In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00125-CR ______________________________
TYRELL DARNELL SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 71st Judicial District Court Harrison County, Texas Trial Court No. 08-0428X
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
The marihuana found in the possession of Tyrell Darnell Smith, including seeds and possibly stems, weighed 4.13 ounces. Smith was convicted in a jury trial for possession of marihuana in an amount greater than four ounces but less than five pounds and was sentenced to eighteen months' confinement. On appeal, Smith contends his trial counsel was ineffective because he failed to have the marihuana re-weighed after removal of the seeds and stems and because he failed to inform the jury that the seeds and stems were not to be included in the weight of the marihuana. Because ineffective assistance of counsel has not been shown, we affirm.
Any allegation of ineffectiveness of counsel must be firmly founded in the record. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999); Wallace v. State, 75 S.W.3d 576, 589 (Tex. App.--Texarkana 2002), aff'd, 106 S.W.3d 103 (Tex. Crim. App. 2003). From the record received by this Court, which does not include counsel's reasons for the alleged failures, Smith bears the burden of proving that counsel was ineffective by a preponderance of the evidence. Goodspeed, 187 S.W.3d at 392; Thompson, 9 S.W.3d at 813; Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). We apply the two-pronged Strickland test handed down by the United States Supreme Court to determine whether Smith received ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006). Thus, we need not examine both Strickland prongs if one cannot be met. Strickland, 466 U.S. at 697.
First, Smith must show that counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms. Id. at 687-88. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance and that the challenged action could be considered sound trial strategy. Id. at 689; Ex parte White, 160 S.W.3d 46, 51 (Tex. Crim. App. 2004); Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Therefore, we will not second-guess the strategy of Smith's counsel at trial through hindsight. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Hall v. State, 161 S.W.3d 142, 152 (Tex. App.--Texarkana 2005, pet. ref'd). In this case, since the record is silent as to why counsel failed to make an objection or take certain actions with regard to the weight of marihuana containing seeds and stems, we will assume it was due to any strategic motivation that can be imagined. Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001); Fox v. State, 175 S.W.3d 475, 485-86 (Tex. App.--Texarkana 2005, pet. ref'd).
As defined in the Texas Health and Safety Code, marihuana "means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds." Tex. Health & Safety Code Ann. § 481.002(26) (Vernon Supp. 2008). It does not include:
(A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin; (B) the mature stalks of the plant or fiber produced from the stalks; (C) oil or cake made from the seeds of the plant; (D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or (E) the sterilized seeds of the plant that are incapable of beginning germination.
Id. A plain reading of the statute indicates that seeds are included within the definition of marihuana unless they are sterilized and that only mature stalks are excluded.
Smith first contends his counsel was ineffective because he failed to have the marihuana re-weighed without the seeds and stems. Our reading of the record reveals no evidence that the seeds in this case were sterilized. (1) Next, Karen Ream, the forensic scientist that weighed the marihuana, specifically testified stalks were not included in the weight. (2) Since there is no evidence that the weight of marihuana included any mature stalks or sterilized seeds, counsel was not ineffective in failing to ask that the marihuana be re-weighed. We overrule this point of error.
Next, Smith alleges his counsel failed to inform the jury "that the law requires that the weight of the seeds, stems, and contaminants should be included in the total weight" of the marihuana. During closing argument, Smith's counsel claimed "[t]he more serious issue is the weight," and stated "the law in Texas is that it has to be more than 4 ounces of a usable quantity of marijuana as defined by the definition of marijuana in our Penal Code or Health and Safety Code." The trial court's charge specifically included the definition of marihuana per Section 481.002(26) of the Texas Health and Safety Code in its entirety. Also, Smith's counsel pointed out that "it's left up to each of you to determine what is a usable quantity of marijuana, because it's only the usable quantity of marijuana that is supposed to count toward this weight." To solidify his point, although no evidence suggested the small stems in the bags were mature stalks, counsel stated, "It's the leaves; that's what's usable. That's what they smoke. They smoke these leaves. They don't smoke these stems." From these facts, we find that contrary to Smith's assertions, the jury was informed that mature stalks and sterilized seeds were to be excluded in the weight of the marihuana.
Thus, we cannot conclude, based on the record before us, that Smith has met his burden to demonstrate counsel's ineffectiveness.
We affirm the judgment of the trial court.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 5, 2009
Date Decided: October 6, 2009
Do Not Publish
1. It is the defendant's burden to establish the seeds were sterilized. Doggett v. State, 530 S.W.2d 552, 554-56 (Tex. Crim. App. 1976); Nowling v. State, 801 S.W.2d 182, 184 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd); JohnJock v. State, 763 S.W.2d 918, 919-20 (Tex. App.--Texarkana 1989, pet. ref'd).
2. Pictures of the contraband, which was found in three bags, were included as evidence in the record. They do not suggest mature stalks were included in the weight of the marihuana.
