In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-07-00127-CV
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JAMES EDWARD LEWIS AND
CRAIG COLIN AGNEW, Appellants
V.
NATHANIEL QUARTERMAN, ET AL., Appellees
On Appeal from the 202nd Judicial District Court
Bowie County, Texas
Trial Court No. 07C1271-202
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
James Edward Lewis and Craig Colin Agnew jointly appeal from a judgment rendered against them in their civil lawsuit against the Director of the Texas Department of Criminal Justice. In their jointly-filed petition, they set out a variety of unrelated statements. They allege, in sequence,
INEFFECTIVE COUNSEL AND LIABILITY IN INDIVIDUAL AND OFFICIAL CAPACITY, BREACH OF DUTIES, LEGAL MALPRACTICE, AND ACTING UNDER THE COLOR OF STATE AND FEDERAL LAWS BY DELIBERATE DISCRIMINATION OF DUE PROCESS AND EQUAL PROTECTION OF LAW, INTENTIONALLY AND KNOWINGLY, RACKETEERING INFLUENCED AND CORRUPT ORGANIZATIONS 18 U.S.C.A. 1962 PROHIBITED ACTIVITIES AND 18 U.S.C.A. 1968 CIVIL INVESTIGATIVE DEMAND.
They go on, invoking the Texas Tort Claims Act, as follows:
(WHISTLEBLOWER INMATE) AND OFFICERS RETALIATION FOR PENDING LEGAL LITIGATION AGAINST THE BARRY TELFORD UNIT (OWNERS), (WARDENS), AND (KNOWN OR UNKNOWN AGENTS) OR (OFFICERS).
Appellants then continue with eleven unclear paragraphs. We surmise that they complain that the appellees are violating their rights and imposing some type of restraints on them, ranging from something having to do with their continued incarceration, their underlying convictions, the size of their cells, and the methods used to calculate the time of their continued incarceration.
As examples, some of the allegations are quoted below:
1) DEFENDANTS ARE IN VIOLATION OF PLAINTIFF'S PROBATION
ELIGIBILITY, SHOCK PROBATION, PAROLE AND MANDATORY SUPERVISION RELEASE AND APPEAL BOND DUE PROCESS.
. . . .
3) DEFENDANTS ARE IN VIOLATION OF PLAINTIFF'S CONSTITUTIONAL CLASSIFICATION PROCESSING PURSUANT TO THE RUIZ (VS) ESTELLE STIPULATIONS AND DECREE ON GOOD TIME CREDITS.
. . . .
5) DEFENDANTS ARE IN VIOLATION OF PLAINTIFF'S TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 12.01 STATUE [sic] OF LIMITATIONS, AND INVALID OR DEFECTIVE INDICTMENTS PRESENTED AT TRIAL OR GUILTY PLEA.
. . . .
8) DEFENDANTS ARE IN VIOLATION OF PLAINTIFF'S 50 SQUARE FOOT CUBICLES WITH SINGLE BUNK AND 80 SQUARE FEET CELLS
9) DEFENDANTS ARE IN VIOLATION OF PLAINTIFF'S
Medical Liability
The petition continues with twelve pages of quotes taken from various prison policy directives and rules of conduct. The petition concludes with this statement:
THESE RULES OF CODE AND CONDUCT IN THE ABOVE MENTIONED DOCUMENTED VIOLATIONS ARE IN PURSUANT TO TEXAS GOVERNMENT CODES, SECTION 497.007, 500.003, 556.004, 556.007, 614.0234, AND CHAPTERS 571 AMERICAN CORRECTIONAL ASSOCIATION STANDARDS; 3-4010, 3-4061, ALSO PURSUANT TO P.D. 22 OF CODE AND CONDUCT EMPLOYEES ARE REPRESENTATIVES OF THE AGENCY AND ARE EXPECTED TO ADHERE TO THE HIGHEST STANDARD OF CONDUCT.
PRAYER
THE APPELLATE PRAYS CONSTITUTIONAL RELIEF WILL BE GRANTED[.]
The trial court's response was to issue an order noting that Lewis and Agnew are inmates, that only Lewis had signed the complaint, and attempting to find a cause of action in the morass. The court concluded, reasonably, that the allegations were of, "in the main, violations of civil rights and state law."
The court concluded that Lewis and Agnew had failed to show that they had exhausted administrative grievance procedures, or provided a list of all previously-filed litigation, that neither had filed suit within thirty days after receiving a final response to his grievance, or provided a properly authenticated copy of his inmate trust account. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.004, 14.005 (Vernon 2002). Thus, because the petition contained no evidence that any of the procedural prerequisites had been met, the court dismissed the case without prejudice.
On appeal, Lewis and Agnew have filed separate briefs, which are almost entirely restatements of their petition. (1) Only Lewis' brief contains anything that might be read as arguing that the trial court erred in any regard. Lewis' brief contains language stating that a lawsuit "SHOULD NOT BE DISMISSED FOR FAILURE TO STATE A CLAIM UNLESS IT APPEARS BEYOND DOUBT THAT PRISONERS CAN PROVE NO SET OF FACT[S] IN SUPPORT OF HIS CLAIM."
We quoted the dispositive language of the order above. It explicitly does not dismiss for failure to state a claim--it dismisses (without prejudice) for failure to meet the procedural requirements of the cited statutes. (2) Error has not been shown.
We affirm the judgment.
