*1 defense. jury seriously Five these were character wit- consider a lower sen- produced testimony nesses. Neither side years imprisonment. tence than 10 punishment stage. However, at the right probation to be considered for is valu- jury heard considerable evidence at able, probation if given, even is not because guilt stage appro- which also concerned the the jury probation instruction concerning priate punishment. This included testimo- forcefully the jury’s directs attention to the ny that the defendant had ar- never been punishment lowest by law. This allowed or any rested kind of trouble before this right every person has been conferred on incident; anything that he had never stolen felony, special not convicted of a pro- life; good his adult that he had a em- tection for defendants without counsel. ployment history years of several as a 42.12, Art. sec. 8a. physical therapist; he that not a vio- case, appellant’s In this lawyer own person; mother; lent supported that he his prison, although asked he be sent to that he avoided persons undesirable eligible probation. he was There was caring others; kind and that he protection right less valuable to be stay crippled girl would sometime with a probation considered for than there would accepting without payment offered to him have complete been absence of a for his reputation services. There were no lawyer. grievous defense This against error appellant witnesses and no evi- and, probability, dence of reasonable affected the extraneous offenses. to appellant’s prejudice. outcome Appellant’s attorney argued for a five- year sentence, prosecutor Ground of error one sustained. argued is years for a sentence of day. and a is reversed and the cause jury split the difference and assessed 10 remanded. years. argues
The State jury that if the had give probation,
wanted to it would have available,
chosen the minimum sentence years,
five or would have asked probation.
about The State asserts that jury opposed five-year was so suggested by
sentence defense counsel imposed a sentence of twice that MULLER, & Jr. James amount, years. Muller, Appellants, Washington Strickland v. com- does not pel an affirmance unless the record indi- Jere & La W. LEYENDECKER given proba- cates that the would have Inc., Appellees. & Sand tion, but for counsel’s error. The test prejudice in is whether Strickland there No. 04-84-00289-CV. probability” a “reasonable the error Texas, Appeals of Court of “altered the outcome” of the A prob- trial. San Antonio. ability may though be reasonable even preponderance does not constitute a Aug. evidence, Strickland, 2068-69, at S.Ct. Rehearing Denied Oct. may and alteration the outcome include assessed, in the al- reduction sentence though probation.
We conclude that there a reason probability
able con instruction probation
cerning would have altered punishment influencing
outcome of the
OPINION COLEMAN, (Assigned). Justice appeal This is an from an order entered post-judgment arising out appeals. *3 was before court with- jury. out a The case appealed from the district County, court Webb Texas in which 30,500 Cause No. was consolidated with 30,437. 30,437 Cause No. In Cause No. Leyendecker Jere W. and La Bota Sand Gravel, (La Bota) sought Inc. a declara- tory judgment agreement that a lease be- brothers, tween La Bota and the Muller Robert, Albert and for removal of sand gravel force full and effect and 30,500 certain other relief. In Cause No. sought the Muller brothers judgment declaring the lease between themselves and La Bota terminated rea- son of abandonment and failure to conduct operations. Gravel, Inc.,
La Bota Sand and
entered
with Albert and
Muller for
removal of
Robert
sand and
gravel from
La Bota Ranch. The term
1,
January
said
was to run from
31,
to December
five-year
extend
lease for an additional
period.
capital
stock
La Bota Sand
Gravel,
equal
Inc. was owned
shares
Leyendecker
Albert
On
Muller.
10, 1977,
formally
June
Muller
noti-
Leyendecker
fied
his intention
dis-
1977,
corporation
20,
solve
June
formally notified Leyendecker, who was
president
corporation,
the termi-
nation
the lease between Mullers and
Jr., Dallas,
J.G. “Bumper” Hornberger,
corporation. Leyendecker
and Muller
appellants.
the corporation.
directors of
3,May
1978,
the suit for
On
while
declara-
Zaffirini,
Castillo,
Guadalupe
C.M.
Lare-
tory
pending the trial
do,
appellees.
court, the Mullers entered into a contract
CANTU,
gravel
Before
for the removal of sand and
from La
REEVES and COLEM
AN,*
Ready
JJ.
Ranch
with Laredo
Mix.
* Assigned
(Acts
to this case
the Chief Justice of the
Civil Statutes as
H.B.
amended
1983,
1912,
354,
Supreme
pursuant
Leg., p.
Texas as
Court of
authorized
68th
Ch.
Sec.
effec-
(d)
1983).
