Garcia v. Ray, 1199
| Decision Date | 13 October 1977 |
| Docket Number | No. 1199,1199 |
| Citation | 556 S.W.2d 870 |
| Parties | Alfredo A. GARCIA, Appellant, v. Bennie E. RAY, Appellee. |
| Court | Texas Court of Appeals |
This is a summary judgment case. The plaintiff, Alfredo A. Garcia, was convicted in the 197th Judicial District Court of Cameron County, Texas, of the offense of 'a felon in possession of a firearm.' The appellant was sentenced under Section 12.42(d) of Vernon's Annotated Penal Code to life imprisonment as a habitual criminal. The defendant was the appellant's attorney in the criminal case. The plaintiff brought suit to recover $750,000 in damages because, according to the appellant, the defendant held himself out to be a licensed attorney and had '. . . falsely, wrongfully, wilfully and intentionally' deprived plaintiff of money by fraudulent means while purporting to act as the attorney of record for the plaintiff in the criminal matter. The defendant filed a motion for summary judgment which was granted by the trial court.
The summary judgment facts show that plaintiff Garcia had been charged with six indictments, three resulting from a fatal shooting and three resulting from a separate murder by the use of a firearm. The defendant, Bennie E. Ray, a licensed attorney, represented the plaintiff in the first murder case which resulted in a hung jury. Thereafter, Garcia was tried on the felony possession of a firearm in which he was convicted and sentenced to life imprisonment. Defendant Ray was Garcia's retained attorney and received compensation for the representation of Garcia. Ray was thereafter appointed by the State to represent the plaintiff in his appeal because the plaintiff was unable to afford counsel for this purpose. Even though Ray prosecuted the appeal as attorney for Garcia, Garcia filed his own pro-se brief in which he raised, among other grounds of error, ineffective counsel.
Attached to the defendant's motion for summary judgment was a copy of the Court of Criminal Appeals opinion in which such opinion states:
'Appellant's fourth ground of error charges his counsel was ineffective assistance.
Appellant was represented by retained counsel. The record before this Court does not reflect a breach of legal duty by counsel in the conduct of the trial. Ex parte Gallegos, 511 S.W.2d 510.'
Garcia also filed a complaint with the local district's Grievance Committee of the State Bar of Texas, which dismissed the complaint because of the ruling of the Court of Criminal Appeals on the criminal case. Garcia, in addition to a sworn answer opposing the motion for summary judgment, also filed his affidavit which goes into detail complaining that Ray failed to call certain material witnesses during the course of the trial of the criminal case. The statement also raised questions concerning the amount of money charged him by Ray for representation in the criminal case.
The appellant's points of error are as follows:
'QUESTIONS PRESENTED
1. Whether the District Court erred in its finding of facts to enter a Summary Judgment against Appellant who has been denied discovery to produce and proffer evidence to prove a set of facts or facts in support of his claim for relief, when said Summary Judgment relies soley [sic] on mere pleadings and and [sic] affidavits of the Appellee's defense that he is not guilty of the allegations made in Appellant's original complaint against him, without more.
2. Whether the district Court erred in its purported findings for Summary Judgment, and recline [sic] the same upon pleadings and affidavits of one side of the litigation to the manifest defeat of the other side, thus disavowing its judicial responsibility to acquire personal knowledge of the fact issues before the Court, as required by the Texas Rules of civil Procedure, Rule 166-A, Subparagraphs (e)(f).
3. Whether the District Court committed a substantial failure of justice in this case because she refused to appoint legal counsel for Plaintiff-Appellant notwithstanding his indigency and substantial lack of education.'
The trial court granted the motion for summary judgment based on 'the Motions, Replies to Motions, Admissions, Affidavits and Counter Affidavits, Pleadings, Depositions Interrogatories, and Answers to Interrogatories on file prior to the date set for said hearing.'
Appellant's first two points, which complain of the summary judgment, do not state any specific error by the trial court which would entitle appellant to relief. These points of error are no more than disjunctive factual conclusions on the part of the appellant. Rule 418, T.R.C.P., requires the appellant to show the error of the trial court in such a way that an appellate court can determine the soundness of the point relied on. The appellant has failed to point out to us any fact questions which allegedly exist on issues that are material to this cause. The courts have held that such a point of error is too general and indefinite to require appellate consideration. This is especially true where there is no argument pointing out the basis for which the summary judgment should have been denied. Cotten v. Republic National Bank of Dallas, 395 S.W.2d 930 (Tex.Civ.App.--Dallas 1965, writ ref'd n.r.e.) and authorities cited therein. Jones v. Hunt Oil Company, 456 S.W.2d 506, 510 (Tex.Civ.App.--Dallas 1970, writ ref'd n.r.e.) and authorities cited therein. Snider v. Forrest Lumber Company, 448 S.W.2d 130 at 133 (Tex.Civ.App.--Tyler 1969, no writ) and authorities cited therein. See Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956) and compare Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex.Sup.1970); Daniels v. Shop Rite Foods, Inc., 502 S.W.2d 894 (Tex.Civ.App.--Corpus Christi 1973, writ ref'd n.r.e.).
The summary judgment was not based solely on the pleadings but on the affidavits, interrogatories and admissions in addition to the sworn pleadings. The question that was before the trial court as well as here on appeal is not whether the summary judgment proof raises fact issues with reference to the essential elements of plaintiff's claim and cause of action, but whether the summary judgment proof establishes as a matter of law that there is no fact issue or fact as to one or more of the essential...
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