James Tolbert v. Dr. Louis Gibson ( 2001 )

James Tolbert v. Dr. Louis Gibson

  IN THE

TENTH COURT OF APPEALS

No. 10-00-159-CV

     JAMES TOLBERT,

                                                                         Appellant

     v.

     DR. LOUIS GIBSON,

                                                                         Appellee

From the 77th District Court

Freestone County, Texas

Trial Court # 99-206-B

                                                                                                                                                                                                                         

DISSENTING OPINION

                                                                                                               Â

      I disagree with the majority’s decision to reverse this judgment because the trial court did not appoint Tolbert an attorney. The focus of the opinion is on why Tolbert did not timely file the expert report. The focus should be on why he was unable to obtain a lawyer.

      First, the trial court never denied the request for appointment of an attorney. This request, along with several other motions, was set for a hearing by telephone. The trial court only ruled by written order on Tolbert’s motion for extension of time to file an expert report. The order commenced with, “Be it remembered that on this day came to be heard Plaintiff’s Motion for Extension of Time to File an Expert Report...” and concluded with the phrase, “The Court denies all relief not expressly granted in this order.” The phrase, “this order,” only applies to the motion for extension of time, not anything else possibly raised at the telephone hearing. The request for counsel was not fully addressed at the hearing. This is confirmed by Tolbert’s subsequent letter wondering whether the court had sufficient information to rule due to the Attorney General’s deflection of the issue.

      Second, and of far greater concern, this is an ordinary civil case. The issue as framed shows nothing unique about his claim, i.e. where “public and private interests are such that the administration of justice may be best served by appointing a lawyer to represent an indigent civil litigant.” Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996) (orig. proceeding). It also shows no effort by Tolbert to obtain his own lawyer. This case is no different than any other poor client trying to sue a doctor for malpractice. Tolbert may, in fact, have more time to pursue his claim than the average “Joe” who may have a claim but is also trying to work to make ends meet. This case simply does not meet the requirements of the Government Code and case law for the appointment of an attorney to represent Tolbert at taxpayers’ expense.

      The majority holds the trial court erred and orders the trial court to appoint Tolbert counsel. Because the trial court never ruled on the motion and even if it denied the motion, it certainly did not abuse its discretion, I respectfully, but strongly, dissent.

 

                                                                         TOM GRAY

                                                                         Justice

Dissenting opinion delivered and filed December 28, 2001

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tyle='font-size:14.0pt;font-family:"CG Times"'>Trial Court # 2003-786-C

 

MEMORANDUM Opinion

 

Daniel Thomas Madis was charged by indictment with aggravated kidnapping and aggravated assault.  Tex. Pen. Code Ann. § 20.04 (Vernon 2003), § 22.02 (Vernon Supp. 2004-05). He pled not guilty and was tried before a jury.  The jury returned a guilty verdict on both offenses and assessed punishment at fifteen years for aggravated kidnapping and twenty years for aggravated assault. Madis brings this appeal, challenging the legal and factual sufficiency of the evidence to support the verdicts on each count.

          We will overrule the issues and affirm the judgment.

 

BACKGROUND

          Madis and the victim, C.B. Jackson, lived together in Jackson’s house. Jackson testified that Madis beat him brutally with his fists and tied him up with a rope around his neck fastened to a chair in the house.  He testified that Madis tightened the rope when he would move.  Jackson sustained severe injuries to his jaw and his nose.  Madis testified in his own defense.  According to Madis, a violent confrontation began when Jackson returned home intoxicated. He testified that Jackson reached for a brick used as a door stop, and he punched Jackson in the jaw. He testified that the two fought several more times because Jackson was trying to go into the kitchen and Madis feared he would get a knife.  Madis admitted tying Jackson to a chair and putting a slipknot around Jackson’s neck.

Legal Sufficiency

          Madis argues that the evidence is legally insufficient to support the jury’s guilty verdicts on both the aggravated kidnapping and the aggravated assault counts.  When reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).

          The State alleged that Madis committed the two offenses of aggravated kidnapping and aggravated assault by “strangulation” using a rope.  Madis argues that there is no evidence upon which a jury could rationally have found that he used the rope to strangle Jackson.  Jackson testified that Madis tied the rope around his neck, that it “was so brutally tight,” and that “everytime I try to say something or move something, he would make it even tighter.”  Madis argues that Jackson, who testified that he is illiterate and has a low IQ, gave testimony that was often inconsistent and incomprehensible.  However, Jackson’s testimony that he was strangled was corroborated by a witness to Jackson’s exited utterances after escaping from Madis, by observations of police officers who arrived at the scene, and by photographs and medical records of the injuries to Jackson’s neck.

Considering all of the evidence in the light most favorable to the verdict, the jury could rationally have found beyond a reasonable doubt that Madis strangled Jackson with the rope. Jackson, 443 U.S. at 318-319, 99 S. Ct. at 2788-89.  Finding the evidence to be legally sufficient, we overrule this issue.

Factual Sufficiency

          Madis argues that the evidence is factually insufficient to support a guilty verdict on both the aggravated kidnapping and the aggravated assault counts.  We review factual sufficiency by considering all of the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt.  Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).  The evidence may be factually insufficient either because the evidence that supports the verdict is too weak to support a beyond-a-reasonable-doubt guilt finding or because the evidence contrary to guilt is strong enough that the beyond-a-reasonable-doubt standard “could not have been met.”  Id.

          Madis argues that Jackson’s testimony was so internally inconsistent and incoherent that a rational jury would not credit it.  As a general rule, the credibility of the witnesses, the weight to be given their testimony, and the resolution of conflicts in their testimony are questions left to the discretion of the jury.  Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).  Madis is correct in pointing out that Jackson’s testimony was often confusing, inconsistent, and unresponsive, particularly when he was questioned about times, dates, and sequence of events.  However, the jury could rationally have found Jackson’s testimony of how he was beaten and strangled credible.  Jackson’s version of how he was beaten and strangled is consistent with his exited utterances and with the nature of the injuries he received.  Madis argues that Jackson’s version should be weighed against Madis’s own testimony.  The jury could have found Madis to not be credible and his explanation of Jackson’s injuries implausible.

          Considering all of the evidence in a neutral light, we cannot say the jury was not rationally justified in finding Madis guilty on both counts.  Zuniga, 144 S.W.3d at 484.  We overrule the issue.

CONCLUSION

          Having overruled the issues, we affirm the judgment.

 

BILL VANCE

Justice

 

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed February 2, 2005

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