source: Caselaw Access Project

author: HOLLY M. KIRBY, J.,

license: Public Domain

text:
    Edgar FOSTER, Individually and on behalf of his wife, and Stanley Turner, Individually and on behalf of the heirs of Mattie Foster, Deceased v. ST. JOSEPH HOSPITAL, Mahir R. Awdeh, M.D., Raj C. Dave, M.D.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Feb. 17, 2004 Session.
    July 30, 2004.
    Permission to Appeal Denied by Supreme Court Jan. 31, 2005.

      Al H. Thomas and Regina Guy, Memphis, for the appellants Edgar Foster, individually and on behalf of his wife, and Stanley Turner, individually and on behalf of the heirs of Mattie Foster, deceased.
    Robert L. Green, Memphis, for the ap-pellee St. Joseph Hospital.
    Buckner P. Wellford, John H. Dotson, and Marcy L. Dodds, Memphis, for the appellees Mahir R. Awdeh, M.D., and Raj C. Dave, M.D.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court,

in which W. FRANK CRAWFORD, P.J., W.S., and DAVID R. FARMER, J., joined.

This is a wrongful death case. The decedent was survived by her husband and two brothers. The husband gave his power of attorney to his grand-nephew. The grand-nephew filed a wrongful death lawsuit, alleging medical malpractice which resulted in the decedent’s death. The grand-nephew voluntarily dismissed the claim. The grand-nephew refiled the action within one year of the nonsuit but beyond the expiration of the original statute of limitations. In the second action, the decedent’s husband was added as a plaintiff. The defendants filed motions for summary judgment, arguing that the second lawsuit was time barred. The trial court granted the motion, holding that because the grand-nephew was not a proper party plaintiff under the Tennessee wrongful death statute, the first lawsuit was a nullity and did not toll the statute of limitations. We reverse, holding that the original lawsuit was not void, but merely voidable, and that the second lawsuit was timely filed under the savings statute.

On February 20, 1997, Mattie Foster (“Mrs.Foster”) was admitted to Defendant/Appellee St. Joseph Hospital (“the Hospital”), where she was treated by Defendants/Appellees Dr. Mahir Awdeh (“Dr. Awdeh”) and Dr. Raj Dave (“Dr. Dave”). On February 24, she was prescribed the drug Zyloprim, which was administered for at least two days. On February 27, Mrs. Foster developed a rash and fever. An examination of Mrs. Foster’s medical records from a previous stay at the Hospital revealed that Mrs. Foster had a possible allergy to Zyloprim. On approximately March 10, Mrs. Foster’s medical condition worsened; she complained of difficulty swallowing and sores in her mouth, and she began to experience sloughing of the skin on her arms and hands and under her eyes. On March 11, Mrs. Foster was discharged and admitted to another hospital. Mrs. Foster died on March 28, 1997. She was survived by her husband, Plaintiff/Appellant Edgar Foster (“Mr.Foster”) and two brothers.

After Mrs. Foster’s death, on May 26, 1997, Mr. Foster gave general power of attorney to his grand-nephew, PlaintiffAp-pellant Stanley Turner (“Mr.Turner”). On February 20, 1998, a lawsuit was filed in the United States District Court for the Western District of Tennessee by “Stanley Turner, individually and on behalf of the heirs of Mattie Foster, deceased” against the Defendants, alleging that Mrs. Foster’s death resulted from their medical malpractice. Mr. Foster was not named as a party plaintiff, and the complaint was never amended to add Mr. Foster as a party. No objection was made as to Mr. Turner’s capacity to file the lawsuit. On October 9, 1998, the federal action was voluntarily dismissed.

On August 5, 1999, within one year of the voluntary dismissal of the federal lawsuit but over two years after Mrs. Foster’s death, the instant lawsuit was filed in Tennessee state court by “Edgar Foster individually, and on behalf of his wife, and Stanley Turner individually and on behalf of the heirs of Mattie Foster deceased.” The second lawsuit was filed against the same defendants, and again alleged medical malpractice resulting in Mrs. Foster’s death.

On September 29, 1999, a Mississippi state court appointed Mr. Turner the administrator of Mrs. Foster’s estate. Among Mrs. Foster’s assets, the order identified a “potential wrongful death claim.”

The Hospital, Dr. Awdeh and Dr. Dave each filed essentially identical motions for summary judgment on the grounds that the statute of limitations had expired on the claim. Though the first complaint had been filed within the statute of limitations, the Defendants argued that because Mr. Turner was not a proper party plaintiff under the wrongful death statute, the action had not been properly “commenced” for purposes of tolling the statute of limitations under the Tennessee savings statute. Since the Plaintiffs therefore could not rely on the savings statute, their claim was time barred by the statute of limitations.

The trial court granted the Defendants’ motion for summary judgment, holding “that neither the savings statute nor the doctrine of relation back, as set forth in Rule 15 and Rule 17 of the Tennessee Rules of Civil Procedure, can save any cause of action for the wrongful death of Mattie Foster.” First, explaining that under the savings statute the two complaints must be substantially similar, the trial court noted the addition of Mr. Foster to the second complaint and the differences in the “factual assertions .... [a]nd, to a certain extent, the theories of liability.” Second, the trial court held “that the original filing in federal court was annulled because the named plaintiff ... was not a proper party plaintiff [under the wrongful death statute] as the complaint was styled and framed in the pleadings” and that “the second filing ... does not cure the defect in the style of the case ... or in the body of the complaint as it is written.” The trial court noted further that “there has been no effort even now to amend this [second] complaint by asserting that Stanley Turner is the personal representative of the estate of Mattie Foster.” From that order, Mr. Turner and Mr. Foster now appeal.

On appeal, Mr. Turner and Mr. Foster argue that the savings statute is applicable. They note first that Tennessee courts are liberal in permitting the addition or substitution of a proper party for an improper party plaintiff under Rules 15 and 17 of the Tennessee Rules of Civil Procedure, even when the statute of limitations would bar the filing of a new suit. Next they argue that, regardless of whether Mr. Turner was the proper party plaintiff to institute the first action, the first action was not a nullity under Tennessee law, and the lawsuit was therefore “commenced” within the meaning of the savings statute. Finally, they argue that, despite any difference between the first and second complaints, the savings statute applies because the two actions arise out of the same conduct, transaction or occurrence.

A motion for summary judgment should be granted when the movant demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04. Summary judgment is only appropriate when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court’s grant of summary judgment. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

At the outset, we must set forth the pertinent statutes. Tennessee’s wrongful death statute provides: “The right of action which a person, who dies from injuries received from another, or whose death is caused by the wrongful act, omission, or lolling by another, would have had against the wrongdoer, in case death had not ensued, shall not abate or be extinguished....” Tenn.Code Ann. §20-5-106(a) (1994 & Supp.2003) The claim passes first to the decedent’s surviving spouse, or to the decedent’s personal representative for the benefit of the surviving spouse. Id. The wrongful death action may be filed by “the personal representative of the deceased or by the surviving spouse in the surviving spouse’s own name, or, if there is no surviving spouse, by the children of the deceased or by the next of kin.” Id. § 20-5-107. Amending the complaint to substitute a surviving spouse for the decedent’s administrator does not create a new cause of action. Nashville, C. & St. L. Ry. v. Anderson, 134 Tenn. 666, 185 S.W. 677, 679 (1916).

Tennessee’s savings statute, Tennessee Code Annotated section 28-1-105 provides that if an “action is commenced within the time limited by a rule or statute of limitation, but the judgment or decree is rendered against the plaintiff upon any ground not concluding the plaintiffs right of action,” the plaintiff may refile the action within one year, even if the statute of limitations on the claim has since run. See Tenn.Code Ann. § 28-l-105(a) (2000). Under the savings statute, the plaintiff is entitled to the same procedural benefits he would have had in the original suit. Energy Sav. Prods., Inc. v. Carney, 737 S.W.2d 783, 785 (Tenn.Ct.App.1987).

Because Tennessee law favors the resolution of disputes on their merits, the savings statute must be given a broad and liberal construction. Henley v. Cobb, 916 S.W.2d 915, 916 (Tenn.1996). The purpose behind the savings statute is “ ‘to aid the courts in administering the law fairly between litigants without binding them to minor and technical mistakes made by their counsel in interpreting the complexities of our laws of procedure.’ ” Id. at 917 (quoting Gen. Accident Fire & Life Assurance Corp. v. Kirkland, 210 Tenn. 39, 356 S.W.2d 283, 285 (1962)). To determine whether the savings statute is applicable, the court must ascertain whether the defendant had notice: “[N]otice to the party affected is the true test of the statute’s applicability.... ‘The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.’ ” Id. at 917-18 (quoting Burns v. People’s Tel. & Tel. Co., 161 Tenn. 382, 33 S.W.2d 76, 78 (1930)). Thus, the savings statute is only applicable when the original complaint and the new complaint allege substantially the same cause of action, which includes identity of the parties. See Turner v. Aldor Co. of Nashville, 827 S.W.2d 318, 321 (Tenn.Ct.App.1991). It is not necessary that the two complaints be identical, only that the allegations arise out of the same transaction or occurrence. See Energy Sav. Prods., Inc. v. Carney, 737 S.W.2d 783, 784-85 (Tenn.Ct.App.1987) (holding that the savings statute was applicable to the second complaint, which had been amended to add a new claim, because the claim arose out of the same conduct, transaction, or occurrence alleged in the original action and the plaintiff, therefore, could have added the claim to the first action under Tennessee Rule of Civil Procedure 15). In determining whether there is identity of the parties between the two actions, we are mindful that, though the caption of a case is intended to identify the parties, the allegations of the complaint itself dictate the true parties to the lawsuit. Goss v. Hutchins, 751 S.W.2d 821, 824-25 (Tenn.1988).

We first address whether the original action was “commenced” within the meaning of the savings statute. Rule 3 of the Tennessee Rules of Civil Procedure provides simply that “[a]ll civil actions are commenced by filing a complaint with the clerk of the court.” Tenn. R. Civ. P. 3. Rule 3 describes some circumstances under which the original commencement may not toll the statute of limitations, as where process is not issued within thirty days or not served within thirty days of issuance and the plaintiff fails to obtain issuance of new process within the prescribed time. Id. Rule 3 does not address the effect of the filing of a lawsuit by an improper party. See id.

