens the peaceful enjoyment of the premises by others, having
unauthorized residents, and engaging in or allowing unlawful activities in her
apartment, in common areas, or on the complex grounds.
Black lives in her apartment with four children, two of whom are her own
and all of whom are children of her boyfriend, Edwin Hulitt. Countryside’s
manager, Keslie Smith, testified that Hulitt had lived in the apartment for at least a
year at the time of the incident that gave rise to these proceedings.
On December 28, 2011, the Humble Police Department received a call of a
domestic disturbance at Countryside. Three officers responded to the scene. One
of these officers, T. Meek, testified that Black and Hulitt were engaged in an
argument inside Black’s apartment and that a crowd had formed outside to observe
the argument, which was both audible and visible from outside the apartment.
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After the police separated Black and Hulitt and spoke with each of them—Hulitt
outside the apartment and Black inside—Officer Meek observed a bag of
marijuana in an open drawer in the living room of the apartment. Officer Meek
testified that Hulitt stated that the marijuana was his, at which point he arrested
Hulitt for possession of marijuana. At the time of the arrest, both Black and Hulitt
told Officer Meek that Hulitt lived in the apartment.
Countryside gave Black notice of its intent to evict her for (1) causing a
disturbance resulting in a law enforcement response; (2) allowing Hulitt to reside
in the apartment when his name was not on the lease; (3) allowing marijuana inside
her unit; and (4) making false statements to Countryside management regarding
her income and employment status. Countryside then successfully sued to evict
Black in justice court. Black appealed to the county court, which conducted a de
novo bench trial, neither party having requested a jury. Both parties were
represented at trial by counsel. The county court entered judgment for Countryside
and ordered Black evicted, finding that Hulitt had possessed marijuana on the
property in violation of the lease. The county court’s judgment made no mention
of the other theories on which Countryside brought suit. Black did not request any
findings of fact or conclusions of law.
Black now brings six issues on appeal. We affirm.
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Analysis
Black challenges the admissibility of certain evidence as hearsay and asserts
that the trial court abused its discretion in its evaluation of the evidence. We
review a trial court’s decisions to admit or exclude evidence for abuse of
discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); see also Comiskey v.
FH Partners, LLC, 373 S.W.3d 620, 630 (Tex. App.—Houston [14th Dist.] 2012,
pet. denied). We will not overturn the judgment because of evidentiary rulings
“[u]nless an erroneous ruling probably caused rendition of an improper judgment.”
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see also
Comiskey, 373 S.W.3d at 630; TEX. R. APP. P. 44.1(a)(1). To the extent that Black
challenges the legal sufficiency of the evidence supporting the judgment, this court
must look at all of the evidence admitted and determine whether, after disregarding
all evidence that a reasonable trier-of-fact could disregard, more than a scintilla of
evidence supports the judgment. See City of Keller v. Wilson, 168 S.W.3d 802,
813, 827–28 (Tex. 2005). To determine the factual sufficiency of the evidence, we
are required to examine all of the evidence, and we will set aside the judgment
only if it is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The trier of
fact may choose to “believe one witness and disbelieve others” and “may resolve
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inconsistencies in the testimony of any witness.” McGalliard v. Kuhlmann, 722
S.W.2d 694, 697 (Tex. 1986).
I. Sufficiency of the evidence
A. Dismissal of criminal charges against Hulitt
In her first issue, Black asserts that the trial court erred by finding that Hulitt
had marijuana on the property, despite the dismissal of the criminal charges against
him.
The trial court heard testimony from Officer Meek, who testified that he saw
a bag of marijuana in Black’s apartment and that Hulitt admitted to possession of
that marijuana. The trial court, as finder of fact, was entitled to credit this
testimony and was not obligated to draw or believe a contrary inference from the
fact that the criminal case against Hulitt was dismissed. See City of Keller, 168
S.W.3d at 821, 827–28. The determination was not contrary to the overwhelming
weight of the evidence. See Cain, 709 S.W.2d at 176. We overrule Black’s first
issue.
B. Weight and evaluation of evidence
In her second, third, and fifth issues, Black asserts that the trial court gave
improper weight or meanings to the testimony of various witnesses with respect to
the circumstances under which Hulitt was arrested. Specifically, Black argues in
each of these issues that the trial court erred by finding that Hulitt possessed the
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marijuana, rather than finding that he volunteered to go to jail to spare Black and
his children from eviction and being taken into custody. Black argues that the trial
court interpreted Hulitt’s actions and statements unfairly and without recognition
of the difficulties faced by Black, Hulitt, and Hulitt’s children.
Hulitt and Black testified that the marijuana was not theirs but that the
Humble police officers on the scene threatened to arrest everyone present and take
the children in Black’s care to “CPS,” that is, the Texas Department of Family and
Protective Services, if nobody present claimed the marijuana. According to Hulitt
and Black, the marijuana was found on a common balcony outside Black’s
apartment, and Hulitt made no admissions, but he merely volunteered to be
arrested to spare Black from arrest and the children from being taken into
protective custody. Officer Meek, however, testified that he observed the
marijuana in an open drawer inside Black’s apartment, that Black denied that it
was hers, and that Hulitt admitted that it was his. The trial court was entitled to
believe Officer Meek and disbelieve Black and Hulitt. See McGalliard, 722
S.W.2d at 697.
