Melinda Ann Jenkins v. State ( 1992 )

Jenkins-MA v. State

IN THE

TENTH COURT OF APPEALS

No. 10-92-109-CR

        MELINDA ANN JENKINS,

                                                                                               Appellant

        v.

        THE STATE OF TEXAS,

                                                                                               Appellee

From the 208th District Court

Harris County, Texas

Trial Court # 611,543

O P I N I O N

          Melinda Jenkins' sole contention is that her conviction for attempted capital murder should be reversed because the State failed to allege the elements of the attempted offense, capital murder. The State alleged that Jenkins unlawfully and intentionally did:

with the specific intent to commit the offense of CAPITAL MURDER OF VIVIAN NOBLE, hereinafter styled the Complainant, do an act, to-wit: BY SHOOTING THE COMPLAINANT WITH A DEADLY WEAPON, NAMELY A FIREARM, which amounted to more than mere preparation that tended to but failed to effect the commission of the offense intended.

She never objected to the complaint in the trial court.

          Jenkins waived any complaint about the charging instrument allegedly omitting an element of the offense when she failed to attack it on that ground in the trial court. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 1992); Ex parte Morris, 800 S.W.2d 225, 227 (Tex. Crim. App. 1991). Moreover, an instrument charging criminal attempt need not allege the elements of the attempted offense. Cody v. State, 605 S.W.2d 271, 274 (Tex. Crim. App. [Panel Op.] 1980). We overrule the point and affirm the judgment.

                                                                                                     BOB L. THOMAS

                                                                                                     Chief Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed September 23, 1992

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, shall have remedy by due course of law," 2) Article 1, Section 15, of the Texas Constitution which states: "The right of trial by jury shall remain inviolate," and 3) The 14th Amendment of the United States Constitution and Article 1, Section 19, of the Texas Constitution which state that no state shall make any laws which deprive a person of life, liberty or property without due process of law.

      Section 14.001, et seq., Tex. Civ. Prac. & Rem. Code, Section 14.001, et seq. has been held to be constitutional. Thomas v. Wichita General Hospital, 952 S.W.2d 936, 940 (Tex. App.—Ft. Worth 1997, writ denied).

      Chapter 14 of the Tex. Civ. Prac. & Rem. Code applies to suits brought by an inmate who has filed “an affidavit or unsworn declaration of inability to pay costs.” Section 14.003 allows a court to dismiss a suit before or after process is served if the court finds that: 1) the allegation of poverty is false; or 2) the claim is frivolous or malicious. In determining whether a claim is frivolous or malicious, the court may consider whether: 1) the claim’s realistic chance of ultimate success is slight; 2) the claim has no arguable basis in law or fact; 3) it is clear that the party cannot prove facts in support of the claim; or 4) the claim is substantially similar to a previous claim filed by the inmate.

      Section 14.004 provides: a) an inmate who files an affidavit or unsworn declaration of inability to pay costs shall file a separate affidavit of declaration: 1) identifying each suit previously brought by the person, and in which the person was not represented by an attorney; and 2) describing each suit that was previously brought by: A) stating the operative facts for which relief was sought; B) listing the case name, cause number, and the court in which the suit was brought; C) identifying each party named in the suit, including whether the suit was dismissed as frivolous or malicious, or otherwise; b) if the affidavit or unsworn declaration filed under this section states that a previous suit was dismissed as frivolous or malicious, the affidavit or unsworn declaration must state the date of the final order affirming the dismissal; c) the affidavit or unsworn declaration must be accompanied by the certified copy of the trust account statement from the department.

      Our review of a dismissal under Chapter 14 is controlled by the abuse of discretion standard. Abuse of discretion is determined by whether the court acted without reference to any guiding principles. Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). Stated another way, was the act of the court arbitrary or unreasonable? Smith v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex. 1984).

      Appellant’s petition was not accompanied by an affidavit or unsworn declaration required by Section 14.004. Thus, there was no abuse of discretion in the trial court’s dismissal of Appellant’s lawsuit. Hickson v. State, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). Bell v. Texas Dept. of Criminal Justice - Institutional Division, 962 S.W.2d 156, 157 (Tex. App.—Houston [14th Dist.] 1998, writ denied).

      All of Appellant's points and contentions made thereunder are overruled.

      The judgment is affirmed.

                                                                         FRANK G. McDONALD

                                                                         Chief Justice (Retired)

Before Justice Vance,

      Justice Gray, and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed July 11, 2001

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