James H. Jaubert, Jr., AKA James Harmon v. State

James Harmon Jaubert, Jr. aka James Harmon v. The State of Texas IN THE TENTH COURT OF APPEALS No. 10-99-090-CR No. 10-99-091-CR No. 10-99-092-CR No. 10-99-093-CR No. 10-99-094-CR      JAMES HARMON JAUBERT, JR.,      AKA JAMES HARMON,                                                                          Appellant      v.      THE STATE OF TEXAS,                                                                          Appellee From the 372nd District Court Tarrant County, Texas Trial Court No. 0548270D Trial Court No. 0594393A Trial Court No. 0594394A Trial Court No. 0594396A Trial Court No. 0594398A                                                                                                                                                                                                                             CONCURRING OPINION                                                                                                                     OVERVIEW       This case presents yet another problem created by the transfer of cases from one court of appeals to another under the plan for docket equalization. We have now reached the point of substantively altering the procedural due process which a litigant would otherwise obtain. If this case had not been transferred, there is no reason to believe that the Fort Worth Court of Appeals would not have reviewed the merits of the issue presented, ineffective assistance of counsel. However, this court requires preservation of a claim of ineffective assistance of counsel. Because the issue was not preserved, we decline to review the merits of this appeal. BACKGROUND       It is a fundamental rule of appellate practice, with very few exceptions, that to complain about something a trial court did, you must have brought it to the attention of the trial court at a time and in a manner that the trial court understood the complaint and had the opportunity to correct it. See Lemons v. EMW Manufacturing, 747 S.W.2d 372, 373 (Tex. 1988); Voth v. Felderhoff, 768 S.W.2d 403, 412 (Tex. App.—Fort Worth 1989, writ denied); Blue v. State, 983 S.W.2d 811, 812 (Tex. App.—Houston [1st] 1998, pet. granted). This rule is currently embodied in the rules of appellate procedure. Tex. R. App. P. 33.1(a). The exceptions to this rule in civil cases are few. Voth, 760 S.W.2d at 412 (fundamental error). Jurisdiction is the issue most often allowed to be raised for the first time on appeal. See id.       However, in criminal cases there has traditionally been much greater latitude in issues that could be raised for the first time on appeal. There seems to be little justification for treating civil cases differently than criminal cases in terms of the need to preserve error at the trial court before it can be reviewed on appeal. See Johnson v. State, _____ S.W.2d _____, ____, No. 1915-98, slip op. at 18 (Tex. Crim. App. February 9, 2000, en banc). However, in criminal cases there are a variety of issues that have traditionally been allowed to be raised for the first time on appeal. One of these traditional areas has been claims of ineffective assistance of counsel. GONZALEZ       There are fourteen courts of appeals across Texas. Until we issued the Gonzalez decision not a single court had held that it was necessary to preserve a claim of ineffective assistance of counsel. Gonzalez v. State, 994 S.W.2d 369 (Tex. App.—Waco 1999, no pet.). We have continued to follow the analysis of Gonzalez and the Court of Criminal Appeals has granted a petition for discretionary review in Robinson v. State, No. 10-98-194-CR (Tex. App.—Waco August 25, 1999, pet. granted) (not designated for publication), a case disposed of entirely upon the basis of Gonzalez. Robinson v. State, No. 99-1701 (Tex. Crim. App. December 15, 1999) (order granting petition for discretionary review). We have also elaborated on our analysis and reasoning in subsequent cases. See Foster v. State, _____ S.W.3d _____, 1999 WL 1243847, (Tex. App.—Waco December 22, 1999, no pet.). WHICH LAW CONTROLS?       Notwithstanding our belief that Gonzalez and Foster are correct on the issue, they have not, as of yet, obtained universal acceptance. In particular, we have found no opinion from Fort Worth which follows Gonzalez or holds that ineffective assistance of counsel claims must be preserved before they can be presented on appeal. To the contrary, Fort Worth has continued to review ineffective assistance of counsel claims on the merits without discussing the preservation issue. Mallet v. State, ____ S.W.3d _____; 2000 WL 4984 (Tex. App.—Fort Worth, January 6, 2000, no pet.); Wood v. State, 4 S.W.3d 85 (Tex. App.—Fort Worth 1999, no pet.). The case currently before this Court was decided by a Tarrant County District Court. Appeal was taken to the Fort Worth Court of Appeals. By a transfer order from the Supreme Court for the purposes of docket equalization, it was transferred to this Court. The question is: Should we apply the law as we believe it should be across the State of Texas or should we apply the law in the manner we believe Fort Worth would apply it?       