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” argume nt 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 CLERKAppellant’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 specific ally 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 fa lse 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 up on 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 T E X

. R. C IV

. P. 299).

 George did not ignore the standard of giving deference to the judge’s ruling; he merely referred to facts th at displaceAppellant’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 consti tutional 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 T EX

. R. A PP

. P. 38.1(i) (requiring an appellant to support asserti ons 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 p reserve error after those previous trials were erased by a new trial. See T EX

. R. A PP

. 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: i n 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’F arrill 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 attorney s’

- fee s bench trials

.

In addition to the subst antive reasons for reversal , there is a n

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

tri al 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. Higdo n_____________ JAMES N. HIGDON State Bar No. 09590500 HIGDON, HARDY & ZUFLACHT, L.L.P.

1200 0 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 Rehea ring , including its headings, footnotes, and quotations, is: 7 70

. /s/ James N. Higdo n ____________ 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 Proce dure on August 13,
2015

. /s/ James N. Higdo n ____________ JAMES N. HIGDON