Graff v. Whittle
| Decision Date | 17 June 1997 |
| Docket Number | No. 06-96-00056-CV,06-96-00056-CV |
| Citation | 947 S.W.2d 629 |
| Parties | Stanley GRAFF, Appellant, v. M.D. WHITTLE and Vernon Berry, Appellees. |
| Court | Texas Court of Appeals |
Donald H. Flanary, Jr., Vial, Hamilton, Koch, Knox, Dallas, for appellant.
James R. Rodgers, Moore, Payne, Clem, Rodgers, Paris, for appellees.
Before CORNELIUS, C.J., and GRANT and ROSS, JJ.
This is a case involving an alleged public road or easement across Stanley Graff's property. Graff appeals from a declaratory judgment in favor of M.D. Whittle and Vernon Berry. In its judgment, the trial court held that (1) the road is a public road and (2) Whittle and Berry have an easement in the road. In twenty-six points of error, Graff raises a Batson 1 challenge, challenges both holdings, raises evidentiary errors, and challenges the jury's negative finding on his counterclaim for damages.
Graff purchased the property in 1981. He contends that in 1983 and 1984 he built a new road from the entrance gate to the corner of the property of M.D. Whittle. Whittle and Berry contend that Graff merely improved an already existing road. Whittle used the road in logging his and Berry's land. When Graff told Whittle not to use the road, Whittle and Berry obtained an injunction against Graff. Graff countersued for damages and declaratory judgment. Whittle and Berry then amended their petition and also requested declaratory relief. The case was tried to a jury, and based on the verdict, the trial court entered judgment for Whittle and Berry. Graff appeals the declaratory judgment in favor of Whittle and Berry.
After voir dire, Graff's attorney filed a Batson motion challenging the peremptory strike exercised against Terry Eugene Jackson, a black venireman. Graff urged that absent "an affirmative showing of some reason for striking him then it is presumed as a matter of law that it was for an unconstitutional reason." Graff's point of error is that the trial court erred in failing to sustain his constitutional challenge to Whittle and Berry's strike because Whittle and Berry's counsel failed to articulate a race-neutral explanation for the strike.
The party challenging the strike must prove by a preponderance of the evidence that the strike was racially motivated. 2 This party has the initial burden of production to establish a prima facie case. 3
Whittle and Berry contend that Graff did not establish a prima facie case of discrimination. If a striking party, however, offered explanations for its strikes without objecting to the claimant's failure to establish a prima facie case, the striking party waives that objection. 4 In the present case, Whittle and Berry waived the argument that Graff failed to establish a prima facie case of discrimination by failing to object and by going forward with their explanations.
Having waived the prima facie showing, the burden of production shifts to the opposing party to come forward with race-neutral explanations for the peremptory strike. 5 Graff contends that Whittle and Berry's attorney did not articulate a race-neutral explanation relating to the particular characteristic of the venire member struck. Whittle and Berry's attorney offered the following explanation for the strike:
Mr. Jackson was one of the last jurors--or potential jurors that we used a peremptory challenge on. There was nothing about his responses that we used as a basis to strike; however, the responses of jurors number 27 and 28, ... we had them rated as--well, the highest rating I give for potential jurors. So we had to use all of our six strikes to get down to 27 and 28.
When the striking party offers race-neutral explanations, the burden shifts back to the complainant to prove that the explanations are mere pretext for discrimination. 6 After a Batson hearing, the trial court determines whether the party gave a racially neutral explanation for each questioned strike "and, if so, whether each explanation was truly race-neutral or merely a pretext for a racially motivated strike." 7
A court of appeals gives "[t]he trial court's decision on the ultimate question of discriminatory intent" great deference. 8 If the trial court overrules the challenge "without reducing his findings of fact and conclusions of law to writing or stating them on the record," a court of appeals infers the trial court's finding that the peremptory challenge was not based on race. 9
In the present case, the record shows that the trial court took judicial notice that the struck juror was black and that Graff's attorney offered no other evidence to show that the race-neutral explanation of Whittle and Berry's attorney was pretextual. Nothing was shown about the rating system used by Whittle and Berry's attorney to show that it was racially motivated. Nothing was shown about the other jurors that Whittle and Berry's attorney sought to reach. Nothing was shown about the racial makeup of the jury. After the striking party offers a race-neutral explanation, the reviewing court must determine whether the challenging party has proved purposeful racial discrimination, and the appellate court should not consider whether the race-neutral explanation is persuasive or even plausible. 10 As Justice O'Connor stated in her concurring opinion in Hernandez v. New York, 11 "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." 12
The trial court included no findings of fact or conclusions of law on his Batson ruling; therefore, we infer that the trial court made a finding that the strike was not based on race. The explanation given by Whittle and Berry's attorney was unusual in that it had nothing to do with the struck juror, but was an explanation based solely upon an effort to reach two other favorably rated jurors. If the record had shown that the other two jurors had been of a different race, this might be some evidence of the pretextual nature of this strike. The record in the present case, however, does not show whether the two jurors Whittle and Berry's attorney sought to reach were of the same or a different race than the juror struck.
