Viengkhone Sikalasinh v. State

NOS. 07-09-0301-CR, 07-09-0302-CR, 07-09-0303-CR,

07-09-0304-CR, 07-09-0305-CR, 07-09-0306-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

 AUGUST 20, 2010

VIENGKHONE SIKALASINH, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NOS. 58,210-A, 58,211-A, 58,212-A, 58,213-A, 58,216-A, 58,217-A;

 HONORABLE HAL MINER, JUDGE

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

OPINION

            Appellant, Viengkhone Sikalasinh,[1] was convicted by a jury of three counts of aggravated assault with a deadly weapon, one count of aggravated assault with a deadly weapon--family member, and two counts of aggravated robbery, each enhanced by a prior felony conviction.[2]  He was sentenced by a jury to six concurrent sentences of twenty, twenty, ten, sixty, fifteen, and fifteen years confinement, respectively.  Appellant asserts three issues on appeal:  (1) whether the trial court erred by requiring him to pay court-appointed attorney fees as a cost; (2) whether there was legally sufficient evidence that he was able to pay court-appointed attorney fees as a cost; and (3) whether he should be required to pay transportation, meal and lodging expenses of a non-resident witness who was neither an expert witness nor a peace officer.  We modify the trial court's judgment in Cause No. 58,210-A to clarify that payment of $16,510.26 in court-appointed attorney fees and $537.05 in witness fees is not a part of the court costs ordered in the case and affirm the judgment as modified. The judgments in Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A, and 58,217-A are affirmed.

Background

            On October 1, 2008, Appellant was indicted for aggravated assault with a deadly weapon enhanced in three criminal actions;[3]  aggravated assault with a deadly weapon--family member in a single criminal action;[4] and aggravated robbery in two criminal actions.[5] 

            During the course of the pretrial proceedings, Appellant filed three affidavits requesting court-appointed counsel.  His financial information showed he was too poor to employ counsel, and the trial court granted his requests based upon financial need.[6]

            The State's six criminal actions against Appellant were consolidated on August 10, 2009, and tried before a jury over the next four days.  During its case-in-chief, the State called the manager of the apartment complex where Appellant's crime spree had occurred.  At the time of trial, this particular witness had moved to McLennan County, Texas.  Thus, the State subpoenaed her to trial as an out-of-county or non-resident witness.

            Appellant was convicted of all charges and sentenced in accordance with the jury's verdict.  Subsequently, the trial court approved a Witness Fee Claim for the non-resident witness's trial attendance totaling $537.05 for lodging, meal, and travel expenses incurred.[7]  The trial court also approved an Attorney Fee Voucher submitted by Appellant's court-appointed attorney for services rendered from July 10, 2009 until the end of trial totaling $16,510.26.

            On September 1, 2009, the trial court signed Judgments of Conviction by Jury in each of the six cases consolidated for trial.  In each case, the summary portion of the judgment reflects "Court Costs: see attached," while the narrative portion of the judgment orders Appellant to pay court costs "as indicated above."  In the Clerk's Record from Cause No. 07-09-0301-CR (trial court Cause No. 58,210-A), the first page following the judgment is a certified bill of costs, also dated September 1, 2009, that reflects "Attorney Fees (Court Appointed) $16,510.26" and "Witness Fee $537.05."  In the remaining five criminal actions, Cause Nos. 07-09-0302-CR, 07-09-0303-CR, 07-09-0304-CR, 07-09-0305-CR and 07-09-0306-CR (trial court Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A, and 58,217-A, respectively), the first page following the judgment in the Clerk's Record is a certified bill of costs reflecting no attorney's fees and no witness fees. 

            Issues 1 & 2 -- Court-Appointed Attorney Fees

            Under article 26.05 of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees if the court determines that a defendant has financial resources that enable him to offset, in part or in whole, the cost of legal services provided.  See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009).  The record before us, however, does not contain a determination or finding by the trial court that Appellant had any financial resources or was "able to pay" any appointed attorney fees.[8]  In fact, subsequent to the judgment, the trial court appointed an attorney to handle Appellant's appeal due to his indigency. 

            Prior to filing his appeal, Appellant did not have the benefit of the recent opinion by the Court of Criminal Appeals holding that, without record evidence to demonstrate a defendant's financial resources to offset the costs of legal services, a trial court errs if it orders reimbursement of court-appointed attorney fees.  Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App. 2010).  In light of this recent ruling, the State candidly concedes that the court-appointed attorney fees here, $16,510.26, should not have been included in the Judgment as costs to be paid by Appellant because there is no record evidence indicating Appellant is "able to pay."  We agree.  Accordingly, Appellant's issues one and two are sustained as to Cause No. 07-09-0301-CR (trial court Cause No. 58,210-A), but are overruled as to the remaining five actions.

