Opinion
No. 04-04-00430-CV
Delivered and Filed: April 6, 2005.
Appeal from the 216th Judicial District Court, Gillespie County, Texas, Trial Court No. 8606, Honorable Steven B. Ables, Judge Presiding.
Affirmed.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
The underlying lawsuit arises from a dispute in which three police officers stepped onto private property to forcibly remove their softball from the hands of the property owner. In the underlying lawsuit, appellant, Vern Hallmark, alleged he sustained injuries from the appellees' use of excessive force while appellees were acting in their official capacities as members of the Police Department of the City of Fredericksburg. Finding no reversible error, we affirm.
BACKGROUND
Appellees, Steve Wetz, Elgin Durst, and Felix Castaneda, all officers with the City of Fredericksburg Police Department, were playing softball in a field near Hallmark's mobile home park. An errant softball traveled through a wire fence around Hallmark's property and landed on his property. Hallmark retrieved the softball. Wetz demanded the return of the ball. Hallmark refused. Wetz threatened arrest. At some point in time, Wetz climbed over the fence onto Hallmark's property. Durst and Castaneda decided to join the dispute, also climbing over the fence onto Hallmark's property. Hallmark held the softball behind his back. The three officers surrounded Hallmark, and Wetz grabbed for the ball, injuring Hallmark's finger. Hallmark sued on several causes of action. The suit eventually went to trial on Hallmark's allegations that his constitutional rights had been violated.
A jury found that Wetz, Durst, and Castaneda did not intentionally deprive Hallmark of his constitutional rights. On appeal, Hallmark asserts the trial court erred in (1) denying his motion to transfer venue, (2) permitting a witness to be present in the courtroom after the rule had been invoked, (3) denying his requested jury instructions and special questions, and (4) not informing the jury of an appellate court opinion.
MOTION TO TRANSFER VENUE
Prior to trial, Hallmark filed a motion to transfer venue, alleging he could not receive a fair trial in Gillespie County because "the citizens of this community . . . are either loyal to or fear retaliation from the City of Fredericksburg and the police officers." In support of his motion, Hallmark attached his own affidavit, as well as the affidavits of five other individuals. Each affiant stated the same complaint: that Hallmark would not receive a fair trial because he was "an outsider." Appellees objected to the motion, and attached the affidavits of four individuals. Each of these affiants stated the same response: that the citizens of Gillespie County were fair and open-minded people who welcome visitors and new residents. The issue thus formed, the trial court held a hearing, following which, the court denied the motion.
Any party in a civil cause may move for a change of venue on the ground that an impartial trial cannot be had in the county where the action is pending. Tex. R. Civ. P. 257(c). The motion to transfer venue must be supported by the movant's affidavit and the affidavit of at least three credible persons, residents of the county in which the suit is pending. Tex. R. Civ. P. 257. If the motion is challenged as permitted by Texas Rule of Civil Procedure 258, the trial court must try the issue. Tex. R. Civ. P. 258; City of Abilene v. Downs, 367 S.W.2d 153, 155 (Tex. 1963). A motion to transfer venue may be challenged, as it was in this case, on the grounds of the truth of the facts set forth in the motion. Tex. R. Civ. P. 258. It is the movant's burden to prove the facts upon which his motion for change of venue is based, and the trial court's decision must stand unless an abuse of discretion is shown. See Governing Board v. Pannill, 659 S.W.2d 670, 688-89 (Tex.App.-Beaumont 1983, writ ref'd n.r.e.).
At the hearing, although Hallmark's counsel stated he was prepared to put on two or three witnesses to confirm their affidavits, no witnesses were presented by either side. Although ordinarily an evidentiary hearing should be conducted in a venue challenge, in this case, after hearing counsels' arguments, the trial court stated it would rule based on the affidavits. Neither party objected, and Hallmark did not insist that his witnesses be heard. On this record, we cannot say the trial court erred by refusing to transfer venue on the grounds of inability to obtain a fair trial.
INVOCATION OF "THE RULE"
On appeal, Hallmark asserts the trial court erred by allowing a defense witness to remain in the courtroom after his attorney had invoked the rule under which witnesses may not remain in the courtroom, absent certain exceptions. See Tex. R. Civ. P. 267. Appellees had designated as a witness Fredericksburg Police Chief Oestreich. After invoking the rule, the trial court asked appellees' counsel if he wanted to have the rule limited as to Chief Oestreich, and defense counsel responded that he did. The trial court allowed Chief Oestreich to remain in the courtroom as a representative of the Fredericksburg Police Department. Hallmark did not object; therefore, his complaint on appeal is waived. See Tex.R.App.P. 33.1(a).
