Williams v. Carpentier
767 S.W.2d 953
Tex. App.
1989
Check Treatment

*1 Evans, reasoned that the supra, our court Appeals WILLIAMS, of Criminal held that Rose

Court hear punishment not entitled a new (1) the weighing these factors: while giving of a curative instruction CARPENTIER, Independent Billie Jean court; (2) history prior criminal of the Estate of Executrix history prior criminal nature of Carpentier, Appellee. defendant; (3) facts of instant No. 09-88-298-CV. presence of three factors coexist. need not Texas, Appeals of Court of Charles Weldon Willis’ the review Beaumont. case, gave trial court a curative and limiting strictly ordering the instruction March 1989. jury not which the to consider the extent to As March Corrected good might applied, nor whatsoever, consider, the manner which might parole applied to Willis. law well,

As The facts of this criminal record. case,

particular being very important, aggravat grizzly, repulsive

also Willis, pleaded guilty

ing. aggravated robbery.

to the offense of

fact, pleaded guilty twice.

received the admonitions warn warnings

ings. The admonitions and were

given Appellant open court with Willis attorney standing at of record Willis’ Willis, dur The acts and conduct

side. offense,

ing parts of this commission

were somewhat similar to actions presume

conduct of Rose. We limit

jury the court’s curative and followed State,

ing instructions. Rose (Tex.Crim.App.1988). We con

clude, doubt, beyond a reasonable contribution, error made

reviewed and,

course, fol the conviction of Willis Rose, record,

lowing supra, under doubt, conclude, beyond a

also reasonable flowing from the unconstitu

tionality of TEX.CODE CRIM.PROC.ANN. 37.07, Supp.1989), made

Art. sec. 4 punishment as

no contribution to TEX.R.APP.

sessed. We have adhered We, again, 81(b)(2). affirm

P.

ment and sentence.

AFFIRMED.

any supporting affidavits must filed twenty-one days prior hearing. Any to the responses must be filed no later than seven days hearing. to the When appellee her filed amended motion on May 16, no Phillip Williams, for appellant. hearing could on that motion until 7, McClain, June 1988. See Stephen Conroe, Williams v. City W. appel- for Angleton, 724 S.W.2d 414 (Tex.App.— lee. 1987, n.r.e.) writ ref’d [1st Dist.] excellent, believe, for an and we correct OPINION analysis of relationship between TEX. BURGESS, Justice. requirements R.CIV.P. and the time Thus, rule 166a. if June 6 were to be summary judgment Ap- This is a date, “hearing” considered the appellee pellant appellee on were sued a note. full fourteen general Both filed denials. later a hearing being Without on against appellant filed a cross-action claim- specified day, a uncertainty there is created paid she had sought note and con- notice, concerning appropriateness paid. Ap- tribution for half the monies of pleadings and/or timeliness and respons pellant general filed a denial to this cross- es. Because is a harsh April appellee action. On a filed remedy, rule 166a must strictly summary judgment. motion for The trial strued. at 417. For signed setting court an order the motion litigant a be entitled to the benefits 16, 16, hearing May for May 1988. On summary judgment rule, he must have appellee filed an amended motion for sum- complied its with all terms. Tobin v. Gar mary judgment and an order was 58, cia, 159 Tex. setting court coordinator/administrator (1958). Appellee admits there was no hear hearing May for June 1988. On ing held on the motion amended for sum appellant response filed a to the motion for judgment. mary a summary judgment. response This con- hearing specified day on a was error.1 appellee agreed tended had to assume all of the note. On June appel- granting summary We reverse the of the filed an asserting lant amended answer judgment. assumption. affirmative defense of On REVERSED AND REMANDED. July judgment signed (although 14) July noting bears a file mark BROOKSHIRE, Justice, dissenting. [appellee] “On 6 ... a mo- submitted judgment affirm the below summary judgment_” Appel- tion for one, several reasons. the issues Number appears pro points se urging lant three although joined pleadings, are point error. We consider of error number themselves are not con- dispositive. three and find it Ap- summary judgment proof. sidered general point urges pellant This the trial denial on file at conducting hearing. Appel- hearing the time of the date set for the agrees hearing summary judgment. lee in his brief the motion This “by but the af- motion was determined was insufficient to raise governs any genuine is- involving submission.” 166a firmative defense (c) summary judgments. Section sue of material to Billie specifically Carpentier’s rule for a There Jean motion for calls specific imposed Appellant’s attorneys around the deadlines hearing response Appellant at- example, date. For the motion and agree prudent does not could not It would have this This limits. hearing judgment. waive attendance at a full oral once and reflected in outside was set Carpen- Venture to Frank John

