IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
OCTOBER 23, 2002
______________________________BECKY LYNN HANEY,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 108th DISTRICT COURT OF POTTER COUNTY;
NO. 44,553-E; HON. ABE LOPEZ, PRESIDING _______________________________
Before QUINN and REAVIS, JJ., and BOYD, SJ. (1)
Appellant Becky Lynn Haney appeals her conviction of possession of a controlled substance, i.e., less than one gram of methamphetamine. In doing so, she argues that (1) the trial court erred in admitting evidence of an extraneous offense without first determining whether a jury could find that she committed the offense, and (2) she received ineffective assistance of counsel because her attorney failed to investigate her competency to stand trial or the viability of the insanity defense. We affirm the judgment of the trial court.
Background
On March 22, 2001, police officers went to appellant's home to respond to a fight between her two daughters Natasha and Brandy. Appellant's husband Ed left the house through the back door and one of the police officers followed him to see if he had witnessed the fight and, because of previous "knowledge" of Ed, to see whether he was getting a weapon or destroying any kind of evidence in the back yard. In the yard, the officer smelled an unusual odor that, from his experience with methamphetamine laboratories, indicated a laboratory was located on the premises in a storage shed. Written permission to search the premises was then obtained from appellant. In the shed, the officers found equipment that could be used to manufacture illegal drugs. When a female officer later attempted to body search appellant in the bathroom, a little plastic bag fell from a piece of toilet tissue in appellant's hand onto the floor. The substance in the bag was determined to contain methamphetamine.
Issue One - Admission of Extraneous Offense
In her first issue, appellant complains that the trial court erred in admitting evidence as to the items found in the shed which in addition to testimony included 22 photographs. This was error, she argues, because the court failed to find beyond a reasonable doubt that she committed the crime of manufacturing methamphetamine. We overrule the point.
Appellant objected at trial to the admission of evidence as to a methamphetamine lab by arguing: "My objection is, she is not charged with manufacturing meth" and "[o]nce the jury hears that, that is going to prejudice them against her, and . . . I think that we can discuss permission to search the house and what they found, without getting into that . . . ." In response, the State contended that the evidence went to knowledge and intent and also asserted that the offense was not extraneous but went to the reason why the officers sought to search appellant. The court overruled the objection without indicating the basis upon which it did so, and, upon appellant's additional objection, overruled appellant's complaint that the prejudicial effect outweighed the probative value. Appellant was given a running objection to the admission of any such evidence. Appellant later objected to the admission of the photographs on the basis they were immaterial and irrelevant. Although that objection was originally sustained, the court subsequently allowed the admission of the photographs.
At trial, appellant did not request the court to determine that appellant had committed the offense beyond a reasonable doubt or object to the court's alleged failure to do so. Appellant also did not object to the State's failure to prove commission of the offense by her. To preserve a complaint for appellate review, appellant must state the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1(a)(1); Aguilar v. State, 26 S.W.3d 901, 905-06 (Tex. Crim. App. 2000). Because the specific ground of complaint asserted here must have been asserted below and it was not, appellant's current complaint is waived. Penry v. State, 903 S.W.2d 715, 763 (Tex. Crim. App.), cert. denied, 516 U.S. 977, 116 S. Ct. 480, 133 L. Ed. 2d 408 (1995).
Issue Two - Ineffective Assistance of Counsel
In her second issue, appellant complains that she received ineffective assistance of counsel because her counsel failed to investigate her competency to stand trial or whether an insanity defense was viable. (2) We overrule the point.
The standard of review applicable to claims of ineffective assistance is well established. Therefore, we will not repeat it, but cite the parties to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) for its explanation.
First, we note that claims of ineffective assistance must be firmly founded in the record before us. Rios v. State, 990 S.W.2d 382, 385 (Tex. App.-Amarillo 1999, no pet.). Though appellant contends that her trial attorney failed to investigate the issues of competency to stand trial or insanity at the time of the offense, the record does not support such a conclusion. No motion for new trial was filed. Nor did anyone purport to testify about the extent, if any, of counsel's investigation into his client's competency or sanity. Instead, appellant merely infers that because 1) the trial court did not hold a competency hearing and 2) trial counsel supposedly failed to request the court to have his client undergo mental examination or evaluation, he must not have conducted any investigation. Yet, the latter conclusion does not logically or necessarily follow from the premises offered. Counsel may well have investigated those topics on his own or with professional assistance without having broached them to the court. And, whether or not we think this likely is of little consequence for we must act on the record, not on our speculation, hunch, or surmise. In short, the record before us must be one which illustrates deficient performance and, when the deficiency involves the purported failure to investigate, it must show the want of investigation. The record before us, in this direct appeal, does not do that.
Second, the case of Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990), an opinion upon which appellant relies, is readily distinguishable. There, the appeal was from an order granting a petition for writ of habeas corpus. Thus, trial counsel's knowledge of the defendant's mental state and the actions, if any, undertaken by counsel were developed to an extent greater than that here. There, the reviewing court was not left to guess at the facts or evidence for it had been developed. That is missing here. And, because it is and due to the admonition that disputes like those before us must be resolved on a case-by- case basis, id. at 596 n.22, we cannot say that Bouchillon dictates that we reverse the judgment for the want of effective trial counsel.
