In Re Donald Gene Bice v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-25-00307-CV

In re Donald Gene Bice

On appeal from the
County Court at Law of Bosque County, Texas
Judge Frank Griffin, presiding
Trial Court Cause No. P08668

JUSTICE HARRIS delivered the opinion of the Court.

MEMORANDUM OPINION

At the conclusion of a jury trial on will contest, the jury answered “No”

to the verdict question “[d]id the Decedent sign the Purported Will?”.

Following the verdict, the applicants of the will, two of the three daughters of

the Decedent, moved for a judgment notwithstanding verdict or motion for a

new trial. The trial court granted the proponents’ motion. The husband of

the decedent filed a petition for writ of mandamus. Because there is legally

and factually sufficient evidence to support the jury’s finding, we

conditionally grant the petition for writ of mandamus and instruct the trial

court to enter judgment on the jury’s verdict.
BACKGROUND

At the time of Lois Kathlyn Bice’s (“Decedent”) death on November 14,

2009, she was survived by her husband Donald Gene Bice (“Mr. Bice”) and

the three children shared by Decedent and Mr. Bice: Donna Bice Read, Diane

Bice Hightower, and Darbie Bice Bowman (collectively the “Daughters”).

Following Decedent’s death, no will was located or probated. On August 27,

2010, Mr. Bice and the Daughters signed a notarized heirship affidavit

stating that the Decedent died intestate and listing Mr. Bice as the

Decedent’s legal heir and next of kin. The heirship affidavit was recorded

with the Bosque County Clerk on September 9, 2010.

Following Decedent’s death, Mr. Bice continued to reside at a 170-acre

tract of land where he and the Decedent resided prior to her death,

understanding himself to be the sole owner of that tract of land and houses

on the land (the “Property”). Two of the daughters, Diane Bice Hightower

(“Hightower”) and Donna Bice Read (“Read”), were living on the Property

when the Daughters learned on or about September 2023 that Mr. Bice

intended to sell the Property. Hightower received a notice of eviction

addressed to Hightower and Read, dated March 21, 2024, and signed by Mr.

Bice. On June 16, 2024, Mr. Bice entered a contract to sell the Property then

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subsequently filed a petition for eviction, naming Hightower and Read, on

July 2, 2024.

On or about June 26, 2024 and June 28, 2024, Darbie Bice Bowman

(“Bowman”) and Read (collectively the “Applicants”) respectively filed an

application to probate a purported will of the Decedent, filed the purported

will of the Decedent, and filed a notice of lis pendens listing the Property.

The purported will of the Decedent is dated January 2001 and includes a self-

proving affidavit. This will contest ensued and was tried before a jury on

April 22, 2025 through April 24, 2025.

At trial, Bowman represented the Applicants, consisting of herself and

her sister Read. Mr. Bice, Hightower, and Read were the only three

witnesses that testified at trial. Hightower testified that she found the

purported will of the Decedent around January or February of 2024. She

testified that she did not tell Read or Bowman that she found the purported

will until approximately four months later on or about June 2024. No

pictures were offered showing where the purported will was found.

Hightower testified that she prepared both the purported 2001 will of the

Decedent and an heirship affidavit following Decedent’s death declaring that

the Decedent died intestate.

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At the conclusion of the trial, both the Applicants and contestant (Mr.

Bice) submitted proposed jury charges to the court that included a jury

question about whether the Decedent signed the purported will. The

applicants did not object to the inclusion of Question No. 1 on the jury charge

which read: “Did Decedent sign the Purported Will?”. Because the jury

answered “No” to Question No. 1, the jury returned the verdict answering no

further questions.

Applicants moved for a judgment notwithstanding verdict and new

trial, arguing in part that there was insufficient evidence to support the

jury’s finding as to Question No. 1 and that Mr. Bice did not prove that

Decedent did not sign the purported will and attached self-proving affidavit.

The trial court entered its Order Granting Proponents’ Motion for Judgment

Notwithstanding the Verdict and Motion for New Trial (“Order”). Mr. Bice

filed his petition for writ of mandamus challenging the Order on two grounds:

(1) that the Order fails to meet the standard for facial validity of a new trial

order and (2) that the Order substitutes the trial court’s judgment for that of

the jury despite the legally and factually sufficient evidence to support the

jury’s finding. We agree and conditionally grant Mr. Bice’s petition for writ of

mandamus for the reasons herein.

