Charles Gibbs v. State ( 2004 )

NO. 07-04-0080-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 8, 2004

______________________________



CHARLES GIBBS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE COUNTY COURT AT LAW NO. TWO OF LUBBOCK COUNTY;

NO. 2003-484936; HONORABLE DRUE FARMER, JUDGE

_______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

ORDER OF ABATEMENT AND REMAND

Appellant Charles Gibbs has given notice of appeal in cause number 2003-484,936 in the County Court at Law No. 2 of Lubbock County, Texas (the trial court). The appellate court clerk received and filed the trial court clerk's record on April 2, 2004. The trial court clerk's record reflects that appellant filed an Affidavit of Inability to Employ Counsel on Appeal and Inability to Pay or Give Security for Clerk's Record and Reporter's Record. There is not an order from the trial court determining indigency and appointment of counsel.

In Texas, every person convicted of a crime has a statutory right to appeal. See Tex. Crim. Proc. Code Ann. § 44.02 (Vernon 1979); Nguyen v. State, 11 S.W.3d 376, 378-79 (Tex.App.-Houston [14^th Dist.] 2000, no pet. h); Johnson v. State, 885 S.W.2d 641, 644 (Tex.App.-Waco 1994, pet. ref'd). The Sixth and Fourteenth Amendments of the United States Constitution guarantee to a criminal defendant the right to counsel on a first appeal. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). An attorney must be appointed by the state to represent an indigent defendant on the first appeal. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435, 108 S. Ct. 1895, 1900, 100 L. Ed. 2d 440 (1988). In Texas, the trial court has been designated to appoint the appellate attorney for an eligible indigent defendant. See Tex. Crim. Proc. Code Ann. §§ 1.051(d)(1), 26.04(a).

Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 43.6. Upon remand, the judge of the trial court is directed to cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, then whether appellant is indigent; (3) if it is determined that appellant is indigent, whether counsel should be appointed to represent appellant. If counsel is appointed to represent appellant, then the trial court is directed to cause the name, address, and State Bar of Texas identification number of the new attorney to be furnished to the clerk of this court; and, (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be transcribed and included in a reporter's record; and, (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record of the hearing. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record of the hearing, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than August 6, 2004.

Per Curiam

Do not publish.

if the negligence, if any, of Workman proximately caused the occurrence in question. Based on the jury's "no" answer to the first question, they did not answer the remaining questions and the trial court signed its judgment that Garcia take nothing on her action.

By her only issue, Garcia contends that the jury verdict is against the great weight and preponderance of the evidence and manifestly unjust because neither the evidence nor inferences supports the jury verdict. We disagree. Because the issue presents a challenge to the factual sufficiency of the evidence, we must consider and weigh all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). The trier of fact is the sole judge of the credibility of the witnesses and the weight given their testimony, Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962), and may believe one witness and disbelieve another and resolve inconsistencies in testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). Finally, we are not to reweigh the evidence and set aside the jury verdict merely because we feel that a different result is more reasonable. Pool, 715 S.W.2d at 634.

Workman's testimony, when taken as a whole, does not unequivocally compel a finding that she was negligent or that her conduct was a proximate cause of the occurrence in question as those terms were defined in the charge. She admitted she was careless, but denied it when asked by her own counsel. An affirmative finding to question one required the jury to find that Workman's conduct was negligent and proximately caused the collision, as the terms were defined in the charge. As is well established, proximate cause includes two elements: cause-in-fact and foreseeability, Read v. Scott Fetzer Co., 990 S.W.2d 732, 737 (Tex. 1998), and is one that is "particularly within the province of the jury" and may be disregarded only in exceptional circumstances. Browning-Ferris, Inc. v. Hobson, 967 S.W.2d 543, 546 (Tex.App.--Houston [14^th Dist.] 1998, pet. denied); see also Stone v. Sulak, 994 S.W.2d 348, 351 (Tex.App.--Austin 1999, no pet.) (holding that in a rear-end accident, negligence was not established as a matter of law). On appeal, Garcia does not contend that excessive speed, failure to maintain a proper lookout, or other similar factors caused the accident, but candidly emphasizes that driving the pickup with the slick brake pedal compels that we disregard the verdict. However, considering the unique evidence presented to the jury, they could have perceived that Workman did not violate her duty to exercise "ordinary care" or that the two elements of proximate cause were not established. Moreover, because the "no" answer is nothing more than a failure of Garcia to discharge her burden of proof, Lovato v. Ranger Ins. Co., 597 S.W.2d 34, 36 n.1 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.), we conclude that the jury's answer is not manifestly unjust. Garcia's sole issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

1. The surname Cisneros is spelled inconsistently in the record; however, in this opinion we will use the more common spelling.