It's the Berry's, LLC, D/B/A Mary Ellen's, a Texas Limited Liability Company v. Edom Corner, LLC, a Texas Limited Liability Company

Opinion

NO. 07-06-0390-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 8, 2007

______________________________

IT'S THE BERRY'S, LLC, A TEXAS LIMITED LIABILITY COMPANY DOING BUSINESS AS MARY ELLEN'S, APPELLANT

V.

EDOM CORNER, LLC, A TEXAS LIMITED LIABILITY COMPANY, APPELLEE _________________________________

FROM THE 294^TH DISTRICT COURT OF VAN ZANDT COUNTY;

NO. 06-00428; HONORABLE TERESA DRUM, JUDGE _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

ORDER

Appellee Edom Corner, LLC, has filed an Emergency Motion to Disqualify Opposing Counsel, Strike Appellant's Brief and for Emergency Stay in this appeal, seeking the relief stated in the motion's title. The motion is founded on client communications made in September 2004 from Earl A. Berry, Jr., one of the members of Edom Corner, LLC, to Paul Elliott, an attorney Berry consulted on behalf of another entity, Edom Wash 'N Dry, LLC. In January 2007, Elliott and Dan J. Anderson, one of the attorneys representing appellant It's the Berry's, LLC, formed a professional corporation for the practice of law. Because of that professional relationship, Edom Corner, LLC, contends Berry's 2004 communications to Elliott are now imputed to Anderson. Because, on April 24, 2007, Elliott executed an affidavit describing his September 2004 meeting with Berry, and because the contents of the affidavit have been conveyed to Anderson's co-counsel Larry M. Lesh, Edom Corner, LLC contends the 2004 client communications must be imputed to Lesh as well.

The litigation that culminated in the judgment being appealed here concerns business premises leased by Edom Corner, LLC to It's the Berry's, LLC. The trial court's judgment awarded Edom Corner, LLC possession of the premises, costs, attorney's fees, and interest. The judgment was signed in August 2006.

Photocopies of documents submitted to the Court indicate the following: Mary Ellen Malone is the sole member of It's the Berry's, LLC and is the sister of Earl A. Berry, Jr.; until late 2004, when they separated their business interests, Malone and Berry both were members of Edom Wash 'N Dry, LLC as well as other entities; the dispute about which Berry consulted Elliott in September 2004 also was a real estate dispute involving property located across a highway from the premises at issue in our appeal; Berry and Malone, or entities controlled by them, currently are opponents in three other proceedings pending in the 294^th District Court of Van Zandt County.

Edom Corner, LLC's emergency motion does not demonstrate that the matter about which Berry consulted Elliott in September 2004 was substantially related to the litigation giving rise to the present appeal. The matters involved different parties, different properties, and different issues. Neither the familial and former business ties between Berry and Malone nor the events occurring during their entities' other lawsuits establish the substantial relationship necessary to disqualify counsel on the basis of prior representation. Metro Life Ins. Co. v. Syntek Finance Corp., 881 S.W.2d 319, 320 (Tex. 1994); In re Cap Rock Elec. Co-op, Inc., 35 S.W.3d 222, 230-31 (Tex.App.-Texarkana 2000, no pet.).

Further, and assuming that Elliott's knowledge from the September 2004 meeting is imputed to Anderson and Lesh, Edom Corner, LLC has not demonstrated that it is prejudiced by any conflict of interest. In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002); In re Dalco, 186 S.W.3d 660, 668 (Tex.App.-Beaumont 2006, orig. proceeding [mand. denied]).

The emergency motion of appellee Edom Corner, LLC seeking disqualification of appellant's counsel, striking of appellant's brief and a stay of the appeal, is denied.

It is so ordered.

Per Curiam

UnhideWhenUsed="false" QFormat="true" Name="Emphasis"/>

NOS. 07-08-0502-CR, 07-08-0503-CR; 07-08-504-CR;

07-08-0505-CR; 07-08-0506-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JULY 15, 2010

ALFREDO SOLIS, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 57,754-C, 57,761-C, 57,762-C, 57,763-C, 57,764-C;

 HONORABLE ANA ESTEVEZ, JUDGE

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Alfredo Solis appeals ten convictions for aggravated sexual assault of a child, sexual assault of a child, and indecency with a child by sexual contact.  Through one issue, he argues the trial court abused its discretion by ordering the jury-imposed sentences for three of the convictions to run consecutively.  We disagree, and will affirm.

Background

Indictments filed in five cases alleged appellant committed multiple sexual offenses against one child, his stepdaughter.  The cases were consolidated for trial. 

At trial appellant plead guilty to each of the indicted offenses.  After the State presented evidence, the court instructed the jury to return a verdict of guilty on each count.  The jury entered verdicts accordingly.  Appellant elected assessment of punishment by the jury.  During its deliberation on punishment, the foreman sent the court a note inquiring:

“1)       If given probation on one count of the lessor (sic) charges, does that ensure that if the defendant gets out he for sure will be on probation?

2)         If not does probation have to be given on all charges.(sic)”

The court responded with a supplemental charge instructing the jury to continue its deliberations.  The jury returned verdicts assessing two fifty-year sentences for aggravated sexual assault of a child,^[1] two twenty-year sentences for sexual assault of a child,^[2] five twenty-year sentences for indecency with a child by sexual contact,^[3] and one nine-year probated sentence for indecency with a child by sexual contact.

