State Office of Risk Management v. Rachel Herrera and Texas Municipal League Intergovernmental Risk Pool ( 2006 )

NO. 07-05-0268-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 11, 2006 ______________________________

STATE OFFICE OF RISK MANAGEMENT,

Appellant

v.

RACHEL LEIGH HERRERA, VICTORIA DANIELLE HERRERA, MATTHEW RYEN HERRERA, KELCEY MERCEDES DENA HERRERA, CARE'N DESTINY HERRERA, ROBERT R. HERRERA, ELVA H. HERRERA, MANUEL A. HERRERA, BENEFICIARIES of JOSE ARTURO HERRERA, DECEASED, and TEXAS MUNICIPAL LEAGUE INTERGOVERNMENTAL RISK POOL and/or CITY OF FRIONA,

Appellees

_________________________________

FROM THE 297^TH DISTRICT COURT OF PARMER COUNTY;

NO. 9122; HON. GORDON HOUSTON GREEN, PRESIDING _______________________________

Opinion _______________________________

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

The State Office of Risk Management (SORM) appeals from an order dismissing its attempt to gain judicial review of a ruling by a Texas Worker's Compensation Commission appeals panel. The trial court dismissed the matter for want of jurisdiction. Allegedly, SORM did not timely file its petition with the trial court. SORM disagreed. We reverse the order of dismissal.

Background

The dispute arises from the death of Jose Herrera, an officer with the Friona, Texas Police Department. At the time, he was responding to a call for assistance from the Parmer County Sheriff's office. Herrera heard the call while completing paper work at the Friona police station after his shift ended, and in responding, his vehicle collided with that of the fleeing suspect outside the Friona city limits. SORM acknowledged that Herrera's "legal beneficiaries [were] entitled to receive worker's compensation death benefits" but disputed its responsibility for their payment. Allegedly, the officer was not acting within the course and scope of his employment with the State when he and the suspect collided, but rather within the scope of his employment with the City of Friona.

The hearing officer assigned by the Worker's Compensation Commission to resolve the matter found that Herrera indeed was acting in the service of the State. Disagreeing, SORM sought relief from an appeal's panel. After the latter ultimately sided with the hearings officer, SORM then petitioned the trial court for relief. It did so 42 days after the decision of the panel became appealable. This was too late, according to Herrera's family members, the City of Friona, and the Texas Municipal League Intergovernmental Risk Pool. They believed that the agency was required to petition within 30 days and filed a plea to the jurisdiction of the trial court asserting that contention. The trial court sided with Herrera, the City and the Risk Pool and dismissed the cause.

Discussion

The issue before us is whether SORM had merely 30 days to seek redress from the trial court. The answer to that, according to all involved, depends upon whether the allegations the agency sought to adjudicate encompass matters of compensability or coverage. If they fall within the latter, then the 30-day period supposedly applies; if the former, then SORM had 40 days to act.

Statute provides two periods within which one must seek judicial review of a decision rendered by the Workers' Compensation Commission. The first is found at §410.252 of the Labor Code and states that a "party may seek judicial review by filing suit not later than the 40th day after the date on which the decision of the appeals panel was filed with the division." Tex. Lab. Code Ann. §410.252(a) (Vernon 2006). On the other hand, if the dispute encompasses matters other than that described in §410.301(a) of the Labor Code, then the parties must abide by the requirements of "Subchapter G, Chapter 2001, Government Code." Tex. Lab. Code Ann. §410.255(a) (Vernon 2006). And, that subchapter allots only 30 days to perfect judicial review. Tex. Gov't Code Ann. §2001.176(a) (Vernon 2000).

Next, matters alluded to in §410.255(a) and within the scope of §410.301(a) are those disputes "regarding compensability or eligibility for or the amount of income or death benefits . . . ." Tex. Lab. Code Ann. §410.301(a) (Vernon 2006) (stating that "judicial review of a final decision of the appeals panel regarding compensation or eligibility for or the amount of income or death benefits shall be conducted as provided by this subchapter"). So, in considering the directives of §§410.252(a), 410.255(a), and 410.301(a), we cannot but hold that a party has 40 days to perfect judicial review of controversies implicating compensability and eligibility for or the amount of income or benefits. In all other cases, a litigant simply has 30 days.

