*1 Property argue that this rule does not
apply WOOD, they Appellant, Peter R. making a claim penalties statutes, usury under the merely are raising a defense that the con- Texas, STATE of tract was usurious and that therefore no interest is owed. “Texas law No. 01-06-00321-CR. does not permit guarantor escape Court of obligation by asserting a usury defense (1st Dist.). based on a usurious principal obligation.” Ginsberg 1985 P’ship Real Estate v. Cadle Co., (5th Cir.1994). 39 F.3d A
usury personal defense is to the debtor not be guarantor asserted guaranty
unless the agreement also con-
tains the provision, usurious which has not
been argued present id.; in the case. See Heaner,
Houston Sash & Door v.Co. (Tex.1979). result, aAs
Barfield and Western Property, guaran-
tors, lack standing to assert the counter-
claim for usury.8
CONCLUSION
Because we have determined that
trial court did not err in granting sum-
mary judgment, the trial court’s granting
order summary judgment. The
award attorney’s fees favor of & KS
is reversed and remanded for a determina-
tion of appropriate amount of the
award after fees in correcting incurred
alleged usury segregated violations are
from the fees incurred in pursuing S & K’s
recoverable claim. 8. Because we affirm ffie trial court’s sum- Property that Barfield and Western lack mary judgment standing pursue favor of S & K on the the counterclaim does not usury, counterclaim for disposition appeal. determination affect the of this *2 (driving while intoxicat-
while intoxicated
ed),
for the
by prior
enhanced
same
offense.
Ann.
Penal
Tex.
Code
49.09(a) (Vernon
(Vernon 2003), §
§ 49.04
punish-
The
Supp.2007).
jury assessed
$4,000.00
jail
ment at six months
fine,
county
The
is misdemeanor.
which
appellant’s sen-
suspended
court at law
community super-
him
placed
tence and
on
months,
days
including
vision for
jail.
confinement
initially pulled over for
Appellant was
police
The
officer testified
speeding.
stagger
the rear
saw
appellant’s vehicle and
The office conducted
smelled of alcohol.
ap-
sobriety
field
tests and concluded
“highly
Appel-
intoxicated.”
pellant was
lant refused a breath test
be-
consuming two beers.
encounter
officer
video-
tween
and the
Bass,
TX,
Ray
Georgetown,
for Appel-
jury during the
taped and shown to the
lant.
trial.
guilt-innocence
Ballard,
County
Patrick Scott
Assistant
Brenham, TX,
Attorney,
challenge
facts
offense.
related
NUCHIA,
Panel consists of Justices
his trial
his sole
of error he contends
KEYES, and HIGLEY.
by
counsel rendered ineffective
introduce
allowing the State to
OPINION ON PETITION FOR
appellant’s prior driving-while-intoxicated
DISCRETIONARY
phase.1
guilt-innocence
offense
REVIEW
Tex.Code Proc. Ann.
NUCHIA,
SAM
Justice.
(“When
36.01(a)(1) (Vernon 2007)
Wood,
R.
Appellant, Peter
has filed a
of en
alleged
purposes
convictions are
petition of
review. Pursuant
jurisdictional,
hancement
Texas Rule of
informa
portion
the indictment or
April
opinion
we withdraw
be
reciting
such
shall not
convictions
judgment and substitute this modified
on
read until the
judgment.
opinion
37.07.”);
in Article
see
provided
held as
Wilson
Appellant was convicted
(holding
former
(Tex.Crim.App.1989)
public place
a motor
in a
operating
vehicle
jurisdiction in
necessary to establish
tions are
1. This
not a situation in which
felony grade criminal
phase may
court for a
guilt-innocence
be informed of
district
See, e.g.,
driving
Martin v.
the existence of
convictions
while intoxicated because the
convic-
1(f)2
might
Revised Statutes article
does
action
challenged
be considered
67011—
create
separate
driving
strategy.”
sound trial
Gamble
causing
intoxicated and
while
serious bodi
(Tex.App.-Houston [1st
injury:
driving
ly
offense is for
while in
pet.).
Assertions of
*3
toxicated,
punishment
and
that
firmly
tive
of
assistance
counsel must be
is enhanced because
caused ser
defendant
State,
founded in the record. Bone v.
77
State,
bodily injury);
ious
Will v.
794
828, 835 (Tex.Crim.App.2002).
S.W.3d
We
948,
(Tex.App.-Houston
S.W.2d
952-53
[1st will
to find trial
inef
speculate
not
counsel
ref'd).
1990, pet.
Appellant filed a
Dist.]
the record
coun
fective when
is silent on
motion
new
trial court set
the
reasoning
strategy.
sel’s
or
See
hearing,
a
but the record does not reflect
State,
616,
v.
29
624
Henderson
S.W.3d
was held.
2000, pet.
(Tex.App.-Houston [1st Dist.]
Gamble,
ref'd);
It is the burden to defendant’s guilt-innocence phase violated Code prove ineffective assistance of counsel 36.01(a)(1), Id. A Criminal article preponderance the evidence. prevent presump must overcome the statute enacted extreme “[defendant circumstances, prejudice inevitably under that almost results 17, 1985, R.S., (f), (Revised May Leg., ch. article 67011-1 since 2. Act 69th Statutes pealed). § 1985 Tex. Gen. Laws Frausto, at the 642 S.W.2d at DWI was admissible that situation. See 86.01(a)(1)of Texas article argues, under agree, and because guilt Code of Criminal Procedure1 at trial not appellant’s punishment was overwhelming. Appellant initially believe premature introduction of by the although over affected pulled speeding, sobriety tests, the evidence failed field refused breath has test, beers, not shown consuming two of his trial would have been the result videotape arrest reveal different but his counsel’s signs obvious of intoxication. Given the evidence, he has satisfied the second totality of possible it is not *4 prong of Strickland predict what the as fact finder would have done S.Ct. prejudicial admis- without prior 80 L.Ed.2d sion conviction. We therefore that appellant hold has met his burden to I trial coun- appellant’s show failing sel was not ineffective for appellant’s but for the admission of of evidence of State’s introduction prior proceed- result conviction DWI ings would have been different. I guilt-innocence phase. appellant’s We hold that of the trial court. judgment appellant’s ineffective and sustain judgment
error. reverse
trial court remand for further the case
proceedings pursuant to Code of Criminal 44.29(a).
Procedure article Tex.Code Crim. (Vernon 2007). 44.29(a)
Proc. Ann.
Appellant’s petition pursuant view is to Texas Rule dismissed Emperor Jianguang Yellow WANG and Procedure 50. Communications, Houston Inc. D/B/A Press, Appellants, Chinese KEYES, dissenting. Justice KEYES, Justice, EVELYN V. TANG, Appellee. David dissenting. No. 01-08-00009-CV. respectfully with the dissent. majority of appel- introduction Court guilt-inno- lant’s conviction at the Dist.). (1st trial was appellant’s cence find the evidence of I would overwhelming and appellant’s guilt was beyond could have found doubt, on the basis of the evi-
reasonable
dence adduced at intoxicated,
driving while without consider-
ation of the conviction. appellant’s (Vernon 2007).
1. Tex.Code Ann. art. Proc.