The State moved for consecutive sentencing and Athat [appellant=s] probation term not begin until he is paroled on the last sentence prior to that.@  Appellant objected to stacked sentences.  After the trial court made some comments, apparently based on the jury’s note, concerning the jury’s wishes regarding appellant’s eventual possible release from confinement, and further argument from counsel, the court “stacked” one of the fifty-year sentences, one of the twenty-year sentences and the probated sentence.  It ordered the remaining sentences run concurrently.  The effect of the court’s sentencing was seventy years confinement followed by nine years probation.  Appellant timely filed notice of appeal.

Issue

Appellant raises one issue on appeal:

Where a defendant in his mid-50s opts for jury sentencing, and where the trial court concludes from the punishment verdicts that the jury intended the defendant to be released at some time in the future, is the trial court entitled to frustrate that intention by cumulating the sentences of imprisonment to make release much less likely?^[4]

Discussion

Statute authorizes a trial court to cumulate sentences imposed for certain offenses arising out of the same criminal episode and prosecuted in a single criminal action.  Tex. Penal Code Ann. § 3.03 (Vernon Supp. 2009).  Those offenses include indecency with a child, and aggravated sexual assault and sexual assault of a child younger than seventeen.  Tex. Penal Code Ann. §§ 3.03(b)(2)(A); 21.11; 22.011; 22.021 (Vernon Supp. 2009); see DeLeon v. State, 294 S.W.3d 742 (Tex.App.—Amarillo 2009, pet. refused) (applying statute).

The Court of Criminal Appeals has indicated that a trial court’s decision to cumulate sentences constitutes an abuse of discretion only when cumulation is not permitted by statute.  See Beedy v. State, 250 S.W.3d 107, 110 (Tex.Crim.App. 2008) (Awhen a trial judge lawfully exercises the option to cumulate, that decision is unassailable on appeal@); Barrow v. State, 207 S.W.3d 377, 380-81 (Tex.Crim.App. 2006) (discussing trial court=s discretionary decision whether to cumulate sentences).  Accord Nicholas v. State, 56 S.W.3d 760, 764-65 (Tex.App.BHouston [14th Dist.] 2001, pet. refused) (noting, as a practical matter, an abuse of discretion occurs in sentencing for multiple offenses only if the trial court imposes consecutive sentences where the law requires concurrent sentences, where the court imposes concurrent sentences but the law requires consecutive ones, or where the court otherwise fails to observe the statutory requirements pertaining to sentencing); Revels v. State, No. 05-07-01555-CR, 2008 Tex. App. Lexis 9197, at *18 (Tex.App.BDallas Dec. 11, 2008, no pet.).

Appellant does not contend the trial court’s cumulation order in this case contravened the statute.  The trial court did not alter the individual sentences imposed by the jury, and none exceed the statutory range.  All the sentences were subject to cumulation.  Tex. Penal Code Ann. ' 3.03(b)(2)(B) (Vernon Supp. 2009).

Nonetheless, appellant contends the order was an abuse of discretion because of the peculiar circumstances.  He points to the trial court’s comment, which he contends indicates the court understood the jury intended that appellant eventually be eligible for release from imprisonment.  He then argues that, despite its understanding of the jury’s intention, the trial court ordered cumulation of sentences, making his eventual eligibility for release much less likely.  This action, appellant posits, must constitute an abuse of discretion.

Effectively, appellant’s argument is an iteration of the position rejected by the Court of Criminal Appeals in Barrow.  207 S.W.3d at 381-82.  There, Judge Meyers, in dissent, took the position that allowing the trial judge to cumulate jury-determined sentences contradicts a Texas defendant’s statutory right to have punishment assessed by the jury.  Id. at 382.  Addressing constitutional challenges to judge-ordered cumulation, the majority opinion pointed out that, by statute, Texas permits a defendant to opt for jury-assessed punishment but the Legislature also has assigned the decision whether to cumulate sentences to the trial court.  Id. at 380. 

Because the jury simply has no role in the decision whether sentences are to be served consecutively or concurrently when statute permits, and the decision is left to the discretion of the trial court, Barrow, 207 S.W.3d at 380,^[5] we are unable to agree that the jury’s intentions regarding appellant’s eventual eligibility for release could operate to limit the trial court’s discretion to order cumulation.^[6]  

We accordingly overrule appellant=s issue and affirm the judgments of the trial court.

                                                                                                James T. Campbell

                                                                                                            Justice

Do not publish. 

---

^[1]  Tex. Penal Code Ann. ' 22.021(a)(2)(B) (Vernon Supp. 2009).

^[2]  Tex. Penal Code Ann. ' 22.011(a)(2) (Vernon Supp. 2009).

^[3]  Tex. Penal Code Ann. ' 21.11(a)(1) (Vernon Supp. 2009).

^[4] The State contends appellant’s issue was not preserved for our review.  See Tex. R. App. P. 33.1; Pena v. State, 285 S.W.3d 459, 462-464 (Tex.Crim.App. 2009) (discussing preservation of error).  Although the State’s argument has some merit, we find appellant’s objection to the imposition of cumulative sentencing for the fifty-and twenty-year sentences was conveyed to the trial court, and was overruled by the court’s sentencing decision, so as to preserve the complained-of error for our review.

^[5] Cf. Gordon v. State, 633 S.W.2d 872, 879 n.16 (Tex.Crim.App. 1982) (citing O=Bryan v. State, 591 S.W.2d 464, 476, 478 (Tex.Crim.App. 1979) (AThe duration of confinement following its assessment of punishment is not a legitimate concern of a jury@). 

^[6] Although we need not address it, we agree with the State also that the jury foreman’s note is subject to more than one interpretation as an indicator of the jury’s thinking regarding appellant’s eventual release from confinement.