IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
MAY 2, 2006
______________________________
PATRICK EARL CONELY, APPELLANT
v.
PROPERTY OFFICER DIETZ, ET AL., APPELLEES
_________________________________
FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2004-526,673; HON. BLAIR CHERRY, PRESIDING
_______________________________
Before QUINN, C.J., REAVIS, J., and BOYD, S.J. (1)
This pro se appeal arises from the dismissal by the trial court of a suit by appellant Patrick Earl Conely seeking the recovery of damages from appellees Phillip Duffy, Stuart Dietz, Franklin Schlegel, Cynthia Harrell, and Rebecca Sasser, employees of the Texas Department of Criminal Justice. In the suit, appellant, a penal inmate, sought recovery for the alleged conversion of certain personal items belonging to him and for damages arising from the conversion of those items. We affirm the judgment of the trial court.
This appeal presents three issues for our decision. Those issues are: 1) did the trial court abuse its discretion in dismissing appellant's suit under Chapter 14 of the Texas Civil Practice and Remedies Code; 2) did the trial court err in dismissing appellant's suit without a hearing; and 3) did the trial court err in refusing to appoint counsel for appellant.
StatuteEffective June 8, 1995, the legislature enacted Chapter 14 of the Civil Practice and Remedies Code entitled "Inmate Litigation." Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-014 (Vernon 2002). With the exception of actions brought under the Family Code, Chapter 14 applies to suits brought by an inmate who has filed "an affidavit or unsworn declaration of inability to pay costs." Id. §14.002. Section 14.004 requires that an inmate file with his suit a separate affidavit or declaration identifying each prior suit brought by the inmate, specifying the operative facts, the case name, the cause number, the court in which it was brought, the names of the parties, and the result of the suit.
Standard of ReviewThe standard of review of a dismissal under Chapter 14 is controlled by an abuse of discretion standard. That standard is determined by a decision whether the dismissing court acted without reference to any guiding principles or, stated another way, was the action of the court arbitrary or unreasonable. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.-Waco 1996, no writ). In making that decision, the fact that an appellate court might have decided a matter within the trial court's discretion in a different manner does not demonstrate that an abuse of discretion occurred. Id. at 399.
Discussion
Logical continuity requires us initially to discuss whether the trial court reversibly erred in failing to appoint an attorney to represent appellant in this matter. A district judge may appoint counsel for an indigent party to a civil case in exceptional instances in which the public interests at stake may be such that the administration of justice may be best served by the appointment of counsel. See Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996); Tex. Gov't Code Ann. §24.016 (Vernon 2004). Indeed, our Supreme Court, noting that such suits are so commonplace that the legislature enacted Chapter 14 to curb this particular area of litigation, opined that the mere fact that an inmate brings suit against an employee of the prison in which the inmate is incarcerated does not constitute an exceptional circumstance such as to warrant appointed counsel. See Gibson v. Tolbert, 102 S.W.3d 710, 713 (Tex. 2003). Likewise, this suit is neither of such exceptional character as to require the appointment of counsel nor has appellant demonstrated that the public and private interests at stake here are so exceptional as to warrant the appointment of counsel. Thus, the trial court did not err in refusing to do so.
The purpose of Chapter 14 is obvious. In adopting it, the legislature recognized the problem of constant, often duplicative, inmate litigation in this state and sought to reduce such litigation by requiring the inmate to notify the trial court of previous litigation and the outcome of such litigation. In this way, the trial court could determine, based upon previous filings, if the suit was frivolous because the inmate had previously filed a similar claim. See Bell v. Texas Dep't of Crim. Justice-Institutional Div., 962 S.W.2d 156, 157-58 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).
In this case, appellant did attach an affidavit of previous filings. He admits there were other filings not shown in the affidavit, albeit with the explanation that he was unable to recall the other filings. In their motion to dismiss, appellees pointed out other filings in Conely v. Preston in the 52nd District Court of Coryell County, Conely v. Cauthon in the Federal District Court for the Eastern District of Texas, as well as Conely v. Johnson et al. and Conely v. Tedford in the Federal District Court for the Western District of Texas. Moreover, in the suits that appellant does list, he fails to give the cause numbers and the dates of the suits. Additionally, he fails to give sufficient operative facts of the suits. The statute neither provides that an inability to remember excuses the required listing of previous suits nor does it excuse the proper statement of the operative facts of each case. Because of appellant's failure to comply with the mandatory requirements of Chapter 14, the trial court acted well within its discretion in dismissing the suit.
Our determination that the trial court did not err in refusing to appoint trial counsel and acted within its authority in dismissing the suit obviates the necessity for discussing whether appellant failed to exhaust his administrative remedies before filing the suit.
Accordingly, the judgment of the trial court must be, and is hereby, 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 2005).
F TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. A16884-0607; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Trinny Marroquin, was convicted by a jury of possession of cocaine, enhanced, and sentenced to nine years confinement. He contends the trial court erred by failing to give jury instructions, pursuant to article 38.23(a) of the Texas Code of Criminal Procedure, regarding the following issues: (1) whether he was intoxicated and a danger to himself and others at the time of his initial arrest; and (2) whether he was in a public place at the time of his initial arrest. We affirm.
Background
At the trial of this cause, the State presented five witnesses. Officers Sophia Jaramillo, Eric Wiley, and Paul Renfro testified to the circumstances surrounding Appellant’s arrest and subsequent discovery of a suspicious substance. The remaining two witnesses testified as to the chain-of-custody and chemical analysis of that substance. Appellant did not testify, nor did he present any other witnesses.
