in Re Yorkshire Insurance Co., Ltd. and Ocean Marine Insurance Co., Ltd.

NO. 07-05-0441-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL A JANUARY 25, 2006 ______________________________ IN RE: YORKSHIRE INSURANCE CO., LTD. AND OCEAN MARINE INSURANCE CO., LTD. _______________________________ Before REAVIS and CAMPBELL and HANCOCK, JJ. MEMORANDUM OPINION Relators, Yorkshire Insurance Co., Ltd. and Ocean Marine Insurance Co., Ltd., petition this court to issue a writ of mandamus ordering the Honorable John LaGrone, Presiding Judge of the 316th District Court, to enter final judgment in a pending cause. For the reasons stated, we deny relators' petition. Relators, through two issues, are complaining that the trial court, by refusing to enter final judgment, is 1) abusing its discretion and 2) jeopardizing relators' due process rights. BACKGROUND This original proceeding arises out of a death claim filed by the Seger family against Diatom. During the pendency of the tort claim, the Segers' filed a declaratory judgment action against Diatom and relators on the issue of insurance coverage. After the Segers obtained a judgment against Diatom on the underlying tort claim, the Segers settled with Diatom and took an assignment of Diatom's claims against its insurers, the relators in the present action. The Segers' declaratory judgment case was then converted to include a Stowers action. (1) Thereafter, relators filed a third-party action against Diatom seeking declaratory relief or reformation. On August 9, 2004, the trial court heard pending motions for summary judgment filed by both sides of the third-party action. Ultimately, on December 30, 2004, the trial court granted Diatom's summary judgment as to relator's third-party claims. The trial court then severed relator's third-party action from the Segers' declaratory judgment action, reserving only the issues of entitlement to and amount of attorney fees for future determination. The relators' primary complaint centers upon the trial court's failure to issue judgment on these attorney fee issues. STANDARD OF REVIEW Mandamus is proper to compel a ministerial act or to correct a clear abuse of discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Whether to consider and rule upon a motion is not a discretionary act on the part of the trial court. In re Ramirez, 994 S.W.2d 682, 683 (Tex.App-San Antonio 1998, orig. proceeding). When a motion is properly filed and pending before a trial court, the act of considering and ruling on the motion is ministerial. Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San Antonio 1997, orig. proceeding). However, the trial court has a reasonable time within which to perform this duty. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992, orig. proceeding). Whether such reasonable time has lapsed is dependent on the facts and circumstances of each case. Id. There is no bright line for determining this issue. Neither is there a set formula, rather, there are a number of factors to consider, such as, 1) the trial court's actual knowledge of the motion, 2) the state of the trial court's docket, 3) whether there continue to be other legal or factual matters within the case for the trial court's continued consideration, and 4) the existence of other judicial and administrative matters for the trial court's consideration. See Ex parte Bates, 65 S.W.3d 133, 134 (Tex.App.-Amarillo 2001, no pet. h.). This is not an exhaustive list, but is merely demonstrative. Additionally, this court must remember that the trial court has inherent power to control its own docket. Ho v. Univ. of Texas at Arlington, 984 S.W.2d 672, 693-94 (Tex.App.-Amarillo 1998, pet. denied). The power of the trial court to control its own docket is discretionary in nature, Hoggett v. Brown, 971 S.W.2d 472, 495 (Tex.App-Houston [14th Dist.] 1997, no pet.), we may not arbitrarily interfere with it. ANALYSIS Relators first contend that the trial court abused its discretion by refusing to rule and enter a final judgment. However, in their argument, relators appear to complain that the court would neither set a hearing nor render a ruling. The record before us demonstrates that the trial court held a hearing on the issue of attorney fees on August 8, 2005. Therefore, the only real issue before this court is whether the court has failed to rule on the issue of attorney fees within a reasonable time. Barnes, 832 S.W.2d at 426. The party seeking a writ of mandamus must furnish this court with a record sufficient to establish their right to mandamus relief. Walker, 827 S.W.2d at 837. The record available for our review in this proceeding provides insufficient evidence that the trial court's delay in ruling was unreasonable. The record does not illustrate the state of the court's docket from August 8, 2005 to the filing of relators' petition in this matter. The record shows that, during this period, relators have continued to file matters requiring the court's consideration. Additionally, the record is silent as to other legal or administrative matters the trial court was required to hear or consider during this period. As the relators are responsible for providing this court with a record sufficient to prove their entitlement to the relief sought and because they have failed to do so, we cannot say that the trial court has abused its discretion by failing to rule on the attorney fee issues or by failing to enter a final judgment in the third-party cause. Therefore, relators are denied mandamus relief on their first issue. Relators' next contend that the trial court's failure to enter final judgment jeopardizes relators' due process rights. Relators conclude, without adequate analysis, that the trial court's failure to rule is adversely affecting their due process rights in relation to the severed cause of action and the underlying $38 million judgment. As authority for their