In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00042-CV ______________________________
TEXAS CAPITAL SECURITIES, INCORPORATED, ET AL., Appellants
V.
J. D. SANDEFER, III, AND STEPHEN F. SMITH, Appellees
On Appeal from the 280th Judicial District Court Harris County, Texas Trial Court No. 97-62171
Before Morriss, C.J., Ross and Cornelius,* JJ. Opinion by Justice Cornelius
____________________________________
*William J. Cornelius, Chief Justice, Retired, Sitting by Assignment
O P I N I O N
Texas Capital Securities, Incorporated, et al., (hereafter Texas Capital), appeals the trial court's denial of its motion to deem a liability judgment satisfied. The issue presented is whether a joint tortfeasor is entitled to a credit for the amount of a postjudgment, bankruptcy court settlement between the plaintiff and a codefendant. Texas Capital asked the trial court to reduce the liability award against it by the amount of the bankruptcy settlement between the plaintiffs and one of Texas Capital's co-defendants in the underlying cause of action. The trial court refused.
We initially reversed the trial court's judgment and remanded the case for further proceedings. See Tex. Capital Sec., Inc. v. Sandefer, No. 06-02-00042-CV, 2003 Tex. App. LEXIS 2513 (Texarkana Mar. 26, 2003, no pet. h.). Texas Capital has filed a motion for rehearing in which it asks us to render judgment rather than remanding the case for further consideration by the trial court. We grant the motion for rehearing, withdraw our opinion dated March 26, 2003, and, for the reasons set forth below, we reverse the trial court's judgment and render judgment for Texas Capital as set out herein.
J. D. Sandefer, III, and Stephen F. Smith (collectively referred to as Sandefer) bought stock in Titan Resources, Inc., at the urging of Stephen Johnson, a stockbroker for Texas Capital. The price of the Titan stock eventually plummeted, and Sandefer sued Titan, Texas Capital, Johnson, and Butch Ballow (a stock promoter who worked with Johnson to sell the stock) for common-law and statutory fraud. Sandefer's petition alleged the defendants knowingly and recklessly made false and material representations intended to persuade Sandefer to buy the stock. Sandefer further alleged that the defendants violated the Texas Securities Act. Defendants Johnson and Titan settled out of the suit before trial. Tex. Capital Sec., Inc. v. Sandefer, 58 S.W.3d 760, 767-68 (Tex. App.-Houston [1st Dist.] 2001), modified by No. 01-99-01238-CV, 2001 Tex. App. LEXIS 5004 (Houston [1st Dist.] July 26, 2001, pet. denied) (op. on reh'g).
At trial, the jury ruled against the remaining defendants, finding Texas Capital and Ballow had defrauded Sandefer. Tex. Capital Sec., Inc. v. Sandefer, 58 S.W.3d at 768. The jury held all four defendants jointly and severally liable for the amount of Sandefer's stock purchases totaling $359,063.25. Id. The jury also found Texas Capital solely liable for $61,000.00 in attorney's fees and $77,287.01 in prejudgment interest. Additionally, Ballow was found solely liable for $8,000,000.00 in punitive damages, plus postjudgment interest. The First Court of Appeals affirmed the judgment on direct appeal. Id. at 780.
Almost two years after the securities fraud judgment, Ballow settled his obligations to Sandefer in federal bankruptcy court. In the settlement, Ballow agreed to (1) pay Sandefer's attorney's fees and legal costs, (2) make an initial $600,000.00 payment, and (3) issue a promissory note secured by real property deeds to be held in trust by the bankruptcy court for the remainder of the settlement amount. The bankruptcy settlement did not state whether the settlement represented payment for punitive damages or fulfillment of Ballow's joint obligations with Texas Capital.
Texas Capital subsequently filed a motion with the state trial court asking it to reduce Texas Capital's liability for the judgment by the amount of Ballow's bankruptcy settlement with Sandefer. The trial court denied the request; Texas Capital appealed. The Texas Supreme Court subsequently transferred the appeal of the matter to this Court. See Tex. Gov't Code Ann. §§ 73.001-.003 (Vernon 1998 & Supp. 2003).
