Alvin Andrews v. State

Alvin Andrews v. State IN THE TENTH COURT OF APPEALS No. 10-01-240-CR ALVIN ANDREWS, Appellant v. THE STATE OF TEXAS, Appellee From the 278th District Court Walker County, Texas Trial Court # 20,483-C O P I N I O N A jury convicted Alvin L. Andrews of the offense of possession of a deadly weapon in a penal institution and assessed his punishment at 25 years in the Texas Department of Criminal Justice, Institutional Division. Andrews's appellate counsel has filed a motion to withdraw from representation of Andrews and has filed a supporting Anders brief. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). Our record reflects that counsel has provided Andrews with a copy of the brief, has informed him of the right to review the record, has provided him with a copy of the record, and informed him of his right to file a brief or other response on his own. More than thirty days have passed since the brief was filed and Andrews was notified of those rights, but he has filed no response. See Sowels v. State, 45 S.W.3d 690, 691 (Tex. App.—Waco 2001, no pet.). Counsel considers the trial court’s actions with respect to Andrews’s representation by counsel at trial and his right to proceed pro se; the sufficiency of the evidence; Andrews’s removal from the courtroom for misconduct; errors in the judgment; the indictment; the effectiveness of trial counsel; the court’s charge; and proof of enhancements. Counsel’s brief contains references to both the record and applicable statutes, rules and cases and discusses why counsel concludes that the record does not present an arguable issue. See Currie v. State, 516 S.W.2d 684, 684 (Tex. Crim. App. 1974) (brief contains a professional evaluation of the record demonstrating why, in effect, there are no arguable issues to be advanced). We are satisfied that counsel has diligently searched the record for any arguable issue. McCoy v. Court of Appeals of Wisconsin Dist. 1, 486 U.S. 429, 442, 108 S. Ct. 1895, 1904, 100 L. Ed. 2d 440 (1988). We have independently reviewed the record to search for any issues “which might arguably support an appeal.” Sowels, 45 S.W.3d at 691-92. Because we have determined that there are no issues “which might arguably support an appeal,” we affirm the judgment. Inasmuch as this court does not have authority to permit appointed counsel to withdraw, we dismiss counsel’s motion to withdraw. Id. at 692. JOHN G. HILL Senior Justice Before Chief Justice Davis, Justice Vance, and Senior Justice Hill (Sitting by Assignment) Affirmed Opinion delivered and filed March 19, 2003 Do not publish [CRPM] "text-align: justify; line-height: 0.388889in"> The summary judgment movant bears the burden to prove that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Bomar v. Walls Regional Hosp., 983 S.W.2d 834, 837 (Tex. App.—Waco 1998, pet. filed); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 425 (Tex. App.—Waco 1997, writ denied). If the movant is the defendant, he must conclusively negate at least one of the elements of the non-movant's cause of action or conclusively establish every element of an affirmative defense. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Kinnard v. Circle K Stores, Inc., 966 S.W.2d 613, 616 (Tex. App.—San Antonio 1998, no pet.). Even if the non-movant does not file a response and the motion for summary judgment is uncontroverted, the movant still retains the burden to prove that he is entitled to summary judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Hubert v. Ill. State Assistance Comm'n, 867 S.W.2d 160, 162 (Tex. App.—Houston [14th Dist.] 1993, no writ). Once the movant establishes a right to summary judgment, the burden then shifts to the non-movant to present issues that would preclude a summary judgment. Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 817 (Tex. App.—Amarillo 1995, writ denied). When determining whether a material fact issue exists, we must accept as true all evidence favorable to the non-movant. Nixon, 690 S.W.2d at 548-49; Delta Air Lines, Inc., 949 S.W.2d at 425. We must also resolve all doubts and indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 549; Delta Air Lines, Inc., 949 S.W.2d at 425. Summary judgment is not intended to deprive the litigants of their right to a full hearing on the merits of any real fact issue. Kim v. State Farm Mut. Auto. Ins. Co., 966 S.W.2d 776, 778 (Tex. App.—Dallas 1998, no pet.). If the trial court's order affirming the movant's summary judgment does not specify the grounds relied upon for its ruling, we will affirm the judgment if any of the grounds within the motion for summary judgment are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Gardner v. Best Western Int'l, 929 S.W.2d 474, 479 (Tex. App.—Texarkana 1996, writ denied). STATUTE OF LIMITATIONS Wade argues that Button’s actions created a constructive trust. Because there is no specific limitations period for constructive trust claims, he asserts that the four-year residual limitations period applies. See Tex. Civ. Prac. & Rem. Code § 16.051 (Vernon 1997). Thus, if he is correct, his suit was timely. Wade relies on Austin Lake Estates, Inc. v. Meyer to support his assertion that he has a constructive trust claim. 557 S.W.2d 380 (Tex. App.—Austin 1977, no writ). In Austin Lake Estates, the court considered whether a constructive trust was properly imposed on money received in the wrongful sale of property. The court found that it was. Wade urges that the holding in Austin Lake mandates that he has a constructive trust claim rather than a wrongful execution claim. We disagree. A constructive trust prevents a wrongdoer from escaping the consequences of selling another’s land and keeping the proceeds. Id. at 382. When one party wrongfully takes the property of another, a constructive trust follows the property or its proceeds. Id. (citing Hand v. Errington, 242 S.W. 722, 724 (Tex. Comm’n App. 1922)). On the other hand, conversion has been defined as "the unauthorized and unlawful exercise of dominion and control over property inconsistent with or to the exclusion of another's superior rights in that property." Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759, 763 (Tex. App.—Houston [14th Dist.] 1990, writ denied); see also Bandy v. First State Bank, 835 S.W.2d 609, 622 (Tex. 1992). For example, if someone exercises dominion and control over a car by selling it without having a right to do so, he converts the vehicle. Kollision King, Inc. v. Calderon, 968 S.W.2d 20, 23 (Tex. App.—Corpus Christi 1998, no writ) (citing L.L.M. v. Mayes, 733 S.W.2d 642, 646 (Tex. App.—San Antonio 1987, no writ)). Wade is complaining that his right to the truck was superior to Button’s because the truck was exempt from the writ of execution. He argues that Button improperly exercised control over his property. This is a claim of wrongful conversion which is controlled by a two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code § 16.003 (Vernon 1986 & Supp. 1999). Because the sale occurred in May of 1995 and suit was not filed until January of 1998, Wade’s claim is time-barred. Thus, summary judgment was proper on the grounds of limitations. We need not address the other grounds on which summary judgment could have been granted. We overrule Wade’s issue and affirm the judgment. BILL VANCE Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Affirmed Opinion delivered and filed August 11, 1999 Do not publish