proposition, relators cite this court to a recent Texas Supreme Court opinion dealing with what relators contend to be a similar fact pattern. See Progressive County Mut. Ins. Co. v. Boyd, 48 Tex.Sup.Ct.J. 1020, 2005 Tex. LEXIS 605 (August 26, 2005). However, Boyd is an appeal of a summary judgment that does not address due process concerns and is, therefore, inappropriate. Because we have determined that the trial court has not failed to issue a final judgment within a reasonable time, it follows that the delay in issuing judgment was not a denial of due process. Barnes, 832 S.W.2d at 426. Relators have also cited the court to Baluch v. Miller, 774 S.W.2d 299 (Tex.App-Dallas 1989, orig. proceeding), for the proposition that the trial court's refusal to enter a final judgment is itself a denial of due process. However, a close reading of Baluch reveals that the trial court refused to set the matter for any type of hearing. This is clearly distinguishable from the case before this court and, as such, does not control the issue. Accordingly, relators' second issue is overruled.CONCLUSION Finding relators have failed to prove their entitlement to mandamus relief, we deny relators' petition. Mackey K. Hancock Justice 1. ' NO.  07-09-0338-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 9, 2011 ______________________________ NATHAN A. HYER, Appellant v. THE STATE OF TEXAS, Appellee _____________________________ FROM THE 140th DISTRICT COURT OF LUBBOCK COUNTY; NO. 2008-421,248; HON. JIM BOB DARNELL, PRESIDING ______________________________ Opinion ______________________________ Before QUINN, C.J., and HANCOCK and PIRTLE, JJ. Appellant, Nathan A. Hyer, appeals his conviction for possessing a controlled substance, namely cocaine. Though thirteen issues are before us, we only address whether he was denied the assistance of counsel because counsel was not allowed to make a closing argument during the punishment phase of the trial. Our disposition of it is dispositive of the appeal because we reverse the judgment. Appellant pled guilty to the charged offense without the benefit of an agreement regarding punishment. He also waived his right to a jury and asked the trial court to determine punishment. At the hearing on that matter, both the State and appellant proffered witnesses. When they had done so, the trial court asked: “[d]oes the State close?” The State replied: “[t]he State closes, your honor.” Then, the following exchange transpired between the court and defense counsel: THE COURT: [Appellant], if you’ll come up here. MR. HOGAN: Judge, I didn’t close. Could I make a couple of brief suggestions to the Court before you - - THE COURT: No. MR. HOGAN: All right. Why the trial court so denied defense counsel the opportunity to make closing remarks went unexplained. Moreover, the State concedes that the decision evinced reversible error if preserved for review.[1] So, the issue before us is one of preservation; did appellant preserve his complaint about being denied his constitutional right to legal counsel when the trial court refused to allow him to tender closing argument? We conclude he did. That the State did not ask for opportunity to provide closing argument is undisputed. That the trial court was proceeding to sentence appellant without affording appellant the opportunity to provide such argument is clear. That appellant, through his counsel, expressly informed the court that it had yet to “close” and would like to make a couple of comments is also clear, as is the trial court’s refusal to let him do so.[2] Admittedly, defense counsel did not use the phrase “closing argument” when asking for leave to speak. Yet, he did ask for the chance to comment once the State “closed” and before the trial court decided what measure of punishment to levy. Furthermore, the request came at that stage of the proceeding when litigants would normally undertake closing argument, i.e. after both sides rested. So, we have little difficulty in concluding that a jurist facing like circumstances would interpret the request as one seeking opportunity to proffer closing arguments. Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007) (stating that “’[m]agic words’ are not required” to preserve error and “a complaint will be preserved if the substance of the complaint is conveyed to the trial judge”). Next, the request to pursue a procedural step guaranteed by both the United States and Texas Constitutions followed by the trial court’s refusal to permit it was sufficient to meet the requisites of Texas Rule of Appellate Procedure 33.1. The latter simply mandates that the complaint raised on appeal be “made to the trial court by timely request, objection or motion.” (Emphasis added). Tex. R. App. P. 33.1(a)(1). Omitted from that rule are words expressly obligating the complainant to take further action once a “request” or “motion” is made and denied. There is no need to pursue the historic practice of verbally “excepting” to a decision rejecting the objection, for instance. See Farrar v. State, 784 S.W.2d 54, 56 (Tex. App.–Dallas 1989, no pet.). That this is true is exemplified by a defendant’s ability to remain silent at trial when evidence is being tendered for admission if that evidence was the subject of an unsuccessful motion to suppress. Flores v. State, 129 S.W.3d 169, 171-72 (Tex. App.–Corpus Christi 2004, no pet.). Similarly illustrative is the defendant’s ability to preserve error involving the refusal to submit a jury instruction by merely requesting the instruction and having the court deny the request. Tex. Code Crim. Proc. Ann. art. 36.15 (Vernon 2006). In each instance the trial court had the opportunity to address the matter, and Rule 33.1 simply assures that such an opportunity be afforded the court. Lopez v. State, 96 S.W.3d 406, 412 (Tex. App.