Such incomplete data will not allow us to perform a statistical analysis or infer any racial motivation. We, therefore, must give deference to the trial judge and infer that the trial court's finding that the peremptory challenge was not based on race is correct. Having reviewed the record in its entirety in the light most favorable to the trial court's ruling, we overrule this point of error.
Graff next attacks the jury finding of a public road on the bases: (1) that as a matter of law, there was not a public road; (2) that no evidence supported the finding of a public road; (3) that no evidence supported the submission of Jury Question No. 1 asking the jury to determine whether there was a public road; and (4) that the evidence was legally and factually insufficient to support the finding of a public road.
We review a declaratory judgment under the same standards as for other judgments and decrees. 13 We view all the facts and circumstances in the light most favorable to the appellees. 14 "We look to the procedure used to resolve the issue at trial to determine the standard of review." 15 We affirm if the judgment is sustainable for any reason. 16 If a trial court's decision is correct on any theory of law applicable to the case, we will affirm. 17
In reviewing evidence for legal and factual sufficiency, we first must examine the record for any probative evidence to support the finding and ignore all contrary evidence. 18 If we find some probative evidence to support the finding, then we test the factual sufficiency by examining the entire record to determine whether the finding is clearly wrong and unjust. 19
A "matter of law" challenge is raised by the party which had the burden of proof on that issue. As the defendant, Graff did not have the burden of proof on any issue except his counterclaim. We therefore treat Graff's "matter of law" challenges as "no evidence" challenges, except under point of error twenty, bringing a "matter of law" challenge regarding his counterclaim.
If an appellant raises both "no evidence" and "insufficient evidence" points, we first rule on the "no evidence" point. 20 In reviewing a "no evidence" point, we view the evidence in the light most favorable to the finding, consider only evidence supporting the finding, indulge all reasonable inferences therefrom, and disregard all contrary or conflicting evidence and inferences. 21 We will sustain a "no evidence" point only if the record contains no more than a scintilla of evidence to support the trial court's finding. 22
In a declaratory judgment action, "the party asserting the affirmative of the controlling issues" bears the burden of proof. 23 In the present case, Whittle and Berry contended that they had a right to use the road because it was a public road and because they had an easement in the road. The judgment's effect is to give Whittle and Berry a right to use the road.
Whether a public road exists is a fact question. 24 The trial court's jury question asked the jury to find whether the road at issue was a public road created by express or implied dedication. The jury answered affirmatively. On appeal, Whittle and Berry take the position that the dedication was an implied dedication.
Graff asks this Court to take judicial notice that Red River County's population is 50,000 or less. Pursuant to Rule 201 of the Rules of Civil Evidence, we take judicial notice of the fact that Red River County's population is less than 50,000. 25
Graff contends on appeal that Sections 281.001 and 281.003 of the Transportation Code, 26 effective September 1, 1995, precludes an implied dedication in this case. The predecessor statute to Sections 281.001 and 281.003, Texas Revised Civil Statutes Ann....
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Graff v. Berry, No. 06-07-00058-CV (Tex. App. 2/20/2008)
...in question was a public road because it was the same road that was found to be a public road in Graff v. Whittle, 947 S.W.2d 629, 641 (Tex. App.-Texarkana 1997, writ denied) (Graff I). In addition, the commissioners claimed the public road included a sixty-foot right-of-way. The trial cour......
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...determination of whether a public right-of-way has been acquired by dedication is a question of fact. Lindner, 691 S.W.2d at 591; Graff, 947 S.W.2d at 635. As a general rule, the manifestation of an intent to dedicate must be something more than an omission, failure to act, or acquiescence ......
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