Robert Lee Austin, III v. State

IN THE

TENTH COURT OF APPEALS

 

Nos. 10-04-00349-CR, 10-04-00350-CR,

10-04-00351-CR & 10-04-00352-CR

Robert Lee Austin, III,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 82nd District Court

Falls County, Texas

Trial Court Nos. 8001, 8002, 8003 & 8004

MEMORANDUM  Opinion

          Robert Lee Austin, III pleaded guilty before a jury to four separate charges: murder and three charges of aggravated assault.  The jury assessed his punishment at seventy-five years’ imprisonment on the murder charge, twenty years’ imprisonment on one of the aggravated assault charges, and ten years’ imprisonment on each of the remaining aggravated assault charges.  Austin contends in his sole issue that his guilty pleas must be set aside because the record does not reflect that they were made knowingly and voluntarily.  We will affirm.

The Guilty Pleas

          Before the commencement of voir dire, Austin’s counsel advised the court that Austin intended to plead guilty to each charge. Below are excerpts from the interchange which occurred thereafter among the court, Austin, Austin’s counsel, and the prosecutor.

          COUNSEL:   For the record, Your Honor, the State originally floated an offer of 30 years contingent on the family’s acceptance.  I had conveyed that to my client.  We discussed the fact this is a 5- to 99-year sentence.  He is probation eligible; he knows that as well.  And we had made a determination to accept that plea offer.  However, the contingency did not come through.  The family wanted a trial, and the State withdrew their offer.

                              I talked to my client about his right to have a jury trial in the guilt-innocence phase.  We discussed that as well as the punishment.  It was our decision and Mr. Austin’s ultimate decision to plead guilty to the Court and then go to the jury for punishment on this issue.

          . .  .  .

          COURT:       Okay.  First of all, are there any mental issues that we need to deal with concerning competency to stand trial?  Mr. Austin appears to be fine and able to articulate himself. Are there any mental issues that we need to deal with concerning—

          COUNSEL:   None the defense is aware of, Your Honor.

          . .  .  .

          COURT:       Now, Mr. Austin, in the event that you plead guilty to these charges—and I haven’t asked for your formal plea at this time, but I did want to advise you the same thing that I’m sure your attorney has advised you, that you are waiving all issues on the guilt or innocence phase of this trial.  Do you understand that?

          AUSTIN:      Yes, sir.

          COURT:       Okay.  A plea of guilty means exactly what it means: That you’re pleading guilty to it.

          AUSTIN:      Yes, sir.

          COURT:       And so, therefore, you’re waiving any issues, any legal matters that you could raise as to a charge or any other legal issue as to the guilt or innocence phase of this trial.  Do you understand that?

          AUSTIN:      Yes, sir.

          . .  .  .

          COURT:       We’ve gone over the punishment.  You understand the punishment range.  Now, you’ve also filed, I assume, in each one of these cases an application for probation?

          COUNSEL:   They are on file, Your Honor.

          COURT:       Okay.  And the jury will be so instructed of that.  But you understand this is the jury’s call.  There is no recommendation from the district attorney’s office in the nature of a plea bargain agreement to you.  There’s no cap on any of these; is that correct?

          PROSECUTOR: Correct.

          COURT:       Okay.  In other words, whatever the full range of punishment is that we’ve gone over with you, the 2 to 20, and the 5 to 99, that is the range that the jury will be instructed.  Do you understand that?

          AUSTIN:      Yes, sir.

          COURT:       Okay.  Now, there are punishment issues that can be raised, as I understand, on the sudden passion issue, and if those are properly raised to the Court’s satisfaction, then the jury will be so instructed in the punishment phase on the issue of sudden passion.  Do you understand that?

          AUSTIN:      Yes, sir.

          [Austin enters guilty plea to each charge]

          COURT:       Okay.  Are you pleading guilty of each one of those of your own free will and accord?

          AUSTIN:      Yes, sir.

          COURT:       Have you had sufficient time to consult with your attorney?

          AUSTIN:      Yes, sir.

          COURT:       Any questions that you need to ask your attorney at this time?

          AUSTIN:      No, sir.

