IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
SEPTEMBER 30, 2004
______________________________
CANDELARIO MARTINEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B14878-0303; HONORABLE ED SELF, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Following his plea of not guilty, appellant Candelario Martinez was convicted by a jury of failure to stop and render aid, and the court assessed punishment at five years confinement, probated for five years, and a $5000 fine. In presenting this appeal, counsel has filed an Anders (1) brief in support of a motion to withdraw. We affirm and grant counsel's motion to withdraw.
On the evening of January 25, 2003, the victim was helping friends haul a hay bale to one of their homes, when the bale rolled off the truck and landed in the middle of the I-27 service road. While attempting to load the bale back onto the truck, the victim was struck by a vehicle driven by appellant. Appellant slowed down after striking the victim, but did not stop. Instead, he drove home, phoned his daughter, and "instructed her to call someone." When DPS Trooper Guadalupe DeLuna arrived at the scene he located the victim, flanked by his friends, lying in the bar ditch. According to DeLuna, the victim's "breathing was real shallow," "he was injured pretty bad," and "he was just lying there unresponsive." Emergency personnel responded to the scene and transported the victim to the hospital, where he later died from his injuries. Testing of the blood sample taken from the victim on the night of the offense revealed that it "contained 0.23 grams of alcohol per 100 ml."
After leaving the crime scene, DeLuna went to appellant's house and talked to him about the accident. Appellant admitted that "he was the one that was involved in the accident . . . 'north of town,'" and that "he knew he had hit somebody." Appellant then voluntarily accompanied officers to the hospital where he provided them with a specimen of his blood for purposes of determining blood alcohol content. Testing of appellant's blood revealed "No alcohol detected."
The Hale County Grand Jury returned a two count indictment against appellant alleging manslaughter in count one and failure to stop and render aid in count two. At trial, appellant testified and vigorously asserted the defense that the victim's negligence in being intoxicated and standing on the roadway at night mitigated appellant's responsibility for, if not directly resulted in, the victim's demise. With regard to count two, appellant claimed that he did not stop and render aid because he was afraid that the victim's friends "were going to beat [him] up or hurt [him] or even kill [him]." In its charge, the court instructed the jury on the law related to manslaughter and its lesser included offense, criminally negligent homicide. The court also included an instruction on the affirmative defense of duress. By its verdict, the jury found in favor of appellant as to count one, but rejected the duress defense associated with count two.
By his brief, counsel certifies that he diligently reviewed the record and, in his opinion, it 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). He, thus, concludes the appeal is frivolous and without merit. In the brief, counsel discusses why, under the controlling authorities, there is no error in the court's judgment. See High v. State, 573 S.W.2d 807, 813 (Tex. Cr.App. 1978).
We discern from the record that, in addition to providing appellant with a copy of the motion to withdraw, counsel also included a letter informing appellant that, in his view, the appeal is without merit. In the letter, counsel notified appellant of his right to review the record and file a pro se response. Appellant did not avail himself of that right, and the State did not favor us with a brief. Nevertheless, since this is an Anders case, we must conduct an independent examination of the record for error. (2) See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988).
1. The IndictmentThe indictment properly alleges the offenses of manslaughter and failure to stop and render aid. See Tex. Pen. Code Ann. § 19.04(a) (Vernon 2003) and Tex. Trans. Code Ann. § 550.021(c) (Vernon 1999). (3) Assuming arguendo that errors did exist in the indictment, the error could not be raised on appeal because appellant did not file a pretrial motion alleging error in it. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2004-05). Thus, we find no arguable error in the indictment.
2. Pretrial MotionsThe record reflects the trial court entered a standard discovery order imposing upon the State the continuing duty to disclose to appellant various matters relevant to the preparation of his defense. Additionally, the order encouraged the parties "to avoid filing motions that duplicate any of" its provisions. No pretrial motions appear in the record. The docket sheet reflects that, while a pretrial hearing was called for June 9, 2003, neither appellant nor his attorney appeared. Considering the breadth of the court's discovery order, and given the absence of any pretrial rulings adverse to appellant, we discern no error in the pretrial proceedings.
