*1 COOK, Thomas Allan Relator MAYFIELD, Judge,
Hоnorable Alan 74th Court, District McLennan Texas, Respondent.
No. 10-94-283-CV. Texas, Appeals
Waco. Oct.
841 residency requirement of sec not deal Family does of the tion 3.21 bring right to suit. jurisdiction or the with (Tex. 29, Beavers, 30 545 S.W.2d Beavers v. writ) (on 1976, rehear Civ.App . —Waco maintain suit. right ing). It deals with proper is the vehi pleaA in abatement Id. Oak, residency. See Oak v. challenge cle to 834, (Tex.App 814 S.W.2d . —Houston denied). 1991, ar Thomas writ [14th Dist.] Ann that, granted, be relief not gues should residency require satisfied the will have ordinary appeal could by the time an ments O’Connell, McCall, & Tom C. McCall complaint then be and his will perfected be Austin, L.L.P., for relator. Thus, no ade argues that he has moot.1 agree. quate remedy at law. We Clark, Malone, Raybold, Knapp E. Donald P.C., Waco, party in Raybold, for real & if the next determine We must interest. A court abuses court abused its discretion. a decision so arbi if it reaches its discretion THOMAS, C.J., Before and CUMMINGS to a as to amount trary and unreasonable VANCE, JJ. v. prejudicial error of law. Walker clear and (Tex.1992) 833, Packer, 839-40 827 S.W.2d
OPINION rеspect to the reso proceeding). With (orig. or matters committed of factual issues lution VANCE, Justice. discretion, reviewing court’s to the trial (Ann) for divorce Annis Cook filed suit Jo its may not substitute County against Thomas in McLennan Cook relator must trial court. Id. The that of the 5, plea in August Thomas filed a on 1994. reasonably the trial court establish that a alleging that Ann had not been abatement Id. at 840. one decision. have reached county ninety days pre- resident de reviewing court would have if the Even ceding filing. See Tex.Fam.Code Ann. differently, it cannot disturb the issue cided 1993). (Vernon § The court heard and 3.21 it is shown decision unless the trial court’s granted plea in abatement and denied the arbitrary Id. and unreasonable. be 3.58 of the temporary orders under sеction (Vernon 1993). id. not abuse its discretion Code. See A court does interlocutory conflicting evi attempted appeal Thomas it its decision when bases injunctive record granting appears relief from the orders and evidence dence (Cause 94-271-CV), sustained Davis reasonably supports No. but we the decision. (Tex.1978). 859, challenge jurisdiction and dis- Huey, Ann’s to our v. However, occurs appeal. an abuse of discretion missed unreasonably or arbitrarily or the court acts fоr Writ Thomas also filed a Petition assertions upon factual when it rules based cause, asserting Mandamus this Tex supported the record. Vinson by failing to sus court abused its discretion N.A., 880 Bank-Houston as Commerce is enti plea in abatement. Thomas tаin his (Tex.App S.W.2d . —Dallas only if relief he establishes tled to mandamus n.w.h.). (1) remedy adequate at law has no a of whether (2) The determination See the court abused its discretion. question its discretion is court abused Appeals, 700 v. Fourth Court Johnson Winkle, 660 (Tex.1985) v. Vаn (orig. proceeding). law. Jackson shop- Shankles, encourage forum See, remedy blatant would e.g., Shankles v. He ping. — Waco merit, argues, lack of with some (Tex.1983). they purchased togeth- We determine Counties until a home erred, though whethеr the court even County it com iner Travis in March 1994. Her plied respects, with the law all other be driver’s license listed her residence as Travis legally cause its determination was unreason County. recently April As she had factual-legal able сontext which it changed registration her voter residence *3 was made. See v. Landon Jean-Paul Bu from one address in County Travis to the Inc., dinger, 931, 724 (Tex.App.— S.W.2d 939 address of her Pflugerville. new home in writ). 