Randy Ray Tolbert v. State

IN THE TENTH COURT OF APPEALS No. 10-02-00001-CR Randy Ray Tolbert, Appellant v. The State of Texas, Appellee From the 85th District Court Brazos County, Texas Trial Court # 24,906-85 Opinion The trial court revoked Appellant’s community supervision. Appellant’s appointed appellate counsel files an Anders brief. See Anders v. California, 386 U.S. 738 (1967). We will affirm. The brief thoroughly reviews the procedural history. In the brief, counsel states that he “has diligently reviewed the record in this case,” including the trial court’s jurisdiction, the voluntariness of Appellant’s plea of true to the motion to revoke, and the effectiveness of trial counsel, and states his opinion that “the record reflects no reversible error or grounds upon which an appeal can be predicated.” See Anders at 744. On abatement, the district court found that counsel provided Appellant with a copy of the brief on or about October 13, 2002; and on August 23, 2003, informed Appellant of his right to review the record and file a response. See Anders at 744; Sowels v. State, 45 S.W.3d 690, 693 (Tex. App.—Waco 2001, no pet.). The district court found that Appellant did not want to examine the record or file a response. Appellant has not filed a response. We have conducted an independent review of the record to discover whether there are arguable grounds for appeal. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); see also Anders at 744. We determine that there are none. The indictment and motion to revoke invoked the district court’s jurisdiction, and that court assessed punishment within the range of punishment for the offense. Appellant pleaded true to one of the allegations in the motion to revoke. See Cole v. State, 578 S.W.2d 127 (Tex. Crim. App. [Panel Op.] 1979). The district court correctly overruled Appellant’s objections and correctly sustained objections to counsel’s cross-examination. The district court sustained numerous, proper objections by trial counsel; and counsel cross-examined the State’s witnesses, examined Appellant, and vigorously advocated a lesser sentence. Accordingly, we affirm the judgment. Counsel must advise Appellant of our decision and of his right to file a petition for discretionary review. See Sowels at 694. TOM GRAY Chief Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Affirmed Opinion delivered and filed June 9, 2004 Do not publish [CR25] the dirt according to their own specifications. Based upon this evidence, the Posse argued that only the lessees, and not the Posse, owed a duty to the spectators of the race. The trial court apparently agreed. IV. Who Bears the Duty to Make the Premises Safe? As a general rule, "a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession." Brownsville Navig. Dist. v. Izaguirre, 829 S.W.2d 159, 160 (Tex. 1992) (quoting Restatement (Second) of Torts § 356 (1965)). The general rule, while appealing in most circumstances, incorrectly describes the law in a number of different landlord-tenant situations, and the Restatement, accordingly, has identified six exceptions to it: where the lessor contracts to make repairs (§ 357); where the lessor fails to disclose to the lessees dangerous conditions of which the lessor knows (§ 358); where the land is leased for public admission (§ 359); where the lessor retains part of the leased premises in his control which the lessee is entitled to use (§ 360); where part of the premises is retained by the lessor but is necessary for the part leased to the lessee (§ 361); and where the lessor makes negligent repairs (§ 362). See Garza-Vale v. Kwiecien, 796 S.W.2d 500, 502 n.3 (Tex. App.—San Antonio 1990, writ denied); see also Izaguirre, 829 S.W.2d at 160-161. Texas courts, by and large, have accepted section 356 as a correct statement of the law and have adopted the exceptions identified in sections 357 to 362. Garza-Vale, 796 S.W.2d at 502. Section 359, however, has not received the same welcome as the others. In fact, we are aware of only one Texas court that has considered the merits of section 359 and that court expressly declined to adopt it. See Wallace v. Horn, 506 S.W.2d 325, 329-330 (Tex. Civ. App.—Corpus Christi 1974, writ ref'd n.r.e.). The Wallace court decided that it saw no reason to add yet another exception to the general rule of non-liability for a landlord, which, as the Wallace court understood, provides that: Where there is no agreement by the landlord to repair the demised premises and he is not guilty of any fraud or concealment by failing to disclose hidden defects of which he has knowledge, the tenant takes the risk of their safety and the landlord is not liable to him or to any other person entering under his title or by his invitation for injury caused by their unsafe condition. City of Fort Worth v. Barlow, 313 S.W.2d 906, 917 (Tex. Civ. App.