IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
JUNE 28, 2002
______________________________
COLLIE B. WILLARD, III, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 95-420,722; HONORABLE JIM BOB DARNELL, JUDGE
_______________________________
Before BOYD, C.J., and QUINN and REAVIS, JJ.
Pursuant to a plea bargain, (1) on September 30, 1997, appellant Collie B. Willard, III was convicted of possession of a controlled substance and punishment was assessed at five years confinement, suspended. Upon the State's second amended motion to revoke appellant's community supervision for violations of the conditions thereof, on August 23, 2001, the trial court revoked community supervision and assessed punishment at four years confinement. Appellant filed a general notice of appeal challenging the trial court's judgment. In presenting this appeal, counsel has filed an Anders (2) brief in support of a motion to withdraw. Based upon the rationale expressed herein, the appeal is dismissed for want of jurisdiction.
In support of his motion to withdraw, counsel has certified that he has diligently reviewed the record and, in his opinion, the record reflects no reversible error or grounds upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.--San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous and without merit. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the court's judgment. Counsel has also shown that he sent a copy of the brief to appellant, and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se brief if he desired to do so. Appellant did not file a pro se brief nor did the State favor us with a brief.
Appellate jurisdiction is invoked by filing a timely and proper notice of appeal. See State v. Riewe, 13 S.W3d 408, 410 (Tex.Cr.App. 2000). To perfect an appeal from a judgment that was rendered on a defendant's guilty plea and in which the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, a notice of appeal must (a) specify that the appeal is for a jurisdictional defect; (b) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (c) state that the trial court granted permission to appeal. Tex. R. App. P. 25.2(b)(3); see also White v. State, 61 S.W.3d 424, 428-29 (Tex.Cr.App. 2001) (holding that the notice requirements set forth in Rule 25.2(b)(3) should be interpreted according to their plain meaning and that failing to meet the requirements fails to invoke the jurisdiction of an appellate court); see also Vidaurri v. State, 49 S.W.3d 880, 884 (Tex.Cr.App. 2001) (holding that the notice of appeal limitations of Rule 25.2(b)(3) apply to an appeal from a conviction rendered on a guilty plea with agreed punishment).
Appellant's notice of appeal does not contain any of the requirements set forth in Rule 25.2(b)(3) necessary to invoke this Court's jurisdiction over his conviction. Thus, our jurisdiction has not been invoked and the appeal must be dismissed. Accordingly, the appeal is dismissed for want of jurisdiction and we are without jurisdiction to rule on counsel's motion to withdraw.
Don H. Reavis
Justice
Do not publish.
1. The criminal docket sheet included in the clerk's record reflects that appellant
entered into a plea bargain agreement.
2. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
urt make a new division of the property divided in the original divorce decree. Lori’s request for relief, through the bill of review process, is founded upon the allegations that Thomas committed fraud. According to the petition, the fraud was in the nature of fraudulent representations regarding what the relationship of the parties would be after the divorce. Lori posits that Thomas’s actions prevented her from asserting claims against him for fraud on the community, fraud on a spouse’s separate property, breach of fiduciary duty, duress, and overreaching.
Thomas filed a traditional motion for summary judgment alleging that, as a matter of law, Lori could not establish a prima facie case in support of her bill of review. The trial court granted a partial summary judgment, reserving the issue of attorney’s fees. Thereafter, Thomas filed a motion for summary judgment on the issue of attorney’s fees. The trial court granted this summary judgment and entered a final judgment. This appeal resulted from the entry of this final judgment.
Standard of Review
A party may prevail on a summary judgment motion by conclusively establishing the absence of any genuine issue of a material fact and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). If the summary judgment movant is a defendant, the movant must conclusively negate at least one of the elements of the non-movant’s cause of action or must conclusively prove each element of an affirmative defense. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). We review the granting of a traditional summary judgment motion de novo, applying the standards set out in Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985):
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In determining whether there is a disputed issue of material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Bill of Review
A bill of review is an equitable action brought by a party to a previous suit seeking to set aside a judgment which is no longer appealable or subject to a motion for new trial. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A bill of review is proper where a party has exercised due diligence to prosecute all adequate legal remedies against a former judgment and, at the time the bill of review is filed, there remains no adequate legal remedy available through no fault of the proponent. Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979). Ordinarily, one with an available appellate remedy who fails to pursue that remedy is not entitled to seek relief by way of a bill of review. Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980). Because of the fundamental importance of the finality of judgments, bills of review are examined closely and the grounds upon which a bill of review can be obtained are narrow and restricted. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). To successfully challenge a judgment by bill of review, the petitioner must prove: (1) a meritorious defense to the cause of action; (2) that petitioner was prevented from making the defense by the fraud, accident, or wrongful act of the opposite party; and (3) that the failure to make the defense was unmixed with any fault or negligence of the petitioner. King Ranch, Inc., 118 S.W.3d at 751 (citing Alexander, 226 S.W.2d at 998.).
Fraud in relation to a bill of review attack on a final judgment is either extrinsic or intrinsic. Id. at 752. Only extrinsic fraud will support a bill of review. Id. (citing Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989)). Extrinsic fraud is fraud that denied a party the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. Id. Intrinsic fraud, by contrast, relates to the merits of the issues that were presented and presumably were or should have been settled in the former action. Id. Within that term are included such matters as fraudulent instruments, perjured testimony, or any matter which was actually presented to and considered by the trial court in rendering the judgment assailed. Id. Such fraud will not support a bill of review because each party must guard against adverse findings on issues directly presented. Id. (citing Tice, 767 S.W.2d at 702 and Alexander, 226 S.W.2d at 998). Issues underlying the judgment attacked by a bill of review are intrinsic and thus have no probative value on the fraud necessary to a bill of review. Id.
