Anthony L. Banks v. State

Opinion

Anthony L. Banks v. State

IN THE

TENTH COURT OF APPEALS

No. 10-02-046-CR

No. 10-02-047-CR

     ANTHONY L. BANKS,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the Criminal District Court 3 of Dallas County

Dallas County, Texas

Trial Court Nos. F01-15008-WJ and F01-21948-QVJ

MEMORANDUM OPINION

      Anthony L. Banks pleaded guilty in a consolidated proceeding to aggravated robbery in trial court cause number F01-15008-WJ (our cause number 10-02-046-CR) and to theft of property valued at $20,000 or more but less than $100,000 in trial court cause number F01-21948-QVJ (our cause number 10-02-047-CR). Pursuant to the State’s plea recommendation, the court assessed Banks’s punishment at fifteen years’ imprisonment and a $3,000 fine in the aggravated robbery case and ten years’ imprisonment and a $2,000 fine in the theft case. Banks filed a general notice of appeal in both cases.

      To properly invoke the jurisdiction of this Court over an appeal from a negotiated guilty plea, an appellant must file a notice of appeal which complies with Rule of Appellate Procedure 25.2(b)(3). See White v. State, 61 S.W.3d 424, 429 (Tex. Crim. App. 2001); Tex. R. App. P. 25.2(b)(3). Banks’s general notices of appeal do not. Accordingly, we dismiss Banks’s appeals for want of jurisdiction.

                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeals dismissed for want of jurisdiction

Opinion delivered and filed March 13, 2002

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imes', serif">(a) A court may dismiss a claim, either before or after service of process, if the court finds that:

(1) the allegation of poverty in the affidavit or unsworn declaration is false;

(2) the claim is frivolous or malicious; or

(3) the inmate filed an affidavit or unsworn declaration required by this chapter that the inmate knew was false.

(b) In determining whether a claim is frivolous or malicious, the court may consider whether:

(1) the claim’s realistic chance of ultimate success is slight;

(2) the claim has no arguable basis in law or fact;

(3) it is clear that the party cannot prove facts in support of the claim; or

(4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.

Id.

      Section 14.004 requires inmate petitions filed under Rule 145 to be accompanied by a separate affidavit describing the nature and outcome of each previous suit initiated by the same plaintiff other than suits brought under the Family Code or while the plaintiff was represented by an attorney. Id. § 14.004(a). That section also requires that the inmate file a certified copy of his trust account statement from the Department. See id. § 14.004(c). Section 14.005 requires an inmate who files a claim that is subject to the grievance system established under Section 501.008 of the Government Code to file a separate affidavit noting the date the grievance was filed and including a copy of the grievance committee’s decision. Id. § 14.005; Tex. Gov’t Code Ann. § 501.008 (Vernon 1998).

STANDARD OF REVIEW

      We have held the standard for review of dismissal under Chapter Fourteen is whether the trial court abused its discretion. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.—Waco 1996, no writ). A trial court may be reversed for abusing its discretion only when the court of appeals finds the court acted in an unreasonable or arbitrary manner. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Stated differently, abuse of discretion occurs when a trial court acts "without reference to any guiding rules and principles." Id. at 241-42. A corollary principle is that the court of appeals may not reverse for abuse of discretion merely because it disagrees with a decision by the trial court, if that decision was within the trial court's discretionary authority. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer, 701 S.W.2d at 242. Because an appellate court might have decided a matter within the trial judge's discretion in a different manner does not demonstrate that the trial court abused its discretion. Southwestern Bell Telephone Company v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

DEFICIENCIES IN PUGH’S FILING

      Pugh’s petition was not accompanied by the affidavit or unsworn declaration required by Section 14.004. Tex. Civ. Prac. & Rem. Code Ann. § 14.004(a) (Vernon Supp. 1999). The petition did not include an affidavit or unsworn declaration regarding the exhaustion of administrative remedies, or a copy of the written decision by the grievance system required by Section 14.005. Id. § 14.005(a). The supplemental filing required by Chapter Fourteen is an essential part of the process by which courts review the disposition of inmate litigation. See Hickson, 926 S.W.2d at 399. The trial court could properly have dismissed the suit for failure to include the required affidavit or sworn declaration relating to previous filings. See id. The trial court could also have dismissed the suit for failure to include an affidavit or sworn declaration regarding the exhaustion of administrative remedies. See id. Thus, we hold the trial court did not abuse its discretion in ordering the dismissal.

CONCLUSION

      Because the trial court could properly have dismissed Pugh’s suit under Section 14.004 or 14.005 of the Civil Practices and Remedies Code, dismissal was not outside the scope of the court’s discretion. Because of our decision, we do not decide whether the claim was frivolous or malicious, or failed to state a cause of action. We affirm the order of dismissal.

                                                                   ROBERT M. CAMPBELL

                                                                   Justice (Sitting by Assignment)

Before Chief Justice Davis

      Justice Vance, and

      Justice Campbell (Sitting by Assignment)

Opinion issued and filed October 13, 1999

Affirmed

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