A trial court's determination of the existence of, or the amount of, a settlement credit is reviewed for an abuse of discretion. Goose Creek Indep. Sch. Dist. v. Jarrar's Plumbing, Inc., 74 S.W.3d 486, 504 (Tex. App.-Texarkana 2002, pet. denied).
Sandefer argues that Chapter 33 of the Texas Civil Practice and Remedies Code controls, and under the applicable provisions of that chapter, Texas Capital is not entitled to a settlement credit because the settlement was effectuated after the charge was submitted to the jury. On the other hand, Texas Capital contends it should be discharged from its entire obligation based on the "one satisfaction rule."
First, Chapter 33 does not apply in this case. Section 33.002 sets forth the applicability, and it provides that Chapter 33 applies only to "any cause of action based on tort in which a defendant, settling person, or responsible third party is found responsible for a percentage of the harm for which relief is sought." Tex. Civ. Prac. & Rem. Code Ann. § 33.002(a) (Vernon Supp. 2003) (emphasis added). Texas Capital and Ballow were held jointly and severally liable; therefore, by its express terms, Chapter 33 is not applicable. (1)
Second, under the one satisfaction rule, the nonsettling defendant may only claim a credit based on the damages for which all tortfeasors are jointly liable. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 391 (Tex. 2000); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927-28 (Tex. 1998); Buccaneer Homes of Ala., Inc. v. Pelis, 43 S.W.3d 586, 589 (Tex. App.-Houston [1st Dist.] 2001, no pet.). The nonsettling defendant is entitled to offset any liability for joint and several damages by the amount of common damages paid by the settling defendant, but not for any amount of separate or punitive damages paid by the settling defendant. Crown Life Ins. Co. v. Casteel, 22 S.W.3d at 391-92. Before the trial court may award a settlement credit, however, the nonsettling defendant must prove the settlement credit amount. Mobil Oil Corp. v. Ellender, 968 S.W.2d at 927. To meet that burden, the nonsettling defendant may introduce the settlement agreement, or some other evidence, into the record showing the settlement amount. Id. The burden then shifts to the plaintiff to tender a valid settlement agreement demonstrating what portion of the settlement was intended to satisfy actual damages and what was intended to be allocated toward nonsettlement credit damages. Id. at 928. If the settlement agreement fails to show which amounts were designated for settlement credit and nonsettlement credit damages, the nonsettling party is entitled to a credit equaling the entire settlement amount, not exceeding the amount in which the settling and non-settling defendants were held jointly and severally liable for actual damages. Id. (when settlement agreement does not allocate between actual and punitive damages, requiring a nonsettling party to prove the agreement's allocation before receiving a settlement credit not only unfairly penalizes the nonsettling party but also allows settling parties to abrogate the one satisfaction rule).
In the underlying case here, Texas Capital and Ballow were held jointly and severally liable for $398,904.38 in actual damages, and that sum was to bear interest at the rate of ten percent per annum from the date of the judgment until paid. After the judgment was entered, Ballow settled with Sandefer, agreeing to pay the principal sum of $2,600,000.00, and Texas Capital presented this settlement agreement to the trial court. (2) Further, J. D. Sandefer stated in his affidavit that, at the time this proceeding reached the trial court, Ballow had paid $1,123,763.23 of the $2.6 million settlement. The settlement agreement, however, did not allocate between the actual damages for which Texas Capital and Ballow were held jointly liable and the punitive damages for which Ballow was held personally liable. As a result, Texas Capital is entitled to a settlement credit not to exceed $398,904.38, plus postjudgment interest, which represents the actual damages for which Texas Capital and Ballow were held jointly and severally liable. See Mobil Oil Corp. v. Ellender, 968 S.W.2d at 927-28; Crown Life Ins. Co. v. Casteel, 22 S.W.3d at 391-92 (nonsettling defendant is entitled to offset any liability for joint and several damages).
For the reasons stated, we reverse and render judgment as set out above. Texas Capital remains liable to Sandefer for the amount of damages for which it was held solely liable.