          COURT:       I recognize that your attorney has spent a considerable amount of time in this case talking to you about it, looking at the evidence that’s been offered by the district attorney’s office.  Is there anything you need to take up with me at this time concerning the performance of your attorney?

          AUSTIN:      No, sir.

          COURT:       Okay.  Are you satisfied 100 percent with his performance, his investigation, his consultation with you on these matters?

          AUSTIN:      Yes, sir.

          COURT:       Okay.  And are you pleading guilty to each one of these because  you are guilty and for no other reason?

          AUSTIN:      Yes, sir.

Validity of the Guilty Pleas

          Austin contends in his sole issue that his guilty pleas are invalid because the record does not reflect that the court admonished him that he was waiving his privilege against compelled self-incrimination and the right to confrontation.

          However, when a defendant pleads guilty before a jury without the benefit of a plea agreement, the defendant does not waive his privilege against self-incrimination.  Carroll v. State, 42 S.W.3d 129, 132 (Tex. Crim. App. 2001) (citing Mitchell v. United States, 526 U.S. 314, 326-27, 119 S. Ct. 1307, 1314, 143 L. Ed. 2d 424 (1999)).  Thus, Austin is left to argue that his pleas are invalid because the record does not reflect that the court admonished him that he was waiving his right of confrontation.

          The procedural facts of Austin’s case are similar to those presented to the Court of Criminal Appeals in Gardner v. State, 164 S.W.3d 393 (Tex. Crim. App. 2005).  Like Austin, the appellant in Gardner contended that his plea was invalid “because the record d[id] not affirmatively show that appellant understood the nature of the constitutional due process protections that he was waiving when he pled guilty.”  Id. at 398.

          The Court observed that the intelligent and knowing nature of that appellant’s plea was shown in part by inference from his counsel’s statements that he “would testify even though he did not have to under the Fifth Amendment” and that his plea “saved the victim from having to testify and saved the jury the ‘grueling experience’ of determining [his] guilt.”  Id. at 399 (citing Henderson v. Morgan, 426 U.S. 637, 647, 96 S. Ct. 2253, 2258, 49 L. Ed. 2d 108 (1976) (“it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit”); United States v. Henry, 933 F.2d 553, 559 (7th Cir. 1991) (“defendant’s intelligent awareness” of constitutional rights “can be reasonably inferred from the transcript”)).

          The Court also observed:

                   The voluntary nature of appellant’s guilty plea is further shown in the record by the overwhelming evidence that appellant’s guilty plea was part of a strategy (which we may also infer was done in consultation with competent counsel) to persuade the jury to grant appellant probation.  Unlike this case, the record in Boykin was silent on whether the defendant’s guilty plea was part of some trial strategy. See Boykin [v. Alabama], 395 U.S. [238,] 240, 89 S. Ct. 1709[, 1710, 23 L. Ed. 2d 274 (1969)] (“Trial strategy may of course make a plea of guilty seem the desirable course.  But the record is wholly silent on that point and throws no light on it.”).  We further note that in Brady, the Supreme Court upheld the validity of a guilty plea accompanied by admonishments similar to those here.  Brady [v. United States], 397 U.S. [742,] 743-44 n.2, 90 S. Ct. 1463[, 1466 n.2] and at 754-55[, 90 S. Ct. at 1472, 25 L. Ed. 2d 747 (1970)] (noting that defendant’s guilty plea was “entered in open court and before a judge obviously sensitive to the requirements of the law with respect to guilty pleas”).

Id. at 399-400 (footnote omitted).

          Here, it may be reasonably inferred from counsel’s statements on the record that counsel thoroughly explained Austin’s right to a jury trial and the rights he would be forfeiting if he pleaded guilty.  “The voluntary nature of [Austin]’s guilty plea is further shown in the record by the overwhelming evidence that [his] guilty plea was part of a strategy (which we may also infer was done in consultation with competent counsel) to persuade the jury to grant [him] probation.”  See id.

