Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00611-CV
David Allan EDWARDS,
Appellant
v.
District Attorney of
DISTRICT ATTORNEY OF ATASCOSA COUNTY, TEXAS,
Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 12-02-0185-CVA
Honorable Thomas F. Lee, Judge Presiding
Opinion by: Rebeca C. Martinez, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: July 22, 2015
AFFIRMED
David Allan Edwards appeals the trial court’s summary judgment granted in favor of the
District Attorney of Atascosa County, Texas on the ground of limitations. We overrule Edwards’
issues and affirm the trial court’s judgment.
BACKGROUND
In 2012, Edwards, an inmate in the Ellis Unit of the Texas Department of Criminal Justice,
Institutional Division, filed a civil lawsuit against the Atascosa County District Attorney, the
Atascosa County Sheriff, the Judge of the 81st/218th Judicial District Court of Atascosa County,
04-14-00611-CV
Dr. Gerald B. Phillips, the physician at the Atascosa County Jail, and the County of Atascosa
asserting due course of law violations stemming from his pre-trial confinement in the county jail
and his aggravated robbery trial held in 2000. Specifically, with regard to the District Attorney,
Edwards asserted that a false document and perjured testimony concerning fictitious extraneous
offenses were presented during the punishment phase of his criminal trial. The District Attorney
filed a general denial and an amended answer asserting that Edwards’ cause of action was barred
by the applicable four-year statute of limitations and by governmental and sovereign immunity.
The civil lawsuit was briefly removed to federal court. Upon remand to the state court, Edwards
filed a “Motion for No-Answer Default And/Or Summary Default Judgment and No-Evidence
Motion for Summary Judgment” based on the defendants’ failure to file new answers after the
reinstatement in state court and their failure to answer his discovery. The defendants filed their
own motions to dismiss and/or motions for summary judgment which were all granted. The trial
court severed each defendant from the rest of the case, thereby making each judgment final and
appealable. The instant appeal involves only Edwards’ action against the District Attorney.
On appeal, Edwards complains that the trial court failed to file findings of fact and
conclusions of law after he timely requested them, failed to rule on his motion for default/summary
judgment and his motion for new trial, prevented him from presenting testimony at the summary
judgment hearing, and erred in granting summary judgment for the District Attorney. 1
ANALYSIS
Edwards first argues the trial court violated its mandatory duty to file written findings of
fact and conclusions of law after he requested them. The record confirms that Edwards timely
requested findings of fact and conclusions of law, and filed notices of past due findings. See TEX.
1
We need not address Edwards’ issue based on the absence of a reporter’s record of the summary judgment hearing
because a record was in fact made of the hearing and has been filed as part of the appellate record.
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R. CIV. P. 296, 297. However, findings of fact and conclusions of law are not appropriate in the
context of a summary judgment proceeding in which judgment is rendered as a matter of law based
on the legal grounds stated in the motion and response and there can be no material fact issues.
TEX. R. CIV. P. 166a(c); IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex.
1997) (“The trial court should not make, and an appellate court cannot consider, findings of fact
in connection with a summary judgment.”).
Edwards next contends the trial court erred by failing to rule on his motion for
default/summary judgment and his motion for new trial. The record contains a transcript of the
May 9, 2014 hearing during which the trial court explicitly stated it was considering Edwards’
default/summary judgment motion and the District Attorney’s motion for summary judgment. At
the conclusion of the hearing, the trial court orally ruled on both motions, overruling Edwards’
motion and granting the District Attorney’s motion for summary judgment on limitations. The
record also contains a written order signed on June 11, 2014 overruling Edwards’ motion.
Therefore, the record refutes Edwards’ assertion that the court failed to rule on his
default/summary judgment motion. As to Edwards’ complaint that the trial court failed to rule on
his motion for new trial, the court is not required to do so. Rule 329b contemplates situations in
which the court does not rule on a motion for new trial and provides that in such situations the
motion is “overruled by operation of law” seventy-five days after the judgment was signed. TEX.
R. CIV. P. 329b(c). Further, there is nothing in the record to indicate Edwards ever requested that
a hearing date be set on his motion for new trial.
Edwards also asserts the trial court deprived him of due process at the summary judgment
hearing because it did not allow him to present witness testimony about the purportedly false
extraneous offense report used at his criminal trial. A court’s decision whether to grant or deny a
summary judgment motion is based on the written motion and any responses, along with
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supporting affidavits and other documentary evidence. TEX. R. CIV. P. 166a(c); see Jack B. Anglin
Co. v. Tipps, 842 S.W.2d 266, 269 (Tex. 1992). The summary judgment rule expressly states,
“[n]o oral testimony shall be received at the hearing.” TEX. R. CIV. P. 166a(c); Tipps, 842 S.W.2d
at 269 n.4. We may not consider the documents attached to Edwards’ brief that were not filed in
the trial court and are therefore not part of the appellate record. TEX. R. APP. P. 34.1; Fox v.
