                              NUMBER 13-07-293-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG


REMIGIO A. MARTINEZ, III,                                                    Appellant,

                                           v.

MARK H. WOERNER,                                                              Appellee.


   On appeal from the 347th District Court of Nueces County, Texas.


                      MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

      The appellant in this case, Remigio A. Martinez, III, is an inmate who sued his

defense attorney, Mark H. Woerner, for breach of fiduciary duty, fraud, and unconscionable

conduct under the Texas Deceptive Trade Practices Act (DTPA). See TEX . BUS. & COM .

CODE ANN § 17.50(a)(3) (Vernon Supp. 2005). Woerner moved for summary judgment,

in part, on the ground that a convicted party cannot satisfy the element of causation in a
claim against his attorney unless he is first exonerated of guilt. The trial court granted the

summary judgment, and we affirm.

                                      I. BACKGROUND

       Martinez was arrested on March 16, 2002 for aggravated assault on a public

servant, tampering with physical evidence, and possession of cocaine. See TEX . PENAL

CODE ANN . §§ 22.02 (Vernon 2008), 37.09(a) (Vernon Supp. 2007); TEX . HEALTH & SAFETY

CODE ANN . § 481.115(b) (Vernon 2008). The trial court appointed Woerner to serve as his

counsel.

       Martinez stood trial on September 24, 2003. Woerner advised Martinez, a habitual

felony offender, to plead guilty to the lesser offense of aggravated assault rather than risk

being tried for attempted murder. According to Martinez’s brief, Woerner told him that

witnesses refused to testify. Martinez also claims that Woerner advised him to plead guilty

in order to avoid distressing the arresting officer, who had an embarrassing medical

condition that would have been revealed at trial. Martinez did as Woerner advised him,

and he pleaded guilty to aggravated assault of a public servant. He was given a twenty-

year prison sentence, to be served concurrently with sentences for tampering with

evidence and possession.

       On May 31, 2005, the court of criminal appeals denied Martinez’s application for a

writ of habeas corpus. Martinez claims in his brief that his application for the writ was

undermined by misrepresentations in Woerner’s affidavit, where he stated that Martinez

did not contest the underlying charges and that Martinez “threatened to kill” his previous

counsel in open court.



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         For all these reasons, Martinez was unsatisfied with Woerner’s representation, and

on February 12, 2007, he filed suit against Woerner. The suit, however, did not allege

legal malpractice; it was for breach of fiduciary duty, fraud, and unconscionable conduct

under the DTPA. Woerner moved for summary judgment on two grounds: (1) that Martinez

could not maintain a malpractice claim because he had not been exonerated, and in the

alternative, (2) the multitude of claims presented by Martinez were essentially a single

claim for legal malpractice, which was barred by the two-year statute of limitations. In

support of the motion, Woerner attached his affidavit, Martinez’s original petition, and the

denial of the writ of habeas corpus from the court of criminal appeals. See TEX . CIV. PRAC .

& REM . CODE ANN . § 16.003 (Vernon Supp. 2007). The trial court granted summary

judgment in favor of Woerner without specifying which ground it relied upon. Martinez now

appeals.

                                  II. STANDARD OF REVIEW

         In a traditional summary judgment, the movant has the burden to prove there is no

genuine issue of material fact and that the movant is entitled to the summary judgment as

a matter of law. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005); Sw. Bell Tel., L.P.

v. Ballenger Const. Co., 230 S.W.3d 489, 491 (Tex. App.–Corpus Christi 2007, no pet.).

We apply a de novo review because “the propriety of summary judgment is a question of

law.” Sw. Bell Tel., L.P., 230 S.W.3d at 491. “In reviewing a summary judgment, we

consider all grounds presented to the trial court and preserved for appeal in the interest of

judicial economy.” Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.

2005).



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                                         III. ANALYSIS

       A longstanding public policy in Texas prohibits a convicted criminal defendant from

suing his lawyer and seeking damages for the conviction unless he has first been

exonerated. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 498 (Tex. 1995). The

principle behind this policy is that when a criminal defendant has been convicted, the

“cause” of the conviction is not the lawyer’s inadequacy, it is the party’s criminal action. Id.

