Constantine Saadeh, M.D. v. Paula Reed-Whitley and Eddie Whitley

NO. 07-06-0320-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 14, 2006

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CONSTANTINE SAADEH, M.D., APPELLANT

V.

PAULA REED-WHITLEY AND EDDIE WHITLEY, APPELLEES



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FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 91,387-E; HONORABLE ABE LOPEZ, JUDGE

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Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Constantine Saadeh, M.D. perfected this appeal from the trial court's judgment and amended judgment in favor of appellees Paula Reed-Whitley and Eddie Whitley. On August 25, 2006, the trial court granted Saadeh's motion for new trial and vacated the judgment and amended judgment. An order granting a new trial vacates the original judgment appealed from and returns the case to the trial court as if no previous trial or hearing had been conducted. See Old Republic Ins. Co. v. Scott, 846 S.W.2d 832, 833 (Tex. 1993); Long John Silver's, Inc. v. Martinez, 850 S.W.2d 773, 777 (Tex.App.-San Antonio 1993, writ dism'd w.o.j.). Thus, there is no final judgment from which an appeal may be prosecuted.

Accordingly, the appeal is dismissed for want of jurisdiction.

Don H. Reavis

Justice

Further examination of the witness through which the confession was proffered revealed that appellant was not afforded his Miranda warnings before making the statement. Counsel then objected to the admission of the tape on that ground. The trial court sustained the objection and struck the confession from the record. Counsel having objected to the admission of the tape at four different times and having ultimately succeeded in excluding it from evidence does not evince the rendition of unreasonably deficient assistance. See Marlow v. State, 886 S.W.2d 314, 318-19 (Tex. App.--Houston [1^st Dist.] 1994, pet. ref'd) (holding that counsel was not ineffective for failing to object to the admission of the State's exhibit when the record showed he objected four times, with the first three being sustained and only the last one being overruled). Thus, appellant has failed to satisfy the first element of the test espoused in Strickland, and its progeny. ⁽¹⁾

Nor has he satisfied the element requiring that he establish prejudice, i.e. that the outcome would have differed but for the alleged misconduct. Indeed, appellant did not even attempt to brief that issue other than by simply saying "the damage had been done." This alone merits rejection of his claim. Tex. R. App. P. 38.1(h) (stating that a brief must contain a clear and concise argument supporting the contentions made with appropriate citation to authority and the record); Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex. App.-Houston [1^st Dist.] 2000, pet. ref'd) (holding that a conclusory statement supported by neither argument nor authority presents nothing for review).

Yet, even assuming arguendo that appellant had not waived the issue of prejudice due to inadequate briefing, nothing of record illustrates that the trial court considered anything contained in the confession while sentencing him. The applicable range of punishment was from two to 20 years. Tex. Pen. Code Ann. §12.33(a) (Vernon 2003). The trial court indicated that it assessed a term of eight years because of the "no less than at least ten other offenses" listed in the pre-sentence investigation report, not because of anything mentioned in the confession.

Accordingly, the judgment of the trial court is affirmed.

Brian Quinn

Justice

Do not publish.

1. We also note that appellant failed to brief whether the confession was actually obtained in violation of the law and was therefore susceptible to exclusion. Nor can he rely on the trial court's decision to exclude the statement as proof of its inadmissibility. This is so because the trial court decided to exclude the statement "[o]ut of an abundance of caution" and because neither counsel provided him authority on the matter. So, before it can be said that counsel was deficient for being unable to initially exclude the confession, it was incumbent on him to explain via argument and authority why the utterance was actually subject to exclusion and, again, this he did not do. Tex. R. App. P. 38.1(h) (stating that a brief must contain a clear and concise argument supporting the contentions made with appropriate citation to authority and the record); Lockett v. State, 16 S.W.3d 504, 505 n.2 (Tex. App.-Houston [1^st Dist.] 2000, pet. ref'd) (holding that a conclusory statement supported by neither argument nor authority presents nothing for review).