In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00001-CV ______________________________
BILLY WAYNE HORTON, Appellant
V.
RODNEY COOPER, ET AL., Appellees
On Appeal from the 102nd Judicial District Court Bowie County, Texas Trial Court No. 00C1661-102
Before Grant, Ross, and Cornelius,* JJ. Opinion by Justice Ross *William J. Cornelius, C.J., Retired, Sitting by Assignment
O P I N I O N
Billy Horton appeals from the dismissal of his suit against the Texas Department of Criminal Justice-Institutional Division (TDCJ), Rodney Cooper, John Doe, and Gary Johnson. Horton, an inmate, alleged violations of the Texas Deceptive Trade Practices Act (DTPA) and breach of contract against the TDCJ, Cooper, Doe, and Johnson. Horton attached to his petition an affidavit documenting his previous lawsuits in Texas or federal courts, an affidavit documenting his compliance with the TDCJ grievance procedures, and a motion to waive the filing fee. After reviewing the master's report and Horton's objections to the report, the trial court adopted the master's report as filed and dismissed Horton's suit before service of process. The court's stated reasons for dismissal were that the lawsuit was frivolous and without likelihood of success. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon Supp. 2002).
Horton only appeals the dismissal as it applies to Cooper, Doe, and Johnson. With regard to the dismissal against the TDCJ, Horton requests that this Court dismiss without prejudice because he contends he still has claims against the TDCJ under the Texas Tort Claims Act. However, the trial court did not dismiss Horton's lawsuit with prejudice, so we need not address that issue. See P.R.I.D.E. v. Tex. Workers' Comp. Comm'n, 950 S.W.2d 175, 177 (Tex. App.-Austin 1997, no writ); Melton v. Ryander, 727 S.W.2d 299, 303 (Tex. App.-Dallas 1987, writ ref'd n.r.e.); Collins v. Flatte, 614 S.W.2d 580, 582 (Tex. Civ. App.-Texarkana 1981, no writ).
We review a dismissal under Chapter 14 of the Texas Civil Practice and Remedies Code using an abuse of discretion standard. Smith v. Tex. Dep't of Criminal Justice-Institutional Div., 33 S.W.3d 338, 339 (Tex. App.-Texarkana 2000, pet. denied); Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.-Waco 1996, no writ). The trial court abuses its discretion if it acts without reference to any guiding rules or principles.
Section 14.003 allows a trial court to dismiss a suit filed by an indigent inmate, either before or after service of process, if the court finds the claim is frivolous or malicious. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2). In determining whether the claim is frivolous or malicious, the court may consider whether (1) the claim's realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or fact; (3) it is clear the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(b).
The Texas Supreme Court has expressed doubt about whether a trial court can properly dismiss a suit only because the claim's realistic chance of ultimate success is slight or because it is clear the party cannot prove facts in support of the claim. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990). Practically speaking, therefore, the trial court is limited to determining whether the claim has an arguable basis in law or fact. Bohannan v. Tex. Bd. of Criminal Justice, 942 S.W.2d 113, 115 (Tex. App.-Austin 1997, writ denied). When the trial court dismisses a claim without conducting a fact hearing, we are limited to reviewing whether the claim had an arguable basis in law. Sawyer v. Tex. Dep't of Criminal Justice, 983 S.W.2d 310, 311 (Tex. App.-Houston [1st Dist.] 1998, pet. denied); Leon Springs Gas Co. v. Rest. Equip. Leasing Co., 961 S.W.2d 574, 579 (Tex. App.-San Antonio 1997, no pet.); Bohannan, 942 S.W.2d at 115; In re Wilson, 932 S.W.2d 263, 265 (Tex. App.-El Paso 1996, no writ).
