Everitt Howard, Jr. v. Tarrant County, Texas ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00277-CV
EVERITT HOWARD, JR. APPELLANT
V.
TARRANT COUNTY, TEXAS APPELLEE
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant pro se Everitt Howard, Jr. appeals the trial court’s take-nothing
judgment in the personal injury suit he filed against Appellee Tarrant County,
Texas. Howard contends in three issues that his counsel waived a jury trial
without his consent, that he received ineffective assistance of counsel, and that
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See Tex. R. App. P. 47.4.
the trial court erred by admitting into evidence his eight prior felony convictions.
We affirm.
II. Background
Through counsel, Howard filed this personal injury suit against Tarrant
County, alleging that he ―sustained severe and permanent injuries‖ due to the
negligence of a Tarrant County sheriff’s deputy. Howard, who had been arrested
about a week before the incident, specifically alleged that he was a passenger in
a transport van being driven by the deputy, that the deputy operated the vehicle
in a negligent manner, and that the vehicle ―slammed on its brakes and caused
[Howard], who was not afforded the opportunity to wear a seatbelt and who was
also re[s]trained, to violently slam into the compartment wall inside the transport
van.‖ Howard further alleged that he underwent back surgery after the incident
and that his medical bills totaled $62,518.32.
Trial was to the court in June 2010. Howard did not attend the trial in
person, but he was represented by counsel. Excerpts from Howard’s deposition
were read into the record as his trial testimony.
Howard testified that on January 6, 2006, he was being transported by van
from the Mansfield Law Enforcement Center to the Tarrant County Corrections
Center along with several other inmates. He was handcuffed to the man next to
him and was sitting on a bench facing the opposite side of the van, but he did not
have a seatbelt. Howard further testified that traffic was heavy that morning and
that the sheriff’s deputy drove the van at high speed while weaving and
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―zigzagging‖ in and out of traffic. Howard said that his vision out the front window
of the van was blocked by the other inmates but that the van approached
stopped traffic, that the deputy slammed the brakes, and that the sudden stop
caused Howard to be thrown forward and then backward into the back doors of
the van.
Tarrant County Sheriff’s Deputy Matthew Woodson testified that he
transported Howard and others from Mansfield to Fort Worth and that traffic was
heavy for most of the drive. Deputy Woodson agreed that he had to quickly
apply his brakes during the trip because cars in front him stopped without
warning, but he denied driving erratically, speeding, or weaving in and out of
traffic. Deputy Woodson also testified that the van did not contact any other
vehicles or even come to a complete stop.
At the conclusion of the trial, the trial court stated on the record that it
found that neither Tarrant County nor the officer was negligent, and the trial court
subsequently signed a take-nothing judgment in favor of Tarrant County.
III. Discussion
Howard argues in three issues that the trial court erred by accepting his
counsel’s waiver of a jury trial, that the trial court erred by admitting into evidence
his eight prior felony convictions, and that he received ineffective assistance of
counsel.
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A. Waiver of Jury Trial
Howard contends in his first issue that the ―trial court erred by denying [his]
right to jury trial, by accepting waiver of jury trial without agreement, signature[,]
or admonishment to [Howard]‖ and that he has a ―7th Amendment Right to trial
by jury.‖ However, ―[t]he United States Constitution does not guarantee the right
to a trial by jury in any state court in any character of civil action.‖ Baca v. City of
Dallas, 796 S.W.2d 497, 498 (Tex. App.—Dallas 1990, no writ) (citing White v.
White, 108 Tex. 570, 579, 196 S.W. 508, 511 (1917); Huguley v. Bd. of
Adjustment, 341 S.W.2d 212, 217 (Tex. Civ. App.—Dallas 1960, no writ)). In
addition, the case Howard cites in support of his argument, RDO Financial
Services Co. v. Powell, 191 F. Supp. 2d 811, 813 (N. D. Tex. 2002), is easily
distinguishable because it involves federal rather than Texas procedure. Even
so, it provides that in federal civil actions, the right to a jury trial is protected by
the Seventh Amendment but may be waived. Id. Thus, Howard’s reliance on the
Seventh Amendment and RDO is not persuasive.
In Texas, even when a jury trial has been requested and a jury fee paid,
the case may still be removed from the jury docket if there is no objection from
any party. See, e.g., In re J.N.F., 116 S.W.3d 426, 434–35 (Tex. App.—Houston
[14th Dist.] 2003, no pet.). Moreover, a lawyer may take action that is binding on
the client. See, e.g., Abramson v. Abramson, 788 S.W.2d 860, 863 (Tex. App.—
Houston [14th Dist.] 1990, writ denied) (holding lawyer’s consent to submit case
to master was valid but noting that client also participated without objection
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before discharging her counsel). Here, Howard’s counsel stated on the record at
the beginning of the trial that the parties had reached an agreement to waive a
jury trial. According to Tarrant County, Howard’s counsel agreed to waive a jury
trial in exchange for Tarrant County’s agreement not to seek a ruling on its
motion to exclude the medical bills affidavits from Howard’s medical providers.
