IN THE
TENTH COURT OF APPEALS
No. 10-02-00125-CV
Tom Sonnichsen,
Appellant
v.
Baylor University,
Appellee
From the 170th District Court
McLennan County, Texas
Trial Court # 97-4212-4
Dissenting Opinion
The evidence presented by Sonnichsen for his damages is of precisely the same damages that he sought to recover for breach of contract. We rejected his breach of contract claim because it did not comply with the statute of frauds. Sonnichsen v. Baylor Univ., 47 S.W.3d 122 (Tex. App.—Waco 2001, no pet.). Sonnichsen has failed to show any difference between the damages sought and recoverable under the rejected contract claim and those sought and recoverable under his fraud claim. Because we have rejected the cause of action under which he could recover these damages as the benefit of his bargain damages, he cannot now recover them as fraud damages. See Haase v. Glazner, 62 S.W.3d 795, 799 (Tex. 2001). The Court errs in holding otherwise.
Several (5) years after this case was filed, and on the eve of a second summary judgment hearing, Sonnichsen filed an amended pleading alleging a new theory for a breach of a completely different contract than ever previously alleged. The trial court did not abuse its discretion by effectively striking the new allegations by granting Baylor’s special exceptions. Further, I join no part of the Court’s discussion as to why the trial court abused its discretion or that this newly raised contract claim would relate back to the time of filing the original breach of contract claim.
For the foregoing reasons, the trial court’s judgment should be affirmed. Because the Court does not affirm the trial court’s judgment, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed August 25, 2004
ing opinion).
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In short, it is more in keeping with our status as a court, and particularly with our status as a court in a federal system, to avoid imposing a single solution on the States from the top down. We should, and do, evaluate state procedures one at a time, as they come before us, see Murray, supra, at 14, 109 S. Ct. 2765, while leaving "the more challenging task of crafting appropriate procedures ... to the laboratory of the States in the first instance." Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261, 292, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990) (O'CONNOR, J., concurring) (citation and internal quotation marks omitted). We will not cavalierly "imped[e] the States' ability to serve as laboratories for testing solutions to novel legal problems." Arizona v. Evans, 514 U.S. 1, 24, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995)(GINSBURG, J., dissenting). Accordingly, we hold that the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals. States may--and, we are confident, will--craft procedures that, in terms of policy, are superior to, or at least as good as, that in Anders. The Constitution erects no barrier to their doing so.
Smith, 120 S.Ct. at 757-759.
In Smith, the United States Supreme Court validated a procedure that would allow the issues identified by the court to be briefed by the same counsel that had filed a Wende brief, notwithstanding that the filing of a Wende brief implied a determination by counsel that the appeal was frivolous. Id. at 753 (citing People v. Wende, 25 Cal. 436, 441-442, 600 P2d 1071, 1074-1075, 158 Cal. Rptr. 839 (1979)).
The Wende procedure was adopted by the California Supreme Court to deal with the situation in appeals by indigent criminal defendants when appointed counsel had determined that the appeal was frivolous. The United States Supreme Court, while validating the procedure, recognized the dilemma in which counsel was placed between zealously representing the client and the duty to not file frivolous appeals taking up precious judicial resources.
In this case I likewise recognize the waste of taxpayer funds by sending this case back to the trial court with an instruction that new counsel must be appointed. The taxpayers of Brazoria County have already paid for an attorney to review the trial court proceeding and evaluate the merits of an appeal. That is the attorney that can most efficiently file a brief on the issues identified by this Court. We should not require the taxpayers to pay yet another attorney to do all the work necessary to again review the entire case when there is no constitutional or statutory prohibition preventing the original appointed appellate attorney from doing the additional briefing.
As noted by the majority we have determined that we do not have the authority to grant counsel’s motion to withdraw. Enriquez v. State, 999 S.W.2d 906, 908 (Tex. App.—Waco 1999, order, no pet.). We have applied this holding in the context of Anders. Sowels v. State, 45 S.W.3d 690, 692 (Tex. App.—Waco 2001, no pet. h.). After a number of cases holding to the same effect, the First Court of Appeals reversed themselves and reverted to utilizing the rule from Stafford. Stephens v. State, 35 S.W.3d 770, 771 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (overruling Guzman v. State, 23 S.W.3d 381 (Tex. App.—Houston [1st Dist.] 1999, no pet.)). If the majority is right that Stafford is the constitutionally required procedure, notwithstanding Stafford’s reliance on the interpretation of Anders that the United States Supreme Court has told us is improper, then the majority errs in holding that we do not have the authority to grant counsel’s motion to withdraw because that is what the Court of Criminal Appeals told us to do in Stafford. See also Wilson v. State, 40 S.W.3d 192 (Tex. App.—Texarkana 2001, no pet.).
Finally, a word about the holding of this case. When the discussion regarding the “challenge” to the voluntariness of the confession and the making of an open plea is analyzed closely, a careful reader will note that an Anders brief is improper because an attorney or the client can always make voluntariness an issue of arguable merit. This is untenable. These issues must be analyzed in light of the appellate record. If the appellate record does not contain some indication that the confession or plea may have been involuntary, the appeal of these issues is frivolous. In this case, the majority is not relying on the appellate record to “identify” an arguable issue, as the reviewing lawyer is required to do. Rather, the majority relies on the comments in the defendant’s pro se brief or response. These comments are outside the appellate record. They may ultimately provide grounds for an attack on the judgment by habeas corpus, but not by direct appeal.
The real losers as a result of the process we apply today include not only the taxpayers of Brazoria County that must fund yet another review of this entire case, but every citizen of Texas. This resolution not only delays the ultimate disposition of this case, but it also consumes judicial resources that could be devoted to the disposition of cases that have merit. Having reviewed the entire record in this case and finding no issue of arguable merit, I would affirm the conviction. As an alternative, I would set aside the submission of this case and order appellate counsel to evaluate the entire record and prepare another brief for this Court in light of the modified Helms rule. Because the majority does not, I respectfully dissent.
TOM GRAY
Justice
Opinion dissenting from abatement order delivered and filed August 8, 2001
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