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STANDARD OF REVIEW

A trial court may grant a new trial “for good cause,” subject to

mandamus review for clear abuse of discretion. In re Space Expl. Techs.

Corp., 716 S.W.3d 576, 581 (Tex. 2025). Trial courts have considerable

discretion to grant new trials, but no court is free to simply substitute its

judgment for that of the jury without a valid basis. In re Columbia Med. Ctr.

of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009).

“Disregarding a jury's verdict is an unusually serious act that imperils a

constitutional value of immense importance—the authority of a jury.” In re

Rudolph Auto., LLC, 674 S.W.3d 289, 302 (Tex. 2023), reh'g denied (Sept. 29,

2023).

It is an abuse of discretion to grant a new trial if the order does not

clearly identify “an understandable, reasonably specific explanation” for why

a new trial is warranted. Id. at 299. Even if the trial court’s new trial order

conforms with the procedural requirements of providing such an explanation,

a trial court’s articulated reasons, upon a merits-based review, must be

supported by the underlying record. Id. at 300 - 301.

MERITS-BASED REVIEW DOES NOT SUPPORT NEW TRIAL ORDER

Here, the challenged Order lists roughly four explanations for the trial

court’s granting of a new trial: (1) the purported will with the attached self-

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proving affidavit was admitted into evidence; (2) Bice did not object to the

admission of the purported will and attached self-proving affidavit;

(3) Mr. Bice produced no evidence that the signature on the purported will

was not the Decedent’s signature; and (4) Question No. 1 should not have

been submitted to the jury because Mr. Bice offered no evidence that the

Decedent did not sign the purported will. 1

Without evaluating the facial validity of the Order and the

explanations offered therein, we first turn to Mr. Bice’s second issue on

appeal. Upon a merits-based review of the record as a whole, there is legally

and factually sufficient evidence to support the jury’s finding that the

Decedent did not sign the purported will.

Applicants had the burden of proving valid execution

Before a will is admitted to probate, the will's proponent must establish

that it was properly executed and that the testator had testamentary

capacity at the time of execution. Estate of Danford, 550 S.W.3d 275 (Tex.

App.—Houston [14th Dist.] 2018, no pet.). The burden of proof and

persuasion rests on the will’s proponent. Id. at 281. Without objection, the

1
We do not address the arguments that Question No. 1 should not have been submitted to the jury. Applicants not
only failed to object to the inclusion of Question No. 1 in the jury charge, but the Applicants also tendered the same
question and proposed that the determination of whether the Decedent signed the will was within the province of the
jury. Jury charge error is not preserved when a party “waives, or invites, the alleged error by acquiescing to
submitting a theory”, and “a party waives claimed error in the charge when that party proposes to submit a
substantially similar charge to the jury.” C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 785 (Tex. App.—
Houston [1st Dist.] 2004, no pet.).

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instruction that the burden of proof is on the proponent (the Applicants) to

establish the elements required for a valid will, even though the will has a

self-proving affidavit, was explicitly listed in the jury charge. Here, the

Applicants had the burden to prove that the purported 2001 will was validly

executed, a fact contested by Mr. Bice.

While a self-proved will may serve as prima facie evidence that the will

was properly executed, when a dispute exists “a self-proved will cannot

otherwise be treated differently than a will that is not self-proved, and may

be contested in the same manner as a will that is not self-proved.” In re

Estate of Romo, 503 S.W.3d 672, 677 (Tex. App.—El Paso 2016, no pet.) citing

TEX. EST. CODE § 251.102. “A self-proved will may be contested, revoked, or

amended by a codicil in the same manner as a will that is not self-proved.”

TEX. ESTATES CODE ANN. § 251.106.