In reaching the conclusion that Turner’s first complaint did not toll the statute of limitations, the trial court relied heavily on the Texas ease of McAdams v. Capitol Prods. Corp., 810 S.W.2d 290 (Tex.App. 1991). See also Crowley v. Coles, 760 S.W.2d 347, 350 (Tex.App.1988); Hicks v. Shively, 137 S.W.2d 102, 103-04 (Tex.Civ. App.1940). In McAdams, the plaintiff had been appointed by an Arkansas court as administratrix of her daughter’s estate. McAdams, 810 S.W.2d at 293. In her capacity as administratrix, the plaintiff filed a lawsuit in Texas state court under the Texas Deceptive Trade Practices Act. Id. at 291. The lawsuit was filed within the applicable statute of limitations. Id. at 293. However, under Texas law, only an administrator appointed by a Texas court may file suit in Texas on behalf of an estate. Id. By the time a Texas court appointed the plaintiff as administrator of her daughter’s estate, the statute of limitations had expired. Id. After receiving her Texas appointment, the plaintiff refiled the claim and sought to have her second claim relate back to the filing of the original petition. Id. The Texas Court of Appeals held:

[T]he filing of a petition tolls the statute of limitations as to the transaction or occurrence upon which the pleading is based. In this case, however, McAdams had no authority to file any claim in a representative capacity at the time that her original pleading was filed.... We hold that her filing of such a petition was a nullity insofar as [Texas’ rule regarding relation back of amendments or supplements to pleadings] is concerned and consequently did not toll the statute of limitations. Therefore, her claim that she subsequently asserted in her proper capacity as administratrix appointed by a Texas court did not relate back to that petition .... [and] her claim was barred by the applicable statute of limitations.

Id. at 293. Thus, under McAdams, the original petition, filed by the decedent’s mother before she was appointed adminis-tratrix by a Texas court, was a nullity which did not toll the statute of limitations. Id. The trial court in this case, relying in part on McAdams, held that the federal lawsuit filed by Turner was a “nullity” and did not “commence” the action within the meaning of the Tennessee savings statute.

In a case with facts somewhat similar to those in McAdams, the Tennessee Supreme Court has indicated a willingness to give plaintiffs more leeway when attempting to determine the proper party to file a wrongful death suit. In Chapman v. King, 572 S.W.2d 925 (Tenn.1978), the plaintiff parents brought a wrongful death suit against a motorist who allegedly ran over and killed their adult daughter. Id. at 926. Though the suit was filed within the statute of limitations, like the McAdams plaintiff, the Chapman plaintiffs did not have standing to bring the suit. Id. In Chapman, the decedent’s husband was the proper party to file the claim. Id. After the statute of limitations had expired, the defendants filed a motion to dismiss, asserting that the parents were not the proper parties to file suit. The decedent’s husband attempted to cure the defect by moving to be substituted as plaintiff in place of the parents. Id. The trial court denied the motion, apparently because it was filed after the expiration of the statute of limitations. Id. at 927.

On appeal, the Tennessee Supreme Court noted its “liberality” in permitting a proper party plaintiff to be added or substituted for an improper party plaintiff under Rules 15.03 and 17.01 of the Tennessee Rules of Civil Procedure, even when the expiration of the statute of limitations would prevent a new lawsuit from being filed. Id. at 927-29. The court noted this predilection toward leniency to be especially evident in wrongful death actions due to the “considerable difficulty in determining the proper party to file and prosecute the action.” Id. at 928 & n. 2. The Chapman court observed:

No doubt the reason for this liberal policy in wrongful death cases has been the fact that the cause of action is not changed by the substitution of the proper party plaintiff for the improper plaintiff and that such a substitution does not prejudice the defendant who has had notice from the beginning of the suit, of the nature of the cause of action and that it was being pressed against him.

Id. at 928 (internal citations omitted). Thus, although the statute of limitations had expired when the Chapman plaintiffs filed their motion to substitute the proper party plaintiff, the supreme court permitted the amendment under Rule 17.01 because the substitution of the parties did not change the cause of action or prejudice the defendants. See id. at 928-29. Thus, the view of the Tennessee Supreme Court in Chapman stands in contrast to the somewhat harsh reasoning employed by the Texas court in McAdams.

In light of the Tennessee Supreme Court’s avowed liberality in permitting the substitution of a proper party plaintiff for an improper party plaintiff, even after the statute of limitations has passed, we must conclude that it was error for the trial court in this case to find that the original lawsuit was a nullity. Clearly, under Chapman, if the Defendants had sought to have the lawsuit dismissed on the grounds that Mr. Turner was not the proper party plaintiff, Mr. Turner would have had an opportunity to substitute the proper party plaintiff. Under these circumstances, the claim by Mr. Turner was not void but, rather, merely voidable. The Defendants cite no caselaw from Tennessee indicating that Mr. Turner could not have prosecuted the claim to its conclusion absent an objection by the Defendants. Consequently, we must hold that the original lawsuit filed by Mr. Turner in federal court “commenced” the action within the meaning of the savings statute.

If the original federal lawsuit commenced the action, we must determine whether the savings statute was applicable. As noted above, the savings statute is applicable where the original complaint and the new complaint allege substantially the same cause of action, including identity of the parties. See Turner v. Aldor Co. of Nashville, 827 S.W.2d 818, 821 (Tenn.Ct. App.1991). The two complaints need not be identical, so long as they arise out of the same transaction or occurrence. See Energy Sav. Prods., Inc. v. Carney, 737 S.W.2d 783, 784-85 (Tenn.Ct.App.1987). Here, the allegations in both actions arose out of the administration of the medication to Mrs. Foster. Further, there is identity of parties. In both lawsuits, “Stanley Turner, individually and on behalf of the heirs of Mattie Foster, deceased” was the named plaintiff. Though the captions of the two suits do not name Mr. Turner as Mrs. Foster’s representative, both complaints indicate that Mr. Turner was filing in a representative capacity, as they clearly allege a wrongful death claim for her demise. See Goss v. Hutchins, 751 5.W.2d 821, 824-25 (Tenn.1988) (holding that though the caption named an improper party, the defect was not fatal because the proper party could be identified by the body of the complaint and there was adequate notice to the defendant). In the second lawsuit, Mr. Foster was added to the caption as the proper party plaintiff. Since both Mr. Turner and Mr. Foster were filing in their representative capacities on behalf of Mrs. Foster, the addition of Mr. Foster does not destroy the identity of parties. See Nashville, C. & St. L. Ry. v. Anderson, 134 Tenn. 666, 185 S.W. 677, 679 (1916) (holding that the statute of limitations had not expired when a complaint was amended to substitute the decedent’s administrator for the surviving spouse because “such a change of parties — that is, from the beneficiary to the representative of the beneficiary — is no change in the cause of action”).

Given the Tennessee Supreme Court’s stated liberality in Chapman toward plaintiffs sometimes struggling to name the proper party plaintiff in a wrongful death action, as well as the purpose behind the savings statute, we must hold that the savings statute is applicable in this case. Despite the defects of the pleadings in the instant case, from the time they received service of process in the first action, the Defendants have been on notice that they would have to defend themselves against allegations of medical malpractice arising out of Mrs. Foster’s death. With the addition of Mr. Foster in the second action, the defect in naming the proper party plaintiff was cured with no prejudice to the Defendants. Since the savings statute was applicable, the Plaintiffs’ claim is not time-barred, and we find that the trial court erred in dismissing the complaint.

Accordingly, the decision of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this Opinion. Costs of this appeal are taxed against the Defendants/Appellees St. Joseph Hospital, Dr. Mahir Awdeh and Dr. Raj Dave, for which execution may issue, if necessary.

      . The Hospital, Dr. Awdeh, and Dr. Dave will be referred to collectively as “the Defendants.”

      . Along with the Hospital and Dr. Awdeh, the style in the federal complaint names as defendants “Unknown Doctor,” who would later be identified as Dr. Dave, and "Unknown Nurse,” who was later dismissed as a defendant. The style of the original action was amended appropriately.

      .Although the complaint does not mention Mr. Turner's power of attorney from Mr. Foster, Mr. Foster’s presence as a party plaintiff must be attributed to this, as Mr. Foster disappeared in late May 1999. He remained missing at least up to June 6, 2000, the date of Mr. Turner’s deposition.

      . Although the procedure in the McAdams case is somewhat unclear, it appears that the plaintiff filed amended petitions, rather than voluntarily dismissing and refiling her lawsuit. See McAdams, 810 S.W.2d at 291, 293.

      . Rule 15.03 provides:
      Whenever the claim or defense asserted in amended pleadings arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party or the naming of the party by or against whom a claim is asserted relates back if the foregoing provision is satisfied and if, within the period provided by law for commencing an action or within 120 days after commencement of the action, the party to be brought in by amendment (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
      Tenn. R. Civ. P. 15.03.
      Rule 17.01 provides in part:
      No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification or commencement by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
      Tenn. R. Civ. P. 17.01.