William J. Cornelius *
Justice
*Chief Justice, Retired, Sitting By Assignment
Date Submitted: June 26, 2003
Date Decided: June 27, 2003
1. Further, even if Chapter 33 were applicable, it does not preclude a settlement credit merely because settlement was effectuated after the case was submitted to the jury. Under the provisions set forth therein, a codefendant who settles after the case has been submitted to the jury is no longer considered a settling person. Tex. Civ. Prac. & Rem. Code Ann. § 33.011(5) (Vernon 1997). However, this merely affects the manner in which a settlement credit is administered. If a party settles post-submission, the nonsettling defendant is entitled to a credit based on Section 33.013, as opposed to the formula provided in Sections 33.012 and 33.014 for presubmission settlements. Tex. Civ. Prac. & Rem. Code Ann. §§ 33.012-.014 (Vernon 1997); Knowlton v. United States Brass Corp., 864 S.W.2d 585, 596-98 (Tex. App.-Houston [1st Dist.] 1993), aff'd in part and rev'd in part on other grounds, 919 S.W.2d 644 (Tex. 1996).
2. Ballow was also held personally liable for an additional $8,000,000.00 in punitive damages.
n Locked="false" Priority="71" SemiHidden="false" UnhideWhenUsed="false" Name="Colorful Shading Accent 3"/>
|
|
In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00189-CR
______________________________
PHILLIP RANDALL GULLETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court No. 26170
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
Phillip Randall Gullett entered an open plea of guilty to six counts of aggravated sexual assault of a child, eleven counts of sexual assault of a child, one count of indecency with a child, and two counts of prohibited sexual contact. He was sentenced by the trial court to forty years imprisonment on each count of aggravated sexual assault of a child, twenty years imprisonment for each count of sexual assault of a child and indecency with a child, and ten years imprisonment for each count of prohibited sexual contact, all of the sentences to be served concurrently.
Gullett appeals these convictions on the ground that his pleas were not knowing and voluntary. He complains that his counsel rendered ineffective assistance by: (1) inadequately explain[ing] the charges against him, the law in relation to the facts of his case, and the consequences of his plea, (2) inadequately explain[ing] the right to confront his accuser and the witnesses against him, and (3) in failing to file a motion for new trial to develop or adduce facts or matters not otherwise shown in the record.
I. Gullett Failed to Meet His Burden of Showing His Pleas Were Involuntary
When evaluating the voluntariness of a guilty plea, we consider the entire record. Martinez v. State, 981 S.W.2d 195, 197 (Tex. Crim. App. 1998) (per curiam). When the record reflects that a defendant was properly admonished, it presents a prima facie showing that the guilty pleas were made knowingly and voluntarily. Id. Faced with this prima facie showing, the burden then shifts to the defendant to demonstrate that his pleas were not voluntary. Id. A defendant who attests when he enters his plea of guilty that he understands the nature of his plea and that his plea is voluntary has a heavy burden on appeal to show that his plea was involuntary. See Houston v. State, 201 S.W.3d 212, 217 (Tex. App.Houston [14th Dist.] 2006, no pet.); Dusenberry v. State, 915 S.W.2d 947, 949 (Tex. App.Houston [1st Dist.] 1996, pet. refd). The simple allegations of ineffective assistance of counsel, standing alone, are not sufficient to meet that burden.
Gulletts brief admits (and the record confirms) that he was properly admonished by the court both orally and in writing in accord with Article 26.13 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2010). Gullett stated at the hearing that he was satisfied with counsels representation and that he signed judicial confessions and stipulations of evidence admitted in evidence at the plea hearing; he further represented, both in writing and on the record, that he received the courts admonishments and was aware of the consequences of the plea. During the plea hearing, Gullett testified that: (1) he had been provided sufficient time with counsel to go over the facts related to each count in the indictment, (2) he understood the paperwork that he signed, (3) he understood the punishment ranges for the offenses, and (4) he was entering guilty pleas to the charges in the indictments because he was guilty. Gullett went further to state at that hearing that he understood that he was waiving his right to a jury trial and the right to cross-examine witnesses.
