Grаdy DOWELL, Appellant, v. Gracie QUIROZ, as Administratrix of the Estate of Mario Gonzalez Lira, Noe Lira, Maria Angeles Lira, Marilyn Gutierrez, Annette Gutierrez, Nancy Gutierrez and David Gutierrez, Appellees
NUMBER 13-12-00199-CV, NUMBER 13-12-00583-CV
Court of Appeals of Texas, Corpus Christi-Edinburg
Delivered and filed April 2, 2015
The trial court did not abuse its discretion in allowing the State to show thе specifics of the injuries to the jury to prove that A.M.‘s injuries did not result from improper CPR. While drawings could show the places of injuries, they could not show the jury the severity of the injuries or the extent of the injuries. See Herrera, 367 S.W.3d at 777 (holding that probative value of gruesome autopsy photographs was not substantially outweighed by prejudice where photos showed baby likely did not die from shaking). Having examinеd each contested photograph in the context of the entire record and the applicable standard of review, we hold that the trial court did not abuse its discretion by concluding that the probative value of the photographs was not substantially outweighed by the potential for unfair prejudice and admitting them into evidence. See id. We overrule appellant‘s fourth issue.
III. CONCLUSION
The evidence is sufficient to supрort appellant‘s conviction for capital murder of a child under the age of ten. The trial court did not abuse its discretion in denying appellant‘s motion for mistrial after the State elicited improper testimony relating to appellant‘s post-arrest silence, nor did the trial court abuse its discretion in admitting autopsy photographs into evidence.
The judgment of the trial court is affirmed.
Moises R. Hernandez, Hernandez Law Firm, Harlingen, TX, for Appellees in No. 13-12-00199-CV.
Moises R. Hernandez, Hernandez Law Firm, Miguel Salinas, Attorney at Law, Harlingen, TX, for Appellant in No. 13-12-00583-CV
Jacqueline M. Stroh, Attorney at Law, Scott P. Jones, Brock Person Guerra Reyna, San Antonio, TX, Roger W. Hughes, Adams & Graham, Harlingen, TX, D. Allan Erwin, Jr., Roerig, Oliveira & Fisher, Attorneys at Law, Brownsville, TX, for Appellees in No. 13-12-00583-CV.
Before Justices Rodriguez, Garza, and Perkes
MEMORANDUM OPINION
Memorandum Opinion by Justice Perkes
On February 26, 2015, this Court issuеd a memorandum opinion in this case. On March 13, 2015, appellees filed a motion for rehearing, and on March 17, 2015, appellant filed a motion for rehearing. We deny the rehearings, but we withdraw our memorandum opinion of February 26, 2015, and its accompanying judgment, and substitute the following as the opinion and judgment of the court.
In appellate cause number 13-12-00199-CV, Grady Dowell appeals the statutory county court‘s judgment against him on the survival and wrongful death actions
I. BACKGROUND
On New Year‘s Day in Buffalo, New York, Dowell, a New York resident, drove while intoxicаted and struck bicyclist Mario Gonzalez Lira, killing him. Quiroz, Mario‘s sister, began probate proceedings in Cameron County, asserting Mario was a Cameron County resident.1 The family then brought survival and wrongful death claims against Dowell in Cameron County Court at Law Number 2. As the sole ground for jurisdiction, the family asserted that Cameron County Court at Law Number 2 “possesses jurisdiction because this controversy is incident to an estate.”
Dowell pleaded guilty in New York to driving while intoxicated and criminally negligent homicide. Based on Dowell‘s guilty plea, the statutory county court granted the family‘s motion for partial summary judgment, holding Dowell liable on the family‘s survival and wrongful death claims. The subsequent trial determined the damages on those claims.
II. SUBJECT MATTER JURISDICTION
By his supplemental issue in appellate cause number 13-12-00199-CV, Dowell аrgues that Cameron County Court at Law Number 2 lacked subject matter jurisdiction to hear the family‘s survival and wrongful death claims. In attacking the two potential sources of jurisdiction, Dowell contends: (1) Cameron County Court at Law Number 2‘s probate jurisdiction does not extend to survival and wrongful death claims like a probate court‘s jurisdiction; and (2) the family pleaded damages in excess of Cameron County Court at Law Number 2‘s statutory jurisdictional amount limit.
A. Standard of Review
“[S]ubject-matter jurisdiction is essential to a court‘s power to decide a case.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000). It is never presumed and cannot be waived. Tex. Ass‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex.1993). It can be raised for the first time on appeal. Id. at 445. “If the trial court lacks subject matter jurisdiction, the appellate court can make no order other than reversing the judgment of the court below and dismissing the cause.” City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex.1985).
In reviewing the jurisdiction statutes, our primary objective is to give effect to the Legislature‘s intent.
B. Probate Jurisdiction
In its pleadings, the family alleged Cameron County Court at Law Number 2 had jurisdiction because the survival and wrongful death claims were “incident to an estate” that had been opened in Cameron County. As a statutory county court, sеe
Cameron County Court at Law Number 2 “does not have the jurisdiction of a statutory probate court granted statutory probate courts by the Texas Probate Code.”
