Silva v. Enz

• Decision Date: 29 April 1993
• Docket Number: No. 13-91-652-CV,13-91-652-CV
• Citation: 853 S.W.2d 815
• Parties: Maria Emma SILVA, as next friend of E.L.S., a minor child, Appellant, v. Linda ENZ, individually and as Administratrix of the Estate of David Veston Enz, deceased, and as next friend of Jason Charles Enz, a minor child and Jason Charles Enz, a minor child, individually, Appellee.
• Court: Texas Court of Appeals

Page 815

853 S.W.2d 815

Maria Emma SILVA, as next friend of E.L.S., a minor child, Appellant, v. Linda ENZ, individually and as Administratrix of the Estate

of David Veston Enz, deceased, and as next friend of Jason

Charles Enz, a minor child and Jason Charles Enz, a minor

child, individually, Appellee.

No. 13-91-652-CV.

Court of Appeals of Texas,

Corpus Christi.

April 29, 1993.

Rehearing Overruled May 27, 1993.

Ruben R. Pena, Martinez, Barrera & Pena, Harlingen, Michael E. Hearn, Jones, Galligan & Key, Weslaco, for appellant.

Jose E. Garcia, Garcia & Ramirez, McAllen, Joy M. Soloway, Fulbright & Jaworski, Houston, for appellee.

Before SEERDEN, KENNEDY, and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

SEERDEN, Justice.

This is an appeal from a paternity suit. Maria Silva, as next friend of her daughter E.L.S., appellant, brought this action seeking to establish that David Veston Enz, deceased, is E.L.S.'s biological father. The trial court entered judgment in favor of Enz's minor son, the appellee and the only remaining defendant at trial, based upon a jury's failure to find that Enz was E.L.S.'s biological father. Silva appeals, raising six points of error complaining about the legal and factual sufficiency of the evidence and the trial court's action in excluding from evidence a final judgment in a related lawsuit whereby the court found that Mr. Silva was not the biological father of E.L.S. We affirm the trial court's judgment.

By points one through five, Silva complains about the sufficiency of evidence supporting the answer to the only question submitted to the jury. The question submitted to the jury was "[d]o you find that David Veston Enz was the biological father of [E.L.S.]?". The jury answered "no." Silva argues that the evidence conclusively established as a matter of law that Enz was the biological father and, in the alternative, that the jury's answer was so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Silva argues that the jury's failure to find Enz as E.L.S.'s biological father was the result of passion and prejudice and was in total disregard of the evidence presented.

When an appellant attacks the legal sufficiency of a failure to find an issue upon which he had the burden of proof, he must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). In reviewing an "as a matter of law" challenge, we conduct a two-step analysis. Initially, we examine the record for evidence supporting the failure to find, while ignoring all evidence to the contrary. Id.; see also Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). Secondly, if there is no evidence to support the failure to find, we then examine the entire record to determine whether the proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex.1986). If the contrary proposition is established conclusively by the evidence, the point will be sustained. Meyerland Community Improvement Ass'n v. Temple, 700 S.W.2d 263, 267 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

Silva's alternative contention is that the jury's finding, upon which she had the burden of proof, is against the great weight and preponderance of the evidence. The applicable standard of review requires us to examine the entire record to determine whether some evidence supports the failure to find, and then determine, in light of the record, whether the failure to find is manifestly unjust. Traylor v. Goulding, 497 S.W.2d 944, 945 (Tex.1973). We heed the supreme court's admonishment that we are to be mindful that the jury was not convinced on the issue by a preponderance of the evidence. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). Reversal is warranted only when the great weight of the evidence supports an affirmative answer. Id.; Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983).

The general rule is that the trier of fact, in this case the jury, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Garcia v. Dependable Shell Core Machines, Inc., 783 S.W.2d 246, 248 (Tex.App.--Corpus Christi 1989, no writ). In resolving contradictions and conflicts, the jury may choose to believe all, part, or none of the testimony of any one witness in arriving at the finding it concludes was the most reasonable under the evidence. Id.

Silva contends that she testified clearly, unequivocally, and pointedly that Enz was the child's biological father. She contends that there was no contrary evidence presented.