tempted raise for the first time the is- Tract Joint clearly shows tier. The instrument itself generally described as an sues This the affidavit assumption liability. otherwise. plus an of interest incorrect, simply false. These were affirmative defenses. These Carpentier agreed to keeps insisting that affirmatively matters should have been discharge all of the United TEX.R.CTV.P. 91 pleaded. *3 at liability had on the note Lab, Brochette, that Williams Reading Inc. v. States 551 MBank; but Williams has never 1977, no (Tex.Civ.App. S.W.2d —Austin The writing in to that effect. anything writ). proper of Under the rules showing of of some sort of existence mere also, defenses, if any, the affirmative must record to quit shown in this claim —not give opposing party fair notice to the of properly been recorded —does have the exact affirmative defenses are. Carpentier agreed to proof that serve Service, Moulton v. Alamo Ambulance of obligation liability and assume the (Tex.1967). namely, person; another Williams. Cer- by The written instrument itself filed interesting it to tainly and crucial is note Appellant that the Moore Tract Joint shows Phillip allegedly that when Mr. Williams agreeable assignee Venture was Woodlands, stating MBank The wrote to Carpentier. There exists not Frank John transferring Carpentier he his that was to writing in before us no instrument wherein in the Moore Tract Joint one-third interest Carpentier agreed pay to Frank John Venture; Frank he did not favor John Car- assignment rights of another. The of debt pentier copy. he Nor did state even with a Phillip and interests made from was parte to the MBank that in the ex letter Montgomery County as the Williams of assuming liability his assignor to Moore Tract Joint Venture to the MBank. the note assignment rights assignee. as the The of Furthermore, by in the brief and interests was not made to Frank John referred therein Appellant certain matters is Carpentier. there no in the us. cannot located record before agreement assignment in the that Carpen- Under this record Mrs. Billie Jean Moore Tract Joint Venture assume would genuine has shown that there no tier pay Phillip to off Williams’ indebtedness she any issue as to material fact and that obligations. agreement That same re- moving party as the entitled cites that it constitutes the entire the issues that as a matter of law on may ment between the in in the set out the motion or only by modified in instrument attempted The issue that party charged thereon. Car- present to the court was that tried proffered Under the written documents pentier Appellant’s indebtedness. assumed by Phillip definitely plead no to do this. He has He failed Carpentier simply did not that contention; support ings obligation any off dis he submitted evidence that written any any indebtedness or other McCormick, defense. Lee proved his by Phillip with owed Williams connection 647 S.W.2d 735 Tract the Moore Joint Venture. Even the written My position no effected, appeal there was fur- documents ther has exhibited statement by proof brought forward proffered and quit law declares claim. Well-established his Appellant eviscerates and disembowels conveys quit claim instrument that a pur defense. serve own quit claim title. Nor was it shown that the expressly out to the trial pose pointing of Carpentier. John accepted by Frank said to judge facts and issues the material Pleadings by dispute. An Williams limit the defen affidavit sworn to not, by his an rights Williams did states that sive theories. 3, 1986, swer, an plead assumption debt interests dated October He did advance that assigned of his in the Moore other. interests orally Appellant’s assumed debt. But this allegation “Michael Brownlee’s of mod contention violated Statute Frauds. is clearly ification an affirmative de fense. He admits the existence of the states, majority opinion, in its that a alimony/child support agreement and his hearing on the amended motion for summa- make payments thereunder, ry judgment could be held until June attempts but he liability by to avoid and not June 1988. The majority alleging agreement. modification opinion states earlier date is If party opposing summary judg possible “hearing” date, considered as a defense, relies an affirmative including must come forward with his full fourteen ment evidence sufficient to raise an issue Under entitled of fact on each “Computation”, element the defense to it states that: summary judgment. City avoid computing any “In ... Clear Creek Basin Authori act, event or default after *4 ty, (Tex.1979); 589 S.W.2d 678-9 the designated period which of time be- Gar-Dal, Virginia Ins. Co. gins to run v. is not to be included....” Life Inc., (Tex.1978); 570 S.W.2d see rule continues and states that: Dorsaneo, generally Texas Litigation day “The last computed so Guide, (1983). sec. 101.05 Affidavits included, Saturday, unless it is a consisting only of conclusions are insuffi Sunday legal holiday....” or cient to raise an issue Ins. Life did not fall on a weekend nor Virginia Gar-Dal, Co. legal holiday. was it a June 6th was on a stating By S.W.2d at 381. that his Monday year of 1988. June modified, tractual had been day. 166a(c) was the 21st nothing Michael asserted more than requires only any sup- that the motion and legal conclusion. His affidavit did not porting affidavits filed and served at set forth such facts as would be admissi least 21 before the time evidence, required by ble in as 166- Rule interpret this to A(e), TEX.R.CIV.P. ...” could be the 21st after notice was served. that, we have where Appellant, here, proved up

Also the filed his side, essential the case the other (4) days four re-set same; Appel we can hearing; no consider harm is shown to Williams. Therefore, appeal. lant loses his Mrs. is entitled to See Underhill Dist., judg- County Appraisal as a matter of law Jefferson ought ment below be affirmed. S.W.2d 301 Underhill, basically, me, it seems to did dem- Appellant affirmatively demon that, any promise, onstrate if there was give proper strated he failed notice was verbal from Frank John official, losing to the proper be Underhill promise by which was proof. my opinion, cause of his own person one to answer for the default Williams, likewise, ap loses his miscarriage person. of another That is peal. record; Hence, the non-movant. Frauds, under the Statute of TEX.BUS. &

COM. CODE ANN. Sec. 26.01

1987), Agreement entitled “Promise or grounds in Writing,”

Must is another

upon respectfully which this dissent

filed. Brownlee,

In Brownlee v. (Tex.1984), page we find at 112: