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 2011-03

James David Tutt v. State ( 2011 )


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                                                             In The

                                                    Court of Appeals

                            Sixth Appellate District of Texas at Texarkana

     

                                                    ______________________________

     

                                                                 No. 06-10-00183-CR

                                                    ______________________________

     

     

                                          JAMES DAVID TUTT, Appellant

     

                                                                    V.

     

                                         THE STATE OF TEXAS, Appellee

     

     

     

     

                                           On Appeal from the 145th Judicial District Court

                                                           Nacogdoches County, Texas

                                                             Trial Court No. F1017524

     

                                                     

     

     

     

                                              Before Morriss, C.J., Carter and Moseley, JJ.

                                                              Opinion by Justice Carter

                                                                       O P I N I O N

     

                James David Tutt appeals his conviction for one count of possession of a controlled substance and one count of felony DWI, enhanced by two prior felonies.[1]  Tutt complains his lawyer was ineffective, the trial court erred in denying his continuance motion, in failing to conduct a hearing on his lawyer’s performance, and in allowing Tutt to represent himself.  We affirm the judgment of the trial court.

    I.          Facts and Trial Procedure

                Sergeant Robert Mobley, a patrol sergeant with the Nacogdoches Police Department, observed a vehicle being driven by Tutt fail to dim its high-beam headlights.  Mobley initiated a traffic stop.  During the investigation of the traffic offense, Mobley observed Tutt’s speech was slurred,[2] detected the odor of alcohol coming from the inside of the vehicle, and observed that Tutt had glazed and bloodshot eyes.  The passenger in the vehicle had an open can of Keystone Light beer.  Tutt informed Mobley he had consumed one beer.  While conversing with Tutt, Mobley detected the odor of alcohol on Tutt’s breath.  Mobley testified Tutt’s performance on several field sobriety tests indicated he was intoxicated.  After arresting Tutt, Mobley conducted a search of Tutt’s person and discovered, in Tutt’s front left pants pocket, a baggie containing a substance eventually determined to be cocaine.  Tutt initially consented to give a breath sample and provided one breath sample. When requested to give a second breath sample,[3] Tutt refused. 

                On the day of trial, Tutt filed a motion to dismiss his court-appointed counsel and requested a continuance to hire an attorney.  Tutt alleged his court-appointed attorney had failed to properly investigate and had refused to file a motion which Tutt had requested be filed.  The trial court refused to grant a continuance and informed Tutt that he could either proceed with his current court-appointed counsel or represent himself.  The trial court strongly and repeatedly recommended that Tutt proceed with his court-appointed counsel.  After being admonished by the trial court, Tutt orally elected to represent himself. Tutt also signed a written waiver of his right to counsel, but added the notation “need time for att.”  The jury found Tutt guilty on both counts, and Tutt was sentenced to forty years’ imprisonment for the felony DWI count and twenty years’ imprisonment for the possession of a controlled substance count. On appeal, Tutt raises eight issues.[4]  Finding no merit to these issues, we affirm.

    II.        Effective Assistance of Counsel

                In his first issue, Tutt complains his appointed trial counsel failed to render effective assistance of counsel prior to the commencement of trial.  Specifically, Tutt alleges his appointed trial counsel

    failed to (a) interview witnesses at the scene, as well as witnesses prior to the incident who would attest to Defendant’s non-drinking status; (b) conduct discovery of the State’s case; (c) investigate the breathalyzer, workings and/or malfunctions; (d) examine/investigate Defendant’s defense of false positive as caused by energy drinks; (e) failed to obtain any medical records to determine intoxication and/or alcohol impairment from the point where the Appellant was taken to emergency for treatment of physical injuries; and/or (f) failed to meet, discuss and communicate with his client.

     

                We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984).  See Hernandez v. State, 726 S.W.2d 53, 56–57 (Tex. Crim. App. 1986).  To prevail on his claim, Tutt must show (1) his appointed trial counsel’s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel’s errors, the result would have been different.  See Strickland, 466 U.S. at 687–88.  “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001).  An appellant has the burden of proving ineffective assistance of counsel by a preponderance of the evidence.  Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

                Tutt, though, has failed to direct this Court to any portion of the record of evidence that Tutt’s appointed trial counsel failed to interview witnesses or otherwise investigate the State’s allegations.[5]  “It is well-settled that any claim of ineffective assistance must be firmly founded in the record.”  Flowers v. State, 133 S.W.3d 853, 857 (Tex. App.––Beaumont 2004, no pet.); see Thompson, 9 S.W.3d at 813.  We will not presume, as requested by Tutt, that his appointed trial counsel’s performance was deficient.  “The review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within a wide range of reasonable professional assistance.”  Mallett, 65 S.W.3d at 63.  We must presume, in the absence of contrary evidence, that trial counsel’s performance was not deficient.

                The failure to seek out and interview potential witnesses may be ineffective assistance of counsel when the inaction precludes the accused from advancing a viable defense.  See Ex parte Duffy, 607 S.W.2d 507, 517 (Tex. Crim. App. 1980), overruled on other grounds by Hernandez v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999); State v. Thomas, 768 S.W.2d 335 (Tex. App.—Houston [14th Dist.] 1989, no pet.).  Tutt claims

    the failure to investigate precluded the following from coming forward:  (1) Pastor C. L. King, Bethel Temple Church of God, Martin Luther King Street, Nacogdoches, Texas and Kenneth Sweat, 1526 Looneyville, Nacogdoches, Texas who would have testified that he did not observe Appellant drinking on the day Appellant was arrested, that Appellant had quit drinking and drank energy drinks; (2) in addition to the two witnesses identified, the following were witnesses who were made known to Mr. Caldwell, but were not contacted by him:  Stacy Roberts (Sweat’s Cousin), Rickey Hooker – friend of the family, and Rodrick Duffy – father to Appellant’s grandchild; (4) failure to subpoena from hospital records of treatment that evening – to determine (a) alcohol content and/or (b) intoxication/impairment; and (3) proper investigation would have revealed that consumption of energy drinks has been known to distort breathalyzer results.

     

                We note that Kenneth Sweat, named above as a witness precluded “from coming forward,” did testify at trial.  Tutt has failed to direct this Court to where in the record there is evidence the remaining potential witnesses were available to testify and evidence that their testimony would have benefitted the defense. To obtain relief on an ineffective assistance of counsel claim based on uncalled witnesses, the applicant must show that the witnesses were available to testify and that their testimony would have been of some benefit to the defense.  Ex parte White, 160 S.W.3d 46, 52 (Tex. Crim. App. 2004).  We will not presume witnesses were available and would have benefitted the defense. 

                Tutt also claims his appointed trial counsel failed to ensure his client’s decisions were based on correct information as to the applicable law.  One of Tutt’s complaints about his appointed trial counsel was that counsel refused to challenge as too remote Tutt’s prior DWI convictions, which enhanced the offense to a felony.  When Tutt raised the issue, Tutt’s appointed trial counsel, who has a duty of candor to the court, informed the trial court that the law relied upon by Tutt “was repealed by the legislature.”[6]  This statement indicates Tutt’s appointed trial counsel was aware of Tutt’s complaints and had obviously communicated with Tutt.  An attorney cannot be found deficient because a client refuses to believe his or her legal advice.  The record does not demonstrate Tutt’s appointed trial counsel failed to communicate with Tutt.  The first prong of Strickland has not been satisfied. In the absence of evidence to the contrary, we must presume counsel’s performance fell within the range of reasonable professional assistance.

                In addition to failing to satisfy the first prong of Strickland, Tutt has made no effort to show this Court that he suffered any prejudice as a direct result of any of the above-referenced alleged deficiencies.  Tutt has wholly failed to satisfy the second prong of Strickland.  The record before us has been inadequately developed.  For these reasons, we overrule Tutt’s first point of error.

    III.       The Motion for Continuance

                Tutt argues, in his second issue, that the trial court abused its discretion in denying his motion for continuance to obtain retained counsel.  On the day set for trial, Tutt requested a continuance orally and in a written, but unsworn, “motion to dismiss” his appointed trial counsel. 

                A motion for continuance must be written and “sworn to by a person having personal knowledge of the facts relied on for the continuance.”  Tex. Code Crim. Proc. Ann. art. 29.08 (Vernon 2006).  The Texas Court of Criminal Appeals has held that the statutes require a sworn motion to preserve appellate review from a trial court’s denial of a motion for a continuance.  Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009).  By failing to file a sworn written motion for continuance, Tutt forfeited his right to complain about the trial court’s ruling and we have nothing to review.  The second issue is overruled.

    IV.       Duty to Conduct a Hearing

                In his third and fourth points of error, Tutt contends the trial court erred in failing to hold a formal evidentiary hearing when Tutt alleged his appointed trial counsel failed to adequately investigate the State’s allegations.  Tutt alleged the trial court improperly presumed trial counsel acted appropriately. The State responds that these issues are inadequately briefed.

                We first note that Tutt never requested a formal evidentiary hearing to inquire into his appointed trial counsel’s performance. We also note the record does not contain any evidence Tutt’s appointed trial counsel failed to investigate the State’s allegations.  Thus, the issue in this case is whether the trial court was required to hold a formal evidentiary hearing sua sponte based on the mere allegations of a dissatisfied client.  Tutt has failed to provide this Court with any relevant authority that the trial court had a sua sponte duty to hold a formal evidentiary hearing.  Tutt failed to cite any authority in his appellant’s brief to support his argument.  In his reply brief, Tutt cites the following cases: Burgess v. State, 816 S.W.2d 424, 429 (Tex. Crim. App. 1991); Renfro v. State, 586 S.W.2d 496, 498 (Tex. Crim. App. [Panel Op.] 1979); Robles v. State, 577 S.W.2d 699 (Tex. Crim. App. [Panel Op.] 1979); Thomas v. State, 550 S.W.2d 64 (Tex. Crim. App. 1977); Privett v. State, 635 S.W.2d 746 (Tex. App.—Houston [1st Dist.] 1982, pet. ref’d).  None of these cases hold, as alleged by Tutt, that the trial court is required to hold a formal evidentiary hearing on the appointed counsel’s efforts to investigate the State’s allegations.[7]  We are not aware of any authority imposing such a duty on the trial court.[8]

                Tutt is obligated to provide this Court with “appropriate citations to authority.”  See Tex. R. App. P. 38.1(i).  As such, this issue has been inadequately briefed.  We may overrule any inadequately briefed point of error. Loun v. State, 273 S.W.3d 406, 420 n.24 (Tex. App.—Texarkana 2008, no pet.). Tutt has failed to establish the trial court erred.  Because Tutt has failed to convince this Court the trial court had a duty to hold a formal evidentiary hearing sua sponte, we overrule Tutt’s third and fourth points of error.

    V.        Tutt’s Election to Represent Himself Was Effective

                Tutt claims, in his fifth and sixth issues, that the trial court’s limitations on his choice of representation precluded his waiver of his right to counsel from being made voluntarily and from being unequivocal.  Because the trial court restricted Tutt’s options to being represented by counsel the trial court had previously appointed or representing himself, Tutt claims his waiver of his right to counsel was made under “duress.”  Tutt argues the waiver must be in writing and unequivocal. Because Tutt noted “need time for att” on his written waiver, Tutt contends his written waiver was not unequivocal.

                The Sixth and Fourteenth Amendments to the United States Constitution guarantee that a person brought to trial in any state or federal court shall be afforded the right to assistance of counsel.  Faretta v. California, 422 U.S. 806, 807 (1975).  The Sixth and Fourteenth Amendments to the United States Constitution also guarantee the right of an accused to conduct his or her own defense.  Id.  Thus, the defendant decides whether to accept assistance of counsel or to conduct his or her own defense, and “his choice must be honored” when the benefits of the assistance of counsel are voluntarily, knowingly, and intelligently relinquished with an informed awareness of danger and disadvantages of self-representation. Id. at 834; Burton v. State, 634 S.W.2d 692, 694 (Tex. Crim. App. [Panel Op.] 1982).  The waiver must be clear and unequivocal.  Faretta, 422 U.S. at 807; Funderburg v. State, 717 S.W.2d 637, 642 (Tex. Crim. App. 1986).

                The trial court’s refusal to appoint different trial counsel or to grant a continuance did not render Tutt’s waiver involuntary.  Tutt had been appointed trial counsel.  “A trial court is not obligated to search for an attorney who meets with the approval of the accused.”  Webb v. State, 533 S.W.2d 780, 784 n.3 (Tex. Crim. App. 1976).  The Texas Court of Criminal Appeals has stated:

    A trial court has essentially three options when confronted with an accused who makes an eleventh hour request for change of counsel.  First, at its discretion the court can appoint, or allow the accused to retain, new counsel.  Second, should the trial court deny new counsel, and the accused unequivocally assert his right to self-representation under Faretta, persisting in that assertion after proper admonishment, the court must allow the accused to represent himself.  Third, unless the trial court allows new counsel, it must compel an accused who will not waive counsel and does not assert his right to self-representation to proceed to trial with the lawyer he has, whether he wants to or not.

     

    Burgess v. State, 816 S.W.2d 424, 428–29 (Tex. Crim. App. 1991).  Implicit in this ruling is the conclusion that a trial judge’s refusal does not necessarily render an invocation of the right to self-representation involuntary. 

                Tutt claims the trial court erred in not appointing a different counsel because the appointed trial counsel had a conflict of interest.  When the State requested the trial court retain Tutt’s appointed counsel “as legal advisor and standby counsel,”[9] appointed counsel objected, claiming he had been “misaligned”[10] and such an action would have placed him in an “impossible situation.”  The trial court agreed appointed trial counsel had been “misaligned,” but stated, “I think [appointed trial counsel] would do a fine job representing [Tutt]” if Tutt wished to proceed with appointed counsel’s representation. 

                In order for a defendant to be entitled to new counsel, the defendant must establish an actual conflict of interest.  Garner v. State, 864 S.W.2d 92, 98–99 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).  A mere possibility of a conflict of interest is not sufficient.  Id. at 99.  “[A]n ‘actual conflict of interest’ exists if counsel is required to make a choice between advancing his client’s interest in a fair trial or advancing other interests (perhaps counsel’s own) to the detriment of his client’s interest.”  Acosta v. State, 233 S.W.3d 349, 355 (Tex. Crim. App. 2007) (quoting Monreal v. State, 947 S.W.2d 559, 564 (Tex. Crim. App. 1997)).  We do not believe the trial court erred in its implied conclusion that no actual conflict of interest existed.  See United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. Cal. 1998) (threat of suing attorney did not create an actual conflict because threat was not inconsistent with attorney’s goal of rendering effective assistance of counsel); see also Perry v. State, 464 S.W.2d 660, 664 (Tex. Crim. App. 1971) (filing civil suit against attorney did not require appointment of different counsel because “a defendant could effectively delay or prevent an appeal (or trial) by filing a civil suit against his appointed counsel”).  The conflict alleged would not have required appointed trial counsel to choose between advancing Tutt’s interests or advancing other interests to the detriment of Tutt’s interests.  Because the trial court did not err in determining no actual conflict of interest existed, Tutt was not entitled to the appointment of new counsel. 

                Because the trial court had no legal obligation to appoint a different attorney, the question in this case is whether the trial court erred in permitting Tutt to represent himself or should have compelled Tutt to proceed to trial with his appointed trial counsel.  We are aware that the Texas Court of Criminal Appeals has noted that a request for a different attorney is not a clear and unequivocal request to waive counsel.  See Thomas v. State, 550 S.W.2d 64 (Tex. Crim. App. 1977); see Robles, 577 S.W.2d 699. 

                Tutt argues the choice presented by the trial court in this case is a “Hobson’s Choice.”[11]  In Renfro v. State, the Texas Court of Criminal Appeals held the choice presented by the trial court was in effect a “Hobson’s Choice”—or in other words, a choice with the appearance of several options, but really only one option.  586 S.W.2d at 498.  We believe Renfro is distinguishable from the current case because in Renfro, the trial court presumed the defendant wanted to represent himself.[12]  The following exchange occurred in Renfro:

    THE COURT:  “Well, what I want to know from you at this time, Mr. Renfro, is this:  Do you want Mr. Williams representing you as your attorney in front of the jury when you go to trial in your case Wednesday?”

     

    THE DEFENDANT:  “No, I do not.”

     

    THE COURT:  “You do not?  You are going to represent yourself; is that right?”

     

    THE DEFENDANT:  “Yes.”

     

    Id.  When Renfro informed the trial court that he did not want his appointed counsel representing him, the trial court presumed Renfro wanted to represent himself.  Id.  In this case, the trial court merely explained the law to Tutt, explained another attorney would not be appointed, and asked Tutt to choose between being represented by appointed counsel and self-representation.  The trial court in this case did not presume Tutt wanted to represent himself and advised against self-representation.  The choice presented by the trial court was consistent with Burgess, 816 S.W.2d at 429. The trial court merely asked Tutt to choose between the two available options.  Both options were viable alternatives, and the choice was not a “Hobson’s Choice.”

                The record establishes that Tutt knowingly, voluntarily, and intelligently invoked his right to self-representation.  The trial court inquired into Tutt’s age, education, and mental health background.  Tutt informed the trial court that he was forty-nine, was seeking an associate’s degree in business administration, estimated he had been convicted of criminal acts approximately twenty-five times, had one jury trial, had worked in a prison law library, and had “got 19 cases reversed while I was down there.”  The trial court also informed Tutt he would be responsible for being aware of any possible defense or mitigation.  Tutt does not complain that the trial court’s admonishments about the risks of self-representation were inadequate.[13]  Tutt’s complaint is that the trial court’s limitation of his choice of being represented by appointed counsel or representing himself was tantamount to “no choice.”  The trial court’s refusal to appoint a different counsel or grant a continuance for Tutt to retain counsel did not render Tutt’s election to represent himself involuntary.  The fact that Tutt desired an option to which he was not legally entitled does not render his election between his available choices involuntary.  The record supports a conclusion that Tutt made a voluntary and “knowing exercise of the right to defend himself.”  See Burgess, 816 S.W.2d at 428.

                We note the Texas Code of Criminal Procedure provides that the waiver of right to counsel should be made in writing.  See Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon Supp. 2010).  The Texas Court of Criminal Appeals has held Article 1.051(g) is not mandatory and the constitutional right to counsel can be waived orally.  Burgess, 816 S.W.2d at 430–31.  The trial court mentioned, on the record, Tutt’s notation on his written waiver and gave Tutt another opportunity to proceed with the appointed trial counsel.  Tutt refused. Tutt waived his right to counsel orally to the trial court a total of four times on the record and represented that he understood the risks of self-representation.  Tutt’s clear and unequivocal oral waiver, together with his written waiver of his right to counsel and invocation of his right to self-representation was effective.  Tutt’s fifth and sixth issues are overruled.

    VI.       Appellate Counsel’s Performance Was Not Deficient

                In his seventh issue, Tutt argues his appointed appellate counsel’s performance was ineffective for not raising the ineffective assistance of his trial counsel in the motion for new trial.  Tutt argues, if his appellate counsel had complained about his appointed trial counsel’s performance in the motion for new trial, the record could have been better developed for these issues on appeal.

                Tutt argues there is no conceivable strategy for not raising ineffective assistance in the motion for new trial.  We disagree.  We will not presume Tutt’s trial counsel rendered ineffective assistance of counsel and will not also presume evidence of that ineffective assistance could have been developed during a motion for new trial hearing. Tutt’s appellate counsel may have concluded the chance of a successful ineffective assistance of counsel claim, under the facts of this case, was too minimal to be raised in the motion for new trial. “If counsel’s reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel’s decisions and deny relief on an ineffective assistance claim on direct appeal.”  Ortiz v. State, 93 S.W.3d 79, 88–89 (Tex. Crim. App. 2002). We will not presume ineffective assistance of trial counsel to then conclude appellate counsel rendered ineffective assistance of counsel.  The law requires we presume, unless otherwise established, counsel rendered effective assistance of counsel.  Tutt has not directed this Court to where in the record there is evidence to support his allegations.  Tutt’s seventh issue is overruled.

    VII.     Conspiracy

                In his final issue, Tutt alleges the trial court, his appointed trial counsel, and his appointed appellate counsel conspired to violate his constitutional rights. Tutt’s brief on appeal does not advance any argument on this issue and fails to cite any authority.  The record contains no evidence of a conspiracy. Tutt’s eighth point of error is overruled.

                For the reasons stated, we affirm the judgment of the trial court.

     

     

     

                                                                            Jack Carter

                                                                            Justice

     

    Date Submitted:          February 23, 2011

    Date Decided:             March 11, 2011

     

    Publish

     


    [1]This case was transferred to this Court from the Tyler Court of Appeals as part of the Texas Supreme Court’s docket equalization program.  We are not aware of any conflict between the precedent of the Tyler Court and the precedent of this Court on any issue relevant in this appeal.  See Tex. R. App. P. 41.3.

     

    [2]In his opening argument, Tutt argued he had a speech impediment.

    [3]Sergeant Elizabeth Bradbury, a sergeant with the Nacogdoches Police Department, administered the intoxilyzer test. Bradbury testified the intoxilyzer requires two samples in order for the test to be valid. 

     

    [4]Tutt was originally represented by appointed counsel on appeal, but after his motion for new trial was filed, he obtained retained counsel to brief his appeal. 

    [5]Although Tutt provides this Court with some record citations, the citations provided do not refer to any evidence in the record.

    [6]After electing to represent himself, Tutt requested the charges be dismissed because his prior DWI convictions were too remote. The trial court correctly ruled that the provisions cited by Tutt have been repealed by the Texas Legislature.  See Tex. Penal Code Ann. § 49.09 (Vernon Supp. 2010).

    [7]Tutt claims these cases each “involved, by the lower court, a hearing concerning the accused’s objection [to] counsel and circumstances concerning same.”  None of these cases suggest a hearing was held and evidence presented on the appointed counsel’s investigatory efforts. 

     

    [8]We note that a trial court may have a sua sponte duty to investigate when a client alleges facts sufficient to create an actual conflict of interest between the client and his or her attorney.  See Holloway v. Arkansas, 435 U.S. 475 (1978); Lerma v. State, 679 S.W.2d 488, 490 (Tex. Crim. App. [Panel Op.] 1982). As discussed below, Tutt failed to allege facts sufficient to create an actual conflict of interest with his appointed counsel.  We are not aware of any authority requiring a trial court to hold a hearing on its own motion when a client merely complains about his or her appointed attorney.

    [9]Tutt does not argue on appeal that he was entitled to standby counsel.  The appointment of standby counsel is discretionary with the trial court.  See Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App. 1989). 

    [10]We note the court reporter may have misspelled “maligned” as “misaligned.”  Because the record reflects the attorney and trial court used the word “misaligned,” we will use “misaligned.”

    [11]In his reply brief, Tutt cites Privett v. State, 635 S.W.2d 746 (Tex. App.––Houston [1st Dist.] 1982, pet. ref’d).  While the facts of Privett are similar to this case, we decline to follow the reasoning of the First District.  The Texas Court of Criminal Appeals has yet to endorse the reasoning of Privett despite briefly referencing Privett in Burgess.  See Burgess, 816 S.W.2d at 429.  Tutt has not directed this Court to any cases in which the Tyler Court of Appeals has adopted the reasoning of Privett. Privett is not binding precedent on this Court or the Tyler Court of Appeals. 

     

    [12]Prior to Renfro, the Texas Court of Criminal Appeals clarified that a request not to be represented by appointed counsel was not a request for self-representation.  See Thomas, 550 S.W.2d 64; see Robles, 577 S.W.2d 699.  As noted below, the defendant in Renfro agreed with the trial court’s presumption of self-representation.

    [13]We note that Tutt alleges in his statement of facts that he was uninformed of “the facts and/or allegations against him” and that “he was not familiar with the legal defenses to the charges of DWI and /or [possession of a controlled substance].”  Tutt does not advance any argument that the admonishments were insufficient.  The trial court’s admonishments and inquiries consist of approximately twenty-five pages of the reporter’s record.  The Texas Court of Criminal Appeals has held no “formulaic questioning” or particular “script” is necessary.  Johnson v. State, 760 S.W.2d 277, 278 (Tex. Crim. App. 1988) (plurality op.); Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Crim. App. 1984); see Martin v. State, 630 S.W.2d 952, 954 (Tex. Crim. App. 1982) (There is no requirement to inquire into a defendant’s age, education, background, or previous mental history.).   

    :yes'>  Consequently, Wilson obtained the loan in her name and purchased the property for $389,000.00.  A down payment of $100,000.00 was made on the property from proceeds of the jewelry business. The deed to the property is in Wilson’s name only.

     

    [3]The settlement agreement, as dictated into the record, provides:

     

    1. On or before 30 days after today or as soon thereafter as the bank has made the loan that’s contemplated in paragraph three below, Kristi Wilson will surrender the following items of personalty to Bob Berg by placing them in an open area protected from weather and other hazards at 3872 County Road 3504, and those items are as follows:

     

    · all personal items belonging to Bob Berg as of January, 2006;

    · all business inventory of the business Bob Berg Designs;

    · the copier;

    · a horse called Doc;

    · the white cargo trailer and its contents, which shall include everything that was in the trailer at the last time Bob Berg was there, for example, booths, belts, inventory, clothes, et cetera;

    · the aluminum horse trailer;

    · mirror in the house;

    · an orange tractor believed to be a Kabota [sic];

    · a Bombay desk;

    · an old laptop computer if it can be found;

    · a plasma television, 52 inches wide or approximately that wide;

    · all booths for showing merchandise, except the screw together booths which Kristi Wilson

    will keep;

     

    2. Bob Berg will pick all of those items up by noon that day, weather permitting.  After that hour, Kristi shall have no responsibility for any of it. When he picks the personal property up, Wilson will leave the white 1999 Ford F-350 pickup at the same place, at the same time, and in substantially the same condition it was when he got it a month or six weeks ago.

     

    3. No later than 30 days from today, Kevin Buchanan (attorney for Berg) will notify me (Bruce Monning, attorney for Wilson) of the date and time and give me at least between five and ten days in which to do it, that he would like for the longhorn cattle that are in my possession and owned by the parties or subject to this controversy to be delivered at a place of Mr. Buchanan’s selection. 

     

    4. No later than 30 days after today or at the same time if a real estate closing is required in order for Ms. Wilson to raise the money, Ms. Wilson will pay $25,000 cash to or for – to Bob Berg or for his account.  If it is necessary to use a bank loan to raise that money, that money will be paid by the title company to Mr. Berg or at his direction.

     

    5. At the same time as the closing, or if it is not necessary for Wilson to get a loan, Berg will execute a Special Warranty Deed to waive any and all interest he has in the 89 acres that was described on Plaintiff’s Exhibit 6 earlier today to Ms. Wilson, and he will cause the lis pendens notice that’s been issued in this case to be removed.  

                    At this point in the proceeding, Buchanan pointed out that “the loan that may be necessary that is contemplated by the Rule 11 Agreement will be no more than $25,000.”  Monning responded simply with a “yes.”

     

    6. Bob Berg, Martha Hayward, and Kristi Wilson agree to fully, completely, mutually releasing [sic] all claims that any of them has or may have against any other. 

     

    7. Kristi Wilson and Bob Berg will not have any direct communications between them by telephone, fax, email, or in person or otherwise.  This does not mean that the parties can have no communication with Martha Haywood. 

     

    8. Bob Berg shall own the business Bob Berg Designs under any by that name [sic] including all cash, merchandise, inventory, work in progress, accounts receivable, copy rights [sic], and any deviation [sic] of the name of Bob Berg.  Kristi Wilson relinquishes all claims she has to any of the Bob Berg designs or Bob Berg associated business.    

     

    9. Kristi Wilson shall own the property described in Plaintiff’s Exhibit 6, which is also 3872 County Road 3504, and everything in it or on it except the items of personal property listed in paragraph one above.

     

    10. All claims asserted by all parties will be dismissed with prejudice to refiling by any party.  Each party denies any and all liability for any of the claims but agrees to this settlement only by peace and to avoid the cost of further litigation. 

     

    11. Kristi Wilson represents that she has turned over or will turn over all business inventory where they’re in her possession, custody or control. 

     

    [4]Berg’s counterclaim also alleged fraud, breach of contract, breach of fiduciary duty, conversion, theft (Texas Theft Liability Act), and sought a constructive trust on certain real property. 

     

    [5]Allegations of breach were based on Berg’s refusal to accept the $25,000.00 payment tendered by Wilson and further based on his refusal to execute a special warranty deed to the certain real property, as contemplated by the agreement. 

     

    [6]Wilson did not request damages, other than her attorneys’ fees.

     

    [7]In addition, the judgment declared void the notice of lis pendens filed by Berg on or about June 27, 2008, in Hopkins County (eighty-seven-acre property titled in Wilson’s name). 

     

    [8]Wilson’s traditional motion for summary judgment alleges the existence of the Rule 11 agreement and recites that, subsequent to the execution of that agreement, Berg filed an amended counterclaim urging new causes of action against her and further asserting a breach of the agreement. Wilson claims the causes of action alleged by Berg (fraud, constructive trust, conversion, civil claim of theft) were released pursuant to the Rule 11 agreement.  Wilson’s motion interprets Berg’s amended counterclaim as a withdrawal of consent to the Rule 11 agreement.  Wilson moved the court to enforce the settlement agreement, because she alleged it met the requirements of Rule 11.  See W. Beach Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 255 (Tex. App.—Austin 2002, no pet.).  Wilson further moved the court to bar Berg’s counterclaims based on her affirmative defenses of accord, satisfaction, release, and estoppel, and submitted affidavits to show her alleged compliance with the terms of the agreement.  Wilson prayed that Berg take nothing on his counterclaims because her summary judgment evidence established accord, satisfaction, and release.  In his response, Berg defensively asserted the existence of fact issues regarding Wilson’s alleged repudiation of the agreement, and submitted affidavits in support of this allegation.  The partial summary judgment entered by the trial court found the existence of fact issues with respect to breach of the Rule 11 agreement by “the parties.”