At trial, the only witness to testify was Maria Emma Silva, E.L.S.'s mother. The evidence at trial showed that Silva met Enz at Su Clinica Familiar soon after he arrived in 1973. She was working there and Enz was a doctor on staff. When they met, Silva and Enz were both married to other people. Silva explained that Enz was having trouble in his marriage and she believed that issue brought them together and then they fell in love. Silva separated from her husband, Noe Silva, in early 1975 and continued to see Enz.

While separated from her husband, in January 1976, Silva testified that she became pregnant with Enz's child. She knew that it was Enz's child because the only sexual relations she had were with Enz. Later that year, approximately two months before E.L.S.'s birth, Enz moved to Houston and Silva and her husband ended their separation. E.L.S.'s birth certificate, baptismal records, and school records list Noe Silva as E.L.S.'s father.

Silva testified that David Enz was the father of E.L.S. although she was married at the time of conception to Noe Silva. After E.L.S.'s birth, Silva stated that Enz helped support E.L.S., and although he moved to Houston, he telephoned her and talked to E.L.S. At trial, Silva introduced letters into evidence which she claimed Enz wrote to her in which he recognized E.L.S. as "our daughter." During cross-examination, when she was questioned about the letters, she acknowledged that one of the letters had no date while the other, though dated with the month and day, showed no year.

Silva also testified about her relationship with her husband. They have been married thirty years and have six children, two of which were born after E.L.S. Silva admitted that she and her husband have always credited themselves as E.L.S.'s parents. Also, Silva stated that by this lawsuit, she was not seeking to have E.L.S.'s documents changed to reflect Enz as the biological father.

The testimony of an interested witness may establish a fact as a matter of law only if the testimony is clear, direct, and positive, and there are no circumstances tending to discredit or impeach it. See Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex.1989). Additionally, it is not necessary for one side to negate by affirmative evidence the evidence presented by the other side. The jury is free to simply disbelieve such evidence. McInnes v. Yamaha Motor Corp., 659 S.W.2d 704, 708 (Tex.App.--Corpus Christi 1983), aff'd, 673 S.W.2d 185 (Tex.1984), cert. denied, 469 U.S. 1107, 105 S.Ct. 782, 83 L.Ed.2d 777 (1985). The uncorroborated testimony of an interested witness is not binding upon a jury, but raises an issue of fact. Greenway Bank & Trust v. Smith, 679 S.W.2d 592, 597 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.) (citing R.T. Herrin Petroleum Transp. Co. v. Proctor, 161 Tex. 222, 338 S.W.2d 422, 427 (1960)). Moreover, the jury is free to reject an interested witness's uncorroborated testimony based upon its observation of the witness's demeanor, attitude, and similar factors incapable of reproduction in the written record. Id. at 598.

After carefully reviewing the evidence, we conclude that it was not error for the jury to fail to find that Enz was the biological father of E.L.S. Silva's uncorroborated testimony was not direct, clear, and positive, and there were circumstances tending to discredit or impeach her testimony. No witness other than Silva authenticated Enz's handwriting. Additionally, we note that there were no blood tests taken relating to the case. Silva's testimony did not establish that Enz was E.L.S.'s biological father as a matter of law. Additionally, we conclude that the jury's finding was not against the great weight and preponderance of the evidence as to be manifestly unjust. We overrule points one through five.

By point six, Silva contends that the trial court erred by excluding from evidence a court order from a related case in which the court found that Silva's husband was not E.L.S.'s biological father. We conclude that the trial court did not err by refusing to admit the prior judgment.

To obtain reversal of a judgment based on error in the admission or exclusion of evidence, appellant must show that the trial court's ruling was in error and that the error was calculated to cause and probably did cause rendition of an improper judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); Tex.R.App.P. 81(b)(1). Reversible error does not usually occur unless appellant can demonstrate that the case turns on the particular evidence admitted or excluded. See Shenandoah Assocs. v. J & K Properties, Inc., 741 S.W.2d 470, 493 (Tex.App.--Dallas 1987, writ denied); Atlantic Mut. Ins. Co. v. Middleman, 661 S.W.2d 182, 185 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.).

At trial, Silva attempted to introduce the final judgment from the earlier paternity suit. Silva's reason for attempting to introduce the previous judgment was because opposing counsel brought up the issue of Mr. Silva's paternity or nonpaternity during voir dire and his opening statement. Silva contends that the prior judgment was competent evidence to rebut opposing counsel's statements. Silva argues on appeal that by the jury's refusal to find Enz was...