      . The original complaint alleges in part: "Plaintiff, Stanley Turner, and the heirs of Mattie Foster, Deceased, are entitled to be duly compensated by the Defendants, jointly and severally, for ... damages for pain and suffering, both physical and mental, suffered by Ms. Foster prior to her death [, as well as for] all medical expenses....” In the second action, Mr. Turner and Mr. Foster allege that because of the Defendants’ negligence, Mrs. Foster suffered "severe, permanent, and physical damages to her body resulting in horrific and extreme pain and suffering” resulting in "substantial medical expenses ... emotional distress and mental anguish ... [and] the loss of the normal enjoyment of the pleasures of life.” They requested "damages for pain and suffering — both physical and mental — and medical expenses as to Plaintiff Mattie Foster.”


author: ALAN E. HIGHERS, J.,

text:
    Christy JOHNSON, et al. v. Duncan E. RAGSDALE.
    Court of Appeals of Tennessee, at Jackson.
    April 21, 2004 Session.
    July 6, 2004.
    Application for Permission to Appeal Denied by Supreme Court Jan. 24, 2005.
    David Burlison, Memphis, TN; John J. Allan, St. Louis, MO, for Appellants.
    David M. Cook, Virginia M. Patterson, Memphis, TN, for Appellee.
   OPINION

ALAN E. HIGHERS, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

This case involves the dismissal of Appellant’s legal malpractice claim against Appellee on the basis that Appellee, after the initial dismissal of Appellant’s medical malpractice claim, failed to file a lawsuit before the statutory period for refiling expired. The General Sessions Court of Shelby County entered a judgment for Ap-pellee. Appellant subsequently appealed this decision to the Circuit Court of Shelby County, which dismissed Appellant’s cause for lack of jurisdiction. We reverse the circuit court’s decision and remand for further proceedings.

Facts and Procedural History

Christy Dianne Johnson (“Appellant”) gave birth to her daughter, Danielle Bre-anna Taylor (“Danielle”), on October 10, 1995. However, on October 26, 1995, Danielle died as a result of hemorrhagic cerebral infarction, coagulation, and acute hepatic failure. At the time of birth, Appellant was actively suffering from the herpes simplex virus. Appellant alleges that, had the medical staff tested her for the herpes simplex virus, they could have performed a Caesarian section to avoid any complications for Danielle.

Thereafter, Appellant employed the legal services of Duncan E. Ragsdale (“Ap-pellee”) to file a medical malpractice claim against the hospital and medical staff for the death of her daughter. Appellee filed suit on behalf of Appellant on October 9, 1996, to avoid the running of the statute of limitations on Appellant’s claim. Thereafter, the suit was dismissed without prejudice and Appellant had one year to refile her suit to preserve her medical malpractice claim. Appellant alleges that Appellee did not advise her of this period of limitation and failed to refile her medical malpractice claim. After losing her right to recover under a medical malpractice claim, Appellant filed a civil warrant against Ap-pellee in May 2000 in the Shelby County General Sessions Court to recover under a theory of legal malpractice. Such civil warrant had a docket number of 798646 Subsequently, Appellant took a voluntary nonsuit, and judgment was entered on June 20, 2000. Appellant filed a second civil warrant in June 2001 in the Shelby County General Sessions Court again alleging legal malpractice against Appellee. This civil warrant had a docket number of 855910. After a hearing, the general sessions court entered a judgment for Appel-lee on September 26, 2001. On October 5, 2001, Appellant filed a notice of appeal and appeal bond in the general sessions court, seeking an appeal to the circuit court. Such notice and bond stated Appellant’s and Appellee’s names as the parties, stated it was an appeal of an order of the general sessions court entered on September 26, 2001, but listed the docket number of 798646 rather than 855910. Appellee moved to dismiss the case and, based on this incorrect docket number, the circuit court granted Appellee’s motion to dismiss for lack of jurisdiction. Appellant now appeals to this Court and presents the following issue for our review: whether Appellant perfected her appeal to the circuit court giving the circuit court jurisdiction despite the fact that she put the wrong docket number on her notice of appeal and appeal bond. For the following reasons, we reverse the circuit court’s dismissal for lack of jurisdiction and remand for further proceedings consistent with this opinion.

Standard of Review

When a trial court sits without a jury, we review its findings of fact de novo, affording such findings a presumption of correctness. Tenn. RApp. P. 13(d). However, a trial court’s conclusions of law are reviewed de novo and given no presumption of correctness. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000) (citing Nelson m. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn.1999)); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993) (citing Estate of Adkins v. White Consol. Indus., Inc., 788 S.W.2d 815, 817 (Tenn.Ct.App.1989)).

Law and Analysis

Appellant contends that it was error for the circuit court to dismiss her claim for lack of jurisdiction on the basis that the wrong docket number was entered on her notice of appeal and appeal bond. As a preliminary matter, we note that Tenn. Code Ann. § 27-5-108 (2000) states that “[a]ny party may appeal from an adverse decision of the general sessions court to the circuit court of the county within a period of ten (10) days on complying with the provisions of this chapter.” Tenn. Code Ann. § 27-5-108(a). In this case, the judgment of the general sessions court was entered on September 26, 2001. Appellant filed her notice of appeal and appeal bond on October 5, 2001. We are mindful that “[t]he time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is a Saturday, a Sunday, or a legal holiday, and then it shall also be excluded.” Tenn.Code Ann. § 1-3-102 (2003). In this case, it is undisputed that Appellant filed her notice of appeal and appeal bond within the ten-day period.

Next, we note that, in general, a notice of appeal should sufficiently describe or specify the judgment or order appealed from, but “a mistake in designating the judgment appealed from is not fatal, so long as the intent to appeal from a specific ruling can fairly be inferred and so long as the other party is not misled or prejudiced.” 5 Am.Jur.2d Appellate Review § 335 (1995) (citing Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Badger Pharmacal v. Colgate-Palmolive Co., 1 F.3d 621 (7th Cir.1993); SEC v. Van Waeyenberghe, 990 F.2d 845 (5th Cir.1993)); see also 4 C.J.S. Appeal and Error § 375 (1993). “Thus, [a notice of appeal] is sufficient if, although defective, the notice adequately describes or identifies the judgment or order, and appellee is not misled, in which case the court will disregard mere clerical errors, surplusage, and other mistakes.” 4 C.J.S. Appeal and Error § 375 (citing City Holding Co. v. Hosch, 220 Ala. 113, 124 So. 291 (1929); Title Guarantee & Trust Co. v. Lester, 216 Cal. 372, 14 P.2d 297 (1932); Markiavicus v. L.E. Bunnell Transp. Co., 119 Conn. 310, 175 A. 914 (1934); Price v. Horton, 76 Fla. 537, 80 So. 305 (1918); Jenkins v. Dunlop Tire & Rubber Corp., 71 Ga.App. 255, 30 S.E.2d 498 (1944); Turner v. Purdum, 77 Idaho 130, 289 P.2d 608 (1955); In re Marriage of Betts, 159 Ill.App.3d 327, 110 Ill.Dec. 555, 511 N.E.2d 732 (1987); Rusk v. Kokomo Steel & Wire Co., 68 Ind.App. 627, 121 N.E. 87 (1918); Citizens First Nat’l Bank of Storm Lake v. Turin, 431 N.W.2d 185 (Iowa Ct.App. 1988); In re Charles’ Estate, 158 Kan. 460, 148 P.2d 765 (1944); Bumpus v. Drinkard’s Adm’x, 279 S.W.2d 4 (Ky.1955); Garrett v. City of Lake Charles, 499 So.2d 956 (La.Ct.App.1986); Allison v. Sverdrup & Parcel & Assocs., Inc., 738 S.W.2d 440 (Mo.Ct.App.1987); Burgess v. Lasby, 94 Mont. 534, 24 P.2d 147 (1933); Johns Manville, Inc. of Cal. v. Lander County, 48 Nev. 244, 234 P. 518 (1925); Becker v. Wells, 297 N.Y. 275, 78 N.E.2d 609 (1948); Bank of Pinehurst v. Derby, 215 N.C. 669, 2 S.E.2d 875 (1939); Moore v. Foreacher, 91 Ohio App. 28, 105 N.E.2d 80 (1951); Topolos v. Skotheim, 126 Or. 683, 250 P. 235 (1928); Davis v. Strauss, 173 S.C. 99, 174 S.E. 908 (1934); Morrison v. Connery, 54 S.D. 329, 223 N.W. 210 (1929); Lipscomb v. McCart, 295 S.W. 245 (Tex.1927); Salt Lake City v. Anderson, 106 Utah 350, 148 P.2d 346 (1944); Sargent v. Selvar, 46 Wash.2d 271, 280 P.2d 683 (1955)).

In this case, Appellant filed a notice of appeal which stated that Appellant and Appellee were the parties to the suit, that the appeal was from the general sessions court’s judgment “entered the 26th day of September, 2001,” that Appellant sought an appeal of the judgment with the Shelby County Circuit Court, but that the docket number of the case was 798646, which was the docket number of the general sessions case dismissed in June 2000. Additionally, Appellant’s appeal bond filed with the notice of appeal named Appellant and ’Appellee as the parties to the appeal ;but also listed 798646 as the docket number. . Under these circumstances, we hold that it was error for the circuit court to dismiss Appellant’s claim for lack of jurisdiction. Though Appellant, in her notice of appeal and appeal bond, designated a general sessions docket number that was for a judgment ouvside of the ten-day period for appeal, she '.stated in her notice of appeal that she was appealing the judgment entered on September 26, 2001. Given that the notice indicated the date of the judgmerit she was appealing, the incorrect docket number is merely a technical error. Additionally, we note that, after our review of th e record, it appears that Appellee was ,: misled or prejudiced as a result of the incorrect docket number. Appellee not only filed a motion to dismiss for lack of jurisdiction, he also filed motions for summary judgment, arguing there was no genuine issue of material fact as to whether he committed legal malpractice. In addition, the parties appear to have argued over whether the medical staff performing Danielle’s birth exercised reasonable care. Such issues were central to the claim and judgment of Appellant in the case docketed number 855910 and show that the Ap-pellee was not misled about which judgment was being appealed to the circuit court. Therefore, we reverse the circuit court’s dismissal of Appellant’s claim for lack of jurisdiction and remand for further proceedings consistent with this opinion.

Conclusion

For the reasons stated above, we reverse the circuit court and remand for further proceedings. Costs of this appeal are taxed to Appellee, Duncan E. Rags-dale, for which execution may issue if necessary.


author: HOLLY M. KIRBY, J„

text:
    In re the ESTATE OF Clarice Lee MILLER.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    Assigned on Briefs Feb. 18, 2004.
    June 22, 2004.
    Permission to Appeal Denied by Supreme Court Dec. 20, 2004.