Next, while the Labor Code fails to define the term "compensability," the legislature nonetheless told us that a "compensable injury" is one "that arises out of and in the course and scope of employment for which compensation is payable . . . ." Tex. Lab. Code Ann. § 401.011(10) (Vernon 2006). From this we see that the meaning of "compensable" and "compensability" may have several elements, and one requires the injury to occur within the course and scope of the claimant's employment. See Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995) (citing the question of whether an injury "occurred in the course and scope of employment" as an example of an issue implicating "compensability"); Texas Property & Cas. Ass'n v. National Am. Ins. Co., No. 03-05-00401-CV, 2006 Tex. App. LEXIS 2605 (Tex. App.-Austin March 31, 2006, no pet. h.) (concluding that whether an employee was within the course and scope of his employment with several employers is an issue of compensability). In other words, if the litigants are disputing whether the injury occurred within that scope, the controversy is one involving compensability. ⁽¹⁾ Texas Property & Cas. Ass'n. National Am. Ins. Co., 2006 Tex. App. LEXIS 2605 at *35.

Next, at the heart of the issue before us lies the topic of who is responsible for paying the workers' compensation benefits which all agree are due Officer Herrera's kin. Furthermore, resolution of that matter depends upon the identity of the governmental body in whose course and scope of employment he acted when he died. If it was the State's, then it is responsible for payment. If it was the City's, then the city is liable. And, given that the crux of the dispute actually requires identification of the employer being served at the time of death, the issue cannot be but one of compensability. Texas Workers' Comp. Comm'n v. Garcia, supra; Texas Property & Cas. Ass'n v. National Am. Ins. Co., supra. So, the time period set forth in §401.252(a) applied here, and SORM had 40 days within which to petition for judicial review. Having acted within that period, the trial court had jurisdiction over the controversy and erred in dismissing it. ⁽²⁾

Accordingly, we sustain SORM's issue, reverse the order of dismissal and remand the cause for further proceedings. Finally, holding as we do moots the need to address SORM's contentions regarding the attorney's fees awarded those counsel representing Herrera's kin.

Brian Quinn

Chief Justice

1. To the extent that the opinion in Morales v. Liberty Mut. Ins. Co., 169 S.W.3d 485 (Tex. App.-El Paso 2005, pet. filed) suggests otherwise, we note that it did not address either the words of the Texas Supreme Court in Garcia or the statutory definition of "compensable injury." Consequently, we opt not to follow it.

2.

We acknowledge that SORM petitioned the trial court for relief 41 days after the appeal panel's decision. Yet, no one disputes that the 40^th day was either a weekend or holiday, and the 41st day was the first day that was neither. Consequently, acting upon the 41st day was permissible. See Tex. Gov't Code Ann. §311.014(b) (Vernon 2005) (stating that when the last day of a statutory period within which one must act is a Saturday, Sunday, or legal holiday, the period is extended to include the next day that is none of those).

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NO. 07-09-00327-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 14, 2010

MIKE JAMES MCCORMICK II, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NO. 19,734-B; HONORABLE JOHN B. BOARD, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Michael James McCormick, II,  appeals from his conviction, on an open plea to the court, of the offense of possession of a controlled substance and the resulting sentence of fifteen years confinement in the Institutional Division of the Texas Department of Criminal Justice.  Appellant's attorney has filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967) and In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008).  Agreeing with appointed counsel=s conclusion the record fails to show any arguably meritorious issue that could support the appeal, we affirm the trial court=s judgment as modified.

In May 2008, appellant was indicted for the offense of possession of methamphetamine, in an amount of one gram or more but less than four grams.^[1] The indictment also included an enhancement paragraph setting forth appellant’s previous felony conviction.  In September 2009, appellant entered a guilty plea to the charge as indicted and entered a plea of Atrue@ to the enhancement, without a plea agreement.  On the same day, appellant appeared before the trial court for a punishment determination.

The trial court admonished appellant, determined his plea was entered knowingly, freely, and voluntarily, and explained the applicable range of punishment. Appellant also signed a document entitled “Felony Plea Memorandum” that contained a waiver of jury, waiver of confrontation of witnesses and stipulation of evidence, waiver of indictment, and waiver of two days service of indictment.  A police officer also testified to the circumstances surrounding his discovery of a canister containing methamphetamine on appellant’s person. The State also introduced into evidence appellant’s nine prior convictions.