The Peeler court reasoned as follows:

       [A]llowing civil recovery for convicts impermissibly shifts responsibility for the
       crime away from the convict. This opportunity to shift much, if not all, of the
       punishment assessed against convicts for their criminal acts to their former
       attorneys, drastically diminishes the consequences of the convicts’ criminal
       conduct and seriously undermines our system of criminal justice.

Id. Peeler did not hold that a convicted party may never sue his defense attorney, but it

did impose the limitation that a party may “negate the sole proximate cause bar to their

claim for legal malpractice in connection with that conviction only if they have been

exonerated on direct appeal, through post-conviction relief, or otherwise.” Id. at 497-98

(emphasis added). That limitation does not apply in this case.

       Martinez has made three claims—breach of fiduciary duty, fraud, and

unconscionable conduct under the DTPA. All of these claims are torts which cannot be

maintained unless the plaintiff establishes causation. See, e.g., Peeler, 909 S.W.2d at

498 (causation is required to show a DTPA claim); Barrand, Inc. v. Whataburger, Inc., 214

S.W.3d 122, 141 n.5 (Tex. App.–Corpus Christi 2006, pet. denied) (causation is required

to show fraud); Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 509 (Tex. App.–Houston

[1st Dist.] 2003, no pet.) (causation is required to show breach of fiduciary duty). Under



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the public policy articulated by the supreme court in Peeler—and then echoed by our Court

and numerous courts of appeals across the State—Martinez cannot meet this causation

requirement because he has not been exonerated. See Peeler, 909 S.W.2d at 498; see

also Garner v. Redmond, No. 13-02-00658-CV, 2004 Tex. App. LEXIS 7030, at *6-7 (Tex.

App.–Corpus Christi Aug. 5, 2004, pet. denied) (mem. op., not designated for publication).1

        Thus, Martinez’s claims fail as a matter of law.2

                                             IV. CONCLUSION

        We AFFIRM the summary judgment of the district court.



                                                                    __________________________
                                                                    GINA M. BENAVIDES
                                                                    Justice

Memorandum Opinion delivered and
filed this the 3rd day of July, 2008.




        1
          See also Martinez v. Alvarenga, N o. 04-07-00283-CV, 2008 Tex. App. LEXIS 1182, at *2 (Tex.
App.–San Antonio Feb. 20, 2008, no pet.) (m em . op., not designated for publication); Butler v. Mason, No.
11-05-00273, 2006 Tex. App. LEXIS 10886, at *3 (Tex. App.–Eastland Dec. 21, 2006, pet. denied) (m em . op.,
not designated for publication); Falby v. Percely, No. 09-04-422-CV, 2005 Tex. App. LEXIS 3373, at *4-5 (Tex.
App.–Beaum ont May 5, 2005, no pet.) (m em . op., not designated for publication); Gaines v. Lollar, No.
05-03-001405-CV, 2004 Tex. App. LEXIS 6895, at *6 (Tex. App.–Dallas July 29, 2004, pet. denied) (m em .
op., not designated for publication); In re Hinterlong, 109 S.W .3d 611, 628 (Tex. App.–Fort W orth 2003, no
pet.); Donalson v. Martin, No. 14-01-00977-CV, 2003 Tex. App. LEXIS 8070, at *3 (Tex. App.–Houston [14th
Dist.] Sept. 18, 2003, no pet.) (m em . op., not designated for publication).

        2
          Martinez's failure to be exonerated prohibits him from m aintaining this suit against his lawyer, and
the sum m ary judgm ent granted by the trial court is properly affirm ed on this basis alone. See Zuniga v.
Navarro & Assocs., P.C., 158 S.W .3d 663, 667 (Tex. App.–Corpus Christi 2005, pet. denied) (holding that a
sum m ary judgm ent m ay be sustained on any ground subm itted in the m otion). Therefore, we need not
address whether the actions filed by Martinez are barred by lim itations.

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