









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________


No. 06-06-00029-CR

______________________________



CHRISTOPHER MICHAEL JOHNSON, Appellant


V.


THE STATE OF TEXAS, Appellee





On Appeal from the 4th Judicial District Court

Rusk County, Texas

Trial Court No. CR02-200







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

Memorandum Opinion by Justice Carter


MEMORANDUM OPINION


	On August 12, 2003, Christopher Michael Johnson waived his right to a jury trial and pled
guilty to the offense of aggravated assault, see Tex. Pen. Code Ann. § 22.02 (Vernon Supp. 2006),
as charged in the indictment.  The trial court accepted Johnson's plea and, pursuant to a negotiated
plea agreement, deferred a finding of guilt and placed Johnson on community supervision for a
period of five years.  The State subsequently filed an application to adjudicate Johnson's guilt.  The
trial court conducted a hearing on the State's application November 22, 2005, in which the court
found all but one of the violations alleged in the State's application to have occurred, adjudicated
Johnson's guilt, and sentenced Johnson to seven years' imprisonment.  Johnson now appeals,
contending his seven-year sentence is disproportionate to the crime for which he was convicted. 
	We outlined the method for reviewing disproportionate sentencing claims in Fluellen v.
State:
	A court's proportionality analysis under the Eighth Amendment should be guided by
(1) the gravity of the offense and the harshness of the penalty; (2) the sentences
imposed on other criminals in the same jurisdiction; and (3) the sentences imposed
for commission of the same crime in other jurisdictions.  Solem v. Helm, 463 U.S.
277, 292 (1983).  Only if we infer that the sentence is grossly disproportionate to the
offense will we then consider the remaining factors of the Solem test and compare the
sentence received to sentences for similar crimes in the same jurisdiction and to
sentences for the same crime in other jurisdictions.  McGruder v. Puckett, 954 F.2d
313, 316 (5th Cir. 1992); see also Davis v. State, 905 S.W.2d 655, 664-65 (Tex.
App.--Texarkana 1995, pet. ref'd).

71 S.W.3d 870, 873 (Tex. App.--Texarkana 2002, pet. ref'd).  We also noted the appellant must first
raise this issue in the trial court before it can be considered on appeal.  Id. (citing Tex. R. App. P.
33.1(a)).
	Johnson did not raise this issue in the trial court.  Accordingly, this issue is not preserved for
our review, and we must overrule it.  Cf. id. at 873.  Yet, even if Johnson's contention had otherwise
been preserved, there is no evidence in the record comparing the sentences imposed on persons in
Texas with sentences imposed against defendants in other jurisdictions who committed a similar
offense.  See Latham v. State, 20 S.W.3d 63, 69 (Tex. App.--Texarkana 2000, pet. ref'd); Davis, 905
S.W.2d at 664-65.  Without an adequate record, we could not begin to consider the merits of such
a claim.
	As Johnson raises no other issues on appeal, we affirm the trial court's judgment.


						Jack Carter
						Justice
 

Date Submitted:	October 9, 2006
Date Decided:		October 10, 2006

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                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-10-00077-CV
                                                ______________________________
 
 
 
                  IN THE INTEREST OF S.P., J.P., AND
A.P., CHILDREN
 
 
 
                                                                                                  

 
 
                                       On Appeal from the 145th
Judicial District Court
                                                       Nacogdoches
County, Texas
                                                      Trial Court No. C20,871-2004
 
                                                                                                   
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                            Memorandum Opinion by Justice Moseley




                                                     MEMORANDUM 
OPINION
 
            Chanda
Pipes has filed an appeal from the denial of her bill of review.[1]
 The underlying case involves the
termination of her parental rights to three children, by order of March 10,
2006.  She states that her husband, Jimmy
Pipes, is now incarcerated and had informed her that he had discovered, while
in the legal library at the prison, that she could have appealed from the order
of termination.  She maintains an
unawareness that she could do so before, stating that her former attorney had
abandoned her by not seeking to file a notice of appeal, and that she was
wrongfully advised she could not appeal the order of termination.[2]  
            A
bill of review is an equitable proceeding to set aside a final judgment that is
no longer appealable or subject to a motion for new trial or appeal.  Transworld
Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407 (Tex. 1987).  To be entitled to relief, a plaintiff in a
bill of review action is ordinarily required to prove three elements:  (1) a meritorious claim or defense; (2) which
he was prevented from asserting by the fraud, accident, or mistake of the
opposite party or a mistake by court personnel in the execution of official
duties; (3) unmixed with any fault or negligence of his own.  Id.
at 408; W. Columbia Natl Bank v.
Griffith, 902 S.W.2d 201 (Tex. App.Houston [1st Dist.] 1995, writ denied).
            Under the general statute, as
applied by the trial court, a petition for bill of review must be filed within
four years of the date of the disputed judgment.  See
Tex. Civ. Prac. & Rem. Code Ann.
§ 16.051 (Vernon 2008); Tex. R. Civ. P.
329b(f); Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998); Layton v. Nationsbanc Mortgage Corp.,
141 S.W.3d 760, 763 (Tex. App.Corpus Christi 2004, no pet.).
            The
Texas Family Code also has its own separate restriction on the time in which a
party may bring either a direct or a collateral attack on an order terminating
parental rights.  Section 161.211 of the
Texas Family Code provides that the validity of an order terminating parental
rights of a person who has been personally served . . . is not subject to
collateral or direct attack after the sixth month after the date the order was
signed.  Tex. Fam. Code Ann. § 161.211 (Vernon 2008).  This section has been treated as shortening
the time in which a bill of review could be brought to a maximum of six months.
 See
In re L.N.M., 182 S.W.3d 470, 47374 (Tex. App.Dallas 2006, no pet.).
            By
her own pleadings (and under both the four-year and the six-month time period),
the time for filing a bill of review has expired and the relief is no longer
available.  Thus, the trial court did not
err by denying the bill.  Further,
allegations of fraud or negligence on the part of a partys attorney are
insufficient to support a bill of review.  Briscoe,
722 S.W.2d at 408; Gracey v. West,
422 S.W.2d 913, 91819 (Tex. 1968). 
Thus, a bill of review petitioner who alleges that the wrongful act of
his attorney caused an adverse judgment is not excused from the necessity of
pleading and proving his opponents extrinsic fraud.  King
Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003); Briscoe, 722 S.W.2d at 408. 
No such fraud is pled.
            We
affirm the judgment.
 
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date Submitted:          December
3, 2010
Date Decided:             December
7, 2010




[1]Originally
appealed to the Twelfth Court of Appeals, this case was transferred to this
Court by the Texas Supreme Court pursuant to its docket equalization
efforts.  See Tex. Govt Code Ann. § 73.001
(Vernon 2005).  We are unaware of any
conflict between precedent of the Twelfth Court of Appeals and that of this
Court on any relevant issue.  See Tex. R. App. P. 41.3.
 


[2]We
note that the record includes a copy of an opinion on her appeal from the
termination that was issued on September 6, 2006.  An appeal was thus brought, but the
nonindigent Pipes did not pay the fee for filing the appeal with the Tyler
Court of Appeals despite multiple warnings and opportunities to do so, and the Tyler
court ultimately dismissed her appeal. 
Thus, her claim is without validity on its face.