Officer Jaramillo of the City of Plainview Police Department testified that at approximately 4:00 a.m., on March 26, 2006, she responded to a disturbance call. After interviewing the complainant, she began patrolling the area in an attempt to locate the suspect who had fled on foot. During that patrol, she entered an alley and observed a group of persons, including Appellant, in the alley and a female urinating behind a residence. When she approached the group, she determined that the individuals were intoxicated because she detected an odor of alcohol on their breath, slurred speech, and glassy eyes. Upon questioning, Jaramillo learned that none of the members of the group resided at the residence.
Jaramillo observed that although the weather that morning was cool enough to require a jacket, Appellant wore only a t-shirt. Jaramillo believed he was intoxicated and that he was a danger to himself because he was not appropriately dressed for the weather. In her estimation, he had access to an automobile, was in no condition to drive, and, if allowed to leave, would have been a danger to himself or others. Jaramillo then transported Appellant to the Hale County Jail on a charge of public intoxication.
On cross-examination, Jaramillo testified that she could not recall having a face-to-face conversation with Appellant, nor could she specifically remember whether his eyes were bloodshot and glassy, or his speech slurred. Officer Wiley testified that he served as back-up to Jaramillo. He testified that he observed Appellant in the alley, his speech was slurred, eyes a little red, and his hair was messed up. He further testified Appellant lacked the normal use of his physical faculties, leaned up against a house for balance, and lost his balance while standing. He believed Appellant was intoxicated and, if not arrested, was a danger to himself and others.
Sergeant Renfro testified that at the jail Appellant repeatedly asked him whether he could use the restroom. Prior to permitting him to use the restroom, Renfro patted him down and found a white, powdery substance in a bag in Appellant’s back pocket. Subsequent chemical analysis of that substance revealed it to contain cocaine. Referring to Appellant’s booking photo, Renfro described him as leaning to one side, his eyes closed, his tongue partially protruding from his mouth, and hair disheveled.
At the trial court’s jury charge conference, Appellant sought a jury instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure requesting a jury determination whether Jaramillo had probable cause to arrest Appellant for public intoxication and whether her warrantless arrest complied with article 14.03 of the Code of Criminal Procedure. In support of the requested jury instruction, Appellant contended that the testimony of “the officers [was] somewhat conflicted and vague and insufficient regarding the issue of the legality or lawfulness of the arrest.” The trial court overruled Appellant’s requested instruction.
Appellant contends he was entitled to an article 38.23 jury instruction to permit the jury to decide whether the cocaine discovered during his booking on public intoxication was lawfully obtained because the evidence at trial suggested that, at the time of his arrest, he was neither intoxicated to the point at which he was a danger to himself or others, nor was he in a public place.
Discussion
To trigger an exclusionary rule instruction under article 38.23(a) three conditions must exist: (1) the evidence heard by the jury must raise a fact issue; (2) the evidence on that fact issue must be affirmatively contested; and (3) the contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Oursbourn v. State, No. PD 1687-06, 2008 WL 2261744, at *10 (Tex.Crim.App. June 4, 2008); Madden v. State, 242 S.W.3d 504 (Tex.Crim.App. 2007).
“A fact issue about whether evidence was legally obtained may be raised ‘from any source, and the evidenced may be strong, weak, contradicted, unimpeachable, or unbelievable.’” Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004) (quoting Wilkerson v. State, 933 S.W.3d 276, 280 (Tex.App.–Houston [1st Dist.] 1996, pet. ref’d)). It should be noted, however, that an article 38.23 instruction must be included in the jury charge only if there is a factual issue as to how the evidence was obtained. Id. A disagreement with the trial court’s conclusion that probable cause was shown as a matter of law is not the same as appellant controverting the facts. Id. at 86. Here, Appellant’s argument is that his arrest and the subsequent seizure of the cocaine were unlawful because Officer Jaramillo did not have probable cause to arrest him for public intoxication. That is a legal issue not a factual one. Because no factual dispute exists concerning the circumstances of Appellant’s arrest and the seizure of the cocaine, the trial court did not err in refusing to instruct the jury under article 38.23(a).
Furthermore, in order to be “affirmatively contested” the factual dispute must be raised by affirmative evidence, not merely cross-examination questions or argument. Oursbourn, 2008 WL 2261744 at 10, n. 68.; Madden, 242 S.W.3d at 513 nn. 22-23. Appellant presented no evidence contesting a factual issue. True, Jaramillo’s testimony on cross-examination indicated that she could no longer specifically recall Appellant’s physical condition that night, nor could she say she personally observed him in the alley. Nevertheless, Wiley’s testimony was unequivocal that he personally observed Appellant prior to his arrest and found his speech slurred, eyes a little red, hair messed up, and his motor abilities lacking. Jaramillo’s uncertainty on cross-examination does not raise a fact issue related to whether probable cause existed for Appellant’s arrest. See Skatell v. State, 688 S.W.2d 248, 251-52 (Tex.App.–Fort Worth 1985, no pet.). This is particularly so because no other controverting evidence was produced. See Rose v. State, 470 S.W.2d 198, 200 (Tex.Crim.App. 1971); Skattel, 688 S.W.2d at 251.
Finally, even if we were to assume that a factual issue was “affirmatively contested,” the only contested evidence Appellant points to is evidence which is not material to the lawfulness of the challenged conduct in obtaining the evidence. Testimony that Appellant was close to home, in a “jovial” mood, and/or did not resist arrest does not contradict the facts underlying the officers’ testimony at trial. There was no testimony at trial to support Appellant’s assertions on appeal that the cold morning air did not cause him discomfort, his disheveled appearance may have been caused by a lack of sleep, or that he was not a threat to himself or others because he intended to walk home. Neither was there any testimony to contradict Jaramillo’s testimony that Appellant was intoxicated and in a group in a public place. The absence of evidence does not raise a fact issue.
Accordingly, Appellant’s issues are overruled.Conclusion
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.