We are not aware of any authority—and none has been cited to us by the
parties—that a lawyer’s consent to waive a jury trial in a civil case is not binding
on the client. Thus, we hold that the trial court did not err by accepting the
statement by Howard’s counsel that the parties had reached an agreement to
waive a trial by jury. We therefore overrule Howard’s first issue.
B. Ineffective Assistance of Counsel
Howard argues in his third issue that his attorney was ineffective for
waiving a jury trial and by failing to present evidence of Tarrant County’s failure
to supply safety restraints. However, the constitutional right to effective
assistance of counsel has been extended only to certain civil proceedings in
Texas. See In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2003) (holding there is a
right to effective counsel in parental-rights termination cases); In re Protection of
H.W., 85 S.W.3d 348, 355–56 (Tex. App.—Tyler 2002, no pet.) (noting there is a
right to effective counsel in involuntary civil commitment cases). This case is a
personal injury lawsuit, and Texas courts have expressly declined to extend a
right to effective assistance of counsel to personal injury lawsuits. See Guerrero
v. Boyd, No. 01-07-00465-CV, 2008 WL 5178563, at *1 (Tex. App.—Houston [1st
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Dist.] Dec. 11, 2008, no pet.) (mem. op.) (―The Sixth Amendment right to
effective assistance of counsel, however, does not extend to civil cases such as
this personal-injury lawsuit.‖); Parker v. Fort Worth Transp. Auth., No. 02-03-
00213-CV, 2004 WL 868741, at *1 (Tex. App.—Fort Worth Apr. 22, 2004, no
pet.) (mem. op.) (overruling issue concerning alleged ineffective assistance of
counsel in a civil negligence suit). We therefore overrule Howard’s third issue.
C. Admission of Evidence
Howard contends in his second issue that the trial court erred by admitting
his eight prior felony convictions into evidence. Tarrant County responds that the
prior convictions are admissible under rule of evidence 609.
A trial court’s rulings in admitting evidence are reviewable under an abuse
of discretion standard. Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex.
2011); In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). An appellate court must
uphold the trial court’s evidentiary ruling if there is any legitimate basis in the
record for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35,
43 (Tex. 1998).
Howard is correct in his assertion that evidence of character is not
generally admissible in civil cases, see generally Bexar Cnty. Appraisal Review
Bd. v. First Baptist Church, 846 S.W.2d 554, 562 (Tex. App.—San Antonio 1993,
writ denied), but there are several exceptions to the general rule. One such
exception is rule of evidence 609. As relevant here, rule 609 states:
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(a) General Rule. For the purpose of attacking the credibility
of a witness, evidence that the witness has been convicted of a
crime shall be admitted if elicited from the witness or established by
public record but only if the crime was a felony or involved moral
turpitude, regardless of punishment, and the court determines that
the probative value of admitting this evidence outweighs its
prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the
date of the conviction or of the release of the witness from the
confinement imposed for that conviction, whichever is the later date,
unless the court determines, in the interests of justice, that the
probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.
Tex. R. Evid. 609(a), (b). Where a party’s credibility as a witness is at issue, a
conviction that otherwise meets the requirements of rule 609 is admissible in
evidence. See Oyster Creek Fin. Corp. v. Richwood Inv. II, Inc., 176 S.W.3d
307, 316 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
In this case, Tarrant County offered, as defense exhibits two through nine,
certified copies of Howard’s eight prior felony convictions. Contained within the
exhibits is a May 2006 judgment of conviction for two counts of robbery by
threats, for which Howard received concurrent sixty-year sentences. The other
seven exhibits reflect judgments of conviction, all dated April 6, 1995, for robbery
by threats and robbery causing bodily injury. Howard’s trial counsel objected that
the prior convictions were not relevant, and Tarrant County responded that
because the two parties were offering very different versions of what happened
during the incident, Howard’s credibility was very much at issue in the case. The
trial court overruled the objection and admitted each of the exhibits.
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Howard’s credibility was an issue in this case because his testimony
presented a starkly different version of events than the testimony by Deputy
Woodson, and the trial court was necessarily required to weigh the credibility of
the obviously conflicting testimony. See generally id. With that in mind, the
certified copy of Howard’s May 2006 judgment of conviction for robbery by threat
was admissible because it reflected a felony conviction within the applicable time
limit and was probative of Howard’s credibility. See id.; see also Tex. R. Evid.
609(a), (b). Howard’s 1995 convictions were also admissible because he
testified on cross-examination that he was released from confinement for those
convictions approximately eighteen months before this incident occurred in
January 2006. Thus, he had been released from confinement for the 1995
convictions less than ten years before the June 2010 trial in this case, and rule
609(b) does not preclude their admission into evidence. See Tex. R. Evid.
609(b). Each of Howard’s convictions are therefore within the parameters of rule
609. See Tex. R. Evid. 609(a), (b). Moreover, Howard did not argue at trial and
has not argued on appeal that the probative value of his convictions did not
outweigh their prejudicial effect. See Tex. R. Evid. 609(a). Thus, we cannot
conclude that the trial court abused its discretion by admitting into evidence the
exhibits reflecting his 2006 and 1995 felony convictions, and we overrule
Howard’s second issue.
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IV. Conclusion
Having overruled each of Howard’s three issues, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.
DELIVERED: March 15, 2012
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