Vincente Dominique Chavez v. State ( 2006 )

NO. 07-05-0174-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 4, 2006

______________________________



VINCENTE DOMINIQUE CHAVEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 49,658-A; HONORABLE HAL MINER, JUDGE

_______________________________

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

MEMORANDUM OPINION

Following a plea of not guilty, appellant Vincente Dominique Chavez was convicted of intoxication manslaughter, enhanced by two prior felonies, and sentenced to life confinement in a state jail facility. In presenting this appeal, counsel has filed an Anders ⁽¹⁾ brief in support of a motion to withdraw. We grant counsel's motion and affirm.

In support of his motion to withdraw, counsel certifies he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.-San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court's judgment. Counsel has also shown that he sent a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal is without merit.

In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se response if he desired to do so. Appellant subsequently filed a pro se response alleging the evidence was legally and factually insufficient to support his conviction and he received ineffective assistance of counsel during voir dire. The State did not favor us with a brief.

By his Anders brief, counsel reviews each phase of the proceedings and concludes that the record reveals no errors that would constitute grounds for reversal. We have reviewed counsel's brief in addition to the grounds raised by appellant. We have also conducted an independent review of the entire record to determine whether there are any other arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005). We have found no such grounds and agree with counsel that the appeal is frivolous.

Accordingly, counsel's motion to withdraw is hereby granted and the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1.

Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

n a stay of enforcement; that the evidence supports a negative net worth for Turner and, therefore, the trial court erred in setting the amount of his supersedeas bond; and the trial court erred in setting Rancho La Valencia's supersedeas bond in an amount equal to the full amount of the judgment. We deny appellants' motion to dissolve the post-trial injunction and affirm the trial court's determination of supersedeas bond.

Post-trial injunction

Appellants contend that the trial court committed error in issuing its post-trial injunction for the following reasons:

1) the court lacked jurisdiction to issue the injunction because the judgment had not been superseded;

2) the injunction attempted to reach Turner's exempt assets by ordering no transfers to trusts of which Turner was the beneficiary or trustee; and

3) the injunction improperly interfered with appellants' right to make transfers of assets in the normal course of business.

We review the issuance of a post-judgment injunction under an abuse of discretion standard, the same as we would review the granting or denial of a temporary injunction. See Emeritus Corp. v. Ofczarzak, No. 04-05-00530-CV, slip op. at 3, 2006 WL 467976, at *3 (Tex.App.-San Antonio, March 1 2006), rev'd by agr., 2006 WL 923534 (Tex.App.-San Antonio April 5, 2006) (settlement of underlying appeal). An abuse of discretion arises when the trial court acts without reference to applicable guiding principles, acts arbitrarily or unreasonably, misinterprets or misapplies the law, or renders a decision without sufficient evidentiary basis. Friona Indep. Sch. Dist. v. King, 15 S.W.3d 653, 657 (Tex.App.-Amarillo 2000, no pet.).

Appellants initially contend that the trial court lacked jurisdiction to issue any injunction because the judgment had not been superseded. Appellants urge that neither Texas Rule of Appellate Procedure 24 nor Texas Civil Practice and Remedies Code Chapter 52 permit a trial court to issue an injunction until after the judgment at issue has been superseded. See Tex. R. App. P. 24 ⁽¹⁾; Tex. Civ. Prac. & Rem. Code Ann. Ch. 52 (Vernon 1997). ⁽²⁾ However both Rule 24 and Chapter 52 provide that the trial court may issue an injunction enjoining "the judgment debtor from dissipating or transferring assets to avoid satisfaction of the judgment. . . ." Rule 24.2(d); § 52.006(e). Additionally, the legislative history of House Bill 4 discloses that the legislature expressly authorized post-judgment injunctions to enjoin a judgment debtor from wasting or disposing of assets. See Emeritus Corp., 2006 WL 467976, at *3. Thus the trial court had jurisdiction to grant injunctive relief. Further, when the record of appellants' financial conduct throughout the litigation is considered, we cannot say that the trial court abused its discretion in granting the injunction.

Appellants next contend that the portion of the injunction purporting to enjoin the transfer of assets into any trust for which Turner was a beneficiary or trustee is invalid as an attempt to encumber exempt assets. However, the language of the injunction is not as broad as appellants contend. Specifically, the trial court enjoined appellants from transferring "property or assets into any trust in which Charles R. Turner is a beneficiary or trustee absent application to and approval from this Court. . . ." Initially, we observe that the quoted portion of the trial court's order does not prohibit transfers to the trusts, but rather affords the court some modicum of control over the transfers. See Rule 24.2(d). The record reveals that Turner has a history of transferring property to family trusts. It is unclear from the record whether this property was exempt property under the laws of Texas. Additionally, Turner has admitted filing at least two financial statements that contained false information. Finally, we must consider that the bankruptcy judge dismissed appellants' bankruptcy as a bad faith filing. In light of the record, we find that the trial court did not abuse its discretion in requiring appellants to apply to the court for permission before transferring any property to the trusts.

