Anna Roberts v. State

NO. 07-08-0151-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

OCTOBER 30, 2008

______________________________

ANNA ROBERTS,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 154^TH DISTRICT COURT OF LAMB COUNTY;

NO. 4044; HON. FELIX KLEIN, PRESIDING

_______________________________

 

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Anna Roberts, appellant, appeals a judgment revoking her probation or community supervision. Via a single issue, she contends the trial court abused its discretion in doing so. We affirm the judgment as modified.

 

Background

          Appellant was convicted of delivering a controlled substance in a drug free zone and received a ten year sentence. Thereafter, the trial court placed her on “shock” probation for a period of ten years. Within a year, however, the State moved to revoke her probation. That attempt being unsuccessful, it filed a second motion seeking the same relief. Through it, appellant was accused of 1) committing two new offenses and 2) failing to make monthly payments on her fine, court costs and fees, to complete her community service hours, to reimburse the county for her court appointed attorney, to attend substance abuse counseling, and to execute a pauper’s affidavit when she defaulted on her monthly financial obligations. Appellant pled true to three of the six allegations, and the trial court found that she had violated her probation by failing to 1) pay the fees due for the months of June and July of 2007, 2) complete her community service hours, 3) attend substance abuse counseling, and 4) execute the pauper’s affidavit. The latter three findings encompassed the allegations to which she pled true. This led to the revocation of her community supervision.

Issue - Abused Discretion

          Appellant contended in her single issue that the trial court abused its discretion in revoking her probation. This was so because she allegedly was unable to perform the duties imposed on her due to her purported financial condition, her purported time commitments, information purportedly given her by her probation officer, and the same officer purportedly neglecting to ask her to complete the pauper’s affidavit. We overrule the issue. 

 

          Standard of Review           

          Whether to revoke one's probation is a question which lies within the trial court's considered discretion. DeGay v. State, 741 S.W.2d 445, 449 (Tex. Crim. App.1987); Hunt v. State, 5 S.W.3d 833, 834-35 (Tex. App.–Amarillo 1999, pet. ref’d). Before that discretion can be exercised in favor of revocation, it must be shown by a preponderance of the evidence that the individual violated a term of his probation. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993) (requiring proof by a preponderance of the evidence). Moreover, that burden can be satisfied by the accused pleading true to at least one of the allegations levied by the State, even if the accused believed and attempted to prove that he had a viable defense. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979); Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. [Panel Op.] 1979).

          Analysis

          As previously mentioned, appellant pled true to some of the allegations made in the motion to revoke. Having done so, the trial court had basis to grant the motion. That she may have had reasons which she believed justified her conduct matters not given her pleas. More importantly, various of her excuses were subject to debate and dependent upon her credibility. Thus, the trial court could well have opted not to believe her. Consequently, we find no abused discretion on the part of the trial court in granting the State’s motion.

          We do note, however, that appellant originally pled guilty to and was convicted of delivering a controlled substance in a drug free zone. Yet, the judgment revoking her probation described the conviction as possessing a controlled substance within a drug free zone. Thus, we modify the latter judgment (dated February 8, 2008) to reflect the actual conviction, that is, the delivery of a controlled substance in a drug free zone.

          So modified, we affirm the judgment.

 

                                                                           Brian Quinn

                                                                          Chief Justice

Do not publish.

g on an issue on which he does not have the burden of proof, that party must demonstrate on appeal that there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We consider all the evidence in the light most favorable to the jury's verdict, indulging every reasonable inference in favor of the prevailing party. Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). A legal sufficiency point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998). If the record contains any evidence of probative force to support the jury's finding, the legal insufficiency challenge must be overruled. ACS Investors Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).

When a party attacks the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Croucher, 660 S.W.2d at 58. The court of appeals must consider and weigh all of the evidence, and may only set aside the finding if the evidence is so weak, or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986), overruled on other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). Thus, appellant's matter of law point would only be valid if the evidence establishes conclusively that the parties had entered into a contingent fee contract and if there is any evidence of probative force to raise a fact question in that regard, his point must fail. Further, if in applying the rule, the court feels that reversal is mandated, it must detail all of the relevant evidence and state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Pool v. Ford Motor Co., 715 S.W.2d at 635.

If any finding is challenged for factual sufficiency of the evidence, all of the evidence in the record must be reviewed. See Plas-Tex, Inc. v. U.S. Steel Corp. 772 S.W.2d 442, 445 (Tex. 1989). In order to require reversal, the jury's verdict must be so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). If there is conflicting evidence on a disputed fact question, it is the sole and peculiar province of the jury to judge the credibility of the witnesses and assess the weight to be given their testimony in order to arrive at the answer deemed the most reasonable. In discharging its function, the jury has the sole right to believe all, some, or none of the testimony of the witnesses. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796-97 (1951). We are not authorized to set aside a jury verdict merely because the jury might have drawn a different conclusion from the evidence. Id at 797.

