


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-08-00111-CV
 
Jerry Autry, Individually and on
Behalf of Autry-Kennedy Enterprises, Inc.,
                                                                                    Appellant
 v.
 
Shawn Kennedy and OHM Automation, Inc.,
                                                                                    Appellees
 
 

From the 413th District Court
Johnson County, Texas
Trial Court No. C200500520
 

MEMORANDUM  Opinion





 
            Jerry Autry, individually and on
behalf of the company he partially owned, Autry-Kennedy Enterprises, Inc., sued
Shawn Kennedy and OHM Automation, Inc.  Kennedy and OHM filed a motion for
summary judgment and two supplemental motions for summary judgment alleging
various grounds for summary judgment.  The trial court granted all the motions
without specifying upon which ground it was relying.  Because at least one
ground on which summary judgment was sought was not challenged on appeal, we
affirm.
            To obtain a reversal when the trial
court does not specify the basis for its summary judgment, the appealing party
must show it is error for the judgment to be based on any ground asserted in
the motion.  Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).  One ground asserted in Kennedy and OHM’s first motion was the defense of the
statute of limitations.  Autry did not respond to that ground at the trial
court and has not challenged that ground in his appeal.  Having no complaint
from Autry regarding the trial court’s decision to grant the motion for summary
judgment based on the limitations ground, we must affirm the summary judgment
in favor of Kennedy and OHM.  See Shanklin v. Grimes, No. 10-01-00023-CV, 2003 Tex. App. LEXIS 5332 (Tex. App.—Waco June 25, 2003, no pet.) (mem. op.); Heister v. W. Shamrock, No. 10-01-00366-CV, 2003 Tex. App. LEXIS 5160 (Tex. App.—Waco June 18, 2003, no pet.) (mem. op.).
            The trial court’s judgment is
affirmed.
 
 
                                                                        TOM
GRAY
                                                                        Chief
Justice
 
Before
Chief Justice Gray,
            Justice
Vance, and
            Justice
Reyna
Affirmed
Opinion
delivered and filed September 24, 2008
[CV06]


s are frivolous when they “cannot
conceivably persuade the court.”  McCoy, 486 U.S. at 436.  An appeal is
not wholly frivolous when it is based on “arguable grounds.”  Stafford,
813 S.W.2d at 511.
After a review of the briefs and the
entire record in these appeals, we determine that these appeals are wholly
frivolous.  See Bledsoe v. State, 178 S.W.3d at 826-27. 
Accordingly, we affirm the trial court’s judgments.
Should Henderson wish to seek further review
of these cases by the Texas Court of Criminal Appeals, Henderson must either
retain an attorney to file petitions for discretionary review or Henderson must
file pro se petitions for discretionary review.  Any petition for
discretionary review must be filed within thirty days from the date of either
this opinion or the last timely motion for rehearing that was overruled by this
Court.  See TEX. R. APP. P. 68.2.  Any petition for discretionary review
must be filed with this Court, after which it will be forwarded to the Texas
Court of Criminal Appeals along with the rest of the filings in this case.  See
TEX. R. APP. P. 68.3.  Any petition for discretionary review should comply with
the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See
TEX. R. APP. P. 68.4.  See In re Schulman, 252 S.W.3d 403, 409 n.22
(Tex. Crim. App. 2008) (citing Glover v. State, No. 06-07-00060-CR, 2007
Tex. App. LEXIS 9162 (Tex. App.—Texarkana, Nov. 20, 2007, pet. ref’d) (not
designated for publication).
Counsel’s request that he be allowed to
withdraw from representation of Henderson is granted.  Additionally, counsel
must send Henderson a copy of our decision, remind Henderson of his right to
file pro se petitions for discretionary review, and send this Court a
letter certifying counsel’s compliance with Texas Rule of Appellate Procedure
48.4.  Tex. R. App. P. 48.4; see
In re Schulman, 252 S.W.3d at 409 n. 22. 
 
                                                                        TOM
GRAY
                                                                        Chief
Justice


Before
Chief Justice Gray,
            Justice
Davis, and
            Justice
Scoggins
Affirmed
Opinion
delivered and filed June 22, 2011 
Do
not publish
[CRPM]



[1] The aggravated assault and the evading
charges are the basis of No. 10-10-00397-CR, the aggravated robbery is the
basis of No. 10-10-00398-CR, and the two assaults are the basis of No.
10-10-00399-CR.  These causes were considered by the trial court together and
counsel for Henderson submitted one brief covering all three appeals;
therefore, we will also address the appeals jointly.