Because I am bound by the principle of stare decisis, I must yield my individual opinion to the law as previously announced by this court on transfer cases. We will apply the law as we believe it should be across the state. McLendon v. Department of Public Safety, 985 S.W.2d 571, 576-77 n. 6 (Tex. App.—Waco 1998, pet. filed). In McLendon, under the banner of being non-parochial, this court held that it would apply the law as it saw it, regardless of what some other court of appeals (from where the case originated) had announced it to be. What could be more parochial? Nevertheless, that is the rule under which I must operate at this time, for this case, and until directed otherwise by the high courts of this State. Accordingly, I concur in the majority opinion.                                                                    TOM GRAY                                                                    Justice Concurring opinion delivered and filed March 15, 2000 Publish >Id. Mayer Brown countered that the lawyers and paralegal making the TPIA requests “were the law firm’s agents acting with actual authority when they sent their respective TPIA requests, making the firm a ‘requestor’ with standing under the TPIA to seek mandamus relief.” Id. at *7. In affirming the trial court’s denial of the City of Houston’s plea, the Estrada court noted the following with regard to the law firm’s “asserted status as a ‘requestor’ as defined by the TPIA”: In Concerned Community Involved Development, Inc. v. City of Houston, 209 S.W.3d 666, 673 (Tex. App.—Houston [14th Dist.] 2006, pet. denied), we addressed arguments that an entity seeking mandamus relief under the TPIA (1) failed to allege that it submitted a written request for information under the TPIA; (2) lacked standing because it was not a “requestor” under the TPIA; and (3) could not obtain a writ of mandamus. We held that these issues went to the merits of the case because they involved compliance with the TPIA’s statutory requirements and bore on the entity’s right to relief. See id. at 673-74 (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000)). Therefore, we held that a motion for summary judgment rather than a plea to the jurisdiction was the proper vehicle by which the city should have challenged the entity’s right to mandamus relief under the TPIA. Id. at 674; see also Kazi, 12 S.W.3d at 76-77 (quoting 21 C.J.S. Courts § 16, at 23 (1990)) (“’The right of a plaintiff to maintain suit, while frequently treated as going to the question of jurisdiction, has been said to go in reality to the right of the plaintiff to relief rather than to the jurisdiction of the court to afford it.’”).  In the present case, the city filed a plea to the jurisdiction to challenge Mayer Brown’s right to seek mandamus relief under the TPIA, just as it did in Concerned Community. Here, as in Concerned Community, the city contends that Mayer Brown lacks standing because it does not qualify as a “requestor” under the TPIA—a contention that goes to the merits of Mayer Brown’s right to relief. Because the city’s challenge to Mayer Brown’s asserted status as a “requestor” under the TPIA goes to the merits of Mayer Brown’s right to relief, a plea to the jurisdiction is not the appropriate vehicle for bringing such a challenge. The city’s arguments should have been asserted in a motion for summary judgment. See Concerned Cmty., 209 S.W.3d at 673-74; see also Kazi, 12 S.W.3d at 76-77.  Id. at **8-10. Applying the holding in Estrada to the facts in this case, the wrong procedural vehicle—a plea to the jurisdiction—was used to grant relief to the City. See id. at **8-10. In response to this contention, the City directs us to the supreme court’s decision in State v. Lueck, 290 S.W.3d 876 (Tex. 2009).[6] However, we do not find that case to be relevant in this matter. Moreover, in researching this issue, we are unable to find any other case law directly on point. It is telling that the City devotes approximately half of its appellate brief to discuss that the trial court would not have erred in granting summary judgment, though the trial court did not grant summary judgment in this matter. Therefore, in applying the holding in Estrada, which is still good law with respect to the TPIA, we conclude that, although the trial court is correct in finding that Bonner is not entitled to the information sought, the City’s motion for summary judgment is the proper procedural vehicle for making this determination rather than the City’s plea to the jurisdiction.[7] See Ferrell, 248 S.W.3d at 156; IT-Davy, 74 S.W.3d at 855; see also Estrada, 2009 Tex. App LEXIS 1970, at **8-10. We sustain Bonner’s sole issue. V.     Conclusion  Having sustained Bonner’s sole issue on appeal, we reverse the judgment of the trial court and remand for proceedings consistent with this opinion.