Anthony Leon Summers v. State

• Court: Court of Appeals of Texas
• Decided: June 2, 2004
• Docket: 07-03-00025-CR
• Status: Published

Opinion

NO. 07-03-0025-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 2, 2004

______________________________

ANTHONY LEON SUMMERS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 128^TH DISTRICT COURT OF ORANGE COUNTY;

NO. A-010013-R; HONORABLE PATRICK A. CLARK, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

Appellant Anthony Leon Summers was convicted by a jury of the offense of felony driving while intoxicated and punishment was assessed by the court at twelve years confinement. He challenges his conviction by two points of error asserting the evidence is (1) legally insufficient and (2) factually insufficient to show he was intoxicated at the time he operated a motor vehicle. We affirm.

On the morning of April 6, 1999, Robert McNeil, a friend of appellant's, loaned his car to appellant so that he could drive to work. At approximately 8:30 p.m., appellant attempted to pass a car being driven by Debra Gregus while a truck pulling a boat was approaching in the opposite lane. To avoid a major collision Gregus and the driver of the truck swerved onto their respective shoulder roads; the boat, however, fishtailed and was struck by the car appellant was driving. Appellant drove away and pursuant to a request from the driver of the truck, Gregus followed him to get his license plate number. After appellant stopped at a tattoo shop, Gregus recorded his license plate number, pulled up beside his car, and informed him he needed to return to the scene of the accident. Gregus returned to the scene, but appellant did not.

The car driven by appellant had sustained a flat tire and enough damage to make it immobile. While at the tattoo shop he telephoned McNeil to tell him he had been in an accident and ask for a ride. The owner of the tattoo shop offered appellant a ride to McNeil's home where appellant was residing at the time. When McNeil arrived at the tattoo shop approximately 30 to 60 minutes later, appellant had already left with the shop owner.

The Department of Public Safety dispatched a trooper to a hit and run scene at 8:43 p.m. and while en route, he located the abandoned car appellant had been driving still parked at the tattoo shop. He observed fresh damage to the car and upon closer inspection discovered full and empty beer bottles inside. He interviewed Gregus, who had returned to the tattoo shop, and was told she had seen appellant driving the car while intoxicated. The trooper also interviewed the owner of the tattoo shop who informed him that he had driven appellant to a particular address. McNeil then arrived at the tattoo shop and gave a statement to the trooper in which he stated that appellant had been driving his car. After the interviews the trooper proceeded to the scene to investigate. After securing the scene, he drove to McNeil's residence to interview appellant.

McNeil gave the trooper permission to enter his residence. Upon entry, they discovered appellant on the telephone in an angry and intoxicated condition. He had scratches with fresh blood on his face that had not yet scabbed. The trooper searched garbage cans, the icebox, and other general areas, but found no alcoholic beverages. After the trooper determined appellant was intoxicated, he arrested him.

Appellant challenges the legal and factual sufficiency of the evidence to show he was intoxicated at the time he was driving. We disagree. When both the legal and factual sufficiency of the evidence are challenged, we must first determine whether the evidence is legally sufficient to support the verdict. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Cr.App. 1996). It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon 2000); Tex. Pen. Code Ann. § 2.01 (Vernon 1994). In conducting a legal sufficiency review, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).

After conducting a legal sufficiency review under Jackson, we may proceed with a factual sufficiency review. Clewis, 922 S.W.2d at 133. As an appellate court, we view all the evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 9 (Tex.Cr.App. 2000). It is the exclusive province of the jury to determine the credibility of the witnesses and the weight to be given their testimony, and unless the record demonstrates a different result is appropriate, we must defer to the jury's determination. Id. at 8.

Before determining whether the evidence is legally sufficient to sustain the conviction, we must review the essential elements the State was required to prove. A person commits the offense of driving while intoxicated if the person is intoxicated while operating a motor vehicle in a public place. Tex. Pen. Code Ann. § 49.04(a) (Vernon Supp. 2004).

