Maurice Leslie v. State

• Court: Court of Appeals of Texas
• Decided: April 21, 2009
• Docket: 07-08-00010-CR
• Status: Published

Opinion

NO. 07-08-0010-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 21, 2009

______________________________

MAURICE LESLIE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 52ND DISTRICT COURT OF CORYELL COUNTY;

NO. 18160; HONORABLE PHILLIP ZEIGLER, JUDGE

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appellant, Maurice Leslie, was convicted of unlawful possession of a firearm by a felon. Appellant was sentenced to incarceration in the Institutional Division of the Texas Department of Criminal Justice for 10 years. By one issue, appellant requests this court to reform the trial court’s judgment. We affirm.

Factual and Procedural Background

          Appellant does not challenge the legal or factual sufficiency of the evidence presented to the trial court, therefore, only so much of the factual background will be discussed as is relevant to our decision. After a jury had found appellant guilty of the offense of possession of a firearm by a felon, appellant elected to proceed before the trial court alone on the issue of punishment. At the conclusion of the presentation of evidence on the issue of punishment, the trial court made the following pronouncement from the bench, “All right, Mr. Leslie, you are hereby sentenced to serve ten years in the institutional division, the Department of Criminal Justice.” Subsequently, when the judgment was signed and entered by the trial court, court costs in the amount of $228.00 was added to the judgment. Appellant complains of this variance between the oral pronouncement of judgment and the written judgment. Appellant contends that the oral pronouncement of judgment controls and that we must, therefore, reform the judgment to remove the assessment of court costs. We decline to do so and affirm the judgment.

Discussion

          The record clearly reflects that the trial court never mentioned court costs at the time of oral pronouncement of sentence. Appellant posits that the oral pronouncement of sentence trumps the written judgment and we must reform the judgment to remove the assessment of court costs. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1989) (concluding that, when there is a variation between the oral pronouncement of sentence and the written memorialization of the sentence, the oral pronouncement controls).

          However, the Texas Court of Criminal Appeals recently revisited the issue in the context of court costs and the failure to include court costs as part of the oral pronouncement of judgment. See Weir v. State, No. PD-0616-08, 2009 WL 605362 (Tex.Crim.App. March 11, 2009). After addressing the legislative history of the court costs provisions of the Government Code and the Texas Code of Criminal Procedure, the Court held that, “court costs are not punitive and, therefore, did not have to be included in the oral pronouncement of sentence as a precondition to their inclusion in the trial court’s written judgment.” Id. at *2. Accordingly, appellant’s request that we modify the judgment to delete the assessment of court costs is denied and we overrule appellant’s issue.

Conclusion

          Having overruled appellant’s issue, we affirm the judgment of the trial court.

Mackey K. Hancock Justice

Do not publish.

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NO. 07-10-0361-CV

PANEL E

MAY 13, 2011

COVENANT HEALTH SYSTEM, D/B/A COVENANT

MEDICAL CENTER, AND D/B/A COVENANT HEART &

VASCULAR INSTITUTE AND D/B/A COVENANT HEART

INSTITUTE AND D/B/A COVENANT WELL HEART

SERVICES, APPELLANT

LINDA BARNETT AND ROBERT BARNETT, APPELLEES

FROM THE 72^ND DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2010-550,709; HONORABLE RUBEN GONZALES REYES, JUDGE

Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.^[1]

CONCURRING AND DISSENTING OPINION

              I agree with the majority in its conclusion that Appellees' claims are health care liability claims and that the trial court erred in denying Appellant's motion to dismiss under Chapter 74 of the Texas Civil Practice and Remedies Code.  I respectfully disagree, however, with the decision to remand this matter back to the trial court for the purpose of determining Appellant's request for an award of attorney's fees.

Waiver of Attorney's Fees

By its prayer, contained within both its original and reply briefs, Appellant requests this Court to remand this cause to the trial court for a determination of attorney's fees to be awarded pursuant to section 74.351(b)(1) of the Texas Civil Practice and Remedies Code.  Other than contending that the penalties contained in that section are "mandatory," neither of Appellant's two briefs contain any discussion whatsoever as to why a remand is necessary or appropriate.  Rule 38.1(h) of the Texas Rules of Appellate Procedure requires that the body of Appellant's brief contain a succinct, clear, and accurate statement of the arguments made in support of any relief requested.  Failure to advance an argument, cite authority, make record references or otherwise brief an issue effects a waiver of that issue on appeal.  Assisted Living Concepts, Inc. v. Stark, No. 07-10-0228-CV, 2010 Tex. App. LEXIS 9326, at *11 (Tex.App.--Amarillo Nov. 23, 2010, no pet.) (reversing the trial court for failure to grant a Chapter 74 motion to dismiss and then denying a request to remand on the issue of attorney's fees where the appellant failed to brief the issue); Sunnyside Feedyard v. Metro. Life Ins. Co., 106 S.W.3d 169, 173 (Tex.App.--Amarillo 2003, no pet.).  Accordingly, I would find that Appellant waived the issue.

