*1 DAUPHINOT, Justice, LEE ANN
concurring. but not majority’s in the result concur regarding in- analysis, other than jury error. The instruction con- vited shift the burden of fusing and does express instruction the defendant. jury acquit essentially orders the jury paren- finds the defendant unless the tal from the evidence or has defense reasonable doubt thereof. as written leads
Reading the instruction result, the instruc- this is an absurd but and it is upon, tion that insisted charge exactly incorporated jury into the cannot now requested. Appellant as he that he invited.1 complain about error TODD, Appellant, Sammie Joe TODD, Evelyn Appellee. Billie No. 2-04-328-CV. Appeals Court Fort Worth. July En Banc Overruled Reconsideration Aug. State, 146 L.Ed.2d 120 S.Ct. Prystash v. 1. See denied, (2000). 529 U.S. (Tex.Crim.App.1999), cert. *2 Moraine, Moraine, David J. Crosbie L.L.P., Denton, TX, Appellant. Hatcher, Jim J. Lee Tatum Hatcher Harris, P.C., Gainesville, TX, for Appel- & lee. LIVINGSTON, A:
Panel DAUPHINOT, WALKER, JJ.
OPINION DAUPHINOT,
LEE ANN Justice. issues, In three Appellant Sammie Joe appeals from Todd a divorce the relat- ed division the community estate. The couple has no children. Because we hold that the properly confirmed the separate property Appellee Billie Eve- lyn Todd did not abuse its discretion estate, in dividing community we af- judgment. firm the trial court’s issues, Appellant his first two contends that the trial court in con erred firming acreage the “home and located Gainesville, Texas, County, together Cooke thereon, improvements with all further de scribed as follows: 137 acres of land in County, Cooke out the Thomas Hardeway Survey, 464,” Abstract No. (“the farm”) Appellee’s separate proper (1) ty because supports evidence separate property characterization as (2) insufficient evidence was introduced at trial to overcome the presump tion.
“Property possessed either spouse or during on dissolution of mar riage presumed prop to be erty.” This presumption can be rebutted by clear convincing evidence.2 Clear evidence is defined as that degree or pro- “measure that will 3.003(a) (Vernon 3.003(b). § 2. Id. Tex Fam.Code Ann. 2004). appears argue fact firm that because duce in mind of trier of legal descrip- as to the truth of the did not refer to the belief conviction allegations sought to be established.”3 tion of farm or offer document, deed, showing such *3 some as on road Appellee testified that she lived farm, separate ownership her of the 2117, 550, there, a and had farm out community presump- to the failed defeat marriage. Appellant the farm before the that she lived on Appellee tion. testified there, I that came there “[w]hen 2117, a 550 and that she had farm out road testified, no tractor there.” He also was there. evidence was admitted at trial No there, I wit- When went and here’s the any farm ranch. concerning other We ness, lady [Appellant’s knew sister] facts, Appellee conclude that under these did, has woman before and she of the sufficiently described the location in I was been this woman’s house before identify Additionally, all farm it.4 ever there. points at trial to the conclusion house, I went her we When belonged Appellee that the farm before get in up steps walked three concrete trial, fact, marriage. Appellant In house, you got in the the farm was never claimed house, by light hanging a hall there was property; spoke he of the farm and the It in the ah’ floating one wire. was house on it as “hers.” No evidence contro- there, like and her whole house looked conclusion. We therefore hold verts this that, represented that whole house. community pre- that defeated the by evi- sumption clear there, I went there two iron When Consequently, dence.5 trial court did Today is gates on that ranch. there by confirming the not abuse its discretion ranch, [empha- iron that gates seven on Appellee’s separate property.6 farm as sis added] first two issues. Appellant’s We overrule Appellant to the house as also referred issue, Appellant his con In third
“her” several times and made a house tends that the trial court abused its discre point saying, “That house had suffered dividing in tion disproportionately years in need- ago, fire other words it in a manner that was of, community estate you think everything ed could charged A court is needed, manifestly unfair. trial didn’t—it house and that woman community estate dividing with horsepower needed man with some ” manner, considering the “just right” money and that what I did.... some Case, 154, 2002); (Vernon Marriage 28 S.W.3d Transp. 5. Ins. See re Id. 101.007 10, 2000, Morid, (Tex. 1994). pet.); (Tex.App.-Texarkana Co. v. 31 no 159-60 Corp., Mackey Lucey 150 also Prods. see Herrera, Co. 20 4. See Am. Fin. and Inv. 607, (Tex.1951) 188, 239 S.W.2d 608 Tex. (Tex.App.-El 832-33 Paso ("The doing require of a law does vain not Davis, pet.); Davis v. opinions thing, our and useless writ) ("Had (Tex.App.-Austin require.”). judgments we will not so simply decree described the written address, clearly would have its street it Appellant no claim for economic con- made appropriate subse been for the trial court to See Tex. Fam.Code Ann. tribution at trial. quently decree to include a metes amend the § 3.403. description property.”); and bounds of the Mizell, Mizell h1981, writ). Wort parties.7 Appellee. If we rights Consequently, there is awarded to so, met his doing say reasonable basis we must cannot has bur- presume that the trial court exercised its so proving den the division was will not properly.8 discretion We disturb unjust that the abused dis- the trial court’s division the record unless is- Appellant’s overrule third cretion. We demonstrates “that division was clear- sue. ly an the result of abuse of discretion.”9 Having Appellant’s three is- overruled is, That we will not reverse the ease unless sues, judgment. we affirm the trial court’s clearly
the record shows that the trial *4 acting arbitrarily court was or unreason- LIVINGSTON, dissenting J. filed a
ably.10 complaining party The has the opinion. of proving burden from the record that unjust
the division was so the trial LIVINGSTON, Justice, TERRIE court abused discretion.11 The values dissenting. evidentiary of individual items to the “are ultimate of issue whether the trial court respectfully majority dissent to the properties right divided the in a and opinion agree I cannot with because manner.”12 of in property characterization this trial
The court awarded Appellant all trial marital estate court and af- in property possession subject or his to his majority in opinion firmed sole control. In the affidavit attached to proceeding, court. In this divorce trial, his motion for new he states that that parties asked trial court to divide the property additionally marital to confirm estate
consisted [his] of clothes and a 1997 alleged separate to each of them their pickup truck that is worth less than- property.13 Prior to the trial of this mat- $5,000. addition, kept a [he] 1984 ter, represented by had appellant been two Ford automobile that is worth less than attorneys. attorney The different second $1,000, shotgun[,] all of which [he] 1, was allowed to withdraw on April 2004 prior marriage. also had [He] 17, May with the set for trial on 2004. case oil, spread, two cases of one bed two No took discovery place, although headboard, pillows, mattress, one parties might there are indications that the saw[,] chain and weedeater. provided have each other with their inventories, inventory record contains no claimed no evidence concern- con- ing the value assets tained within the clerk’s record. Finch, 218, (Vernon 1998). (Tex.
