IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 23, 2004
______________________________
SAMUEL ESCOBAR, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 40,383-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
On June 14, 1999, appellant Sammy Ray Escobar pleaded guilty, pursuant to a plea bargain, to an indictment alleging aggravated assault with a deadly weapon. After hearing the evidence and finding that it substantiated appellant's guilt, the trial court, acting in accordance with the plea bargain, deferred further proceedings without entering a finding of guilt and placed appellant on community supervision for ten years. Later, the State filed a motion to proceed with adjudication of guilt and, on January 16, 2003, the trial court conducted a hearing on the motion. Appellant pleaded true to all seventeen of the violations alleged by the State in its motion, and the State recommended a sentence previously agreed to by appellant. The trial court adjudicated appellant guilty, then followed the State's recommendation by imposing a sentence of 14 years confinement and entering a deadly weapon finding. Appellant filed a pro se notice of appeal, and the trial court appointed appellate counsel. In presenting this appeal, appellant's attorney has filed an Anders brief in support of a motion to withdraw. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). We affirm and grant counsel's motion to withdraw.
In his brief, appellant's attorney certifies he diligently reviewed the record and determined that, in his opinion, it reflects no reversible error or grounds upon which an appeal can be predicated. Id. Thus, he concludes, the appeal is without merit and is frivolous. Also in the brief, counsel candidly 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). Furthermore, counsel certifies he served a copy of the brief on appellant and informed him that, in his view, the appeal is without merit. Attached to the brief is a copy of a letter by which the attorney notified appellant of his right to review the record and to file a response.
In compliance with the principles enunciated in Anders, counsel discusses four potential areas for appeal. First, he explains that appellant failed to appeal issues related to his original plea of guilty within 30 days of being placed on deferred adjudication. Additionally, according to counsel, even if appellant had timely filed the notice of appeal, it would be inadequate to invoke this Court's jurisdiction because it does not comport with the certification requirements of rule 25.2 of the Rules of Appellate Procedure. Second, counsel points out that article 42.12 of the Code of Criminal Procedure provides that no appeal may be taken from a determination to proceed with adjudication of guilt. In any event, counsel continues, appellant pleaded true to each of the violations alleged by the State in its motion to proceed with adjudication of guilt, and any one of those pleas would be sufficient to support the trial court's decision to revoke. Third, while acknowledging that appellant did not receive a separate punishment hearing, counsel notes that the record is devoid of any objection to, or motion for new trial on the basis of, the trial court's failure to conduct one. Finally, counsel refers to appellant's pro se notice of appeal by which appellant appears to complain that his true plea at the adjudication hearing was involuntary because he received ineffective assistance of counsel. Counsel concludes, however, that this Court would be without jurisdiction to entertain the complaint. In sum, counsel determines that the only portion of the proceeding over which this Court would have jurisdiction is the punishment phase of the adjudication hearing. In that proceeding, in response to the only potential error-the trial court's failure to conduct a separate punishment hearing-appellant neglected to lodge an objection.
Appellant filed a response claiming the trial court erred in failing to admonish him (1) "regarding the legal consequences of a nolo contendere plea" (1) and (2) "of the consequences of deferred adjudication"; and (3) by "adjudicating [him] guilty and immediately sentenced [sic] him to (14) yrs [sic] confinement without giving [him] opportunity [sic] to be heard on the issue of punishment and sentencing." (2) With his first two complaints appellant maintains that the plea he entered on January 16, 2003 was rendered involuntary by the trial court's failure to comply with the admonishment requirements of article 26.13 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 26.13(a) (Vernon Supp. 2004). (3) That article requires the trial court to advise a criminal defendant of certain rights prior to accepting his guilty or nolo contendere plea. The trial court accepted appellant's guilty plea in June of 1999 during the original plea hearing. Article 26.13 imposed no further duty upon the trial court during the subsequent probation revocation in January of 2003. Furthermore, if appellant believed the trial court's admonitions to him during the original plea proceeding failed to comport with the edicts of article 26.13, the time for him to voice that objection was immediately following the imposition of deferred adjudication. See Nix v. State, 65 S.W.3d 664, 667 (Tex.Cr.App. 2001). Thus, we cannot consider appellant's first and second complaints.