A self-proving affidavit alone does not establish that a will is valid as a

matter of law, especially when, like here, evidence was presented rebutting

and countering the prima facie presumption of validity. Matter of Estate of

Hogan, No. 11-20-00170-CV, 2022 WL 2070331, at *4 (Tex. App.—Eastland

June 9, 2022, no pet.) A self-proving affidavit does not remove the factual

determination of validity from the province of the jury. Self-proving

provisions have only the effect of authorizing the substitution of affidavits in

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lieu of testimony offered before the court. Reynolds v. Park, 485 S.W.2d 807,

816 (Tex. App.—Amarillo 1972, writ ref’d n.r.e.). It is within the jury’s

purview to weigh the credibility of testimony, including those sworn

statements contained in affidavits. City of Keller v. Wilson, 168 S.W.3d 802,

819-21 (Tex. 2005). When evidence conflicts, the jury's role is to evaluate the

credibility of the witnesses and reconcile any inconsistencies, and as a

general proposition, the jury may believe all or any part of the testimony of

any witness and disregard all or any part of the testimony of any witness. Id.

At trial, Mr. Bice elicited testimony and evidence that attacked the

credibility of the purported will and the attached self-proving affidavit as well

as the credibility of the Applicants’ witnesses. Mr. Bice argued and pointed

to suspicions surrounding the purported will to show that Decedent did not

sign the will and that the will was invalid, contradicting and raising a fact

issue regarding the execution and validity of the purported will.

Sufficient Evidence Supports the Jury’s Verdict

Because a factual issue existed regarding the execution and validity of

the purported will, we turn to a review of the sufficiency of the evidence

supporting the jury’s verdict. When a party with the burden of proof

challenges an adverse finding, that party must demonstrate on appeal that

the evidence establishes, as a matter of law, all vital facts in support of the

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issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In

reviewing a “matter of law” challenge, the reviewing court must first examine

the record for evidence that supports the finding, while ignoring all evidence

to the contrary. Id. If there is no evidence to support the finding, the

reviewing court will then examine the entire record to determine if the

contrary proposition is established as a matter of law. Id. The point of error

should be sustained only if the contrary proposition is conclusively

established. Id. In reviewing a factual-sufficiency challenge to a jury finding

on an issue on which the appellant had the burden of proof, the appellant

must show that “the adverse finding is against the great weight and

preponderance of the evidence.” Id. at 242. Evidence is viewed in the light

most favorable to the verdict. Estate of Curry, No. 10-23-00207-CV, 2025 WL

2473024, at *3 (Tex. App.—Waco Aug. 28, 2025, no pet. h.). The jury's

verdict will be set aside only if the evidence that supports the finding is so

weak as to be clearly wrong and manifestly unjust. Id.

Review of the record shows that the evidence in support of the jury’s

verdict was neither weak nor so slight to allow us to conclude that the

purported will was signed by the Decedent as a matter of law. The jury

heard evidence that Hightower had no record of preparing the purported will,

that none of the Daughters were able to locate the purported will for fourteen

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years, that Hightower had no photos of where the purported will was

discovered, and that all the Daughters signed an heirship affidavit asserting

that the Decedent died without a will. Mr. Bice also presented evidence to

the jury regarding the timing and potential monetary motive of probating the

purported will. Specifically, the purported will was first filed after Mr. Bice

entered a sales contract for the Property valued at over a million dollars, and

the Daughters would be entitled to some portion of the Property or proceeds

from the sale of the Property under the purported will.

The above-listed, non-exhaustive recitation of evidence makes clear

that there is sufficient evidence for the jury to conclude that the will was not

signed. Jurors are the sole judges of the credibility of the witnesses and the

weight to give their testimony. City of Keller v. Wilson, 168 S.W.3d 802, 820

(Tex. 2005). Not only is it unnecessary to have testimony from both parties,

but also juries may choose to believe one witness and disbelieve another, even

if the testimony is uncontradicted. Id. A reviewing court may assume a jury

disregarded some testimony in favor of their verdict, and reviewing courts

cannot impose their own opinions to the contrary when a jury acted

reasonably within their discretion. Id. In the present case, there is sufficient

evidence that a reasonable jury, in their sole discretion, could have concluded

that the Decedent did not sign the purported will.

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We find that the reasons articulated in the Order for granting a new

trial are not supported by the record.

CONCLUSION

Upon a merits-based analysis of the Order and record, we conclude

there is legally and factually sufficient evidence to support the jury’s verdict.

Because the Order is therefore substantively invalid, we need not address the

facial validity of the Order. As such, we conditionally grant the petition for

writ of mandamus and instruct the trial court to enter judgment on the jury’s

verdict.

LEE HARRIS
Justice

OPINION DELIVERED and FILED: November 20, 2025
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Conditionally granted
CV06

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