Alberto, 455 S.W.3d 659, 668 n.5 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
Finally, Edwards argues the trial court erred in granting the District Attorney’s summary
judgment motion. We review a trial court’s grant of summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2006). A defendant seeking summary
judgment based on an affirmative defense such as limitations must prove each element of the
defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Once the defendant
establishes its right to summary judgment on the affirmative defense, the burden shifts to the non-
movant to present competent summary judgment evidence raising a genuine issue of material fact
precluding summary judgment. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996);
see TEX. R. CIV. P. 166a(c); see also Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.
1985) (movant must prove there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law on the issues expressly set out in the motion). When reviewing a
summary judgment, we take as true all evidence favorable to the non-movant, indulging every
reasonable inference and resolving any doubts in the non-movant’s favor. Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).
Here, the District Attorney’s summary judgment motion alleged one ground—that
Edwards’ due course of law claim accrued at the time of his confinement in the county jail and
trial in 2000 but was not filed until 2012, and thus was barred by the applicable four-year statute
of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.051 (West 2015) (residual four-year
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limitations period applies to causes of action without a statutory limitations period); see also Ho
v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 686-87 (Tex. App.—Amarillo 1998, pet. denied)
(applying residual four-year statute of limitations to due course of law claim seeking injunctive
relief). The trial court agreed and granted summary judgment on the basis of limitations. On
appeal, Edwards argues that his claim is not barred by limitations because the limitations period
“does not apply” due to fraudulent concealment.
Unless otherwise provided by statute, a cause of action accrues and the applicable statute
of limitations begins to run when “facts come into existence that authorize a claimant to seek a
judicial remedy.” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex. 2011); see
S.V. v. R.V., 933 S.W.2d 1, 3 (Tex. 1996) (purpose of a limitations period is to “establish a point
of repose and to terminate stale claims”). A cause of action accrues when a legal injury is caused
by a wrongful act, “even if the fact of injury is not discovered until later, and even if all resulting
damages have not yet occurred.” Valdez v. Hollenbeck, No. 13-0709, 2015 WL 3640887, at *9
(Tex. June 12, 2015); Trinity River Auth. v. URS Consultants, Inc., 889 S.W.2d 259, 262 (Tex.
1994). The running of a limitations period may be tolled by fraudulent concealment, as well as by
the discovery rule. Hollenbeck, 2015 WL 3640887, at *9 (noting the discovery rule applies
categorically to injuries which are both inherently undiscoverable and objectively verifiable).
“[F]raudulent concealment is a fact-specific equitable doctrine that tolls limitations until the fraud
is discovered or could have been discovered with reasonable diligence.” Id. (citing Shell Oil Co.
v. Ross, 356 S.W.3d 924, 927, 929-30 (Tex. 2011)). For the doctrine to apply, a defendant must
have concealed the existence of a cause of action from a party to whom it owed a duty of disclosure.
Id. “The estoppel effect of fraudulent concealment ends when a party learns of facts, conditions,
or circumstances which would cause a reasonably prudent person to make inquiry, which, if
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pursued, would lead to the discovery of the concealed cause of action.” Id. (quoting Borderlon v.
Peck, 661 S.W.2d 907, 909 (Tex. 1983)).
In support of his fraudulent concealment argument, Edwards asserts that he was over-
medicated while he was in the custody of the Atascosa County Sherriff, with the compliance of
the District Attorney, and thus was not fully aware of the facts surrounding the prosecutor’s actions
in using “fictitious extraneous offenses” during his criminal trial in 2000. 2 See Edwards v. Phillips,
No. 04-13-00725-CV, 2015 WL 1938873, at *1 (Tex. App.—San Antonio Apr. 29, 2015, no pet.)
(mem. op.) (detailing Edwards’ allegations concerning the drugs he received and their effect). In
his due course of law petition filed on February 28, 2012, Edwards’ complaint against the Atascosa
District Attorney is limited to its use of allegedly fictitious extraneous offenses at his trial, and its
presentation of testimony related to such extraneous offenses during the punishment phase. In the
petition itself and at the summary judgment hearing, Edwards conceded his basic knowledge of
the allegedly false nature of the extraneous offense evidence at the time of his trial in 2000.
Edwards points out that he repeatedly objected during trial to the purportedly fabricated extraneous
offense evidence, as well as complaining about his medications. It is therefore apparent that
Edwards was aware at the time of his criminal trial of the allegedly false nature of the extraneous
offense evidence used by the District Attorney, and thus had knowledge of the “facts, conditions,
or circumstances” underlying his due course of law complaint against the District Attorney in
2000, and yet waited until 2012 to file his current petition. See Hollenbeck, 2015 WL 3640887, at
*9. Further, Edwards has not met his non-movant’s burden to present summary judgment evidence
sufficient to raise a fact issue that any fraud was committed by the District Attorney to conceal the
existence of Edwards’ due course of law claim. See id.; see also Ryland, 924 S.W.2d at 121. We
2
Edwards asserts that, in addition to using the false extraneous offense evidence during punishment, the District
Attorney also used the false evidence to coerce him into pleading guilty.
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thus conclude the trial court did not err in finding that Edwards’ due course of law claim is barred
by the four-year limitations period provided by section 16.051.
Based on the foregoing reasons, we overrule Edwards’ issues on appeal and affirm the trial
court’s judgment in favor of the District Attorney of Atascosa County.
Rebeca C. Martinez, Justice
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