author: HOLLY M. KIRBY, J.,

text:
    CERTAIN UNDERWRITERS AT LLOYDS, LONDON v. Ted M. WINESTONE; J.B. McDonald & Co.; Leonard E. Franklin; and Guaranty National Insurance Company. Ted M. Winestone and J.B. McDonald & Co., V. Regions Mortgage, Inc., George Holley Insurance Agency, Inc. and Al Hollingsworth.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    Nov. 16, 2004 Session.
    July 13, 2005.
    Permission to Appeal Denied by Supreme Court Aug. 23, 2005.

      Allan B. Thorp, Memphis, for plaintiff/appellant, Certain Underwriters at Lloyds, London.
    Eugene G. Douglass, Bartlett, and Alvin A. Gordon, Memphis, for defendant/counter-plaintiff and third party plaintiff/appel-lee Ted M. Winestone and J.B. McDonald & Co.
    Michael B. Neal, Memphis, for appellee Guaranty National Insurance Company.
   OPINION

HOLLY M. KIRBY, J.,

delivered the opinion of the Court, in which

W. FRANK CRAWFORD, P.J., W.S., and ALAN E. HIGHERS, J., joined.

This is a casualty insurance case. A bank had a mortgage on residential property. The homeowner stopped making payments on the mortgage, abandoned the property, and allowed the homeowner’s insurance coverage on the property to lapse. The bank, in order to protect its interest in the property, purchased insurance coverage on behalf of the homeowner. The bank later sold the mortgage to a third party and cancelled the insurance coverage. The new mortgagee purchased insurance coverage for the property. Shortly thereafter, the property burned, resulting in a total loss. The new mortgagee’s insurance company filed the instant lawsuit, asking for a declaratory judgment that the prior insurance policy was still effect at the time of the fire. The trial court held that the prior policy was not in effect at the time of the fire. The new insurance company appealed, arguing that, in the course of the purchase, the prior insurance coverage had transferred to the new mortgagee as assignee of the prior mortgage holder, and that the bank’s cancellation of the prior insurance policy was ineffective. We affirm, finding that the prior insurance coverage was not transferred to the new mortgage holder and that the prior insurance policy was not in effect at the time of the fire.

In July 1993, Leonard Franklin (“Franklin”) purchased a house and lot located in Memphis, Tennessee. In the course of the purchase, Franklin executed a deed of trust and a promissory note in the amount of $400,000 to Regions Mortgage, Inc. (“Regions Mortgage”), located in Birmingham, Alabama. The deed of trust required Franklin to maintain casualty insurance to protect against fire loss to the property. Franklin purchased a policy with State Auto Insurance Company.

During the summer of 1999, Franklin became delinquent on his mortgage payments. In December 1999, Regions Mortgage inspected the property and learned that it was vacant and not listed for sale. After contacting State Auto Insurance Company, Regions Mortgage learned that Franklin’s policy had been cancelled on September 22,1999.

At that time, Regions Mortgage had a master policy issued by Guaranty National Insurance Corporation (“Guaranty National”) that provided “forced place” insurance to Regions Mortgage on behalf of Region Mortgage’s customers who could not or did not properly insure property for which Regions Mortgage was mortgagee. Ca-son Financial, Inc. (“Cason”) was the insurance agent for the Guaranty National policy, and it was administered by Overby-Seawell Company (“Overby-Seawell”). On February 8, 2000, Guaranty National issued a certificate of coverage regarding the Franklin property. On the “Declarations” page, Franklin was listed as the insured mortgagor and Regions Mortgage, Inc., Its Successors and/or Assigns was listed as the insured mortgagee. The coverage was issued for one year and was made retroactively effective from September 22, 1999, the date that Franklin’s coverage through State Auto Insurance Company lapsed. Regions Mortgage paid a full year premium on this policy of $3,696.95. Under the terms of the policy, Regions Mortgage had the right to cancel coverage retroactively. The policy stated:

The first Named Insured shown in the Declarations may cancel this policy by mailing or delivering to us advance written notice of cancellation. You may also cancel coverage on any Mortgagor’s Certificate of Insurance which has been issued by notifying us of the desired effective date of cancellation, but not prior to the effective date of mortgagor provided insurance which meets the requirements of your loan agreement, and no more than 60 days prior to the date of notification to us, without approval of the company, (emphasis added)

Additionally, the Declarations page stated “this coverage is not transferable without written permission by endorsement hereon by [Guaranty National].”

By January 2000, Regions Mortgage determined that Franklin would not cure the default status of his mortgage. Regions Mortgage referred the matter to Stanley Weir (“Weir”) of Regions Financial Corp. (“Regions Financial”) to determine the appropriate action, which could include foreclosure. Regions Financial determined that Regions Mortgage should simply sell the mortgage and the deed securing it. As a result, Regions Mortgage began negotiating to sell the mortgage to J.B. McDonald & Co. (“McDonald”), a corporation fully owned by Ted Winestone (“Wine-stone”). The deed of trust was to be assigned to McDonald, who would in turn assign the mortgage and deed of trust to Winestone.

On March 21, 2000, in anticipation of purchasing the mortgage on the Franklin property, Winestone wrote checks to George Holley Insurance Company (“Holley Insurance”) for the purpose of obtaining a casualty insurance policy on the Franklin property. Winestone alleged that he requested a mortgagee’s policy from Holley Insurance. Holley Insurance purchased insurance on Winestone’s behalf from Certain Underwriters at Lloyd’s, London (“Lloyd’s”). The Lloyd’s policy had an “other insurance provision” that allowed Lloyd’s to offset any losses against certain other insurance coverage. The provision read:

If there is other insurance covering the same loss or damage, other than described in No. 1 above, we will pay only for the amount of covered loss or damage in excess of the amount due from that other insurance, whether you can collect on it or not. But we will not pay more than the applicable limit of coverage.

The new Lloyd’s insurance policy was to become effective on March 21, 2000.

The closing on the sale of the mortgage from Regions Mortgage to McDonald (owned by Winestone) was scheduled for March 17, 2000. Immediately prior to the closing, Weir, with Regions Financial, sent Winestone a letter dated March 17, 2000, that stated: “As we discussed, once we have received recordation confirmation of the Assignment, we will cancel the forced place insurance coverage on the property. As I am sure you are aware, the insurance only covers Regions [Mortgage] for any loss that may occur.”

The closing on the transfer of the mortgage from Regions Mortgage to McDonald and Winestone took place on March 17, 2000. At that time, the balance owed to Regions Mortgage was approximately $890,000. Winestone paid Regions Mortgage $345,000 in exchange for the mortgage and the deed of trust.

After the closing, on March 20, 2000, Regions Mortgage directed its accounting department to write off the balance owed on the Franklin property. Consequently, the Franklin account was noted on the books of Regions Mortgage as “paid-off.”

Thereafter, in March 2000, Regions Mortgage, by electronic transmission, contacted the administrator of the Guaranty National policy, Overby-Seawell, requesting cancellation of the policy covering the Franklin property. The transmission included the notation, ‘WAIVE-paid-off.” It was entered on Overby-Seawell’s system on 3/28/00, to be retroactively effective on 3/22/00. Overby-Seawell viewed this electronic transmission, with the WAIVE-paid-off’ notation, as notice to cancel the insurance coverage on the Franklin property. However, for reasons not clear in the record, the Guaranty National policy was not actually cancelled at that time. In the meantime, in late March 2000, Wine-stone began foreclosure proceedings on the Franklin property.

On April 1, 2000, the Franklin property was totally destroyed by fire. Several days later, Winestone received a copy of the insurance policy from Lloyd’s and discovered that the policy that had been issued was an owner’s policy rather than a mortgagee’s policy. On April 6, 2000, Winestone gave notice to Lloyd’s that the Franklin property had burned. On April 18, 2000, Winestone foreclosed on the property; Winestone and his wife purchased the property at the foreclosure sale.