Paragraph
of Article
Revised
June
Texas
tive
were out of
six-year period
plaintiffs
when
19, 1980,
court en-
May
On
the district
resulting
of the Mullers
possession,
tered a
in favor
an extension
de-
against
La Bota and
1982 to
primary
time from December
termi-
claring
March
the lease of
12, 1988;
La Bota had the
December
Octo-
On
nated because
abandonment.
agreement to renew
right under the lease
29, 1982,
appeals handed
ber
the court of
prior to December
1988 for an
the lease
unpublished opinion in Cause No.
down an
five-year
pursuant
additional
term
styled
Leyendecker &
Jere W.
agree-
provisions of the lease
terms and
Bota Sand &
Inc. v. Albert
period
end of that
ment and that the
Muller,
revers-
Jr. & James
renegotiate the lease for an addi-
option to
rendering
the trial court’s
ten-year period.
tional
terminating
agreement.
appellants
contend that
there
The court of
found that
extending
the lease because
court erred
that La Bota intended to aban-
no evidence
*4
judicial
such action was barred under the
premises
don either the lease or the leased
remedies, waiver,
of election of
res
doctrine
actually relinquished
the enter-
or that
estoppel.
judicata, and
lease
prise. The court also found that the
approximately
in effect for
seven
had been
Declaratory
8 of the Uniform
Section
appellees gave
months before
their notice
Act,
Judgments
TEX.REV.CIV.STAT.
for
of termination
reasons of abandonment.
(Vernon 1965) provides:
ANN. art. 2524-1
22, 1983,
Supreme
On June
the
Court of
Further relief based on a
applications
Texas denied
for writs of er-
judgment
may
granted
decree
be
or
Subsequently, Leyendecker
ror.
and La
necessary
proper.
ap-
or
whenever
petition
Bota filed a
in the trial court for an
by petition
plication therefore shall be
to
directing
order
the clerk of the district
having jurisdiction
grant
to
a Court
posses-
court to issue an
immediate writ
suf-
application
relief.
If the
be deemed
premises
supple-
sion for the leased
ficient,
shall,
on reasonable
Court
provisions
mental relief under the
of TEX.
notice, require any
party whose
adverse
(Vernon
REV.CIV.STAT.ANN. art. 2524-1
rights
adjudicated by the de-
have been
1965).
petition
plaintiffs
In this
fur-
claratory judgment or decree to show
requested
supplemental
ther
an order as
why
cause
further relief should not be
extending plaintiffs’ original
relief
lease
granted forthwith.
period equal
plaintiffs
for a
to the time the
Declaratory Judgments
kept
possession by
out of
reason of
Section 9 of the
litigation.
proceedings
this
in-
provides
Act
that where
an issue of
the determination of
volves
require
filed
Mullers
a motion to
fact,
may
tried and deter-
such issue
be
attorney,
Zaffirini,
Mr. Carlos M.
to show
fact
mined in the same manner as issues of
authority
represent
his
La Bota. The
in other civil ac-
are tried and determined
by jury.
defendants also demanded a trial
proceeding is
tions in the court in which the
The trial court denied the motion to re-
pending.
quire
M.
Carlos
Zaffirini to show his au-
22, 1983,
thority
represent
corporation;
pre-trial
found
hear-
On December
a
that
had the
to insti-
petition
time the
was held at which
pursue legal
tute and
action on behalf of
supplemental
relief
writ
plaintiff corporation,
jury
and denied a
hearing
evidentiary
for an
was set down
trial.
31,
5, 1984,
January
an
January
1984. On
limiting
filed
the re-
amended
The trial court
recited
it’s
sought
possession,
a
and an
lief
to writ
plaintiffs
im-
were entitled to the
original
March
order that the
lease of
mediate use and
of the leased
together
costs of
1977 be extended
premises;
primary
term
agreement
court.
should be extended
proceeded
The case
on January
(5)
year
for an
five
additional
31, 1984,
and a
subsequently
term.
signed
on June
1984. Pursuant
to a
option
At
the end
to renew
15, 1984,
proper request on
judge
June
(5) year
period,
additional five
findings
filed his
of fact and conclusions of
plaintiffs
renegotiate
have
law.
(10) year
the lease for an
ten
additional
per
period
agreement.
The record
case does not
3. Plaintiffs’ lease had
ef-
been
jury
show
a
paid.
fee had been
for approximately
(7)
fect
seven months
such
case where the trial court denies a
gave
when
termi-
defendants
notice of
trial,
is on
party
burden
re
July,
nation in
for reasons of aban-
questing jury
an
show abuse of discre
shortly
donment and
thereafter
filed
Co.,
tion. Chavco
Py
Investment
Inc. v.
30,500
Cause No.
decla-
bus,
(Tex.Civ.App
The trial court certain of the leased made proper request in response fact to a Plaintiff, Leyendecker, Jere W. pertinent are to a decision of this case: shareholder, president of director and Gravel, parties primary 1.The term of La Bota Sand and Inc. He had January lease has power was from of insti- 12, 1982, tuting plain- pursuing legal 1977 to with action on be- December having plaintiff corporation. tiffs an renew half recognized that the lease Mullers dated No- which introduced a letter Appellants the decision of by reason of in force to La Bota Sand was 1982 directed vember filed an appeals, the Mullers F. the court of signed by Inc. the su- Muller, which, in error with for writ of application R. Jr. and James litiga- court, thereby continuing the part, preme states: undisput- tion. It is further established receipt of the court of ... with the Mullers leased ed evidence respect to such sand opinion with lease to Lare- by the La Bota land covered lease, gravel appears that such April dated Ready byMix an instrument do pending effect remains in full force and com- 21,1978. provided that the This lease to further any endeavor us additional pri- meantime, begin when mencement date would In the appeal such decision. provid- further pur- was invalidated. It formally give you notice or lease hereby we valid gravel prior lease that if the lease is declared such sand and ed that suant to order, agreement would must taken on following actions be undisput- the terms your part fully comply time terminate. It is also at such gravel sand and Mix Ready and conditions of such Laredo took ed that lease; premises and removed sand ... of the leased during year 1983 gravel therefrom carry the above you
If shall fail to out including the up through and date days request twenty from within trial. provided as in the March date hereof lease, then such failure shall be Texas, in case Supreme your part as outlined
default lease, gas held that involving an oil and us, lessors, grant and shall the les- wrongfully repudiate lessors who and remove option to terminate this lease unqualified notice that sees title an as lessees therefrom.... or are terminated can- leases are forfeited appellants contend suspend opera- if complain the latter extending court erred in the lease because pending contract a determi- tions under the showed that La Bota breached evidence the les- controversy and that nation of regaining possession. This the lease after profit by their allowed to sors will not be *6 proposition upon contention is based the 158 Tex. wrong. Boley, Kothmann v. own again by this letter La Bota (1957). 1 While Kothmann placed possession premises. in of the leased only jury, the issue was tried before estoppel. The held on submitted was Muller testified that at or about that the lessee was as a matter of law Freeman, attorney, this time his ownership establishing entitled to a decree Leyendecker to come out to the of- asked in and that the lease remained of the lease possibility taking the of the fice to discuss judg- eight months after the full force for again. present Muller lease back over rendered, remaining on the time ment was authority he Leyendecker what and asked the time the lease was original the lease at opera- corporation had from the to resume repudiated. asked tion in the name of La Bota. He also money of him he had done with the what La Bota was not As a matter of law stolen; corporation that he had where
the
obligations under
perform
to
its
operations;
he had
to conduct
of
prior to the time the mandate
going
get money to
he was
to
and where
by the
appeals was received
the court of
Leyendecker then left the
operate with.
premis
leased
At that time the
trial court.
premises.
Mullers
possession
of the
es were
the
undisputed
Leyendecker was
It is
lessee,
Ready Mix.
through their
Laredo
July,
corporation; that in
president of the
City
Company v. The
Valley
In
Oil
gave
Muller
La Bota notice of termi-
Garland,
(Tex.Civ.App.—
In its in the Declaratory authorized section of the prayed action not only ment La Judgments King Act. The case of v. Ru damages declaratory judg- but also for a (Tex.Civ.App.— binsky, that ment was in full n.r.e.), Waco not prior appeal force and effect. On a writ ref’d control this ling. judgment court has rendered a that case court held that a is in purchase full force and effect and seller under a that contract real judgment is final. It now cannot be collat- estate was entitled take support summary ally insufficient evidence the time an erroneous the land at find finding. The trial court did not that granted. superse- judgment was Since no proper- in the Leyendecker not had an interest filed the seller did deas bond was finding Muller was ty. The that Albert wrongfully dispossess purchaser, who corpora- acting against the interest of the in under the contract and did default he fully supported the fact that pay delinquent install- tion is not offer Bota’s purchaser gave notice of the termination ments. The court held that the into damages by and thereafter entered not entitled to reason error Ready points These the seller went into Mix. the fact that summary judgment. erroneous cannot be sustained. under the Judgments Act Declaratory This was not a appellants have asserted equitable and does not control the case decreeing in that trial court erred that was authorized relief which court the lease could be renewed because grant under section 8. timely option Bota failed to execute its and (Tex. Salgo Hoffman, declaratory