IN THE

TENTH COURT OF APPEALS

No. 10-01-366-CV

     MARILYN HEISTER,

                                                                              Appellant

     v.

     WESTERN SHAMROCK D/B/A

     WESTERN FINANCE AND JIMMY GAMESON,

                                                                              Appellees

From the 19th District Court

McLennan County, Texas

Trial Court # 99-3708-1

                                                                                                                

MEMORANDUM OPINION

                                                                                                                

      Marilyn Heister sued Western Shamrock Corporation and Jimmy Gameson. Both defendants filed answers. Shamrock moved for summary judgment. Summary judgment was granted. We dismissed an earlier appeal because the judgment was not final. Heister v. Western Shamrock Corp., 50 S.W.3d 643 (Tex. App.—Waco 2001, no pet.). The earlier judgment did not address the claims against Gameson. After we dismissed the appeal, Gameson moved for summary judgment. The hearing on the summary judgment motion was set on the same date that the cause was set, on Heister’s request, for a non-jury trial.

      At the trial, Heister appeared by telephone but presented no evidence. Finding that Heister offered no evidence at the non-jury trial, the trial court rendered judgment that Heister take nothing from Gameson. The trial court’s judgment disposed of all remaining issues as to all remaining parties. It was therefore a final judgment for purposes of appeal. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-04 (Tex. 2001); Lucas v. Burleson Publ. Co., 39 S.W.3d 693, 695 (Tex. App.— Waco 2001, no pet.). Now, in two issues, Heister complains of the summary judgment in favor of the defendants.

Judgment in Favor of Shamrock

      Shamrock moved for summary judgment on three distinct grounds: (1) Heister’s claims are barred by the applicable statute of limitations; (2) Heister failed to satisfy the statutory requirements as set out in the Texas Commission on Human Rights Act; and (3) Heister’s claims are barred by the Workers’ Compensation Act. The trial court’s judgment granting Shamrock’s summary judgment motion did not specify on which ground in the motion it relied. "When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion." Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

      Heister appeals the trial court’s decision to grant summary judgment only based on grounds one and three. She does not attack the trial court’s decision to grant summary judgment based on ground two. Having no complaint from Heister with the trial court’s decision based on the second ground, we must affirm the summary judgment in favor of Shamrock.

Judgment in Favor of Gameson

      As noted above, the judgment in favor of Gameson was granted on the basis of a non-jury trial, not a motion for summary judgment. Heister’s issues only complain about the basis for granting the motions for summary judgment. Heister brings no issue complaining about the judgment on the non-jury trial in favor of Gameson. Therefore, we affirm the trial court’s judgment that Heister take nothing from Gameson.

 

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Affirmed

Opinion delivered and filed June 18, 2003

[CV06]

e of Pepto-Bismol he had been drinking from.

  Westerman also produced several statements from individuals, dated after the trial, that he had talked to about coming to court to testify for him.  Westerman testified that he mentioned these individuals to his attorney before trial, but his attorney told him the less people they had, the better.

          Westerman’s attorney testified that Westerman had told several different stories concerning the incident: that he was eating a hot dog, that he was taking a “nature pee,” and that he had an upset stomach.  The last explanation of an upset stomach was the one provided to him shortly before trial, but he could not remember whether this was the day of trial, or within two weeks of trial.  The attorney acknowledged that he knew of Hendricks as a witness, but viewed her testimony as collateral because at the time his trial strategy concerned the “nature pee” which did not encompass a credibility issue.  He also testified that he was aware of the other character witnesses, but explained that calling them would be “suicide” because he did not know which version of Westerman’s story they were told.  Yet, he never interviewed these witnesses to discover what they knew about the incident and what their testimony would be.  He only called Westerman because he looked “credible.”

          An attorney has a duty to make an independent investigation of the facts supporting the defense.  Butler v. State, 716 S.W.2d 48, 54 (Tex. Crim. App. 1986).  This includes the responsibility to seek out and interview potential witnesses.  Id.; Freeman, 2005 Tex. App. LEXIS 3093 at **4-5; State v. Thomas, 768 S.W.2d 335, 336-37 (Tex. App.—Houston [14th Dist.] 1989, no pet.).  Also, an attorney has a professional duty to present all available testimony in support of the client’s defense.  Thomas, 768 S.W.2d 335, 336-37.  Westerman testified that Hendricks was available for trial, and Hendricks’s statement indicates her testimony would have been helpful.  Therefore, we find that trial counsel was deficient in failing to conduct a proper investigation of the trial and interview potential witnesses.  Freeman, 2005 Tex. App. LEXIS 3093 at **4-5 (finding trial counsel deficient for failing to conduct an adequate pre-trial investigation); In re I.R., 124 S.W.3d 294, 299 (Tex. App.—El Paso 2003, no pet.) (finding trial counsel deficient for failing to interview potential witnesses).

          The failure to interview or call a witness will constitute prejudice against the defendant if “it results in the failure to advance a viable defense.”  In re I.R., 124 S.W.3d at 300; Butler, 716 S.W.2d at 56.  Three people testified at Westerman’s trial: Reyna, a police officer, and Westerman.  The officer could neither confirm nor deny the indecent exposure, therefore the outcome of the trial balanced upon the credibility of Reyna and Westerman.  The State noted more than once that Hendricks had not been called to testify for Westerman.

          According to her statement, Hendricks would have corroborated significant parts of Westerman’s version of the events.  Given that the trial hinged on credibility, and that the State emphasized that no one was there to corroborate Westerman’s testimony, we cannot say that had Hendricks been interviewed and called to testify at trial the outcome of the trial would not have been different.  Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.  Therefore, we conclude that there is a reasonable probability, a probability sufficient to undermine our confidence in the outcome, that the results of Westerman’s trial would have been different if Westerman’s counsel had interviewed and called Hendricks.  See In re I.R., 124 S.W.3d at 302 (finding ineffective assistance of counsel when a key corroborating witness was not interviewed or called); see also Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Thompson, 9 S.W.3d at 812.  Accordingly, we find that the trial court abused its discretion when it denied Westerman’s motion for new trial.  See Charles, 146 S.W.3d at 208.  We sustain Westerman’s third issue.

Conclusion

          We note that the evidence is legally sufficient, and we do not reach the factual sufficiency question.  Having sustained Westerman’s third issue, we reverse the judgment of the trial court and remand for a new trial.

 

                                                                   FELIPE REYNA

                                                                   Justice

 

Before Justice Vance, and

          Justice Reyna

Reversed and remanded

Opinion delivered and filed June 22, 2005

Do not publish

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