With the last complaint in his response, appellant challenges the trial court's failure to conduct a separate punishment hearing. While no appeal may be taken from a trial court's determination to adjudicate guilt, one may be had to challenge the assessment of punishment and pronouncement of sentence. Art. 42.12, § (5)(b); see Olowosuko v. State, 826 S.W.2d 940, 942 (Tex.Cr.App. 1992). Here, after appellant pleaded true to each of the allegations contained in the State's motion to proceed with adjudication of guilt, the trial court inquired of the State's recommendation. The State then detailed the plea bargain agreement as to punishment, and appellant's attorney confirmed it. The court immediately pronounced sentence, without giving appellant the opportunity to present evidence relevant to punishment. In this, the trial court erred. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Cr.App. 2001). However, because appellant neither objected to the trial court's failure to allow him to present punishment evidence, nor filed a motion for new trial complaining of his inability to do so, he has waived such error. Id.
By his notice of appeal, appellant advances an ineffective assistance of counsel claim. Appellant contends his attorney had a "conflict of interest" and that there was an "attorney-client break-down" which precipitated his decision to plead true to the allegations contained in the State's motion to proceed with adjudication of guilt. Appellant appears to assert that his plea was rendered involuntary by the ineffective assistance of counsel. Initially, we note that the voluntariness of a plea from a plea-bargained felony conviction is not reviewable on appeal. Cooper v. State, 45 S.W.3d 77 (Tex.Cr.App. 2001). Next, we acknowledge that in the context of an adjudication proceeding, we may only review ineffective assistance claims as they pertain to post adjudication matters . See Olowosuko 826 S.W.2d at 942 (holding that article 42.12, section 5(b) expressly allows an appeal of all proceedings after adjudication of guilt on original charge). Because appellant's complaint pertains to matters that occurred before the trial court adjudicated him, we may not consider it.
In addition to considering counsel's and appellant's complaints, we have made an independent examination of the entire record to determine whether there are any arguable grounds which might support the appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503, 511 (Tex.Cr.App. 1991). The record illustrates that no appeal was taken within 30 days from the date of appellant's guilty plea and the order to defer adjudication of his guilt. When the adjudication of an accused's guilt is deferred and the individual is placed on community supervision, complaints involving the original plea proceeding must be raised on appeal immediately after deferred adjudication is imposed. Nix, 65 S.W.3d at 667. The only instance in which they may thereafter be raised by direct appeal concerns error rendering the judgment void. Id. at 667. In this case, there is no evidence to indicate that any of the void judgment exceptions apply. Thus, we would have no jurisdiction over any purported error arising from or prior to the plea hearing. Further, appellant pleaded true to the violations of his community supervision, and no appeal may be taken from a determination to proceed with adjudication of guilt. Art. 42.12, § 5(b). The punishment assessed was also within the range prescribed by law and agreed to by the parties. Tex. Pen. Code Ann. art. 12.33(a) (Vernon 2003). Thus, having found no arguable grounds for appeal, we concur with counsel's assessment that the appeal is without merit and frivolous. Currie v. State, 516 S.W.2d 684 (Tex.Cr.App. 1974).
Accordingly, counsel's motion to withdraw is granted and the judgment of the trial court is affirmed.
Don H. Reavis
Justice
Do not publish.
1. While appellant purports to challenge his plea of nolo contendere, we observe that he, in fact, entered a guilty plea during the original plea proceedings.
2. In the section of his response entitled Issues Presented for Review, appellant lists an additional complaint urging that the trial court's failure to provide a separate punishment hearing deprived him of due process. Apart from its mention in that section, however, appellant neither refers to that claim elsewhere in the response nor presents arguments and authority to support his position. Thus, we will not consider it. See Tex. R. App. P. 38.1(h).
