Donald Lee Loosier v. Ernest H. Guterrez, Samuel Hughes, Robert Jenkins, Darrell Luker, and Maria Luna

IN THE TENTH COURT OF APPEALS No. 10-07-00039-CV Donald Lee Loosier, Appellant v. ERNEST Guterrez, Samuel Hughes, Robert Jenkins, Darrell Luker, and Maria Luna, Appellees From the 278th District Court Walker County, Texas Trial Court No. 23565 MEMORANDUM Opinion Donald Lee Loosier, a Texas inmate, filed an in forma pauperis lawsuit against several employees of the Texas Department of Criminal Justice, under the Texas Theft Liability Act and section 31.03 of the Penal Code. The TDCJ filed an amicus curiae reply requesting dismissal of the suit. The trial court dismissed the suit, with prejudice, as frivolous under Chapter 14 of the Civil Practice and Remedies Code. On appeal, Loosier challenges whether: (1) his suit has an arguable basis in law; and (2) the trial court erred by failing to appoint counsel.[1] We vacate and dismiss. DISMISSAL In its amicus curiae reply, the TDCJ argued that Loosier failed to comply with the requirements of sections 14.004 and 14.005 of the Civil Practice & Remedies Code, could not prevail on his claims, and had not invoked the trial court’s jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 14.004 (Vernon 2002) (affidavit of previous filings); see also Tex. Civ. Prac. & Rem. Code Ann. § 14.005 (Vernon 2002) (affidavit regarding exhaustion of administrative remedies). We first address jurisdiction. Subject matter jurisdiction is essential to a court’s authority to decide a case. See Texas Ass’n Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). It is never presumed and cannot be waived. Id. at 443-44. We may address sua sponte the issue of subject matter jurisdiction. Id. at 445-46. We do so under a de novo standard of review. See Mayhew v. Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). The amount in controversy is determined by the plaintiff’s petition. Picon Transp., Inc. v. Pomerantz, 814 S.W.2d 489, 490 (Tex. App.—Dallas 1991, writ denied) (citing Richardson v. First Nat’l Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967)). Loosier sued for $88.80, the alleged value of his confiscated property. This amount falls below the $500 amount-in-controversy requirement for district-court subject matter jurisdiction. See Chapa v. Spivey, 999 S.W.2d 833, 836 (Tex. App.—Tyler 1999, no pet.). Accordingly, the trial court did not have jurisdiction to decide the case. See id. It should have dismissed Loosier’s suit for want of jurisdiction without addressing whether his suit was frivolous under Chapter 14. See Le Clair v. Wood, No. 10-04-00232-CV, 2005 Tex. App. Lexis 4257, at *6 (Tex. App.—Waco June 1, 2005, pet. denied) (mem. op.) (trial court lacked jurisdiction of inmate suit that sought $314.05 for confiscated property); see also Wilkerson v. T.D.C.J.-I.D., No. 12-03-00293-CV, 2004 Tex. App. Lexis 11850, at *5 (Tex. App.—Tyler Dec. 30, 2004, no pet.) (mem. op.) (trial court lacked jurisdiction of inmate suit that sought $30.92 for property damage). Our jurisdiction of the merits of an appeal extends no further than that of the trial court from which the appeal is taken. Ward v. Malone, 115 S.W.3d 267, 269 (Tex. App.—Corpus Christi 2003, pet. denied). Because the trial court lacked subject matter jurisdiction, we do not address the merits of Loosier’s issues in this appeal. See Le Clair, 2005 Tex. App. Lexis 4257, at *6; see also Wilkerson, 2004 Tex. App. Lexis 11850, at *5-6. We vacate the trial court’s order and dismiss the case for want of jurisdiction. See Le Clair, 2005 Tex. App. Lexis 4257, at *6; see also Wilkerson, 2004 Tex. App. Lexis 11850, at *6; Tex. R. App. P. 43.2(e). FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna Vacated and dismissed Opinion delivered and filed February 27, 2008 [CV06] [1] The TDCJ did not file an Appellee’s brief in this proceeding. trial or ordering that an instruction and charge to the jury on community supervision be submitted. Randolph argues on appeal that the court’s admonishment prior to the punishment phase was improper and that the court sua sponte should have declared a mistrial. A trial judge has a discretionary power to declare a mistrial sua sponte when there is a manifest necessity for the act or the ends of public justice would otherwise be defeated. Torres v. State, 614 S.W.2d 436, 442 (Tex. Crim. App. 1981); see also Plunkett v. State, 883 S.W.2d 349, 355 (Tex. App.