Wachovia Bank of Delaware, N.A. F/K/A First Union National Bank of Delaware v. Marjorie Gilliam and Patsy Charline Fowler

Citation: Not availableDocket: 10-04-00038-CV

Court: Court of Appeals of Texas; June 29, 2005; Texas; State Appellate Court

Original Court Document: View Document

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In the case of Wachovia Bank of Delaware, N.A. v. Marjorie Gilliam and Patsy Charline Fowler, the Tenth Court of Appeals addressed the effectiveness of service of process under long arm statutes, determining that it was not necessary to decide on the potential defects in service as outlined in section 17.045. Chief Justice Tom Gray expressed his disagreement with the majority’s inclusion of certain dicta in the opinion, which he believed was inappropriate and questioned the conclusions drawn from it. He indicated that he could only concur in the result of the opinion rather than the opinion itself.

In a separate matter, Denis Hanley and his son, Denis Hanley, Jr., were convicted of misdemeanor assault, with the court imposing a twelve-month jail sentence probated for twenty-four months. Both appellants raised two points of error; they contended that the trial court improperly suppressed evidence that could have impeached the complaining witness's testimony. Additionally, Hanley sought recusal of the district attorney's office due to perceived impropriety, while Denis challenged jury instructions regarding "provoking the difficulty." The court affirmed the judgment.

The trial evidence indicated that on February 5, 1993, a confrontation arose involving Angela Hanley and Patrick Wright, leading to Denis Hanley and his son responding with a baseball bat to protect Angela. Testimonies varied regarding the escalation of the conflict at a parking lot, with Denis ultimately striking Wright, who fell, and Denis facing an aggressive crowd afterwards.

Matthew Eubanks testified to witnessing an altercation involving his friend Wright in a parking lot. Eubanks remained in his car while Wright approached Hardwick, at which point Hanley confronted Wright aggressively, putting his finger in Wright's face and subsequently shoving him. This led to Wright jumping down a level in the parking lot, where Denis struck him, causing Wright to fall and be kicked in the face multiple times. Eubanks noted that prior to the attack, Wright had not shown any aggression.

Patrick Wright described being pushed by Hanley, who was yelling and making threats about his life and family. He observed Denis clenching his fists but did not see who initially hit him. He sustained serious injuries, including a broken nose and a swollen eye.

Denis Hanley, Sr. recounted that he and his son Denis approached Wright to remind him to stay away from their daughter Angela, who had reported Wright's unwanted attention. They remained in their vehicle until they saw Wright exit aggressively. Hanley engaged with Wright, who was cursing and leaning over him. Denis then struck Wright twice after observing Wright's hand movements that suggested he was about to attack Hanley. Following the punches, Wright fell unconscious face-first onto the asphalt.

Denis denied intentions to assault Wright and explained he took a baseball bat for self-defense, fearing a confrontation with a large group. Eubanks estimated the crowd at around fourteen, while Hanley claimed there were forty or fifty people present. Dr. George Smith, who treated Wright, confirmed that Wright had been knocked unconscious and exhibited injuries consistent with being punched or kicked.

Appellants argue that the trial court improperly suppressed evidence that could have impeached the testimony of the complaining witness, Pat Wright, thereby misleading the jury about his character and preventing effective cross-examination on his credibility and bias. The State contends that the appellants failed to preserve this complaint as they did not attempt to admit the evidence under Rule 612(b). Before the trial, the State filed a Motion in Limine to exclude references to a prior sexual assault by Wright against Angela in July 1992. Appellants claimed this evidence was admissible under Rule 404(a)(2) to demonstrate Wright's character or under Rule 404(b) for motive and opportunity. Testimony revealed that in July 1992, Angela, aged fifteen, had been socializing with Wright and, during an incident, he allegedly assaulted her. After this incident, Angela faced harassment at school, leading her father, Hanley, to file charges against Wright, which were later dropped. Following a confrontation with Wright, Hanley expressed concerns for Angela's safety and a desire to discourage Wright from further contact. The trial judge ruled there was insufficient evidence of Wright's violent propensity and granted the State's motion. After Wright's testimony, appellants argued that the State had "opened the door" to introduce the evidence related to the assault, which they claimed was relevant to their self-defense theory. The court found that self-defense had not yet been established. An offer of proof presented by Angela confirmed the details of the prior assault, where she indicated that her consent was initially given but later revoked, with Wright continuing despite her requests to stop.