–Austin 2002, pet ref’d) (stating that Rule 33.1 serves to give the trial court the chance to address potential error in the first instance). We do note that prior objections or complaints can be waived by subsequent actions or comments of counsel. Saying “no objection” when evidence, made the subject of a prior motion to suppress, has that effect, for instance. Obviously, such a phrase can be accepted for what the plain meaning of the words denote, that the opponent has no objection to what is being done. A like and clear expression of intent was not made here, however. It is conceivable that counsel saying “all right” may mean that the speaker has no problem with or complaint about what is being done, but the context of the comment is all important. We cannot ignore the fact of evolving life that the younger generation often assigns new meaning to old words. “Bad” can be “good,” for example. Here, appellant’s counsel was not asked a question to which he responded “all right.” Instead, opportunity to comment about punishment was requested and was abruptly denied him. Saying “all right” in reply to such as the unexplained denial of a constitutional right may well evince surprise or the circumstance of being taken aback, as opposed to approval of the trial court’s decision to forego closing argument. This is especially so when, as here, defense counsel later attempted, unsuccessfully, to proffer another suggestion apparently on the topic of punishment. Moreover, the reporter’s record reveals that counsel often said “all right” after others spoke. That exact phrase was vocalized once when his client testified about being twice sent to “state jail.” So too did counsel say the same words when appellant described how he “started skipping school and getting high” in the seventh grade and that he sold a friend’s dog to buy “dope.” In none of those situations could one legitimately interpret “all right” as indicating approval of the conduct disclosed. Indeed, given the many other instances of counsel muttering the phrase when it had no logical relationship to what had been said, we infer that he simply had a penchant for saying “all right,” much like those individuals who intersperse their communication with words like “okay,” “like,” and “you know.” They mean nothing, generally, and the speaker most likely does not know they are being verbalized. So, given the circumstances in the record before us, counsel’s uttering “all right” cannot reasonably be interpreted as an intent to waive his request to make closing remarks or approve of what the trial court did. Nor do we find controlling the authority cited by the State to support the argument that the error was not preserved. For instance, the Court of Criminal Appeals was not addressing the topic of error preservation when writing in Ruedas v. State, 586 S.W.2d 520 (Tex. Crim. App. 1979). So while the defendant there expressly objected and excepted to the refusal to allow closing argument, the case hardly stands for the proposition that one must so object and except to preserve his complaint. The same also is true of Kirk v. State, No. 05-98-0095-CR, 1999 Tex. App. Lexis 5743 (Tex. App. –Dallas August 4, 1999, no pet.) (not designated for publication). And, to the extent that the reviewing court held in In re M.A., No. 08-02-00544-CV, 2004 Tex. App. Lexis 5172 (Tex. App.–El Paso June 10, 2004, no pet.) (not designated for publication) that the issue was not preserved because appellant failed to expressly object to the trial court’s ruling that denied his request for closing argument, no other courts of appeal other than El Paso have followed it. Nor did the El Paso court support its conclusion with any precedent. Moreover, the opinion could be read as adding another element to Rule 33.1 omitted by those who drafted the proviso. Again, the latter specifies that the complaint tendered for review be encompassed in a “timely request, objection or motion.” It does not say that if the complaint was encompassed in a “request,” then an “objection” must also be made to preserve the matter once the request is denied. We opt not to add into a rule what its authors left out. That opportunity is left to the authors should they care to accept it. All an appellant need do is make his complaint known to the trial court through a “request, objection or motion;” he need not do more once any of those avenues are travelled. (Emphasis added). See e.g. Ponce v. State, 68 S.W.3d 799, 807 (Tex. App.–Amarillo 2001, no pet.) (holding that it was enough to request the particular relief or opportunity to preserve error). In sum, the complaint at issue was preserved. Since the State conceded it to be harmful error, we reverse the judgment and remand the cause for another punishment hearing. Brian Quinn Chief Justice Publish. [1]The right to effective assistance of counsel under the Sixth Amendment guarantees a defendant the opportunity to make a closing argument. See Herring v. New York, 422 U.S. 853, 857-58, 95 S.Ct. 2550, 2553, 45 L.Ed.2d 593 (1975). Similarly, a defendant's right to be heard under Article 1, Section 10 of the Texas Constitution assures the defendant the right to make a closing argument. See Ruedas v. State, 586 S.W.2d 520, 522-23 (Tex. Crim. App. 1979). Those rights, therefore, are violated when a trial court denies a defendant the opportunity to make a closing argument. Herring, 422 U.S. at 857-58, 95 S.Ct. 2550; Ruedas, 586 S.W.2d at 522-23. And, the violation gives rise to reversible error without the complainant having to show prejudice. See Kirk v. State, No. 05-98-0095-CR, 1999 Tex. App. Lexis 5743 (Tex. App.–Dallas August 4, 1999, no pet.) (not designated for publication.) [2]A later effort by defense counsel to have input into the tenor of his client’s punishment was also rebuffed. After the trial court pronounced sentence, defense counsel asked: “[w]ill the Court entertain an addition of the ISF recommendation to the judgment?” The court’s answer was “[n]o.”