failing judg also in to enter a writ), cited Civ.App. decreeing Leyen- that La Bota and - Dallas appellant proposition that the court rights option in decker had no further granting possession, erred in a writ of points These cannot be term of the lease. in a case point not since was not properly the trial court sustained. Since following judgment in additional relief lease, extended the term of the the time for judgment action. La Bota exercising also extended. sought granted and was affirmative relief pleadings in this There were no in sand and the form a its appellants seeking declaratory relief. The gravel lease was full force and effect. findings made contend that certain of fact Further relief was authorized section 8 unsupported by the by the trial court were Declaratory Judgments Act. hearing sup at the evidence introduced plemental relief. The statement of facts Appellants’ assert the trial court attorney Homberger, reflects that Mr. rendering judgment erred favor of Mullers, objection representing the without Leyendecker legally because there and Exhibit introduced evidence No. factually support insufficient evidence of facts copy was a of the statement which finding Leyendecker the trial court’s had, in the former case. The trial property. had an interest In its response to a motion which was finding the trial court recites its opposed, ruled that he would take plaintiff Jere W. had records instituting proceedings notice of all of the power authority has the appellate an pursuing legal in the former case. While action on behalf of judicial knowledge of its plaintiff corporation. The court also filed court can take fact, rendered in findings judgments one of reads: records and which own matter, involving subject the same cases Plaintiff, Leyendecker, Jere is a W. judicial notice of the record of cannot take shareholder, president director and of La trial of the testimony on the former had Bota Sand and Inc. He judge can the trial same case. Neither power has the of institut- previous trial testimony taken at a consider pursuing legal action on behalf unless it is admitted subsequent in a corporation. plaintiff *8 Mesh Co. v. evidence. Amco & Wire a fact judge The trial also found as Stewart, (Tex.Civ.App.- 740 474 S.W.2d Fumey Muller a sharehold that Albert was 1971, writ). no Houston [1st Dist.] of La Bota Sand and Grav er and director el, acting of it was admitted evi against Inc. and is the interest While Gravel, dence, No. 11 in the The latter we do not find Exhibit La Bota Sand and Inc. In the of a appeal. for record on absence finding by appellants was also attacked facts, pre- of complete factu- statement will be legally the reason that there was and 676 (Tex.Civ.App.-Beaumont
sumed that
the evidence is sufficient
to
writ ref’d
n.r.e.).
support
legally
factually
both
and
the find
ings
judge.
of
Schweizer v. Ad
a corpora
Where the directors of
cock,
(1946);
145 Tex.
Jere W. and La Bota Sand at The evidence establishes that the time Gravel, plaintiffs. Inc. were named court mandate of the was alleged Leyendecker It was was a prem- received the leased shareholder, president director and of La ises were of Mullers Bota Sand and Inc. and that there through their While lessee. there evi- directors, were two support finding dence to the trial court’s Leyendecker. Jr. and Jere W. It was fur- that La Bota and demanded alleged given ther that Muller had notice of peaceable possession were refused termination of property, necessary not sub- attempting deprive fraudulently mit an issue to establish the fact that de- corporation agree- said the benefits of mand had made been as a them divert to himself and his predicate for the issuance of a writ of brother. possession. The issue immaterial. 5.14, Corporation Article Business and finding trial court’s Bota Act, bring authorizes a shareholder to suit premis- out leased corporation on behalf of a where he is the es reason of the Mullers’ actions from corporation owner shares July June 1983 is also immaterial. making pleads reasons efforts to The record that the Mullers re- establishes brought corporation have the suit pudiated July by the board of directors. litigation validity to determine its was not director cannot vote a trans terminated until June of 1983. A corporation suspend with the in which he is operations action was authorized to un- personally Wiberg pending Coast der the contract a determination of involved. v. Gulf Co., controversy. Operations suspend- 563 the Development Land &
677 to an extension and La Bota is entitled ed period. for that the term of its lease 56, Tex. Boley, v. Kothmann (1957).
S.W.2d is affirmed. FOR
ON APPELLANTS’ MOTION
REHEARING Muller, and James Jr. Mo- appellants, have filed a request Rehearing incorporating a
tion for knowledge of the fact
that we take paid timely man- jury fee was original appel- They stated in their
ner. paid. that the fee was We
lants’ brief
accept this fact.
However, supple purpose of which is
mental judgment. Burrage a final v.
to enforce Co., Production
Hunt dism’d); (Tex.Civ.App. writ - Dallas Co., 75 v. Insurance Cocke Southland Life (Tex.Civ.App. Paso S.W.2d 194 - El ref'd.). writ orders, proper
In a case not inconsistent judgment, may entered for
with a final be purpose carrying Harrison, Reynolds
execution. v. (Tex.App. Tyler writ - n.r.e.). ref’d rehearing
The motion for is denied. Texas, Appellant, STATE
COCA COLA BOTTLING COMPANY Dr.
OF the SOUTHWEST and Company, Appellees.
Pepper
No. 04-85-00032-CV. Texas, Appeals Antonio.
San
Aug.
Rehearing Denied Oct.