The Legislature added this jurisdictional grant in response to Seay v. Hall, wherein the Texas Supreme Court held that probate courts did not have jurisdiction over survival and wrongful death claims because those claims were not incident to an estate. See Palmer, 851 S.W.2d at 181 (explaining that the “readily apparent purpose” of adding the language was to overrule Seay v. Hall); see also Act of May 17, 1985, 69th Leg., R.S., ch. 875, § 1, 1985 Tex. Gen. Laws 2995, 2996 (adding language), amended by Act of May 19, 1989, 71st Leg., R.S., ch. 1035, § 3, 1989 Tex. Gen. Laws 4162, 4163-64,4 Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993 Tex. Gen. Laws 4081, 4162; Act of May 20, 1997, 75th Leg., R.S., ch. 1302, § 1, 1997 Tex. Gen. Laws 4954, 4954-55; Act of April 26, 1999, 76th Leg., R.S., ch. 64, § 1, 1999 Tex. Gen. Laws 422, 422, Act оf May 28, 2003, 78th Leg., R.S., ch. 1060, § 4, 2003 Tex. Gen. Laws 3052, 3054, repealed by Act of May 31, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279; see generally Seay v. Hall, 677 S.W.2d 19, 21-25 (Tex.1984), overruled as stated in Palmer, 851 S.W.2d at 181. Although the Seay Court reasoned that “[i]t cannot be argued seriously” that statutory county courts have dominant jurisdiction over survival and wrongful death actions and concluded that “the proper forum for
The family argues that its survival and wrongful death suit is “a claim by an estate,” which section 5A(a) includes as incident to an estate for statutory county courts. See Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993 Tex. Gen. Laws 4081, 4161-62 (repealed 2009). Contrary to the family‘s assertion that the Legislature added this provision in 2003, it is in the statute‘s original text. See Act of May 17, 1979, 66th Leg., R.S., ch. 713, § 3, 1979 Tex. Gen. Laws 1740, 1741. The Seay Court considered that language and concluded it did not cover survival and wrongful death actions because the Texas Probate Code defined “claims” as certain enumerated “liabilities of a decedent and debts due the family.” See Seay, 677 S.W.2d at 23. The Legislature‘s solution to the probate courts’ lack of jurisdiction over survival and wrongful death claims did not involve that language; the Legislature added new language to grant probate courts jurisdiction. See Act of May 17, 1985, 69th Leg., R.S., ch. 875, § 1, 1985 Tex. Gen. Laws 2995, 2996 (amended 1987, 1989, 1993, 1997, 1999, 2003, repealed 2009); Palmer, 851 S.W.2d at 181. The addition is the source of the jurisdiction, and the family cannot rely on a statutory provision that predates Seay for jurisdiction created by language added after Seay.
The family also relies on Tovias v. Wildwood Properties Partnership, a dominant jurisdiction case. See 67 S.W.3d 527, 528-29 (Tex.App.-Houston [1st Dist.] 2002, no pet.). At issue in Tovias was whether the district court erred in granting a plea to the jurisdiction in a wrongful death action that the Toviases first filed in Cameron County Court at Law Number 2 before filing it in the district court. See id. at 529. Our sister appellate court held that the district court erred in granting the plea to the jurisdiction because “[t]he proper procedure for asserting dominant jurisdiction in such circumstances is a plea in abatement.”5 Id. Before reaching that conclusion, the court stated in dicta and
Because the Legislature opted against giving statutory county courts the same probate jurisdiction as probate courts to hear survival and wrongful death claims as “incident to an estate,” Cameron County Court at Law Number 2 did not have subject matter jurisdiction to hear the family‘s survival and wrongful death claims “incident to an estate.”
C. Amount in Controversy
Independent of its probate jurisdiction, Cameron County Court at Law Number 2‘s jurisdiction extends to “civil cases in which the amount in controversy exceeds $500 but does not exceed $1 million, excluding interest.”
ground we have already excluded, then monetary limits would not apply. See, e.g., Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294, 299 (1960) (“The сounty court when sitting in probate is not subject to a monetary jurisdictional limit.“); Hailey v. Siglar, 194 S.W.3d 74, 76 (Tex.App.-Texarkana 2006, pet. denied) (“The monetary limitations on a statutory county court‘s jurisdiction in civil cases do not limit its probate jurisdiction.” (citing English v. Cobb, 593 S.W.2d 674, 675 (Tex.1979))). However, in this case, monetary limits do apply. Moreover, it does not appear from the family‘s pleading that the $4.5 million includes exemplary damages. The family requested “a maximum of $4.5 million” and “punitivе damages in an amount not less than ten (10) times actual damages.” We do not therefore subtract an unspecified amount from the pleaded amount to create jurisdiction.
The family cites Asociacion Nacional de Pescadores a Pequena Escala O Artesanales de Columbia (ANPAC) v. Dow Quimica de Columbia, S.A., see 988 F.2d 559 (5th Cir.1993), for the proposition that we should divide the amount it pleaded by the number of plaintiffs and assess the amount in controversy per plaintiff. ANPAC is inapposite; it is a federal case7 discussing federal diversity jurisdiction—not the Texas Government Code or Texas common law. See id. at 563-66.8 The family‘s
It is clear from the family‘s pleadings and brief that they presumed the statutory county court had jurisdiction pursuant tо the court‘s probate jurisdiction and that the family therefore did not need to confine its damages request to the court‘s non-probate jurisdictional maximum. Cameron County Court at Law Number 2, however, did not have probate jurisdiction to hear the family‘s claims, and we cannot overlook the family‘s request for damages in excess of the court‘s statutorily-defined jurisdictional allowance for non-probate claims. Accordingly, Cameron County Court at Law Number 2 did not have jurisdiction under either its probate or general jurisdiction. We sustain Dowell‘s supplemental issue.
III. CONCLUSION
Because Cameron County Court at Law Number 2 did not have subject matter jurisdiction over the family‘s survival and wrongful death claims, we vacate the trial court‘s judgment in appellate cause number 13-12-00199-CV, assеss costs against the party incurring them, and dismiss the cause. See