1987, Austin no divorce, shortly Until before she filed for she County. worked fulltime in Travis At no twenty years ago Almost this court had during marriage time the did she tell Thomas requirements occasion to consider the of sec- Randy that she considered the house on tion 3.21 of the Code. said: We in Street to be Waco her residence. pertinent parts, Family In its provides, may “No suit for divorce actually, Ann testified that she was be maintained unless at the time suit is physically living with Thomas in Travis petitioner respondent filed the or the has County July date, until 24. On that while county been a ... in resident of thе which State, Thomas was out of the she rented a the suit is filed preceding ninety- for the large furniture, appliances, truck and moved day period.” A mere constructive resi and clothes to for Waco. She filed divorce in satisfy dence will nоt this statute. It re County days later, McLennan twelve on Au actual, quires physical, an living continuous gust stipulated 5. She that she had lived in the county by of suit one of parties the days County more in Travis than in McLen- period for specified, coupled with a nan but testified that she was “con good-faith county intent to make that stantly” coming Randy to the house on Wilson, 609, home. Wilson v. ailing Street to care for her mother and son. (Tex.Civ.App., 1973, Hou.14th writ spent many She testified that she as two dism.); Struble, 279, Struble to three weekеnds a month at the house on writ). Amarillo, 1943, (Tex.Civ.App., no Randy. Although she did not own the house course, continuity Of of residence is Randy, she testified that she owned the by simple, temporary not broken absence bedroom in furniture her room at house. county. Therwhanger from the v. Ther Beginning April in she received a Mast- (Tex.Civ. whanger, 175 S.W.2d Randy ercard bill at the address. writ). App., Eastland Beavers, See Beavers v. Although legal Ann testified to the conclu- sion that Randy her residence was at the — Waco address, tеstimony we must measure her Ann testified that she was a “resi against Residency the Beavers standard. re- County. dent” of McLennan She testified actual, quires physical, living an continuous Randy that her childhood home on Street— county parties in the suit one of the for which her mother has owned since 1961—was period specified, coupled good- with a one of her residences. She maintains that county faith that intent to make home. Bea- this house has been one of her residences vers, By at 721. own testi- since 1983 and that she has never intended to mony, actually, physically living Ann was abandon it.2 County with Thomas in Travis until she She also testified that she moved Wil- packed up July the U-Haul truck on 24. County July liamson in that she moved apartment record, into an with Thomаs located From a careful review of entire County in Williamson the fall of that we conclude that the record does not reason- they early married in together ably support Respondent’s 1993 and lived determination apartments Ann Williamsоn Travis was a resident of McLennan Coun- subsequent 2. Ann testified that she had lived at the home on and returned after a divorce in 1982. Randy prior marriage to her first in 1969 and period She time and moved to California for had back to moved the house after her divorce in returned in 1983. 1972. She remarried and moved out in 1972 involving Id. at ty ninety days date court in a matter discretion. preceding she omitted). (Other Davis, to find 917. cites order filed for divorce.3 See 571 S.W.2d at discretion, reviewing Thus, Respondent court his discretion аbuse abused circum- plea the facts and failed conclude to sustain Thomas’s any extinguish discretion of the case stances abatement. See id. 918. A mere error in matter. Id. at Having determined that an abuse dis- not Id. is an abuse discretion. oсcurred, grant conditionally cretion we truly requiring If one the exer- the matter Respondent writ of mandamus and order discretion, discretion lies with cise of such plea grant Thomas’s in abatement. writ may appellate An the trial court. grant plеa if refuses to will issue its discretion substitute opinion. in accordance with this Id. court.” *4 authorities, I that the above believe From CUMMINGS, J„ dissenting. evidence, in disputed when is such as there CUMMINGS, Justice, dissenting. case, this such discretion should lie with the I respectfully dissent. The issuе here is judge’s duty trial It trial to court. is the jurisdiction, not it credibility one of but instead is a pass of and on the the witnesses question residency require satisfy of to the weight given testimony, to be their and he ments of may reject testimony of Section 3.21 the Texas аny the of witness in question in a part, divorce action. The of or in if he sees fit to do so. See whole (Tex.Civ question Holmes, residence is a of fact. Bomar v. Shaw v. 524 S.W.2d Bomar, (Tex.Civ.App.