      Thomas A. Storey, Nashville, Tennessee, for appellants, Shirley Petty and Mrs. Percy (Judy) Miller.
    Ronald K Nevin, Nashville, Tennessee, for the appellee, Cecil Miller, Executor of the Estate of Clarice Lee Miller.
   OPINION

HOLLY M. KIRBY, J„

delivered the opinion of the Court,

in which W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This case involves the rights of a surviv- or in a joint bank account. During her lifetime, the decedent sold certain real property, put the proceeds in a separate bank account, and executed a will leaving half of the proceeds to her niece. The bank account in which the proceeds were deposited was a joint account between the decedent and her brother. The brother had power of attorney over the decedent’s affairs and was the named executor in the her will. After the decedent died, the decedent’s will was admitted to probate. The brother, as executor, filed a petition asking for instructions as to the proper disposition of the money in the joint bank account. The trial court held that, when the funds were placed in the joint bank account, the bequest to the niece was adeemed and the funds were no longer a part of the decedent’s estate. Therefore, the trial court determined that the brother, as the joint account holder with a right of survivorship, was entitled to all of the proceeds. The named beneficiary now appeals. We reverse, concluding that the evidence preponderates against a finding that the bank account was a joint tenancy with a right of survivorship.

On December 22, 1972, Percy Miller (“Percy”) and his wife, Judy Miller (“Judy”), purchased a half interest in residential property located at 168 Chippendale Drive, Hendersonville, Tennessee. The other half interest was purchased by J.C. McMurty (“McMurty”). McMurty moved into the house with Percy’s older sister, Clarice Lee Miller (“Clarice”), the decedent in this action.

Clarice was the oldest of several children whose father had moved out of their home. After their father left home, Clarice helped take care of the younger children. In an effort to help Clarice in her declining years, in 1980, Percy and Judy gave Clarice a warranty deed for their half interest in the Chippendale Drive property. The transfer was made with the understanding that Clarice would give half of the proceeds from the eventual sale of the house to Percy’s daughter by his first marriage, Shirley Petty (“Petty”). In 1985, McMurty gave Clarice the other half interest in the property.

Clarice lived in the house on Chippendale Drive until it became necessary for her to move into a nursing home. In June 2000, Clarice sold the property. The net proceeds from the sale amounted to $82,814.29. At that time, or shortly thereafter, Clarice executed her Last Will and Testament. In accordance with her brother Percy’s request, Clarice’s will included a specific bequest to Petty of half of the proceeds from the sale of the Chippendale Drive property. Clarice’s brother, James O. Miller (“James”), was the named executor in this will. Clarice had also given James a general power of attorney to conduct her business affairs during her lifetime. With that power of attorney, James opened a bank account for Clarice at Sun-Trust Bank, listing three persons as authorized to sign checks — himself, Clarice, and their brother, Cecil E. Miller (“Cecil”). James deposited the entire proceeds from the sale of the house into the SunTrust account. No other funds were co-mingled with the funds from the sale of the property-

James objected to the will that Clarice had made and became angry at her. Consequently, James withdrew as executor of Clarice’s estate. On May 3, 2001, Clarice executed a document giving power of attorney to her other brother, Cecil. According to the power of attorney document, Cecil was authorized to do the following:

sign checks in [her] stead and transact all banking business for [her] ... and to do, execute and perform all and every other act or acts, thing or things, in law needful and necessary to be done in and about the premises, as fully, completely, and amply, to all intents and purposes whatsoever as [she] might do if acting personally.

Thus, the power of attorney authorized Cecil to transact business in accordance with Clarice’s intentions.

A week later, on May 10, 2001, Clarice executed a new Last Will and Testament appointing Cecil as the executor. Like the first will, the second will included a specific bequest to Petty of half of the funds from the sale of the Chippendale Drive property. The bequest in Clarice’s will read:

I desire that one half of the proceeds from the sale of real estate located at 168 Chippendale Drive, Hendersonville, Tennessee go to Shirley Petty, the daughter of my deceased brother Percy Miller, as requested by him. The net proceeds amounted to $82,814.29; the amount to go to Shirley Petty is $41,407.15.

The next day, on May 11, 2001, Cecil closed the first account at SunTrust for which he, James, and Clarice had been authorized signatories. Cecil then opened a second joint bank account, this time with only Cecil and Clarice being authorized signatories.

On March 25, 2002, Clarice died at ninety-one years of age. Soon thereafter, Cecil closed the SunTrust account and took the proceeds as the surviving joint account holder.

On April 23, 2002, Cecil filed a small estate affidavit in the probate court, listing Clarice’s assets and stating that her personal estate was valued at $7,231.34. The affidavit did not include the monies in the joint SunTrust account. In May 2002, the trial court converted the small estate over to a full administration, and Clarice’s will was admitted to probate. In accordance with the terms of Clarice’s will, Cecil was appointed as executor of her estate. A later accounting revealed that Clarice had $35,484.26 in another bank account at Region’s Bank.

On July 12, 2002, Cecil filed a petition for construction of the will, seeking direction as to the proper administration of the $41,407.15 bequest to Petty. The petition pointed out that the proceeds from the sale of the Chippendale Drive property were “placed into a joint checking account at SunTrust Bank prior to the execution of the will and remained in a joint account in the names of Clarice L. Miller and Cecil Miller at the time of the death of the testator.”

On July 19, 2002, Cecil’s deposition was taken. Cecil testified that, in May 2001, Clarice had given him power of attorney over her business affairs, and that he used it only to deposit or withdraw funds from her second SunTrust account for which he and Clarice were signatories. Cecil said that, although Clarice was mentally alert, she was not physically capable of going to the bank herself. Cecil admitted that the funds in the account were “all her money,” and that when Clarice died, the account had in it at least the $82,814.29 in proceeds from the sale of the Chippendale Drive property. Cecil asserted that Clarice did not put the money in the account with the intent of maintaining it to pay Petty the bequest in the will. Rather, he maintained that Clarice intended for the money to go to him. Cecil acknowledged that, in Ciar-ice’s will, he was listed only as one of many beneficiaries who were to receive a share of the remainder estate. Contrary to the clear language in Clarice’s will, Cecil testified that Clarice had told him many times that the money in the SunTrust account was his money.

On March 17, 2003, Petty and Percy’s wife Judy (collectively, “respondents”) filed a joint response to Cecil’s petition, asserting that Clarice “clearly intended that one-half of the sale of the Chippendale Drive Property go to Shirley Petty with the remainder becoming part of her estate.” They claimed that Cecil exerted undue influence over Clarice to induce her to create a joint checking account with a right of survivorship to him. They maintained that there was no evidence that Clarice intended to give such a substantial part of her estate to Cecil alone; to the contrary, Clarice gave her power of attorney to Cecil to act on her behalf to carry out her intentions, which were stated expressly in her Last Will and Testament. Therefore, they asserted, if Cecil took any action contrary to the intention set forth in Clarice’s will, he exerted undue influence over her or acted without her knowledge. Thus, the respondents requested that the trial court include the proceeds in the Sun-Trust account in Clarice’s estate and have Cecil pay Petty the amount devised to her according to Clarice’s will.

On March 28, 2003, Cecil filed a pleading asserting that, by placing the proceeds of the sale of the Chippendale Drive property in a joint bank account, Clarice adeemed her specific bequest. In other words, when Clarice and her brothers opened the joint checking account, the money was no longer owned solely by Clarice. The joint account was still in existence on May 10, 2001, when Clarice executed her second will. Cecil argued that the provision in Clarice’s will leaving half of the proceeds from the sale of the Chippendale Drive property to Petty was inoperative based on the rule of ademption by extinction, because her disposition of the money interfered with the operation of the will. Cecil maintained that the rule of ademption by extinction would prevail without regard to the intention of the testator, because it is predicated upon the principle that the subject of the gift is annihilated and its condition so altered that nothing remains to which the terms of the bequest can apply.

On April 1, 2003, the trial court held a hearing on the matter. On April 21, 2003, the trial court entered an order holding that an ademption had occurred and that, consequently, there was no fund out of which to pay Petty her bequest under Clarice’s will. In reaching that conclusion, the trial court reasoned:

[T]he proceeds of the sale of real estate bequeathed to Shirley Petty in Item II of the decedent’s Last Will and Testament was adeemed and therefore there are no funds from the sale of the real property available for distribution to Shirley Petty, that the decedent had entered into contracts with SunTrust Bank to create joint accounts with rights of survivorship, that no Power of Attorney was used by the joint account holders for the creation of the joint accounts and that the contract with the bank prevails over the will.

Thus, the trial court concluded that the contracts with SunTrust Bank created rights of survivorship in the joint account holders, and that those contracts prevailed over the terms of the will. From that order, the respondents now appeal.

On appeal, the respondents argue that the trial court erred in determining that the bequest to Petty of the proceeds from the sale of the Chippendale Drive property was adeemed when Clarice opened the joint checking account with Cecil. The respondents assert that Clarice did not intend to give Cecil a right of survivorship in the proceeds of the sale of the property. Therefore, they argue, by opening the joint checking account with a right of sur-vivorship, Cecil acted contrary to Clarice’s intent and took advantage of the fact that she was physically unable to go to the bank to handle her own affairs. Clarice’s intentions were made clear in her Last Will and Testament, and there is no evidence that she ever intended to give such a large sum of money to either of her brothers. If James’ and Cecil’s signatures were included on the signature cards of either of the accounts, the respondents argue, they should have been included only in a representative capacity with no rights of surviv-orship. In the alternative, if there was a contract to create a right of survivorship, the Respondents argue that Cecil engaged in undue influence, overreaching, or fraud.

We review the trial court’s decision de novo on the record, with a presumption that the trial court’s findings of fact are correct, unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d). We review the trial court’s conclusions of law de novo, with no presumption of correctness. Akins v. Clark, 59 S.W.3d 124, 126-27 (Tenn.Ct.App.2001). Whether a bequest has been adeemed by extinction is a question of law, which we review de novo. In re Estate of Hume (The University of South v. Klank), 984 S.W.2d 602, 604 (Tenn. 1999).