By his brief, appellant concedes he became intoxicated after the accident occurred. The evidence, however, shows otherwise, and a witness need not be an expert in order to express an opinion on whether a person is intoxicated. Vaughn v. State, 493 S.W.2d 524, 525 (Tex.Cr.App. 1972). Gregus testified that she followed the car driven by appellant to the tattoo shop and, after noting his license plate number, pulled up beside his car and observed that he was intoxicated. She testified he had glassy bloodshot eyes and slurred speech. When questioned why she believed appellant to be intoxicated, she responded, "I've seen quite a few intoxicated people."

The owner of the tattoo shop testified that when he encountered appellant he was intoxicated. Appellant told the shop owner he had been run off the road and needed help getting home which he interpreted to mean that appellant was alone and had been driving the car. He also said appellant was disoriented, had slurred speech, trouble maintaining his balance, and smelled of alcohol. Based on the testimony presented by Gregus and the tattoo shop owner, the evidence is sufficient to show that appellant was operating the car while intoxicated at the time of the accident. Point of error one is overruled.

Concluding that the evidence is legally sufficient to support the conviction, we must now determine, after a neutral review of all the evidence, whether it is factually sufficient to support the verdict. Johnson, 23 S.W.3d at 11. It is the exclusive province of the fact finder to determine the credibility of the witnesses and the weight to be given their testimony. Johnson v. State, 571 S.W.2d 170, 173 (Tex.Cr.App. 1978); Armstrong v. State, 958 S.W.2d 278, 284 (Tex.App.--Amarillo 1997, pet. ref'd).

The State established that the car appellant was driving contained full and empty beer bottles. Additionally, upon his search of McNeil's residence, the trooper did not find any evidence that appellant had become intoxicated there. Furthermore, McNeil testified that based on the telephone conversation with appellant immediately following the accident, he believed him to be intoxicated. Specifically, he testified:

A. Oh, yeah, he was intoxicated.

Q. Why do you say that?

A. I know Tony.

* * *

A. Tony kind of gets a little bit loud and, you know, acts kind of silly; and he's probably like everybody else when they get drunk. You know, you act goofy and, you know -

Q. Okay.

A. - that's - I just know he was drinking and I know he was drunk and I - I just know that.

Appellant testified in his own defense and denied driving McNeil's car at the time it was in the accident. He also claimed his intoxicated-like appearance was the result of medications. However, the jury, as the exclusive judge of the facts and credibility of the witnesses, was free to believe or disbelieve the testimony of any witness. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon Pamph. Supp. 2004); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Cr.App. 1992). After a neutral review of all the evidence, we conclude it is factually sufficient to support appellant's conviction. Point of error two is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

ecause the language requires arbitration of "any and all disputes" between the parties in addition to disputes arising out of or related to the Franchise Agreement. For the reasons set out hereafter, we need not determine if the claims arise out of or are related to the Agreement.

In the absence of an allegation of ambiguity in the contract language, the instrument alone will be deemed to express the intent of the parties. See Exxon Corp. v. West Tex. Gathering Co., 868 S.W.2d 299, 302 (Tex. 1993). A contract should be construed as a whole, attempting to give effect to all contract provisions so that none will be rendered meaningless. See Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). Separate contracts between the same parties executed at the same time and pertaining to the same transaction are generally construed together. See DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex. 1999); Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 327 (Tex. 1984). A contract is construed in accordance with the plain meaning of its language, unless it definitely appears from the writing as a whole that the intention of the parties would be defeated by such a procedure. See Parks, 1 S.W.3d at 101.

The plain, unambiguous language of the arbitration provision before us provides for arbitration of all disputes between ESI and Mr. Payroll with specific exceptions for actions with regard to ownership or use of Proprietary Marks or fees to be paid under a specified section of the Agreement. ESI offers no authority for its argument that the language "any and all disputes" does not mean what it clearly says: all disputes involving these parties, with specified exceptions, none of which apply to the current dispute. Nor does ESI offer authority for its assertion that the language is not broad enough to cover this specific dispute arising out of duties and obligations created during the course of business dealings involving check cashing operations and locations, which are the bases of ESI's relationship with Mr. Payroll and Cash America. See Parks, 1 S.W.3d at 102. And, we have previously addressed and discounted ESI's argument that the dispute is outside the scope of the arbitration provision because Toot 'N Totum is, should be, or could be involved. We conclude that the dispute is within the scope of the arbitration provision.