The trial court concluded, as do we, that Gulletts guilty pleas were entered knowingly and voluntarily. We overrule his first issue.
II. The Record Does Not Support Gulletts Allegations of Ineffective Assistance
A. Standard of Review
A defendant is entitled to effective assistance of counsel during the plea bargaining process. Hart v. State, 314 S.W.3d 37, 40 (Tex. App.Texarkana 2010, no pet.) (citing Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim. App. 1991) (en banc)). No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary. Tex. Code Crim. Proc. Ann. art. 26.13(b) (Vernon Supp. 2009). A plea of guilty is not knowingly and voluntarily entered if it is made as a result of ineffective assistance of counsel. Hart, 314 S.W.3d at 40 (quoting Ex parte Burns, 601 S.W.2d 370, 372 (Tex. Crim. App. 1980)).
We employ the two pronged Strickland[1] test for determining whether a defendant received ineffective assistance of counsel during a guilty plea. Id. at 40 (citing Hill v. Lockhart, 474 U.S. 52, 5859 (1985); Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009)). To establish ineffective assistance of counsel, an appellant must first show counsels performance was deficient to the extent that it fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 68788. Second, a defendant claiming that he was provided ineffective assistance of counsel in the plea process must show a reasonable probability that, but for counsels errors, he would not have pleaded guilty and would have insisted on going to trial. See Ex parte Briggs, 187 S.W.3d 458, 469 (Tex. Crim. App. 2005); Battle, 817 S.W.2d at 83.
The Strickland test requires a case-by-case examination of the evidence. Hart, 314 S.W.3d at 41 (citing Williams v. Taylor, 529 U.S. 362, 391 (2000)). Allegations of ineffectiveness must be firmly founded in the record. Id. (citing Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002)). Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing an evaluation of the merits of the claim involving ineffective assistance claims. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). In the majority of instances, the record on direct appeal is simply undeveloped and cannot adequately reflect the reasoning of trial counsel. Id. at 81314. As demonstrated below, this is such a case.
B. Analysis of Allegations of Ineffectiveness
In a conclusory manner, Gullett argues his plea was involuntary because of trial counsels inadequate explanation of the charges against him, the law in relation to the facts of his case, and the consequences of his plea. The record and Gulletts brief fail to reveal what advice, if any, was given. We have not been provided with a record (such as that which might have been produced by way of a hearing on a motion for new trial, a habeas corpus hearing, or by affidavit) attempting to explain counsels strategy (or, alternatively, want of strategy) as to any alleged errors or omissions. Additionally, the record demonstrates that Gullett expressed that he was satisfied with counsels representation, that the charges against him were explained, and that he understood the consequences of his plea.
1. Gullett Does Not Allege Any Acts or Omissions Occurred With Respect to Most Allegations of Ineffectiveness
Gullett recites that a psychological evaluation revealed that he had a history of learning difficulties, relied on others to make everyday decisions, was emotionally immature, had a naïve and childish view of the world, engaged in self-defeating behaviors, and has been hospitalized for depression and suicidal thoughts. He claims that because he had mental and learning difficulties, trial counsel should have taken steps to make sure that Appellant demonstrated an understanding of the charges against him and that he had a right to not plead guilty to them. Gullett does not particularly specify the additional steps that he believes counsel was required to take or should have taken.
There is nothing in the record suggesting counsel did not take steps to make sure that Appellant demonstrated an understanding of the charges against him. Instead, the record shows a motion suggesting Gulletts incompetency was filed, the trial court appointed an independent expert at counsels urging to evaluate Gullett, and he was found by that expert to be competent to stand trial. Thereafter, counsel sought and obtained the appointment of a forensic psychology expert in order to assist in preparation of Gulletts defense. Only after these steps were taken and after the trial courts proper written plea admonishments was the plea of guilty entered. Further, the finding of competency, Gulletts initial plea of not guilty, and his own statements indicated an understanding of the charges against him and that he had a right to not plead guilty to them.