            Issue 3 -- Witness Fees

            Appellant also asserts he is not liable for the non-resident witness fees because there is no authority for him to be ordered to pay, as costs of court, witness fees paid pursuant to article 35.27[9] of the Texas Code of Criminal Procedure.[10]  The State contends that article 102.002 of the Texas Code of Criminal Procedure authorizes the trial court to assess witness fees paid pursuant to article 35.27 as costs of court.   We disagree with the State.  

            Every person subpoenaed for the purpose of giving testimony in a criminal proceeding who resides outside the county in which the prosecution is pending is entitled to be reimbursed by the state for reasonable and necessary transportation, meal, and lodging expenses incurred by that witness by reason of his or her attendance as a witness.  See art. 35.27, § 1(a).  Where a county has paid those expenses, the county is entitled to reimbursement by the state as an assignee of the witness.  See art. 35.27 § 7.  Here, pursuant to article 35.27, § 7, Potter County was paid the sum of $537.05 as compensation for the expenses incurred in connection with the attendance of the non-resident witness in Appellant's case.  At issue here is whether the trial court properly assessed the amount of that reimbursement against Appellant as costs of court.

            Article 35.27 provides a mechanism for the reimbursement of witness expenses; it does not provide for the assessment of those expenses as costs of court.  Therefore, the State relies upon article 102.002 as authority for assessment of "witness fees" as costs of court.  Because article 102.002 does not expressly provide for the assessment of article 35.27 payments as costs of court, resolution of this issue involves the statutory construction of article 102.002.

            Standard of Review

            Issues governed by statutory construction are questions of law for the reviewing court to decide. City of Lubbock v. Adams, 149 S.W.3d 820, 826-27 (Tex.App.--Amarillo 2004, pet. denied).  Because proper statutory construction is a question of law, a trial court has no discretion in rendering an interpretation; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992), and no particular deference need be given to the trial court's findings by the reviewing court. Bandera v. Indep. Sch. Dist. v. Hamilton, 2 S.W.3d 367, 370 (Tex.App.--San Antonio 1999, pet. denied).  Thus, when we construe a statute, we conduct a de novo review; Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002), with our primary objective being to ascertain and give effect to the Legislature's intent. Texas Dept. of Protective and Regulatory Services v. Mega Child Care, 145 S.W.3d 170, 176 (Tex. 2004).  We construe a statute as written and, if possible, ascertain the legislative intent from the language used in the statute.  Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994).  Thus, we begin with the plain and common meaning of the statute's words.  Texas Dept. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).

            Article 102.002 - Texas Code of Criminal Procedure

            Chapter 102 of the Texas Code of Criminal Procedure, entitled "Costs Paid by Defendants," provides a general framework for the assessment of costs by a trial court in a criminal proceeding.[11]  Under Subchapter A, entitled "General Costs," we find article 102.002 dealing with "witness fees."

            Article 102.002 states as follows:

(a) Repealed by Acts 1999, 76th Leg., ch. 580, Sec. 11(a), eff. Sept. 1, 1999.

(b) The justices of the peace and municipal courts shall maintain a record of and the clerks of district and county courts and county courts at law shall keep a book and record in the book:

(1) the number and style of each criminal action before the court;

(2) the name of each witness subpoenaed, attached, or recognized to testify in the action; and

(3) whether the witness was a witness for the state or for the defendant.

(c) Except as otherwise provided by this subsection, a defendant is liable on conviction for the fees provided by this article for witnesses in the defendant's case. If a defendant convicted of a misdemeanor does not pay the defendant's fines and costs, the county or municipality, as appropriate, is liable for the fees provided by this article for witnesses in the defendant's case.

(d)  If a person is subpoenaed as a witness in a criminal case and fails to appear, the person is liable for the costs of an attachment, unless he shows good cause to the court why he did not appear.

(Emphasis added).

            Pursuant to article 102.002, in order for a defendant to be liable for witness fees, three events must occur: (1) the defendant must be convicted, (2) the witness must have testified in the "defendant's case," and (3) the fees must be "provided by this article," i.e., article 102.002. See art. 102.002(c).  Here, clearly Appellant was convicted; therefore, the two questions remaining are (1) whether or not the witness testified in the “defendant's case,” and (2) whether the fees paid were provided by article 102.002.

