
NO. 07-08-0010-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 21, 2009
______________________________

MAURICE LESLIE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE
_________________________________

FROM THE 52ND DISTRICT COURT OF CORYELL COUNTY;

NO. 18160; HONORABLE PHILLIP ZEIGLER, JUDGE
_______________________________


Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
          Appellant, Maurice Leslie, was convicted of unlawful possession of a firearm by a
felon. Appellant was sentenced to incarceration in the Institutional Division of the Texas
Department of Criminal Justice for 10 years.  By one issue, appellant requests this court
to reform the trial court’s judgment.  We affirm.
 
 
Factual and Procedural Background
          Appellant does not challenge the legal or factual sufficiency of the evidence
presented to the trial court, therefore, only so much of the factual background will be
discussed as is relevant to our decision.  After a jury had found appellant guilty of the
offense of possession of a firearm by a felon, appellant elected to proceed before the trial
court alone on the issue of punishment.  At the conclusion of the presentation of evidence
on the issue of punishment, the trial court made the following pronouncement from the
bench, “All right, Mr. Leslie, you are hereby sentenced to serve ten years in the institutional
division, the Department of Criminal Justice.”  Subsequently, when the judgment was
signed and entered by the trial court, court costs in the amount of $228.00 was added to
the judgment.  Appellant complains of this variance between the oral pronouncement of
judgment and the written judgment.  Appellant contends that the oral pronouncement of
judgment controls and that we must, therefore, reform the judgment to remove the
assessment of court costs.  We decline to do so and affirm the judgment.
Discussion
          The record clearly reflects that the trial court never mentioned court costs at the time
of oral pronouncement of sentence.  Appellant posits that the oral pronouncement of
sentence trumps the written judgment and we must reform the judgment to remove the
assessment of court costs.  See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App.
1989) (concluding that, when there is a variation between the oral pronouncement of
sentence and the written memorialization of the sentence, the oral pronouncement
controls).  
          However, the Texas Court of Criminal Appeals recently revisited the issue in the
context of court costs and the failure to include court costs as part of the oral
pronouncement of judgment. See Weir v. State, No. PD-0616-08, 2009 WL 605362
(Tex.Crim.App. March 11, 2009).  After addressing the legislative history of the court costs
provisions of the Government Code and the Texas Code of Criminal Procedure, the Court
held that, “court costs are not punitive and, therefore, did not have to be included in the
oral pronouncement of sentence as a precondition to their inclusion in the trial court’s
written judgment.”  Id. at *2.  Accordingly,  appellant’s request that we modify the judgment
to delete the assessment of court costs is denied and we overrule appellant’s issue.
Conclusion
          Having overruled appellant’s issue, we affirm the judgment of the trial court.  
 
Mackey K. Hancock           
       Justice
 
 
 
Do not publish.  

on Locked="false" Priority="67" SemiHidden="false"
   UnhideWhenUsed="false" Name="Medium Grid 1 Accent 1"/>
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
 







NO. 07-10-0361-CV
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL E
 
MAY 13, 2011
 
______________________________
 
 
COVENANT HEALTH SYSTEM, D/B/A COVENANT
MEDICAL CENTER, AND D/B/A COVENANT HEART &
VASCULAR INSTITUTE AND D/B/A COVENANT HEART
INSTITUTE AND D/B/A COVENANT WELL HEART
SERVICES, APPELLANT
 
V.
 
LINDA BARNETT AND ROBERT BARNETT, APPELLEES
 
 
_________________________________
 
FROM THE 72ND DISTRICT COURT OF LUBBOCK
COUNTY;
 
NO. 2010-550,709; HONORABLE RUBEN GONZALES REYES,
JUDGE
 
_______________________________
 
Before CAMPBELL and PIRTLE, JJ. and BOYD, S.J.[1]
CONCURRING AND DISSENTING OPINION
              I agree with the majority in its
conclusion that Appellees' claims are health care liability claims and that the
trial court erred in denying Appellant's motion to dismiss under Chapter 74 of
the Texas Civil Practice and Remedies Code. 
I respectfully disagree, however, with the decision to remand this
matter back to the trial court for the purpose of determining Appellant's
request for an award of attorney's fees.
Waiver of Attorney's Fees
By its
prayer, contained within both its original and reply briefs, Appellant requests
this Court to remand this cause to the trial court for a determination of
attorney's fees to be awarded pursuant to section 74.351(b)(1) of the Texas
Civil Practice and Remedies Code.  Other
than contending that the penalties contained in that section are
"mandatory," neither of Appellant's two briefs contain any discussion
whatsoever as to why a remand is necessary or appropriate.  Rule 38.1(h) of the Texas Rules of Appellate
Procedure requires that the body of Appellant's brief contain a succinct,
clear, and accurate statement of the arguments made in support of any relief
requested.  Failure to advance an
argument, cite authority, make record references or otherwise brief an issue effects a waiver of that issue on appeal.  Assisted
Living Concepts, Inc. v. Stark, No. 07-10-0228-CV, 2010 Tex. App. LEXIS
9326, at *11 (Tex.App.--Amarillo Nov. 23, 2010, no pet.) (reversing the trial
court for failure to grant a Chapter 74 motion to dismiss and then denying a
request to remand on the issue of attorney's fees where the appellant failed to
brief the issue); Sunnyside Feedyard v.
Metro. Life Ins. Co., 106
S.W.3d 169, 173 (Tex.App.--Amarillo 2003, no pet.).  Accordingly, I would find that Appellant
waived the issue.