     

    [9]Berg further complains that the trial court erred in granting the partial summary judgment, because that judgment foreclosed his counterclaims.  The court granted a partial summary judgment finding only that the parties had entered into a valid, legal, and binding agreement.  The agreement was reduced to writing and was dictated into the court’s record by the respective attorneys for each party.  Both parties approved the settlement agreement as dictated into the record.  An agreement to settle a case is enforceable by the trial court if it complies with Rule 11 of the Texas Rules of Civil Procedure.  See Padilla v. La France, 907 S.W.2d 454, 460 (Tex. 1995).  To comply with Rule 11, the agreement must be either (1) in writing, signed, and filed with the papers as part of the record, or (2) made in open court and entered of record.  Tex. R. Civ. P. 11; Padilla, 907 S.W.2d at 459.  Thus, a settlement agreement between the parties is a valid and enforceable agreement, even though it is not in writing, where the agreement is made in open court and agreed to by the parties.  E. Tex. Salt Water Disposal Co. v. Hughes, No. 12-04-00333-CV, 2006 WL 300410 (Tex. App.—Tyler Feb. 8, 2006, pet. denied) (mem. op.).  Moreover, settlement agreements are governed by contract law.  Alcantar v. Okla. Nat’l Bank, 47 S.W.3d 815, 819 (Tex. App.—Fort Worth 2001, no pet.).  As such, a settlement agreement must define its essential terms with sufficient detail to allow a court to determine the obligations of the parties.  Sadeghi v. Gang, 270 S.W.3d 773, 776 (Tex. App.—Dallas 2008, no pet.).

                    Here, the parties’ actions of dictating their agreement into the record in open court complied with the procedural format of Rule 11 of the Texas Rules of Civil Procedure.  Neither party contends the essential terms of the Rule 11 agreement are not sufficiently definite.  Thus, the trial court’s finding that the Rule 11 agreement was valid (as preceded by its findings that the parties entered into the agreement, which disposed of all claims and disputes between them, that the agreement was dictated into the record, and that the agreement was approved by the court) appears only to mean that the agreement indeed complied with Rule 11.  The agreement was binding because its terms were sufficiently definite to permit enforcement.  Wilson, therefore, contends that the trial court’s finding that the agreement was “valid, legal and binding” means nothing more than it complied with the terms of Rule 11 and was sufficiently definite to enforce.  We agree.  The partial summary judgment did not resolve or attempt to “rule” on Berg’s counterclaims.

     

    [10]None of these cases adopt a procedure which would omit a judicial determination of a contested claim of material breach of a settlement agreement in favor of proceeding directly to trial on the settled claim(s). 

     

    [11]To constitute repudiation, a party to a contract must absolutely and unconditionally refuse to perform the contract without just excuse. Bans Props., L.L.C. v. Housing Auth. of Odessa, 327 S.W.3d 310, 315 (Tex. App.—Eastland 2010, no pet.).  A party claiming anticipatory breach of a contract must establish the following three elements:  (1) a party to a contract has absolutely repudiated the obligation; (2) without just excuse; and (3) the other party is damaged as a result.  Pollack v. Pollack, 39 S.W.2d 853, 855 (Tex. Comm’n App. 1931, holding approved); Hauglum v. Durst, 769 S.W.2d 646, 651 (Tex. App.—Corpus Christi 1989, no writ).  The record here does not indicate repudiation of the settlement agreement by either party. 

     

    [12]In context, this is the acknowledgment:

     

    Mr. Buchanan [attorney for Berg]:  We did not comply with the Rule 11 Agreement in a sense that once she tendered the money to us, then we didn’t accept it, and we didn’t tender ours.  So, what - - I have an affirmative defense plead which is offset in rescission - -                                                             essentially rescission.

     

    THE COURT:      Let’s say you get that issue, let’s say it’s found to be true, where does that leave you?

     

    Mr. Buchanan:    Election of remedies.  I think the way the charge gets set up, it’s an election of remedies.  I get to ask the jury a question as to was there a material breach.  Both parties ask that question.  I get to ask the question as to whether or not I am excused . . . from performance. Then we’re both going to ask questions about what our damages are.   

     

    Mr. Rogers:           There it is.

     

    Mr. Buchanan:  We’re both - - the reason why we’re asking those is because if I win the    rescission issue then I get - - I’m the winner.  I get to elect which way we’re going.  Either I can collect my money damages with the offset from them for whatever money damages they have, or I can elect rescission, and we go back to square one.

     

     

    [13]The underlying claims asserted by Berg as counterclaims included fraud, breach of fiduciary duty, conversion, civil theft, and constructive trust. 

     

    [14]Rule 174(b) of the Texas Rules of Civil Procedure authorizes bifurcated trials.  “The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, or of any number of claims, counterclaims, third-party claims, or issues.”  Tex. R. Civ. P. 174(b).  We do not know, from this record, what the trial court would have done if the jury had come back with a verdict favoring Berg, for example, whether it might have continued into a second part of trial on the underlying issues.  See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994).