Because the trial judge did not hold a hearing, his basis for determining that Horton's causes of action were frivolous or malicious could not have been because he found they had no arguable basis in fact. Therefore, the issue is whether the trial court properly determined there was no arguable basis in law for the suit. Bohannan, 942 S.W.2d at 115. We are to review and evaluate pleadings filed pro se by standards less stringent than those applied to formal pleadings drafted by lawyers. Thomas v. Collins, 860 S.W.2d 500, 503 (Tex. App.-Houston [1st Dist.] 1993, writ denied).
To determine whether the trial court properly decided there was no arguable basis in law for Horton's suit, we examine the types of relief and causes of action Horton pled in his petition to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App.-Houston [1st Dist.] 1998, no pet.).
Horton filed suit alleging violations of the DTPA and breach of contract concerning a word processor he purchased from the prison unit commissary for inmates. When Horton purchased the word processor in 1994, the rules allowed him to have repairs made to the word processor by sending it to the commissary headquarters. In 1998, Horton was transferred to the Telford Unit and was allowed to keep his word processor. In January 2000, the word processor broke. When Horton sought to have it fixed, he was told the rules had changed: repairs through the TDCJ were no longer authorized. Horton was told he would have to mail the word processor to relatives or it would be destroyed.
A special master filed a report stating that governmental agencies are not subject to the provisions of the DTPA and recommending that all allegations relating to the DTPA be dismissed. He also recommended dismissing the allegation of breach of contract because rules and regulations are not contracts, they are unilateral; there is no offer and acceptance, and no meeting of the minds. The trial court adopted the master's recommendations and findings, and dismissed the lawsuit as frivolous and without likelihood of success.
Horton appeals the dismissal, contending the trial court erred in dismissing his suit against Cooper, the warden, Doe, the regional director, and Johnson, the director of the TDCJ. Horton contends the trial court erred in dismissing the case against Cooper, Doe, and Johnson because he sued them individually, and the master's report only states that the TDCJ is immune from suit under the DTPA.
To have no arguable basis in law, a claim must be based on "an indisputably meritless legal theory," Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989), or the facts alleged must rise to the level of the irrational or wholly incredible, Denton v. Hernandez, 504 U.S. 25, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992). "An in forma pauperis complaint may not be dismissed, however, simply because the court finds the plaintiff's allegations unlikely." Denton, 504 U.S. at 33. Therefore, for the claim to have no basis in law, the facts as pleaded must not comprise a cause of action.
The elements of a DTPA claim are (1) the plaintiff is a consumer, a person who seeks or acquires goods or services by purchase or lease, (2) the defendant engaged in false, misleading, or deceptive acts, and (3) the act constituted a producing cause of the consumer's damages. Tex. Bus. & Com. Code Ann. §§ 17.45(4), 17.50(a) (Vernon Supp. 2002); Larsen v. Carlene Langford & Assocs., 41 S.W.3d 245, 250 (Tex. App.-Waco 2001, pet. denied). While there is no requirement of privity, the defendant's wrongful conduct must be committed in connection with the consumer's transaction, must constitute a producing cause of economic damages or damages for mental anguish, and must fall under Section 17.50 of the DTPA. See Tex. Bus. & Com. Code Ann. § 17.50 (Vernon Supp. 2002). Where a plaintiff relies on Section 17.50(a)(1), the plaintiff must also prove the consumer relied on the defendant's wrongful conduct to the consumer's detriment. Id. Horton's claim of misrepresentation must allege Cooper, Doe, and Johnson represented that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law. Tex. Bus. & Com. Code Ann. § 17.46(b)(12) (Vernon Supp. 2002). General or indefinite statements may support recovery under the DTPA. See Humble Nat'l Bank v. DCV, Inc., 933 S.W.2d 224, 230 (Tex. App.-Houston [14th Dist.] 1996, writ denied).
Horton's petition wholly fails to assert any allegations against Doe or Johnson. He does not state what actions or misrepresentations they made. Although Doe and Johnson are listed in the style of the case and as parties, there is no further mention of them beyond this point. There is no indication as to what their conduct or involvement in Horton's attempt to repair his word processor may have been. Because Horton failed to allege the necessary elements to state a claim against Doe and Johnson under the DTPA, the trial court did not err in dismissing his claim as to Doe and Johnson, regardless of the capacity in which they were sued.
