IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 18, 2005
______________________________JESSE DOMINGUEZ HERNANDEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_________________________________FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NOS. B-15,449-0403 & B-15,450-0403; HON. ED SELF, PRESIDING _______________________________ Memorandum Opinion _______________________________
Before QUINN, REAVIS and CAMPBELL, JJ.
Jesse Dominguez Hernandez (appellant) appeals his convictions for aggravated sexual assault of a child (Cause no. B-15450-0403) and two counts of indecency with a child (Cause no. B-15449-0403, counts II and III). He pled not guilty, and the cause was tried to a jury. The latter found him guilty of the charges and assessed punishment at 20 years imprisonment for the aggravated sexual assault and five years imprisonment for the indecency offenses. Appellant timely appealed the decision and received appointed counsel.
Appellant's counsel moved to withdraw, after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) and representing that he searched the record and found no arguable grounds for reversal. The record illustrates that counsel notified appellant of his right to review the appellate record and file his own brief or response. We also informed appellant that any response he cared to file had to be filed by April 28, 2005. To date, appellant has neither filed a pro se response nor moved for an extension of the April 28th deadline.
The sole ground raised by counsel involved the legal and factual sufficiency of the evidence. And, in addressing it, counsel explained why the evidence was sufficient to satisfy both standards. We too reviewed the evidence of record and found it to be both legally and factually sufficient to support the convictions. Our independent review of the appellate record also failed to uncover any other type of arguably reversible error. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring us to conduct an independent review).
Accordingly, we grant the motion to withdraw and affirm the judgment of the trial court viz cause numbers B-15,450-0403 and B-15,449-0403, counts II and III.
Brian Quinn
Justice
Do not publish.
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NO. 07-08-00478-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
DECEMBER 14, 2010
R. WAYNE JOHNSON, APPELLANT
v.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
WYLIE HEARN, APPELLEES
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 35376; HONORABLE LEE W. WATERS, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant R. Wayne Johnson, acting pro se, appeals the trial courts dismissal of his civil suit against the Texas Department of Criminal Justice and Wylie Hearn.[1] We will affirm.
Background
Johnson filed suit in the 233rd District Court of Gray County, asserting the defendants were violating Article I, Section 7 of the Texas Constitution[2] by maintaining chapels on state property, and violating his rights under Article I, Section 6 of the Texas Constitution[3] by holding chapel services on Sunday rather than on Saturday. Johnsons petition also complained that warden Hearns permitting a Methodist to conduct worship services on Sunday rather than Saturday[4] constituted the promotion of false and fraudulent religion. His petition asked for injunctive relief to enjoin the defendants unconstitutional practices, and asked that Hearn individually be assessed $2.5 million in damages for fraud.
The trial court dismissed Johnsons suit by an order that cites both Chapter 11 and Chapter 14 of the Civil Practices and Remedies Code. As the trial courts order states, Johnson has been declared a vexatious litigant, and the 156th district court of Bee County entered a prefiling order requiring that he obtain permission of a local administrative judge before filing new litigation in a Texas court. See Tex. Civ. Prac. & Rem. Code Ann. § 11.101 et seq. (Vernon 2002); In re R. Wayne Johnson, No. 07-09-0035-CV, 2009 Tex. App. Lexis 6831, *4-5 (Tex.App.--Amarillo Aug. 27, 2009, orig. proceeding) (per curiam, mem. op.). The trial courts dismissal order found that Johnson had neither sought nor received permission from the local administrative judge to file his petition. See Tex. Civ. Prac. & Rem. Code Ann. § 11.103(a) (clerk may not file suit of vexatious litigant subject to prefiling order unless litigant obtains order from local administrative judge permitting filing).
The trial courts dismissal order also found that Johnsons claim had no arguable basis in law, citing section 14.003 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. § 14.003 (Vernon 2009).
Johnson filed a notice of appeal from the trial courts dismissal order. After filing his brief in this Court, Johnson later filed a document asserting that the Bee County district courts prefiling order is void. We have considered that document as a supplement to Johnsons brief.