On May 15, 2000, Overby-Seawall, administrator for the Guaranty National policy, received an additional notification of cancellation on the Franklin policy from Regions Mortgage. This notification from Regions Mortgage, a cancellation log sheet, requested a retroactive cancellation date for the Guaranty National policy of 3/22/2000. The coverage under the Guaranty National insurance policy was then finally cancelled on the Overby-Seawall system on May 15, 2000, and the cancellation was made retroactively effective as of March 22, 2000. Based on a cancellation date of March 22, 2000, Overby-Seawall calculated the amount of unused premium to be $1,854.65. This amount was refunded to Regions Mortgage, which applied it to Franklin’s outstanding balance. Thus, Regions Mortgage’s forced place insurance coverage with Guaranty National terminated with an effective date shortly after Regions Mortgage sold its interest in the property. Franklin was not notified of the cancellation of the Guaranty National policy.

On November 3, 2000, Lloyd’s filed a Complaint for Declaratory Judgment (“Complaint”) naming Winestone, McDonald, Franklin, and Guaranty National as defendants. The lawsuit asked the trial court to determine Lloyd’s duties and responsibilities under the policy. In the complaint, Lloyd’s asserted that the casualty insurance policy issued by Guaranty National was in full force and effect at the time the Franklin property burned, making the “other insurance” provision of the Lloyd’s policy applicable.

In December 2000, in its answer to the complaint, Guaranty National asserted that its policy did not cover the loss of the Franklin property because Regions Mortgage cancelled the policy on March 22, 2000, before the loss on the Franklin property occurred. Guaranty National also asserted that it was not liable under the policy because, at the time of the loss, its insured, Regions Mortgage, no longer had an insurable interest in that property. Later, after the parties engaged in discovery, Guaranty National filed a motion for summary judgment, asserting that the dispute in this case was between Lloyd’s and Winestone regarding the loss of the Franklin property and that Guaranty National was not involved. Guaranty National maintained that no party had made a claim against it and no party had a right to make a claim against it. As a result, Guaranty National sought to be dismissed from the action.

In response to Lloyd’s lawsuit, Wine-stone and McDonald filed a third-party complaint against Regions Mortgage, alleging, inter alia, that if Regions Mortgage failed to cancel its forced place insurance coverage, thereby enabling Lloyd’s to invoke the “other insurance” clause in the Lloyd’s policy, then Regions Mortgage was liable to Winestone for negligence. The third-party complaint also included a claim against Holley Insurance, asserting that if the Lloyd’s policy was held invalid because it was an owner’s policy rather than an mortgagee’s policy as requested by Wine-stone, then Holley Insurance was liable for negligence for not procuring the proper type of insurance. The response by Wine-stone and McDonald included a counterclaim as well, asking the trial court to find that the Lloyd’s policy provided coverage for the loss incurred at the Franklin property.

On January 17, 2003, Lloyd’s filed a motion for partial summary judgment against Guaranty National, asserting that Guaranty National’s policy was never effectively cancelled. Lloyd’s asked the court to declare that Guaranty National’s casualty insurance policy was in full force and effect on April 1, 2000, the date of the fire loss on the Franklin property. On July 8, 2003, Lloyd’s moved to amend its complaint, seeking to clarify that it had a claim against Guaranty National. Lloyd’s asserted that it was entitled to contribution or indemnification from Guaranty National as a result of the Guaranty National policy. Lloyd’s also sought partial summary judgment based on Winestone’s purchase of the property at foreclosure, asserting that, by personally purchasing the Franklin property at foreclosure, Wine-stone partially extinguished the outstanding debt remaining on the promissory note, thus reducing any amount owed by Lloyd’s to Winestone as mortgagee.

In September 2003, Guaranty National filed a motion to dismiss and for summary judgment, asserting that Lloyd’s was time-barred. In the motion, Guaranty National stated that any claim against it arising from the fire loss on the Franklin property should have been filed within two years of the loss, as required by its policy. As a result, Guaranty National asserted that the Lloyd’s claim was barred by the time limit in its policy. In addition, Guaranty National reiterated its argument that Regions Mortgage had no insurable interest in the property at the time of the loss and thus Guaranty National was not responsible for the loss. Guaranty National also argued that Lloyd’s “other insurance” provision was not applicable. Guaranty National noted that, if an insurer seeks to offset its losses through an “other insurance” provision, the other insurance must cover the “same loss” or “same damage.” In this case, Guaranty National maintained, the “same loss” would refer to a loss suffered by Winestone and insured by Lloyd’s. Guaranty National then argued that claims for indemnification through the “other insurance” clause should be limited to policies owned by Winestone. Guaranty National noted that Winestone was not an insured under the Guaranty National policy and thus the Guaranty National policy was not “other insurance” under the provisions of the Lloyd’s policy.

The trial court allowed Lloyd’s to amend its complaint to assert a claim against Guaranty National. It went on, however, to grant Guaranty National’s motion for summary judgment and motion to dismiss. The trial court found:

1.) that as of April 1, 2000 Regions Mortgage had no insurable interest in the Leonard Franklin property, 2.) that the insurance afforded with respect to the property of Leonard Franklin by Guaranty National was not in effect as of April 1, 2000, 3.) that Guaranty National provided no insurance with respect to the loss allegedly suffered by Ted Winestone on April 1, 2000 and 4.) that the interests insured by the [Lloyd’s] policy were different from the interest insured by the Guaranty National policy and therefore the Guaranty National policy would afford no insurance coverage to Ted Winestone and 5.) the Guaranty National policy is not “other insurance” within the meaning of the “other insurance” clause of the [Lloyd’s] policy.

Based on these findings, the trial court denied Lloyd’s request for a declaration that the Guaranty National policy was in effect as of the date of the fire loss, and granted Guaranty National’s motion for summary judgment and to dismiss. Pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure, the judgment entered in favor of Guaranty National and Franklin was made final. The trial court noted that the action remained pending as to all other claims. From this order, Lloyd’s now appeals.

On appeal, Lloyd’s argues that the trial court erred in granting summary judgment to Guaranty National because Winestone had been assigned the Guaranty National policy and because the policy had never been effectively cancelled. Lloyd’s also asserts that the amended complaint was not barred by the two year limitation period noted in the Guaranty National policy because the second complaint did not allege new facts; rather, it alleged a more specific prayer for relief.

A motion for summary judgment should be granted only when the movant demonstrates that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04. Summary judgment is appropriate only when the facts and the legal conclusions drawn from the facts reasonably permit only one conclusion. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Since only questions of law are involved, there is no presumption of correctness regarding a trial court’s grant of summary judgment. Bain v. Wells, 936 S.W.2d 618, 622 (Tenn.1997). Therefore, our review of the trial court’s grant of summary judgment is de novo on the record before this Court. Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn.1997).

On appeal, Lloyd’s first argues that Winestone was an assignee of Regions Mortgage and was therefore covered by the Guaranty National policy. Lloyd’s notes that the Declarations page in the Guaranty National policy named the mortgage holder (Regions Mortgage) and its assigns as the insured. Lloyd’s then asserts that Winestone is such an assignee under the terms of the Guaranty National policy. However, the Declarations page of the Guaranty National Policy clearly states that coverage is not transferrable without written permission. An insurance company may refuse to honor an assignment made without its permission. Hobbs v. Memphis Ins. Co., 33 Tenn. 444 (1853); Quarles v. Clayton, 87 Tenn. 308, 10 S.W. 505, 507 (1889); Mutual Protection Ins. Co. v. Hamilton & Gorham, 37 Tenn. 269 (1857). The record contains no indication that Guaranty National agreed to the assignment of its policy to either McDonald or Winestone. This argument must be rejected.

Lloyd’s also argues that Guaranty could not retroactively cancel its coverage through an internal computer entry and without written notice. Lloyd then cites a portion of the Guaranty policy that states: Cancellation:

b. We may cancel this policy or any Mortgagor’s Certificate of Insurance by mailing or delivering to the first Named Insured written notice of cancellation at least:
(1) 10 days before the effective date of cancellation if we cancel for nonpayment of premium; or
(2) 30 days before the effective date of cancellation if we cancel for any other reason
c. Other Termination Provision
(1) We will also mail or deliver to any mortgage holder, pledgee or other person shown in this policy to have an interest in any loss which may occur under this policy or any Mortgagor’s Certificate of Insurance, at their last mailing address known to us, written notice of cancellation, prior to the effective date of cancellation. Our notice will be the same as that mailed or delivered to the first Named Insured, (emphasis in original.)