“[A]demption is generally defined as the extinction, alienation, withdrawal, or satisfaction of the legacy by some act of the testator by which an intention to revoke is indicated: the doing of some act with regard to the subject-matter which interferes with the operation of the will.” Id. (quotation omitted). Ademption of a bequest can occur by satisfaction or by extinction. Ademption by satisfaction occurs when the subject matter of the bequest has been withdrawn from the will by the testator, giving in his lifetime to a beneficiary the thing he had devised in the will. In such a situation, the testator’s intent is critical. Rhodes v. Kebke, 179 Tenn. 480, 167 S.W.2d 345, 348 (Tenn. 1943). Ademption by extinction occurs, however, when the disposition of property bequeathed in the will during the testator’s lifetime interferes with the ability to carry out the terms of the will; it occurs without regard to the intent of the testator. In re Hume, 984 S.W.2d at 604; Akins, 59 S.W.3d at 127. Therefore, as discussed below, the trial court must necessarily have determined that the funds bequeathed to Petty passed directly to Cecil at Clarice’s death based on the “contract with the bank,” and that Cecil was entitled to those funds as the joint account holder with a right of survivorship.

The landmark case of Lowry v. Lowry, 541 S.W.2d 128, 131 (Tenn.1976), addressed at length the rights of parties to a joint bank account. In that case, the petitioner was the son of the decedent. The son held with the decedent two joint savings accounts totaling $28,000. The issue presented was whether the funds in the joint accounts should have been transferred directly to the petitioner son, or whether the funds should have been divided equally among the decedent’s five children under her will. Lowry, 541 S.W.2d at 129. The other children of the decedent argued that the petitioner was required to show affirmatively that the funds were transferred to him as a gift, under the general law of gifts. The Tennessee Supreme Court rejected the “gift” theory in favor of a “contract” theory. Id. at 130-31. Under the “contract” theory, the right of survivorship may be created in a joint bank account by the execution of a contract stating such terms, and clear language on a bank signature card is sufficient evidence of such a contract. The Lorn'y Court stated:

Absent clear and convincing evidence of contrary intent expressed at the time of its execution, we hold that a bank signature card containing an agreement in clear and unambiguous language that a joint account with rights of survivorship is intended, creates a joint tenancy enforceable according to its terms; and upon the death of one of the joint tenants, the proceeds pass to the survivor.

Id. at 132. Thus, under Lowry, rights of survivorship can be established by submitting evidence of an express contract doing so. The contract is between the depositor and the bank. See Chambers v. Henry, 628 S.W.2d 740, 742 (Tenn.Ct.App.1981). Such a contract creates a rebuttable presumption that the parties signing the contract intended for each party to have a right of survivorship in the joint account. See Clark v. Brown, 656 S.W.2d 4, 8 (Tenn. Ct.App.1983). The presumption can be rebutted by clear and convincing evidence of a contrary intent at the time of the execution of the contract, or by proof of fraud, undue influence, or overreaching. Id. Subsequent cases have held that, absent an express contractual provision, the intent to establish rights of survivorship in a joint bank account can also be proven by extrinsic evidence. Gay v. Phillips, 667 S.W.2d 495, 497 (Tenn.Ct.App.1983); Merchants Planters Bank v. Myers, 644 S.W.2d 683, 689-90 (Tenn.Ct.App.1982); see Simmons v. Foster, 622 S.W.2d 838, 842 (Tenn.Ct. App.1981).

In the instant case, the signature card signed by Clarice and Cecil establishes a joint account, but contains no language creating rights of survivorship. Furthermore, the record includes no other documentary evidence that Clarice entered into an express contract with the bank to create a right of survivorship in the account at issue. See In re Estate of Bowlin (Bowlin v. Ables), 766 S.W.2d 193, 195 (Tenn.Ct.App.1988) (holding that, where the deceased failed to contract with the bank to create a right of survivorship in the joint owner, certificate of deposit was an asset of the estate); Simmons, 622 S.W.2d at 842 (“The crucial question, then, is whether an agreement existed between the bank and the decedent to make the joint accounts joint tenancies with the right of survivorship.... ”).

The only evidence on which Cecil can rely to establish a right of survivorship in the joint bank account is his own uncorroborated testimony:

Q. Did Clarice Miller set up that account or have that account set up at SunTrust for the purpose of paying Shirley Petty the money that she was due under Item II in Ms. Miller’s will?
A. No, she did not.
Q. Why did she open a separate account when she had a bank account at another place?
A. She opened this account as a joint account to go to her two brothers, James Olney Miller and me, and she was the third one. She said this was not to be used for any other purpose.
Q. Did Ms. Clarice Miller have any idea that you were going to claim this bank account that you set up in her name with her?
A. Yes, she did. She knew I would. She told me many times, “That is your money.”

In Simmons v. Foster, 622 S.W.2d 838 (Tenn.Ct.App.1981), the appellate court held that the contract necessary to create a joint account with the right of survivor-ship may be proved by oral testimony. Simmons, 622 S.W.2d at 842. At issue in that case were a joint checking account and a joint savings account, both in the joint names of the decedent, Mr. Simmons, and his cousin, Mrs. Cowden, with whom the decedent lived toward the end of his life. The decedent Simmons opened a joint checking account in the name of Simmons or Cowden. There was no signature card on file for the joint checking account. Years later, the decedent Simmons opened a joint savings account in the name of Simmons and Cowden. Although there was no signature card for this account either, Simmons told the bank officer when he opened the savings account that he wanted Cowden to have the funds if anything happened to him. Id. at 839. The Simmons court indicated that, because there was no written contract specifically creating a right of survivorship, the issue was whether there was any other evidence of a right of survivorship in either of the joint accounts. Id. at 841.

The Simmons court noted that, in contrast to Lowry, supra, there was no bank signature card for either the joint checking account or the joint savings account, and stated that Cowden was required to show by other evidence that there was an agreement between the bank and the decedent to make the joint accounts joint tenancies with a right of survivorship in Cowden. Id. at 841-842. The Simmons court held that such an agreement between the bank and the decedent could be proved by “oral testimony.” Id. at 842. Analyzing the evidence, the Simmons court reached differing conclusions on the joint savings account and the joint checking account:

In the instant case ... the testimony establishes such a contract [between the bank and the decedent to create a joint account with a right of survivorship] with respect to the joint savings account. We think it is clear that the depositor, Mr. Simmons, intended for Mrs. Cowden to receive the balance in the account at his death and so instructed the bank at the time he opened the account. Therefore, the right to receive the funds in the joint savings account passed to Mrs. Cowden at Mr. Simmons’ death.
With respect to the joint checking account, there is no evidence in the record of such an agreement between the bank and Mr. Simmons. Nor is there any evidence to prove any of the other theories by which the right of survivorship may be established. Therefore, we hold that there was no right of survivorship created and that the executor is entitled to the funds in that account.

Id.

In this case, as in Simmons, there is no documentary evidence, such as a signature card, indicating that there was an agreement between Clarice and the bank to make the joint account a joint tenancy with a right of survivorship. Unlike the joint savings account in Simmons, however, there is no oral testimony of such an agreement. There is only Cecil’s testimony that Clarice opened the joint account “to go to her two brothers, James Olney Miller and me, and she was the third one.” Cecil asserted that in reference to the joint account, Clarice told him, “That is your money.” Such vague uncorroborated testimony of statements purportedly made by the decedent to Cecil at an unspecified time is insufficient to establish an agreement between SunTrust Bank and Clarice to create a joint tenancy with a right of survivorship. This is particularly true in light of the other evidence in the record indicating that Clarice fully intended that half of the proceeds from the sale of the Chippendale Drive property be given to Petty at her death. Clarice kept the proceeds from the sale in a separate account from the time of the sale until her death. On May 3, 2002, she gave Cecil power of attorney over her banking affairs, and within one week opened a joint bank account in which she deposited the sale proceeds. In the same week, she executed a second will naming Cecil as executor and leaving Petty half of the proceeds from the sale of the property. Under all of these circumstances, we must conclude that the evidence in the record is insufficient to find that the joint account was a joint tenancy with right of survivorship.

Therefore, we must analyze Cecil’s rights as a joint tenant with no right of survivorship. Joint tenants without a right of survivorship are presumed to have an equal interest in the funds in the joint bank account. See Dunn v. Williams, 1989 WL 22754, at *2 (Tenn.Ct.App. March 17,1989). In Williams, certificates of deposit were issued by a bank and made payable to the decedent and his stepdaughter. Id. at *1. The CDs contained no language referring to a right of surviv-orship, and the testimony appeared to indicate that the stepdaughter’s interest in the CDs was merely custodial. Id. at *4. Consequently, the Williams court analyzed the stepdaughter’s right in the CDs as a joint tenancy with no right of survivorship:

The rule as to tenancies in common is that although it may be presumed that the interests of the co-tenants are equal, this presumption does not apply if there is evidence to the contrary. Evidence of the proportion contributed by each co-tenant is persuasive as to the amount of their respective shares. See 20 Am. Jur.2d Cotenancy & Joint Ownership §§ 26, 118. The fact that the [stepdaughter] contributed nothing toward the purchase of the CD’s, coupled with evidence that her only interest in the funds was custodial, compels the conclusion that even if a technical tenancy in common resulted, the [stepdaughter’s] share was zero. Thus the Estate is entitled to the entire fund.

Id. at *4. In this case, Cecil admitted that Clarice was the only depositor in the account, stating that it was “all her money.” This evidence compels the conclusion that, even though Cecil and Clarice were joint tenants in the SunTrust account, Cecil’s share was zero. See id.

Accordingly, we must conclude that the evidence preponderates against the trial court’s conclusion that “the decedent had entered into contracts with SunTrust Bank to create joint accounts with right of sur-vivorship” and consequently that “the proceeds of the sale of real estate bequeathed to Shirley Petty in Item II of the decedent’s Last Will and Testament was adeemed....” Therefore, this finding is reversed. The record is clear that Cecil had no individual interest in the account and that his interest was merely custodial. Consequently, any funds that were in the SunTrust account at Clarice’s death would go to Clarice’s estate upon her death. The holding pretermits all other issues raised on appeal. The cause is remanded to the trial court for further proceedings consistent with this opinion.

