IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MARCH 8, 2002
______________________________
ERIC RAMIREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;
NO. B 3605-0008; HONORABLE ED SELF, JUDGE
_______________________________
Before BOYD, C.J., and QUINN and JOHNSON, JJ.
Appellant Eric Ramirez appeals from his conviction for burglary of a habitation and punishment of three years incarceration, which was suspended for 10 years. We affirm.
Appellant was charged by indictment in the 242nd District Court of Swisher County, with burglary of a habitation. After having been given his Miranda warnings, appellant gave Tulia police officers a written statement in connection with the alleged crime. Appellant filed a motion to suppress the written statement. Following a pretrial hearing on the motion to suppress, the trial court overruled the motion.
The case was tried to a jury. The jury found appellant guilty and sentenced him to three years in the Institutional Division of the Texas Department of Criminal Justice, with a recommendation that the confinement be suspended. In accordance with the jury's recommendation, the trial court suspended imposition of the sentence as to imprisonment and placed appellant on community supervision for 10 years. Appellant filed a Notice of Appeal and Motion for New Trial. No hearing was requested or held on the Motion for New Trial.
Appellant's appointed appellate counsel has filed a Motion to Withdraw and a Brief in Support thereof. In support of the motion to withdraw, counsel has certified that, in compliance with Anders v. California, 386 U.S. 738, 744-45, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the record has been diligently reviewed and that in the opinion of counsel, the record reflects no reversible error or grounds upon which a non-frivolous appeal can arguably be predicated. Counsel thus concludes that the appeal is frivolous. Counsel has set out a detailed analysis of the evidence demonstrating a conscientious review of the record, and has memorialized his conversations with appellant in connection with the appeal. Counsel has also attached exhibits showing that a copy of the Anders brief and Motion to Withdraw have been forwarded to appellant, and that counsel has appropriately advised appellant of appellant's right to review the record and file a response to counsel's motion and brief. Appellant has not filed a response to counsel's motion and brief.
We have made an independent examination of the record to determine whether there are any non-frivolous grounds on which appeal could be predicated. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L.Ed2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such grounds. We agree that the appeal is frivolous.
Accordingly, counsel's Motion to Withdraw is granted. The judgment of the trial court is affirmed.
Phil Johnson
Justice
Do not publish.
(Emphasis added). And, at the time Wilhite dismissed, through non-suit, his claims against the defendants, the trial court had pending before it a demand by one of the defendants, i.e. Covenant, for attorney's fees and costs against the other defendant. (4) Simply put, "any motion" for attorney's fees and costs means just that, "any motion" for attorney's fees and costs, and the demand of Covenant is "any [such] motion."
Nor do we find the case of Le v. Kilpatrick, 112 S.W.3d 631 (Tex. App.-Tyler 2003, no pet.) controlling. Edwards cites it for the proposition that a claim for indemnification is not a claim for affirmative relief and, thus, it is subject to vitiation when a plaintiff files a non-suit. While Le says as much, id. at 634, we note at least one pivotal circumstance differentiating the dispute there from that before us. In Le, nothing was said about there being a pending request for attorney's fees and costs at the time of the non-suit. In other words, the second paragraph of Rule 162 specifies two categories of claims that are shielded from vitiation due to a non-suit. One involves requests for "affirmative relief" while the other involves "any motion for sanctions, attorney's fees or other costs, pending at the time of dismissal . . . ." Tex. R. Civ. P. 162. Le dealt with the former, not the latter, and it is the latter category that is involved here. Finally, that Covenant may have labeled its request as one for indemnification, we note the old adage: "a rose is a rose by any other name." That is, irrespective of the label appended to the motion, its substance is of import. See Rush v. Barrios, 56 S.W.3d 88, 93 (Tex. App.-Houston [14th Dist.] 2001, pet. denied) (requiring courts to afford meaning to the substance of motions not their title). And, the substance of the motion on file and pending adjudication at the time of non-suit fell within the parameters of Rule 162.
In sum, the very order Edwards attempts to attack on appeal is interlocutory. Because it is interlocutory, we lack jurisdiction over the dispute. And, lacking such jurisdiction, we dismiss the appeal.
Brian Quinn
Chief Justice
1. Recovery was founded upon the allegations that 1) Edwards and Covenant sold to Ruth Marjean
Wilhite a contaminated mitral valve, 2) the valve was surgically implanted into Ruth, and 3) as a result of the
contamination and efforts to ameliorate it, she died.
2. The statute provides that a manufacturer shall "indemnify and hold harmless a seller against loss
arising out of a products liability action . . . for which the seller is independently liable." Tex. Civ. Prac. & Rem.
Code §82.002(a) (Vernon 2005).
3. 4.