Kelly Jerome Frazier v. State

NO. 07-05-0125-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 20, 2006

______________________________



KELLY JEROME FRAZIER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 48,953-C; HONORABLE PATRICK A. PIRTLE, JUDGE

_______________________________

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

MEMORANDUM OPINION

Appellant Kelly Jerome Frazier pled guilty to aggravated robbery, and adjudication of guilt was deferred in favor of seven years of community supervision and a $1,000 fine. On February 17, 2005, the State filed a second amended motion to proceed with adjudication of guilt alleging appellant failed to comply with various conditions of his community supervision. Appellant pled true to the violations alleged, and following an evidentiary hearing, was adjudicated guilty of the original offense and sentenced to twenty years confinement. In presenting this appeal, counsel has filed an Anders ⁽¹⁾ brief in support of a motion to withdraw. We grant counsel's motion and affirm.

In support of his motion to withdraw, counsel certifies she has diligently reviewed the record, and in her opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.-San Antonio 1984, no pet.). Thus, she concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court's judgment. Counsel has also shown that she sent a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that she notified appellant of his right to review the record and file a pro se response if he desired to do so. Appellant subsequently filed a pro se response alleging, among other things, ineffective assistance of counsel. The State did not favor us with a brief.

By her Anders brief, counsel discusses whether the trial court abused its discretion in revoking appellant's deferred adjudication and sentencing him to twenty years confinement. We have reviewed this ground in addition to the grounds raised by appellant. We have also conducted an independent review of the entire record to determine whether there are any other arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005). We have found no such grounds and agree with counsel that the appeal is frivolous.

Accordingly, counsel's motion to withdraw is hereby granted and the trial court's judgment is affirmed.

Don H. Reavis

Justice

Do not publish.

1.

Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

ubbock County Court's action on the ground that the 152nd District Court of Harris County had dominant jurisdiction of the controversy and, among other things, TADA contended that it had the right to manage, within legal limits, its own affairs without interference from the courts. ⁽²⁾

By their petition for writ of mandamus, PISD, et al. present six issues questioning whether (1) the 72nd District Court of Lubbock County abused its discretion in denying PISD, et al.'s plea in abatement because the 152nd District Court of Harris County had previously acquired dominant jurisdiction; (2) the trial court abused its discretion in entering a temporary injunction granting relief beyond orders necessary to preserve the status quo pending final trial on the merits; (3) a writ of mandamus should issue directing the 72nd District Court of Lubbock County to rescind its order granting a temporary injunction and denying PISD, et al.'s plea in abatement; (4) the trial court abused its discretion in misapplying the law to the facts of the case; (5) the trial court abused its discretion in accepting jurisdiction of the matter where testimony established that there is no controversy between LISD and TADA; and (6) the trial court abused its discretion in entering a temporary restraining order without requiring a bond. ⁽³⁾ Before we address the issues presented by PISD, et al., we first set forth the appropriate standard of review applicable to mandamus proceedings.

Standard of Review

A writ of mandamus will only issue to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal, and the relator has the burden to present the appellate court with a record sufficient to establish the right to mandamus. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992) (orig. proceeding). With respect to factual matters committed to the trial court's discretion, the appellate court may not substitute its judgment for that of the trial court. Id. at 837. However, a review of a trial court's determination of controlling legal principles is entitled to much less deference. Id. at 840. In our analysis, we "must focus on the record that was before the court and whether the decision was not only arbitrary but also amounted 'to a clear and prejudicial error of law.'" In re Bristol-Myers Squibb Co., 975 S.W.2d 601, 605 (Tex. 1998).

Notwithstanding the rule that an injunction acts in personam and not in rem, American Institute of Real Estate Apprais. v. Hawk, 436 S.W.2d 359, 366 (Tex.Civ.App.-Houston [14th Dist.] 1968, no writ) (emphasis added), and that PISD, et al. did not serve or join LISD or the members of the team, as their principal argument presented by their third issue, PISD, et al. contend that a writ of mandamus should issue directing the 72nd District Court of Lubbock County to rescind its order granting a temporary injunction and denying PISD, et al.'s plea in abatement on the ground that dominant jurisdiction was vested in the Harris County District Court. In support of their contention, PISD, et al. rely on Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245 (Tex. 1988). However, Wyatt is not controlling because all parties affected by the litigation were before the court and questions of abatement and injunctive relief were presented. Moreover, even if dominant jurisdiction was vested in the District Court of Harris County, a question we need not decide, the trial court's denial of PISD et al.'s plea in abatement was grounded on estoppel.

In 4M Linen & Uniform v. W.P. Ballard & Co., 793 S.W.2d 320, 322 (Tex.App.--Houston [14th Dist.] 1990, writ denied), the court held:

The party who filed the first suit may, however, be estopped from asserting the jurisdiction of the first court.

[Citations omitted]. The court also noted that the issue of estoppel is a fact question to be determined by the court where the plea in abatement is filed. By his order, among other things, Judge Cherry concluded that PISD, et al. were estopped to assert dominant jurisdiction because of the untimely nature of their action and because LISD and its team members were not made parties in the Harris County proceeding. A review of the trial court's determinations of fact requires our review of a reporter's record. Id. at 322-23. However, as is common in mandamus and expedited matters, we have not been provided with a complete reporter's record. ⁽⁴⁾ Accordingly, because the Lubbock District Court's resolution of the factual issue is entitled to deference in a mandamus proceeding and should not be set aside unless it is clear from the record that only one decision could have been reached, we conclude that Judge Cherry did not abuse his discretion in denying PISD, et al.'s plea in abatement. GTE Communications v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993). Similarly, the trial court's factual decision regarding its jurisdiction is also entitled to the same measure of deference, and accordingly, PISD, et al.'s fifth issue does not require that mandamus issue. See Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) holding that the trial court may consider evidence to resolve jurisdictional issues raised. Issues three and five are therefore overruled.

We have not overlooked PISD, et al.'s other issues; however, our disposition of the principal contention pretermits our consideration of the remaining issues. Tex. R. App. P. 47.1. PISD, et al.'s petition for writ of mandamus is denied.

Don H. Reavis

Justice

Publish.

1. Based on arguments and briefing, it appears that LISD, et al. were not made parties to the Harris County proceeding, and that LISD's attorney was present at the hearing on March 27, 2002. However, the extent of LISD's participation in the hearing is uncertain from the limited record common to mandamus proceedings.

2. Burge v. American Quarter Horse Ass'n, 782 S.W.2d 353, 354 (Tex.App.-Amarillo 1990, no pet.)

3. A requirement of a bond does not implicate denial of the plea in abatement. Moreover, the record demonstrates that the requirement of a bond was waived. Tex. R. Civ. P. 684.

4. According to the reporter's record, this Court was provided with excerpts of the proceedings.