Black also complains in her fifth issue that the trial court manufactured a
contradiction between Black’s testimony and Hulitt’s testimony regarding the
arrival time of Officer Meek. Hulitt testified that Officer Meek arrived “several
minutes” after the other officers, while Black testified that “Officer Meek didn’t
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see anything” and “only knows what he was told,” because he arrived 20 or 30
minutes after the other officers. Black does not explain why the trial court was
required to find that these statements were consistent or how she was harmed by
the trial court’s questions about the witnesses’ testimony. Again, to the extent the
evidence on this point conflicted, the trial court was entitled to believe either Black
or Hulitt and disregard the other’s testimony. See id.
Because more than a scintilla of evidence supports the judgment and because
the trial court could reasonably have disregarded the contrary evidence, and
because the trial court’s determinations were not contrary to the overwhelming
weight of the evidence, we overrule Black’s second, third, and fifth issues. See
City of Keller, 168 S.W.3d at 820–22; Cain, 709 S.W.2d at 176.
C. Countryside’s signature on a HUD certification
In her sixth issue, Black does not explicitly assign any error, but merely
argues that an “Owner’s Certification of Compliance” signed by a former
Countryside employee after the December 28, 2011 incident contradicts
Countryside’s claims against Black. According to Black, this document constitutes
an admission by Countryside that Black was in compliance with all HUD
regulations and administrative procedures at the time that it was signed, in June
2012. Thus, Black argues, the trial court should have concluded that Black was in
compliance with her lease and entered judgment against Countryside.
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There is nothing in the record, however, showing that the Certification of
Compliance constitutes an admission by Countryside that Black had complied with
the terms of her lease prohibiting illegal activity on the property. Even if it did
constitute such an admission, the Certification of Compliance would simply have
been evidence conflicting with Countryside’s position. Conflicts in the evidence,
however, are the province of the trier of fact, and we must assume that it resolved
any such conflict in favor of the judgment. City of Keller, 168 S.W.3d at 820
(“courts reviewing all the evidence in a light favorable to the verdict must assume
that [the finder of fact] resolved all conflicts in accordance with that verdict”). We
overrule Black’s sixth issue.
II. Hearsay
In her fourth issue, Black asserts that the trial court erred by admitting
hearsay testimony from Smith and Officer Meek. With certain exclusions and
exceptions that are not relevant here, hearsay “is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” TEX. R. EVID. 801(d); see also TEX. R. EVID.
801(e), 803, 804. “Hearsay is not admissible except as provided by statute or [the]
rules [of evidence] or by other rules prescribed pursuant to statutory authority.”
TEX. R. EVID. 802. “Inadmissible hearsay admitted without objection shall not be
denied probative value merely because it is hearsay.” Id.; Tex. Commerce Bank,
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Nat’l Ass’n v. New, 3 S.W.3d 515, 517 (Tex. 1999); see also Austin v. Weems, 337
S.W.3d 415, 425 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (hearsay objection
to officer’s testimony was waived when no objection made). Further, “[t]he
erroneous admission of evidence requires reversal only if the error probably caused
the rendition of an improper judgment.” Air Prods. & Chems., Inc. v. Odfjell
Seachem A/S, 305 S.W.3d 87, 97 (Tex. App.—Houston [1st Dist.] 2009, no pet.)
(citing TEX. R. APP. P. 44.1; Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131,
144 (Tex. 2004)). “The erroneous admission of evidence is harmless if it is merely
cumulative.” Id. (collecting cases).
First, Black asserts that all of Smith’s testimony regarding the disturbance
call, Hulitt’s arrest, the presence of an unauthorized person, and the criminal
charge against Hulitt was inadmissible hearsay. The record reflects that Black’s
attorney objected to Smith’s testimony only once, when Smith testified that the
police department, rather than apartment management, received a call about a
disturbance, and that she learned of the disturbance call after the fact from the
Humble Police Department. The trial court overruled the objection, reasoning that
Humble police officers were present for trial who could testify that the department
received a call about a disturbance, although no officers had yet been called as
witnesses.
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We agree with Black that Smith’s testimony that the police department
received a disturbance call was inadmissible hearsay. See TEX. R. EVID. 801. But
Smith had already testified, without objection, that law enforcement had been
called to respond to the disturbance. As a matter of law, this unobjected-to hearsay
is probative evidence upon which the trial court was permitted to rely. See TEX. R.
EVID. 802; Tex. Commerce Bank, 3 S.W.3d at 516. In addition, Officer Meek
testified that he was called to assist officers on the scene and personally witnessed
a disturbance in the form of an argument between Black and Hulitt. Further, the
trial court did not enter judgment based on the disturbance, but only on the basis of
the presence of marijuana. Any error in the admission of Smith’s testimony was
therefore harmless. See Air Prods. & Chems., 305 S.W.3d at 97.
Black also complains of Officer Meek’s testimony on the grounds that he
did not have personal knowledge of events that transpired prior to his arrival,
including the original location or any movement of the marijuana. The record does
not contain any objection to Officer Meek’s testimony as hearsay. To the extent
that Black challenges the admission of any hearsay to which her counsel failed to
object at trial, her objection was waived, and the trial court did not err by admitting
the testimony. See Tex. Commerce Bank, 3 S.W.3d at 516; Austin, 337 S.W.3d at
425.
We overrule Black’s fourth issue.
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Conclusion
The judgment of the trial court is affirmed.
Michael Massengale
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
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