The gist of appellant's argument under this first point is that, because under the evidence, there was no definite agreement as to the amount of Davis' fee, his fee must have been a contingent one. If it was a contingent fee agreement, he reasons, it would be invalid because it is not in writing and thus fails to meet the legal requirements that a contingent fee agreement should be in writing and signed by the attorney and the client or it is voidable by the client. See Tex. Gov't Code Ann. §82.065 (Vernon 1998); Tex. Disciplinary R. Prof'l Conduct 1.04, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 1998).

Under this record, the jury could reasonably have deduced that there was no meeting of the minds between appellant and Davis other than the $5,000 non-refundable retainer and that Davis contended he would seek recovery of the remainder of his fee on a quantum meruit basis, with one of the aids to the jury in arriving at a figure that they might consider a percentage of the amount recovered. In Texas, the parties to a contract may agree upon some terms of a contract, and understand them to be a contract and yet leave other terms of the agreement to be made later. Scott v. Ingle Bros. Pacific Inc., 489 S.W.2d 554, 555 (Tex. 1972). Moreover, it is a corollary of the rule that as to those terms left for future discussion, that portion of the agreement is not part of the enforceable portion of the contract. Thus, the resolution of the difference between appellant and Davis as to whether there was or was not an agreement as to the manner and amount of the remainder of Davis' fee was a factual dispute within the province of the jury to resolve. Appellant's first point is overruled.

In his next two points, appellant contends the evidence does not support 1) the jury's answer to question 1 that the parties did not have an agreement as to attorney's fees, and 2) that appellant was not to pay Davis an attorney's fee of $150 per hour plus expenses with a minimum fee charge of $5,000. Our discussion and disposition of appellant's first point foreshadows our disposition of these two points. We have discussed in considerable detail above both the factual evidence and the law pertaining to measuring the factual sufficiency to sustain the jury's answers to questions submitted to them. Suffice it to say that we find the evidence sufficient to sustain the jury's answer to both questions. Appellant's second and third points are overruled.

In his fourth point, appellant argues that the evidence is not sufficient to support the jury's answer to jury question 3 which inquired if the parties agreed to an unspecified fee following the application of the original $5,000 paid by appellant. Under the evidence we have set out above, in particular that of Davis, the jury acted within its province in resolving any factual conflicts in favor of Davis and in finding there was such an agreement. Appellant's fourth point is overruled.

In jury question 4, the trial court inquired if Davis performed compensable work for appellant. In his fifth point, appellant contends as a matter of law that the jury's affirmative answer to that question cannot be used to support a quantum meruit judgment. Quantum meruit is an equitable theory of recovery which is based upon an implied agreement to pay for benefits received. Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). To recover under that doctrine, a plaintiff must establish that: 1) valuable services and/or materials were furnished 2) to the party sought to be charged 3) which were accepted by the party sought to be charged and 4) under such circumstances as reasonably notified the recipient that the plaintiff in performing expected to be paid. Id. The right to recover in quantum meruit does not grow out of the contract, but is independent of it. The right is based upon a promise implied by law to pay for beneficial services rendered and knowingly accepted. Campbell v. Northwestern National Life Ins. Co., 573 S.W.2d 496, 498 (Tex. 1978). Thus, the doctrine could be applicable in instances such as this one. See Enochs v. Brown, 872 S.W.2d 312, 320 (Tex. App.-Austin 1994, no writ), overruled on other grounds by Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003). Appellant's fifth point is overruled.

In his sixth point, appellant contends the evidence does not support the jury's finding that Davis performed compensable work for appellant. Our disposition of appellant's preceding points foreshadows our disposition of this point. Suffice it to say, we hold the evidence, if accepted by the jury, which it obviously was, is sufficient to sustain that jury finding.

In his seventh point, appellant argues the evidence is not sufficient to support the jury's finding in response to question 5 that $40,000 would be a reasonable fee for an appeal to the Court of Appeals. In addition to the evidence we have discussed above, appellant introduced into evidence Davis' letter to appellant dated July 27, 1999. In that letter, Davis refers to his opinion that the parties had never actually agreed to a total fee arrangement and, based upon some factors he lists, suggests that a fee of $45,000 "would not be unreasonale [sic]." He then suggests that the $5,000 retainer previously paid be credited on that fee, leaving a balance due of $40,000. In Prati v. New Prime, Inc., 949 S.W.2d 552 (Tex. App.-Amarillo 1997, pet. denied), we had occasion to discuss a point challenging a jury award of damages. Because of the similarity of the awards, that discussion is applicable here. We pointed out that because the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, the jury has considerable discretion, and the mental processes by which a jury determines the amount of damages is ordinarily not cognizable by an appellate court and where the law does not provide a precise legal measure of damages, the amount is generally within the discretion of the jury. Id. at 555. The evidence in this case is sufficient to sustain the jury's finding that $40,000 was a reasonable fee. Appellant's seventh point is overruIed.

In summary, all of appellant'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. 2004-2005).

2. Bill A. Davis was afflicted with throat cancer at the time of the deposition and died prior to the trial of this underlying suit.