Lloyd’s then cites Jefferson Ins. Co. v. Curle, 771 S.W.2d 424, 425-26 (Tenn.Ct.App.1989) for the proposition that, for cancellation of an insurance policy to be effective, Tennessee courts require an insurer to strictly comply with its own cancellation policy. Based on this theory, Lloyd’s asserts that Guaranty National’s failure to follow the notice provisions in the cancellation policy shown above resulted in the Guaranty National policy remaining in effect. The principle noted in Jefferson, however, is inapplicable. Certainly, when cancellation of insurance coverage is instigated by the insurer, strict compliance with the notice requirements is necessary to allow the insured to obtain other coverage. Id. at 426. However, in the instant case, as in Jefferson, cancellation of the policy was sought by the insured, Regions Mortgage; notice to Regions Mortgage would not be necessary for effective cancellation. Lloyd’s, of course, was not a named insured, nor was it an assignee under the policy, as noted above. As such, it was not entitled to any notice pursuant to the policy provisions cited above.

Moreover, the policy language cited above clearly permits Regions Mortgage to cancel the policy retroactively, so long as the notification to Guaranty National was within 60 days of the requested cancellation date. Whether Regions Mortgage’s cancellation was made on 3/28/2000, by electronic transmission, or by the written cancellation on 5/15/2000, the cancellation was still within the 60-day time limit to retroactively cancel the policy effective 3/22/2000. Under all of these circumstances, we find no error in the trial court’s conclusion that the Guaranty National policy on the Franklin property was not in effect on the date of the fire loss, 4/1/2000.

Lloyd’s final argument on appeal is that the trial court erred in granting Guaranty National’s motion to dismiss the amended complaint, which more clearly asserted their request for contribution or indemnification. However, our holding above that Winestone and/or McDonald were not valid assignees of the policy and that the policy was effectively cancelled before the fire loss occurred, pretermits Lloyd’s final argument, since a specific request for contribution and indemnification would not affect the outcome of this appeal.

The decision of the trial court is affirmed. Costs of this appeal are taxed to the appellant, Certain Underwriters at Lloyd’s, London, and its surety, for which execution may issue, if necessary.

      . "Forced place” insurance is a policy purchased by a mortgagee (i.e. Regions Mortgage) on behalf of a mortgagor (i.e. Franklin) when the mortgagor's policy lapses for whatever reason. This term is sometimes shown as "force placed” or "forced-place.” We used the term "forced place” because it appeared to be the most prevalent.

      . The appellate record does not include a response from Franklin.


source: Caselaw Access Project

author: COCHRAN, J.,

license: Public Domain

text:
    Ex parte Anwar Iquill CHANDLER, Applicant.
    No. WR-60942-01.
    Court of Criminal Appeals of Texas.
    April 13, 2005.

      Randy Shaffer, Houston, for Appellant.
    Baldwin Chin, Asst. Dist. Atty., Houston, Matthew Paul, State’s Atty., Austin, for the State.
   ORDER

COCHRAN, J.,

delivered the Order of

the Court, joined by

KELLER, P.J., MEYERS, PRICE, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ.

Applicant filed an application for writ of habeas corpus under Article 11.07 of the Texas Code of Criminal Procedure alleging ineffective assistance of his trial counsel and seeking relief from his conviction. Applicant was charged with the first-degree felony offense of aggravated kidnapping. A jury found him guilty as charged and sentenced him to life imprisonment. Applicant filed a direct appeal, alleging that the trial court erred by instructing the jury, during the punishment phase, to find the enhancement paragraph true based upon applicant’s plea of true. The court of appeals affirmed. Applicant filed a writ of habeas corpus alleging that his trial attorney provided constitutionally ineffective assistance because he failed to:

1) request a special issue during the punishment stage on whether applicant voluntarily released the kidnapping victim in a safe place; and
2) file a motion to quash the enhancement paragraph because applicant’s prior conviction was not “final” when he committed the primary offense.

The trial court signed Findings of Fact and Conclusions of Law and recommended that this Court deny relief. We adopt the trial court’s findings and deny relief.

I.

According to the trial court’s Findings of Fact, the evidence at trial showed that applicant and a cohort kidnapped Theddeus Prophet and his girlfriend, Roxanne Rogers, at gunpoint on August 4, 1998. The kidnappers took their two victims to Ms. Rogers’ uncle’s apartment where applicant and his cohort tortured and sexually abused Mr. Prophet, Ms. Rogers, and “other occupants” of the apartment. Afterwards, the kidnappers left, locking the door and burglar bars of the apartment from the outside. Mr. Prophet and Ms. Rogers managed to escape through a back window, climb down a tree, and find a police officer.

At the punishment phase, applicant pleaded “true” to the enhancement paragraph, which alleged that he had been convicted of possession with intent to deliver cocaine on December 18, 1996. At trial, the State introduced a pen packet which showed that applicant was sentenced for this offense on December 18, 1996, and gave notice of appeal on January 6, 1997. The pen packet also reflected that applicant’s conviction was affirmed by the court of appeals on February 26, 1998, and that the mandate was issued on August 10, 1998, six days after applicant kidnapped Mr. Prophet.

II.

To obtain habeas corpus relief for ineffective assistance of counsel under Strickland v. Washington> an applicant must show that his counsel’s performance was deficient and that there is a “reasonable probability” — one sufficient to undermine confidence in the result — that the outcome would have been different but for his counsel’s deficient performance. As the Supreme Court explained, the purpose of the constitutional requirement of effective counsel is to ensure a fair trial. Thus, “the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” It is only in that relatively rare situation that a criminal defendant may obtain a new trial based upon a claim that his attorney provided constitutionally deficient assistance.

First, a defendant must show, by a preponderance of the evidence, that counsel’s performance was constitutionally deficient — that is, counsel was not acting as “a reasonably competent attorney,” and his advice was not “within the range of competence demanded of attorneys in criminal cases.” Second, the applicant must show that this constitutionally deficient performance prejudiced his defense — that is, he must show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Under this two-pronged analytical framework, an applicant must overcome the “strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.” Moreover, our “review of defense counsel’s representation is highly deferential and presumes that counsel’s actions fell within the wide range of reasonable and professional assistance.”

As the Court in Strickland aptly noted, the practice of law is an art, not a science, “and an act or omission that is unprofessional in one case may be sound or even brilliant in another.” The existence of an adversary system itself demonstrates that

there always are lawyers who will disagree on almost any issue. Since law is not an exact science, no level of skill or excellence exists at which all differences of opinion or doubts will be removed from the minds of lawyers and judges.

Thus, when a legal proposition or a strategic course of conduct is one on which reasonable lawyers could disagree, “an error that occurs despite the lawyer’s informed judgment should not be gauged by hindsight or second-guessed.”

A. Counsel was not ineffective for failing to request a jury instruction on “voluntary release in a safe place.”

In this case, applicant alleges that his trial counsel provided constitutionally deficient legal representation because he did not request a jury instruction during the punishment stage on whether he had voluntarily released Mr. Prophet in a safe place. Applicant’s trial counsel provided an affidavit stating:

Based upon this evidence [of how applicant committed the kidnapping] and my perception of how the jury received this evidence, I did not believe that the evidence actually supported a special issue of a, voluntary release in a safe location. Furthermore, I did not believe that it was reasonable or plausible for the jury to believe that [applicant] left the complainant and his girlfriend in a safe location. As a result, I did not request a special instruction on voluntary release.

The trial court concluded that applicant’s counsel made an informed strategic decision not to ask for an instruction on “voluntary release in a safe place” during the punishment phase.

Under section 20.04(d) of the Texas Penal Code, a defendant may, during the punishment phase, raise the issue of whether he voluntarily released his kidnap victim in a safe place. If the defendant proves that issue by a preponderance of the evidence, the punishment for the aggravated kidnapping is reduced from a first-degree felony to a felony of the second degree.

