in Re: Anthony E. Gill

6-96-028-CV Long Trusts v. Dowd

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00009-CV

______________________________

IN RE:

ANTHONY E. GILL

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Original Mandamus Proceeding

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Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Chief Justice Morriss

O P I N I O N

            By his petition for writ of mandamus, Anthony E. Gill asks this Court to order the 23rd Judicial District Court in Brazoria County to hear and rule on his application for writ of garnishment. The initial, and dispositive, question is whether we have jurisdiction over Gill's petition. Because we have no jurisdiction, we deny Gill's petition.

            Brazoria County is not in our appellate district, and we ordinarily do not have jurisdiction over a mandamus petition from that county. Gill, however, had a case pending in which the appeal was transferred to this Court by the Texas Supreme Court. In that appeal, we reversed the judgment of the trial court and remanded the case to that court for further proceedings. See Gill v. Boyd Distribution Ctr., 64 S.W.3d 601 (Tex. App.—Texarkana 2001, pet. denied).

            In the period between our disposition of that appeal and Gill's filing of the current mandamus petition, Gill filed with us five mandamus petitions. In each of those five proceedings, we accepted jurisdiction because Gill sought to enforce our judgment and mandate from the transferred appeal, alleging the trial court had failed to proceed as we had ordered. And, in each of those instances, the trial court action Gill attempted to obtain through his mandamus petition was within the original lawsuit, the appeal of which had been transferred to us.

            But now, Gill holds a default judgment in that underlying case, signed by the trial court and filed March 14, 2005. He now pursues garnishment to collect that judgment. That is a separate action, over which we have no jurisdiction.

            A garnishment action is separate from the original action. In re Tex. Am. Express, Inc., No. 05-05-01417-CV, 2005 Tex. App. LEXIS 10140 (Tex. App.—Dallas Dec. 7, 2005, orig. proceeding); Varner v. Koons, 888 S.W.2d 511, 513 (Tex. App.—El Paso 1994, orig. proceeding) (post-judgment writ of garnishment); Roberts v. Stoneham, 31 S.W.2d 856, 857 (Tex. Civ. App.—Austin 1930, no writ); see also Walton & Stockton v. Corpus Christi Nat'l Bank, 185 S.W. 369 (Tex. Civ. App.—San Antonio 1916, no writ).

            The relief sought in this instance extends beyond the enforcement of our mandate to the trial court. Accordingly, because the 23rd Judicial District Court in Brazoria County lies outside the jurisdictional boundaries of our district, we may not accept jurisdiction over this petition for writ of mandamus.

            We deny Gill's petition for writ of mandamus.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          January 19, 2006

Date Decided:             January 20, 2006

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-09-00110-CR

                                                ______________________________

 

 

                                    DAVID HEATH FOUSE, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

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                                         On Appeal from the 8th Judicial District Court

                                                           Hopkins County, Texas

                                                          Trial Court No. 0820358

 

                                                                                                  

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                     MEMORANDUM OPINION

 

            David Heath Fouse has filed an appeal from six convictions.  Three are for the first degree felony of aggravated sexual assault on a child (under fourteen—B.P.), and three are for the second degree felony of sexual assault on a child (under seventeen—R.R. and C.J.).  A single brief has been filed to address all six appeals.  Fouse testified at trial.  He admitted that he was convicted in 1999 of the felony offense of assault on a peace officer and the state jail felony offense of burglary of a building, and admitted having sexual intercourse with B.P. and C.J.  

            This appeal is from his conviction for sexual assault on a child, on C.J.  There are no issues raised or argument made concerning this conviction.  When a point of error is inadequately briefed, we will not address it.  Vuong v. State, 830 S.W.2d 929 (Tex. Crim. App. 1992).  This situation goes one step beyond simple inadequate briefing.  Points are not merely inadequately briefed, they are not raised at all.  This Court is not the appellant’s advocate.  Although we have an interest in a just adjudication, we also have an interest in remaining impartial.  Ex parte Lowery, 840 S.W.2d 550, 552 n.1 (Tex. App.—Dallas 1992), rev’d on other grounds, 867 S.W.2d 41 (Tex. 1993).  Thus, we will not brief a defendant’s case for him or her. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995); see Busby v. State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); see Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).

            Further, the Texas Court of Criminal Appeals has explicitly held that an appellate court cannot reverse a case on a theory not presented to the trial court or raised on appeal.  Gerron v. State, 97 S.W.3d 597 (Tex. Crim. App. 2003); Hailey v. State, 87 S.W.3d 118 (Tex. Crim. App. 2002).  With no arguments or theories to support a request for reversal being made in connection with this conviction on appeal, there is nothing before this Court which we may review.

            We affirm the judgment.

 

 

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          April 28, 2010

Date Decided:             April 29, 2010

 

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