Daniel Edward Mickey v. State ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-09-00348-CR

No. 10-09-00349-CR

No. 10-09-00350-CR

No. 10-09-00378-CR

Daniel Edward Mickey,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court Nos. 08-04329-CRF-272, 08-04331-CRF-272,

08-04332-CRF-272, and 08-04330-CRF-272

MEMORANDUM  Opinion

            Daniel Edward Mickey appeals from convictions for six offenses.  During a bench trial on each charge, Mickey changed his plea from not guilty to guilty on all charges but one, burglary of a habitation.  The trial court found him guilty of the lesser-included offense of criminal trespass.  He was sentenced to four terms of imprisonment for seventeen (17) years in the Texas Department of Criminal Justice – Institutional Division, two years’ confinement in the state jail, and one year in the county jail, each to be served concurrently.  Mickey raises one issue on appeal:  that he received ineffective assistance of counsel due to his counsel’s failure to investigate an insanity defense, which rendered his plea involuntary.  Because we find that the record is insufficient to make this determination, we affirm the judgments of the trial court.

Standard of Review

To prevail on an ineffective-assistance claim, Mickey must prove (1) counsel’s representation fell below the objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel’s deficiency, the result of the proceeding would have been different.  Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).  In considering an ineffective-assistance claim, we indulge a strong presumption that counsel’s actions fell within the wide range of reasonable professional behavior and were motivated by sound trial strategy.  Strickland, 466 U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994).  To overcome this presumption, a claim of ineffective assistance must be firmly demonstrated in the record.  Thompson, 9 S.W.3d at 814.  In most cases, direct appeal is an inadequate vehicle for raising such a claim because the record is generally undeveloped and cannot adequately reflect the motives behind trial counsel’s actions.  Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813-14.

In Hill v. Lockhart, the Supreme Court held that the Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel.  474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985); Ex Parte Imoudu, 284 S.W.3d 866, 869 (Tex. Crim. App. 2009).  In the context of a guilty plea, a defendant satisfies the prejudice requirement by showing that he would not have pleaded guilty and would have insisted on going to trial.  Id.  “Where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the ‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.”  Id.

When the record is silent regarding trial counsel’s strategy, we will not find deficient performance unless the challenged conduct was “so outrageous that no competent attorney would have engaged in it.”  Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); Robinson v. State, 16 S.W.3d 808, 813 n. 7 (Tex. Crim. App. 2000).  In rare cases, however, the record can be sufficient to prove that counsel’s performance was deficient, despite the absence of affirmative evidence of counsel’s reasoning or strategy.  Id.

It is critical that Mickey obtain the necessary record in the trial court to rebut the Strickland presumption that counsel’s conduct was strategic for purposes of appeal.  Thompson, 9 S.W.3d at 814; McCullough v. State, 116 S.W.3d 86, 92 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd.).  This kind of record is best developed in a hearing on a motion for new trial, or by an application for a writ of habeas corpus.  See Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim. App. 1998); McCullough, 116 S.W.3d at 92.  Without evidence of the strategy and methods involved concerning counsel’s actions at trial, the appellate court will presume sound trial strategy.  See Thompson, 9 S.W.3d at 814.  The record is silent as to any trial strategy by counsel.  Except as stated above, when the record is silent as to counsel’s reason for failing to act in some manner, the appellant fails to rebut the presumption that counsel acted reasonably.  See Thompson, 9 S.W.3d at 814.

Mickey did not file a motion for new trial, and there is no record as to his trial counsel’s investigations or strategies. Mickey attempts to rely on the decision of the Court of Criminal Appeals in Ex Parte Imoudu; however, we do not find that decision to compel the result Mickey seeks.  Imoudu was a habeas proceeding that had been remanded back to the trial court for a hearing, during which the trial court heard testimony from a mental health expert, trial counsel for Imoudu, and considered an affidavit from Imoudu wherein he stated that he would have gone to trial had he been informed of the availability of an insanity defense.  In this case, there is no like record.  We find that without the benefit of trial counsel’s reasoning or trial strategy, the record in insufficient to rebut the presumption that his trial counsel acted reasonably.  In this case, this determination would clearly be best made in a habeas proceeding.  We overrule Mickey’s sole issue.

Conclusion

              We find that the record is silent as to any strategy or reasoning by trial counsel regarding his actions during Mickey’s proceedings.  We affirm the judgments of the trial court.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Affirmed

Opinion delivered and filed August 25, 2010

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[CR25]

rite( '' ); } On January 11, 1996, the parties, in an attempt to resolve all disputes between them, entered into a Mutual Release and Confidentiality Agreement. However, once again, the relationship between the parties went awry, and Victory Systems filed its first amended petition alleging the Davenports had breached the mutual release agreement and owed over $26,000 in past-due royalties. Victory Systems moved for summary judgment on its cause of action. The trial court granted Victory Systems’ motion for summary judgment and terminated the franchise agreement and the amended franchise agreement. It is from this order the Davenports appeal.

PRESERVATION OF COMPLAINT

      The first issue presented for our review is whether the summary judgment proof attached to Victory Systems’ motion was sufficient to conclusively prove Victory Systems’ entitlement to summary judgment as a matter of law. The Davenports contend the affidavit is insufficient summary judgment proof because it contains only legal conclusions. Victory Systems maintains that the Davenports cannot raise this complaint on appeal because the Davenports failed to get a ruling on the objection they made regarding Victory Systems’ summary judgment proof. We disagree. Assuming, arguendo, the trial court neither expressly nor impliedly ruled on the Davenports’ objection, in the context of a summary judgment proceeding, a defect in substance cannot be waived by failing to object or by failing to obtain a ruling on an objection. See Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 160 (Tex. App.—Waco 1995, no writ). A complaint alleging that a statement in an affidavit is conclusory and therefore insufficient summary judgment proof is a defect in substance and may be raised for the first time on appeal. See Sorrells v. Giberson, 780 S.W.2d 936, 938 (Tex. App.—Austin 1989, writ denied) (on rehearing); see also Lara v. Tri—Coastal Contrs., Inc., 925 S.W.2d 277, 279 n.3 (Tex. App.—Corpus Christi 1996, no writ).

SUFFICIENCY OF SUMMARY JUDGMENT PROOF

      In its live pleading, Victory Systems alleged that the Davenports breached the mutual release; consequently, that is the cause of action which Victory Systems, as movant, was required to prove its entitlement as a matter of law. See Nixon v. Mr. Property Management, Co., 690 S.W.2d 546, 548-49 (Tex. 1985). As summary judgment proof, Victory Systems attached the affidavit of its legal coordinator, Lynn Allison Rich. In her affidavit, Rich made the following statement:

The [Davenports] have failed to comply with the terms of the Mutual Release and Confidentiality Agreement in the following respects:

a.Bank drafts scheduled for February, 1996 through November, 1997 in the amount of $1,000.00 and $627.00 for December, 1997 for payment of past-due royalties totaling $22,627.00 have not been honored by the [Davenports]. The total amount owing for past-due royalties for 1994 and 1995 is $8,955.62;

b.The December, 1995 royalties of $4,985.53 have not been paid;

c.For the period of March, 1996 through June, 1997 the [Davenports] are delinquent in royalties and the payment of royalties in the amount of $11,461.56;

d.Reports and royalties for August and September, 1997 are estimated at $1,083.11. Those royalties are due but have not been paid.

As of September, 1997, the total amount due to Victory Systems by the [Davenports] is $26,485.82.

      We conclude that such statements contained in Rich’s affidavit are sufficiently fact-based as to be competent summary judgment proof. See Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.—Houston 1994, no writ). Victory Systems was required to prove as a matter of law that the Davenports had breached the mutual release and confidentiality agreement. Attached to Rich’s affidavit was a copy of the mutual release which showed that it had been executed between Victory Systems and the Davenports. Furthermore, Rich stated in her affidavit that the payments required by the terms in the mutual release had not been made and provided the due dates for the required payments. Thus, the Davenports’ contention that Victory Systems did not attach competent summary judgment evidence to its motion is overruled.

SUFFICIENCY OF RESPONSE TO RAISE AN AFFIRMATIVE DEFENSE

      In their second issue presented for review, the Davenports contend the trial court erred in granting Victory Systems’ motion for summary judgment because the Davenports raised a fact issue in their response as to the affirmative defense of lack of consideration.