Jack Carter
Justice
Date Submitted: February 6, 2008
Date Decided: February 22, 2008
1. The briefs contain quotations from various rules, from statutes, from the United States Constitution, and are largely repetitious of the petitions below.
2. If an argument is not raised in the trial court or briefed on appeal--the argument should not be created by the court of appeals. Garcia v. Robinson, 817 S.W.2d 59 (Tex. 1991); Aluminum Chems. (Bolivia), Inc. v. Bechtel Corp., 28 S.W.3d 64, 68 (Tex. App.--Texarkana 2000, no pet.) ("It is not the proper function of this Court to create arguments for an appellant. We are restricted to addressing the arguments actually raised, not those that might have been raised.").
e fact of his conviction. In fact, he took the stand and voluntarily testified that he had been so convicted.
Fifth, Gill contends his trial attorney provided ineffective assistance of counsel because he did not move for an instructed verdict at the close of the State's case-in-chief. The State presented more than a scintilla of evidence in its case-in-chief that would have supported a guilty verdict. (3) See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993). Consequently, defense counsel had no ground on which to move for an instructed verdict, and his failure to do so did not render his assistance ineffective.
Sixth, Gill contends his trial counsel provided ineffective assistance because he failed to object to the introduction of a restraining order that Tracy obtained against Gill in January of 2001. During Gill's case-in-chief, Tracy testified that Gill did not hit her on the night in question. In an attempt to discredit Tracy's testimony, the State introduced a request for a restraining order against Gill that Tracy made approximately five months after the night in question. The State also introduced Tracy's affidavit in support of her request for a restraining order, in which she stated under oath that Gill hit her in the face on the night in question. See Tex. R. Evid. 613. In light of this evidence introduced to impeach Tracy's testimony that Gill did not assault her on the night in question, defense counsel had no valid ground to object. Moreover, counsel may have wanted all the circumstances to come out in the evidence so the jury could know he was being open and honest with them. We find no ineffective assistance here.
In Gill's final assertion of ineffective assistance of counsel, he contends counsel's representation fell below the reasonable standard because he failed to secure the presence of Wanda Radford, whose testimony would have been beneficial to his defense. Radford stated the following in her affidavit filed with the court:
I had been subpoenaed by the State and at the time of the mistrial last December, 2001, I had informed the DA handling the case that I did not see Mr. Gill strike his wife. Also at this time, I talked to Mr. Gill's attorney, Roy Rowland, who told me he would be in touch with me before the next trial date. I never did talk to Mr. Rowland again nor did I receive a subpoena for the next trial date. If I had testified at Mr. Gill's trial, I would have stated that at the time of the alleged incident, I lived at 3323 Yellowstone, Apt. 1306, Houston, Texas 77021 and my apartment was across the driveway from Mr. Gill's and his wife's, the complainant. On the date of the alleged incident, Mr. Gill and his wife came over to my apartment where she wanted to use the phone. At that time, Mr. Gill told his wife that all he wanted to do was talk to her and they then went back to their apartment together. Again, I never did see Mr. Gill strike his wife by pushing, shoving or hitting her or in any other manner.
In this instance, Gill has produced evidence of counsel's motivation for not subpoenaing Radford. In his affidavit, Gill's trial counsel stated the following with respect to Radford:
I spoke with the witness Wanda Radford and I informed Mr. Gill that her testimony was important. Ms. Radford agreed to appear for the trial and and [sic] I futher [sic] advised Mr. Gill that I would subpoena her, unless they Mr. and Mrs. Gill felt certain she would appear. It was my understanding that Ms. Radford was to voluntarily appear.
We note, with respect to this point, that Wanda Radford was subpoenaed to be a witness in this case. She was subpoenaed by the State and directed to attend the trial beginning on December 3, 2001, and remain there from day to day until discharged by the court. The court declared a mistrial and reset the case for trial on January 23, 2002. The defense had a right to rely on the State's subpoena to secure Radford's presence at the trial. Additionally, however, Gill's counsel swore that he discussed issuing another subpoena for Radford, but on being assured by Gill and Tracy that Radford would be present for the trial, he decided there was no need to issue another subpoena. We do not consider defense counsel's actions in this regard to be below an objective standard of reasonableness. Moreover, Radford swore that, on the evening in question, she did not see Gill and Tracy except when they came across the driveway to her (Radford's) house, and she did not have any opportunity to see whether Gill struck Tracy. Since Radford was never present at the Gill house when the assault was taking place, her testimony would have been of little value in any event. We find no ineffective assistance of counsel in this regard.
For the reasons stated, we affirm the trial court's judgment.
William J. Cornelius*
Justice
*Chief Justice, Retired, Sitting by Assignment
Date Submitted: December 16, 2002
Date Decided: June 6, 2003
Publish
1. The general doctrine that forbids an application for writ of habeas corpus after direct appeal has addressed an issue does not apply in these situations, and the appellant may resubmit his claim via an application for writ of habeas corpus. Thompson v. State, 9 S.W.3d 808, 814-15 (Tex. Crim. App. 1999); Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998). This would provide an opportunity to conduct a hearing to consider the facts, circumstances, and rationale behind counsel's actions at that juncture of trial.
2. Immediately after the above line of questioning, the prosecution asked the witness what the victim told her concerning the night in question. Gill's counsel reasserted his hearsay objection, and the court overruled the objection. The witness was then allowed to testify that the victim told her Gill hit her in the face that evening.
3. In its case-in-chief, the State produced testimony from Nicole Edwards, Rosalyn German, and Officer Williams that Gill had abused Tracy on the night in question.