It is certainly a debatable legal proposition — at least from the Findings of Fact before us — that the evidence in this trial could support a rational finding, by a preponderance of the evidence, that applicant “voluntarily released” Mr. Prophet in a “safe” place. Applicant asserts that because he left his tortured and sexually abused victims in an apartment, that fact alone is sufficient to support the submission of a jury instruction on “voluntary release in a safe place.” He may have left his victims in an apartment, but he also locked the burglar bars from the outside, presumably to prevent their escape. Is a defendant legally entitled to an instruction on “voluntary release in a safe place” because his kidnap victims were small enough and agile enough to escape out of a second-story window and climb down a tree to seek assistance? This is, at a minimum, an issue upon which reasonably competent attorneys and judges could disagree.

A reasonably competent lawyer might well conclude that leaving kidnap victims in a locked apartment, room, or tomb is not a “release” at all. Instead, under section 20.01(1), one might conclude that those victims continue to be “restrained” because their movements are still restricted without their consent and their liberty is substantially interfered with by being confined. Texas courts have long held that a kidnap victim’s escape from captivity does not entitle a defendant to an instruction on the issue of “voluntary release in a safe place.”

Applicant relies upon a single court of appeals case, Lavarry v. State, for his assertion that leaving a kidnap victim in an apartment ipso facto constitutes “voluntary release in a safe place,” and entitles him to submission of a mitigating jury instruction. In Lavarry, however, the kidnap victim was not abandoned inside a locked apartment behind burglar bars. He was free to open the apartment door and free to depart unhindered.

A reasonably competent attorney might well conclude that there is an enormous factual and legal difference between a kidnap victim being voluntarily released inside an open apartment and one being left, after having been tortured and sexually abused, in an apartment behind locked burglar bars. The trial court in this case found that applicant’s trial attorney made a “reasonable or plausible” strategic decision not to request a jury instruction on “voluntary release in a safe place” based upon the evidence presented at trial. We cannot fault the trial court’s fact finding that this was a reasonable or “plausible,” strategic decision.

This was a reasonable decision because applicant has not shown that the trial court would have (or should have) actually submitted such an instruction had it been requested, or that the evidence was sufficient to prove, by a preponderance of the evidence, that applicant did, in fact, voluntarily release Mr. Prophet in a safe place. Applicant contends that “[t]here was no sound strategic reason not to request the special issue, which could only have benefitted applicant.” But a reasonably competent counsel need not perform a useless or futile act, such as requesting a jury instruction to which the defendant is not legally entitled or for which the defendant has not offered legally sufficient evidence to establish. Requesting a jury instruction to which one is not legally entitled, merely for the sake of making the request, is not the benchmark for a competent attorney.

B. Applicant has failed to prove, by a preponderance of the evidence, that his trial counsel was constitutionally deficient in not filing a motion to quash the enhancement paragraph.

In his second ineffective-assistance claim, applicant alleges that his counsel was constitutionally deficient by failing to file a motion to quash the enhancement paragraph because his prior felony conviction, entered on December 18, 1996, was not final at the time he committed the present offense. Although that conviction for possession of a controlled substance with intent to deliver had been affirmed by the court of appeals on February 26, 1998, the mandate of affirmance did not issue until August 10, 1998, six days after applicant committed this aggravated kidnapping. With regard to this allegation, applicant’s trial counsel stated:

Prior to trial, I investigated [applicant’s] prior felony conviction, I specifically reviewed the mandate of affirmance related to [applicant’s] direct appeal of his prior conviction in cause number 717606. Based upon that review, I believed that [applicant’s] conviction was final prior to him allegedly committing the aggravated kidnapping in cause number 790828. However, after presently reviewing the mandate of affirmance in cause number 717606, I was clearly incorrect in my earlier assessment of the finality of cause number 717606 in relation to the time of the offense in cause number 790828.

According to applicant’s trial attorney, he did investigate the prior conviction, and, based upon that investigation, he determined that it was final prior to the commission of the present offense. He now admits that he was mistaken about the legal “finality” of that conviction.

This mistake of law, however, is based upon the reasoning and result in Beal v. State, an intervening decision by this Court delivered on December 18, 2002— three years after applicant’s trial. In Beal, this Court “settle[d] the question of which date should be used in determining the finality of a prior conviction alleged in an indictment for enhancement purposes.” Texas law had previously been in conflict on this significant issue both among various courts of appeals and between different opinions from this Court. Thus, in Beal, we resolved those uncertainties and conflicts and held that a prior conviction “becomes final when the appellate court issues its mandate affirming the conviction.” We reversed the conflicting lower-court decision in Beal by the First Court of Appeals.

The First Court of Appeals, relying upon an earlier case by this Court, had held in Beal, that once the mandate of affirmance is issued, “the date to be used in determining the finality of the trial court’s judgment is the date the trial court’s judgment was signed, not the date of the appellate court’s mandate.” That is, the court of appeals reached exactly the same conclusion that applicant’s trial attorney had: a prior conviction is “final” on the date the trial court’s judgment is signed once the appellate court’s mandate is issued. And for this proposition, the First Court of Appeals relied upon its own earlier case, Caballero v. State, and that decision, in turn, relied upon numerous other earlier appellate decisions. In sum, the controlling precedent in the jurisdiction in which applicant was tried was exactly in accord with counsel’s belief.

In 1999 — the time at which applicant’s counsel made a determination concerning the finality of applicant’s prior conviction — his belief that the conviction was final was in accord with the belief of the many experienced justices on at least three different courts of appeals in Texas. A defendant will have difficulty in establishing that his counsel provided constitutionally deficient legal advice when that advice is precisely in accord with many of the justices of our state’s intermediate appellate courts. Surely, a reasonably prudent attorney in Texas is not constitutionally deficient if he relies upon pertinent judicial opinions in assessing the validity of a legal proposition.

Nevertheless, applicant faults his counsel for failing to discover and follow Jones v. State, a prior decision from this Court. The record does not show whether applicant’s counsel reviewed the Jones ease as part of his legal investigation. But Jones does not, on its face, stand for the proposition that a prior conviction is not final until the appellate court issues its mandate. As our Presiding Judge has noted, “Jones held merely that if the State’s proof of the prior conviction shows on its face that the conviction was appealed, the State must put on evidence that [the] mandate has issued.” Although reasonable attorneys and jurists might disagree about the ultimate holding and import of Jones, applicant’s trial attorney is surely not constitutionally deficient if he, like some Texas jurists, believed that Jones did not stand for the proposition that the date that a prior conviction becomes “final” for enhancement purposes is the date the mandate issues.

The various and sometimes conflicting judicial opinions set out above demonstrate the old adage that “what an attorney thinks the law is today may not be what a court decides tomorrow.” Because the law is not an exact science and it may shift over time, “the rule that an attorney is not liable for an error in judgment on an unsettled proposition of law is universally recognized” and may be traced back to Lord Mansfield’s 1767 decision in Pitt v. Yalden. Ignorance of well-defined general laws, statutes and legal propositions is not excusable and such ignorance may lead to a finding of constitutionally deficient assistance of counsel, but the specific legal proposition must be “well considered and clearly defined.”

One problem with claims of ineffective assistance of counsel is that the original lawyer’s decisions are invariably challenged in hindsight. But the standard used to judge his past conduct is all too frequently a subsequent judicial decision that has clarified or altered the law under which the attorney had to make his original determination. Those who fail to accurately predict the future course of the law are accused of having been incompetent for following the law that existed — or at least was unsettled — at the time the decision had to be made. But a bar card does not come with a crystal ball attached.

Therefore, legal advice which only later proves to be incorrect does not normally fall below the objective standard of reasonableness under Strickland, Texas courts have long upheld this basic concept of attorney competence. As we stated in Ex parte Welch, “counsel’s performance will be measured against the state of the law in effect during the time of trial and we will not find counsel ineffective where the claimed error is based upon unsettled law.” It cannot be disputed that the law concerning when a prior conviction becomes final for purposes of its use as an enhancement was unsettled at the time of applicant’s trial in 1999, because, in its 2000 Beal opinion, the First Court of Appeals reached the same legal conclusion applicant’s counsel had reached a year earlier.

Furthermore, applicant is incorrect that, even if the law had been well-settled at the time of applicant’s trial, his counsel was ineffective for failing to file a motion to quash the enhancement paragraph. On its face, there is nothing legally wrong with the enhancement paragraph allegation. It is simply that the State could not, under this Court’s 2002 opinion in Beal, offer legally sufficient proof at trial that the conviction was final before the commission of the primary offense.