Appellant testified he had made efforts to stop using drugs, but relapsed after his grandmother died. Appellant asked the court to consider a punishment of five years that was the same as a plea offer the State had offered early in his case.  A long-time acquaintance of appellant testified appellant was an “upstanding, honorable person” and he did not appear to be currently using drugs.  Other acquaintances characterized appellant favorably and his probation officer gave testimony favorable to appellant.

Following this testimony and arguments of counsel, the court assessed punishment against appellant at confinement for a term of fifteen years. Appellant timely filed his notice of appeal.

Thereafter, appellant's appointed appellate counsel filed a motion to withdraw and a brief in support pursuant to Anders in which he certifies that he has diligently reviewed the record and, in his professional opinion, under the controlling authorities and facts of this case, there is no reversible error or legitimate grounds on which a non-frivolous appeal arguably can be predicated.  The brief discusses the procedural history of the case, appellant=s plea of guilty, and the hearing concerning appellant=s punishment.  Counsel has certified that a copy of the Anders brief and motion to withdraw have been served on appellant, and that counsel has advised appellant of his right to review the record and file a pro se response. Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.BWaco 1994, pet. ref'd).  By letter, this Court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel. Appellant has not filed a response.

In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record.  Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.BSan Antonio 1997, no pet.).  If this Court determines the appeal has merit, we will remand it to the trial court for appointment of new counsel.  See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).         

Because appellant entered an open plea of guilty, he waived any non-jurisdictional defects, other than the voluntariness of his plea, that occurred before entry of the plea so long as the judgment of guilt was rendered independent of, and is not supported by, the alleged error. Young v. State, 8 S.W.3d 656, 666-67 (Tex.Crim.App. 2000). There is nothing in the record that supports existence of a jurisdictional defect.  Also, as noted in counsel=s brief, appellant=s plea was entered freely and voluntarily as required by article 26.13 of the Code of Criminal Procedure.  See Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon 2007).  Counsel discusses the applicable law and the facts of appellant=s case and concludes there is no arguably meritorious point that may be raised on this issue.  We agree.

We also agree there is no arguably meritorious point that may be raised with regard to the punishment assessed to appellant.  Because appellant=s plea of guilty was an open plea and not based on an agreement with the State, the court was free to impose any punishment accorded by statute.  Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App. 1984).  The trial court assessed punishment for appellant at fifteen years of confinement, a sentence well within the statutory range.  See Tex. Health & Safety Code Ann. ' 481.115(c) (Vernon 2003); Tex. Penal Code Ann. § 12.34 (Vernon 2009); Tex. Penal Code Ann. § 12.42 (Vernon 2003).  It is the general rule that as long as a sentence is within the proper range of punishment, it will not be disturbed on appeal.  Jackson, 680 S.W.2d at 814; Rodriguez v. State, 917 S.W.2d 90, 92 (Tex.App.BAmarillo 1996, pet. ref=d) (Texas courts have traditionally held that as long as the sentence is within the range of punishment established by the Legislature in a valid statute, it does not violate state or federal prohibitions). 

Lastly, counsel notes the possibility that appellant might argue he received ineffective assistance of counsel.  See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L. Ed. 2d 674 (1984) and Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986) (establishing standard for effective assistance of counsel).  We agree with counsel that the record contains no support for such a contention.  Our review convinces us that appellate counsel conducted a complete review of the record.  We have also made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal.  We agree it presents no arguably meritorious grounds for review.  We note, however, the written judgment indicates a plea bargain was entered.  The record is clear there was no plea bargain in this case. This Court has the authority to correct, modify and reform a judgment to make the record speak the truth when it has the necessary information to do so.^[2]  Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.—Dallas 1991, pet. ref’d). The necessary information is provided here.  We modify the judgment to omit any reference to a plea bargain.

Accordingly, we grant counsel's motion to withdraw^[3] and affirm the trial court’s judgment, as modified.

                                                                                                James T. Campbell

                                                                                                            Justice

Do not publish.

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^[1] See Tex. Health & Safety Code Ann. ' 481.115(c) (Vernon 2003).

^[2] The authority of an appellate court to reform an incorrect judgment is not dependent on the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court.  Asberry, 813 S.W.2d at 529-30.

^[3]Counsel shall, within five days after the opinion is handed down, send his client a copy of the opinion and judgment, along with notification of the defendant=s right to file a pro se petition for discretionary review.  See Tex. R. App. P. 48.4.