
07-04-0358-CR

    07-04-0359-CR



IN THE COURT OF APPEALS



FOR THE SEVENTH DISTRICT OF TEXAS



AT AMARILLO



PANEL D



JANUARY 4, 2005

______________________________



TELISA MARIE ROBINSON, 



Appellant



v.



THE STATE OF TEXAS, 



Appellee

_________________________________



FROM THE 181
ST
 DISTRICT COURT OF RANDALL COUNTY;



NOS. 15,743-B AND 15,744-B; HON. JOHN B. BOARD, PRESIDING

_______________________________



Before QUINN, REAVIS, and CAMPBELL, JJ.

Appellant, Telisa Marie Robinson, appeals her convictions for aggravated robbery and aggravated assault on a public servant.  After pleading guilty before a jury, a trial was held on punishment.  The jury assessed punishment at 60 years imprisonment for each offense.  The trial court sentenced appellant in accordance with those verdicts.  Thereafter, she timely noticed her appeal, and counsel was appointed to represent her.  The latter has moved to withdraw after filing a brief pursuant to 
Anders v. California
, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and representing that she searched the record and found no arguable grounds for reversal.  Furthermore, she represents that she informed her client of her right to review the record and file a 
pro se
 brief or response.  We also informed appellant that any response she cared to file had to be filed by December 29, 2004.  To date, appellant has neither filed a 
pro se
 response nor moved for an extension of the December 29
th
 deadline. 

We now address the validity of the three potentially arguable issues raised by appointed counsel.  The first involved the failure to obtain a written waiver of appellant’s right to have a jury assess her guilt.  
The record reflects, however, that appellant was informed of and understood her right to have the jury determine guilt.  So, while a written waiver may have been required by statute, its absence was harmless given her awareness and verbal relinquishment of that right.  
See Johnson v. State
, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding that the failure to obtain a written waiver was harmless since the judgment reflected that appellant knew he had a right to a jury trial and opted for a bench trial).     

The second issue concerned the trial court’s error in “allowing the aggravated robbery indictment and the aggravated assault on a public servant indictment to be heard in the same criminal complaint.”  According to counsel, the State was required to “file a written notice of its intention to join prosecutions of two offenses charged under separate charging instruments.”  See 
Tex. Pen. Code Ann. 
§3.02 (Vernon 2003).  However, her counsel did not object to the absence of written notification.  This resulted in waiver of the complaint.  
LaPorte v. State
, 840 S.W.2d 412, 414 (Tex. Crim. App. 1992) (holding that the requirement for written notice may be waived by inaction).

The third potential issue involved the effectiveness of appellant’s trial attorney.  In discussing that matter, appellate counsel explained why the issue lacked merit.  We agree with her conclusion, after reviewing the record.  

We also conducted our own review of the record pursuant to
 Stafford v. State
, 813 S.W.2d 503 (Tex. Crim. App. 1991) and found no arguable issue warranting reversal.

Accordingly, counsel's motion to withdraw is granted, and the judgments of the trial court are affirmed. 

Brian Quinn

   Justice





Do not publish. (>!&åßÑsigned one order finding Carson to be a vexatious litigant and a second order dismissing Carson’s suit as frivolous.

Before addressing Carson’s issues, we first note that even though he is proceeding 
pro se, 
he is held to the same standard as licensed attorneys and must comply with the applicable laws and rules of procedure.  Greenstreet v. Heiskell, 940 S.W.2d 831, 834 (Tex.App.--Amarillo 1997, no writ); 
see also 
Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978) (holding that litigants who represent themselves must comply with the procedures established by the rules notwithstanding the fact that they are not licensed attorneys).  In our review, we consider Carson’s issues in logical rather than sequential order.

By his second issue, Carson contends the trial court erred in dismissing the entire lawsuit.  Then, by his eighth issue, he contends the trial court erred in dismissing his suit as frivolous.  We disagree.  A trial court’s decision to dismiss an inmate’s lawsuit under chapter 14 of the Code is reviewed under an abuse of discretion standard.  Wallace v. Texas Department of Criminal Justice-Institutional Div., 36 S.W.3d 607, 610 (Tex.App.–Houston [1st Dist.] 2000, pet. denied).  Also, where, as here, the order does not state the specific ground on which it was granted, Carson must show that each of the independent arguments alleged in the motion to dismiss is insufficient to support the order.  
A court abuses its discretion if it acts without reference to guiding rules or principles.  Samuels v. Strain, 11 S.W.3d 404, 406 (Tex.App.--Houston [1st 
Dist.] 2000, no pet.). 

By their amended motion to dismiss, appellees contended Carson failed to comply with section 14.004(a)(2) which required him
 
to file an affidavit or declaration describing each suit previously commenced by him by:

(A) stating the operative facts for which relief was sought;

(B) listing the case name, cause number, and the court in which the suit was brought;

(C) identifying each party named in the suit; and

(D) stating the result of the suit, including if the suit was dismissed as frivolous and malicious under Section 13.001 or Section 14.003, or otherwise.



