Appellant’s Reply to Appellee’s Response to Motion for Rehearing Page 1 

NO. 04-12-00108-CV

In the Court of Appeals for the 

Fourth Supreme Judicial District 

Sitting in San Antonio, Texas 

IN THE INTEREST OF M.G.N. AND A.C.N., 

MINOR CHILDREN 

On Appeal from the 57th Judicial District Court 

of Bexar County, Texas 

Trial Court No. 2008-CI-17947 

Honorable Antonia Arteaga, Judge Presiding 

APPELLANT’S REPLY TO 

APPELLEE’S RESPONSE TO MOTION FOR REHEARING 

TO THE HONORABLE FOURTH COURT OF APPEALS: 

 Appellee Monica Noyes’s reply is short on substance and record 

references, but long on misstatements and unsupported assertions, among 

them: 

 George has not, as Monica insinuates, “abandoned” any of 

his arguments. He has merely focused on certain points 

for purposes of his motion for rehearing. 

 George’s “view of the evidence” argument is not new; it is 

part of the no-bias argument he has made all along. 

Monica purports to make a distinction between “viewing” 

and “evaluating” the evidence, but they are the same. In 

fact, Scales v. State, to which she refers, uses the term 

“view.” 380 S.W.3d 780, 782 (Tex. Crim. App. 2012) 

(“[H]er dismissal was based upon her view of the 

ACCEPTED

04-12-00108-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

9/14/2015 4:50:36 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 09/14/15 4:50:36 PM KEITH E. HOTTLE Clerk
Appellant’s Reply to Appellee’s Response to Motion for Rehearing Page 2

sufficiency of the evidence and deprived appellant of his 

constitutional right to a unanimous jury verdict.”).

 Juror Turney did not “advocate” his personal opinion to 

anyone; he simply stated that he held that opinion after 

hearing the evidence from Monica’s counsel. 7 RR 5-6, 10. 

 Monica continues to repeat her assertion that Juror 

Turney was “intent on introducing inadmissible evidence 

of his own views” and “poisoning the panel,” but she does 

not cite any evidence to support this. That is because the 

evidence shows the opposite: Juror Turney did not share 

his opinion with any other jurors; after forming that 

opinion, he approached only the bailiff. 7 RR 5-6. Mr. 

Turney also specifically stated that he would not share his 

opinion with the other jurors without the trial court’s 

permission. 7 RR 10. The judge later instructed him not 

to do so, and there is no evidence to rebut the 

presumption that he followed those instructions. Golden 

Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 771 (Tex. 

2003) (noting that “unless the record demonstrates 

otherwise, an appellate court must presume” that jurors 

followed the trial court’s instructions).

 Furthermore, the trial judge did not make any finding that 

Juror Turney intended to violate her instruction or that he 

intended to “poison” the minds of the other jurors by 

rebutting Monica’s attorney’s false and irrelevant 

insinuations. CR 52-59. Therefore, Monica is precluded 

from making this claim on appeal. Hill v. Hill, 971 S.W.2d 

153, 156 (Tex. App.—Amarillo 1998, no pet.) (“[O]nce 

findings are entered, they serve to ‘form the basis of the 

judgment upon all grounds of recovery and of defense 

embraced therein.’ ... In other words, one waives (for 

appellate purposes) a theory of recovery or defense unless 

the proponent of the theory secures a finding on the 

theory or an element of the theory.”) (quoting TEX. R. CIV.

P. 299).

 George did not ignore the standard of giving deference to 

the judge’s ruling; he merely referred to facts that displace
Appellant’s Reply to Appellee’s Response to Motion for Rehearing Page 3

that deference, which, in any event, does not extend to

endorsing mere speculation to deprive a party of his

constitutional right to a fair trial.

 Monica makes the general assertion that there is evidence 

supporting the judge’s ruling, but she does not back up 

that claim with any record references. See TEX. R. APP. P.

38.1(i) (requiring an appellant to support assertions with 

specific record references). 

 The “third bench trial” on attorney’s fees to which Monica 

refers was not the third trial, but the second trial. 

Furthermore, it was a new trial, and Monica cites no 

authority in support of her assertion that objections must 

be made at previous trials to preserve error after those 

previous trials were erased by a new trial. See TEX. R. APP.

P. 38.1(i).

 Monica asserts that, unlike the parties in Ernst and 

O’Farrill, George did not timely object to the lack of 

segregation of attorneys’ fees. But she misstates the facts 

of those cases: in both Ernst and O’Farrill, the appellant 

waived error by not filing a post-verdict motion. In re 

Ernst, No. 04-10-00319-CV, 2011 WL 192654, at *3 (Tex. 

App.—San Antonio Jan. 12, 2011, no pet.) (mem. op.); 

O’Farrill v. Gonzales, 974 S.W.2d 237, 249-50 (Tex. 

App.—San Antonio 1998, pet. denied). Unlike those 

appellants, however, George filed a post-verdict motion 

for a new trial following both attorneys’-fees bench trials.

In addition to the substantive reasons for reversal, there is an 

important policy consideration: to allow a trial court to dismiss a juror who 

has caught the opposing party’s attorney’s misrepresenting the facts to 

create a false impression would be to reward, rather than discourage, unfair 

trial tactics and would further the public’s unfavorable perception of the 

legal profession.
Appellant’s Reply to Appellee’s Response to Motion for Rehearing Page 4

For these reasons, as well as those set forth in George’s motion for 

rehearing, George renews his request that this court grant his motion and 

all relief to which he is entitled.

Respectfully submitted,

/s/ James N. Higdon_____________ 

JAMES N. HIGDON

State Bar No. 09590500

HIGDON, HARDY & ZUFLACHT, L.L.P.

12000 Huebner Road, Suite 200

San Antonio, Texas 78230-1210

Telephone:(210) 349-9933

Telecopier: (210) 349-9988

Email: jnhigdon@hhzlaw.com

ATTORNEYS FOR APPELLANT

GEORGE C. NOYES

CERTIFICATE OF COMPLIANCE

Appellant certifies that the number of words in this Reply to 

Response to Motion for Rehearing, including its headings, footnotes, and 

quotations, is: 770.

/s/ James N. Higdon ____________

JAMES N. HIGDON

CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing Respondent’s Brief on 

Remand was served on Oscar L. Cantu, Jr., attorney for Petitioner, in 

accordance with the Texas Rules of Appellate Procedure on August 13, 

2015.

/s/ James N. Higdon ____________ 

JAMES N. HIGDON