Finally, even assuming that applicant’s trial counsel had an obligation to accurately foretell a clarification in the law made three years after his trial, applicant has failed to prove, by a preponderance of the evidence, that he suffered any prejudice. The range of punishment for aggravated kidnapping without an enhancement paragraph is five years to life in prison. The range of punishment for aggravated kidnapping with one prior enhancement is fifteen years to life in prison. Because applicant was sentenced to the maximum punishment — a life sentence — applicant cannot show that his plea of “true” to the enhancement paragraph was reasonably likely to cause the jury to increase his punishment. After all, evidence of the pri- or conviction would have been admissible in any event, even though, under today’s law, it would not have made the minimum punishment fifteen years. And there is no indication from the writ record that it was a reasonable probability that this jury assessed the maximum punishment based on the prior victimless drug conviction rather than on the seemingly heinous facts of the current kidnapping case. Here the jury did not focus on the minimum punishment available; it focused upon the maximum punishment which was life imprisonment with or without any enhancement paragraph.

For all of these reasons, we adopt the trial court’s Findings of Fact and Conclusions of Law, and deny relief on applicant s writ of habeas corpus.

WOMACK, J., concurred in the denial of relief.

      . Chandler v. State, 21 S.W.3d 922 (Tex.App.Houston [14th Dist.] 2000, no pet.).

      . Applicant did not include a copy of the trial testimony in the writ record so we have no way of independently verifying the accuracy of the facts set out in the trial court’s findings. It is the applicant’s obligation to provide a sufficient record that supports his factual allegations with proof by a preponderance of the evidence. See Ex parte Thomas, 906 S.W.2d 22, 24 (Tex.Crim.App.1995) ("The burden of proof in a writ of habeas corpus is on the applicant to prove by a preponderance of the evidence his factual allegations”).

      . 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Id. at 694, 104 S.Ct. 2052; Ex parte White, 160 S.W.3d 46, 49 (Tex.Crim.App.2004).

      . Id. at 686, 104 S.Ct. 2052.

      . Id. To the uninitiated, the sheer number of allegations of ineffective assistance of counsel made against this nation’s criminal-defense lawyers might well lead one to the conclusion that our law schools are entirely incapable of producing competent defense lawyers. A March 18, 2005, Westlaw search of federal and state decisions addressing ineffective assistance of counsel claims during the past fifteen months alone totals 9,467 cases (http://web2.westlaw. com/search/all cases & query "ineffective assistance of counsel” & date after 12/31/2003). According to West-law, 734 criminal cases in Texas appellate courts discussed claims of ineffective assistance of counsel during that same period. That number, however, does not include the hundreds, perhaps thousands, of ineffective-assistance claims filed in post-conviction ha-beas applications with this Court every year for which we do not write a published opinion.
      But, these ineffective-assistance claims are easy to make, and it may be a natural reaction for a criminal defendant to blame his lawyer when he is found guilty of a crime. As the Supreme Court pointedly noted in Strickland, “the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial." 466 U.S. at 689, 104 S.Ct. 2052.

      . Strickland, 466 U.S. at 687, 104 S.Ct. 2052 (internal quotations omitted); Ex parte White, 160 S.W.3d at 50-51.

      . Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

      . Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).

      . Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002).

      . Strickland, 466 U.S. at 693, 104 S.Ct.2052.

      . 3 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 18.17, at 57 (5th ed.2000).

      . Id. at 59.

      . Tex. Pen.Code § 20.04(d).

      . Id.; see generally Brown v. State, 98 S.W.3d 180, 185-86 (Tex.Crim.App.2003).

      . Applicant states that the trial evidence also showed that a third kidnap victim escaped by "squeezing through the burglar bars,” while a fourth victim testified that "someone in the apartment undid the burglar bars with a screwdriver, but the police arrived before the remaining occupants could leave.”

      . Tex. Pen.Code § 20.01(1).

      . See Brown, 98 S.W.3d at 188 (stating that "voluntary release” does not include rescue by the police or escape by the kidnap victim); Carreon v. State, 63 S.W.3d 37, 40 (Tex.App.-Texarkana 2001, pet. ref’d) (defendant not entitled to mitigation instruction when evidence showed that kidnap victims escaped from a car in which they had been confined); Hernandez v. State, 10 S.W.3d 812, 822 (Tex. App.-Beaumont 2000, no pet.) (when facts show kidnap victim "escaped” from confinement, defendant not entitled to instruction of "voluntary release in safe place” instruction). As one court of appeals explained:

        "voluntary release in a safe place,” should not be weighed from a standpoint of physical condition of a victim and that victim's ability to ultimately vacate or escape the immediate prevalence of the accused. It seems appropriate that any judgment or finding regarding “voluntary release in a safe place,” must be viewed, weighed and determined solely from the conduct of the accused and not as to possibilities within speculated grasps of the victim. Being without square-on case law guidance, we conclude that an accused, in order to avail himself of the mitigating effect of § 20.04(b), must have performed some overt and affirmative act that brings home to the victim that he/she has been fully released from captivity. That release must occur in a place and manner which realistically conveys to the victim that he/she is now freed from captivity and is now in circumstances and surroundings wherein aid is readily available.

        Wiley v. State, 820 S.W.2d 401, 411 (Tex.App.Beaumont 1991, no pet.). Locking numerous kidnap victims behind burglar bars in a second-story apartment is not normally the type of conduct that conveys to the victims that they are now "freed from captivity" and that "aid is readily available.”

      . 936 S.W.2d 690 (Tex.App.-Dallas 1996, pet. dism’d).

      . Id. at 695-99. Lavarry is further distinguishable because it was decided under the former provision which required the State to disprove the fact that a defendant voluntarily released a kidnap victim in a safe place once the defendant offered some evidence on that mitigation issue. Id. at 696 n. 1 (noting change in law).

      . See, e.g., Roberson v. State, 852 S.W.2d 508, 511 (Tex.Crim.App.1993) (counsel not in-effective for failing to secure rulings on pretrial motions without showing that rulings would have changed outcome of case); Mooney v. State, 817 S.W.2d 693, 698 (Tex.Crim.App.1991) (counsel not required to engage in the filing of futile motions).

      . 91 S.W.3d 794 (Tex.Crim.App.2002).

      . Id. at 794-95.

      . See id. at 795.

      . Id.

      . Beal v. State, 35 S.W.3d 677, 686-87 (Tex.App.-Houston [1st Dist.] 2000).

      . 725 S.W.2d 776, 778 (Tex.App.-Houston [1 Dist.] 1987, no pet.).

      . The prior decisions cited in Caballero were: Head v. State, 419 S.W.2d 375, 377 (Tex.Crim.App.1967); Wilson v. State, 689 S.W.2d 311, 312 (Tex.App.-Fort Worth 1985, pet. ref'd); Helton v. State, 635 S.W.2d 824, 825 (Tex.App.-Beaumont 1982), aff'd, 670 S.W.2d 644 (Tex.Crim.App.1984); Bingham v. State, 630 S.W.2d 718, 721 (Tex.App.-Houston [1st Dist.] 1982, no pet.).

      . 711 S.W.2d 634 (Tex.Crim.App.1986).

      . Beal, 91 S.W.3d at 797 (Keller, PJ., concurring).

      . Mallen & Smith, § 18.1 at 2.

      . Id.

      . 4 Burr.2060, 98 Eng. Rep. 74 (K.B.1767) (lawyer who mistakenly interpreted relevant statute concerning debt discharge and who therefore obtained defaulting party's arrest and imprisonment was not liable for his error in judgment when the language of the statute was unclear and lawyer was a “country attorney” who was probably unaware of two judicial opinions on point).

      . Mallen & Smith, § 18.4 at 8.

      . Id., § 18.17, at 56.

      . Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir.1999) (defense counsel was not ineffective in advising criminal client that his out-of-state prior conviction could not be used to enhance his sentence under Florida habitual violent-offender statute when that statute lacked clarity at time advice was given); United States v. McNamara, 74 F.3d 514, 516-17 (4th Cir.1996) (counsel was not constitutionally deficient for following controlling law of circuit that willfulness was not an element of structuring financial transactions to avoid currency reporting requirements even though Supreme Court had granted certiorari on that issue at time legal advice was given; "an attorney’s failure to anticipate a new rule of law was not constitutionally deficient”); Pitts v. Cook, 923 F.2d 1568, 1573-74 (11th Cir.1991) (counsel’s failure to raise Batson-type claim before Batson was decided by Supreme Court was not constitutionally ineffective assistance of counsel); Honeycutt v. Mahoney, 698 F.2d 213, 217 (4th Cir.1983) (defendant’s trial counsel was not ineffective for failing to object to instructions regarding presumption of malice and unlawfulness when Supreme Court decisions supporting challenges to such presumptions had not been delivered at time of trial); Cooks v. United States, 461 F.2d 530, 532 (5th Cir.1972) (noting that "counsel’s inability to foresee future pronouncements [by the courts] ... does not render counsel’s representation ineffective.... Clairvoyance is not a required attribute of effective representation”; holding counsel ineffective when controlling Supreme Court precedents, decided more than a decade before counsel rendered his advice, demonstrated that his advice was erroneous). Of course, the more longstanding and well-settled the legal proposition, the more likely counsel will be deemed deficient if he is ignorant of it.

      . 981 S.W.2d 183 (Tex.Crim.App.1998).

      . Id. at 184; see also Vaughn v. State, 931 S.W.2d 564, 567 (Tex.Crim.App.1996) ("We have said that basing an ineffective assistance claim on caselaw that is unsettled at the time of counsel’s actions 'would be to engage in the kind of hindsight examination of effectiveness of counsel the Supreme Court expressly disavowed in Strickland ’ ”); Calderon v. State, 950 S.W.2d 121, 133 (Tex.App.-El Paso1997, no pet.) ("Failure to follow a procedural point whose requirements are unsettled at the time of trial is not indicative of ineffective assistance standing alone”); Saucedo v. State, 756 S.W.2d 388, 393-94 (Tex.App.-San Antonio 1988, no pet.) ("In judging the effectiveness of counsel’s assistance, a reviewing court looks to the totality of the representation as of the time of trial, not through hindsight”; counsel cannot be faulted for not anticipating law which was not clarified until highest court handed down definitive opinion).


author: HOLCOMB, J.,

text:
    Richard Lee STADT, Appellant, v. The STATE of Texas.
    No. PD-1937-03.
    Court of Criminal Appeals of Texas.
    Nov. 23, 2005.
    Rehearing Denied Feb. 8, 2006.

      Joe Roden, Houston, for Appellant.
    Alan Curry, Asst. District Atty., Houston, Matthew Paul, State’s Atty., Austin, for State.
   HOLCOMB, J.,

delivered the opinion of the Court,

in which KELLER, P.J., and MEYERS, PRICE, WOMACK, and JOHNSON, JJ„ joined.

The court of appeals held that the trial court did not err in instructing the jury on the lesser included offense of criminally negligent homicide. We affirm.

Our discussion begins with a summary of the relevant facts. On October 24, 2000, a Harris County grand jury presented an indictment that charged appellant with manslaughter under Texas Penal Code § 19.04. The indictment alleged, in relevant part, that

Richard Stadt ... on or about January 31, 2000, did ... recklessly cause the death of D. Turner by operating his motor vehicle ... at an unreasonable speed, by failing to maintain a proper lookout for traffic and road conditions, by failing to maintain a single lane of traffic, and by changing lanes in an unsafe manner.

Thus, the indictment alleged four alternate theories of reckless conduct on appellant’s part.

On November 27, 2001, the State brought appellant to trial before a petit jury on his plea of not guilty. At the guilt stage of that trial, the State, in an effort to prove appellant’s guilt, presented thirteen witnesses and numerous exhibits, including appellant’s own written statement. Appellant, in his defense, presented eight witnesses, including himself, and two exhibits.

The evidence presented by the State at the guilt stage, if believed, established the following: At approximately 10:40 a.m. on the morning of January 31, 2000, in the City of Spring, appellant drove an eighteen-wheel tractor-trader rig southbound in the right-hand lane of Interstate Highway 45. As appellant neared and then drove onto the Spring-Stuebner overpass, he maintained a speed of approximately 70 miles per hour, although the posted speed limit was 55 miles per hour. The surface of the highway in the area was “very rough,” with “many potholes and grooves” and “dips and sways.” The traffic lanes on the overpass were relatively narrow, and there was no shoulder. Instead of a shoulder, there was a concrete barrier just outside the right-hand lane. When appellant approached the top of the overpass, he “looked at” his rearview mirror, and, within an instant, the right front wheel of his tractor-trailer rig collided with the concrete barrier. Appellant’s tractor-trailer rig then ricocheted off the concrete barrier, crossed over the other lanes of traffic and the highway’s median, and hit two vehicles traveling northbound. In one of those vehicles was Dale Turner, who was killed instantly. Appellant survived the accident and, afterward, told an Emergency Medical Services worker at the scene that “he had taken some medication [earlier that morning] and he was a little bit drowsy.”

Appellant, with his evidence, tried to paint a slightly different picture. The evidence he presented at the guilt stage, if believed, established the following: On the evening of January 30, 2000, appellant, who was a truck driver for General Packaging Corporation in Richardson, went to bed at his home at around 10:00 p.m., which, for him, was an hour later than usual. He awoke the next morning at around 4:00 a.m. After taking a prescription medication for his high blood pressure and doing a few other routine things, he left for work. He arrived at the General Packaging Corporation truck yard at around 5:00 a.m., at which time he performed a routine safety check of his eighteen-wheel tractor-trailer rig. At around 6:00 a.m., appellant drove his tractor-trailer rig out of the truck yard and began his usual run to Houston on the Interstate. At around 7:00 a.m., he stopped his rig in Corsicana for re-fueling. During that refueling stop, he napped inside the rig. At around 8:00 a.m., appellant resumed his run to Houston. A short time later, near Madisonville, he pulled off the Interstate and performed a routine safety check of his rig’s tires. He then resumed his run to Houston. As he neared and then drove onto the Spring-Stuebner overpass, a stretch of highway with which he was familiar, he reduced his speed but stayed within the flow of traffic. He then made “a quick check of [his] mirrors just to see what was around [him].” As appellant’s gaze turned forward again, his right front wheel impacted the concrete barrier just to the right of his traffic lane. He had “no clue why it happened.”

At the conclusion of the presentation of the evidence at the guilt stage, the trial court presented its proposed jury charge to both parties. The proposed charged authorized the jury to convict appellant of manslaughter, as alleged alternatively in the indictment, or the lesser included offense of criminally negligent homicide. Appellant objected to the inclusion of criminally negligent homicide in the charge, but the trial court overruled the objection. The jury later found appellant not guilty of manslaughter but guilty of criminally negligent homicide. The jury assessed appellant’s punishment at imprisonment for three years, probated.

On direct appeal, appellant argued that the trial court erred in instructing the jury on criminally negligent homicide “because no evidence permitted the jury to rationally find that if [he] was guilty, he was guilty only of criminally negligent homicide.” Appellant, citing Arevalo v. State, 970 S.W.2d 547 (Tex.Crim.App.1998), argued in particular that an instruction on criminally negligent homicide was not warranted because there was no evidence adduced at trial that “refute[d] or negate[d] each and every one of the four alternate theories of manslaughter” alleged in the indictment and on which the jury charge authorized the jury to convict.

The court of appeals rejected appellant’s argument and held that the trial court did not err in instructing the jury on the lesser included offense of criminally negligent homicide. Stadt v. State, 120 S.W.3d 428, 440 (Tex.App.-Houston [14th Dist.] 2003). We granted appellant’s petition for discretionary review in order to determine whether the court of appeals erred. See Tex.R.App. Proc. 66.3(c).