— 229 S.W.2d For .App no whatever . —Waco 1950, writ). testimony no reason, observing Dallas the after and Relator, the trial court could demeanor by Since the Beavers case relied on the parts not consider or all of his have chosen to Supreme has majority, the Texas writ- testimony and have the testi could believed involving ten on issues writs of mandamus. mony During hearing of Ann Cook. of Johnson, In us that man- Court instructs abatement, plea attempted to in Relator “discretionary remedy.” damus is a See right against his Fifth Amendment invoke Appeals, Johnson Fourth Court why cоncerning he had self-incrimination (Tex.1985). 916, 917 Mandamus is- changed previously his name. He was sues to a clear correct abuse discre- testimony he in his about what had evasive duty by tion imposed or the violation of a law many he had told wife about how times his adequate remedy when there is other previously been married. Walker, 917; id. at law. See State v. (Tex.1984). always that had testified she Johnson the Mrs. Cook to be in McLennan responsibility Court outlined the of the trial intended her residence court, court, stated: that she maintained furniture her and “A trial other hand, house, clothing kept her its it reaches a bedroom at mother’s abuses discretion when closet, and her son lived arbitrary decision so and as to bedroom unreasonable that Ann сame to prejudicial amount to a clear and error of there. Relator admitted (Cites omitted). period of time consistently long A over a law. relator who attacks Waco marriage spent and had ruling of a court since thеir that she as abuse nights apart from him. heavy a from 50 to 70 Waco discretion labors under burden. omitted). (Cite establish, The that Ann did have believed The relator must case, to about intent claim not tell her husband her under the circumstances residency bеcause of her fear of permit facts court to make her Waco and law the trial added). him, he threatened to (Emphasis but This since she testified had one decision. son, her, he to mandamus kill tried choke determination essential beсause guns everywhere, and that was kept of a will not issue control action lower Ancillary may granted relief not be 682-83 — Dallas 1993). (Vernon residency requirements writ); party has met the Tex.Fam.Code Ann. Mlcoch, section 3.21. Mlcoch v. constantly telling hеr CIA of his connections. facts, disputed I
Under these do not believe in position the Court was to make but me decision, I do not believe we should
substitute our credibility on the weight given testimony to be which was the trial before court. Black,
Further, in Arbor v. (Tex.1985), Supreme Court de- jurisdiction it clared that lacked to issue supervise writs of mandamus or correct rulings abatement, pleas incidental such among other matters. reasons, deny appli- For I these would Mabry, Abilene, appellant. Richard сation for writ of mandamus. Eidson, Williams, James Nelda Grim. Dist.
Atty., Abilene, appellee.
OPINION BROWN, Justice, Assigned.
RALEIGH jury appellant The convicted of intentional- ly bodily causing injury to a child found Joseph CLARK, Appellant, Leonard appellant deadly weapon, used a his feet, during hands or of commission Appellant acquitted offense. of was inten- Texas, Appellee. of STATE tionally injury causing bodily serious to the No. 11-93-362-CR. punishment jury child. The assessed at con- years finement for of ten in the Texas a term Texas, Appeals of Justice, Department of Criminal Institutional Eastland. Division. We affirm. error, Oct. single In point appellant con- him
tends that court denied due process acquittal accepting of law causing bodily injury the court serious accepted jury’s finding appel- deadly feet, weapon, lant used a or his hands causing bodily injury Ap- while to the child. pellant argues deadly weapon find- ing acquittal with the of caus- inconsistent ing bodily injury. serious He seeks reforma- deadly tion of the to remove weapon finding. causing acquittal seri-
We hold that bodily injury ous to a child is inconsistent deadly weapon finding. with the affirmative jury find that the failed to State yet prove all elements of crime proved deadly weapon. appellant used a prosecution causing the intentional child, injury bodily serious to a State (1) intended to show that defendant (2) bodily injury actually cause serious