Chris Haliburton v. State

• Court: Court of Appeals of Texas
• Decided: August 11, 1999
• Docket: 10-99-00008-CR
• Status: Published

Opinion

Chris Haliburton v. State

IN THE

TENTH COURT OF APPEALS

No. 10-99-008-CR

     CHRIS HALIBURTON,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 94-81-C

O P I N I O N

      Appellant Chris Haliburton pleaded guilty in 1994 to unauthorized use of a motor vehicle, then a third degree felony. See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 31.07, 1973 Tex. Gen. Laws 883, 932 (amended 1993) (current version at Tex. Pen. Code Ann. § 31.07 (Vernon 1994)). Pursuant to a plea agreement, the court sentenced him to four years’ imprisonment and a $400 fine, suspended imposition of sentence, and placed him on probation for four years. Three months before his probationary term would have expired, the State filed a motion to revoke Haliburton’s probation. The State subsequently filed an amended revocation motion.

      Haliburton pleaded “true” to one of the five allegations in the amended motion and “not true” to the remaining allegations. The court heard the motion in conjunction with the trial of two burglary offenses also alleged as bases for revocation (two of the four allegations to which he pleaded “not true”). After the jury convicted Haliburton of one of the burglaries and acquitted him of the other, the court revoked his probation and imposed the original sentence.

      Haliburton’s appellate counsel filed a motion to withdraw with a supporting Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). We notified Haliburton that he had the right to respond to counsel’s motion and brief, but he has not done so. See Wilson v. State, 955 S.W.2d 693, 696-97 (Tex. App.—Waco 1997, order). We now decide “whether the case is wholly frivolous” as claimed by counsel. See Taulung v. State, 979 S.W.2d 854, 855 (Tex. App.—Waco 1998, no pet.) (quoting Anders, 386 U.S. at 744, 87 S. Ct. at 1400).

      The amended revocation motion contains five allegations. One is that Haliburton violated the conditions of his probation by committing the offense of possession of marihuana. Haliburton pleaded true to this allegation.

      Counsel does not list potential issues in his brief. See, e.g., Coronado v. State, No. 10-98-188-CR, slip op. at 3-4, 1999 WL 371271, at *2 (Tex. App.—Waco June 9, 1999, order) (per curiam). Rather, counsel analyzes the record and reviews the original plea proceedings, Haliburton’s arraignment on the amended revocation motion, and the hearing on the motion. After reviewing each of these areas, counsel concludes that no errors of arguable merit are shown. See Taulung, 979 S.W.2d at 858.

      We have reviewed the record and agree with counsel that no error of arguable merit is shown. Id. Furthermore, in light of Haliburton’s plea of “true” to the allegation that he had possessed marihuana, we conclude that the court did not abuse its discretion in revoking his probation. See Stevens v. State, 900 S.W.2d 348, 350 (Tex. App.—Texarkana 1995, pet. ref’d) (proof of a single violation sufficient to revoke probation).

      We have concluded that the court did not abuse its discretion in revoking Haliburton’s probation and no errors of arguable merit are shown. Accordingly, we grant counsel’s motion to withdraw and affirm the judgment.

                                                                               PER CURIAM

Before Chief Justice Davis

      Justice Vance and

      Justice Gray

Affirmed

Opinion delivered and filed August 11, 1999

Do not publish

’s alleged promise to loan the additional money because: (1) it entered a $1.375 million drilling contract to begin drilling operations in New Mexico; (2) it commenced the four recompletion projects at a cost of $187,500; and (3) the ALMAC loan to fund these operations carried “a substantially higher interest rate” than the Bank had allegedly promised.

      Under the negligent misrepresentation allegations, UHC asserts that it sustained economic and actual damages as a result of the Bank’s alleged misrepresentation. Mize separately alleges that “he suffered pecuniary loss” as a proximate cause of his reliance on the alleged misrepresentation. Mize alleges that he agreed to execute a second pledge agreement because of the alleged misrepresentation. However, it is undisputed that he never did so.

      Nowhere in the petition does Mize specifically allege the nature of the pecuniary loss he personally suffered. He provided testimony in the injunction hearing to describe the pecuniary losses he contends he has suffered as a result of the alleged misrepresentation. He testified that “all [his] personal funds are tied up in that ALMAC note” because UHC has not repaid the loan. In addition, he testified that, if the Bank forecloses, UHC would probably have to offer additional shares to raise revenue and he would lose his status as majority shareholder.

      The only injuries alleged in connection with the DTPA claim are injuries to UHC. Mize does not have standing in his individual capacity to assert this claim on behalf of UHC. See City of Laredo v. R. Vela Exxon, Inc., 966 S.W.2d 673, 679 (Tex. App.—San Antonio 1998, pet. denied); El T. Mexican Rests., Inc. v. Bacon, 921 S.W.2d 247, 251 (Tex. App.—Houston [1st Dist.] 1995, writ denied); see also Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990) (“A corporate stockholder cannot recover damages personally for a wrong done solely to the corporation, even though he may be injured by that wrong.”).

      Nor does Mize have standing to assert the negligent misrepresentation claim. Mize’s contention that his liquid assets are “tied up” does not state a pecuniary loss. Rather, it reflects his own decision to convert $1 million into the form of a note payable to him by ALMAC. We hold as a matter of law that the potential diminution of his ownership interest in UHC in the event of foreclosure is not actionable because that too reflects his own decision in April 2000 to put his ownership interest at risk by pledging the stock certificate as collateral for UHC’s note.

      These “injuries” were not caused by the Bank’s refusal to loan UHC additional money. Rather, they were caused by Mize’s actions in response to: (1) the need for collateral to secure the original loan; and (2) the need for additional funds to finance the drilling operation in New Mexico and the recompletion projects. Accordingly, Mize’s alleged injuries are not “fairly traceable” to the Bank’s refusal to loan UHC additional money. See McConnell, ___ U.S. at ___, 124 S. Ct. at 709.

      The Bank’s third issue is sustained. We need not address the remainder of the Bank’s issues. See Tex. R. App. P. 47.1.

      We reverse the order granting the temporary injunction, dissolve the injunction, and remand this cause to the trial court with instructions to dismiss Mize’s claims for want of jurisdiction. See Warren v. Aldridge, 992 S.W.2d 689, 691 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Letson v. Barnes, 979 S.W.2d 414, 419 (Tex. App.—Amarillo 1998, pet. denied).

                                                                   FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

      (Chief Justice Gray concurring)

Reversed and remanded

Opinion delivered and filed May 12, 2004

[CV06]