            As to the first question, Appellant contends that because the non-resident witness testified in the State's case-in-chief only, she did not testify in the "defendant's case."  The State disagrees, contending that the article applies because the non-resident witness was a witness in the prosecution of the defendant's case.  Based upon our analysis of the second question pertaining to whether the fees were provided by article 102.002, we need not decide this question.

            As to the second question, Appellant contends the plain language of article 102.002 does not provide for the assessment of non-resident witness fees paid pursuant to article 35.27.  The State counters by contending that it does.

            Prior to its repeal in 1999, section (a) of article 102.002 provided:[12]

A person subpoenaed, attached, or recognized as a witness, other than a witness entitled to receive compensation under Article 35.27 of this Code, is entitled to receive $1.50 per day in attendance in court and six cents per mile traveling to or returning from the trial.  In order to receive compensation under this article, the witness, or another credible person representing the witness, must sign an affidavit stating the number of days the witness attended the court and the number of miles the witness traveled to and from the place of trial. The affidavit must be filed with the papers of the case.

 (Emphasis added.)

             Therefore, prior to the repeal of subparagraph (a), the plain language of article 102.002 did not authorize a trial court to assess non-resident witness fees paid pursuant to article 35.27 as costs of court.   Therefore, the question becomes, by repealing subparagraph (a), did the Legislature intend to remove that exclusion? 

            Any analysis of the Legislature's intent in repealing subparagraph (a) is complicated by the fact that in repealing that subparagraph, the Sixty-Sixth Legislature also repealed subparagraphs (b) and (c), and then without making reference to the repeal, amended subparagraphs (b) and (c) to include procedures governing the prosecution and administration of misdemeanor offenses in municipal courts.  See Act of May 22, 1999, 76^th Leg., R.S., ch. 580, § 11(a), 1999 Tex. Gen Laws. 3119, 3123, approved June 18, 1999, effective September 1, 1999 (repealing subparagraphs (a), (b) and (c)); See Act of May 30, 1999, 76^th Leg., R.S., ch. 1545, § 63, 1999 Tex. Gen. Laws 5314, 5329-30, approved June 19, 1999, effective September 1, 1999 (amending subparagraphs (b) and (c)).  If the intent of the Legislature had been the removal of the article 35.27 exclusion, it seems the more simple solution would have been to repeal only that portion of subparagraph (a).  Accordingly, an analysis of the bill's history does not support the State's contention that witness fees paid pursuant to article 35.27 are assessable as costs of court under article 102.002.

            Finally, although counterintuitive to the ultimate position taken, the State argues that no substantive change in the law was intended by the Legislature when it repealed subparagraph (a).  We see no reason to disagree with that analysis. If the Legislature did not intend to substantively change the provisions of subparagraph (c), the repeal of subparagraph (a) did not expand the assemblage of recoverable costs of court to include non-resident witness expenses paid pursuant to article 35.27. Accordingly, we hold that article 102.002 does not provide for the assessment of witness fees paid pursuant to article 35.27 as costs of court.  Appellant's third issue is sustained.  

Conclusion

            Having determined that the trial court erred by requiring Appellant to reimburse the State for the costs of his court-appointed attorney and the non-resident witness article 35.27 reimbursement expenses, we modify the judgment in Cause No. 58,210-A to clarify that the order to pay court costs does not include a requirement that he pay $16,510.26 in attorney fees or $537.05 in witness fees, and the judgment, as modified, is affirmed. The trial court's judgments in Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A, and 58,217-A are affirmed. 

                                                                                                Patrick A. Pirtle

                                                                                                      Justice 

Quinn, C.J. and Campbell, J., concurring.

Publish.

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[1]We note that while the judgment in each case states Appellant's first name as "Viengkhone," the indictments in Cause Nos. 58,210-A, 58,211-A, 58,212-A and 58,213-A state Appellant's first name as "Vienkhone."  Where names are substantially the same in character and pronunciation, though slightly varied in spelling, under the doctrine of idem sonans, the variance is immaterial.  Jenke v. State, 487 S.W.2d 347 (Tex.Crim.App. 1972).

[2]See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009) and. § 29.03 (Vernon 2009).

[3]Cause Nos. 58,210-A; 58,211-A; 58,212-A.

[4]Cause No. 58,213-A.

[5]Cause No. 58,216-A; 58,217-A.

[6]At various stages of the pretrial proceedings, two of Appellant's appointed-counsel moved to withdraw from representation. Both motions were granted and new counsel was appointed.

