In the Estate of Julian D. Driscoll v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00128-CV

IN THE ESTATE OF JULIAN D. DRISCOLL, DECEASED

On Appeal from the County Court at Law No. 2
Hays County, Texas
Trial Court No. 17-0334-P, Honorable Jimmy Alan Hall, Presiding

February 24, 2025
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Douglas Cones, challenges a judgment from a jury trial in favor of

Appellee, the Estate of Julian D. Driscoll, Deceased. Cones urges the trial court erred

by: (1) improperly instructing the jury the same jurors did not have to agree as to each

finding; (2) the evidence was legally insufficient to support the jury’s finding of no

consideration for the deed in question; (3) the probate court lacked jurisdiction; and (4)
the jury’s finding Driscoll lacked capacity to execute the deed was against the great weight

of the evidence. We affirm.1

BACKGROUND

In March 2015, a mere month after he suffered two strokes, Julian Driscoll, an 81-

year-old army veteran fighting cancer, had a severe reaction to his chemotherapy drugs.

His neighbor, Douglas Cones, who had helped him get to and from cancer treatments,

drove him to the hospital. During his ten-day stay in the hospital, Driscoll was given

several stacks of documents to sign by hospital staff. Cones assisted Driscoll in signing

the necessary healthcare documents due to his poor vision and cataracts.

A month after leaving the hospital, Driscoll learned from a neighbor he had

executed a warranty deed conveying his 100-acre property to Cones. The neighbor

showed him a copy of the deed, which was dated during his stay in the hospital. Driscoll

maintained he never remembered signing the document, he did not intend to convey his

land to Cones, and he also did not receive anything of value in return for the conveyance.

Driscoll then sued Cones to rescind the warranty deed and undo the conveyance. During

the litigation, he also discovered a copy of a will with his signature, apparently signed in

the hospital a day after the warranty deed, naming Cones the executor of his estate.

Unfortunately, Driscoll died while the trial was pending. Before passing he rejected

the will signed in the hospital and executed a new will appointing his surviving cousin,

1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should
a conflict exist between precedent of the Third Court of Appeals and this Court, this appeal will be decided
in accordance with the precedent of the Third Court of Appeals. TEX. R. APP. P. 41.3; Mitschke v. Borromeo,
645 S.W.3d 251 (Tex. 2022).
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Lynn Helton, as executor of his estate. The revised will was admitted to probate and

letters testamentary were issued to Helton. The pending litigation was then transferred

to the probate court at the behest of Helton as executor of Driscoll’s estate. At trial, the

jury found Driscoll did not have the requisite capacity to execute the warranty deed and

there was no consideration paid for the deed. Based on the jury’s findings, the trial court

entered judgment against Cones.

ANALYSIS

ISSUE THREE—JURISDICTION OF THE COURT

We address Cones’s third issue first because it offers him the greatest relief.

Cones claims the probate court lacked jurisdiction to hear the case. We review questions

of subject matter jurisdiction de novo. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678,

682 (Tex. 2020) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004)). Because the trial court granted a plea to the jurisdiction in the case, he

argues, it no longer had jurisdiction to hear the merits of the case. He urges “[the order

granting the plea to the jurisdiction] dismiss[ed] [Cones] with prejudice from the probate

case thus making it a final judgment as to [Cones,]” and therefore the “transfer [to the

probate court] was improper as the probate court had already issued a final judgment

against [Cones].”

Cones mischaracterizes the plea to the jurisdiction, which only sought to dismiss

Cones’s claim opposing the admission of the revised will based on Cones’s lack of

standing; it did not seek to dismiss Cones as a party. The trial court’s granting of the plea

only disposed of Cones’s claims, but Driscoll’s claims against him were still live and

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required disposition. The trial court retained jurisdiction over Cones as a party and

therefore had jurisdiction to hear the claims pending against him. His argument is simply

without merit, and his third issue is overruled.

ISSUE ONE—IMPROPER JURY INSTRUCTION

Cones raises as his first issue the trial court improperly instructed the jury. He

argues the trial court’s instruction violated Rule 292 of the Texas Rules of Civil Procedure

because the jurors were not instructed that the same five of six jurors had to make the

same finding on each of the three jury charge questions in order to reach a verdict.2 TEX.

R. CIV. P. 292.

“We review a trial court’s decision to submit or refuse a particular instruction under

an abuse of discretion standard of review.” Alsay, Inc. v. Gicon Pumps & Equip., Inc.,

No. 07-19-00302-CV, 2020 Tex. App. LEXIS 7597, at *6 (Tex. App.—Amarillo Sep. 17,

2020, no pet.) (mem. op.) (quoting In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000)). The

trial court has considerable discretion in determining necessary and proper jury

instructions. Id. We will not reverse a judgment for jury charge error in the absence of

harm. Alsay, 2020 Tex. App. LEXIS 7597, at *6 (citing Lone Star Gas Co. v. Lemond,

897 S.W.2d 755, 756–57 (Tex. 1995) (per curiam); Friday v. Spears, 975 S.W.2d 699,

700 (Tex. App.—Texarkana 1998, no pet.)).

The court’s jury charge under the section entitled “Instructions for Signing the

Verdict Certificate” read:

2 Because the case was tried in county court, the jury panel consisted of only six jurors.

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You may answer the questions on a vote of five jurors. Five jurors must
agree on each answer in the charge. This requirement means you may
have one group of five jurors agree on one answer and a different group of
five jurors agree on another answer.