Carson’s affidavit listed 22 lawsuits previously initiated by him.  Regarding requirement (C) that the affidavit name each party to the suits, we note that although Carson’s third
 suit indicates the presence of multiple defendants, the affidavit provides the name of only one of the defendants.  Also, although the designation for his first
, fourth,
 and tenth
 suits provided the name of only one defendant, the “et al.” designation in each suit indicates the presence of unnamed defendants.

In addition, section 14.004(a)(2)(A) requires the affiant to provide 
the operative facts for which relief was sought 
in the suits filed by him.  (Emphasis added).  Although Carson’s affidavit does indicate the legal nature of the suits or identify the type of action by legal conclusion, 
i.e
. negligence, claim for retaliation, etc., and the actions described as numbers two, five, nine, eleven, and fourteen do state facts beyond conclusions of law or claims denominated as negligence or retaliation claims, the descriptions of the remaining 17 suits do not state 
the operative facts for which relief was sought.  
(Emphasis added).
  

During his testimony at the hearing on appellees’ amended motion, Carson admitted he filed the suits described in Carson v. Johnson, 112 F.3d 818, 822 n.5 (5th
 Cir. 1997).
(footnote: 2)  After comparing Carson’s affidavit of previous filings with the list of cases described by footnote in the Fifth
 Circuit opinion, we conclude his affidavit is incomplete.
  Because Carson’s affidavit did not state the operative facts for which relief was sought in 17 of the suits listed, the trial court was unable to consider whether Carson’s underlying claims are substantially similar to 17 of his previous claims.  Accordingly, we must assume the present suit is substantially similar to one or more of his suits previously filed and is, therefore, frivolous.  Clark v. Unit, 23 S.W.3d 420, 422 (Tex.App.--Houston [1st
  Dist.] 2000, pet. denied).

Carson, unlike other litigants, has everything to gain and nothing to lose by filing a frivolous suit; its costs him little or nothing; and prisoners are not often deterred by the threat of possible sanctions for malicious or frivolous actions.  Hickson v. Moya, 926 S.W.2d 397, 399 (Tex.App.--Waco 1996, no pet.), citing Green v. McKaskle, 788 F.2d 1116, 1119 
(5th Cir. 1986).  Although he may be unsuccessful, he can at “least look forward to a short sabbatical” in the nearest courthouse.  
Green
, 788 F.2d at 1119.  We decline to relax the rule that he is held to the same standards as a licensed attorney. Carson did not comply with the procedures established by chapter 14 of the Code.  Accordingly, we hold the trial court did not abuse its discretion in dismissing his case, however, the proper order in the present case is dismissal without prejudice. 
See 
Williams v. Brown, 33 S.W.3d 410, 412 (Tex.App.--Houston [1
st
 Dist.] 2000, no pet). Carson’s second and eighth issues are overruled.

By his first issue, Carson contends the evidence was insufficient to warrant a finding that he was a vexatious litigant.  Dismissal of Carson’s suit for his failure to comply with the requirements of chapter 14 of the Code was not a ruling on the merits; thus, the order of involuntary dismissal was without prejudice.  
Cf
. Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.App.–Beaumont 2001, no pet.) (holding it was error to dismiss with prejudice an inmate’s suit for failure to comply with the rules governing the filing of 
in forma pauperis
 suits).  Although an order for monetary sanctions imposed as punishment for failure to comply with procedural rules will survive a nonsuit because it is a voluntary dismissal, 
see  
Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 807 n.4 (Tex. 1993), in this instance, the involuntary dismissal
 put an end to the litigation and returned the parties to the positions they were in before the court’s jurisdiction was invoked. 
 See  
Melton v. Rylander,  727 S.W.2d 299, 303 (Tex.App.--Dallas 1987, writ ref’d n.r.e.).  Because only one final judgment may be rendered in any case
, 
see 
Tex. R. Civ. P. 301, the order determining Carson to be a vexatious litigant was not severed, 
see 
Pierce v. Reynolds, 329 S.W.2d 76, 78 (Tex. 1959) and Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 160 Tex. 198, 324 S.W.2d 200, 201 (Tex. 1959), discussing severance of interlocutory orders, and because the order of dismissal was involuntary, the order finding Carson to be a vexatious litigant did not survive the dismissal without prejudice.  Thus, issue one presents nothing for review and we need not address it. 
 

Regarding issue seven, Carson contends he was denied the opportunity to be heard on various pretrial motions.  However, because he testified at the hearing on appellees’ amended motion and the trial court dismissed the action, presentation of his motions was rendered moot.  Issue seven is overruled.

We have not overlooked Carson’s third issue by which he contends the trial court erred in admitting documents of his previous case.  However, because he did not make a timely objection to the admission of any evidence, the contention is not preserved for review.  
See 
Tex. R. App. P. 33.1(a); 
see also
 In Re United Supermarkets, Inc., 36 S.W.3d 619, 622 (Tex.App.--Amarillo 2000, no pet.).  Carson’s third issue is overruled.  Our disposition of issues one, two, three, seven, and eight renders our consideration of Carson’s remaining issues unnecessary.  

Accordingly, we reform the judgment to reflect the cause is dismissed “without prejudice.”  As reformed, the judgment is affirmed.



Don H. Reavis

    Justice

FOOTNOTES
2:
