In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-08-00082-CR
______________________________
JEFFERY KIRK WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 241st Judicial District Court
Smith County, Texas
Trial Court No. 241-0010-08
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Jeffery Kirk White appeals from his conviction on his open plea of guilty to the first degree felony offense of injury to a child, with an affirmative finding of use of a deadly weapon. (1) See Tex. Penal Code Ann. § 22.04 (Vernon Supp. 2008). White was sentenced to life imprisonment and a fine of $10,000.00. See Tex. Penal Code Ann. § 12.32 (Vernon 2003). White was represented by different, appointed, counsel at trial and on appeal.
White's attorney has filed a brief which discusses the record and reviews the proceedings. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).
Counsel mailed a copy of the brief to White on November 12, 2008, informing White of his right to examine the entire appellate record and to file a pro se response. Counsel simultaneously filed a motion with this Court seeking to withdraw as counsel in this appeal. White has not filed a pro se response, nor has he requested an extension of time in which to file such a response.
We have determined that this appeal is wholly frivolous. We have independently reviewed the clerk's record and the reporter's record, and we agree that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005).
We affirm the judgment of the trial court. (2)
Jack Carter
Justice
Date Submitted: January 28, 2009
Date Decided: February 3, 2009
Do Not Publish
1. This appeal has been transferred to this Court from the Tyler Court of Appeals pursuant to
the Texas Supreme Court's docket equalization program.
2. Since we agree this case presents no reversible error, we also, in accordance with Anders,
grant counsel's request to withdraw from further representation of White in this case. No substitute
counsel will be appointed. Should White wish to seek further review of this case by the Texas Court
of Criminal Appeals, White must either retain an attorney to file a petition for discretionary review
or White must file a pro se petition for discretionary review. Any petition for discretionary review
must be filed within thirty days from the date of either this opinion or the last timely motion for
rehearing that was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary
review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal
Appeals along with the rest of the filings in this case. See Tex. R. App. P. 68.3. Any petition for
discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of
Appellate Procedure.
M>, 865 S.W.2d 533, 535 (Tex. App.--Corpus Christi 1993, writ denied) (applying abuse of discretion standard). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
In Carpenter, the Texas Supreme Court examined this issue at length, concluding that the purpose of the summary-judgment process was not watered down by giving nonmovants additional time under certain circumstances.
[T]he consequences to a party that inadvertently fails to timely respond to a summary-judgment motion are often similar to those faced by a party that would otherwise be bound by erroneous or deemed admissions. Each faces the very real prospect of summary disposition without regard to the underlying merits. The standard that applies to the withdrawal of admissions fairly balances the parties' interests and furthers the policies our rules are intended to serve. See Tex. R. Civ. P. 1.
Carpenter, 98 S.W.3d at 687-88. Based on that reasoning, a motion for leave to file a late summary-judgment response should be granted when a litigant establishes good cause for failing to timely respond by showing that (1) the failure to respond was not intentional or the result of conscious indifference, but the result of accident or mistake, and (2) allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment. Id. at 688; Dallas County v. Rischon Dev. Corp., 242 S.W.3d 90 (Tex. App.--Dallas 2007, pets. denied [2 pets.]).
In Carpenter, the Texas Supreme Court found no abuse of discretion in denying leave to file a late response, because the motion to file late did not explain the reason for the failure to timely respond, nor was it accompanied by any supporting affidavits or other evidence. It asserted only that the other party would suffer no prejudice if late filing were allowed. Id. at 688. Our case differs.
In this case, Frericks submitted an affidavit in support of his motion for new trial stating that his failures to respond or appear at the hearing were not intentional, but occurred because of his misunderstanding of the nature of a summary judgment proceeding and because of a telephone conversation he had with Paup's counsel about the hearing. Frericks stated that he thought his answer was enough to at least set him up to be able to come before the court to state his case, and that he did not know that he needed to file a response and did not know what the effect of failing to file one might be. He stated that, when he received the notice of the hearing, he thought it was some kind of meeting about the case and that,
upon my receipt of the notice, I realized I could not appear due to business commitments. Consequently, I contacted counsel for David Craig Paup by telephone and informed him of such. I understood from that phone call that the "meeting" was to be cancelled or postponed, due to my inability to attend.
"Good cause," as an element for allowing a late summary-judgment response, is established by showing the failure involved (i.e., the failure to timely respond to requests for admissions or to respond to a summary-judgment motion) was an accident or mistake, not intentional or the result of conscious indifference. Tex. R. Civ. P. 166a(c); Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005).
In this case, the affidavit demonstrates Frericks' state of mind. It shows that his failure to respond to the motion was not intentional or the result of conscious indifference, and also reflects that his failure was the result of ignorance rather than an intentional disregard of the situation facing him.
Frericks could have avoided these problems by seeking legal assistance in the face of the lawsuit. Doubtless, it would have been much better to file such request and argue it no later than at the hearing itself. We also recognize that separate rules should not be used for attorneys and for those who act pro se. See Wheeler, 157 S.W.3d at 443.
Nevertheless, as applied in Wheeler, we conclude that Frericks met the standards required to obtain permission to late-file a reply to a motion for summary judgment. Although Frericks did not state in his affidavit that allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment, his hybrid motion does so state, pointing out that granting the motion would not result in undue delay or prejudice as Frericks "now has counsel, will proceed to conclude this case with all deliberate speed, and no injury will be occasioned upon Paup." Further, Frericks' motion for new trial, with attached affidavit explaining his failure to appear at the summary judgment hearing or to file a response, was filed before a final and appealable judgment was signed in this case.
Because Frericks has placed himself squarely within the reasoning in Wheeler, we conclude he became entitled to late-file a response to the motion for summary judgment. Because of our resolution of this issue, we need not address the remaining matters raised by Frericks.
We reverse the judgment and remand this case to the trial court to allow Frericks to file his response to Paup's motion for summary judgment, to consider such filing, and to conduct such further proceedings as are appropriate.
Josh R. Morriss, III
Chief Justice
Date Submitted: September 4, 2008
Date Decided: October 29, 2008
1. This case was transferred to this Court from the Tyler Court of Appeals as part of the Texas Supreme Court's docket equalization program. We are not aware of any conflict between the precedent of the Tyler court and the precedent of this Court on any issue relevant in this appeal. See Tex. R. App. P. 41.3.
2. A judgment is to end a controversy with the highest degree of exact justice humanly possible; its terms, therefore, must be certain and definite. Disco Mach. of Liberal Co. v. Payton, 900 S.W.2d 71, 73 (Tex. App.--Amarillo 1995, writ denied). In most situations, a decree from which the particular recovery cannot be ascertained is too vague to constitute a final judgment. In re Grossnickle, 115 S.W.3d 238, 249 (Tex. App.--Texarkana 2003, no pet.); H.E. Butt Grocery Co. v. Bay, Inc., 808 S.W.2d 678, 680 (Tex. App.--Corpus Christi 1991, writ denied).
3. Frericks filed a motion for new trial January 16, 2008. It appears from internal dating that it was mailed January 15, 2008.