Julio Cesar Delacruz v. State ( 2006 )

NO. 07-05-0346-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

APRIL 28, 2006 ______________________________

JULIO CESAR DELACRUZ,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 242^ND DISTRICT COURT OF HALE COUNTY;

NO. B-15,490-0404; HON. ED SELF, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant, Julio Cesar Delacruz, appeals from a judgment revoking his community supervision. He had previously been convicted of assault, and the trial court suspended his five-year sentence and placed him on community supervision. Thereafter, the State moved to revoke appellant's community supervision. The motion was granted. Now two issues lie before this court. Both concern the effectiveness of appellant's counsel and the revocation hearing. We overrule each and affirm the judgment.

Issue One - Admitting His Identity

Through the first issue, appellant contends that his attorney was deficient because he allowed appellant to admit (via written stipulation) that he was the person who was originally convicted of assault. Yet, in addition to executing the stipulation, appellant appeared and testified at the revocation hearing. Furthermore, the first question asked of him concerned whether he was the individual previously convicted of assault in Cause No. B-15,490-040. The latter cause is the very same one from which the revocation proceeding arose. And, most importantly, appellant answered "yes, sir" to the question propounded by the State. Thus, it matters not what appellant may have said in the written stipulation since he orally confirmed his identity as the defendant previously convicted of assault and placed on probation. Moreover, while appellant says much about the State having to prove identity, he cites us to no evidence suggesting, much less illustrating, that it would have encountered any difficulty in fulfilling that burden without execution of the prior stipulation. See Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005) (stating that, among other things, one claiming ineffective assistance of counsel must establish prejudice arising from that deficient performance).

Additionally, appellant acknowledged in his brief that his counsel chose a strategy of admitting that which the State could easily prove and fighting that which it could not. See Wood v. State, 4 S.W.3d 85, 91 (Tex. App.-Fort Worth 1999, pet. ref'd) (holding that one is not ineffective when foregoing futile arguments or objections). Accompanying this strategy of cooperation, which courts have recognized as legitimate, see e.g., Baber v. State, 931 S.W.2d 359, 362 (Tex. App.-Amarillo 1996, pet. ref'd); Miller v. State, No. 05-99-01740-CR, 2001 Tex. App. Lexis 26 at *10 (Tex. App.-Dallas January 3, 2001, no pet.) (not designated for publication), was a request that appellant remain on probation. Together, they may be viewed as components of an effective trial strategy. At the very least, reasonable minds could differ on it, and, thus, the trial court did not abuse its discretion in denying appellant a new trial on that ground. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993) (holding that whether to grant a new trial lies within the trial court's discretion); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (stating that a trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement).

Issue Two - Void Conditions of Probation

Next, appellant argues that his counsel was deficient since he did not attack various conditions of his probation. These conditions were purportedly void because they would have required him to enter the United States illegally to perform them. ⁽¹⁾ Yet, the conditions at issue go unmentioned. And, assuming they included all those itemized within the State's motion to revoke, we remain left to guess about why his presence in the United States was necessary for him to pay the fees and costs which he failed to pay or why he could not report to his probation officer by mail. These were conditions which the State proved and the court found he breached.

In short, appellant's contention is bereft of both explanation and citation to authority suggesting that the conditions imposed were void under the circumstances. Thus, he did not prove that trial counsel acted unreasonably in failing to attack them. At the very least, reasonable minds could differ on it, which effectively insulates from attack the trial court's decision to deny him a new trial.

Having overruled appellant's issues, we affirm the judgment of the trial court.

Brian Quinn

Chief Justice

Do not publish.

1. Appellant was an illegal alien whom the United States arrested and deported upon his conviction for assault.

family: Arial"> Jurisdiction is a legal question subject to de novo review on appeal. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In making its de novo review, an appellate court construes the pleadings in favor of the plaintiff and looks to the pleader's intent. See Texas Ass'n of Bus., 852 S.W.2d at 446. The appellate court takes the facts pled as true and considers any evidence in the record to the extent necessary to resolve the issue of subject matter jurisdiction. See Bland Indep. Sch. Dist., 34 S.W.3d at 555.

ISSUE ONE: SOVEREIGN IMMUNITY

In response to the City's sovereign immunity pleading, the McBrooms contend that their suit is not a "suit against the State" within the construct of the doctrine of sovereign immunity. They claim that because their suit is not a "suit against the State," sovereign immunity is inapplicable. We are referred, in part, to Federal Sign v. Texas S. Univ., 951 S.W.2d 401 (Tex. 1997).

A. Law

Sovereign immunity encompasses two principles that protect the state and other governmental entities in suits for money damages: immunity from suit and immunity from liability. Id. at 405. Immunity from suit deprives a trial court of subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. Travis County v. Pelzel & Assocs. Inc., 77 S.W.3d 246, 248 (Tex. 2002). A municipality, as a political subdivision of the state, is entitled to sovereign immunity. See City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994).

In determining the sovereign immunity issue, suits against the State or its entities to determine parties' rights are distinguished from suits seeking damages. See Federal Sign 951 S.W.2d at 404. See also Tex. Civ. Pract. & Rem. Code Ann. §§ 37.004(a), 37.006(b) (Vernon 1997). An action against an agency by a person for determination and protection of that person's rights is not a suit against the State within the rule of sovereign immunity. See Cobb v. Harrington, 190 S.W.2d 709, 712, 144 Tex. 360 (1945).

