Joe D. Henderson v. State ( 2003 )

NO. 07-03-0274-CR

07-03-0275-CR

07-03-0276-CR

07-03-0277-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 7, 2003 ______________________________



JOE D. HENDERSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 45,363-A; 45,823-A; 45,824-A; 45,825-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ON ABATEMENT AND REMAND

Appellant Joe D. Henderson has given pro se notice of appeal from convictions in causes numbers 45,363-A, 45,823-A, 45,824-A and 45,825-A in the District Court of Potter County, Texas (the trial court). The clerk of the court of appeals has received motions from the trial court clerk and the court reporter requesting extensions of time for the filing of the respective appellate records. Both motions reflect that no designation of record has been received and no arrangement to pay for the records has been made. No appearance has been made by any counsel for appellant on appeal.

In Texas, every person convicted of a crime has a statutory right to appeal. See Tex. Crim. Proc. Code Ann. § 44.02 (Vernon 1979); Nguyen v. State, 11 S.W.3d 376, 378-79 (Tex.App.--Houston [14^th Dist.] 2000, no pet.); Johnson v. State, 885 S.W.2d 641, 644 (Tex.App.--Waco 1994, pet. ref'd). The Sixth and Fourteenth Amendments of the United States Constitution guarantee to a criminal defendant the right to counsel on a first appeal. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). An attorney must be appointed by the state to represent an indigent defendant on the first appeal. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435, 108 S. Ct. 1895, 1900, 100 L. Ed. 2d 440 (1988). In Texas, the trial court has been designated to appoint the appellate attorney for an eligible indigent defendant. See Tex. Crim. Proc. Code Ann. §§ 1.051(d)(1), 26.04(a).

These appeals are abated and the causes are remanded to the trial court. Upon remand, the judge of the trial court is directed to cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute any or all of the appeals; (2) if appellant desires to prosecute any or all of the appeals, then whether appellant is indigent; (3) if appellant is indigent and desires to prosecute any or all of the appeals, whether counsel should be appointed for appeal; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeals if appellant does not desire to prosecute any of the appeals, or, if appellant desires to prosecute any of the appeals, to assure that the appeals will be diligently pursued. If the trial court determines that counsel should be appointed for any or all of the appeals, the trial court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the appointed attorney.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be transcribed and included in a reporter's record of the hearing; and (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record of the hearing. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record of the hearing, and any additional proceeding records, including any orders, findings conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than August 29, 2003.

Per Curiam

Do not publish.

e $200,000. By its judgment, the trial court set aside the trustee's deeds of June 1, 1999 and August 3, 1999, and ordered that Williamson recover $125,000 plus accrued interest, and Betty Cook be awarded $75,000 plus accrued interest.

We first note the rules applicable to our review of this appeal. As a court of appeals, we may not reverse a trial court's judgment in the absence of properly assigned error. See San Jacinto River Authority v. Duke, 783 S.W.2d 209, 210 (Tex. 1990). It is well settled that an appellate court should not decide a case on a theory different from that on which it was plead and tried. American Mut. Liability Ins. v. Parker, 144 Tex. 453, 191 S.W.2d 844, 848 (1945) (on reh'g); El Paso Environ. Systems v. Filtronics, 609 S.W.2d 810, 813 (Tex.Civ.App.--El Paso 1980, writ ref'd n.r.e.). Pleadings frame the issues for determination. See Murray v. O & A Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982). Thus, we will consider the issues raised by written pleadings and in the context of the theory on which the case was tried.

Addressing Williamson's issues in a logical rather than sequential order, we first consider points four and nine, ⁽³⁾ by which he asserts error in the submission of question three and point six, by which he asserts trial court error in denying his requested six issues. ⁽⁴⁾ Williamson suggests that question three should have been submitted as per his question six, to-wit: what sum of money is owed to Williamson by the Cooks on the note in question. We disagree.

Under Rules 277 and 278 of the Texas Rules of Civil Procedure, the trial court shall submit the questions to the jury upon broad form questions which are raised by the written pleadings and the evidence. Submission of questions is a matter within the discretion of the trial court and its discretion is subject only to the requirement that the questions submitted must (1) control the disposition of the case, (2) be raised by the pleadings and the evidence, and (3) properly submit the disputed issues for the jury's determination. See Lee-Wright, Inc. v. Hall, 840 S.W.2d 572, 577 (Tex.App.--Houston [1^st Dist.] 1992, no writ); Lesser v. Allums, 918 S.W.2d 81, 87 (Tex.App.--Beaumont 1996, no writ).