Horton's petition does allege actions by Cooper. He specifically states,
Warden Rodney Cooper, an agent of the TDCJ-ID had denied Plaintiff's Step 1 Grievance where Plaintiff requested that he be allowed to have his word processor repaired. This was denied. Plaintiff also had submitted several personal requests to Warden Cooper to have the word processor repaired, but received no response.
In his petition, Horton also said he "has seen this posted rule which states that word processors would no longer be allowed to be fixed." Horton does not contend Cooper was involved in any way in the transaction whereby he acquired the word processor. He purchased the word processor in 1994 while at a different facility. Horton failed to allege Cooper made any "[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce . . . ." Tex. Bus. & Com. Code Ann. § 17.46(a) (Vernon Supp. 2002).
There is no indication in Horton's pleadings that Cooper engaged in false, misleading, or deceptive acts. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995). Those pleadings reveal that Horton was aware of the rule change prohibiting the repair of word processors. Because Horton failed to allege the necessary elements to state a claim against Cooper under the DTPA, the trial court did not err in dismissing Horton's claim against him.
Horton's second point of error contends the trial court erred in dismissing his claim of breach of contract against Cooper, Doe, and Johnson. The elements of a breach of contract claim are: 1) existence of a valid contract; 2) performance or tendered performance by the plaintiff; 3) breach of the contract by the defendant; and 4) damages to the plaintiff resulting from the breach. Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex. App.-Houston [1st Dist.] 1997, no writ).
Horton failed to allege the existence of a contract between him and Cooper, Doe, or Johnson. Without the existence of a contract, a breach of contract action cannot be maintained. Because Horton failed to allege the necessary elements to state a claim for breach of contract, the trial court did not err in dismissing this claim.
We affirm the judgment of the trial court.
Donald R. Ross
Justice
Date Submitted: March 26, 2002
Date Decided: June 12, 2002
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ine-height: 0.416667in"> We agree with the State that no variance exists. While the statute distinguishes between controlled substances and controlled substance analogues, the plain language of the statute is sufficiently broad to include, within the definition of a controlled substance analogue, the relevant controlled substance. Obviously, a substance which is actually methamphetamine would have a chemical structure "substantially similar" to methamphetamine. Indeed, the structures would be identical. We do not believe the phrase "substantially similar" excludes a controlled substance from fitting within the definition of its analogue.
Even if a variance exists, the variance would be immaterial. "[A] variance that is not prejudicial to a defendant's 'substantial rights' is immaterial." Gollihar, 46 S.W.3d at 247–48; see Stevens v. State, 891 S.W.2d 649, 650 (Tex. Crim. App. 1995); see also Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998). And only a material variance will render the evidence insufficient. Fuller, 73 S.W.3d at 253.
To determine whether a defendant's "substantial rights" have been prejudiced, we must consider two questions: whether the indictment, as written, informed the defendant of the charge sufficiently to allow him or her to prepare an adequate defense at trial, and whether prosecution under the indictment as drafted would subject the defendant to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 248. Baker's contention in this connection is simply that there is a variance; he makes no claim or showing of how the alleged variance prejudiced him. Because Baker has failed to show his substantial rights were prejudiced, the variance, if any, is immaterial.
Viewed in a light most favorable to the prosecution, a rational juror could have found all the essential elements of the offense beyond a reasonable doubt. In a statement given to the investigating officers, Teresa Baker, Baker's wife, alleged that her husband had been "cooking" methamphetamine once or twice a week for approximately one year. In addition, Baker admitted, in his statement to the police, that he was in the process of "cooking" methamphetamine when arrested by the police. Seven different items seized from Baker's home contained methamphetamine in an amount greater than four grams but less than 200 grams. The evidence is legally sufficient. We overrule Baker's first point of error.