Accordingly, we overrule Austin’s sole issue and affirm the judgment in each case.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed January 4, 2006

Do not publish

[CRPM]

tion not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state."  Id. at 231 (citing Burger King, 471 U.S. at 477).  Nonetheless, we still consider: (1) the burden on the defendant; (2) the interests of the forum state in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies.  Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 341 (Tex. 2009); Guardian Royal, 815 S.W.2d at 228, 231.

            Trigon contends that it will be unduly burdened to try the case in Texas because all of it employees who may have knowledge of the relevant facts reside in Colorado.  However, Trigon had no previous problem sending employees to Texas to participate in training or to gather information.  We do not perceive an undue burden, then, in trying a lawsuit in Texas.  Trigon also claims that Texas has no interest in adjudicating the dispute between Trigon and J7.  However, Texas has an interest in adjudicating disputes involving Texas residents and Texas is a convenient forum to adjudicate this dispute.  See Lewis v. Indian Springs Land Corp., 175 S.W.3d 906, 919 (Tex. App.—Dallas 2005, no pet.).  Further, Trigon contends that the most efficient and complete resolution of the dispute could only happen in Colorado.  Notwithstanding that the work was to be performed in Colorado, the shared interest of other states in furthering fundamental substantive social policies can be implemented by Texas courts as effectively as the courts in Colorado.  See id. 

            Weighing the various factors, we find that the exercise of general jurisdiction over Trigon by a Texas court does not offend traditional notions of fair play and substantial justice.

            Trigon’s first issue is overruled.

Section 150.002

            In its second issue, Trigon argues that the trial court erred in denying its motion to dismiss J7’s suit due to J7’s failure to file a certificate of merit required by section 150.002 of the Texas Civil Practice and Remedies Code.  At the time J7 filed its suit against Trigon, section 150.002 required a plaintiff, in a suit for damages arising out of professional services by a licensed or registered professional, to file with the complaint a "certificate of merit"—the affidavit of a third-party licensed professional engineer.  See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (Vernon Supp. 2009)).  The current version of Section 150.002 applies to a suit filed or commenced on or after September 1, 2009, the effective date of the amendments.  Here, J7 originally filed its suit against Trigon on May 26, 2009.  Accordingly, we apply the former version of section 150.002 in this case.  See Ustanik v. Nortex Found. Designs, Inc., 2010 Tex. App. LEXIS 4539, *1-2, ___ S.W.3d ___ (Tex. App.—Waco June 16, 2010, pet. filed).

            The parties do not dispute that J7 failed to file the certificate of merit with its suit.  The required result of that failure is a “dismissal of the complaint,” with or without prejudice.  See Act of May 18, 2005, 79th Leg., R.S., ch. 208, § 2, 2005 Tex. Gen. Laws 369, 370 (amended 2009) (current version at § 150.002(e)).  The trial court denied Trigon’s motion to dismiss J7’s suit.

Standard of Review

            We review a trial court's decision on a motion to dismiss a case for failure to comply with section 150.002 for an abuse of discretion.  Ustanik v. Nortex Found. Designs, Inc., 2010 Tex. App. LEXIS 4539, *2, ___ S.W.3d ___ (Tex. App.—Waco June 16, 2010, pet. filed); Palladian Bldg. Co. v. Nortex Found. Designs, Inc., 165 S.W.3d 430, 433 (Tex. App.—Fort Worth 2005, no pet.); see also Jernigan v. Langley, 195 S.W.3d 91, 93 (Tex. 2006) (applying similar statute in context of healthcare liability suits).  However, if resolution of the issue requires us to construe statutory language, we review under a de novo standard.  See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); Palladian Bldg., 165 S.W.3d at 436 (citing Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002)).  Once we determine the proper construction of the statute, we determine whether the trial court abused its discretion in the manner in which it applied the statute to the instant case.  See Palladian Bldg., 165 S.W.3d at 436.

Non-negligence Claims

            In response to Trigon’s motion to dismiss and on appeal, J7 argues that the trial court did not err in failing to dismiss its claims because the claims remaining after J7 amended its petition for the second time are non-negligence claims and are not subject to the requirement for a certificate of merit.  J7 alleged in its second amended petition claims for tortious interference and fraud. 

