Edward Reveteriano v. State

Opinion

NO. 07-02-0387-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

SEPTEMBER 22, 2003

______________________________

EDWARD REVETERIANO,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 251^ST DISTRICT COURT OF POTTER COUNTY;

NO. 44127-C; HON. PATRICK A. PIRTLE, PRESIDING _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J. ⁽¹⁾

Appellant Edward Reveteriano appeals from a judgment revoking his community supervision and sentencing him to three years imprisonment. In October of 2001, appellant pled guilty to the offense of burglary of a habitation pursuant to a plea bargain agreement. He was sentenced to four years confinement, which was probated for four years. The State subsequently filed a motion to revoke his probation. At the hearing, appellant pled true to the allegations as alleged in the motion. The trial court found that the allegations were true and revoked appellant's probation. However, he reduced appellant's sentence to three years in prison.

Appellant's counsel has now moved to withdraw, after filing a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and representing that he has searched the record and found no arguable grounds for reversal. The motion and brief illustrate that counsel notified appellant of his right to review the appellate record and file his own brief. So too did we inform appellant that any pro se response or brief he cared to file had to be filed by September 10, 2003. No response has been received.

In compliance with the principles enunciated in Anders, appellate counsel explained why there existed no arguable ground for appeal. For instance, he acknowledged that appellant testified at the plea hearing that he was not aware that the burglary was about to be committed. However, appellant did admit that he was at "the wrong place at the wrong time" and that his attorney had explained the law of parties which he understood. Appellate counsel further pointed out that appellant pled guilty and was properly admonished by the trial court and that his plea was voluntary. See Edwards v. State, 921 S.W.2d 477, 481 (Tex. App.--Houston [1^st Dist.] 1996, no pet.).

We have also conducted an independent review of the record to determine whether there existed reversible error and found none. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (requiring us to conduct an independent review). No appeal was taken within 30 days from the date of appellant's guilty plea and order placing him on community supervision; thus, we have no jurisdiction over purported error arising at or before that hearing. Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999). Further, the punishment assessed was within the range prescribed by law. Tex. Pen. Code Ann. §30.02(c)(2) (Vernon 2002) (stating the offense is a second degree felony); Id. §12.33(a) (stating the range of punishment for a second degree felony is not more than 20 years or less than two years).

Accordingly, we grant counsel's motion to withdraw and affirm the judgment of the trial court

Brian Quinn

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

mission of the local administrative judge before filing suit.

          A writ of mandamus is a judicial writ directed at an individual, official, or board, to whom it is addressed, to perform some specific legal duty to which the relator is entitled under legal right to have performed. Crowley v. Carter, 192 S.W.2d 787, 790 (Tex.Civ.App.–Fort Worth 1946, no writ). To be entitled to mandamus relief, a petitioner must show that: (1) the trial court clearly abused its discretion; and (2) the relator has no adequate remedy by appeal. In re McAllen Medical Center Inc., No. 05-0892, 2008 WL 2069837 (Tex. May 16, 2008), citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004). A mandamus proceeding is not to be used as a substitute for an ordinary appeal. See Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59-60 (Tex. 1991) (orig. proceeding) (a mandamus proceeding may not be used to bypass the appeals process). It is an extraordinary remedy available only in limited circumstances, and not for grievances that may be addressed by other remedies such as an appeal. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding); In re Certain Underwriters at Lloyd’s, 106 S.W.3d 332, 333 (Tex.App.–Dallas 2003) (orig. proceeding).

          On a previous occasion, we denied a petition for mandamus relator filed, in which he sought relief from a similar order dismissing a suit because of his failure to obtain the permission of the local administrative judge as required by § 11.102 of the Civil Practice and Remedies Code. In re Johnson, No. 07-04-0416-CV, 2004 WL 1879652 (Tex.App.–Amarillo Aug. 23, 2004) (orig. proceeding). One of our reasons for denying mandamus relief was that relator had an adequate remedy by appeal from the dismissal order. Id.

          In his present petition, relator points out that the trial court’s order of which he complains dismissed his suit “without prejudice.” He cites Mossler v. Shields, 818 S.W.2d 752 (Tex. 1991) and Lentworth v. Trahan, 981 S.W.2d 720 (Tex.App.–Houston [1^st Dist.] 1998 no pet.), for the proposition that dismissal of a case with prejudice is an adjudication on the case’s merits. He also cites us to cases holding that interlocutory orders are not appealable absent explicit statutory provision. E.g., Kaplan v. Tiffany Development Corp., 69 S.W.3d 212, 217 (Tex.App.–Corpus Christi 2001, no pet.). From this case law, relator reasons that the trial court’s order dismissing his suit without prejudice was not appealable, making mandamus relief available. The reasoning is faulty.

          Relator is correct that we generally have appellate jurisdiction only over appeals from final judgments, and interlocutory orders may be appealed only if permitted by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992). A judgment that disposes of all pending parties and claims in the record is final for purposes of appeal. Lehmann, 39 S.W.3d at 195. This is true even though it may not be final for other purposes, such as res judicata. Id. Here, there appears no dispute that the trial court’s order dismissed all relator’s claims against all parties. Accordingly, the order was final and appealable. Id. That the dismissal was “without prejudice” to relator’s refiling the case with permission of the local administrative judge did not make it a nonappealable interlocutory order. See Childers v. Advanced Foundation Repair, L.P., 193 S.W.3d 897, 898 (Tex. 2006) (per curiam) (judgment dismissing claims without prejudice held final and appealable).

          Because he could have attacked the validity of the order through the appeal process, we find that relator had an adequate remedy by law. Relator has the burden to show entitlement to the relief being requested. See generally Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding). Because relator’s petition does not demonstrate that he had no adequate remedy by law, his petition is insufficient to establish his entitlement to mandamus relief.

          Moreover, relator’s argument the trial court abused its discretion by dismissing his case is founded on the contention that it violated his rights under the Due Process Clause of the Fourteenth Amendment. U.S. Const., amend. XIV. Relator’s suit was dismissed under our statutory provisions addressing litigation brought by persons who have been determined to be vexatious litigants. Tex. Civ. Prac. & Rem. Code Ann. §§ 11.001, et seq. (Vernon 2002). Courts have upheld our state’s vexatious litigant statute, and similar statutes in other states, against constitutional claims like those relator asserts. See Leonard v. Abbott, 171 S.W.3d 451 (Tex.App.–Austin 2005, pet. denied) (rejecting constitutional challenges including due process claim based on vagueness); Wolfe v. George, 385 F.Supp.2d 1004, 1013-16 (N.D. Cal. 2005), aff’d 486 F.3d 1120 (9^th Cir. 2007) (upholding California’s very similar vexatious litigant statute against constitutional challenges including due process and equal protection); Wolfgram v. Wells Fargo Bank, 61 Cal.Rptr.2d 694 (1997), cert. denied 522 U.S. 937, 118 S.Ct. 347, 139 L.Ed.2d 270 (rejecting due process challenge to prefiling order). See also Carson v. Johnson, 112 F.3d 818, 821-22 (5^th Cir. 1997) (rejecting equal protection and due process challenges to the federal “three strikes” provision, which requires advance permission for the filing of suits by prisoners proceeding In Forma Pauperis who have previously filed three or more frivolous suits).

          For both these reasons, we deny relator’s petition for writ of mandamus.

                                                                           James T. Campbell