—Fort Worth 1958, writ ref'd n.r.e.) (emphasis in original). The authors of section 359 recognized, first, that people invariably enter public places with the reasonable expectation that they are kept in good repair and, second, that the landlord should bear a duty to the public when he knows, or should know, that dangerous conditions exist on the leased premises and the lessee will admit the public before rectifying them. Hao v. Campbell Estate, 869 P.2d 216, 220 (Haw. 1994); see also Restatement (Second) of Torts § 359 cmt. a. The wisdom of this rationale has been recognized in a number of jurisdictions across the United States who have cited section 359 with favor. Hao, 869 P.2d 216, 219-222; Great Atl. & Pac. Tea Co., Inc. v. Wilson, 408 N.E.2d 144, 149 (Ind. App. 1980); Borders v. Roseberry, 532 P.2d 1366, 1370 (Kan. 1975); Roth v. Zukowski, 757 S.W.2d 581, 583-584 (Mo. 1988) (en banc); Martin v. The Maintenance Co., Inc., 588 F.2d 355, 358 n.2 (2nd Cir. 1978) (applying New York law); Jones v. Three Rivers Management Corp., 394 A.2d 546, 553 (Pa. 1978); Utesch v. Atlas Motor Inns, Inc., 687 F.2d 20, 23 (3rd Cir. 1982) (applying the law of the Virgin Islands). Still other jurisdictions have expressly adopted and followed section 359. Spain v. Kelland, 379 P.2d 149, 151-152 (Ariz. 1963); Graves v. United States Coast Guard, 692 F.2d 71, 73-74 (9th Cir. 1982) (applying California law); Dalmo Sales of Wheaton, Inc. v. Steinberg, 407 A.2d 339, 351-352 (Md. App. 1979); Brunton v. Ellensburg Washington Lodge No. 1102 of the Benevolent and Protective Order of Elks, 872 P.2d 47, 48-49 (Wash. App. 1994). Coinciding with this acceptance by American courts of section 359, along with the several other exceptions to section 356, has come a trend of moving away from the strict common law rule of caveat emptor in the lessor-lessee context and displacing it with the public policy requiring those who knowingly permit the public to enter premises under their control to make those premises safe for the public's use. Brunton, 872 P.2d at 49; Pagelsdorf v. Safeco Ins. Co. of Am., 284 N.W.2d 55, 59-60 (Wis. 1979). The purpose of section 356 makes sense in relation to the agrarian economy and culture from which it originated when lessees would rent property for years at a time for the purpose of growing crops or raising livestock. Pagelsdorf, 284 N.W.2d at 59 (quoting Sargent v. Ross, 308 A.2d 528, 530 (N.H. 1973)). But in this modern day when property is leased by lessees not for the utility of the land, itself, but for the temporary use of the buildings contained thereon, less and less justification remains for expecting the lessee to discover and repair dangerous defects on the property. Id.; see also Restatement (Second) of Torts § 356 cmt. a, h. The evolution of this trend can be attributed to the realization that the public must be protected from dangerous conditions present on another's property open to them and an attempt to place the burden of repairing the defects with the party best suited to fulfill that responsibility. Section 359 comports with the development of this trend. The merit of section 359 can be seen particularly well under the facts in Brunton. The mother of a bride-to-be rented a hall owned by the Elks for the purpose of holding a reception after her daughter's wedding. Brunton, 872 P.2d at 48. A guest at the reception entered the hall and fell down some steps that were difficult to see because of the structure of the hall. Id. Of the 80-90 guests at the reception, approximately six tripped on the stairs. Id. Under those facts, the public policy of ensuring the safety of the public would not be furthered if the duty of making the premises safe was shifted to the lessee when the lessee is only going to be in possession of the hall long enough to hold a wedding reception. Section 359 answers this problem by placing the duty where it may best be heeded, with the party that has the actual ability to adequately inspect the premises on a regular basis for dangerous conditions and correct them. Understandably, when the lessor leases the premises to the lessee for an extended period of time and the lessee, according to the terms of the lease agreement, assumes the duty to repair any dangerous conditions on the premises, the lessor reasonably should expect the lessee to inspect and maintain the premises to make them safe. See Wallace, 506 S.W.2d at 327. But under the facts in Brunton, where the lessee is only in possession for a short period of time, it would be futile to expect her to undertake any meaningful repairs to make the premises safe for the public. The facts of the instant case are similar to those in Brunton. The lessees rented the arena for only a day with the purpose of holding an event that was open to the public. There was a dangerous condition present on the premises that ultimately resulted in an injury to Endsley. We hold that section 359 applies under these facts. Without considering subsections (a) and (b) of section 359, we find that Endsley has raised a fact issue at least concerning subsection (c), namely, whether the Posse failed to exercise reasonable care to discover the rocks, to remedy the condition, or otherwise to protect the public against the rocks being kicked into the air by horses. No summary judgment evidence was presented to indicate that the Posse met its duty to remedy the condition. This absence of evidence is sufficient to warrant a remand to the trial court on the ground that a factual issue exists. We sustain Endsley's two points of error and the judgment is reversed and remanded. BOBBY L. CUMMINGS Justice Before Chief Justice Thomas, Justice Cummings, and Justice Vance Reversed and remanded Opinion delivered and filed June 28, 1995 Publish