[7]The Witness Fee Claim form, which is signed by the non-resident witness and approved by the trial judge, requests the Comptroller of Public Accounts to reimburse Potter County, pursuant to Tex. Code of Crim. Proc. Ann. article 35.27 (Vernon 2006), for expenses incurred by the witness, but paid by Potter County, on account of her attendance as a witness in Appellant's case.

[8]Unless a material change in his financial resources occurs, once a criminal defendant has been found to be indigent, he is presumed indigent for the remainder of the proceedings.  Tex. Code Crim. Proc. Ann. art. 26.04(p) (Vernon Supp. 2009).

[9]Article 35.27 states, in pertinent part, as follows:

Every person subpoenaed by either party or otherwise required or requested in writing by the prosecuting attorney or the court to appear for the purpose of giving testimony in a criminal proceeding who resides outside the state or the county in which the prosecution is pending shall be reimbursed by the state for the reasonable and necessary transportation, meal, and lodging expenses he incurs by reason of his attendance as a witness at such proceeding.

See Tex. Code Crim. Proc. Ann. art. 35.27, § 1(a) (Vernon 2006).

[10]For convenience, we will cite provisions of the Texas Code of Criminal Procedure throughout the remainder of this opinion simply as "article _______." 

[11]The overall framework for the assessment of costs by a trial court in a criminal proceeding is both convoluted and confusing.  Part of this confusion is created by the fact that customarily bills of costs prepared by court clerks do not reflect the authority by which those costs are assessed.  Adding to the confusion is the plethora of overlapping legislatively enacted provisions dealing with costs to be paid by criminal defendants.  See, e.g., Tex. Alco. Bev. Code Ann. § 106.12 (Vernon 2007); Tex. Bus. & Com. Code Ann. § 3.506 (Vernon Supp. 2009); Tex. Bus. Org. Code Ann. § 10.365 (Vernon Pamph. Supp. 2009); Tex. Code Crim. Proc. Ann. arts. 17.42, 17.43, 17.441, 37.073, 42.037, 42.12, 42.22, 45.0216, 45.026, 45.041, 45.051, 45.055, 45.0511(c-1), 45.0511(f)(1 - 2), 45.052, 45.203, 62.353, 102.001 - 102.072, 103.0031 (Vernon 2006 & Supp. 2009); Tex. Edu. Code Ann. §37.011 (Vernon Supp. 2009); Tex. Fam. Code Ann. §§ 8.262, 8.267, 8.302, 8.303, 45.106, 53.03, 54.032, 54.0411, 54.0461, 54.0462, 54.061, 81.003, 108.006, 110.002, 110.004, 110.005, 158.319, 158.403, 158.503, 160.762, 232.013 (Vernon 2006, 2008 & Supp. 2009); Tex. Gov't Code Ann. §§ 25.0593, 25.0594, 25.1572, 25.2223, 30.00014, 30.00147, 41.258, 51.601,  51.702 - 51,703, 54.313, 54.403,54.745, 54.663, 54.913, 54.983, 54.954, 54.1116, 76.015, 82.0361, 102.001 - 103.033, 411.081 (Vernon 2005 & Supp. 2009); Tex. Health & Safety Code Ann. §§ 161.255, 469.004, 821.023 (Vernon 2010); Tex. Hum. Res. Code Ann. § 152.0522 (Vernon 2001); Tex. Local Gov't Code Ann. §§ 118.131, 132.002, 132.003, 133.101 - 133.154, 191.007 (Vernon 2008 & Supp. 2009); Tex. Parks and Wildlife Code Ann. §§ 12.110, 12.308 (Vernon Supp. 2009); Tex. Transp. Code Ann. §§ 284.2031, 521.026, 521.048, 542.403, 542.407, 545.412, 548.605, 601.263, 706.006 (Vernon 1999, 2007 & Supp. 2009) (not intended as an exhaustive list).  We encourage court clerks to draft their bills of costs in a manner that would allow a reviewing court to determine the legal authority upon which a particular fee is based.  Furthermore, as pointed out by the concurring opinion of Justice Campbell, as it currently exists, article 102.002 does not provide for the assessment of any fees. Accordingly, we encourage the Legislature to consider clarification of this article in particular and the entire court costs scheme in general.

[12]See Act of May 17, 1985, 69^th Leg., R.S., ch. 269 § 1, 1985 Tex. Gen. Laws 1300, 1302.

n:yes'>  He responded Ayes@ when his counsel asked on direct examination if he experienced Aany lack of sleep.@ He sought no medical treatment for mental anguish.