The decision of the trial court is reversed and remanded to the trial court for further proceedings. Costs on appeal are to be taxed to Appellee Cecil Miller, Executor of the Estate of Clarice Lee Miller, for which execution may issue, if necessary.

      . McMurty and Clarice never married.

      . The record does not indicate exactly when Clarice moved to the nursing home.

      . A copy of that will was not included in the record on appeal, but its existence and the fact that it included a bequest to Petty is not in dispute.

      .A copy of the power of attorney was not included in the record on appeal, but the fact that it existed is not in dispute.

      . There is no transcript of the hearing in the record on appeal.


author: PER CURIAM.

text:
    Ex Parte Alberto VALDEZ, Applicant.
    No. AP75039.
    Court of Criminal Appeals of Texas.
    Nov. 10, 2004.
    Rehearing Denied Jan. 12, 2005.
    Jeffrey S. Levinger, Dallas, for Appellant. Douglas K. Norman, Assistant District Attorney, Corpus Christi, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

PER CURIAM.

In his subsequent application for a writ of habeas corpus, applicant claimed that he is mentally retarded. We determined that applicant had met the requirements of Code of Criminal Procedure Article 11.071, § 5, and we remanded to the trial court for findings of fact and conclusions of law. The trial court held an evidentiary hearing and found that applicant is mentally retarded. The record supports the trial court’s findings. Ex parte Briseno, 135 S.W.3d 1 (Tex.Crim.App.2004). Accordingly, we grant relief. We reform applicant’s sentence to life imprisonment in the Texas Department of Criminal Justice Correctional Institutions Division.


author: HERVEY, J.,

text:
    Michael James PERRY, Appellant, v. The STATE of Texas.
    No. AP-74591.
    Court of Criminal Appeals of Texas.
    Dec. 15, 2004.

      Danny K. Easterling, Houston, for Appellant.
    Gail Kikawa McConnell, Asst. District Attorney, Conroe, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, PJ., MEYERS, PRICE, WOMACK, KEASLER, HOLCOMB, and COCHRAN, JJ., joined.

A jury convicted appellant of capital murder. The trial court sentenced appellant to death pursuant to the jury’s answers to the special issues submitted at the punishment phase. Appellant raises seven points of error in his original brief and another point of error in a supplemental brief. We affirm.

Appellant does not challenge the sufficiency of the evidence to support his conviction. The evidence shows that appellant murdered the victim by shooting her with a shotgun while appellant and another person were burglarizing her home. Later that night appellant was involved in the murder of this victim’s son and another person. Appellant was arrested about a week later in an apartment where he had fled following a high-speed car-chase with the police during which appellant injured his arm, and one of the other occupants in the car was shot by the police in an exchange of gunfire. The injury to appellant’s arm was serious enough to require treatment at a hospital. The police obtained a written confession from appellant at the hospital.

Appellant was charged and tried only for the murder of the mother during the burglary of her home. Appellant testified at the guilt/innocence phase that he was not involved in this murder and that his confession was not true. The following portion of appellant’s confession was admitted into evidence at the guili/innocence phase:

Last week, the week of October 22-26, my Mend, Jason Burkett, and I decided we needed to get a vehicle, or two vehicles. We both know a younger white male [the burglary victim’s son], known to us as Adam Stotler whose parents have a lot of money. They also have a newer Camaro and Isuzu Rodeo.
On Wednesday 10-24-01 Jason and I made a plan that we were going to ask to spend the night with Adam at his house, and we were going to take the Camaro in the middle of the night while Adam and his mom was [sic] sleeping. We went to Adam’s house at about 7 pm on Wednesday 10-24-01. Jason was driving his girlMend, Kristen Ranel’s, blue Chevy truck, and I was riding in the passenger seat. We had a 12 gauge shotgun with us. Jason and I got to Adams [sic] house, and his mom told us that Adam was not home, that he was at the skate park and would be home around 9 pm.
Jason and I left in the truck, but before we got out of the subdivision, Jason said that it would be easier to get the car with only one person home. Jason and I then made a plan that Jason would knock on the front door, and I would sneak in the back door, through the garage with the shotgun. We went to Adam’s house on foot and left Kristen’s truck down the road. I walked around to the side of the house through the garage, and Jason knocked on the front door and asked to use the phone. When I heard Jason talking on the phone, I went into the house through the back door in the garage. Once in the house, I hid in the laundry room between the kitchen and garage. I then knocked on the back door, and when Adam’s mom came to the back door, I shot her one time in the side near her back with the shotgun. She fell to the floor, and I dropped the shotgun.
She then moved or tried to get up or something, and I grabbed the shotgun and shot her one more time. She fell to the floor in front of the laundry room and garage, back door. Jason freaked out and ran to the front door and opened the door. We calmed down a little and grabbed the blankets and sheet off of the bed in the bedroom near the kitchen and put the blankets and sheet over her because we did not want to look at her. Jason ran and got Kristen’s truck and brought it back to Adam’s house. Jason backed the truck into the garage, and we dragged Adam’s mom’s body and the blankets out into the garage, where we loaded her into the back of the truck with the blankets and sheet. I could not find the keys to the Camaro, and I remembered that the inspection sticker was expired, and Adam’s mom never drove it.
Jason then got into the drivers [sic] side of the truck and I got in the passenger seat, and Jason drove to an area he called Crater Lake. I did not know where Crater Lake was, but I remember driving down a dirt road, then going across a big bump and seeing some type of pipeline or something. We then drove down a cleared road and saw an old stripped out truck blocking the road. The road to what Jason called Crater Lake was off to the left of the stripped truck. Jason turned the truck around and first tried to open the tailgate, speed backwards toward the pond, and try to slam on the brakes to get the body to slide out. He did that I think twice, but it would not work so we grabbed her body, and we rolled her down into the water. Jason and I then threw sheets into the water on top of her and covered her up with some sticks and brush we found near by. It was about 8:20-8:30 pm by that time, and we drove to pick up Kristen, where she works at Big Dog Sports at the Outlet Mall in Conroe.
I jumped the fence and ran to Adam’s house. I got in the Camaro, which was parked in the garage and drove it out of the garage. I pressed the button to close the garage door, but it would not close so I drove off. I drove out of the gate, met Jason, and we left to go to our trailer. Jason drove the white Isuzu with the shotgun in it, and I drove the red Camaro. We went home, smoked several cigarettes, and then got cleaned up and went to Nite Life.

The rest of appellant’s confession was admitted into evidence at the punishment phase of the trial.

We picked up Kristen and drove back to Adam’s subdivision. Jason drove, Kristen sat in the middle, and I sat on the passenger’s side. We still had the shotgun with us. When we got to the subdivision, we could not get in, because we did not know the gate code. We knew that Adam would be home soon so we waited at the gate, and Adam pulled up in the white Isuzu Rodeo with another guy I know as Jeremy in the passenger seat. While Jason, Kristen, and I waited at the gate for Adam, we agreed on a story to tell Adam. Jason and I told Adam and Jeremy that a Mend of ours had shot himself while we were all hunting squirrels, and we needed their help to get him.
We left the front of the subdivision and turned right onto the road in front of the subdivision. We were still in the truck, and Adam and Jeremy followed us in the Isuzu Rodeo. We then came to a stop sign and turned right. We then took the first left off that road and crossed the railroad tracks. We drove down a dark, winding road and stopped at I think was the first dirt road on the left. We all parked there, and Jason, Jeremy, Adam, and I started walking back into the woods off the dirt road. Kristen sat in her truck. After we walked awhile, Adam realized where we were and said that he knew an easier way to get to our friend.
Adam and I went back to Adams [sic] Isuzu, and Jason and Jeremy stayed in the woods. Adam drove me in his Isuzu to the 1st subdivision on the left off of the same road we were on. Adam said that there was a road that went into the area we had earlier walked to. I think we turned onto the first road on the left in that subdivision and stopped at a cul-de-sac.
Adam and I got out of the Isuzu and we saw Jason walking toward us with the shotgun. Jason asked if we heard the gunshots and said that he was trying to let us know where he was. I told him that I had heard two to three shots. Adam then walked toward Jason, who did not have Jeremy with him, and Jason told him that he (Jason) would take Adam to where the others supposedly were. I walked back to get my cigarettes, and I saw Jason shoot Adam in the left side. I then covered my eyes. I heard a second gunshot and uncovered my eyes. I then saw Jason lean in close to Adam and fire a third shot at close range. I walked over to Adams [sic] body and got his car keys out of his pocket.
Jason and I then went to the Isuzu, and Adam [sic] got in the drivers [sic] side with me in the passenger side. We went back to where Kristin [sic] was waiting, and Kristen asked Jason, “What happened” and then said, “Never mind I don’t want to know.” Jason then said, “You’re right, you don’t want to know.”
Kristen’s sister called, and Kristen was upset and said she was going home. Kristen left in her truck, and Jason drove me back to Adam’s subdivision. I took the keys to the Camaro off of Adam’s key ring for the Isuzu, and I jumped the fence and ran to Adam’s house. I got in the Camaro, which was parked in the garage and drove it out of the garage. I pressed the button to close the garage door, but it would not close so I drove off. I drove out of the gate, met Jason, and we left to go to our trailer. Jason drove the white Isuzu with the shotgun in it, and I drove the red Camaro. We went home, smoked several cigarettes, and then got cleaned up and went to Nite Life.
The shotgun we used came from a burglary that Jason and I did on Ave. E by the Salvation Army. Jason and I both know the homeowner, and he drives a green Ford Ranger. We took a Glock .40 and a 12 gauge defender out of the house. The 12 gauge defender is the shotgun we used to kill Adam’s mom, Adam Stotler, and Jeremy.
I also took Adam’s wallet out of his Isuzu with his driver’s license.