Analysis
We generally review a trial court's dismissal of an inmate's suit under Chapters 11 and 14 for abuse of discretion. See Wilson v. Texas Dep't of Crim. Justice-Institutional Div., 268 S.W.3d 756, 758 (Tex. App.--Waco 2008, no pet.);Thompson v. Texas Dep't of Crim. Justice-Institutional Div., 33 S.W.3d 412, 414 (Tex. App.--Houston [1st Dist.] 2000, pet. denied) (Chapter 14); Scott v. Tex. Dept of Crim. Justice-Institutional Div., No. 13-07-00718-CV, 2008 Tex.App. LEXIS 8941, *5 (Tex.App.--Corpus Christi Nov. 20, 2008, no pet.) (Chapter 11). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles. Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). When reviewing matters committed to the trial court's discretion, we may not substitute our own judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992).
We will begin by addressing Johnsons contention the Bee County district courts prefiling order is void. He argues the order is void because it was obtained by Attorney General John Cornyn in litigation in the district court of Bee County, and the Attorney General by statute lacks authority to represent the State of Texas in district court. Johnson has made the same argument previously in this Court. In re R. Wayne Johnson, No. 07-07-0431-CV, 2009 Tex. App. LEXIS 5795 (Tex.App.--Amarillo July 27, 2009, orig. proceeding). We addressed and rejected the argument on that occasion, and reject it here for the same reasons.
Johnsons appellate brief asserts the trial court abused its discretion by entering its dismissal order.[5] His argument in support of the issue, however, also repeats contentions we have addressed previously. Johnson does not challenge the trial courts finding he failed to seek and obtain permission for the filing of his petition, but generally argues Chapter 11 of the Civil Practice and Remedies Code contravenes the United States Constitution and thus is made void by the Supremacy Clause. We previously have considered and rejected these same contentions by Johnson. In re R. Wayne Johnson, No. 07-09-0035-CV, 2009 Tex.App. LEXIS 6831 (Tex.App.--Amarillo Aug. 27, 2009, orig. proceeding); In re R. Wayne Johnson, No. 09-0008-CV, 2010 Tex.App. LEXIS 3584 (Tex.App.--Amarillo May 11, 2010, orig. proceeding); In re R. Wayne Johnson, No. 07-07-0245-CV, 2008 Tex.App. LEXIS 5110 (Tex.App.--Amarillo July 9, 2008, orig. proceeding). We have examined his appellate brief and find nothing new in the contentions he presents in this appeal. We see nothing to be gained by reiterating here our previous holdings on challenges Johnson has brought against the constitutionality of Chapter 11, and we overrule his appellate issues for the reasons we have stated previously.
Except for one general reference to state laws, which may include Chapter 14, Johnsons brief does not mention the trial courts finding his suit was properly dismissed under that chapter.[6] In any event, because we have overruled his challenges to application of chapter 11 in this case, further discussion of the application of chapter 14 is unnecessary to disposition of the appeal. Tex. R. App. P. 47.1.[7]
Accordingly, the trial courts dismissal order is affirmed.
James T. Campbell
Justice
[1] Johnsons original petition states he is incarcerated in the Clements Unit of the Texas Department of Criminal Justice, which we judicially notice is located in Potter County. His petition describes Wylie Hearn as unit warden.
[2] Tex. Const. art. I, § 7.
[3] Tex. Const. art. I, § 6.
[4] Johnsons petition refers to Saturday as his Sabbath and asserts the position Saturday worship is required by Scripture.
[5] In places in his brief, Johnson seems to argue the trial court abused its discretion by failing to grant him permission to file his original petition. This argument is misdirected. Johnson did not ask the trial court, or the local administrative judge, for permission to file his petition.
[6] We note also that Johnson filed a sworn statement in the trial court asserting his indigence, but did not file the affidavit required by § 14.004, identifying other suits he has filed. Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon 2009). His failure to do so provides another basis for the trial courts dismissal of his suit. See Clark v. J.W. Estelle Unit, 23 S.W.3d 420, 422 (Tex.App.Houston [1st Dist.] 2001, pet. denied) (court may presume claim is substantially similar under § 14.003(b)(4) to previous claim filed by inmate in absence of affidavit describing previous claims).
[7] Johnsons brief contains also other conclusory statements, including assertions that the trial courts application of chapter 11 violates the separation of powers under the Texas Constitution and that the trial courts order constitutes a crime. We read these statements as additional arguments in support of Johnsons premise that the dismissal order is violative of the constitution. To any extent they are additional appellate issues, they are overruled.