            Some courts have held that, under the 2005 version of section 150.002, the filing of a certificate of merit is not required for non-negligent claims.  See Landreth v. Las Brisas Council of Co-Owners, Inc., 285 S.W.3d 492, 500 (Tex. App—Corpus Christi 2009, no pet.); Consol. Reinforcement v. Carothers Exec. Homes, Ltd., 271 S.W.3d 887, 894 (Tex. App.—Austin 2008, no pet.); Kniestedt v. Sw. Sound & Elecs., 281 S.W.3d 452, 455 (Tex. App.—San Antonio 2007, no pet.). In 2009, the statute was amended to specifically address this determination which had been initiated by the San Antonio Court in 2007.  See 2009 Legis. Bill Hist. TX S.B. 1201  (“This issue arose out of a couple of 2007 court cases from the San Antonio 4th Court of Appeals, which said that although the statute was broadened in 2005 from ‘negligence’ actions to ‘any action arising out of the provision of professional services,’ the affidavit requirement still spoke only to negligence. Therefore, the court did not agree that it applied to actions other than negligence, despite clear language in the statute and the fact that it was specifically amended to broaden it in 2005 (HB 1573)”). 

            As we discussed in Ustanik, under a proper analysis of the 2005 act, it may be that if there is not a certificate of merit filed with the petition, the trial court is required to dismiss not only any negligence claim but also “any action arising out of the provision of professional services.”  See Ustanik v. Nortex Found. Designs, Inc., 2010 Tex. App. LEXIS 4539, *11, ___ S.W. 3d ___,  (Tex. App.—Waco June 16, 2010, pet. filed).  At this time,  we find it unnecessary in this proceeding to resolve that question.

            In Ustanik, we determined that, like the First Court in Ashkar, we look to the plaintiff’s pleadings to determine whether the additional claims asserted were non-negligence claims and are not bound by the labels of the claims used by the plaintiff.  See id. at *12; Ashkar Eng'g Corp. v. Gulf Chem. & Metallurgical Corp., No. 01-09-00855-CV, 2010 Tex. App. LEXIS 769, *22 (Tex. App.—Houston [1st Dist] Feb. 4, 2010) (mem.) (appeal dism'd, 2010 Tex. App. LEXIS 2807, April 15, 2010).  Contra Consol. Reinforcement, 271 S.W.3d at 894; Gomez v. STFG, Inc., No. 04-07-00223-CV, 2007 Tex. App. LEXIS 7860, *6-7 (Tex. App.—San Antonio Oct. 3, 2007, no pet.) (both cases holding that claims merely labeled as non-negligence claims were not subject to the requirement of a certificate of merit).  Accordingly, we look to J7’s pleadings to determine if its claims are, in fact, non-negligence claims.

Factual Allegations

            According to the second amended petition, OneOK, a subsidiary of a company involved in the natural gas business, hired Trigon to provide engineering services for and supervise production of a natural gas pipeline in Colorado.  The two companies sent bid requests to Texas.  J7 was one of the pipeline companies that responded.

            J7 based its bid on the information provided by Trigon.  After reviewing the bid, Trigon asked J7 to lower its bid.  The contract was awarded to J7 based on the lowered bid.  According to the provided bid information, the project was to begin around August 4, 2008 and be completed by November 2008.  J7 began moving personnel and equipment in early August but because of delays in the procurement of materials, as well as other issues with Trigon, work was delayed.  Trigon did not tell J7 why the start date was delayed or disclose that materials were not going to be timely provided.  Trigon insisted, however, that J7 increase its personnel and equipment.

            Delays continued to occur on the project.  There were delays in receiving necessary materials, surveys and X-ray inspections were not timely completed by Trigon, and Trigon required J7 to follow improper specifications and procedures.  One survey provided by Trigon placed a pipeline through old bridge pilings in a river that could not be penetrated by drilling equipment.  J7 had to drill significantly deeper to go under the pilings.  When it was time for hydrostatic testing, OneOK refused to provide the water it had previously agreed to provide.  After 21 days of delay and after refusing alternative suggestions by J7, Trigon instructed J7 to use irrigation water pumped from area canals.  The water was unclean and needed filtration.  Filters were replaced “constantly.”  After filtration, the water was still fouled which required J7 to perform extensive “dewatering” to clean out the pipes.