      Victory Systems, as the movant for summary judgment, had the burden of showing that no material issue of fact existed as to the cause of action and that it was entitled to judgment as a matter of law. Nixon, 690 S.W.2d at 548-49. In a summary judgment proceeding, evidence favorable to the non-movant will be taken as true, every reasonable inference will be indulged in favor of the non-movant, and any doubts will be resolved in the non-movant’s favor. Id. However, if the party opposing a summary judgment relies on an affirmative defense to preclude the granting of summary judgment, that party must come forward with evidence sufficient to raise an issue of fact on each element of the defense. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).

      The Supreme Court has defined consideration as a present exchange bargained for in return for a promise which consists of either a benefit to the promisor or a detriment to the promisee. Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 496 (Tex. 1991). Furthermore, when a written instrument recites a consideration, one is implied. Buddy L, Inc. v. General Trailer Co., Inc., 672 S.W.2d 541, 547 (Tex. App.—Dallas 1984, writ ref’d n.r.e.). This rule applies to releases as well as other kinds of contracts. Id. As a consequence, it is incumbent upon the party seeking to rebut this legal presumption to present evidence which is legally admissible on the question of lack of consideration. Id. Mere conclusions of “no consideration” in an opposing affidavit will not raise a fact issue. Id.

      Attached to the Davenports’ response to Victory Systems’ motion for summary judgment is the five-page affidavit of Phillip D. Davenport. Of the entire affidavit, Phillip Davenport makes only one reference to the mutual release and confidentiality agreement: “I received nothing in return for executing the Release and the Confidentiality Agreement and the suit was kept on the docket of this court.” We believe this statement to be but a “mere conclusion” on the part of Phillip Davenport and do not find it sufficient to raise a fact issue which would preclude the granting of summary judgment in Victory Systems’ favor. See id.; see also Brownlee, 665 S.W.2d at 112. We therefore hold the trial court did not err in granting Victory Systems’ motion for summary judgment.

INCORPORATION OF NON-COMPETITION CLAUSE IN FINAL ORDER

      In their third issue presented for our review, the Davenports contend the trial court erred by incorporating the non-competition clause into the final summary judgment order. The non-competition clause is part of the original franchise agreement. In essence, the non-competition clause prohibits the Davenports from operating a business “substantially similar to T-Shirts Plus franchised retail stores” within a fifty-mile radius of any T-Shirts Plus store for a period of two years in the event the franchise agreement between the Davenports and Victory Systems is terminated.

      We refer to section 15.50 of the Texas Business and Commerce Code to determine when a non-competition clause, or covenant not to compete, is enforceable. See Tex. Bus. & Com. Code Ann. § 15.50 (Vernon Supp. 1998). Section 15.50 reads:

Notwithstanding Section 15.05 of this code, a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.

Id.

      The Davenports argue that the non-competition clause was erroneously included in the final summary judgment order because it is not “ancillary to or part of an otherwise enforceable agreement.” To determine if the non-competition clause is ancillary to or part of an otherwise enforceable agreement, we must ascertain whether, at the moment the agreement was made, there existed other mutually binding promises to which the clause is ancillary or a part. CRC-Evans Pipeline Inter., Inc. v. Myers, 927 S.W.2d 259, 263 (Tex. App.—Houston [1st Dist.] 1996, no writ). If, at the time the agreement was signed, the agreement was enforceable, then the non-competition clause is valid and the trial court did not err by incorporating it into the final order. However, if the agreement was not enforceable at the time it was signed, then the non-competition clause is not considered ancillary to an otherwise enforceable agreement and is therefore void.

      The Davenports argue that the franchise agreement is not enforceable due to a failure of consideration. In response to Victory Systems’ motion for summary judgment, the Davenports attached the affidavit of Phillip Davenport. Despite allegations that Phillip Davenport and his wife received no assistance from Victory Systems in: (1) locating a space for their store, (2) assisting with the “build-out” of the store, (3) providing training for operating the store, (4) assisting with the start-up and opening of the store, or (5) obtaining inventory for their store, there is nothing in Phillip Davenport’s affidavit that raises a fact issue as to the enforceability of the franchise agreement at the time the franchise agreement was executed. See CRC-Evans Pipeline Intern., 927 S.W.2d at 263; see also Brownlee, 665 S.W.2d at 112. Consequently, we will affirm the trial court’s final judgment which incorporates the non-competition clause.

      The judgment is affirmed.

                                                                         BOBBY L. CUMMINGS

                                                                         Justice

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Affirmed

Opinion delivered and filed September 9, 1998

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