Darryl Gene Hollis v. State

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-11-00095-CR ______________________________ DARRYL GENE HOLLIS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 115th Judicial District Court Upshur County, Texas Trial Court No. 15,710 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Darryl Gene Hollis appeals from his conviction on an open plea of guilty to the court of aggravated robbery with a deadly weapon, enhanced to habitual offender. Hollis also pled true to the enhancements. The trial court sentenced Hollis to ninety-nine years’ imprisonment. Hollis’ attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail, providing possible issues, but explaining why they cannot succeed. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced. This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978). Counsel mailed a copy of the brief and a letter to Hollis on August 30, 2011, informing Hollis of his right to file a pro se response and providing him with a copy of the record for review. No response has been filed. Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal. We have determined that this appeal is wholly frivolous. We have independently reviewed the clerk’s record and the reporter’s record, and find no genuinely arguable issue. See Halbert v. Michigan, 545 U.S. 605, 623 (2005). We, therefore, agree with counsel’s assessment that no arguable issues support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). We affirm the judgment of the trial court.[1] Bailey C. Moseley Justice Date Submitted: November 18, 2011 Date Decided: November 21, 2011 Do Not Publish [1]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case. No substitute counsel will be appointed. Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing or for en banc reconsideration was overruled by this Court. See Tex. R. App. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See Tex. R. App. P. 68.3 (amended by the Texas Court of Criminal Appeals Misc. Docket No. 11-104, effective Sept. 1, 2011). Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.4. e='text-transform:uppercase'>Tex. R. Civ. P. 166a(c); French v. Gill, 252 S.W.3d 748, 751 (Tex. App.—Texarkana 2008, pet. denied); Powers v. Adams, 2 S.W.3d 496, 497 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985)). During our analysis of the traditional motion, and in deciding whether there is a disputed material fact issue which precludes summary judgment, proof favorable to the nonmovant will be taken as true, and every reasonable inference will be indulged in their favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002); Nixon, 690 S.W.2d at 548–49. A no-evidence summary judgment is essentially a pretrial directed verdict. We, therefore, apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict to determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002); Woodruff v. Wright, 51 S.W.3d 727 (Tex. App.—Texarkana 2001, pet. denied). Blakeney will defeat a no-evidence summary judgment motion if he presents more than a scintilla of probative evidence on each element of his claim. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). The trial court’s summary judgments specified no particular ground as supporting the summary judgment. When, as is the case here, the trial court does not set out the grounds on which it ruled, we affirm the summary judgment if any ground urged in the motion for summary judgment is meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). B. Application To raise an issue of fact regarding his fraudulent misrepresentation claim, Blakeney was required to produce more than a scintilla of probative evidence on the first element that Holmes and Shumate made a material representation; in this case, that there was a promise to pay $8,000.00 in exchange for Blakeney’s plea of guilt. Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 366 (Tex. App.—Dallas 2009, pet. denied); Baribeau v. Gustafson, 107 S.W.3d 52, 58 (Tex. App.—San Antonio 2003, pet. denied). The only documents referencing such an agreement were Blakeney’s pleadings. “Neither pleadings nor responses to summary judgment motions constitute summary judgment evidence.” Watson v. Frost Nat’l Bank, 139 S.W.3d 118, 119 (Tex. App.—Texarkana 2004, no pet.) (citing Laidlaw Waste Sys., 904 S.W.2d at 660). Moreover, a document relied on by Blakeney, Holmes’ responses to requests for admission, specifically denied the existence of a material representation. We find that Blakeney presented no proof of the first element of his fraudulent misrepresentation claim. Next, in order to avoid summary judgment on his tortious interference with business relations cause of action, Blakeney was required to present more than a scintilla of evidence that: (1) there was a reasonable probability that he would have entered into a contractual relationship; (2) an independently tortious or unlawful act by Holmes and Shumate prevented the relationship from occurring; (3) the act was done with a conscious desire to prevent the relationship from occurring or with knowledge that the interference was certain or substantially certain to occur as a result of his conduct; and (4) Blakeney suffered actual harm or damage as a result of the interference. See Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395, 412 (Tex. App.—Eastland 2002, pet. denied); Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 414–15 (Tex. App.—Waco 2001, pet. denied). The elements of breach of fiduciary duty are: the existence of a fiduciary relationship, and a breach of duty by the fiduciary that causes damages to the client or improper benefit to the fiduciary. Burrow v. Arce, 997 S.W.2d 229, 237 (Tex. 1999). There was no evidence presented with regard to these elements for either cause of action, and Blakeney’s responses to the motions for summary judgment stated simply that he would “not waste the court’s time rehearsing here.” We find that Holmes and Shumate established that there were no genuine issues of material fact with regard to any of Blakeney’s causes of action and that Blakeney did not present more than a scintilla of probative evidence on each element of his claims. Therefore, Holmes and Shumate were entitled to judgment as a matter of law. III. Conclusion We affirm the trial court’s judgments. Jack Carter Justice Date Submitted: November 9, 2010 Date Decided: November 10, 2010 [1]Blakeney also referred to pleadings, which are not summary judgment evidence. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). [2]Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3. [3]Blakeney complains the trial court erred in granting the motions for summary judgment because: “the Appellant filed a Motion for Judgment Nihil Dicit and where both Appellees DENIED paying the Appellant,” the “Appellees committed perjury,” “the Appellant plead [sic] fraud which is a fact issue for a jury to decide,” “Intent is a fact issue,” a “fact issue existed as to the duty the Appellees owed the Appellant,” and “Appellant filed a Motion for Subpoena Duces Tecum requesting the trial court’s assistance in securing” “the balance of money that inmate Blakeney departed with from custody of the Rusk County Sheriff’s Department on April 22nd, 2002” and “possessed upon arrival to the Texas Department of Criminal Justice Institutional Division.”