(2) The Search Warrant Adequately Incorporated the Accompanying Affidavit
At the time the search warrant was executed, the affidavit was not attached to the search warrant; and officers served on Baker only the warrant and the inventory of seized items. Baker argues the search warrant is insufficient because it fails to specifically describe the person, place, or thing to be searched. Although the supporting affidavit contains specific descriptions of the person, place, and items sought, Baker contends the affidavit was not properly incorporated into the warrant. According to Baker, the search therefore violated the United States and Texas Constitutions; see U.S. Const. amend. IV; Tex. Const. art. I, § 9; and the trial court erred in overruling his motion to suppress the fruit of the search. We disagree.
A trial court's decision to grant or deny a motion to suppress is reviewed under an abuse of discretion standard. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). We afford almost total deference to a trial court's determination of the historical facts supported by the record, especially when the trial court's findings are based on an evaluation of credibility and demeanor. Id. At a suppression hearing, the trial court is the exclusive trier of fact and judge of the credibility of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We review de novo those questions not turning on credibility and demeanor. Hernandez v. State, 957 S.W.2d 851 (Tex. Crim. App. 1998).
Based on various information sources not at issue here, Lisa Ahrens, a narcotics investigator for the Ark-La-Tex Narcotics Task Force, presented to a judge a detailed affidavit supporting her request for a warrant to search Baker's residence, accompanied by a proposed search warrant. After Ahrens swore that all the facts in the affidavit were true and signed the affidavit, the trial judge executed the verification form on the affidavit and signed the warrant. At that time, the affidavit was attached to the search warrant. In executing the search warrant, the police discovered numerous items suspected of containing methamphetamine, as well as chemicals and equipment commonly used to manufacture methamphetamine.
Baker cites Groh v. Ramirez, 540 U.S. 551 (2004), as support for the proposition the search warrant is inadequate. In Groh, the search warrant did not describe the property to be seized or incorporate the detailed affidavit by reference. However, Groh noted "most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation and if the supporting document accompanies the warrant." Id. at 557–58. It is a well-established rule in Texas that, when a search warrant incorporates an attached affidavit, the documents should be considered together. Long v. State, 132 S.W.3d 443, 447 n.11 (Tex. Crim. App. 2004). Groh is clearly distinguishable from the facts of this case because the warrant in this case explicitly incorporates the affidavit by reference.
Baker argues the language in the search warrant is so vague that no reasonable person would have notice of what affidavit is being incorporated. We disagree. The warrant refers to an "attached affidavit" and states the "said Affidavit is hereby made part hereof for all purposes as if fully copied herein." Ahrens testified the affidavit was attached to the warrant at the time it was presented to the judge, and both the warrant and the affidavit bear the judge's signature and the same date. While the language of the warrant may not be ideal in referring to the affidavit, it is sufficient to incorporate the affidavit. The description contained in an affidavit controls over the description contained in the warrant. Ashcraft, 934 S.W.2d at 735. Because the affidavit is incorporated, the warrant is adequate.
We note the evidence at trial showed the affidavit was no longer attached to the search warrant when the search warrant was served on Baker. Even if the failure to provide the affidavit to Baker violates the Texas Code of Criminal Procedure, ministerial violations of the search warrant statutes do not vitiate the search warrant in the absence of a showing of prejudice. Id. (failure to physically attach affidavit does not invalidate search absent prejudice or harm); Turner v. State, 886 S.W.2d 859, 865 (Tex. App.—Beaumont 1994, pet. ref'd) (absent evidence of harm, failure to serve probable cause affidavit does not require suppression of evidence); see Roberts v. State, 963 S.W.2d 894, 903 (Tex. App.—Texarkana 1998, no pet.). Baker has failed to show he was prejudiced because the affidavit was not attached to the warrant when served.
Because the warrant adequately incorporates the affidavit, and because Baker has not shown he was prejudiced by the failure to serve a copy of the affidavit on him, we overrule Baker's second point of error.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 1, 2006
Date Decided: August 23, 2006
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