3. Voir DireA review of the voir dire examination shows that some venire members were acquainted with various potential State witnesses. However, in every case, the members indicated their relationships with the potential witnesses did not "rise to such a level that [they] would have difficulty being fair and impartial if [the witnesses] were to testify." Neither the State nor appellant exercised any challenges for cause. Thus, the trial court could not have erroneously ruled. See Johnson v. State, 43 S.W.3d 1, 5 (Tex.Cr.App. 2001)(noting that denial of a proper challenge for cause is error because the make up of the jury affects its decision). Furthermore, the trial court did not limit appellant's questioning of the jury. See Nunfio v. State, 808 S.W.2d 482, 485 (Tex.Cr.App. 1991)(holding that error in the denial of a proper question which prevents the intelligent exercise of peremptory challenges is an abuse of discretion, not subject to harm analysis). We, therefore, find no arguable error in the voir dire proceedings.
4. Opening StatementsAs a general rule, a timely and reasonably specific objection is required to preserve error for appellate review. Tex. R. App. P. 33.1(a); Hull v. State, 67 S.W.3d 215, 217 (Tex.Cr.App. 2002). Although each side presented opening statements, neither objected to the other's. Appellant has, thus, waived any error in the State's opening statement. Id. Moreover, we find no arguable error in the State's opening statements.
5. Legal and Factual Sufficiency of the EvidenceIt is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U. S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2004-05); Tex. Pen. Code Ann. 2.01 (Vernon 2003). In conducting a legal sufficiency review, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Cr.App. 2001). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988). In measuring the sufficiency of the evidence to sustain a conviction, we measure the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Cr.App. 1997).
After conducting a legal sufficiency review, we may proceed with a factual sufficiency review. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). As an appellate court, we view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). We will set aside the verdict only if: (1) it is so weak as to be clearly wrong and unjust; or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. It is the exclusive province of the jury to determine the credibility of the witnesses and the weight to be given their testimony, and unless the record demonstrates a different result is appropriate, we must defer to the jury's determination. Id. at 8.
Appellant admitted he drove the vehicle that struck and killed the victim. He also conceded that he did not stop to check on the welfare of the victim. Measuring appellant's testimony against a hypothetically correct jury charge, we conclude it established that (1) he was involved in an accident resulting in injury to or death of a person; and that he did not (2) immediately stop the vehicle at, or immediately return it to, the scene of the accident or as close to the scene as possible; and (3) remain at the scene of the accident until he had complied with his duty to give information and render aid. See Tex. Trans. Code Ann. § 550.021(a). Therefore, appellant's testimony alone demonstrated beyond a reasonable doubt the elements of the offense of failure to stop and render aid. Furthermore, appellant's only defense to the charge with which he was convicted was that of duress. See Tex. Pen. Code Ann. § 8.05(a). This, however, the jury was free to believe or disbelieve. Goodman v. State, 66 S.W.3d 283, 287 (Tex.Cr.App. 2001)(holding that it is the jury that accepts or rejects reasonably equal competing theories of a case). Given appellant's obvious interest in the outcome of the trial, and the State's witnesses' testimony that they did not threaten appellant, a rational jury was entitled to find that he had not proven his affirmative defense by a preponderance of the evidence. See Tex. Pen. Code Ann. § 2.04(d). In short, the proof of appellant's guilt is not so obviously weak as to undermine confidence in the jury's determination. See King, 29 S.W.3d, 556, 563. (Tex.Cr.App. 2000). Neither do we find that the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Id. We, thus, find no arguable factual or legal sufficiency ground of error.
6. Closing ArgumentAppellant made no objections to the State's closing arguments; therefore, he waived any error. See Tucker v. State, 990 S.W.2d 261, 262 (Tex.Cr.App. 1999). Furthermore, we find no arguable error in the State's closing arguments.
7. Punishment PhaseAgain, a timely and reasonably specific objection is required to preserve error for appellate review. Tex. R. App. P. 33.1(a); Hull, 67 S.W.3d at 217. Appellant did not object during the punishment phase on any basis; therefore, he waived any challenge to the sentence imposed. See Rhodes v. State, 934 S.W.2d 113, 120 (Tex.Cr.App. 1996). Furthermore, the five year probated sentence and $5000 fine were within the range of punishment prescribed by statute. See Tex. Trans. Code Ann. § 550.021(c). Resultantly, we find no arguable error in the punishment phase.