A trial court may instruct the jury on a lesser included offense if (1) the offense in question is a lesser included offense under Article 37.09 of the Texas Code of Criminal Procedure and (2) there is some evidence that would permit a rational jury to find that the defendant is not guilty of the greater offense but is guilty of the lesser included offense. Hayward v. State, 158 S.W.3d 476, 478 (Tex.Crim.App.2005); Moore v. State, 969 S.W.2d 4, 8 (Tex.Crim.App.1998). This two-prong test is usually known as the Rousseau test, after the case in which the test was first stated in that exact form. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993). It is the second prong of the Rousseau test that is the subject of this appeal.

Appellant’s reliance on Arevalo v. State, 970 S.W.2d 547, is misplaced. In that case, we held that, “if sufficient evidence of more than one theory of the greater offense is presented to allow the jury to be charged on alternate theories [of the greater offense], the second prong of the [Rousseau] test is satisfied only if there is evidence which, if believed, refutes or negates every theory which elevates the offense from the lesser to the greater.” In this case, what elevated the offense from the lesser to the greater was the culpable mental state.

Under Texas Penal Code § 19.04, a person commits manslaughter “if he recklessly causes the death of an individual.” Under Texas Penal Code § 6.03(c),

[a] person acts recklessly ... with respect to ... the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that ... the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Under Texas Penal Code § 19.05, a person commits criminally negligent homicide “if he causes the death of an individual by criminal negligence.” Under Texas Penal Code § 6.03(d),

[a] person acts with criminal negligence ... with respect to ... the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that ... the result will occur. The • risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

The offense of manslaughter “involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards it.” Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975). The offense of criminally negligent homicide, on the other hand, “involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the result thereof [but fails] to perceive the risk.” Ibid. Thus, criminally negligent homicide is a lesser included offense of manslaughter, because the two offenses differ only in that criminally negligent homicide requires a less culpable mental state. Aliff v. State, 627 S.W.2d 166, 171 (Tex.Crim.App.1982); Art. 37.09(3), fn. 2, supra.

The question before us is not whether there was some evidence presented at appellant’s trial that would permit a rational jury to find that he was not guilty of each and every alternate theory of manslaughter alleged in the indictment but whether there was some evidence presented at appellant’s trial that would permit a rational jury to find that he possessed the culpable mental state of criminal negligence rather than recklessness. After reviewing the record, we conclude that there was such evidence presented at appellant’s trial.

At appellant’s trial, evidence was presented to the effect that (1) on the night before the accident, he slept less than he usually slept; (2) on the morning of the accident, he took a prescription medication that made him drowsy; (3) on the morning of the accident, he performed multiple safety checks of his vehicle; (4) at the time of the accident, he was driving approximately fifteen miles per hour over the posted speed limit; (5) at the time of the accident, he was already familiar with the narrow lanes and poor road conditions on the Spring-Stuebner overpass; (6) at the time of the accident, he took his eyes off the road for a moment in order to look into his rearview mirror; (7) at the time of the accident, he had “no clue” as to why the accident happened; and (8) Dale Turner’s death resulted from the accident. Given this evidence, a rational jury could have found that appellant was not guilty of manslaughter as alleged in the indictment and included in the charge but was nevertheless guilty of criminally negligent homicide. That is, a rational jury could have found that (1) appellant’s conduct caused the death of Dale Turner; (2) appellant ought to have been aware of a substantial and unjustifiable risk of death created by his excessive speed and his failure to maintain a proper lookout on a highway with narrow lanes and poor road conditions; (3) appellant, though normally safety-conscious, was not aware of the substantial and unjustifiable risk of death created by his conduct, due either to lack of sleep or drowsiness caused by medication or perhaps just simple inattentiveness; and (4) appellant’s failure to perceive the risk created by his conduct constituted a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from appellant’s viewpoint. In short, given the evidence adduced at appellant’s trial, the second prong of the Rousseau test was met, as the court of appeals held.

We affirm the judgment of the court of appeals.

KEASLER and HERVEY, JJ., concurred in the result.

COCHRAN, J., did not participate.

      . Criminally negligent homicide is a lesser included offense of manslaughter. See discussion, infra.

      . Article 37.09 provides:
      An offense is a lesser included offense if:
      (1) it is established by proof of the same or less than all the facts required to establish the commission of the charged offense;
      (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;
      (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or
      (4) it consists of an attempt to commit the offense charged or an otherwise included offense.

      . We hasten to add that, given the evidence at trial, a rational jury could have found appellant guilty of manslaughter. That is, in this case, a rational jury could have viewed the evidence in either of two ways, one supporting a finding of guilt of manslaughter, with its higher culpable mental state, the other supporting a finding of guilt of criminally negligent homicide, with its lower culpable mental state.


author: KELLER, P.J., JOHNSON, J.,

text:
    The STATE of Texas v. Michael Kent PLAMBECK, Appellee.
    Nos. PD-0376-05, PD-0377-05.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 23, 2005.

      Charles A. Banker, III, McAllen, for Appellant.
    Sommer L. Hoffman, Asst. Crim. D.A., Edinburg, Matthew Paul, State’s Attorney, Austin, for the State.
   KELLER, P.J.,

delivered the opinion of the Court

in which KEASLER, HERVEY, HOLCOMB and COCHRAN, JJ., joined.

The question we confront today is whether the trial court has general authority to dismiss an indictment without prejudice in the absence of the State’s consent. The answer to that question is “no.” Consequently, we reverse the judgment of the court of appeals.

I. BACKGROUND

This case involved three sets of indictments charging appellee with barratry and conspiracy to commit barratry. The first set of indictments was obtained from grand jury proceedings in which a Texas Ranger was allowed to question witnesses extensively, in violation of Texas Code of Criminal Procedure, Article 20.04. These indictments were voluntarily dismissed by the State after it obtained a second set of indictments for the crimes. During the proceedings leading to the second set of indictments, however, the prosecutor read testimony from transcripts of statements made to the Texas Ranger by several witnesses. The State voluntarily dismissed the second set of indictments after obtaining a third set of indictments for the offenses. The third set of indictments described the earlier indictments for purposes of tolling the statute of limitations.

Appellee filed a motion to dismiss the indictments and a pretrial application for a writ of habeas corpus. In the motion to dismiss, appellee contended that the third set of indictments came “after the State voluntarily dismissed a previous indictment for improper Grand Jury procedures” involving the questioning of grand jurors by an unauthorized person. Although the motion did not allege that the improper questioning occurred during proceedings leading to the third set of indictments or in any way impacted those proceedings, it requested a dismissal of the third set of indictments on the basis of “defects of form outlined above.” The ha-beas application alleged that prosecution for the offenses outlined in the third set of indictments was barred by limitations.

The trial court granted relief on the habeas application and granted the motion to dismiss, and the State appealed both decisions. With regard to the habeas application, the State argued that the first and second sets of indictments tolled the statute of limitations. With regard to the motion to dismiss, the State conceded that it erred in allowing the Texas Ranger to question witnesses, but argued that dismissal was unwarranted because no constitutional right was violated and dismissal was not necessary to cure the error. In connection with its contentions regarding the motion to dismiss, the State first observed that dismissal with prejudice was an extraordinary and drastic remedy that is rarely imposed, and the State contended that the trial court’s action amounted to a dismissal with prejudice because the statute of limitations had run. The State then argued that “a trial court has no general authority, written or unwritten, inherent or implied, permitting it to dismiss a case without the State’s consent.” In support of this argument the State cited State v. Johnson and several other cases.

The court of appeals decided that “[a] preliminary issue” to be addressed was “whether the trial court dismissed the indictment with [or] without prejudice.” The court of appeals found that the dismissal was without prejudice because the first and second sets of indictments tolled the statute of limitations. Citing the appellate rules’ requirements for briefing arguments, the court of appeals then found that the State had faded to direct it to any legal authority that would require the court to reverse a dismissal made without prejudice. The court of appeals contended that “[E]very case cited by the State in support of this argument is one in which the trial court erroneously dismissed the indictment with prejudice and was reversed ... or the trial court had not dismissed the indictment at all, despite a motion to do so by the defendant.” But the court of appeals’s opinion did not cite or discuss Johnson. Further, relying upon estoppel cases, the appellate court faulted the State for allowing the statute of limitations to expire by not attempting to cure the Article 20.04 violation by seeking another (fourth) set of indictments. As a result of its “without prejudice” holding, the court of appeals did not address specifically whether the Article 20.04 violation that occurred in proceedings leading to the first set of indictments was a valid basis for dismissing the third set of indictments. In addition, the court of appeals declined to address the merits of the habeas appeal.