JURY INSTRUCTIONS AND QUESTIONS
A trial court has great discretion in submitting jury questions. See Rendleman v. Clarke, 909 S.W.2d 56, 60 (Tex.App.-Houston [14th Dist.] 1995, writ dism'd as moot). It has even greater discretion in submitting instructions and definitions. Wal-Mart Stores, Inc. v. Middleton, 982 S.W.2d 468, 470 (Tex.App.-San Antonio 1998, pet. denied). The discretion afforded to the trial court is not absolute, however. Id. The court's discretion is subject to the requirement that the questions submitted must control the disposition of the case, be raised by the pleadings and evidence, and properly submit the disputed issues for the jury's deliberation. Rendleman, 909 S.W.2d at 60. A trial court must submit instructions "as shall be proper to enable the jury to render a verdict." Tex. R. Civ. P. 277. For an instruction to be proper, it must: (1) assist the jury, (2) accurately state the law, and (3) find support in the pleadings and evidence. See Tex. R. Civ. P. 277, 278. An instruction that misstates the law as applicable to the facts, or one that misleads the jury, is improper. See generally Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87, 90 (Tex. 1973). Generally a court must whenever feasible submit a cause upon broad-form submissions. See Tex. R. Civ. P. 277. We may not reverse a judgment on grounds the trial court erred unless we conclude the error probably caused the rendition of an improper judgment. See Tex.R.App.P. 44.1(a)(1). To determine whether an improper jury charge constitutes reversible error, we must consider the pleadings, the evidence, and the charge in its entirety. See Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass'n, 710 S.W.2d 551, 555 (Tex. 1986); Rivas v. Garibay, 974 S.W.2d 93, 95 (Tex.App.-San Antonio 1998, pet. denied).
Hallmark first complains the trial court erred in refusing to submit his proposed instruction number 2. The jury charge contains an instruction identical to that proposed by Hallmark, with one difference. Hallmark's proposed instruction included the text of the Fourth and Fourteenth Amendments to the United States Constitution. The trial court modified proposed instruction number 2 by deleting the language of the two amendments. Hallmark also asserts the trial court erred in refusing to submit his proposed special question number 1, which asked whether the jury found "from a preponderance of the evidence that the Defendants, the police officers listed below, intentionally committed acts that violated Plaintiff's federal constitutional right not to be subjected to excessive or unreasonable force?" The trial court modified the proposed question, and submitted the following question to the jury: whether one or more of the appellees "intentionally deprived Vern Hallmark of his Constitutional rights." Hallmark asserts the trial court erred because the question submitted to the jury did not define the specific rights allegedly violated.
The jury instruction tracked the requirements of a 1983 claim, which requires a plaintiff to prove the following: (1) the defendants intentionally committed acts that violated one or more of plaintiff's federal rights; (2) in doing so, defendants acted "under color" of the authority of state law; and (3) defendants' acts were the legal cause of plaintiff's damages. See 42 U.S.C. § 1983; Hunt v. Steve Dement Bail Bonds, Inc., 914 F. Supp. 1390, 1392 (W.D. La. 1996), aff'd, 96 F.3d 1443 (5th Cir. 1996). The jury was instructed that citizens are "protected against the use of excessive force by the Fourth Amendment to the Constitution[,]" and that Hallmark was required to prove by a preponderance of the evidence that "some harm" "[r]esulted directly and only from the use of force [by appellees] that was clearly excessive to the need; and the excessiveness of which was [o]bjectively reasonable in light of the circumstances at the time." Finally, the jury was instructed that the "reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than the 20/20 vision of hindsight." We conclude the trial court did not err in refusing to submit Hallmark's proposed instruction number 2 and his proposed special question number 1.