3. All references are to the Code of Criminal Procedure unless otherwise indicated. (Vernon Supp. 2004).
n"> Pointing to Linda's testimony in which she avers the note balance was "50," Stanley argues that her testimony that the house had a market value of $60,000 was evidence that "$10,000 [was] paid into the house by the community" and he is entitled to reimbursement for half of that amount. However, as we mentioned above, under section 3.403 of the Family Code, a marital estate is only entitled to a reimbursement claim when it makes an economic contribution to property owned by another marital estate. Here, the S. 14th Street house was community property and the debt on the house was also a community debt, thus the payments on that debt were not an economic contribution to another marital estate. Thus, no claim for economic contribution existed. Id. The trial court did not err in the method it used for determining the community estate's equity at the time of the marriage dissolution as a basis for making a division of that property. Stanley's second point is overruled.
In his ninth point, Stanley contends that because there was no evidence of the amount of his retirement benefits, the trial court erred in using those benefits to offset his claims for reimbursement. At trial, Linda testified that although she did not have any specific information about the value of Stanley's retirement benefits accrued during the marriage, she requested they be divided equally. Our examination of the record reveals that during the closing arguments, the trial court inquired if there was any information available on the value of Stanley's retirement benefits. Without objection, Stanley's attorney replied that it was a defined benefits plan with no present value but the anticipated benefits were $128 per month. As we noted above, in its findings, the trial court stated that any claim for reimbursement to which Stanley was entitled was offset by the division of the community estate and community debts, including his retirement benefits.
Stanley now argues that the division was an abuse of discretion because, without any information as to the amount of the benefits, the trial court had no basis upon which to make the finding. However, the record does not support that contention. As we have noted, the trial court did have information on the amount of the benefits from Stanley's attorney. Indeed, in considering whether the trial court abused its discretion in its decision, it is important to note that Stanley failed to present evidence upon which the court could determine the amount of his claim for economic contribution.
In a related argument, Stanley takes the position that the trial court failed to comply with Family Code section 6.711 which requires a court, upon proper request, to make findings of fact and conclusions of law characterizing and valuing the party's assets, liabilities, claims and offsets "on which disputed evidence has been presented." Stanley particularly complains of the court's failure to place specific values upon his retirement account and his occupancy of Linda's separate property house. However, there was no evidence presented by either party on the value of Stanley's occupancy of the house and the only information pertaining to the value of Stanley's retirement benefits was from his counsel and was undisputed. Thus, there was no disputed evidence on those items that would require resolution by a trial court finding.
We note Stanley's citation to Roberts v. Roberts, 999 S.W.2d 424, 434 (Tex. App.-El Paso 1999, no pet.), for the proposition that Linda bore the burden of presenting evidence concerning the value of his retirement benefits. However, in relevant part, the Roberts court's actual pronouncement was "[t]he Wallace (5) opinion states that it is the burden of the parties to introduce evidence as to the values of the assets whereby a range of value can be determined by the trial court." (Emphasis added). That comment does not support Stanley's position that the burden was Linda's alone. Even so, no further analysis of the Roberts opinion is necessary because the issue is now governed by section 6.711. Given the limited evidence presented at trial by both parties, we cannot say that the trial court's resolution of Stanley's claim for reimbursement and retirement benefits amounted to an abuse of its discretion. Stanley's ninth point is overruled.
In his tenth point, Stanley argues the trial court erred in its finding that Linda had reduced unsecured community debts by $8,450 and used that finding as a basis for denying reimbursement. The trial court's specific finding in its 13th finding of fact was that Linda had reduced the $24,450 balance owed on community credit card debt on the date the couple separated to a balance of approximately $16,000 owed on the date of trial. The thrust of Stanley's argument is that any reduction in that debt cannot be used to deny his claim for reimbursement because Linda's repayment would have been from community funds.