No Evidence of Attorney's Fees

            Even if the issue was not waived, a review of the record in this case reveals that Appellant offered no evidence of attorney's fees, reasonable, incurred or otherwise.  The courts of this State have consistently held that an award of attorney's fees must be supported by competent evidence, Torrington Co. & Ingersoll-Rand Corp. v. Stutzman, 46 S.W.3d 829, 852 (Tex. 2000), and an award of attorney's fees without sufficient supporting evidence is an abuse of discretion.  Sharp v. Broadway Nat'l Bank, 784 S.W.2d 669, 672 (Tex. 1990). 

            Furthermore, due to this complete absence of evidence of a vital fact, any award of attorney's fees would be subject to reversal on a subsequent appeal.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030, 124 S.Ct. 2097, 15 L.Ed.2d 711 (2004).  Because this Court is required to render the judgment that the trial court should have rendered, as to the issue of attorney's fees, I would render a take-nothing judgment.  See Tex. R. App. P. 43.2(c).

No Right to Relitigate

            To overcome the complete lack of evidence, as I read the majority, Appellant has the right to return to the trial court for the "limited purpose" of affording them a second chance to offer evidence of attorney's fees.  In doing so, the majority ignores the precedent of this Court.  See Assisted Living Concepts, Inc., 2010 Tex. App. LEXIS 9326.  The majority finds support for this unconventional procedure in three cases, each of which is either distinguishable from the facts of this case or founded upon an invalid syllogism. 

            In Gingrich v. Scarborough, No. 09-09-0211-CV, 2010 Tex. App. LEXIS 3139 (Tex.App.--Beaumont Apr. 29, 2010, no pet.) (mem. op.), the appellate court cites section 74.351(b) of the Texas Civil Practice and Remedies Code as the basis for remanding the question of attorney's fees to the trial court for an award of attorney's fees when, in reality, that particular section says nothing about remands.  To the contrary, section 74.351(b) specifically speaks to the judgment a trial court should enter at the conclusion of an original hearing on a motion to dismiss. 

            Likewise, the second case relied upon by the majority, Thoyakulathu v. Brennan, 192 S.W.3d 849 (Tex.App.--Texarkana 2006, no pet.), is equally non-precedential because, from a reading of that opinion, you are unable to determine whether the appellant offered evidence of attorney's fees in conjunction with their motion to dismiss.  Finally, the majority cites Garcia v. Gomez, 319 S.W.3d 638 (Tex. 2010), which is factually distinguishable from this case.  In Garcia, unlike the case at bar, the appellant did offer evidence of reasonable attorney's fees.  When the trial court granted the motion to dismiss but failed to award attorney's fees, the health care provider appealed.  The court of appeals affirmed, concluding that the trial court had not abused its discretion in failing to award attorney’s fees because the record contained no evidence of the reasonable fees incurred by the appellant in defense of the claim.  "Because there [was] some evidence in [that] case that attorney's fees were both incurred and reasonable," the Supreme Court remanded the case to the trial court so that it could exercise its discretion in determining the appropriate award.  Id. at 643.  While the dissent in Garcia may characterize that opinion as giving the appellant "a second chance to satisfy his burden of proof," the majority opinion never specifically authorizes the trial court to allow the presentation of new evidence on the issue.  Id.

            Where, as here, no evidence of attorney's fees was offered in conjunction with the section 74.351(b) motion to dismiss, to remand for further proceedings gives Appellant a "second bite at the apple."  Because further proceedings are not necessary for the rendition of the judgment the trial court should have rendered, I would follow the traditional jurisprudence of this State and the precedent of this Court, and would reverse and render rather than reverse and remand. 

                                                                                      Patrick A. Pirtle

                                                                                             Justice

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^[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov=t Code Ann. ' 75.002(a)(1) (West 2005).