Barrera v. State, No. 14-04-01030-CR (TX 7/21/2005)
| Decision Date | 21 July 2005 |
| Docket Number | No. 14-04-01030-CR,14-04-01030-CR |
| Parties | EMMA G. BARRERA AND NICKOLAS S. BARRERA, Appellants, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Supreme Court |
On Appeal from the 248th District Court, Harris County, Texas, Trial Court Cause No. 427333-A.
Affirmed.
Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
Appellants, Emma G. Barrera and Nickolas S. Barrera, appeal from the trial court's final order granting turnover relief to the State of Texas and appointing a receiver to take possession of and sell certain real property owned by appellants. The State had previously obtained judgments, totaling $363,458.86, against Emma Barrera for twenty-two bail bond forfeitures on which she was the surety. The current lawsuit is an attempt by the State to collect on the prior judgments. Of importance to this appeal, a jury found that (1) appellants abandoned their homestead interest in certain property in Harris County, and (2) a ranch in Starr County was community property of appellants subject to their joint management, control, and disposition. Based on the jury's verdict, the trial court granted turnover relief on the Harris County and Starr County properties and appointed a receiver, who was authorized to take possession of and sell the properties to pay the prior judgments.
On appeal, appellants contend that (1) the trial court erred in instructing the jury on the law regarding abandonment of a homestead; (2) there is no evidence that Emma abandoned her homestead interest in the Harris County property; (3) the trial court erred in refusing to ask the jury when the homestead interest in the Harris County property was abandoned; and (4) there is no evidence that the Starr County ranch was joint management community property. We affirm.1
The primary issues at trial were (1) whether appellants abandoned their homestead interest in the Harris County property, and (2) whether the Starr County ranch was community property subject to joint management, control, and disposition. Regarding the first issue, appellants both testified that since 1967, when they bought the Harris County property, they have always intended to keep it as their homestead, except for one period when they were trying to sell the property but the sale was not consummated. They further stated that at no point did they intend for any other property to be their present homestead. They admitted that they moved back and forth between the Harris County property and property they owned in McAllen. Emma stated that they live in Harris County most of the time, but Nickolas stated that they were in McAllen most of the time.
In response, the State put on evidence, mostly through questioning of appellants themselves, that they had established a homestead in McAllen, thus abandoning the homestead interest in the Harris County property. This evidence included that: they moved most of their furniture to McAllen, their checking accounts are in the McAllen area, their driver's licenses have the McAllen address on them, they are registered to vote in McAllen, their primary medical providers are in the McAllen area, the family photographs are in McAllen, their magazines and bills go to the McAllen address, the address on their tax return is the McAllen address, Nickolas ran various businesses from the McAllen property, Emma has breathing problems that make it difficult for her to be in Harris County, and Nickolas requires dialysis, which is easier for him to schedule in McAllen. Additionally, their grown son and daughter currently reside at the Harris County property, and their son sleeps in the master bedroom and pays all the utilities. They attend church in both locales and have cars registered in both counties. Emma acknowledged that she does most of the shopping and cleaning at the McAllen property and that the utilities, insurance, and other expenses for the property are paid out of their joint checking account. She said that she signs the checks because of Nickolas's failing eyesight, although he approves the payments. The State also introduced a homestead designation signed by appellants in 1995 naming the McAllen property as their homestead. Nickolas testified that this was a mistake, and a letter he wrote to the county appraisal district in 1999 asked for the homestead designation to be corrected to list the Harris County property. He said that he was billed for and paid the difference in property taxes. Nickolas also admitted that he had previously been convicted of perjury.
The appellants did not and do not dispute that the Starr County ranch was community property; however, they testified that all of the funds used to purchase the ranch came from Nickolas's separate income and that he had sole management and control over the ranch. They also introduced a quitclaim deed from Emma disclaiming any rights, title, or interest in the ranch. Nickolas appeared to acknowledge that this quitclaim was signed because Emma should not have property in her name as a bondsman because it could be taken to pay for forfeitures.
In response, the State submitted copies of Emma's applications for renewal of her bondsman license, in which she stated alternately that the property was community property and her sole property. The State also elicited testimony from her that she and her husband both made decisions regarding paying taxes on the property. The jury found that appellants abandoned their homestead interest in the Harris County property and that the Starr County ranch was community property subject to joint management, control, and disposition.
In their first issue, appellants contend that the trial court erred in instructing the jury on the abandonment of a homestead. In Question One, the court asked, "Do you find from a preponderance of the evidence that Nickolas Barrera and Emma Barrera abandoned their homestead interest in the property located at 6934 Heron Drive, Houston, Texas?" In the General Instructions and Definitions section of the charge, the court included the following regarding abandonment of a homestead:
A family may not have more than one homestead. Once a homestead is established, the homestead character of property continues until it is abandoned. The party asserting that homestead rights have been abandoned has the burden of proof by a preponderance of evidence. Abandonment is to be determined from all of the evidence before the jury. The acquisition of a new homestead operates as an abandonment of a prior homestead. An abandonment of a homestead may also be shown by the lack of a definite intention to return and use and occupy the property as a homestead.
Appellants submitted a proposed instruction that included several points similar to the submitted instructions and added a few additional factors. Appellants maintain that their proposed submission is an accurate statement of the law and thus should have been included in the charge.2 However, just because a proposed instruction is an accurate statement of the law does not mean that the trial court must submit it to the jury. Instead, "the trial court's duty is to submit only those questions, instructions, and definitions raised by the pleadings and the evidence." Harris County v. Smith, 96 S.W.3d 230, 236 (Tex. 2002); see also TEX. R. CIV. P. 277 (). A trial court has wide discretion in determining the sufficiency of instructions and definitions. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995).
We shall now address each of the sentences in appellants' proposed submission and determine whether they should have been submitted. Appellants' proposed submission reads as follows (with numbers inserted for ease of reference):
[1.] Did Emma Barrera and Nickolas Barrera abandon their homestead at 6934 Heron Dr., Houston, Texas? [2.] If an owner of property claimed as homestead is married, that owner may not abandon the homestead without the consent of the spouse of the owner. [3.] Once homestead rights are shown to exist in property, they are presumed to continue, and anyone asserting abandonment has the burden of proving it by competent evidence. [4.] While occupying a property as homestead, a person cannot establish a homestead right in another place by attempting to live there in the future. [5.] It is the acquisition of a new homestead, not merely the acquisition of a new home, which operates as an abandonment of homestead rights. [6.] Abandonment of a homestead requires both the cessation or discontinuance of use of the property as a homestead, coupled with the intent to permanently abandon the homestead. [7.] The evidence relied on as establishing abandonment of a homestead must make it undeniably clear that there has been a total abandonment with an intention not to return and claim the exemption. [8.] The homestead claimant's proceeds of a sale of a homestead are not subject to seizure for a creditor's claim for six months after the date of sale. [9.] The proceeds of a voluntary sale of the homestead are protected from creditors for six months, giving a reasonable time in which to invest the proceeds in another home.
The first sentence is the basic question on abandonment and is substantially similar to the question submitted by the trial court. Likewise, the third sentence (concerning the continuance of a homestead interest until abandoned) and the fifth sentence (concerning the acquisition of a new homestead) were substantially similar to instructions submitted by the court.
Regarding appellants' second requested sentence, concerning consent by one spouse to abandoning a homestead owned by the other spouse, appellants cite no evidence,...
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