Russell v. State

341 S.W.3d 526

Tex. App.

2011

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David Allen RUSSELL, Appellant, v. The STATE of Texas, State.

Nos. 02-10-00161-CR, 02-10-00162-CR

Court of Appeals of Texas, Fort Worth.

April 7, 2011.

526 S.W.3d 526

(same). Thus, the fact that Dugas LP may own an entity that does business in Texas is not relevant to a minimum contacts analysis in the absence of some jurisdictional alter ego or veil-piercing allegations and proof, which are not present in this case. See, e.g.,

PHC-Minden, L.P., 235 S.W.3d at 172-76 (discussing proof necessary for jurisdictional veil-piercing and concluding that court of appeals “erred in imputing Province‘s Texas contacts to Minden“).

I cannot agree with the Majority Opinion‘s holding that two facts—a ten-year-old, inaccurate statement in Dugas LP‘s initial partnership agreement that Dugas LP‘s principal place of business was in Texas and Dugas LP‘s ownership of a Texas general partnership, a non-real property asset—somehow constitute “doing business in Texas” and somehow satisfy the rigorous minimum contacts analysis required by the Due Process Clause of the United States Constitution to subject a defendant to the general jurisdiction of Texas courts. Neither of the facts relied upon in the Majority Opinion show that Dugas LP purposefully availed itself of the privilege of conducting activities within Texas. Neither of the facts relied upon in the Majority Opinion show that Dugas LP invoked the benefits and protections of Texas‘s laws. Neither of the facts relied upon in the Majority Opinion show that Dugas LP actually conducted any activities in Texas, much less substantial activities within Texas. Neither of the facts relied upon in the Majority Opinion show continuous and systematic contact by Dugas LP with Texas. Instead, the two facts relied upon in the Majority Opinion bear no relevance to the required minimum contacts analysis.

VII. CONCLUSION

Because Dugas LP factually negated Appellees’ pleaded bases for jurisdiction by establishing that it did not do business in Texas; because Appellees did not come forward with any evidence supporting their allegations that Dugas LP did do business in Texas; because Dugas LP legally negated Appellees’ contention that the Texas courts possessed general jurisdiction over it based on the inaccurate statement in its ten-year-old initial limited partnership agreement; and because the majority‘s reliance on Dugas LP‘s ownership of a Texas general partnership that has contacts with Texas is not relevant in the absence of jurisdictional alter ego or veil-piercing pleadings, I would reverse the trial court‘s denial of Dugas LP‘s special appearance. Because the majority does not do so, I respectfully dissent to the Majority Opinion‘s holding that general jurisdiction exists over Dugas LP. I would reverse the trial court‘s order denying Dugas LP‘s special appearance. I concur with the other holdings of the Majority Opinion.

Wade Tyler “W. Ty” Wilson, Fort Worth, TX, for Appellant.

Joe Shannon, Jr., Criminal District Attorney; Charles M. Mallin, Chief of the Appellate Section; Sharon A. Johnson, David Hagerman, Assistant Criminal District Attorneys; for Tarrant County, Fort Worth, TX, for State.

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

OPINION

BILL MEIER, Justice.

The trial court adjudicated Appellant David Allen Russell guilty of two counts of indecency with a child by contact in cause 0747847D and two counts of indecency with a child by contact in cause 0750351D on his pleas of true to allegations that he had violated the terms and conditions of his deferred adjudication community supervision. The trial court sentenced Russell to fifteen years’ confinement in each cause. In a single issue, Russell argues that his fifteen-year sentences violate the Eighth Amendment‘s prohibition against grossly disproportionate sentences.¹ We will affirm.

This court stated the following in

Kim v. State:

It is axiomatic that errors that are asserted on the part of the trial court must generally be brought to the trial court‘s attention in order to afford the trial court an opportunity to correct the error, if any. To preserve for appellate review a complaint that a sentence is grossly disproportionate, constituting cruel and unusual punishment, a defendant must present to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired.

Kim‘s complaint about the alleged disproportionality of his sentence was not raised at the time it was imposed or in a motion for new trial. Therefore, he preserved nothing for our review.

283 S.W.3d 473, 475 (Tex. App.-Fort Worth 2009, pet. ref‘d) (citations omitted).

Similarly, here, Russell did not assert any objection when the trial court sentenced him to fifteen years’ confinement in each cause, nor did he file a motion for new trial in either cause raising the disproportionality argument that he asserts now in this appeal. Consequently, Russell failed to preserve this issue for appellate review.² See

id.; (holding that appellant failed to preserve argument that sentence was grossly disproportionate to offense); (same); (same); (not designated for publication) (same); see also (“As a general rule, an appellant may not assert error pertaining to his sentence or punishment where he failed to object or otherwise raise such error in the trial court.“). We overrule Russell‘s sole issue and affirm the trial court‘s judgments.

DAUPHINOT, J., filed a concurring opinion.

GABRIEL, J., concurs without opinion.

LEE ANN DAUPHINOT, Justice, concurring.

For the reasons expressed in my concurrence to the majority opinion in

Laboriel-Guity v. State1 and in my concurring and dissenting opinion to the majority opinion in I cannot join the majority opinion‘s rationale here but must respectfully concur only in the result.

Notes

Indecency with a child by contact, a second-degree felony, is punishable by a term of imprisonment of not more than twenty years or less than two years. Tex. Penal Code Ann. §§ 12.33(a), 21.11(d) (Vernon Supp.2010). (Dauphinot, J., concurring).

We decline Russell‘s unsupported invitation “to treat the Eighth Amendment issues similar to those regarding ineffective assistance of counsel.” (Dauphinot, J., concurring and dissenting).

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