No Evidence of Attorney's Fees
            Even
if the issue was not waived, a review of the record in this case reveals that
Appellant offered no evidence of
attorney's fees, reasonable, incurred or otherwise.  The courts of this State have consistently
held that an award of attorney's fees must be supported by competent evidence, Torrington Co. & Ingersoll-Rand Corp. v.
Stutzman, 46 S.W.3d 829, 852 (Tex. 2000), and an award of attorney's fees
without sufficient supporting evidence is an abuse of discretion.  Sharp v. Broadway Nat'l Bank, 784 S.W.2d 669, 672 (Tex. 1990).  
            Furthermore,
due to this complete absence of evidence of a vital fact, any award of
attorney's fees would be subject to reversal on a subsequent appeal.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert.
denied, 541 U.S. 1030, 124 S.Ct. 2097, 15 L.Ed.2d 711 (2004).  Because this Court is required to render the
judgment that the trial court should have rendered, as to the issue of
attorney's fees, I would render a take-nothing judgment.  See Tex.
R. App. P. 43.2(c). 
No Right to Relitigate
            To
overcome the complete lack of evidence, as I read the majority, Appellant has
the right to return to the trial court for the "limited purpose" of affording
them a second chance to offer evidence of attorney's fees.  In doing so, the majority ignores the
precedent of this Court.  See Assisted Living
Concepts, Inc., 2010
Tex. App. LEXIS 9326.  The majority finds
support for this unconventional procedure in three cases, each of which is
either distinguishable from the facts of this case or founded upon an invalid
syllogism.  
            In Gingrich v. Scarborough, No.
09-09-0211-CV, 2010 Tex. App. LEXIS 3139 (Tex.App.--Beaumont Apr. 29, 2010, no
pet.) (mem. op.), the appellate court cites section 74.351(b) of the
Texas Civil Practice and Remedies Code as the basis for remanding the question
of attorney's fees to the trial court for an award of attorney's fees when, in
reality, that particular section says nothing about remands.  To the contrary, section 74.351(b) specifically
speaks to the judgment a trial court should enter at the conclusion of an
original hearing on a motion to dismiss. 

            Likewise, the second
case relied upon by the majority, Thoyakulathu
v. Brennan, 192 S.W.3d 849 (Tex.App.--Texarkana 2006, no pet.), is equally
non-precedential because, from a reading of that opinion, you are unable to determine
whether the appellant offered evidence of attorney's fees in conjunction with
their motion to dismiss.  Finally, the
majority cites Garcia v. Gomez, 319
S.W.3d 638 (Tex. 2010), which is factually distinguishable from this case.  In Garcia,
unlike the case at bar, the appellant did offer evidence of reasonable attorney's
fees.  When the trial court granted the
motion to dismiss but failed to award attorney's fees, the health care provider
appealed.  The court of appeals affirmed,
concluding that the trial court had not abused its discretion in failing to
award attorneys fees because the record contained no evidence of the
reasonable fees incurred by the
appellant in defense of the claim.  "Because
there [was] some evidence in [that] case that attorney's fees were both
incurred and reasonable," the Supreme Court remanded the case to the trial
court so that it could exercise its discretion in determining the appropriate
award.  Id. at 643.  While the dissent in Garcia may characterize that opinion as giving the appellant
"a second chance to satisfy his burden of proof," the majority opinion
never specifically authorizes the trial court to allow the presentation of new
evidence on the issue.  Id.
            Where, as here, no evidence of attorney's fees was offered in conjunction
with the section 74.351(b) motion to dismiss, to remand for further proceedings
gives Appellant a "second bite at the apple."  Because further proceedings are not necessary
for the rendition of the judgment the trial court should have rendered, I would
follow the traditional jurisprudence of this State and the precedent of this
Court, and would reverse and render rather than reverse and remand.  
 
 
                                                                                      Patrick A. Pirtle
                                                                                             Justice




[1]John
T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov=t Code
Ann. ' 75.002(a)(1)
(West 2005).