Cones takes particular issue with the language “you may have one group of five jurors

agree on one answer and a different group of five jurors agree on another answer.” He

urges this language is contrary to the requirement of Rule 292 that “a verdict may be

rendered in any cause by the concurrence, as to each and all answers made, of the

same . . . five or more members of an original jury of six.” Id. (emphasis added). We

agree.

The recommended jury instruction under Rule 226a is:

You may answer the questions on a vote of [five] jurors. The same [five]
jurors must agree on every answer in the charge. This means you may not
have one group of [five] jurors agree on one answer and a different group
of [five] jurors agree on another answer.

TEX. R. CIV. P. 226a (emphasis added). The conspicuous absence of the word “not” from

the trial court’s instruction, as Cones suggests, results in an instruction permitting the jury

to reach a verdict where the same five jurors have not agreed to the same answers. The

trial court erred in improperly instructing the jury.

However, erroneous rulings require reversal only if a review of the record reveals

the error was harmful. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 728

(Tex. 2016). The three questions submitted to the jury were:

1. whether Driscoll received adequate consideration for the deed;

2. whether he lacked sufficient mental capacity to execute the deed; and

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3. whether Cones exerted any undue influence on Driscoll to cause him to
execute the deed.

The jury answered unanimously “no” to question one and unanimously “yes” to

question two, but only five of the six agreed on the answer of “no” to question three. The

thesis of Cones’s argument is we are unable to discern which of the five jurors agreed to

the answers for all three questions. He arrives at this conclusion by surmising “a juror

who did not agree with the answer to a certain question could sign off that they did so

anyway even if he or she did not agree to it because they were told they did not have to

agree to each answer.” But this argument ignores the math: a unanimous jury found

Driscoll gave no consideration to Cones for the warranty deed and that Driscoll lacked

capacity at the time he signed the deed. The third question, whether Cones exerted any

undue influence upon Driscoll, was answered in favor of Cones when five of the jurors

answered in the negative. Thus, logically, the same five of the six jurors necessarily found

the same answers to all three questions.

Even if the trial court did err in its instruction, because the same five jurors

ultimately agreed to the same three answers to the jury questions, the trial court’s error

was harmless. TEX. R. APP. P. 44.1(a)(1). We overrule Cones’s first issue.

ISSUES TWO AND FOUR—SUFFICIENCY OF THE EVIDENCE SUPPORTING THE JURY’S FINDINGS

The second issue raised by Cones is a legal sufficiency challenge to the evidence

supporting the jury’s finding of no consideration for the deed, while his fourth issue

presents a factual sufficiency challenge to the finding Driscoll lacked capacity. A legal

sufficiency challenge “will be sustained when (a) there is a complete absence of evidence

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of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to

the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact

is no more than a scintilla, or (d) the evidence conclusively establishes the opposite of

the vital fact.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp.,

299 S.W.3d 106, 115 (Tex. 2009) (quoting Merrell Dow Pharms., Inc. v. Havner, 953

S.W.2d 706, 711 (Tex. 1997)). When we review factual sufficiency, we consider and

weigh all of the evidence and will set aside the verdict only if it is so against the great

weight and preponderance of the evidence that it is clearly wrong and unjust. City of

Keller v. Wilson, 168 S.W.3d 802, 826 (Tex. 2005).

Addressing his fourth issue first, Cones suggests the jury was presented with only

one witness—the notary public who notarized the deed—who testified she thought

Driscoll had capacity at the time he executed the deed. He urges this was the only

evidence of capacity at the time of the execution of the deed, and therefore the jury’s

finding to the contrary was against the weight of the evidence.

However, the jury was also presented other evidence of Driscoll’s lack of capacity

at the time of his admission to the hospital, including Driscoll’s affidavit and deposition

testimony, and the expert testimony of the geriatric psychiatrist who met Driscoll and

examined his medical records and deposition. A reasonable juror could have believed

this evidence. Although Cones is correct in asserting the only witness to Driscoll’s signing

of the documents in question was the notary public, the jury was free to discredit her

testimony and also make reasonable inferences regarding Driscoll’s capacity based on

the other evidence presented. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757,

761 (Tex. 2003) (the jury is the sole judge of the credibility of witnesses and the weight to
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be given to their testimony). A reasonable juror could believe—given Driscoll’s age, the

fact he suffered a stroke at the time of the signing of the documents, his own recollection

of not being able to comprehend the documents presented to him, and the doctor’s expert

testimony—he lacked capacity at the time.

The jury’s finding Driscoll lacked mental capacity was not so against the great

weight and preponderance of the evidence that it is clearly wrong and unjust. We overrule

Cones’s fourth issue. Because the jury’s finding Driscoll lacked capacity was sufficient to

uphold the judgment rescinding the deed, we do not reach his second issue. TEX. R. APP.

P. 47.1.3 His issue two is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Alex Yarbrough
Justice

3 A lack of consideration and a lack of mental capacity are both defenses to the validity of a contract.

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 409 (Tex. 1997) (“A contract that lacks consideration, lacks
mutuality of obligation and is unenforceable.”); In re Morgan Stanley & Co., 293 S.W.3d 182, 183 (Tex.
2009) (lack of mental capacity was a defense to formation of contract containing arbitration agreement).
Therefore, a finding by the jury the deed either lacked consideration or the grantor lacked capacity makes
the deed unenforceable. See id.
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