Because the amount owing on the promissory note was not raised by the written pleadings of either party, the trial court did not err in denying the six issues requested by Williamson. Dion v. Ford Motor Co., 804 S.W.2d 302, 310 (Tex.App.--Eastland 1991, writ denied). Williamson does not present any legal authority governing the allocation of insurance proceeds in this type situation. Moreover, in the absence of evidence to show the terms of the settlement agreement with the insurance company upon which the funds were tendered into court and the absence of pleadings stating the claims of the parties, we are unable to hold the trial court abused its discretion in submitting question three as submitted. Points of error four, six, and nine are overruled.

By point five, Williamson contends the trial court erred in entering judgment based upon the jury's findings to special issues because the evidence is factually insufficient to support the jury's findings to all of the issues submitted. Although the point was presented, it is not developed nor argued in the body of the brief. Accordingly, his contention is waived. Warehouse Partners v. Gardner, 910 S.W.2d 19, 26 (Tex.App.--Dallas 1995, writ denied); Howell v. T S Communications, Inc., 130 S.W.3 515, 518 (Tex.App.--Dallas 2004, no pet.). Point of error five is overruled.

By his remaining points one, two, three, seven, and eight, Williamson contends there was no evidence, or alternatively, the finding was against the great weight and preponderance of the evidence that he claimed excessive demands in connection with the private foreclosures sales in June and August 1999, or that he refused to accept the pay-off.

Williamson did not, by special exception or otherwise, challenge the sufficiency of the Cooks' pleading to raise sufficient grounds, which according to substantive law, would be sufficient to authorize the trial court to set aside the trustee's deeds. ⁽⁵⁾ Here, Williamson does not challenge the trial court's action in setting aside the trustee's deeds nor submit any legal authority to support any argument that the trial court erred in doing so. Accordingly, since question three was not conditionally submitted, the answers to questions one and two do not have any application to the division of the $200,000.   

Moreover, before we may reverse a judgment and order a new trial we must find that the error complained of amounted to such a denial of Williamson's rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment or prevented him from presenting the case on appeal. Tex. R. App. P. 44.1. In Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex. 1962), the Court held that an appellant must show the error probably did cause the rendition of an improper judgment. See also Knight v. Hicks, 505 S.W.2d 638, 644 (Tex.App.--Amarillo 1974, writ re'fd n.r.e.); Aquamarine Associates v. Burton Shipyard, 645 S.W.2d 477, 482 (Tex.App.--Beaumont 1982), aff'd, 659 S.W.2d 820 (Tex. 1983). In Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 820 (Tex. 1980), the Court held that the harmless error rule applies to all errors in that it draws no distinction as to the type of errors involved in its requirement for reversal. Notwithstanding Rule 44.1 and the applicable cases, Williamson does not present a challenge to the trial court's action in setting aside the trustee's deeds or otherwise demonstrate that any alleged error was reversible. Accordingly, points one, two, three, seven, and eight are overruled.

Having overruled all of Williamson's points, the judgment of the trial court is affirmed.

Per Curiam

Johnson, C.J., not participating.

1. The parties do not provide any information regarding the settlement with the insurance company on the fire loss. Moreover, the record does not include the terms of the settlement between the parties and the insurance company or any pleadings, orders, or other information regarding the deposit of $200,000 into court or conflicting claims thereto.

2. Question One. Were the amounts being claimed by Williamson at the time of the foreclosure sales on June 1, 1999 and August 3, 1999 excessive?

Question Two. Did Williamson refuse to accept the pay-off amount of $122,104.57 in April or May of 1999?

Question Three. What is the fair division of the $200,000.00 insurance settlement money?

3. Issue nine is the same as issue four.

4. Six issues summarized as

1. Do you find that the Cooks were not in default?

2. and 3. Do you find that the Cooks were not in default of any obligation or covenant owed to Williamson at the time of the two foreclosures?

4. and 5. Did Williamson make an excessive demand on August 3, 1999 and May 1999?

6.What sum of money is owed to Williamson by the Cooks?

5. Because the record does not show that any exceptions were brought to the attention of the trial judge per Tex. R. Civ. P. 90, any defects in the pleadings were waived.