Jimmie Dewayne Hudson v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00172-CR

Jimmie Dewayne Hudson,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the County Court at Law

Wise County, Texas

Trial Court No. 56870

MEMORANDUM  Opinion

      Hudson appeals his conviction for burglary of a vehicle.  See Tex. Penal Code Ann. § 30.04(a) (Vernon 2003).  We affirm.

      Motion to Suppress Evidence. In Hudson’s first two issues, he contends that the trial court erred in overruling Hudson’s motion to suppress evidence.  In his first issue, he complains of his oral statements.[1]  In his second issue, he complains of a specimen of his saliva. 

      A defendant is not required to have the evidence which he sought to suppress admitted in order for the court of appeals to address the merits of an appeal challenging denial of a pretrial motion to suppress.  [A]ppellate courts must use a two step inquiry when deciding whether to address the merits of a claim regarding the trial court’s denial of a pretrial motion to suppress evidence prior to a guilty plea.  First, the appellate court must identify “the fruits” that the trial court held would not be suppressed.  McGlynn [v. State], 704 S.W.2d [18,] 21 [(Tex. Crim. App. 1982)].  Second, the appellate court must determine that these fruits have “somehow been used” by the State.  Kraft [v. State], 762 S.W.2d [612,] 613-14 [(Tex. Crim. App. 1988)].  If it is not clear from the testimony and exhibits what
“the fruits” are, then the appellate court need not address the merits of the claim.  Likewise, if the fruits have not “somehow been used” by the State, then the appellate court need not address the merits of the claim.

Gonzales v. State, 966 S.W.2d 521, 524 (Tex. Crim. App. 1998) (some internal citations omitted).

      The record does not contain the proceedings at Hudson’s guilty plea.  The record does not clearly show any statements by Hudson or any saliva DNA analysis evidence.  Nor does the record show any use of such evidence by the State.  Accordingly, we do not address the merits of Hudson’s first two issues.  We overrule Hudson’s first two issues.

      Motion for New Trial.  In Hudson’s third issue, he contends that the trial court erred in overruling Hudson’s motion for new trial.  Hudson’s issue is inadequately briefed.[2]  “The appellant’s brief must . . . contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”  Tex. R. App. P. 38.1(h).  When an appellant does not provide argument with citations in support of an issue, the issue is inadequately briefed, presents nothing for review, and must be overruled.  See Hall v. State, 160 S.W.3d 24, 26 n.2 (Tex. Crim. App. 2004), cert. denied, 125 S. Ct. 2962 (2005); Hankins v. State, 132 S.W.3d 380, 385 (Tex. Crim. App.), cert. denied, 543 U.S. 944 (2004); McCarthy v. State, 65 S.W.3d 47, 49 n.2 (Tex. Crim. App. 2001), cert. denied, 125 S. Ct. 2906 (2005); Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000) (op. on orig. submission); Cardenas v. State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000).  Hudson’s brief does not provide argument in support of his issue.  Hudson’s issue is thus inadequately briefed.  We overrule Hudson’s third issue. 

      Having overruled Hudson’s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Justice Vance concurring without separate opinion)

Affirmed

Opinion delivered and filed April 12, 2006

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[1]  Although the trial court orally granted Hudson’s motion as to the statements, the court’s written order simply denies the motion. 

[2]  Hudson’s issue, in its entirety, is as follows:

   Appellant filed a motion for new trial presenting evidence that Defendant could not have voluntarily abandoned the Dr. Pepper can [from which the saliva specimen was taken] because the jail rules prohibited him from taking such items back into the jail.  Such motion established that the evidence seized from Appellant should have been suppressed at the original hearing.  For this reason, along with the law showing the violations of Appellant’s constitutional rights as detailed above, the trial court erred in denying Appellant’s motion for new trial.

egins to run when the cause of action accrues. See Jackson, 950 F.2d at 265; Henson-El v. Rogers, 923 F.2d 51, 52 (5th Cir. 1991), cert. denied, 501 U.S. 1235, 111 S. Ct. 2863, 115 L. Ed. 2d 1030 (1991); White v. Cole, 880 S.W.2d 292, 295 (Tex. App.—Beaumont 1994, writ denied). Although Texas law governs the limitations period and the tolling exceptions, federal law governs when the cause of action accrues. See Jackson, 950 F.2d at 265; Burrell v. Newsome, 883 F.2d 416, 418 (5th Cir. 1989). Under federal law, a cause of action arises "when the plaintiff knows or has reason to know of the injury which is the basis of the action." Id. (both quoting Lavellee v. Listi, 611 F.2d 1129, 1131 (5th Cir. 1980)).

          Young's four causes of action arose on the respective dates of the incidents. The claims alleged in causes of action three and four arose from incidents which occurred on January 9 and January 12, 1992, respectively. Because Young filed his petition on January 13, 1994, more than two years after each of those incidents, causes three and four are barred by the statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).

          Causes one and two arose from incidents which occurred on February 17 and March 7, 1992, respectively. Thus, they are not barred by limitations, and could not be properly dismissed by the court for that reason. However, we still must determine whether the court properly dismissed the claim as having no basis in law. See id. § 13.001(a)(2), (b)(2).

          Appellees assert the affirmative defense of qualified immunity. Government officers have a common-law immunity from personal liability while performing discretionary duties in good faith within the scope of their authority. Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425, 427 (1954); Wyse v. Dep't of Public Safety, 733 S.W.2d 224, 227 (Tex. App.—Waco 1986, writ ref'd n.r.e.). This immunity shields a state official from liability for damages unless his conduct violates "clearly established statutory or constitutional right of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982).

          With the possible exception of Saint, who was never served and was not a party to the action, Young has failed to establish the violation of any statutory or constitutional right and has failed to overcome Appellees' qualified immunity. None of the Appellees were involved in the alleged use-of-force incident between Saint and Young. Although Young claims that they were deliberately indifferent to his medical needs, he failed to demonstrate the violation of any clearly established law. See Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S. Ct. 3034, 3038-39, 97 L. Ed. 2d 523 (1987); Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. Young also failed to exhaust his administrative remedies.

          Therefore, the court properly dismissed the claim as having no basis in law, and we overrule all points. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(a)(2), (b)(2).

CONCLUSION

          We conclude that the court did not abuse its discretion in dismissing the action because the claims had no arguable basis in law or in fact. See id. We affirm the judgment dismissing Young's claims against Appellees. 

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed August 31, 1995

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