Supporting his argument, Stanley reasons that trial court finding 11 shows it used the debt reduction to deny him reimbursement. Finding 11 reads:
Any claim that [Stanley] may have for reimbursement for improvements made to the 860 2nd Street property in Silsbee, Texas was offset by the benefit that [Stanley] received by living in the house during the marriage of [Linda and Stanley] and by the division of [the] community property and community debts, including [Stanley's] retirement benefits.
We disagree that this finding shows the trial court improperly used the debt reduction to deny reimbursement. Rather, it makes no mention of the debt reduction, but merely states that Stanley's claim for reimbursement was considered by the court in making its property division. We overrule Stanley's tenth point.
Stanley is correct in his first point contention that the trial court erred in using his occupancy at 860 N. 2nd Street as a basis to offset part of his claim for economic contribution. Section 3.403(e) of the Family Code specifically disallows such use to offset a claim for economic contribution. Even so, the error does not automatically require reversal. We may only reverse if the error probably caused the rendition of an improper judgment or probably prevented Stanley from presenting his case on appeal. Tex. R. App. P. 44.1(a). Given the indefinite evidence supporting Stanley's claim for economic contribution, and viewing the property division as a whole, we cannot say the error probably caused the rendition of an improper judgment or prevented Stanley from presenting his appeal. Stanley's first point is overruled.
Stanley's second group of points concern the trial court's child support provisions. In his third point, he asserts the trial court erred in failing to provide a reduction in child support when the older child turned 18. His only supporting argument is a statement that there is a seven year age difference between the two children and the order should "decrease to around $400/month" when the older child turns 18. His argument only references the divorce decree provision setting support at $536 per month and cites no authority supporting his contention that the omitted provision requires reversal.
Texas courts have rejected identical arguments. See Ex parte Mathis, 822 S.W.2d 727, 732 (Tex. App.-Tyler 1991, no writ), citing Gross v. Gross, 808 S.W.2d 215, 219 (Tex. App.-Houston [14th Dist.] 1991, no writ). When the first child turns 18, by virtue of Texas Family Code section 156.401 (Vernon 2002), Stanley has the right to seek a modification of his support obligation. Stanley's third point is overruled.
Stanley's fourth, fifth, and sixth points are closely related. In point four, he assigns error to the trial court's failure to state his net resources as required by section 154.130(b) of the Family Code. In point five, he argues the trial court improperly deviated from the net resource calculation guidelines, and in point six, he argues the court presumed he could earn additional income.
Section 154.130 of the Family Code only requires findings on, inter alia, the monthly net resources of the obligee and obligor if: 1) a party files a written request not later than ten days after the hearing, 2) a party makes an oral request during the hearing, or 3) the court orders an amount of child support that varies from the statutory percentage guidelines. Tex. Fam. Code Ann. §154.130(a) (Vernon 2002).
The hearing in this case was held on May 15, 2002. Stanley's request for findings under section 154.130 was not filed until August 29, 2002, which was not within the requisite statutory time period. He does not contend, and the record does not show, that he made an oral request for findings during the hearing. Although Stanley additionally argues the findings were required because the support ordered varied from the statutory guidelines, without a finding on net resources, we cannot determine if there was a variance from the percentage guidelines. Even so, we do note that the trial court found that appellant's support obligations "should be based upon a gross yearly amount of $32,000." Thus, in round figures and based upon the 2002 tax charts adopted pursuant to section 154.061(b) of the Family Code, appellant's net monthly resource would be $2,132. Under the child support guidelines set out in section 154.125, his child support obligations would be $533. The trial court's support order of $536 was within the purview of the statutory guidelines. Stanley's fourth and fifth points are overruled.
The gist of Stanley's sixth point is that the trial court erred in finding his support should be based upon a gross annual income of $32,000 when the evidence showed that his income at the time of trial was $29,738. He argues that this amounts to a finding that he was intentionally underemployed, see Tex. Fam. Code Ann. §154.066 (Vernon 2002), and points out that such a finding requires evidence of a design to reduce child support payments. He cites and relies upon Dubois v. Dubois, 956 S.W.2d 607, 610 (Tex. App.-Tyler 1997, no pet.), in which the court reversed a finding that the father's earning potential was $2,820 per month when the only evidence on the question was that his current income was less than $1,000 per month. Id. at 611.