Angela recounted an incident involving Wright, where after being told to stop a behavior, he became angry and went to sleep. The following day, Angela and her friends informed their parents about the situation, leading to Hanley filing criminal charges against Wright. Angela testified that news of these charges spread quickly, and she experienced harassment at school, although Wright never directly threatened her. Hanley confirmed that after the incident in July 1992, he secured assurances from Wright and his mother for him to avoid Angela. Despite filing charges, Hanley later withdrew them at Angela's request due to ongoing harassment she faced. He later confronted Wright about adhering to their agreement, warning of possible re-filing of charges.

During court proceedings, counsel for Denis sought to introduce evidence of past incidents involving Angela to establish her character and whether Denis's use of force was justified. Hanley's counsel argued for the relevance of this evidence regarding the intentions of the appellants during their encounter in the parking lot. The court noted that the jury was already aware of the previous relationship and tensions between the parties, as well as statements made by Hanley about Wright's impact on Angela's life. The court was hesitant to allow Angela to testify publicly. 

To preserve complaints for appellate review, timely and specific objections must be made, and the points raised during trial must align with those on appeal. The appellants sought to admit evidence under various legal theories but did not address limited cross-examination until after the trial. Although cross-examination should reveal potential bias, the burden of showing relevance rests on the proponent, and the trial judge has discretion over its parameters. The judge must weigh the probative value against potential prejudicial effects, and the decision will not be overturned without an abuse of discretion. The court found no abuse of discretion in excluding evidence regarding a prior sexual assault. Additionally, Hanley's motion to recuse the district attorney's office due to perceived impropriety was denied.

Hanley filed a pro se motion to appoint a prosecuting attorney pro tem, citing a conflict of interest involving the District Attorney, and requested that an assistant attorney general be appointed. He later submitted a motion to recuse the prosecutor, referencing a previous case, but both motions were denied without a hearing. The trial court ruled that the district attorney could not be disqualified based solely on a conflict of interest that did not constitute a due-process violation. Hanley argued that his prosecution was unfairly influenced by his prior grievances against an assistant district attorney, alleging that the prosecutor's bias led to a felony charge instead of a lesser offense. He also claimed the district attorney was aware that the investigating officer lacked proper licensing. Ultimately, Hanley was tried for misdemeanor assault, with no law enforcement testimony presented. The court found that his allegations did not meet the threshold for a due-process violation necessitating disqualification of the district attorney.

Denis's first point of appeal contended that the jury instruction on "provoking the difficulty" improperly constrained his defense of a third person. The jury was instructed on self-defense, defense of a third person, and the implications of provoking difficulty. They were told to find Denis not guilty if they believed he reasonably thought his actions were necessary to protect Hanley. However, the instruction clarified that self-defense is unavailable if the defendant provoked the unlawful force. The jury instructions specified conditions under which the use of force in defense of a third person would not be justified, particularly if the person being protected had provoked the conflict. If the jury found that Denis’s actions intentionally provoked the situation leading to an assault by Patrick Wright, they were directed to find Denis guilty of assault.

Denis objected to the inclusion of the provocation issue in the charge, asserting that only Hanley provoked the incident, making the instruction irrelevant to his defense. He contested the language regarding Denis Hanley, Sr.'s actions, arguing that if provocation were charged, it should also reflect that Hanley Jr. shared the intent to provoke, rather than merely having knowledge of his father's actions. The court overruled his objections. 

Under Texas Penal Code Section 9.33, an individual can use force to protect a third person if they reasonably believe the third person is threatened and that their intervention is necessary. Section 9.31 states that force is not justified if the actor provoked the confrontation. The law positions the accused as if they were the third person, allowing them to act on that person's behalf if they reasonably believe the third person would be justified in using force.

In evaluating Denis's justification for using force to defend Hanley, the court determined that Denis must be viewed in Hanley's position. If Denis believed Hanley was justified in using force, he could act; if he knew Hanley had provoked the incident, he could not. The charge allowed the jury to find Denis 'not guilty' if they believed his use of force was necessary to protect his father, while also instructing that a defendant is not justified in using force if they know the person they are defending provoked the conflict. The jury was required to find that Hanley intended to provoke and that Denis was aware of this. The court concluded that the jury was adequately instructed regarding Denis’s defense, affirming that he could not reasonably believe he was justified in defending Hanley given his knowledge of Hanley’s provocation. Consequently, all points raised by Denis were overruled, and the judgments were affirmed.