On a legal sufficiency review of mental anguish damages, the Supreme Court of Texas has allowed the recovery of such damages if the plaintiff provides direct evidence of the nature, duration, and severity of his anguish establishing a substantial disruption in his daily routine, or other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment or anger.  Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); see Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 860-61 (Tex. 1999) (plaintiff=s testimony of Aa constant mental sensation of pain or rude awakening,@ Asevere disappointment,@ and public humiliation was legally insufficient to establish mental anguish).  ASimply because a plaintiff says he or she suffered mental anguish does not constitute evidence of the nature, duration, and severity of any mental anguish that is sufficient to show a substantial disruption of one's daily routine.@  Gunn Infiniti, Inc., 996 S.W.2d at 861. Conclusory statements are not sufficient to prove mental anguish.  See id.; EMC Mortg. Corp. v. Jones, 252 S.W.3d 857, 872 (Tex.App.BDallas 2008) (only evidence of wife=s past mental anguish consisting of husband=s testimony A>I think [the situation has affected her] in much the same way . . . I know it=s taking a toll on her too,=@ was legally insufficient).

Dyab felt Ashocked@ by his arrest and confinement and concluded he felt distress and anguish and was upset and concerned.  He lost an unspecified amount of sleep.  While these emotions are understandable in light of the record before us, they are no evidence of a substantial disruption in the daily routine of Dyab or that he suffered a high degree of mental pain and distress that exceeded mere worry, anxiety, vexation, embarrassment or anger.  See Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996); Parkway Co., 901 S.W.2d at 445 (plaintiffs= testimony they were Aupset@ and angry and experienced Asome friction@ in their relationship over flooding of their home did not support mental anguish damages).  Finding no evidence of compensable mental anguish damages we do not reach Alsheikh=s claim that the evidence of such damages was factually insufficient.  We sustain Alsheikh=s first issue.

The trial court awarded Dyab attorney=s fees for trial and conditional appellate fees as a sanction under Rule 13^[4] and Chapter 10.^[5]  By his fifth and sixth issues Alsheikh challenges this award. 

We look first to Alsheikh=s complaint under Rule 13.  He contends the trial court abused its discretion in awarding Dyab attorney=s fees because the supporting evidence was legally and factually insufficient to establish sanctionable conduct. On appeal, he also argues the trial court failed to make proper Agood cause@ findings in the sanction order, as required by Rule 13.  However, he does not direct us to, and we do not find, a record indication that he presented the complaint to the trial court. Accordingly, its consideration is not preserved for our review.  Tex. R. App. P. 33.1(a)(1),(2); Spiller v. Spiller, 21 S.W.3d 451, 456 (Tex. App.BSan Antonio 2000, no pet.) (failure of trial court to include required findings supporting sanctions under Rule 13 and Chapter 10 could not form basis for reversal as plaintiff did not call omission to attention of trial court). 

We apply an abuse of discretion standard in reviewing an order imposing sanctions.  Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004).  Under this standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are relevant factors for determining whether the trial court abused its discretion.  Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).  Our review of a sanctions order is not limited to a trial court=s findings of fact and conclusions of law; rather, we must independently review the entire record to determine whether the trial court abused its discretion.  Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiam).

In pertinent part Rule 13 provides:

The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion, or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment . . . . If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215-2b, upon the person who signed it, a represented party, or both. Courts shall presume that pleadings, motions, and other papers are filed in good faith. No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order.  AGroundless@ for purposes of this rule means no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.

To determine if a pleading is groundless, the trial court employs an objective analysis:  that is, did the party and counsel make a reasonable inquiry into the legal and factual basis of the claim?  In re United Servs. Auto Ass'n, 76 S.W.3d 112, 115 (Tex.App.BSan Antonio 2002, orig. proceeding).  In so doing, the court looks to the facts available to the litigant and the circumstances at the time the suit was filed.  Id. 

The imposition of Rule 13 sanctions against parties filing frivolous claims accomplishes the dual function of deterring similar conduct in the future and compensating the aggrieved party by reimbursing the costs incurred in responding to baseless pleadings.  Scott & White Mem'l Hosp. v. Schexnider, 940 S.W.2d 594, 596-597 (Tex. 1996).  If the trial court finds a pleading is groundless and brought in bad faith or groundless and brought for the purpose of harassment, it shall impose an appropriate sanction available under Rule 215(2)(b).  See Tex. R. Civ. P. 13 and 215(2)(b).  The trial court possesses authority under Rule 215(2)(b) to Amake such orders . . . as are just.@ See Tex. R. Civ. P. 215(2)(b).  One sanction available to a trial court under the rule is an award of Areasonable expenses, including attorney fees.@ Tex. R. Civ. P. 215(2)(b)(8).