            Hydrotesting revealed that gaskets provided by Trigon were inadequate to hold the pressure.  The specifications that Trigon required J7 to use in tightening the gaskets were incorrect and damaged the gaskets.  J7 was forced to replace these and other parts.

            J7 incurred “massive” additional expenses on the project due to delays by Trigon and due to the changes and increases to the scope of J7’s work beyond what was stipulated in the contract.  Expenses caused by downtime, improper engineering and surveying, faulty equipment and other changes greatly increased J7’s damages.

Claims Against Trigon

            Before Trigon filed its motion to dismiss pursuant to section 150.002 of the Texas Civil Practice and Remedies Code, J7 alleged claims of negligence, negligent misrepresentation, and tortious interference.  Each of these claims were based on inaccurate or misrepresented information provided by Trigon about the project and the plans for completing the project.  Four days after Trigon filed its motion to dismiss and three months after J7 filed its first amended petition, J7 dropped its negligence and negligent misrepresentation claims, added more to the tortious interference claim, and added a fraud claim.

            Tortious Interference

            In its second amended petition, J7 alleges that Trigon was aware of the contract between OneOK and J7 and that Trigon willfully and intentionally interfered with the contract by misrepresenting facts, failing to disclose facts, providing false information, and delaying J7’s performance under the contract. 

            Fraud

            J7 also alleges that Trigon misrepresented or failed to disclose material information to J7 regarding the project and the contract in both procuring the contract and in altering goods and services provided under the contract.  J7 alleges that Trigon knew the information was false or was reckless in regard to the falsity of the information and failed to disclose critical information or made representations with the intention that J7 rely on those representations.  J7 further alleges that Trigon knew that pipe bends, valves, and necessary pieces of equipment would not be delivered to the jobsite in a timely manner and did not disclose the delays to J7.

            In reviewing the claims and factual allegations in J7’s second amended petition, we conclude the underlying complaint of J7 against Trigon is that J7 was injured by Trigon’s failure to disclose information and in providing inaccurate information, such as incorrect surveys.  Thus, we believe that J7’s claims of tortious interference and fraud constitute claims of professional negligence within the meaning of the statute and as such require a certificate of merit.  Accordingly, the trial court abused its discretion in failing to dismiss J7’s claims against Trigon due to J7’s failure to file the required certificate of merit.  Trigon’s second issue is sustained.

Good Cause

            J7 argues that even if Chapter 150 applies, it should be given an extension of time for good cause to comply with the certificate of merit requirement.  J7 relies on the last sentence of section 150.002(b) where the statute provides, “The trial court may, on motion, after hearing and for good cause, extend such time as it shall determine justice requires.”  Tex. Civ. Prac. & Rem. Code Ann. § 150.002(b) (Vernon Supp. 2009) (emphasis added). However, the phrase “such time” refers to the 30 days given a plaintiff who has not complied with the contemporaneous filing requirement of subsection (a) because the limitation period for the filing of the suit expires within 10 days of the date of filing and because of that time constraint, a certificate of merit cannot be prepared and timely filed.  In those cases, the trial court may grant an extension for good cause.  J7 has not alleged that it could not provide a certificate of merit because the limitation period for filing its suit would have expired within 10 days from the filing of the suit.  Therefore, this “good cause” exception is not available to J7.

Conclusion

            Having overruled Trigon’s issue regarding its special appearance but sustained its issue regarding the certificate of merit, the trial court’s order denying Trigon’s special appearance is affirmed and the trial court’s order denying Trigon’s motion to dismiss is reversed.  This case is remanded for further proceedings.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

            (Justice Davis concurring and dissenting with a note)*

Affirmed in part and reversed and remanded in part

Opinion delivered and filed September 15, 2010[1]

[CV06]

            *(“Justice Davis concurs with this Court’s judgment on the first issue.  He dissents to this Court’s judgment on the second issue.”)

---

[1]  Due to a typographical error, the Memorandum Opinion, but not the judgment, issued September 1, 2010 is withdrawn and replaced with this opinion issued on September 15, 2010.