Accordingly, we affirm the judgment of the trial court.
Brian Quinn
Justice
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2002).
2.
sed="false" Name="Light Shading Accent 3"/>
NO. 07-09-0249-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JANUARY 11, 2011
______________________________
WILLIAM COALE AND JULIE COALE,
Appellants
v.
RONALD SCOTT, HAZEL SCOTT, JACQUELINE SCOTT, JUDY SAUR,
SHEA SAUR AND HEATHER SAUR,
Appellees
_______________________________
FROM THE 274TH DISTRICT COURT OF COMAL COUNTY;
NO. C2004-0600C; HON. CHARLES R. RAMSAY, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
William Coale and Julie Coale (the Coales) appeal from an order approving a Rule 11 agreement purportedly entered into by the Coales and Ronald Scott, Hazel Scott, Jacqueline Scott, Judy Saur, Shea Saur and Heather Saur (the Scotts). Through two issues, it is contended that the trial court abused its discretion by enforcing a Rule 11 agreement after its plenary power had expired and which agreement improperly expanded the Scotts rights accorded in the original judgment. We affirm.
Background
The underlying suit involved the resolution of a dispute regarding an easement. A final judgment was entered favoring the Scotts and recognizing the easement. Several years passed after which the Scotts moved the trial court to enforce its judgment. That motion was granted, though the trial court denied what appeared to be a Motion to Enter Order. Shortly thereafter, the Scotts filed a Motion to Enter Order and Enforce Rule 11 Agreement. The agreement arose after the trial courts original judgment became final and allegedly clarified various matters for the parties viz the easement. The trial court granted that motion and approve[d] that one certain Rule 11 Agreement filed with the Court on March 20, 2009. It is from that order the Coales appealed.
Issue One Plenary Jurisdiction Expired
In their first issue, the Coales contend that the trial court lacked jurisdiction to approve and enforce the March 20, 2009 Rule 11 agreement. We overrule the issue.
Irrespective of whether a trial court lost its plenary jurisdiction over its judgment, the trial courts authority to approve a Rule 11 agreement does not depend upon whether it has such jurisdiction. Karp v. Karp, No.14-01-902-CV, 2002 Tex. App. Lexis 8014, at *4 (Tex. App.Houston [14th Dist.] November 7, 2002, no pet.) (not designated for publication). It may enforce a Rule 11 agreement touching upon the suit executed after the cause was tried and finally resolved via judgment. Id. And, since a trial court has the continuing power to enforce its judgments after they become final, see Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982); Custom Corporates v. Security Storage, Inc., 207 S.W.3d 835, 839 (Tex. App.Houston [14th Dist.] 2006, orig. proceeding); Comm'n for Lawyer Discipline v. DeNisco, 132 S.W.3d 211, 214-15 (Tex. App.Houston [14th Dist.] 2004, no pet.); see also Tex. R. Civ. P. 308 (providing that a court shall cause its judgments and decrees to be carried into execution; . . . .), common sense tells us that an attempt to have the court enforce its judgment, as was done here, is tantamount to the continuation of an aspect of the underlying suit. i.e. the effectuation of what was adjudicated. So, a settlement agreement, like that at bar, executed while the parties were attempting to sway the trial court to enforce its judgment logically falls within the scope of any suit pending for purposes of Rule 11.[1]
Furthermore, we find of record an agreement signed by all parties. That it may have been signed via duplicate copies (i.e. one or more signatories executing multiple copies of the same instrument) is of little import because each signature of each party does eventually appear under the same terms to which all agreed. Pierson v. Pierson, 596 S.W.2d 176, 179 (Tex. Civ. App.Houston [1st Dist.] 1980, no writ) (stating that a contract may be valid though signed by the parties thereto via conforming copies). Therefore, we overrule the contention that the agreement was unenforceable because no one document contained all the signatures.
Issue Two Misapplication of Rule 11
In their second issue, the Coales believe that the Rule 11 agreement was unenforceable because they allegedly withdrew their consent to it before the trial court ordered its enforcement. We disagree.
Rule 11 requires that the agreement be filed of record before the court may enforce it. Alcantur v. Okla. Nat. Bank, 47 S.W.3d 815, 819 (Tex. App.Fort Worth 2001, no pet.). If the accord is in writing, signed by the parties or their attorneys, and filed of record, it does not matter whether a party no longer agrees to it when the trial court is finally asked to enforce it. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995); West Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 255 (Tex. App.Austin 2002, no pet.). This is so because the agreement becomes a contract when executed, not when the trial court attempts to enforce it. Indeed, the trial courts order is simply a judgment enforcing a binding contract. Id.
Overruling all issues raised by the Coales, we affirm the trial courts order enforcing the Rule 11 agreement.
Brian Quinn
Chief Justice
[1]According to Texas Rule of Civil Procedure 11:
Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.