In point of error one, appellant claims that the trial court erroneously permitted the prosecution to cross-examine him at the guilt/innocence phase with specific instances of his unadjudicated misconduct for impeachment purposes. See Tex.R. Evid. 608(b) (generally prohibiting cross-examination of a witness with specific instances of unadjudicated conduct for impeachment purposes). The State argues, however, that the prosecution cross-examined appellant with this evidence under the theory that appellant opened the door to it with his prior testimony that “most of [his] problems were concentration type problems” related to his psychiatric disorders. See generally Ochoa v. State, 481 S.W.2d 847, 850 (Tex.Cr.App.1972) (party can open the door to admission of otherwise inadmissible impeachment evidence).

The record reflects that appellant did not object to this cross-examination. Appellant, therefore, presents nothing for review. See id.; see also McDuff v. State, 939 S.W.2d 607, 618 (Tex.Cr.App.), cert. denied, 522 U.S. 844, 118 S.Ct. 125, 139 L.Ed.2d 75 (1997) (failure to object to proffered character testimony forfeits appellate claim that it should not have been admitted). Point of error one is overruled.

In points of error two and three, appellant claims that the trial court erroneously admitted testimony at the guilt/in-nocenee phase of appellant’s involvement in the two other murders that occurred on the same day as the capital murder for which he was on trial. In point of error two, appellant complains about the admission of Sergeant Blair’s testimony that he heard appellant tell another detective that appellant did not shoot the victim’s son.

Q. [PROSECUTION]: And how does [appellant] respond when Detective Mace introduces himself?
A. [BLAIR]: He — he told him he knew what was going on, that he was — it was going to be the needle or he was going to get the needle and he was just going to make it easy on everybody and kind of started — we were, you know — I didn’t shoot — -he said that he didn’t shoot [the victim’s son]- — •
Q. Stop, stop, stop.
A. Yes, sir. Sorry.
Q. Let’s back up.
Strike that, please.

In point of error three, appellant complains about the admission of another witness’ testimony that the police told her that appellant was a suspect in a triple homicide.

Q. [PROSECUTION]: Okay. And what were you awakened by?
A. [LAZRINE]: Officers at my door.
Q. Okay. And who were they looking for?
A. They were looking for [another person and appellant].
Q. Okay. And did they tell you what or do you know what-why they were looking for them?
A. Yes. They said that they were suspects for a triple homicide.

Appellant did not object to this testimony. We need not decide whether this testimony was foreseeable because appellant also did not request an instruction to disregard or move for a mistrial. Appellant, therefore, failed to preserve any error. See Young v. State, 137 S.W.3d 65, 68-70 (Tex.Cr.App.2004). Points of error two and three are overruled.

In point of error four, appellant claims that the trial court erroneously denied an Article 38.23(a), Tex.Code CRiM. PR0C„ instruction “due to disputed facts relevant to the voluntariness of the appellant’s oral statement following his arrest.” When there are disputed fact issues on whether evidence was legally obtained, a trial court is required to include a “properly worded” Article 38.23 instruction when requested by the defendant. See Mendoza v. State, 88 S.W.3d 236, 239 (Tex.Cr.App. 2002); but see Thomas v. State, 723 S.W.2d 696, 707 (Tex.Cr.App.1986) (suggesting that trial court required to submit “properly worded” Article 38.23 instruction even when not requested by the defendant).

The record reflects that the trial court denied appellant’s pretrial motion to suppress his confession based on conflicting evidence. See generally Guzman v. State, 955 S.W.2d 85, 87-89 (Tex.Cr.App.1997). This issue was retried before the jury at the guilt/innocence phase. Detective Mace testified that he initially interviewed appellant, whose arm was bandaged, in the back of an ambulance at the arrest scene. Mace testified that appellant began to make incriminating statements when he introduced himself to appellant and before he could inform appellant of his rights.

Q. [PROSECUTION]: Let me ask you this while you are looking through your report. This statement — were the statements made by [appellant] before you asked him any questions?
A. [Mace]: Yes, they were. It was actually immediately upon me introducing myself he started talking.
Q. Okay.
A. The first thing he stated was, “I know it’s the needle and I want to save everybody the trouble and just confess.”
Q. Okay. Now, when that statement was made to you, did you interrupt him?
A. Yes, I did. He continued speaking about this. I intei’rupted him and advised him of his Miranda rights.

A paramedic testified that appellant’s bandaged arm was cut to the bone and that appellant had a “T-shirt, shorts and some socks on.” Appellant complained that he was cold and that he was “shivering a little bit.” The paramedic also testified that he observed a “big knot on the back of appellant’s head” which was “possibly from contact with officer during apprehension.” Appellant was coherent, he did not seem intoxicated and he carried on a normal conversation with another officer (Blair) on the way to the hospital.

Blair testified that appellant did not ask for a lawyer at the arrest scene. The paramedic testified that he heard appellant tell Detective Mace in the ambulance that “I know I have a lawyer, but I am going to save us both a lot of time.” Mace obtained a tape-recorded statement that was reduced to writing at the hospital. Mace provided no testimony at trial on whether appellant invoked his right to counsel at the hospital (although Mace testified at the pretrial suppression hearing that appellant did not ask for a lawyer either in the ambulance or at the hospital).

Appellant testified that the police continued to question him after he had invoked his right to counsel.

Q. [DEFENSE]: Let me ask you if you will go back to the morning of — the early morning of [October 30th], You remember Detective Mace giving you some warnings orally some time after 7:00 o’clock that morning?
A. [APPELLANT]: In the morning? I don’t recall.
Q. You’re not — and what I’m specifically talking about, your Miranda rights or anybody’s Miranda rights, a common term. You have the right to remain silent and not make any statement and any statement might be used against you at trial. Any statement you might make can be used as evidence against you in a court of law. You have the right to have a lawyer present to advise you during- — prior to and during any questioning. If you can’t afford a lawyer, you have the right to have a lawyer appointed to advise you prior to and diming any questioning. And do you have — and you have the right to terminate, if you began an interview, at any time that you saw fit. Now, do you remember those warnings being given to you in the ambulance out there at Wild-wood Forest?
A. I think he did. Until I — sorry. Sorry. Sorry. Sorry. I caught myself.
Q. Your answer is what?
A. Yes, he did.
[PROSECUTION]: Objection. Asked and answered. Obviously, he said he gave him the warnings.
[THE COURT]: Sustained. .
Q. And then at any time thereafter, were you read or given your Miranda rights again?
A. No, sir.
Q. At any time that morning prior to Detective Mace arriving or subsequent to his arrival, did you announce to anybody that you wanted a lawyer?
A. Yes, sir.
Q. Did that request go unheeded?
A. What’s unheeded?
Q. Was there any response to that request?
A. No.
Q. Did they continue talking to you?
A. Yeah. Their response was continuing talking [sic].
Q. And you give this statement to Detective Mace because you were frightened. Is that what I heard your testimony to be?
A. One of the many reasons.
Q. And what other reasons?
A. I was just shocked, tired and wanted to be left alone. I was just overwhelmed with everyone around me. I was dizzy. I just — all the talking, attacking—

Appellant also provided testimony suggesting that the police coerced him into making a false confession.

Q. [DEFENSE]: Let me restate the question. Why do you put your name on something that’s not the truth?
A. [APPELLANT]: It would — I would have to start from the time of arrest, if you want me to.
Q. I want you to—
A. All right.
Q. —answer the question.
A. At the time I had had — I had previous encounters with the law like a misdemeanor drug possession or something that I missed a court date on and I knew I had a warrant for it. The night of October 24th, 2001,[] I had been drinking heavily on quite — quite a few amount of püls and we ended up sleeping in a white Rodeo as a result of not being able to drive, neither — any of the occupants in the car. We didn’t feel safe driving because of our influence. We pulled over and slept. Shortly after I continued to drink in the car. I must have passed out. I might have been asleep ten minutes. I couldn’t tell you the exact amount of time, but a patrolman woke us up telling us to freeze, put our hands up. At the time when he pulled his — he had a gun out. He told us to freeze. I tried to attempt [sic] to get on the ground, exit the car and get on the ground. I was kind of scared and nervous at this point. [Jason] Burkett was talking about balls to the walls or some statement along that effect. He had a shotgun, so I — and from what Kristin — from what people had told me, what I had heard him say, I knew that he was capable of doing almost anything now. We ended up wrecking through a glass building. I witnessed Jason get shot. I was cut pretty badly. He kind of assisted me to some apartments. And at the time of arrest — I will jump to that — the door was not kicked in, but forced open and many officers — I couldn’t tell you how many. Three or four with dogs came in the apartment. I was stood up against the wall by [Blair]. I had a gun shoved in my face. Told to the best of my recollection how would you — he [one of the victims of the triple homicide] was my friend or she was my friend or how could you do something like that. You are damn well going to tell me — tell me what happened and I was put on the ground and the knee in the back of my head and cuffed. Then put on the pavement for a pretty long amount of time. They asked to put me in the ambulance. I wasn’t put in there because we were waiting for [Mace] and finally Ms. Connie [a paramedic] or whoever the supervisor was at the time — I now know her name to be Connie — had asked to put me in there. At the time there was quite a bit of excitement. I was under the influence. My arms hurt pretty bad and I was real scared. I was just totally — I was being a suspect. I wasn’t charged yet, but I was a suspect in a triple homicide or capital murder. At the time of bringing me to the hospital, my condition in my mind state was that I am going to tell [Mace] anything he wants to hear to get him away from me, to get me out of this situation and that’s what I did. I was hungry, tired and just fed up and, for one, I really didn’t—

The trial court denied appellant’s request for an instruction directing the jury not to consider appellant’s confession if it was “due to intoxication or illness resulting from the loss of blood.” Appellant’s requested instruction stated:

A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion. “Intoxication” means not having the normal use of mental faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. Now, if you find from the evidence, or if you have a reasonable doubt thereof, that at the time the defendant gave the oral statement to [Mace], if the defendant did give it, the defendant was reduced to a condition of physical and mental impairment, due to intoxication or illness resulting from the loss of blood, such as to render such oral statement, if any, not voluntary, then you will wholly disregard the oral statement and not consider it for any purpose, nor any evidence obtained as a result thereof.