Finally, appellants contend that the trial court's order interferes with their ability to make transfers of property in the normal course of business. Considering the appellants' actions prior to the judgment, it cannot be said that the need for the trial court's order was not firmly established. As previously discussed, appellants are attempting to put the broadest possible construction on the court's order. The order simply requires the appellants to notify the judgment creditors of the nature and amounts of transfers within 10 days. This order does not enjoin appellants from making transfers in the normal course of business. In light of the facts of this case, the trial court's order simply provides a mechanism for the court to monitor the security requirements to continue to supersede the judgment. Rule 24.3(a); Miller v. Kennedy & Minshew, P.C., 80 S.W.3d 161, 164 (Tex.App.-Fort Worth 2002, no pet.). In view of the record, we cannot say that the trial court's effort to monitor appellants' financial transactions is an abuse of discretion.

Supersedeas bond

Appellants contend that the trial court erred in setting the amount of bond required to supersede the judgment. We review the trial court's determination of the amount of security necessary to supersede a judgment under an abuse of discretion standard. In re Kajima Int'l., Inc., 139 S.W.3d 107, 112 (Tex.App.-Corpus Christi 2004, pet. denied). The amount of the bond required may not exceed 50 percent of the judgment debtor's net worth, see Rule 24.2(a)(1)(A), but the judgment debtor has the burden to prove its net worth. Rule 24.2(c)(3); Ramco Oil & Gas, Ltd. v. Anglo Dutch (Tenge), L.L.C., 171 S.W.3d 905, 910 (Tex.App.-Houston [14^th Dist] 2005, no pet.). The trial court is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. Henry S. Miller Residential Serv. Corp. v. Arthur, 671 S.W.2d 670, 671 (Tex.App.-Dallas 1984, no writ).

Appellants contend that the trial court erred as a matter of law in setting Turner's bond because the court failed to apply proper accounting principles to the evidence produced regarding Turner's net worth. ⁽³⁾ Appellants' contention is misplaced because it was not an error in the application of accounting principles that resulted in the trial court's determination of Turner's net worth. Rather, it appears that the court simply found Turner not credible. Appellees point out that, as late as the motion for new trial hearing, in an effort to demonstrate that appellants had every intention of completing the Rule 11 settlement, Turner was claiming to have a substantial net worth. Appellants have not contested this allegation. Accordingly, we can and, based upon the totality of the record, do accept the statement as true. Rule 38.1(f); Double Ace, Inc. v. Pope, 130 S.W.3d 18, 29 n.8 (Tex.App.-Amarillo 2005, no pet.). Having heard all of the testimony during numerous discovery hearings, at trial, at the hearing on the motion for new trial, and during the hearing on the issue of the bonds, the trial court was in the best position to evaluate the truthfulness of Turner's evidence regarding his net worth. Henry S. Miller Residential Serv. Corp., 671 S.W.2d at 671. The record reflects sufficient contradictory evidence regarding Turner's net worth that we cannot say that the decision of the trial court in setting the bond was an abuse of discretion.

Appellants next contend that the trial court abused its discretion by setting the supersedeas bond for Rancho La Valencia at the full amount of the judgment. A review of the record reveals that the only evidence offered to prove Rancho La Valencia's net worth was a statement in Turner's affidavit and another statement in a financial statement offered by Turner. To avoid the bond being set equal to the amount of the judgment, it was Rancho La Valencia's burden to establish its net worth. Rule 24.2(c)(3); Ramco Oil & Gas. Ltd., 171 S.W.3d at 910. As the only evidence of Rancho La Valencia's net worth was offered through Turner and as the trial court found Turner not credible, we cannot say that the trial court abused its discretion in setting the supersedeas bond for Rancho La Valencia. Accordingly, appellants' issues relating to the amount of the bonds required are overruled.

Conclusion

Having overruled appellants' issues, we deny appellants' motion to dissolve the post-trial injunction and affirm the trial court's determination of supersedeas bond.

Per Curiam

1. Further reference to Texas Rules of Appellate Procedure will be by reference to "Rule __."

2. Further reference to Texas Civil Practice & Remedies Code provisions will be by reference to "§ ___."

3. Appellants contend that the trial court failed to apply generally accepted accounting principles, specifically the Financial Accounting Standards Board's Statement of Accounting Concepts No. 6. However, the record reveals that appellants failed to provide this authority to the trial court or request the court to consider these standards.