[8]      AL SCOGGINS                                                                                    Justice   Before Chief Justice Gray,             Justice Davis, and             Justice Scoggins             (Chief Justice Gray dissents) Reversed and remanded Opinion delivered and filed August 31, 2011 [CV06]   [1] In his pro se appellant’s brief, Bonner argues, by one issue, that the trial court abused its discretion in granting summary judgment in favor of the City; however, a review of the record indicates that the trial court granted the City’s plea to the jurisdiction, not its motion for summary judgment. Nevertheless, we construe Bonner’s issue as challenging the propriety of the trial court’s order granting the City’s plea to the jurisdiction.  [2] Bonner attached to his petition for writ of mandamus a copy of an affidavit executed by Don Adams, a peace officer with the Burleson Police Department. In his affidavit, Adams explained that, pursuant to a search warrant, several of Bonner’s computers contained child pornography and were subsequently seized. Adams also noted that he interviewed Dodd and that she “stated during the interview that Bonner had been investigated previously by the Texas Department of Family and Protective Services for a complaint relating to ‘inappropriately touching’ a neighbor[’]s female daughter who was under the age of 18.” [3] The City stated that section 552.223(a), rather than section 552.028(a), of the government code did not require it to provide Bonner with the requested information. In making this assertion, the City cited to the exact language of section 552.028(a); thus, we presume that the listing of section 552.223(a) was a typographical error. See Tex. Gov’t Code Ann. § 552.028(a) (West 2004).  [4] Though this case focuses on the inquiry made by “Texas Brat,” the record contains three inquiries for the information made by Bonner himself on February 8, 2010, June 17, 2010, and July 30, 2010. [5] It does not appear as if the incarcerated individual in Estrada: (1) challenged the trial court’s granting of the City’s plea to the jurisdiction; or (2) personally requested information from a governmental entity. [6] In Lueck, the supreme court considered whether the elements of section 554.002(a) of the government code, otherwise known as the Texas Whistleblower Act, constituted jurisdictional facts that implicated the trial court’s subject-matter jurisdiction. State v. Lueck, 290 S.W.3d 876, 881-82 (Tex. 2009). According to the Lueck court, section 554.002(a) prohibits retaliation for reporting violations of the law to the appropriate law enforcement authority. Id. at 880. The supreme court concluded that the elements of section 554.002(a) could be considered jurisdictional facts when it is necessary to resolve whether a plaintiff had alleged a violation under the Texas Whistleblower Act. Id. at 882-84. In arriving at its conclusion, the Lueck court also noted that section 311.034 of the government code provides that “statutory prerequisites to suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity.” Id. at 883 (citing Tex. Gov’t Code Ann. § 311.034 (West Supp. 2010)). The City does not adequately explain how the Lueck decision renders Estrada inapposite with respect to whether this TPIA complaint should have been challenged by a summary judgment motion or a plea to the jurisdiction. Furthermore, we are unable to find any authority holding that one’s status as a “requestor” is a statutory prerequisite to bring a mandamus petition pursuant to section 552.321(a) of the government code.  [7] However, we note that it appears as if Bonner is not entitled to the information sought based on two different statutory provisions. See Tex. Gov’t Code Ann. § 552.028(a) (providing that a governmental unit need not comply with an information request made by an incarcerated individual or an agent of the incarcerated individual, other than the incarcerated individual’s attorney); see also Tex. Fam. Code Ann. § 261.201(a) (West Supp. 2010) (stating that an allegation of suspected abuse or neglect is not subject to public release under chapter 552 of the government code). And while we recognize that a party seeking affirmative relief must have standing to invoke a trial court’s subject-matter jurisdiction, see DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex. 2008), the supreme court has held that standing, as a component of subject-matter jurisdiction, may be raised by other procedural vehicles, such as a motion for summary judgment. Lueck, 290 S.W.3d at 884; see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  [8] On appeal, the City urges us to “modify the trial court’s disposition to grant a final summary judgment” pursuant to Texas Rules of Appellate Procedure 43.2(c) and 43.3. See Tex. R. App. P. 43.2(c), 43.3. However, based on our review of the record, it does not appear that the trial court considered the City’s motion for summary judgment. Instead, the trial court granted the City’s plea to the jurisdiction, which demonstrates that the trial court did not believe that it had jurisdiction over this matter. The City does not cite to authority indicating that we are duty-bound to grant a motion that was not considered by the trial court. We, therefore, decline to render in this case and, instead, choose to remand the case for proceedings consistent with this opinion.