Robert R. Hockaday, II v. State ( 2004 )

NO. 07-04-0301-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 1, 2004 ______________________________

ROBERT R. HOCKADAY, II,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 364^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2001-438,306; HON. BRADLEY UNDERWOOD, PRESIDING _______________________________

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

Appellant Robert R. Hockaday, II appeals from a judgment convicting him of aggravated assault. We affirm.

The trial court initially deferred adjudication of guilt and placed him on community supervision for four years. The State subsequently moved to adjudicate him guilty. After a hearing on the allegations set out in the State's motion and after receiving evidence on the issue of punishment, the trial court found appellant guilty and sentenced him to 20 years imprisonment.

Appellant's counsel has moved to withdraw, after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 492 (1967) and representing that he has searched the record and found no arguable grounds for reversal. The motion and brief illustrate that counsel notified appellant of his right to review the appellate record and file his own brief. So too did we inform appellant that any pro se response or brief he cared to file had to be filed by October 27, 2004. At this time, appellant has failed to file either a response or brief or request an extension to do so.

In compliance with the principles enunciated in Anders, appellate counsel discussed five possible areas for appeal. They involve 1) whether the trial court erred in failing to pronounce him guilty prior to his punishment hearing, 2-3) the legal and factual sufficiency of the evidence to justify a sentence of 20 years, and 4-5) whether the trial court erred in admitting evidence not relevant to sentencing and whose probative value was substantially outweighed by the danger of unfair prejudice. However, counsel then proceeded to explain why each argument lacked merit.

We have also conducted our own review of the record to assess the accuracy of appellate counsel's conclusions pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Finding no reversible error, we grant the motion to withdraw and affirm the judgment.

Brian Quinn

Justice

Do not publish.

amily: 'Arial', sans-serif">WARDEN SAVERS, ET AL., APPELLEES

_________________________________

FROM THE 69TH DISTRICT COURT OF HARTLEY COUNTY;

NO. 4315H; HONORABLE RON ENNS, JUDGE

_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant, James Ishmael Tibbs, proceeding pro se and in forma pauperis, appeals from the trial court’s order dismissing his suit against Warden Savers, et al., for alleged civil rights violations. By a sole issue, Tibbs asserts the trial court abused its discretion in denying his Motion for Judgment Nihil Dicit and Motion to Prosecute. Although inartfully drafted, Tibbs complains of the trial court’s dismissal of his suit. Appellees contend the trial court correctly dismissed Tibbs’s suit for failure to comply with the requirements of chapter 14 of the Texas Civil Practice Code. We agree with Appellees and affirm.

Background Facts

          According to the clerk’s record, Tibbs filed grievances against Appellees, employees at the Dalhart Unit of the Texas Department of Criminal Justice. He alleged that certain Department employees were censoring his letters to newspapers and other organizations. The clerk’s record reflects that disciplinary action was taken against Tibbs for the content of the letters. Tibbs filed grievances against Department officials for being punished for the content of the letters. After the grievance procedures, he filed a civil rights complaint against Appellees. He also filed an affidavit declaring his indigence. As such, he was required to file an Affidavit Relating to Previous Filings required by section 14.004 of the Texas Civil Practice and Remedies Code.

          The affidavit filed by Tibbs entitled simply “Affidavit,” provides as follows:

I’ve filed several civil action suits and have been sancioned [sic] by the 5th Circuit Court of Appeals, I’ve no means to fully apprize this Court of all the civil claims I’ve filed, however; this is an original first time for this issue I’m very confident of success due to the fact that stare decissions [sic] . . . .

          Appellees filed a Motion to Dismiss Tibbs’s suit for failure to comply with sections 14.004 (requiring an affidavit relating to previous filings) and 14.005 (requiring an affidavit of exhaustion of administrative remedies) of the Texas Civil Practice and Remedies Code. Tibbs filed an objection to the motion and attempted to remedy his failure to comply with the requirements of section 14.004 by asserting:

Cause No. 1; cv00546 MAC KFG Document #;2 1 filed 09/15/2008 page 2 Tibbs v. Martin, No5;96cv354 (EDTex. Feb. 3, 1997) (dismissed as frivolous) aff’d No97 40182 (5th cir. April 8th, 1998) (appeal dismissed as frivolous); Tibbs v. TDCJ ID No.5; 96cv321 (E.D.Tex. Dec. 20, 1997) dismissed as frivolous, aff’d 97 40079 (5th Cir. Oct. 23, 1997) (appeal dismissed as frivolous)

This information just came from UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS 211W. Ferguson Tyler Texas 75702 However the 69th Judicial Dis. Crt, Has waived this Issue and can not barr [sic] under Section 14.004.

          The trial court signed an order dismissing Tibbs’s suit against Appellees “without prejudice due to his failure to comply with the requirement of Section 14.004(a)(2) of the TEXAS CIVIL PRACTICE AND REMEDIES CODE.”

          We review the dismissal of an in forma pauperis suit filed by an inmate for abuse of discretion. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex.App.–Waco 1996, no writ). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We are mindful that pro se pleadings are evaluated by less stringent standards than those applied to formal pleadings filed by attorneys.  Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct.594, 30 L. Ed. 2d 652 (1972).

          The statutory scheme for inmate litigation is contained in chapter 14 of the Texas Civil Practice and Remedies Code Annotated (Vernon 2002). The purpose of chapter 14 is to assist the trial court in determining whether a suit is malicious or frivolous under section 14.003(a). Hickson, 926 S.W.2d at 399.

          Section 14.004(a)(1) requires an inmate who files an affidavit of inability to pay costs to file a separate affidavit of every suit filed pro se, without regard to whether he was an inmate at the time, other than suits filed under the Texas Family Code. Pursuant to subsection (a)(2), the affidavit shall describe each suit and (A) state the operative facts, (B) list the case name, cause number, and court in which suit was filed, (C) identify each party, and (D) state the result of the suit, including whether it was dismissed as frivolous or malicious. Under subsection (b), an inmate must declare the date of the final order affirming the dismissal of a previous suit if it was dismissed as frivolous or malicious. Finally, subsection (c) requires that the affidavit be accompanied by a certified copy of the inmate’s trust account statement.

          The original affidavit filed by Tibbs was deficient in all the requirements of section 14.004(a)(2). He substantially complied with subsection (b) and did file a certified copy of his trust account as required by subsection (c). Notwithstanding the amendment to his affidavit contained in his objection to the motion to dismiss, it still lacked the information necessary to remedy his original affidavit and was of no assistance to the trial court in determining whether the underlying suit was frivolous or malicious. Thus, we conclude the trial court did not abuse its discretion in dismissing Tibbs’s suit against Appellees. Tibbs’s sole contention is overruled.

          Accordingly, the trial court’s judgment is affirmed.

                                                                           Patrick A. Pirtle

                                                                                 Justice