Unlike Dubois, the court's finding here was based upon an average of actual earnings, rather than earning potential. In its finding of fact number seven, the court found Stanley's annual income for the three previous years was $35,859 in 1999, $37,457 in 2000, and $29,738 in 2001. The court's $32,000 recitation was well below his average earnings of $34,351 (6) during those years. Thus, the $32,000 finding was not based upon a determination of intentional underemployment, but upon the evidence of his actual income, recognizing that Stanley's income varied, and giving appropriate weight to his decreased earnings the previous year. The record does not show that the trial court abused its discretion in making the finding. Stanley's sixth point is overruled.
In his seventh and eighth points, Stanley asserts the trial court erred in not considering Linda's net resources and failing to reduce his support obligations because of those resources. He argues that the trial court's alleged failure violated Article 1, Section 3a of the Texas Constitution which prohibits the denial of equal protection on the basis of gender. In support of that proposition, he cites and relies upon Ulrich v. Ulrich, 652 S.W.2d 503 (Tex. App.-Houston [1st Dist.] 1983, no writ) and Kish v. Kole, 874 S.W.2d 835, 837 (Tex. App.-Beaumont 1994, no writ). However, those cases do not support his proposition. For example, in Ulrich, the appellate court recognized that both parents have a continuing duty to support the children but, after reviewing the assets and obligations of the parties, opined that there was no constitutional or statutory violation and held the trial court acted within its discretion in failing to order the mother to pay child support. Ulrich, 652 S.W.2d at 506. Likewise, in Kish, the appellate court held that a trial court, after considering the ability of both parents to contribute to their child's support, did not abuse its discretion in failing to order the mother to pay child support.
The record does not support Stanley's argument that the trial court erred in setting the amount of child support within the statutory guidelines and he has not presented any challenge to the constitutionality of the statutes. Stanley's seventh and eighth points are overruled.
In his final group of points, Stanley challenges the admissibility of the testimony of Linda's expert witness on the value of the real property. In doing so, he posits that the expert's testimony should have been excluded because Linda did not timely supplement her discovery responses (point 11), the witness was not qualified as an appraiser (point 12), and the reliability of the witness's testimony was not shown (point 13).
When Linda called Bob Metz, the witness in question, to testify on the value of the property, Stanley objected on the basis that Metz had not been included in the list of witnesses contained in her discovery response. Linda's attorney responded that he had informed Stanley's attorney of his intent to call the witness and included with the letter a copy of Metz's report. Stanley's counsel did not deny receiving the letter but, rather, argued that exclusion was required because Linda had not formally supplemented her discovery response. After a discussion in which the parties discussed a prior hearing during which Linda's counsel stated that Metz was going to appraise the property, Stanley's objection was overruled.
In support of his proposition that the trial court erred, Stanley cites Rules of Civil Procedure 194.2 and 193.5 as establishing Linda's duty to provide, and if necessary supplement, discovery responses concerning her expert witnesses. He does not claim the evidence unfairly surprised him. Rulings admitting or excluding evidence are committed to the trial court's sound discretion. In re K. S., 76 S.W.3d 36, 39 (Tex. App.-Amarillo 2002, no pet.) citing Texas Dept. of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). A trial court abuses its discretion when it rules without regard to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Under this record, the trial court did not abuse its discretion in overruling Stanley's objection. Stanley's eleventh point is overruled.
In supporting his twelfth point contention that the trial court abused its discretion in admitting Metz's testimony, Stanley contends he "was not, in fact, a qualified appraiser." Texas Rule of Evidence 702 governs expert opinion evidence. The rule permits testimony by witnesses qualified as experts "by knowledge, skill, experience, training, or education." The evidence here showed that the witness had been a licensed real estate agent for six years at the time of trial. His work included helping home sellers decide what price to ask for their homes. He admitted he was not a licensed appraiser, (7) and was careful not to describe his valuation as an appraisal, but used the term "market analysis" instead.
