Francisco Javier Olvera v. State of Texas ( 2001 )

NO. 07-00-0306-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

DECEMBER 13, 2001

______________________________



FRANCISCO JAVIER OLVERA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 263^RD DISTRICT COURT OF HARRIS COUNTY;

NO. 824786; HONORABLE JIM WALLACE, JUDGE

_______________________________

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

Appellant Francisco Javier Olvera appeals from his conviction and sentence for unlawful possession of a firearm by a felon. We dismiss for lack of jurisdiction.

On April 6, 2000, pursuant to a plea bargain, appellant pled guilty to the charge of unlawful possession of a firearm by a felon, in the 263rd District Court of Harris County, Texas. The trial court honored the plea bargain and sentenced appellant to incarceration in the Texas Department of Criminal Justice-Institutional Division, for five years.

Acting pro se, appellant filed a general notice of appeal. The trial court appointed appellate counsel, who has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the record has been diligently reviewed and that in the opinion of counsel, the record reflects no reversible error or grounds upon which an arguably meritorious appeal can be predicated. Counsel concludes that the appeal is without merit. Counsel has discussed why, under the controlling authorities, there is no reversible error in the trial court proceedings or judgment. See High v. State, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978).

Counsel has attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of appellant's right to review the record and file a response to counsel's motion and brief. The clerk of this court has likewise advised appellant of his right to file a response to counsel's motion and Anders brief. Appellant has not filed a response.

To perfect appeal from a judgment which was rendered on the defendant's plea of guilty or nolo contendere, and in which the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice of appeal must (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3). Dismissal of an issue or the entire matter is appropriate unless both (1) the form of the notice of appeal is proper to perfect appeal as to the issue or matter, see Lyon v. State, 872 S.W.2d 732, 736-37 (Tex.Crim.App. 1994), and (2) the alleged jurisdiction is supported by the record. See Sherman v. State, 12 S.W.3d 489, 492 (Tex.App.-Dallas 1999, no pet.). In other words, if TRAP 25.2(b)(3) is applicable, then for an appellate court to have its jurisdiction invoked over a matter, compliance with TRAP 25.2(b)(3) is required as to both form and substance. Id.

Subsequent to the time appellant filed his general notice of appeal and appointed counsel filed his Anders brief, the Court of Criminal Appeals held that a plea-bargaining defendant such as appellant may not appeal the voluntariness of the plea. See Cooper v. State, 45 S.W.3d 77 (Tex.Crim.App. 2001). Because appellant, thus, cannot question the voluntariness of his plea based on his general notice of appeal, and because his notice of appeal does not state that his appeal (1) involves an overruled, written pre-trial motion, (2) is based on permission of the trial court or (3) is for a jurisdictional defect, appellant has not invoked our appellate jurisdiction and we must dismiss the appeal. See Sherman, 12 S.W.3d at 492.

Accordingly, the appeal is dismissed for lack of jurisdiction. See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998). Because we have no jurisdiction over the appeal except to dismiss it, see id., we cannot and do not consider appellate counsel's Motion to Withdraw.

Phil Johnson

Justice

Do not publish.

sited in the Nelson’s bank account. When the checks were presented for payment both were refused as there were insufficient funds in Bradley’s account to pay the checks. Ultimately, Nelson filed a suit to collect the amount of the checks. It is undisputed that Bradley or his estate was paid for the cattle.

          Originally Nelson sued the estate of Robert Bradley and Ed Wright, individually, but subsequently took a non-suit against both. Nelson claims that the defendants are obligated to pay for the amount of the checks Bradley issued it under the theory that Bradley was the agent of Wright and Manning. After an adequate time for discovery, Wright and Manning filed both traditional and no evidence motions for summary judgment. See Tex. R. Civ. P. 166a(c) and 166a(i). At or near the same time, Nelson filed its motion for traditional summary judgment.

          On August 11, 2006, the trial court granted the motions for summary judgment filed by Wright and Manning, both the traditional and no evidence motions. The order of the trial court recites that, because of its ruling on Wright and Manning’s motions for summary judgment, it did not reach the merits of Nelson’s motion for summary judgment. It is from this ruling that Nelson appeals. By one issue, Nelson claims that the trial court erred in determining there was no agency relationship existing between Bradley and Wright and Bradley and Manning because the summary judgment evidence raised a fact issue regarding agency.

Standard of Review

          In reviewing a trial court’s decision to grant a traditional motion for summary judgment we review the judgment of the trial court de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting this review we will take as true all evidence favorable to the nonmovant, and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id. To sustain the granting of a traditional summary judgment motion, we must find that the movant has met its burden of establishing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

           In a no evidence motion for summary judgment, the movant must set forth the elements of the adverse party’s claim for which it is alleged there is no evidence. See Tex. R. Civ. P. 166a(i), Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The burden then shifts to nonmovant to show that there is more than a scintilla of probative evidence to raise a genuine issue of material fact on the disputed issue. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is so weak as to create only a surmise or suspicion of the fact to be proved. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). To raise a genuine issue of material fact, however, the evidence must exceed mere suspicion, for evidence so slight is to do nothing more than make any inference a guess, and as such, equate to no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004). Conversely, more than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. King Ranch, 118 S.W.3d at 751. Our examination of the record is performed in the light most favorable to the nonmovant. Forbes, 124 S.W.3d at 172.

