Cedric Johnson v. State

IN THE TENTH COURT OF APPEALS No. 10-03-00091-CR Cedric Johnson, Appellant v. The State of Texas, Appellee From the 272nd District Court Brazos County, Texas Trial Court # 28,425-272 MEMORANDUM Opinion Cedric Johnson appeals the revocation of his community supervision for burglary of a building. Johnson's counsel filed an Anders brief contending that this appeal presents no issues of arguable merit. See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493 (1967). Johnson has not filed a pro se brief or other response, though he was notified of his right to do so. See Sowels v. State, 45 S.W.3d 690, 691 (Tex. App.—Waco 2001, no pet.). Because our independent review of the record reveals no issues of arguable merit, we will affirm the judgment. The state filed its revocation motion, Johnson was arrested, and the revocation hearing was conducted well before the expiration of Johnson's term of community supervision. See Peacock v. State, 77 S.W.3d 285, 287 (Tex. Crim. App. 2002). Though the judgment reflects that Johnson pleaded "not true" to the motion to revoke, the record reflects that he pleaded "true." Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979) (finding an appellant's pleading of true sufficient to support the order revoking probation). No error occurred at the revocation hearing, and nothing indicates that trial counsel was ineffective. The punishment assessed by the trial court of two years' confinement was within the statutory range. Tex. Pen. Code Ann. § 12.35(a) (Vernon Supp. 2004). Our independent review of the record has revealed no issues of arguable merit. Accordingly, we modify the judgment to reflect that Johnson pleaded "true" to the motion to revoke, and affirm the judgment as modified. Counsel must advise Johnson of our decision and of his right to file a petition for discretionary review. See Sowels, 45 S.W.3d at 694. FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed November 3, 2004 Do not publish [CR25] ; The most recent case relied on by the majority is another opinion from Corpus Christi. See Reyna v. First Nat. Bank in Edinburg, 55 S.W.3d 58 (Tex. App.—Corpus Christi 2001, no pet.). In Reyna, the court stated, “Reyna is asserting promissory estoppel. Promissory estoppel is a cause of action available to a promisee who has acted to his detriment in reasonable reliance on an otherwise unenforceable promise.” Id. at 70, n. 4. This statement was in a footnote that had no impact on the decision by the court. In each of the cases cited above, the plaintiffs sued on causes of action other than promissory estoppel. They then asked for the equitable relief of promissory estoppel if they failed to establish their other causes. The odd-duck in all of this mess is a case cited by the majority from the San Antonio court which stated that most bid construction cases do not involve a contract thus promissory estoppel is a viable cause of action in those cases. Traco, Inc. v. Arrow Glass Co., Inc., 814 S.W.2d 186, 189 (Tex. App.—San Antonio 1991, writ denied). First, the majority provides no analysis as to why this case deserves citation. The majority has not decided that there is no contract. It doesn’t even state that it will follow San Antonio’s reasoning. So I must ask: What’s the point of citing this case? Second, if the majority is going to follow Traco, then it needs to conduct a review of the cases cited by Traco that “supports” the San Antonio court’s position. Traco relies on other jurisdictions to apply promissory estoppel to bid construction cases. Seeing that the Traco court misstates the holdings from Wheeler and a case from Fort Worth, I would not take for granted its interpretations of other jurisdictions’ case-law are correct. In this dissent, I would like to take the time to detail and further discuss these and other Texas cases that have dealt with this issue. But, because a majority of this Court has already reached its decision and because of the time pressures to clear cases off the dockets, I am limited to this abbreviated analysis and discussion. In conclusion there is simply no need to create a new cause of action. Promissory estoppel has a place as an equitable remedy when some other cause of action fails and equity demands protection of one of the parties. But equity should only be the last resort when legal remedies fail for some reason. I believe, based on the research conducted, that this case presents a very unique opportunity to distinguish between the proper role of promissory estoppel as a limited remedy rather than as a free standing cause of action. In this instance, Greer dismissed all its claims for legal remedies and pursued only promissory estoppel. The relief the majority has delivered to Greer is exactly the same Greer would have recovered if it had proven a breach of contract. But Greer dismissed that claim. Why should it be allowed the same relief under an equitable remedy that it chose not to seek as a legal remedy? For the reasons expressed herein, I respectfully dissent. TOM GRAY Justice Dissenting opinion issued and filed December 11, 2002 Publish