Brandy Lee Morris v. State

Brandy Lee Morris v. State

IN THE

TENTH COURT OF APPEALS

No. 10-01-302-CR

     BRANDY LEE MORRIS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 1999-894-C

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Brandy Morris pled guilty to aggravated sexual assault and was sentenced to twenty years’ imprisonment. Morris was sentenced on June 15, 2000. As part of the plea agreement, Morris waived his right to appeal. On July 6, 2001, Morris filed a letter with the District Clerk in which he requested DNA testing under Chapter 64 of the Code of Criminal Procedure. The clerk informed Morris that his request would have to be directed to the court in the form of a motion. The record does not contain a motion regarding DNA testing. On September 21, 2001, Morris filed a notice of appeal in which he asserts that his sentence was excessive, counsel misrepresented his rights, and counsel failed to file any motions on his behalf. We dismiss this cause for want of jurisdiction.

      According to the Rules of Appellate Procedure, a notice of appeal for a criminal case must be filed:

(1) within 30 days after the day sentence is imposed or suspended in open court, or after the day the trial court enters an appealable order . . . .

Tex. R. App. P. 26.2(a)(1). Morris’ notice of appeal was filed over a year after sentence was imposed.

      A notice of appeal which complies with the requirements of Rule 26 is essential to vest a court of appeals with jurisdiction. Fowler v. State, 16 S.W.3d 426, 428 (Tex. App.—Waco 2000, pet. ref’d) (citing Slaton v. State, 981 S.W.2d 208, 209 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996)). If an appeal is not timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal and can take no action other than to dismiss the appeal. Id. Thus, because Morris’ notice of appeal was untimely according to Rule 26, we are without jurisdiction to consider the merits of his appeal. Id. The appeal is dismissed for want of jurisdiction.

                                                                               PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed

Opinion delivered and filed October 24, 2001

Do not publish

[CR25]

ry indicted Graham for felony theft) (“a person who knowingly provides false information to the grand jury or a law enforcement official who has the discretion to decide whether to prosecute a criminal violation cannot be said to have caused the prosecution if the information was immaterial to the decision to prosecute”).  Here, the grand jury’s decision not to prosecute would have been no different without the information that Broadway claims was false; thus, that information, false or not, was immaterial to the decision that the grand jury made.

            Finally, “to recover for malicious prosecution when the decision to prosecute is within another's discretion, the plaintiff has the burden of proving that that decision would not have been made but for the false information supplied by the defendant.”  Id. at 78.  The memo described below, prepared at Simpson’s direction prior to the presentation of the matter to the grand jury, dispels the idea that any false information Tranum gave was material to Simpson’s decision to present the matter to the grand jury.

There is no evidence that a criminal prosecution was commenced and no basis for the finding that Tranum initiated or procured a prosecution.

lack of probable cause

 

            “Courts must be especially careful in malicious prosecution cases to ensure that sufficient evidence supports each element of liability.”  Kroger Texas Ltd. Partnership v. Suberu, 216 S.W.3d 788, 795 (Tex. 2006) (Suberu spent four hours in jail after arrest; jury acquitted her of misdemeanor theft).  However, an acquittal does not establish the absence of probable cause.  Id. at 794.  “[I]t is well settled that a private citizen has no duty to investigate a suspect's alibi or explanation before reporting a crime.”  Id.  “If the acts or omissions necessary to constitute a crime reasonably appear to have been completed, a complainant's failure to investigate does not negate probable cause.”  Id.  Further, any failure to fully disclose all relevant information to the District Attorney is immaterial to the probable-cause inquiry.  Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 519 (Tex. 1997).

Included in exhibit 14 is a memorandum from Bruce Beals, a legal assistant to District Attorney Simpson, stating as a conclusion:

Based on the interview with Niemeier (the accountant), a review of the report he provided, Broadway’s employment contract, the statement provided by Ms. B. J. Shaw, and the applicable portions of the Texas Penal Code, it is my conclusion that there is reason to believe that David C. Broadway intentionally misrepresented the amount of annual net profit of Tranum Ford-Mercury in order to obtain a yearly bonus, thereby unlawful (sic) appropriating funds (property) from Tranum.  These bonuses totaled more than $20,000 but less than $100,000 during the period 1995 – 2000.

 

Beals recommended that an indictment be prepared, naming Broadway as the defendant, that the case be presented to the grand jury, and that Niemeier and Ms. Shaw be called as witnesses.

The opinion discusses “Tranum’s decision to prosecute,” but the decision to present the information to the grand jury was Simpson’s, and according to Beals’s memo, the decision was based on Niemeier’s interview and report, the employment contract, and Ms. Shaw’s statement.  The memo demonstrates conclusively that the District Attorney found that probable cause existed to exercise his discretion to present the information to the grand jury.  If probable cause existed for presentation to the grand jury, then probable cause existed for Tranum to ask Simpson to investigate Broadway’s actions.

 

 

 EXEMPLARY DAMAGES

            Finally, based on my view of the malicious prosecution claim, I must disagree with the decision about the exemplary damages award.

The jury found (1) $75,000 for reputation damages and $500,000 for mental anguish damages for malicious prosecution, (2) $250,000 for mental anguish damages for slander, and (3) $750,000 for exemplary damages.  We all agree that the $500,000 is not recoverable but disagree about the $75,000.  Eliminating the reputation damages and mental anguish damages would reduce the exemplary damages to $250,000 under Justice Reyna’s analysis, with which I agree.

SUMMARY

I would reform the trial court’s judgment to delete the amounts awarded by the jury for compensatory damages for malicious prosecution.  I would therefore also reform the judgment to limit the award of exemplary damages to $250,000.

I respectfully dissent from the judgment.

 

 

 

 

BILL VANCE

Justice

 

Dissenting opinion delivered and filed July 2, 2008

 

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[1] Chief Justice Gray does not join Justice Reyna’s opinion.

[2] I have not found a case in which the plaintiff who asserted a malicious prosecution claim was never formally charged with a crime.