Analysis

          All parties to this appeal agree that the decisive issue raised in the no evidence motions for summary judgment is the question of agency. Was Bradley acting as an agent for either Wright or Manning? If the latter, then the next question is was Manning acting as an agent for Wright? Regarding agency, Texas law does not presume agency, and the party alleging an agency relationship has the burden of proving the issue. IRA Resources, Inc. v. Griego, 221 S.W.3d 592, 597 (Tex. 2007). Agency is a consensual relationship and there must be a meeting of the minds to establish this relationship, although consent may be implied by words or conduct of the parties. See Carr v. Hunt, 651 S.W.2d 875, 879 (Tex.Civ.App.–Dallas 1983, writ ref’d n.r.e.). It is the right of the principal to control the details of accomplishing the assigned task that primarily distinguishes the agent from the independent contractor. First Nat’l Acceptance Co. v. Bishop, 187 S.W.3d 710, 714 (Tex.App.–Corpus Christi 2006, no pet.). It is this right of control that is the supreme test for the existence of an agency relationship. Id. Texas has adopted Section 14 K of the Restatement (Second) of Agency (1957). Rufenacht v. Iowa Beef Processors, Inc., 492 F. Supp. 877, 881 (N. D. Tex. 1980) (citing American Employers Ins. Co. v. Kilgore, 412 S.W.2d 67,69 (Tex.Civ.App.–Amarillo 1967, writ ref’d n.r.e.)). The comments portion of Section 14 K gives guidance about how to view the factors surrounding an allegation that one party has acted as an agent for another. The factors to be analyzed are that the party: 1) is to receive a fixed price for the property, irrespective of the price paid by him; 2) acts in his own name and receives the title to the property which he thereafter is to transfer, and 3) has an independent business in buying and selling similar property. Id.

          According to Nelson, the following evidence was introduced as summary judgment evidence and raised more than a scintilla of evidence regarding the existence of an agency relationship as to both Wright and Manning vis-a-vis Bradley.

Over the years, Bradley sold in excess of $30 million in cattle for Wright.

Eighty-five percent of Bradley’s business was with Wright Co.

                     Bradley was paid by commission.

Wright gave permission to brokers to purchase cattle on a deal by deal basis.

Wright described the type of cattle desired by breed and weight characteristics.

At the time of purchase, Wright took actual possession of the cattle. (The cattle were loaded on to trucks arranged by Wright.)

A review of the total record reveals that each of the factors that Nelson allegedly raises the issue of agency raises only a surmise or suspicion of agency and, even when viewed in the light most favorable to the nonmovant, is just as easily explained in the terms of an independent contractor. There is no evidence in this record that would indicate that any of these actions would not be taken by Bradley or any broker acting as an independent contractor. By way of example, Ed Wright’s affidavit points out that the breed and weight characteristics are given to him by his customers and are not an attempt by his company to do anything except meet the requirements of his customers. Likewise, the act of arranging for shipment of the cattle at time of delivery is reflective of the fact that Wright does not hold cattle because his business is to fill orders for feedlots and other finishers. Therefore, he ships the cattle immediately. Nelson opines that this means Bradley never takes possession of the cattle, which according to Nelson’s analysis, is indicative of the fact that he was operating as an agent. However, the analysis offered by Nelson is equally operative in the situation of an independent contractor as it is with an agent. The summary judgment evidence indicated that Wright already had the cattle sold to a feedyard. Further, Nelson knew that Bradley was acting as a broker only and would resell the cattle and that such an arrangement was standard in the industry. Nelson alleges that Bradley was paid on commission and that is definitely indicative of an agency type of relationship. The summary judgment evidence indicates that Manning and Bradley may have, at times, split commissions; however, on the occasion in question, there was no proof of splitting of commissions. Indeed, the evidence indicated that a check for a specific purchase price for each lot of cattle was issued by Wright to Bradley, or his estate, as opposed to a commission check. In the final analysis, indulging all inferences in favor of Nelson still results in summary judgment evidence that is no more indicative of an agency relationship than that of an independent contractor relationship. Accordingly, we can say that this evidence does no more than raise a surmise or suspicion. A surmise or suspicion equates to no evidence. Ford Motor Co., 135 S.W.3d at 601. Because Nelson has failed to produce any evidence on the essential issue of agency between Bradley and Wright or Bradley and Manning, the trial court was correct in granting Wright and Manning’s no evidence motions for summary judgment. Forbes Inc., 124 S.W.3d at 172.

          When a nonmovant fails to produce more than a scintilla of evidence under the burden of a no evidence motion for summary judgment there is no need to further analyze the sufficiency of movant’s proof on the traditional motion for summary judgment. Ford Motor Co., 135 S.W.3d at 600. Because of our holding above we need not address the additional issue of whether Manning was an agent of Wright.

Conclusion

          Having overruled Nelson’s issue regarding whether an agency relationship existed between the parties, we affirm the trial court’s judgment.

                                                                           Mackey K. Hancock

                                                                                    Justice