Appellant argues on appeal that the trial court should have submitted his requested instruction or, “if the trial court did not like that particular instruction, some other instruction covering the voluntariness issue” solely because “there was conflicting testimony as to whether [he] was intoxicated and whether he was in a distressed condition due to injuries and being cold.” Assuming that there is other evidence to support a finding that appellant’s intoxication and injury overbore appellant’s will and caused him to confess, the evidence of appellant’s intoxication and injury does not raise any constitutional voluntariness issues because this evidence does not involve any police coercion or other official overreaching. See Colorado v. Connelly, 479 U.S. 157, 163-166, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (integral element to support involuntariness finding is police overreaching or coercion). Point of error four is overruled.

Appellant claims in point of error five that, pursuant to the Supreme Court’s decisions in Ring v. Arizona and Appren-di v. New Jersey, the trial court should have instructed the jury that the State was required to prove beyond a reasonable doubt that the jury should answer “no” to the mitigation special issue. Appellant claims in a supplemental brief that our prior decisions rejecting this claim have been called into question by the Supreme Court’s more recent decision in Blakely v. Washington, —• U.S. -•, 124 S.Ct. 2531, 159 L.Éd.2d 403 (2004).

Apprendi and Ring decided that the aggravating facts involved in those cases that increased the penalty beyond the prescribed statutory maximum had to be “submitted to a jury, and proved beyond a reasonable doubt.” See Ring, 536 U.S. at 609, 122 S.Ct. 2428; Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. This Court has rejected claims that Apprendi and Ring apply to the mitigation special issue because a defendant is already eligible for a death sentence by the time the jury reaches the mitigation special issue, and, therefore, a “no” answer to the mitigation special issue would not increase this punishment. See, e.g., Blue, 125 S.W.3d at 501.

In Blakely, the Supreme Court stated that the statutory maximum sentence for Apprendi purposes “is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict.... See Blakely, — U.S. at -, 124 S.Ct. at 2587 (emphasis in original). The Court stated:

Our precedents make clear, however, that the “statutory maximum” for Ap-prendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations omitted]. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” [citation omitted], and the judge exceeds his proper authority.[]

Based on this passage from Blakely, appellant argues that, by the time the jury reached the mitigation special issue, the maximum sentence that he could have received based on the jury’s partial and incomplete verdict was life (even though this partial verdict made him death-eligible). Appellant further argues that, since a “no” answer to the mitigation special issue could have increased this maximum sentence from life to death, then, contrary to our decisions in cases such as Blue, the principles underlying Apprendi, Ring and Blakely are applicable to the mitigation special issue. The issue is whether the jury’s finding on the mitigating evidence special issue is a “fact legally essential to the punishment.” See Blakely, — U.S. at -, 124 S.Ct. at 2543 (as “Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment”) (emphasis in original).

Initially, we note that the mitigation special issue is a legislative response to the Supreme Court’s decision in Penny v. Lynaugh. It is clear that Apprendi, Ring and Blakely apply only to aggravating facts that the prosecution must prove to support a particular sentence. The holding in Ring expressly applies to “an aggravating circumstance necessary for imposition of the death penalty.” See Ring, 536 U.S. at 609, 122 S.Ct. 2428.

This view is supported by footnote 16 of Apprendi discussing “the distinction the Court has often recognized ... between facts in aggravation of punishment and facts in mitigation.” See Apprendi, 530 U.S. at 490 n. 16, 120 S.Ct. 2348. This view of distinguishing between facts in aggravation of punishment and facts in mitigation finds further support in Justice Sca-lia’s (the author of Blakely) concurring opinion in Ring, wherein he describes the imprecise Sixth Amendment claim put forth and rejected in Walton v. Arizona (which Ring overruled):

In Walton, to tell the truth, the Sixth Amendment claim was not put with the clarity it obtained in ... Apprendi. There what the appellant argued had to be found by the jury was not all facts essential to the imposition of the death penalty, but rather “every finding of fact underlying the sentencing decision,” including not only the aggravating factors without which the penalty could not be imposed, but also the mitigating factors that might induce a sentencer to give a lesser punishment

Ring, 536 U.S. at 611, 122 S.Ct. 2428 (Scalia, J., concurring).

It is, therefore, clear that what a jury is asked to decide in the mitigation special issue is not a “[fact] legally essential to the punishment.” See Blakely, — U.S. at -, 124 S.Ct. at 2531 {Apprendi holds that every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment); Blue, 125 S.W.3d at 501 (by the time jury reaches the mitigation special issue, the State has already demonstrated the defendant’s eligibility for a death sentence). By the time the jury reaches the mitigation special issue, the prosecution has proven all aggravating “facts legally essential to the punishment.” See Blakely, — U.S. at -, 124 S.Ct. at 2531; Tuilaepa, 512 U.S. at 971-75, 114 S.Ct. 2630. This Court’s decisions in cases such as Blue are consistent with Apprendi, Ring and Blakely. Point of error five is overruled.

In point of error six, appellant claims that the “trial court erred in failing to instruct the jury that the State has the burden of proof beyond a reasonable doubt on the mitigation issue, because the Texas statute gives the jury mixed signals as to how the mitigation issue is to be applied.” The mitigation special issue does not send “mixed signals” because it permits a capital sentencing jury to give effect to mitigating evidence in every conceivable manner in which the evidence might be relevant. See Johnson v. Texas, 509 U.S. 350, 367-69, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993); Cockrell v. State, 933 S.W.2d 73, 93, (Tex.Cr.App.1996), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997). Point of error six is overruled.

In point of error seven, appellant claims the “trial court erred by not instructing the jury that each juror had the power to prevent assessment of the death penalty by blocking a unanimous verdict for the State.” This Court has rejected this claim. See Cathey v. State, 992 S.W.2d 460, 466 (Tex.Cr.App.1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 805, 145 L.Ed.2d 678 (2000). Point of error seven is overruled.

In a supplemental point of error, appellant claims that it offends “the principles underlying [the United States Supreme Court’s recent decision in] Tennard v. Dretke, [— U.S.-, 124 S.Ct. 2562, 159 L.Ed.2d 384 (2004)] to instruct a capital sentencing jury to disregard evidence that the jurors do not find to be sufficiently connected to the crime to reduce moral blameworthiness.” This Court has decided that the mitigation special issue “does not unconstitutionally narrow the jury’s discretion to factors concerning only moral blameworthiness.” See Cantu v. State, 939 S.W.2d 627, 648-49 (Tex.Cr.App.), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997). The Supreme Court’s Tennard decision, which was decided under another statutory scheme that did not include the mitigation special issue, does not hold otherwise. See Tennard, — U.S. at-, 124 S.Ct. at 2569-72 (“impaired intellectual functioning” is inherently mitigating and, therefore, meets the definition of “constitutionally relevant” mitigating evidence). The supplemental point of error is overruled.

The judgment of the trial court is affirmed.

JOHNSON, J., concurred.

      . Since appellant’s only complaint on appeal is that the trial court refused his requested instruction, it is unnecessary in this case to resolve any conflict between our decision in Mendoza and our decision in Thomas on the issue of whether a trial court must sua sponte submit any other “properly worded” Article 38.23 instruction.

      . See Atkinson v. State, 923 S.W.2d 21, 23 (Tex.Cr.App.1996) (issue of whether evidence should be excluded under Article 38.23 may also be tried to the jury).

      . The record reflects that appellant was arrested on October 30th and that he murdered the victim on October 24th.

      . See State v. Terrazas, 4 S.W.3d 720, 723-24 (Tex.Cr.App.1999) (statement involuntary "only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker”).

      . 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

      . 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . See, e.g., Blue v. State, 125 S.W.3d 491, 501 (Tex.Cr.App.2003), cert. denied,-U.S.-, 125 S.Ct. 297 (U.S., 2004) (No. 03-10832).

      . These holdings are based on the Sixth Amendment right to a jury trial and "the right to have every element of the offense proved beyond a reasonable doubt.” See, e.g., Ap-prendi, 530 U.S. at 477 n. 3, 120 S.Ct. 2348.

      . Blakely,-U.S. at-, 124 S.Ct. at 2537 (emphasis in original).

      . See Tuilaepa v. California, 512 U.S. 967, 971-75, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (describing legally essential facts that make a defendant death-penalty eligible).

      . Appellant argues in a supplemental brief:
      Thus, the Blakely decision clarifies our understanding of the rule of Apprendi with respect to the meaning of the statutory maximum punishment for the crime. In this context, the "maximum” is not the maximum sentence that may be imposed after a jury finding of additional punish-
      ment facts, but the maximum that may be imposed without any additional jury findings. The maximum sentence that may be imposed upon a Texas capital defendant [by the time the jury reaches the mitigation special issue] alone is life imprisonment. In order to receive death, his sentencing jury must also return a ["no"] answer to the mitigation special issue, which means that the jury has found a new ultimate fact adverse to the defendant: his mitigation case was not sufficient to warrant a life sentence.

      (Emphasis in underline in original) (Emphasis in italics added).

      .492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

      . See, e.g., Ring, 536 U.S. at 597-98 n. 4, 122 S.Ct. 2428 (noting that Ring’s claim was "tightly delineated” and made no "Sixth Amendment claim with respect to mitigating circumstances”) and at 612 (Scalia, J., concurring) (what "today’s decisions says is that the jury must find the existence of the fact that an aggravating factor existed”) (emphasis in original).

      . A state may, without violating due process, even require a defendant to prove facts in mitigation of punishment. See Martin v. Ohio, 480 U.S. 228, 230-36, 107 S.Ct. 1098, 94 L.Ed.2d 267 (1987) (no violation of due process for state to require a defendant to prove self-defense); Patterson v. New York, 432 U.S. 197, 201-02, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (same with respect to extreme emotional disturbance). It is noteworthy that appellant’s supplemental brief even refers to "his mitigation case” in the context of apparently arguing that the State has the burden to disprove "his mitigation case” beyond a reasonable doubt. See Footnote 11.

      . 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990), overruled by Ring, 536 U.S. at 609, 122 S.Ct. 2428.

      16. Emphasis in original.