The trial court, as trier of fact, heard two versions of the events of August 27.  It favored the evidence of Dyab.  Material to this discussion, it believed Alsheikh was aware of Dyab=s innocence of the alleged robbery but nevertheless filed a petition alleging causes of action predicated on his guilt.  In the judgment, the court stated:

Further, Plaintiff=s Original Petition and Application for Temporary Restraining Order and Permanent Injunction is a frivolous pleading. The pleading is groundless and brought in bad faith and/or is groundless and brought for the purpose of harassment. [Alsheikh=s] allegations and/or other factual contentions lack evidentiary support.  These actions on the party (sic) of [Alsheikh] are sanctionable under Rule 13 of the Texas Rules of Civil Procedure.

(italics in original).

As trier of fact the trial court was the sole judge of the credibility of the witnesses and the weight given their testimony.  City of Keller, 168 S.W.3d at 819.  We will not disturb that determination so long as the evidence falls within the zone of reasonable disagreement.  Id. at 822.  We conclude the trial court did not abuse its discretion in rendering judgment that Alsheikh filed a pleading in violation of Rule 13.  We overrule Alsheikh=s fifth issue.

Because we find the trial court did not abuse its discretion in imposing a sanction under Rule 13, it is not necessary for us to consider whether the conduct of Alsheikh also violated Chapter 10 and warranted the same sanction. 

In his fourth issue, Alsheikh complains that the trial court erred by failing to file findings of fact and conclusions of law despite his timely request and notice of past due findings.  Some three weeks after Alsheikh filed his brief with this court a supplemental clerk=s record containing signed findings of fact and conclusions of law was filed.  It appears the findings were signed by the trial court seven days after Alsheikh filed his brief in this court.  Alsheikh does not explain how the absence of findings hindered his presentation in this court nor did he seek abatement for preparation of findings.  His issues on appeal challenge the legal and factual sufficiency of evidence supporting Dyab=s theories of abuse of process, false imprisonment, and malicious prosecution. He also challenges the sufficiency of evidence supporting the award of mental anguish damages.  Because a complete reporter=s record is before us, Alsheikh was free to and has challenged the implied finding of at least one essential element of Dyab=s theories of recovery and damages.  See Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980) (in the absence of findings of fact and conclusions of law it is implied that the trial court made all findings necessary to support its judgment but these implied findings may be challenged on legal and factual sufficiency grounds on appeal the same as jury findings and findings of fact). Even assuming arguendo the trial court erred by not filing its findings sooner, the error was harmless since Alsheikh was able to assert legal and factual sufficiency challenges.  We overrule Alsheikh=s fourth issue.

Conclusion

We reverse the portions of the trial court’s judgment finding Alsheikh committed abuse of process, awarding Dyab mental anguish damages, and awarding Dyab an amount of pre-judgment interest on those damages.  We render judgment that Dyab take nothing on his claim for abuse of process and his claim for mental anguish damages.  We remand the case to the trial court for calculation of pre-judgment interest consistent with this opinion.  In all other respects, we affirm the trial court’s judgment.

                                                                                                James T. Campbell                                                                                                                                     Justice

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^[1]  Several of Alsheikh’s issues contain sub-issues and one merges two issues.  For clarity, we will state each issue in conjunction with our discussion.

^[2]  In the judgment the trial court found Alsheikh committed malicious prosecution and abuse of process. These actions, it further found, were “the proximate cause of damages” to Dyab “including, but not limited to damages for personal injury and attorney’s fees incurred in connection with defending himself in the criminal proceedings brought against him.”

^[3]  The necessary state of mind of an actor is an intent to interfere with another=s freedom of movement.  See Newton v. Rhoads Bros., 24 S.W.2d 378, 379 (Tex. Comm’n App. 1930, holding approved). Unlike malicious prosecution, false imprisonment does not require proof of probable cause and malice.  4 J. Hadley Edgar, Jr. & James B. Sales, Texas Torts and Remedies ' 51.01[2] (2008).

^[4]  Tex. R. App. P. 13.

^[5]  Tex. Civ. Prac. & Rem. Code Ann. '' 10.001-10.005 (Vernon 2002).