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00017-CV
______________________________
CLARKSVILLE OIL AND GAS COMPANY, LTD., ET AL., Appellants
V.
MARCUS A. CARROLL, Appellee
On Appeal from the 6th Judicial District Court
Red River County, Texas
Trial Court No. CV02480
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Clarksville Oil and Gas Company, Ltd., and a group of apparently affiliated organizations[1] (together called the Clarksville Companies) appeal a summary judgment against them and in favor of Marcus A. Carroll, asserting that they did make out a fact issue of whether Carroll was responsible for preparation or filing of an overbroad abstract of judgment. Because the Clarksville Companies response to Carrolls motion for summary judgment was filed too late, and there was no trial court order allowing such late filing, we find the summary judgment was properly granted.
Patricia Coplan Fry, Dekrfour, Inc., Nelson Operating, Inc., Bobby Noble, and Wood County Oil and Gas, Ltd. (hereinafter referred to as Fry Defendants) had been defendants in a 2004 breach-of-contract case arising out of competing claims to certain interests in an old oil field. In that case, on the Fry Defendants counterclaim against Wendell Reeder, they obtained a judgment against Reeder. As part of that judgment, the Fry Defendants attorney, Marcus A. Carroll, was awarded $125,000.00 in attorneys fees.[2]
In 2008, Fry filed an abstract of judgment listing the Fry Defendants and Carroll as judgment creditors. The abstract of judgment ostensibly created judgment liens on nonexempt real property of those it named as judgment debtors therein. In the abstract of judgment, Fry included the Clarksville Companies as judgment debtors. The problem is that the Clarksville Companies were not judgment debtors in the judgment. Reeder was.
On July 9, 2009, the Clarksville Companies filed suit against the Fry Defendants and Carroll. They sought judgment declaring that the abstract of judgment was invalid and asked for damages for wrongful filing.[3] The Clarksville Companies also alleged that Carroll, by failing to execute a release of lien, was liable for slander of title under the theory that he ratified Frys actions in filing the invalid abstract. On August 20, 2009, Fry filed a corrected abstract of judgment listing the proper judgment debtor, Reeder.
The suit against Carroll was severed. Carroll filed a no-evidence and traditional motion for summary judgment denying participation in slander of title by alleging that he did not participate in the preparation of the abstract of judgment and was not aware of it until receiving a copy from J. Bennett White, attorney for the Clarksville Companies. He also alleged that Fry was not acting as his agent when she filed the abstract of judgment. Carroll further stated that he aided in the drafting of the amended abstract of judgment correcting the mistake, demonstrating that he did not ratify Frys actions. The Clarksville Companies appeal the trial courts take-nothing summary judgment in favor of Carroll. Specifically, they argue that the trial court erred in striking the affidavit of their attorney J. Bennett White from the summary judgment record and that there is a genuine issue of material fact as to whether Carroll ratified the filing of the incorrect abstract of judgment. We find that summary judgment was properly granted, and the affidavit properly struck, due to the Clarksville Companies late-filed response to Carrolls motion for summary judgment.
We employ a de novo review of the trial courts grant of a summary judgment, which is based on written pleadings and written evidence. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Lamar Corp. v. City of Longview, 270 S.W.3d 609, 613 (Tex. App.Texarkana 2008, no pet.); see Tex. R. Civ. P. 166a(c). Summary judgment is proper if Carroll established that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); French v. Gill, 252 S.W.3d 748, 751 (Tex. App.Texarkana 2008, pet. denied); Powers v. Adams, 2 S.W.3d 496, 497 (Tex. App.Houston [14th Dist.] 1999, no pet.) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985)).
Carroll filed a traditional and no-evidence motion for summary judgment. During our analysis of the traditional motion, and in deciding whether there is a disputed material fact issue which precludes summary judgment, proof favorable to the Clarksville Companies will be taken as true and every reasonable inference will be indulged in their favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Nixon, 690 S.W.2d at 54849. A no-evidence summary judgment is essentially a pretrial directed verdict. We, therefore, apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict to determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Woodruff v. Wright, 51 S.W.3d 727, 734 (Tex. App.Texarkana 2001, pet. denied). The Clarksville Companies would defeat a no-evidence summary judgment motion if they presented more than a scintilla of probative evidence on each element of their claims. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
The trial courts summary judgment specified no particular ground as supporting the summary judgment. When, as is the case here, the trial court does not set out the grounds on which it ruled, we affirm the summary judgment if any ground urged in the motion for summary judgment is meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
Except on leave of court, the adverse party, not later than seven days prior to the day of hearing [on a motion for summary judgment] may file and serve opposing affidavits or other written response. Tex. R. Civ. P. 166a(c); see Alford v. Thornburg, 113 S.W.3d 575, 586 (Tex. App.Texarkana 2003, no pet.) (opposing party must file and serve any opposing affidavits and response at least seven days before hearing). A trial court may accept late-filed summary judgment evidence, but it must affirmatively indicate that it accepted or considered that evidence. SP Terrace, L.P. v. Meritage Homes of Tex., L.L.C., 334 S.W.3d 275, 28182 (Tex. App.Houston [1st Dist.] 2010, no pet.) (citing Stephens v. Dolcefino, 126 S.W.3d 120, 13334 (Tex. App.Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex. Crim. App. 2005). If no order in the record indicates that the court gave leave to file untimely evidence, then we presume that the trial court did not consider the evidence. Id. at 282; see Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (There is no order in this record granting the Crowders leave to file McCools affidavit late. McCools affidavit was not properly before the trial court on the motions for summary judgment.).