Finally, we consider ESI's argument that the venue provision in the Assignment removes this dispute from the arbitration provision, even if the dispute would otherwise fall within the scope of the provision. See Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987). The language of the venue provision does not reference or purport to be an amendment to the section of the Franchise Agreement entitled "Resolution of Disputes," the subsection entitled "Arbitration," nor the specific language of the arbitration provision. The venue provision is part of a single sentence which includes choice of law and forum selection language. The sentence selects the law of the state in which the premises are located as the law to be used in construing the Assignment, and designates the location for dispute resolution as the county in which the premises are located. Reasonably construed together with the Amended and Restated Franchise Agreement which was to be effective on the same date as the Assignment, the provision does not prescribe how disputes are to be resolved, only where. See In re Winter Park Constr., Inc., 30 S.W.3d 576, 578 (Tex.App.--Texarkana 2000, orig. proceeding). We conclude that the venue provision in the Assignment does not contradict language of the arbitration provision nor does it remove disputes from the scope of the provision.

CONCLUSION

The claims asserted by ESI in its Original Petition are within the scope of the arbitration provision in the Amended and Restated Franchise Agreement executed by ESI and Mr. Payroll as principals and Cash America as guarantor. The Order of the trial court denying the motion of Mr. Payroll and Cash America to abate ESI's suit and order the parties to arbitration is vacated. The cause is remanded to the trial court for further proceedings in accordance with this opinion.

Phil Johnson

Quinn, J., concurring

Publish.

NO. 07-02-0077-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

MAY 29, 2002

______________________________

CASH AMERICA INTERNATIONAL, INC. AND MR. PAYROLL CORPORATION,

Appellants

v.

EXCHANGE SERVICES, INC.,

Appellee

_________________________________

FROM THE 320^th DISTRICT COURT OF POTTER COUNTY;

NO. 89151-D; HONORABLE DON EMERSON, JUDGE

_______________________________

Concurring Opinion

_______________________________

I concur in the majority's opinion and disposition but write to specifically address a contention Exchange Services, Inc. made at oral argument. There, it asserted that because the parties agreed via paragraph 23.0 of the franchise agreement that "nothing in this [franchise] agreement shall terminate or otherwise affect any lease of real property that relates to the Existing Franchises," the arbitration clause contained in the franchise agreement has no "affect" upon disputes arising under the lease. (Emphasis added). Assuming arguendo that the passage "or otherwise affect any lease" could be read as encompassing disputes or litigation involving duties imposed by the lease, I note that the claims of Exchange Services are founded on more than just the lease. For instance, it also seeks to enforce obligations purportedly assumed by Mr. Payroll Corporation under the Assignment and Assumption of Lease and Estoppel Certificate agreement. The latter, more importantly, is mentioned nowhere in paragraph 23.0. Thus, any purported immunity from arbitration created by paragraph 23.0 does not encompass those disputes implicating or arising under the agreement to assign the lease.

Brian Quinn

Publish

1. Cash America signed the Franchise Agreement only as guarantor, and was not included in the term "Franchisor" as used in the arbitration provision. ESI does not contend that its claims against Cash America are not subject to the arbitration provision on the basis that Cash America was not included in the term "Franchisor." See, e.g., ANCO Ins. Servs. of Houston, Inc. v. Romero, 27 S.W.3d 1, 5 (Tex.App.--San Antonio 2000, pet. denied); Carlin v. 3V Inc., 928 S.W.2d 291, 294-97 (Tex.App.--Houston [14th Dist.] 1996, no writ); Merrill Lynch, Pierce, Fenner & Smith v. Eddings, 838 S.W.2d 874, 879 (Tex.App.--Waco 1992, writ denied).