Hallmark next asserts the trial court erred in refusing to submit his proposed instructions numbers 3 and 4, which set forth Texas Penal Code sections 9.41 and 9.51. Section 9.41 allows the use of force against another to protect one's own property. See Tex. Pen. Code Ann. § 9.41(a) (Vernon 2003). Section 9.51 sets forth the circumstances under which a peace office is justified in using force. Id. § 9.51(a). Hallmark alleged one or more of the officers assaulted him and the three officers all trespassed on his property. Therefore, according to Hallmark, these instructions were necessary to explain the degree of force allowed under the circumstances. No defensive issue was submitted to the jury on Hallmark's use of force, if any. The issue of trespass was not before the jury because that claim had been previously disposed of by summary judgment in favor of the officers. See Hallmark v. City of Fredericksburg, No. 04-99-00519-CV, 2000 WL 730601 (Tex.App.-San Antonio June 7, 2000, pet. denied) (not designated for publication) (affirming trial court's summary judgment dismissing Hallmark's state tort claims against the City); Hallmark v. City of Fredericksburg, 94 S.W.3d 703 (Tex.App.-San Antonio 2002, pet. denied) (holding that because Hallmark's state intentional tort claims against Wetz, Durst, and Castaneda arise out of the same subject matter as his claims against the City, previous judgment for the City entitles Wetz, Durst, and Castaneda to summary judgment under Texas Civil Practice and Remedies Code section 101.106). Therefore, the trial court did not err in refusing to submit Hallmark's proposed instructions numbers 3 and 4.
Hallmark asserts the trial court erred in refusing to submit his proposed instruction number 5, which set forth the definition of "deprive" and the circumstances under which a person commits the offense of theft. See Tex. Pen. Code Ann. §§ 31.01(2), 31.03(a) (Vernon Supp. 2005). Hallmark argues this instruction was necessary because it explained to the jury that his actions in keeping the softball did not constitute theft under the Penal Code. Of the three officers, only Wetz testified he thought Hallmark was committing theft by refusing to return the softball. The issue of whether Hallmark stole the softball was not submitted to the jury. Therefore, we conclude the trial court did not abuse its discretion in refusing to submit Hallmark's proposed instruction number 5.
Hallmark asserts the trial court erred in refusing to submit his proposed instruction number 6, which stated that trespass to real property "require[d] a showing of unauthorized physical entry onto Plaintiff's property by some person or thing." Hallmark argues the definition was necessary to clarify that the officers trespassed on his property. It was not disputed at trial that the officers did not have Hallmark's permission to enter his property. Also, the issue at trial was the officers' alleged use of excessive force, not whether they committed trespass. Therefore, we conclude the trial court did not abuse its discretion in refusing to submit Hallmark's proposed instruction number 6.
Finally, Hallmark asserts the trial court erred in refusing his proposed special question number 2, which asked whether the jury found "from a preponderance of the evidence that the Defendants, the police officers listed below, fulfilled their legal duty to intervene to protect Plaintiff from use of excessive force by one or more of the others?" Hallmark argues the question was necessary because the law required the officers to intervene to protect him from excessive force. However, there was no dispute that none of the officers intervened on Hallmark's behalf. In fact, both Durst and Castaneda testified they came onto Hallmark's property to "back up" Wetz. The issue at trial was not whether the officers were required to protect Hallmark. The issue at trial, based upon Hallmark's 1983 claim, was whether his Fourth Amendment rights were violated by the officers' use of excessive force. Therefore, we conclude the trial court did not abuse its discretion in refusing to submit Hallmark's proposed special question number 2.
EVIDENTIARY RULING
At trial, none of the officers admitted that Hallmark's finger was broken during their attempt to retrieve the softball. Hallmark asserts the trial court erred in refusing to allow into evidence a copy of or any mention of a prior opinion of this court, in which this court stated, "It is also undisputed that Officer Wetz grabbed the softball from Hallmark's hands, thereby breaking Hallmark's finger." Hallmark, 94 S.W.3d at 709. At trial, none of the officers admitted that Hallmark's finger had been broken when they grabbed their softball out of Hallmark's hand. On appeal, Hallmark asserts this court's opinion should have been admissible because it is an opinion, like any other, admissible under Texas Rules of Evidence 702-705. We disagree.
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Zapata Co. Appraisal Dist. v. Coastal Oil Gas Corp., 90 S.W.3d 847, 851 (Tex.App.-San Antonio 2002, pet. denied). Evidence of Hallmark's broken finger was admitted at trial, in the form of his own testimony as well as that of the orthopedic surgeon who treated him. Under these circumstances, we conclude the trial court did not err in excluding this court's opinion from evidence. See Johnson v. Colt Indus. Operating Corp., 797 F.2d 1530, 1534 (10th Cir. 1986) ("[A] judicial opinion should be admitted as substantive evidence . . . only in the rarest of cases when no other form of evidence is available and then only with detailed limiting instructions.").
CONCLUSION
We overrule Hallmark's issues on appeal and affirm the trial court's judgment.