Next, although he had initially pled not guilty to all counts alleged in the indictment, Gulletts brief suggests that [i]t appears from the record that Appellant did not understand that he had a right to not plead guilty to counts in the indictment that he did not commit. This statement arises from Gulletts testimony during the punishment phase that I didnt do everything on [the indictment]; but I mean, I -- I will admit to everything I did. Gullett testified that he did not believe that he vaginally penetrated his victim as alleged in the indictment. He, however, immediately followed this statement by saying, I said that I stuck my -- my thumb in her. I didnt remember saying I stuck my penis in her. I did say I stuck the head of it on her and rubbed her with it and then I tried to, but it wouldnt go in. The statements made by Gullett during punishment upon which the brief relies do not establish that counsel failed to advise Gullett of his right to plead guilty to counts in the indictment that he did not commit. During the plea hearing, the trial court read each count separately and Gullett stated that he was pleading guilty to each count because he was guilty. Nevertheless, Gullett argues that the trial court did not go over the manner and means by which the crimes were committed, and maintains that it was counsels responsibility and duty to do so in order to provide effective assistance. The brief does not allege, however, that counsel failed to do so, and the record before us would not support the allegation if it were made.
Next, Gullett claims that he demonstrated that he did not understand that he has a right to confront his accusers. Gulletts brief does not state that counsel failed to inform him of the right to confront his accusers and the record does not support that omission. Gullett points to testimony during the punishment phase where, although he believed his victim was molested from age eleven to fifteen, he did not challenge her statements that she was molested by him from the time she was eight years old. Gullett also refers to his testimony wherein he declined to argue with the victims testimony and witness reports, despite claims that they may have been mistaken. Gulletts acquiescence to the testimony of others would not support the contention that counsel failed to inform him of the right to confront his accusers had that allegation been made.
To reiterate, with respect to ineffective assistance of counsel claims above, Gullet does not allege that counsel, in fact, committed certain acts or omissions. Rather, the brief attempts to challenge the courts finding, after psychological evaluation, that Gullett was competent to stand trial by making claims that Gullett did not understand certain rights and admonishments. These alleged claims of ineffective assistance of counsel are overruled.
2. Motion for New Trial
Gullett complains that counsel was ineffective for failing to file a motion for new trial. Without citation to authority, he argues:
Had Appellant been able to file a motion for a new trial, Appellant would have been able to urge grounds that entitled him to a new trial, specifically that he would not have plead [sic] guilty to the offenses he did not commit, and would have confronted the witnesses against him, and that but for trial counsels erroneous advice or lack of advice, and he would have insisted on going to trial. Without a motion for new trial, Appellants right to appeal any ineffective assistance claims has been injured because the record on appeal does not adequately reflect the failings of trial counsel, nor that Appellant would have insisted on a trial had he been adequately advised of the law in relation to the facts of his case.
The Texas Court of Criminal Appeals has stated that where there is nothing in the record to suggest that appellant was not counseled by his attorney regarding the merits of a motion for new trial, we apply the rebuttable presumption is that it was considered by the appellant and rejected. Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000); Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). Here, because nothing in the record supports a claim that Gullett was not advised by counsel of his right to file a motion for new trial, we hold that appellant has failed to overcome the presumption that he was adequately represented by counsel during the time for filing a motion for new trial. Smith, 17 S.W.3d 660; see Castillo v. State, 186 S.W.3d 21, 31 (Tex. App.Corpus Christi 2005, pet. refd) (citing Hudson v. State, 128 S.W.3d 367, 381 (Tex. App.Texarkana 2004, no pet.) (There is no evidence in the record that Hudson was interested in the option of filing a motion for new trial and that counsel did not adequately assist him in doing so. Therefore, nothing in the record exists to rebut the presumption that Hudson was adequately informed of his right to file a motion for new trial and that he ultimately rejected the option.) (citation omitted)).
We overrule Gulletts last point of error.
III. CONCLUSION
We affirm the trial courts judgment.
Bailey C. Moseley
Justice
Date Submitted: March 4, 2011
Date Decided: March 7, 2011
Do Not Publish