—Waco 1994, pet. ref’d). Here, we do not believe the court abused its discretion by reiterating what appellant’s counsel had told him only moments earlier regarding the necessity for Randolph’s testimony during the punishment phase. We overrule Randolph’s second issue. INEFFECTIVE ASSISTANCE OF COUNSEL In his third and fourth issues, Randolph contends that his attorneys rendered ineffective assistance of counsel. His third issue complains that his attorneys failed to file a properly notarized application for community supervision; his fourth complains that his attorneys incorrectly advised him of his need to testify in the punishment phase to qualify for community supervision. We use the two-pronged Strickland test when reviewing claims of ineffective assistance of counsel. Carroll v. State, 56 S.W.3d 644, 649 (Tex. App.—Waco 2001, pet. ref’d). We have reviewed the record and the totality of Randolph’s counsel’s representation to determine whether his attorneys’ performance was deficient and if there is a reasonable probability that the outcome of his trial would have been different but for such inadequate performance. See id. Although his written application for community supervision was not sworn, before trial and on the record, Randolph’s attorney had him swear to the fact that he has never before been convicted of a felony. Even if this weren’t sufficient, however, nothing in the record reveals trial counsel’s motivation, and it would be improper for us to speculate upon it. See Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). What is in the record, however, are several examples of Randolph’s refusal to cooperate with his trial counsel, both before and during trial. Also, the record affirmatively shows that Randolph’s attorneys met with him prior to trial, made pre-trial motions and obtained rulings, conducted a thoughtful voir dire, objected frequently, requested and obtained limiting instructions, vigorously cross-examined witnesses, and put forth a plausible defense. See Villareal v. State, 1999 WL 33757655, *2–3 (Tex. App.—Corpus Christi 1999, no pet.) (not designated for publication). Finally, the record clearly shows that the jury assessed the maximum punishment, twenty years’ imprisonment for burglary of a habitation and ten years’ imprisonment for family violence assault, for which Randolph would not have been entitled to community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12 § 4(e). Under the totality of the circumstances, Randolph has not shown his attorneys’ performance fell below an objective standard of reasonableness. We overrule his third and fourth issues. LESSER INCLUDED OFFENSES Finally, Randolph urges that the court erred by not sua sponte instructing the jury on the lesser included offenses of aggravated assault and criminal trespass. A defendant may have strategic reasons for not requesting an instruction on a lesser included offense. Collier v. State, 999 S.W.2d 779 (Tex. Crim. App. 1999). “By not requesting instructions on lesser included offenses, the accused hopes that the jury will acquit of the greater offense rather than convict on what the accused views as arguably insufficient evidence. The accused is counting on the jury to comply with the instructions that the State’s burden is to prove guilt beyond a reasonable doubt.” Id. at 782. Moreover, Randolph did not request an instruction on lesser included offenses or object to the lack thereof. Therefore, he has waived his complaint. Kinnamon v. State, 791 S.W.2d 84, 96 (Tex. Crim. App. 1990) overruled on other grounds by Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). We overrule this issue. CONCLUSION Having overruled all of Randolph’s issues, we affirm the judgment. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurring) Judgment affirmed Opinion delivered and filed May 12, 2004 Do not publish [CR25]