In this case, Carroll filed the motion for summary judgment November 1, 2010. The Clarksville Companies filed their response to the motion for summary judgment, attaching Whites affidavit and other documentation, December 13, 2010, the same day that the hearing on the motion for summary judgment was scheduled and heard.[4] The record does not contain any request for leave from the trial court to file the late-filed response, and there is no order granting, and no other indication that the trial court gave, such permission.
An untimely summary judgment response is not before the trial court and cannot be considered unless leave of court is sought and granted. Derouen v. Wal-Mart Stores, Inc., No. 06-06-00087-CV, 2007 WL 188698, at *1 (Tex. App.Texarkana Jan. 26, 2007, no pet.) (mem. op.).
When a defendant files a motion for a no evidence summary judgment which properly alleges that there is a lack of evidence supporting one or more specific essential elements of the plaintiffs cause of action, the trial court must grant the summary judgment unless the plaintiff timely responds, presenting to the trial court evidence (more than a scintilla) which raises a genuine issue of fact bearing on the challenged elements. Tex. R. Civ. P. 166a(i); City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005).
Id. Because the Clarksville Companies failed to comply with the timely filing requirements of Rule 166a(c) of the Texas Rules of Civil Procedure, and their tardy response was not permitted by the trial court, the Clarksville Companies presented no evidence in response to Carrolls no-evidence motion for summary judgment. See ODonald ex rel. Estate of ODonald v. Texarkana Meml Hosp., No. 06-04-00121-CV, 2005 WL 3191999, at *12 (Tex. App.Texarkana Sept. 28, 2005, pet. denied) (mem. op.) (Because the [Plaintiffs] did not timely respond to [Defendants] no-evidence summary judgment motion or timely point the trial court to any summary judgment evidence raising an issue of fact on the challenged elements, the trial court properly rendered summary judgment in favor of [Defendant].); Baker v. Gregg County, 33 S.W.3d 72, 7779 (Tex. App.Texarkana 2000, pet. dismd) (because evidence was filed late without leave of court, plaintiff presented no evidence on her claim). Accordingly, the trial court properly granted summary judgment to Carroll.
We affirm the trial courts judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 10, 2011
Date Decided: September 1, 2011
OPINION ON REHEARING
Having overruled appellants motion to supplement the record after the issuance of our opinion dated September 1, 2011, we now overrule appellants motion for rehearing for the reasons given in our original opinion. Even if we had granted the motion to supplement the record with the Rule 11 agreement,[5] we would have been constrained to overrule the motion for rehearing since, even with the Rule 11 agreement, the response to the motion for summary judgment was filed late and nothing in the record demonstrates that the trial court allowed the late filing. See Tex. R. Civ. P. 11.
We overrule the motion for rehearing.
Josh R. Morriss, III
Chief Justice
Date: October 21, 2011
[1]The organizations joining Clarksville Oil and Gas Company, Ltd., in the trial court action and this appeal are Smith and Coffman, Ltd., COG Management, L.L.C., Clarksville Transportation L.L.C., S&C Management, L.L.C., W.R. Diversified Holdings, L.P., W.R. Diversified Holdings Management L.L.C., and Midway Armadillo Corporation.
[2]The Twelfth Court of Appeals affirmed, as modified, the trial courts judgment in the 2004 case. Petition for review is pending with the Texas Supreme Court.
[3]The claim alleged that W.R. Diversified Holding, LP, entered into a contract with Darean, Inc. to sell the stock of Clarksville Oil & Gas for $6,500,000.00 and ten (10) gas stations owned by Smith & Coffman, LTD for $9,820,000.00, and that the contract was terminated on Dareans discovery of the abstract of judgment. It was also claimed that the abstract of judgment led to a reduction in Clarksville Oil & Gas line of credit with F&M Bank, and that a loan from Texas Heritage National Bank was withdrawn.
[4]Whites affidavit was dated December 7, six days before the hearing; Carrolls counsel stated he did not receive the response until December 10, three days before the hearing.
[5]See Tex. R. Civ. P. 11.