By its terms, Rule 702 does not require a witness to have any particular license to be qualified as an expert. Rather, the rule allows experience to be shown by "knowledge, skill, experience, training, or education." Because the qualifications are listed disjunctively, proof of any of them can establish the requisite expertise. Again, a trial court has broad discretion in determining the admissibility of expert evidence, and its decision will not be reversed unless an abuse of that discretion is shown. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629 (Tex. 2002). Here, Metz testified without contradiction that he had six years experience as a real estate agent, which included determining approximate values of real property. That evidence is sufficient to support the trial court's finding that he was qualified under Rule 702 to give opinion testimony on that question. Although Stanley argues that "only an appraiser can render an expert opinion on values on the basis of comparable values," the rule contains no such requirement. Stanley's twelfth point is overruled.
In his thirteenth and final point, Stanley argues that Metz's testimony was erroneously admitted because its reliability could not be shown. His argument is based upon statements in Guadalupe-Blanco River Authority v. Kraft, 77 S.W.3d 805 (Tex. 2002), that a valuation fails to meet the reliability requirement of expert testimony if it is based upon a "bald assurance" that the witness used comparable sales or sales that were not truly comparable and a court should independently evaluate the underlying data in determining if the opinion itself is reliable. Id. at 808.
In advancing this argument, Stanley relies upon criticisms of Metz's method of arriving at his valuation which were made by Stanley's expert, David Stanley. David Stanley initially averred that he believed the square footage used by Metz was incorrect because he found the house in question to have 1834 square feet of floor space while Metz used a size of 1644 square feet, obtained from the house plans. In attempting to distinguish the comparable properties used by Metz, Stanley pointed out that the comparative properties were much older than the house at 200 S. 14th Street and several of them had siding, while the 14th Street house had a brick veneer. On appeal, Stanley also emphasizes the sale comparisons used by Metz occurred in 1999 and 2000, some two years before trial. In that connection, he cites Holiday Inns Inc. v. State, 931 S.W.2d 614 (Tex. App.-Amarillo 1996, writ denied), for the proposition that the comparable sales used by Metz were too remote in time to be properly used. He also argues that the comparables were not in a similar area, and in support of that theory, cites Urban Renewal Agency v. Georgetown Sav. and Loan Association, 509 S.W.2d 419, 422 (Tex. Civ. App.-Austin 1974, writ ref'd n.r.e.).
In considering whether the trial court abused its discretion in finding Metz's testimony met Rule 702 requirements and in determining its credibility, it is helpful to compare that testimony with that of David Stanley. David Stanley also testified that he formed his opinion based on the value of other houses located in the "same area." He never defined what he considered the "same area." Although Linda testified that the 200 S. 14th Street house was located within 200 yards of a railroad switching yard, as one of his comparable properties, David Stanley used a property located on F.M. 112 a few miles out of town and not near any railroad track. We also note that the value of some of the comparable properties used by David Stanley were appraisal values, not sale values. Moreover, he did not testify as to the date of those appraisals.
In Holiday Inns, we held a sale seven years after a condemnation was not comparable for the purpose of determining a property's value. 931 S.W.2d at 623. However, we went on to note that the matter is generally left to the discretion of the trial court and opined that "evidence of sales occurring within five years . . . may be appropriate." Id. Here, the oldest comparable sale used by Metz was three years old, but the record does not show the age of the appraisals used by David Stanley.
While the exact distance between the property at issue and the comparables used by Metz is not shown, he described them as "right across the railroad track," "across the way," and "on Avenue P." In contrast, at least one of the properties used by David Stanley was not in the same city. Suffice it to say, after reviewing the record, we cannot say the trial court abused its discretion in admitting Metz's testimony and determining the weight to be given it. Stanley's thirteenth point is overruled.
In summary, all of Stanley's points are overruled and the judgment of the trial court is affirmed.
John T. Boyd
Senior Justice
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. 2003).
2. 3. 4. 5. 6. 7.