B. Analysis

We must construe the McBrooms' pleadings in their favor and look to their intent in determining jurisdiction. See Texas Ass'n of Bus., 852 S.W.2d at 446. Their pleadings generally allege that the zoning in question does not comply with legal requirements and is void. ⁽¹⁾ They specifically disclaim seeking money damages, and affirmatively state that the suit seeks only to invalidate actions of the City Commission which the McBrooms claim to have been in violation of law. They pray, in part, for judgment annulling the RC-2 zoning.

The lawsuit is not of a type such as those reflected by Denver City Indep. Sch. Dist. v. Moses, 51 S.W.3d 386 (Tex.App.--Amarillo 2001, no pet.), and Ware v. Miller, 82 S.W.3d 795 (Tex.App.--Amarillo 2002, pet. denied). If the plaintiffs had prevailed on the claims asserted in those suits, judgments for money against the governmental entities would have resulted. See Denver City Indep. Sch. Dist., 51 S.W.3d at 392-93; Ware, 82 S.W.3d at 804. If the McBrooms prevail on the claims in their pleadings, a money judgment against the City will not be the result.

The suit as currently pled is not a "suit against the State" within the meaning of that phrase as it is used in determining sovereign immunity from suit. See Cobb, 190 S.W.2d at 712.

The City's issue asserting sovereign immunity is overruled.

ISSUE TWO: STANDING   

In challenging the McBrooms' standing to bring their claims, the City posits that neither of the McBrooms asserts a particularized injury or adverse impact distinguishable from that of the general public. The City relies on Bland Indep. Sch. Dist., 34 S.W.3d at 553-54, for the proposition that absent such a particularized, individual injury, a citizen may not maintain an action against the City.

In support of their standing claim, the McBrooms refer us to precedent involving standing issues as to persons suing over both non-zoning and zoning matters. See Brown v. Todd, 53 S.W.3d 297 (Tex. 2001) (mayor's executive order); Leach v. City of North Richland Hills, 627 S.W.2d 854 (Tex.App.--Ft. Worth 1982, no writ) (zoning); Lozano v. Patrician Movement, 483 S.W.2d 369 (Tex.Civ.App.--San Antonio, 1972 writ ref'd n.r.e.) (zoning).

A. Law

The general test for standing in Texas requires that there be a real controversy between the parties which will be determined by the judicial declaration sought. Texas Ass'n of Bus., 852 S.W.2d at 446. A plaintiff may not maintain an action absent standing to litigate the matters made the basis of the lawsuit, see Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984), because standing is a component of subject matter jurisdiction. See Bland Indep. Sch. Dist., 34 S.W.3d at 553-54. A plaintiff does not have standing unless the subject matter of the litigation affects the plaintiff differently than other members of the general public. See Hunt, 664 S.W.2d at 324. One framework for testing a person's standing directs inquiries into whether (1) the person has sustained or is in immediate danger of sustaining a direct injury as a result of the wrongful act of which he complains; (2) there is a direct relationship between the alleged injury and the claim sought to be adjudicated; (3) the person has a personal stake in the outcome of the case; (4) the challenged action has caused the person some injury in fact; or (5) the person is an appropriate party to assert the public's interest in the matter as well as his or her own interest. See Marburger v. Seminole Pipeline Co., 957 S.W.2d 82, 89 (Tex.App.--Houston [14th Dist.] 1997, pet. denied).

B. Analysis

The factual allegations of the McBrooms' pleadings, which we take as true in determining the appeal, include allegations that John McBroom attends a public school located several hundred feet from the Property and that he and other children attending the school will be subjected to an increased risk of harm because of increased traffic as a result of the zoning amendments and proposed construction by Wal-Mart. According to the evidence, his future attendance at Crestview is speculative. Assuming, without deciding, however, that he will be attending Crestview, neither the pleadings nor the evidence support a claim that he has sustained or is in immediate danger of sustaining a direct, individualized personal or economic injury. He advances no basis for us to conclude that he is an appropriate party to assert the public's interest in the City Commission's actions and zoning enactment. Id.

Neither the facts pled nor the evidence show that John has an individualized interest or injury different from other members of the general public who will be exposed to increased traffic, regardless of whether the other members of the public attend school or simply live, work, or visit in the area. John has not shown standing to assert the claims made. We sustain the City's issue as to him.

Mike McBroom alleges and testified that he owns a home and land near the Property. Part of Mike's land and part of the Property lie in a flood plain. Mike alleges and testified that he is in danger of sustaining a direct, individual injury from increased flooding of his land as well as decreased value of his property as a result of the zoning amendments and the proposed construction.

Mike McBroom claims an injury peculiar to him which is not common to the public in general. See Lozano, 483 S.W.2d at 372. He has standing to attempt to prove his allegations in a trial.

Without expressing an opinion regarding the validity of his cause of action or the merits of his claims, we overrule the City's challenge to Mike McBroom's standing.

CONCLUSION

As to John Curtis McBroom, the order of the trial court is reversed and his claims are dismissed. As to Mike McBroom, the order of the trial court is affirmed and the cause is remanded to the trial court for further proceedings.

The McBrooms' prayer for damages because of a frivolous appeal is denied.

Phil Johnson

Chief Justice

1.

No issue as to the generality of the pleading is before us.