8. Ineffective Assistance of CounselA claim of ineffective assistance of counsel is reviewed under the standard set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under that standard, a defendant must establish that: (1) counsel's performance was deficient because it fell below an objective standard of reasonableness; and (2) a reasonable probability sufficient to undermine confidence in the outcome existed that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Rylander v. State, 101 S.W.3d 107, 110 (Tex.Cr.App. 2003). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Garcia v. State, 887 S.W.2d 862, 880 (Tex.Cr.App. 1994), cert. denied, 514 U.S. 1021, 115 S. Ct. 1368, 131 L. Ed. 2d 223 (1995). Any allegation of ineffective assistance of counsel must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Cr.App. 1999). Generally, the record on direct appeal will not be sufficient to show that counsel's conduct was so deficient as to meet the first prong of the Strickland standard as the reasonableness of counsel's choices often involves facts that do not appear in the record. See Mitchell v. State, 68 S.W.3d 640, 642 (Tex.Cr.App. 2002). Instead, an application for a post-conviction writ of habeas corpus is usually the appropriate manner in which to raise and develop claims based on ineffective assistance of counsel. Id. Here, the record contains no evidentiary support for any claim of ineffective assistance of counsel. To the contrary, we conclude that the fact that appellant was acquitted of manslaughter, the higher degree offense charged in count one, is at least some evidence of trial counsel's effectiveness. Thus, having found no non-frivolous issues, we agree with counsel that the appeal is without merit. Currie v. State, 516 S.W.2d at 684.
Accordingly, the judgment of the trial court is affirmed, and counsel's motion to withdraw is granted.
Don H. Reavis
Justice
Do not publish.
1. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2. While recognizing the tenets of a memorandum opinion, we deem the facts of this case to present one of the "certain instances" warranting a detailed explanation of what our independent review entailed. Morales v. State, ___ S.W.3d ___, No. 13-03-035-CR, 2004 WL 1854213, at *1 (Tex.App.-Corpus Christi August 19, 2004, no pet. h.)
3. Considering appellant was acquitted of manslaughter, we will focus our analysis to the remaining count of failure to stop and render aid.
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NO. 07-09-0248-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 17, 2010
CHARLES WILLIAMSON A/K/A CHARLES J. WILLIAMSON,
Appellant
v.
THE STATE OF TEXAS AND WELLS FARGO BANK, N.A.,
Appellees
_____________________________
FROM THE COUNTY COURT AT LAW NO 1 OF TRAVIS COUNTY;
NO. C-1-CV-09-001389; HONORABLE J. DAVID PHILLIPS, PRESIDING
Memorandum Opinion
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Charles Williamson (Williamson) files a pro se direct appeal from the trial courts order denying his motion to intervene and quash a garnishment against funds of his held by Wells Fargo Bank, N.A. (Wells Fargo). He also asserts a restricted appeal with respect to the propriety of the garnishment. We reverse the order.
Background
The State of Texas filed an application for a writ of garnishment against Wells Fargo on February 9, 2009, to obtain money from bank accounts of Williamson for payment on a judgment entered on September 8, 1997, against Williamson with respect to a student loan obtained from the State. The record presented on appeal does not show service of the application on Williamson at the time of its filing.[1] A judgment agreed to by the State and Wells Fargo was entered on February 24, 2009. That judgment was later amended by a judgment dated March 3, 2009, in which the State recognized that some of the money in Williamsons accounts was exempt, and it was released for his benefit. The record indicates that, prior to the entry of the March 3 judgment, Williamson had contacted the State claiming that some or all of the money was exempt. Thus, it is clear that he had actual knowledge of the garnishment prior to entry of the March 3 judgment. There is also evidence that at some point he received a copy of the application from either the State or Wells Fargo.
Williamson filed an amended motion to intervene and quash the garnishment on March 10, 2009, after entry of the final judgment.[2] In that motion, he raised the lack of notice to him as well as other defenses. On April 28, 2009, the court conducted a hearing on the motion at which time the court ruled that it no longer had jurisdiction because the hearing had not been held within ten days pursuant to Rule 664a of the Rules of Civil Procedure. Thus, the merits of Williamsons motion to intervene and quash were never addressed. He then filed both a direct appeal from the trial courts order and a restricted appeal.
Order on Motion to Intervene and Quash
First, Williamson challenges the trial courts order denying his motion to intervene and to quash the garnishment by arguing that the trial court had jurisdiction to consider them.[3] Rule 664a provides:
A defendant whose property or account has been garnished or any party who claims an interest in such property or account, may by sworn written motion, seek to vacate, dissolve or modify the writ of garnishment, and the order directing its issuance, for any grounds or cause, extrinsic or intrinsic. . . . Unless the parties agree to an extension of time, the motion shall be heard promptly, after reasonable notice to the plaintiff . . ., and the issue shall be determined not later than ten days after the motion is filed. Williamson contends this rule is for the benefit of the debtor and should not be used to deprive him of the right to intervene.
Several courts have found that this rule is not jurisdictional. See Cloughly v. NBC Bank-Seguin, N.A., 773 S.W.2d 652, 658 (Tex. App.San Antonio 1989, writ denied) (holding that the failure to hold a hearing within ten days was waived when the debtor made no complaint); Kyanize Paints, Inc. v. Denton, No. C14-91-00705-CV, 1992 Tex. App. Lexis 1379 at *7-8 (Tex. App.Houston [14th Dist.] May 21, 1992, no writ) (not designated for publication) (stating that a hearing beyond ten days was not precluded when the creditor was the complaining party). That the parties may agree to an extension of the deadline further illustrates the non-jurisdictional nature of the period; if jurisdictional, the parties cannot negotiate it or manufacture new periods. Good Shepherd Medical Center, Inc. v. State, 306 S.W.3d 825, 837 (Tex. App.Austin 2010, no pet.) (stating that subject matter jurisdiction cannot be conferred by agreement). Williamson further argues that he was informed by a court employee that he could not obtain a hearing for three weeks.[4] The purpose of the notice requirement and the opportunity to intervene is to provide the debtor with due process. See Hering v. Norbanco Austin I, 735 S.W.2d 638, 641 n.5 (Tex. App.Austin 1987, writ denied). The inability of a courts docket to hear the motion within ten days of its filing should not be used to punish the debtor. We find the trial court was not precluded by Rule 664a from hearing the merits of the matter.
The court also discussed the fact that thirty days had passed since the judgment had been entered. A courts plenary power ends thirty days after all timely filed motions to grant a new trial or to vacate, modify, or correct a judgment are overruled. Sims v. Fitzpatrick, 288 S.W.3d 93, 105 (Tex. App.Houston [1st Dist.] 2009, no pet.). Williamson filed his verified motion to intervene and to quash the garnishment within thirty days of the entry of the judgment. Since the statutes pertaining to garnishments do not specify a time period within which a motion to vacate, dissolve or modify a writ of garnishment may be filed, we presume that the courts plenary power is the same as in other proceedings. That being so, we will treat Williamsons motion as a post-judgment motion to vacate the judgment. Since the court ruled on it within the prescribed time limits, see Tex. R. Civ. P. 329b(c), we find that the trial court had jurisdiction.
Our ruling on this matter precludes the need to discuss other issues raised by appellant or his restricted appeal. We reverse and remand to the trial court for further proceedings.
Brian Quinn
Chief Justice
Pirtle, J., concurs in result only.
[1]Rule 663a of the Rules of Civil Procedure provides for service of the writ on the defendant. Moreover, specific language must be used in that notice. Several courts have held that the trial court errs in granting a writ of garnishment when there is no proof of service in strict compliance with the statute even if the defendant had actual notice. Lease Finance Group, LLC v. Childers, 310 S.W.3d 120, 126 (Tex. App.Fort Worth 2010, no pet.); Zeecon Wireless Internet, LLC v. American Bank of Texas, N.A., 305 S.W.3d 813, 817-18 (Tex. App.Austin 2010, no pet.); Abdullah v.State, 211 S.W.3d 938, 942-43 (Tex. App.Texarkana 2007, no pet.); Mendoza v. Luke Fruia Invs., 962 S.W.2d 650, 651-52 (Tex. App. Corpus Christi 1998, no pet.); but see Del-Phi Engineering Associates, Inc. v. Texas Commerce Bank-Conroe, N.A., 771 S.W.2d 589 (Tex. App.Beaumont 1989, no writ) (stating that even though notice of the garnishment was not sent to the debtors, a hearing on the motion to vacate the writ was properly held by agreement as notice was, in effect, waived). Moreover, a recitation in the judgment that notice has been given does not create a presumption in favor of the garnishor. Lease Finance Group, LLC v. Childers, 310 S.W.3d at 126.
[2]The court indicated that Williamson had filed a motion to intervene and quash on March 6, 2009, but that document is not contained in the clerks record.
[3]Wells Fargo contends that appellants notice of appeal is untimely because he appealed from the courts order and not from the final garnishment judgment. However, we have jurisdiction to determine the trial courts jurisdiction. State v. Morse, 903 S.W.2d 100, 102 (Tex. App.El Paso 1995, no writ) (court of appeals may address the propriety of the county courts exercise of jurisdiction or refusal to do so under its general jurisdiction).
[4]Appellant apparently did not attempt to set a hearing until after the ten days had passed. However, it appears that the trial court may not have been able to accommodate a hearing within ten days.