    [15]Berg also claims the trial court erred in summarily finding the Rule 11 agreement was “valid, legal and binding” because such relief was neither prayed for nor sought in Wilson’s motion for summary judgment. Wilson’s summary judgment motion asked the court to bar Berg’s counterclaims based on her affirmative defenses of accord and satisfaction, release, and estoppel.  The prayer asks that the court render judgment (1) that defendants take nothing on the claims asserted on defendant’s first amended counterclaim and (2) that Wilson recover costs from defendants, attorneys’ fees, together with such other and further relief to which defendants may be entitled. Wilson did not specifically ask the trial court to find the agreement to be “valid, legal and binding.”  Under Rule 166a(c), Texas Rules of Civil Procedure, a motion for summary judgment must “state the specific grounds therefor,” and the trial court is to render judgment if “the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.”  Tex. R. Civ. P. 166a(c).  Here, Wilson’s summary judgment asserted that a Rule 11 agreement existed between the parties settling all matters.  In addition, Wilson alleged, in great detail, her compliance with that agreement.  Wilson’s request that the trial court determine the affirmative defenses of accord and satisfaction, release, and estoppel were predicated on her compliance with the Rule 11 agreement.  The finding of a valid Rule 11 agreement is implicit in Wilson’s request that the trial court bar Berg’s counterclaims based on her compliance with the terms of that agreement.  The issue of the validity of the Rule 11 agreement was the predicate on which the requested relief was based.  By definition, the motion included a request for such relief. This appears to be a case where the trial court did not grant more relief than requested.  Rather, in only finding the Rule 11 agreement valid, legal, and binding, the trial court granted less relief than requested.

    [16]The questions submitted here were submitted in the precise manner competing claims for breach are to be submitted under the PJC. Questions 1 and 2 read as follows:

     

    Did Bob Berg fail to comply with the Rule 11 Settlement Agreement? (Question number 2 is the same, but asks if Kristi Wilson failed to comply with the Rule 11 Settlement Agreement). Both questions were accompanied by the following instructions:

     

    1.             A failure to comply with an agreement must be material.  The circumstances to consider in determining whether a failure to comply is material include:

     

                    (a)  the extent to which the injured party will be deprived of the benefit which he reasonably expected;

     

                    (b)  the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;

     

                    (c)  the extent to which the party failing to perform or to offer to perform will suffer forfeiture;

                   

                    (d)  the likelihood that the party failing to perform or to offer to perform will cure his failure, taking into account the circumstances including any reasonable assurances;

     

                    (e)  the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing;

     

                    (f)  the extent to which it reasonably appears to the injured party that the delay may prevent or hinder the injured party in making reasonable substitute arrangements;

     

    2. Compliance with an agreement must occur within a reasonable time under the circumstances, unless the parties agreed that the compliance must occur within a specified time and the parties intended compliance within such time to be an essential part of the agreement.

     

    3. In determining whether the parties intended time of compliance to be an essential part of the agreement, you may consider the nature and purpose of the agreement and the facts and circumstances surrounding its making.

     

    [17]Berg further alleged Wilson’s claim was barred by the affirmative defenses of waiver, justification, modification, offset, ratification, estoppel, fraud, and unclean hands. 

     

    [18]Berg’s third amended answer does not separately assert the affirmative defense of excuse based on repudiation.   Berg’s counterclaim alleges a separate breach of contract claim, together with an alternative claim of repudiation. 

     

    [19]Berg’s counterclaim for breach of contract states that Wilson materially breached the settlement agreement by:

     

    (1) failing to timely tender the $25,000.00 payment required by the Settlement Agreement, (2) failing to turn over all inventory to BOB BERG, (3) failing to deliver inventory conveyed to BOB BERG under the terms of the Settlement Agreement, (4) failing to deliver personal items conveyed to BOB BERG under the terms of the Settlement Agreement, (5) converting to her own use inventory conveyed to BOB BERG under the terms of the Settlement Agreement and/or (6) using copyrights and intellectual property belonging to Bob Berg Designs conveyed to BOB BERG under the terms of the Settlement Agreement.

     

    Berg’s claim of anticipatory repudiation indicates:

     

    In addition and/or in the alternative, WILSON’S actions, as described above, [actions purporting to show a breach of contract] including, but not limited to, her failure to tender payment of the $25,000.00 in a timely manner despite repeated requests, her refusal to deliver inventory of Bob Berg Designs, and her use of copyrighted intellectual property belonging to BOB BERG and Bob Berg Designs, constituted a refusal or inability to comply with the Rule 11 Settlement Agreement.  The acts or omissions of WILSON constituted an unequivocal expression of her inability or refusal to comply with the Rule 11 Settlement Agreement such that BOB BERG is justified in accepting this expression as a final anticipatory breach or repudiation of the Rule 11 Settlement Agreement and he is relieved of any further obligations under the Rule 11 Settlement Agreement.  BOB BERG seeks rescission of the Rule 11 Settlement Agreement.

    [20]The lis pendens at issue was filed in the district clerk’s office of Hopkins County, Texas.  Section 12.007 of the Texas Property Code provides that a notice of lis pendens is to be filed with the county clerk of each county where a part of the property is located.  Tex. Prop. Code Ann. § 12.007(a) (West Supp. 2010).  Wilson thus contends the lis pendens is void in any event.  See Khraish v. Hamel, 762 S.W.2d 906 (Tex. App.—Dallas 1988, writ denied) (lis pendens filed in wrong county was void for failure to comply with statute).

    [21]The scope of the UDJA includes,

     

    A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

     

     Tex. Civ. Prac. & Rem. Code Ann. § 37.004(a) (West 2008).

    [22]The motion for new trial claimed a lack of evidence to support the jury’s answers to the breach of contract issues and further complained of the trial court’s refusal to submit defendant’s requested jury question on excuse based on breach and/or repudiation. 

     

    [23]At oral argument, counsel for Berg conceded that this is not a trespass to try title action.