Analysis
Lori contends that Thomas committed fraud because he was only able to get her to sign the post-nuptial agreement by overcoming her free will and this post-nuptial agreement became the agreement incident to divorce that was embodied in the final decree of divorce. Further, she contends that, at the time of the divorce she did not know the extent or value of the marital estate. To support these allegations, Lori sets forth a myriad of factual allegations of Thomas’s alleged abusive conduct during the marriage. Finally, Lori argues that the disproportionate property division can not be allowed to stand.
Assuming, arguendo, that Lori’s contention regarding the original post-nuptial agreement is correct, it does not demonstrate extrinsic fraud as to the 2003 divorce decree. The record reflects that Lori employed an attorney to represent her in the divorce proceeding. The record further reflects that the attorney filed an answer and appeared at the final hearing on the divorce. During that hearing, Lori’s attorney made the following statement,
She expressed concern to me that although she was not sure about the extent and magnitude of the parties’ estate, that she was of the opinion that she was only going to receive approximately 20 percent of the total estate in terms of the proposed agreement.
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She came back later Friday afternoon and delivered me a handwritten copy of that postnuptial agreement....Had a phone conversation with Ms. Noonan yesterday afternoon and explained to her that in my opinion she had at least a reasonable chance of setting the postnuptial agreement aside because she alleged she had not signed it voluntarily, and she, based on representations made to me, appeared that it might be [un]conscionable and that she did not have full disclosure of the assets of the parties at the time she executed it.
This statement clearly shows that, at the time the decree complained of was entered, Lori had knowledge of a possible defense to the entry of the agreement incident to divorce based on the post-nuptial agreement. As such, this was an issue that could have been presented to the trial court and, therefore, cannot serve as the basis for a bill of review. Id.
Lori also contends that she lacked capacity to sign the 2003 divorce decree. However, her attorney’s representations to the court are contrary to that position. In the same statement to the court quoted above, Lori’s attorney further explained that she had come to his office on the morning of the hearing and asked to sign off on the agreement. Lori explained that she did feel pressured and unable to stand up to going through the proceedings. Lori then asked that he appear for her and sign off on the agreement. In response to the trial court’s question whether Lori was asking the trial court to approve the instruments, trial counsel answered, “That’s my understanding. She asked me to go ahead and sign off.” Again, all these statements show that Lori, for whatever reason, understood what was about to take place and did not choose to personally go through the process. Yet, Lori’s affidavit clearly demonstrates that she was present in the courtroom at the time the hearing was conducted. In reviewing Lori’s evidence of coercion and duress that overcame her free will or demonstrated a lack of capacity, we find that nearly all of the alleged coercion was during the marriage and dealt with the execution of the original post-nuptial agreement. As stated above, Lori was aware of this and, in fact, her attorney discussed these matters with her. Therefore, it was, at best, intrinsic fraud and would not support a bill of review. Id. As to the evidence that Thomas threatened her by stating that if Lori fought the divorce she would get less because he would spend it all on attorney’s fees, we note that Lori has provided the Court with no cases supporting the proposition that a threat to litigate is the type of coercion that would overcome someone’s free will or remove their capacity to consent nor have we found any authority to support this proposition.
Lori also contends that Thomas’s reaction to her consulting with an attorney and filing an answer was so violent that it overcame her own free will. To this end, Lori has provided the affidavit of a witness, Claudia Davis. Yet, an examination of Lori’s affidavit reveals that the incident in question occurred before Thomas filed for divorce. After the alleged incident, Lori met with an attorney, discussed the proposed decree, and, indeed, the attorney filed an answer and appeared for Lori. Therefore, the very issue Lori said the outburst was designed to prevent, Lori seeking legal assistance, occurred. Accordingly, we cannot say Lori’s free will was overcome by Thomas’s alleged duress and coercion. Finally, with Lori’s declaration that the pivotal abusive incident occurred not a day or two before the final decree, Lori’s attorney participating in the final hearing, and Lori’s own presence in the courtroom, we are strained to conclude that Lori was not aware of all that was going on and was unable to meaningfully participate in the trial. Rather, all of these matters were known to Lori and her attorney and would, at best, be classified as intrinsic fraud that would not support her bill of review. Id. Finally, her failure to pursue an appeal when she was aware of the issues and the possible merits of an appeal demonstrate a lack of diligence and, therefore, are negligence attributable to Lori. As such, this also defeats her claim for relief via a bill of review. Rizk, 603 S.W.2d at 775. At the end of the day, it appears to this Court that what is presented is nothing more than allegations that the decree of divorce provided an inequitable and unfair division of the marital estate. An injustice in a final order will not support relief for a party by a bill of review. See Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, 96 (1940). Accordingly, we find that the trial court did not err in granting the summary judgment.
Attorney’s Fees
As the issue of attorney’s fees was dependent on our reversal of the granting of the summary judgment, we affirm the trial court’s award of attorney’s fees.
Conclusion
Having overruled all of Lori’s issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice