Karen Snow v. Richard Rosen, M.D., Swat Surgical Associates and David Haymes, Jr. M.D. ( 2007 )

NO. 07-02-0454-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

JUNE 22, 2007

______________________________



KAREN SNOW, APPELLANT

V.

RICHARD ROSEN, M.D., SWAT SURGICAL ASSOCIATES AND DAVID HAYMES, JR., M.D., APPELLEES



_________________________________

FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2000-512,239; HONORABLE BLAIR CHERRY, JR., JUDGE

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

ORDER ON MOTION TO REINSTATE AND DISMISS APPEAL

Appellant, Karen Snow, timely appealed the trial court's order granting the motion for summary judgment of Appellee, David Haymes, Jr., M.D., and granting the motion to dismiss of Appellees, Richard Rosen, M.D. and SWAT Surgical Associates. After the clerk's record and reporter's record were both filed, on April 24, 2003, Snow filed a Notice of Bankruptcy and the appeal was abated on May 15, 2003, pursuant to Rule 8.2 of the Texas Rules of Appellate Procedure.

On June 13, 2007, David Haymes, Jr., M.D., filed a Notice of Termination of Bankruptcy indicating that Snow's bankruptcy has been discharged. Attached to the notice is a copy of the United States Bankruptcy Court's Order Approving Trustee Report and Discharging Trustee dated May 18, 2007. Haymes requests that the abatement be lifted. The next day, Snow filed a Motion to Reinstate and Dismiss Appeal. Attached to the motion is a copy of a letter from the Bankruptcy Trustee dated March 19, 2007, reflecting that the bankruptcy proceeding would be dismissed. The appeal is reinstated and the motion to dismiss is granted. Having dismissed the appeal at Snow's request, no motion for rehearing will be entertained and our mandate will issue forthwith.

Patrick A. Pirtle

Justice

and testify at trial and none of her prior testimony was introduced).

To the extent appellant suggests that he was denied the opportunity to confront the two officers since they effectively testified via the stipulation, we conclude that the doctrine of invited error applies. There is no evidence that either litigant was forced or coerced into executing the stipulation. Nor does anyone so contend. Nor does the record illustrate (or anyone contend) that the substance of the stipulation would have been admitted if the stipulation was not executed. Thus, by executing the stipulation with the State when obviously knowing that the officers were not present to be questioned, appellant invited the situation about which he now complains (i.e. the inability to cross-examine the officers' testimony proffered through the stipulation). Having invited or created the situation, he is estopped from complaining about it. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102, 120 S. Ct. 1840, 146 L. Ed. 2d 782 (2000) (discussing the doctrine of invited error). ⁽²⁾

Issue Two -Effectiveness of Counsel

Next, appellant asserts that his attorney was ineffective because he did not secure a ruling upon his motion for mistrial. Counsel moved for mistrial after it was discovered that the two officers mentioned in the preceding issue did not appear to testify. We overrule this issue as well.

As has been the rule for some time, claims of ineffectiveness must be firmly founded in the record. Rios v. State, 990 S.W.2d 382, 385 (Tex. App.--Amarillo 1999, no pet.). Implicit in this is the need to prove, among other things, that the act complained of actually occurred. And, since the act complained of is counsel's purported failure to secure a ruling upon his motion for mistrial, the record must show that the court did not rule on it. Yet, the record before us fails to do so. Indeed, in open court, counsel wanted it "noted for the record" that he requested a mistrial and that he expressly "except[ed] to the denial of our motion . . . ." (Emphasis added). This came after the court had conducted "in camera conversations" with the attorneys about the situation. Counsel's act of "except[ing]" to the "denial of [the] motion" for mistrial is some evidence from which one can reasonably infer that the motion was actually denied. At the very least, we cannot say the record firmly illustrates that the trial court failed to rule on the motion. And, because the record does not so illustrate, we cannot say that appellant established that his attorney failed to secure a ruling on the motion. Consequently, the claim of ineffectiveness is not firmly founded in the record before us.

Accordingly, the judgment of the trial court is affirmed.

Brian Quinn

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. § 75.002(a)(1) (Vernon Supp. 2003).

2.

Appellant states in his brief that the "fact that [his] attorney signed the written stipulation does not give [sic] evidence that [he] . . . was a willful participant in giving up his constitutional right." That may be true. However, neither at trial or in his brief did he contend that he 1) did not know of the stipulation, 2) did not agree to it, or 3) did not agree to waive any right to confront the absent officers. Nor does the record illustrate that the execution of the stipulation was anything other than voluntary. Appellant also fails to challenge the authority of his attorney to execute the stipulation on his behalf. Given the lack of such a challenge, we have no basis upon which to conclude that appellant was not voluntarily bound by the stipulation his attorney signed while representing him at trial. See Orellana v. State, 706 S.W.2d 660, 661 (Tex. Crim. App. 1986) (holding that even though the appellant did not personally sign the "reset" forms, he was bound by the forms unless the record reflected that counsel was not authorized to sign them).