7. Tex. Fam.Code Ann. 7.001 12. S.W.2d Finch 825 221 1992, writ); App.-Houston [1st Dist.] see Goetz, 442, (Tex. 8. Fletcher v. 9 S.W.3d 446 Wallace, 723, (Tex. Wallace v. 623 S.W.2d 725 1999, denied) App.-Fort pet. (op. Worth on 1981, Civ.App.-Houston [1st Dist.] writ reh'g). dism’d). 9. Id. parties’ petitions 13. Both asked the court to Inc., Aquamarine Operators, 10. See Downer divide their marital estates and to confirm 238, (Tex.1985), 701 S.W.2d 241-42 de ni cert. separate Additionally, property. appel- their ed, 1159, 2279, 476 U.S. 90 106 S.Ct. specifically for new lant’s motion trial chal- (1986). L.Ed.2d 721 lenged the trial court’s characterization of the farm. Pletcher, 9 S.W.3d at
130 Barnard, trial, counsel, property.” 789- appellee appeared
At with proof at trial is the burden of appellant appeared pro Only but se. three 90. When evidence, on appel- appeal trial: clear and appellee, witnesses testified at legal lant, standards of apply higher sister. sub- we appellant’s J.F.C., sufficiency In re 96 an she factual review. mitted exhibit that listed items C.H., 256, (Tex.2002); In re 265-66 claiming asking court to award S.W.3d (Tex.2002); Irvin v. 25-26 Ultimately, appellee to her. was awarded Parker, (Tex.App.- in her property possession, all of Boyd Boyd, pet); all Fort property was awarded Worth appellant Worth possession. Appellee in his was not appel- pet.). awarded reimbursement from claimed appellee’s lant’s withdrawals The evidence the case amounts parties account. Both separate testified that virtually nothing. Appellee they sepa- expended $67,000 wanted returned to her out improving the resi- rate funds expended appellant that she claims funds on the 137-acre tract dence located *5 separate out of her account. She admits appellee. also awarded to While the was appellee tractor. But called bought a any party granted final neither decree witnesses to the stand and sub- other from one to the type of reimbursement proof any for mitted no of claims reim- other, per- of the court did award all the supporting her bursement and by requested property realty sonal tract claim that she owned the 137-acre her. The trial court awarded appellee to prior marriage. Appellant to testified locat- largest asset —the 137-acre tract the they pension them checks deposited County, appellee ed in Texas—to Cooke appellee. to by referred the account separate property. confirmed it as $1,850 month, per Appellant deposited Code, $1,150 He deposited per month. appellee there is Family the Texas Under ... “that’s what we lived on what possessed property presumption with, the bought of mar we and fixed house spouse at the dissolution the either we ran on.” He community prop repairs all the other presumed to be riage (Ver 3.003(a) proceeds used from § also testified that he erty. Tex. Fam.Code Ann. Barnard, previously of a home 2004); 133 the sale he non Barnard $2,000 buy Fort tractor and Worth to the Worth S.W.3d denied). divorce, only At stove. pet. the subject community property is above, parties the As mentioned under- Barnard, 133 right division. no invento- discovery took no and included 398, 406 789; Boyd Boyd, at Appellee did appellate ries in this record. pet.). (Tex.App.-Fort Worth testify evidence or not offer deeds into legal property’s or to the Moreover, party who to their existence we know that the even testified description. of She never separate character seeks assert the ac- the tract was the date when 137-acre prove must that character property any testimony about how quired or offered evidence. clear Tex. Fam. Barnard, higher the 3.003(b); acquired. light it was Code Ann. and con- at trial —clear “To the stat- burden overcome 789-90. re- standard of community vincing higher proper- utory presumption of —and appeal, I can find no basis clearly view on must trace and ty!)] spouse real characterization supporting as identify separate claimed property property appellee’s as separate property.
“To statutory presumption overcome spouse must property, clearly identify
trace and
Barnard,
separate
claimed as
property.”
erty. Kingdon HART, Appellant,
Stow *6 Texas, Appellee. STATE
No. 06-04-00118-CR. of Appeals Court Texarkana. Submitted June Aug. Decided