In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00193-CR

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TOMMY RAY YOUNG, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the 402nd Judicial District Court

Wood County, Texas

Trial Court No. 18,587-2004

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            Tommy Ray Young appeals from his conviction by the trial court for aggravated assault with a deadly weapon. Young's punishment was enhanced as a habitual offender. The trial court sentenced Young to thirty-five years' imprisonment. We dismiss Young's appeal for want of jurisdiction.

            The trial court filed a certification, in accordance with Rule 25.2(a)(2), that this case "[i]s a plea-bargain case, and the Defendant has NO right of appeal." Rule 25.2(a)(2) states, in pertinent part:

(2) . . . A defendant in a criminal case has the right of appeal under Code of Criminal Procedure article 44.02 and these rules. The trial court shall enter a certification of the defendant's right of appeal in every case in which it enters a judgment of guilt or other appealable order.

Tex. R. App. P. 25.2(a)(2). If a certification showing that the defendant has the right to appeal is not made a part of the appellate record, we must dismiss the case unless the record affirmatively indicates that an appellant may have the right to appeal. Tex. R. App. P. 25.2(d); see Greenwell v. Court of Appeals for Thirteenth Judicial Dist., 159 S.W.3d 645, 649 (Tex. Crim. App. 2005); Dears v. State, 154 S.W.3d 610, 612 (Tex. Crim. App. 2005). We have examined the clerk's record to determine whether the trial court's certification is defective. See Dears, 154 S.W.3d at 613. Nothing in the record indicates the certification is defective. This Court lacks jurisdiction over this appeal.

            On December 28, 2005, we informed Young, by letter, of this apparent defect in our jurisdiction and informed him that, if he did not show us how we have jurisdiction, within ten days of the letter, his appeal would be subject to dismissal for want of jurisdiction. Young has now requested an extension of thirty days to file a response to our letter. The motion for extension contains no explanation of the need for an extension. We overrule Young's motion for extension.

            We dismiss the appeal for want of jurisdiction.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          January 11, 2006

Date Decided:             January 12, 2006

Do Not Publish

punitive damages, requiring a nonsettling party to prove the agreement's allocation before receiving a settlement credit not only unfairly penalizes the nonsettling party but also allows settling parties to abrogate the one satisfaction rule).

In the underlying case here, Texas Capital and Ballow were held jointly and severally liable for $398,904.38 in actual damages, and that sum was to bear interest at the rate of ten percent per annum from the date of the judgment until paid. After the judgment was entered, Ballow settled with Sandefer, agreeing to pay the principal sum of $2,600,000.00, and Texas Capital presented this settlement agreement to the trial court. ⁽²⁾ Further, J. D. Sandefer stated in his affidavit that, at the time this proceeding reached the trial court, Ballow had paid $1,123,763.23 of the $2.6 million settlement. The settlement agreement, however, did not allocate between the actual damages for which Texas Capital and Ballow were held jointly liable and the punitive damages for which Ballow was held personally liable. As a result, Texas Capital is entitled to a settlement credit not to exceed $398,904.38, plus postjudgment interest, which represents the actual damages for which Texas Capital and Ballow were held jointly and severally liable. See Mobil Oil Corp. v. Ellender, 968 S.W.2d at 927-28; Crown Life Ins. Co. v. Casteel, 22 S.W.3d at 391-92 (nonsettling defendant is entitled to offset any liability for joint and several damages).

For the reasons stated, we reverse and render judgment as set out above. Texas Capital remains liable to Sandefer for the amount of damages for which it was held solely liable.

William J. Cornelius *

Justice

*Chief Justice, Retired, Sitting By Assignment

Date Submitted: June 26, 2003

Date Decided: June 27, 2003

1. Further, even if Chapter 33 were applicable, it does not preclude a settlement credit merely because settlement was effectuated after the case was submitted to the jury. Under the provisions set forth therein, a codefendant who settles after the case has been submitted to the jury is no longer considered a settling person. Tex. Civ. Prac. & Rem. Code Ann. 33.011(5) (Vernon 1997). However, this merely affects the manner in which a settlement credit is administered. If a party settles post-submission, the nonsettling defendant is entitled to a credit based on Section 33.013, as opposed to the formula provided in Sections 33.012 and 33.014 for presubmission settlements. Tex. Civ. Prac. & Rem. Code Ann. 33.012-.014 (Vernon 1997); Knowlton v. United States Brass Corp., 864 S.W.2d 585, 596-98 (Tex. App.-Houston [1st Dist.] 1993), aff'd in part and rev'd in part on other grounds, 919 S.W.2d 644 (Tex. 1996).

2. Ballow was also held personally liable for an additional $8,000,000.00 in punitive damages.