The State filed a motion for rehearing. In its second ground for rehearing the State took issue with the court of appeals’s holding that the trial court’s authority to dismiss an indictment without the State’s consent turned upon whether that dismissal was with prejudice:

The State has argued, and provided abundant supporting case law, that a trial court has no authority to dismiss an indictment without the State’s consent except in few well-defined instances that were not applicable in this case. See, e.g., Johnson v. State [sic], 821 S.W.2d 609, 612-613 (Tex.Crim.App.1991); State’s Brief, pp. 17-32. The definitive issue is whether the trial court had authority to dismiss the indictment over the State’s objection, not whether the dismissal was with or without prejudice.

(Emphasis in original). The State’s motion for rehearing was denied.

The State subsequently filed a petition for discretionary review, presenting the following ground: “Is article 44.01(a)(1) of the Code of Criminal Procedure, which authorizes the State to appeal an order that ‘dismisses an indictment,’ limited to dismissal orders that are specifically designated as being ‘with prejudice?’ ” In support of its position, the State discussed our decision in State v. Moreno, including the following passage concerning when a prosecution is terminated for the purpose of determining the State’s right to appeal: “whenever the effect of the [trial court’s] order forces any alteration of the indictment or information before the trial on the merits and the State is not willing to comply with that order.” We granted review.

II. ANALYSIS

The State characterizes the court of appeals’s holding as being “essentially” that the State does not have the right to appeal a dismissal without prejudice under Article 44.01. It’s argument is that, under the court’s reasoning, a trial court’s decision to dismiss a charging instrument without prejudice can never be reversed on appeal. Its right to appeal that decision under Article 44.01 being an empty right, says the State, there is no right to appeal. This overstates the effect of the court’s holding, but not by much. The State still has a right to appeal under those circumstances, but that right is necessarily ineffective.

The State’s underlying complaint to this Court is that the court of appeals erred in failing to address its claim. We agree with the State’s basic complaint that the court of appeals erred in finding the nature of the dismissal (with or without prejudice) to be dispositive, and in therefore failing to address the merits of the State’s claim on appeal.

Johnson held that “there is no general authority, written or unwritten, inherent or implied, which would permit a trial court to dismiss a case without the prosecutor’s consent.” Nothing in Johnson restricts that pronouncement to dismissals with prejudice. To the contrary, the facts of Johnson suggest that there is no such restriction.

In that case, the defendant was charged by information with driving while intoxicated (DWI) in County Court at Law Number One. The prosecutor failed to appear in court on the date of trial, and, pursuant to the defendant’s motion, the trial judge dismissed the charge. Later that day, the State filed a new information, alleging the same DWI charge, in County Court at Law Number Two, a court that had concurrent jurisdiction. The defendant then filed a motion to dismiss this second information. The trial judge granted the motion on the ground that “the State’s decision not to appeal the first dismissal implied its acquiescence to that first dismissal, so the State could not continue its prosecution against [the defendant] by simply filing the same charge in another court.” The preceding statement — that the State could not continue its prosecution — necessarily means that this dismissal was with prejudice. The State then appealed the second dismissal. The court of appeals held that the second dismissal was improper because the trial court had no authority to dismiss the case without the State’s consent, and that jurisdiction was proper in the County Court at Law Number Two because the dismissal of the case in the County Court at Law Number One amounted to a surrender of jurisdiction over the case. We held that the County Court at Law Number One lacked the authority to dismiss the information when the State’s attorney failed to appear and, as a result, did not effectively waive jurisdiction over the case. We then vacated the court of appeals’s judgment and remanded with instructions to direct the County Court at Law Number Two to transfer the case to the County Court at Law Number One for further proceedings consistent with our opinion.

Our opinion did not say whether the County Court at Law Number One’s dismissal of the information was with or without prejudice, but a prosecutor’s failure to show up for court is not the type of circumstance that would warrant a “with prejudice” dismissal. And the State apparently did not perceive the first dismissal as being with prejudice since a second information was filed. Also, the court of appeals may have been operating under the assumption, consistent with the court of appeals’s holding in the present case, that the prohibition against dismissals without the State’s consent extended only to dismissals with prejudice. Such an assumption would explain reversing the dismissal with prejudice by the County Court at Law Number Two, while at the same time holding that the County Court at Law Number One relinquished jurisdiction — its dismissal being without prejudice. But this Court repudiated that type of reasoning by directing that the prosecution proceed in the County Court at Law Number One. In any event, Johnson’s silence on the “with or without prejudice” nature of the dismissal suggests that it was irrelevant to our holding regarding the trial court’s authority on the matter. The trial court simply had no general authority to dismiss the case without the prosecutor’s consent, and the circumstances presented (the prosecutor’s failure to appear) did not confer any specific authority to do so.

We therefore disagree with the court of appeals’s implicit conclusion that a trial court has unfettered discretion to dismiss a prosecution without prejudice. And to the extent the court of appeals suggested that the State failed to comply with briefing requirements by faffing to direct that court to authority on the issue now before us, we disagree, since Johnson was prominently cited in support of the State’s position in the State’s brief on original submission.

Moreover, the appellate court erred in holding that the State was obligated to cure error, by seeking another indictment, in order to challenge the specifics of the trial court’s ruling on appeal. As we pointed out in Moreno, the State is entitled to stand on its charging instrument and appeal a trial court’s adverse ruling dismissing the same, even if amendment is possible. Relying upon Moreno, we later held in State v. Young that appeal was permitted where the challenge to the charging instrument was based on a defect in the grand jury proceedings. It would seem pointless for the State to have the right to appeal dismissals without prejudice for a defect in grand jury proceedings (as recognized in Young) if the State could never obtain relief because it would always be obligated to attempt to cure error by obtaining another indictment.

More importantly, requiring the State to effect such a cure runs contrary to the reason for restricting the trial court’s authority to dismiss prosecutions: the prosecutor’s office is the entity primarily responsible for controlling the prosecution’s progress. Requiring the prosecutor to seek a new charging instrument whenever the prosecution is dismissed without prejudice would essentially subject the charging process" to the control of the trial judge. Where the dismissal was based on an event occurring in the grand jury proceedings, further grand jury proceedings — including, possibly, the impaneling of a new grand jury — would be required. If the trial judge were dissatisfied in any way with the grand jury proceedings (or, for that matter, any other pretrial proceedings) then the use or threat of a dismissal without prejudice could be effectively employed to force the prosecutor to- conform the charging process (or other proceedings) to the trial court’s will, even if the trial court’s concerns were without merit. Appellate review of the trial court’s reasons for dismissal is essential to maintaining the independence of the prosecuting authority.

The court of áppeals’s estoppel concerns are without foundation because those concerns erroneously assume that the State has somehow created a problem by not procuring a new indictment. In a given case, the trial court’s basis for dismissal may well be due to a problem created by the prosecutor. But that is an appellate issue that turns upon whether the prosecutor did in fact create a problem and whether dismissal was a proper response to that problem. Failing to procure a second charging instrument to cure what the trial court believes is a problem is not itself a State-created problem that would justify invoking the doctrine of es-toppel. Rather, it is the State’s right to stand on its charging instrument and have an appellate court pass on whether the trial court’s reasons for dismissal were sufficient.

The judgment of the court of appeals is reversed and the case is remanded for further proceedings consistent with this opinion.

JOHNSON, J.,

delivered a dissenting opinion

in which MEYERS, PRICE, and WOMACK, JJ., joined.

The state alleged that appellee committed barratry and conspiracy to commit barratry. The alleged acts occurred on September 30, 1997 (conspiracy), and in March and December of 1998 (barratry). The first sets of indictments were returned on March 21, 2000 (barratry; 7 counts), and April 18, 2000 (conspiracy; 2 counts), approximately five and a half months before the statute of limitations on the earliest alleged offense expired, three years after that alleged offense. Two subsequent sets of indictments were returned on December 19, 2001, and April 30, 2002. The statute of limitations was tolled during the pendency of those indictments.

After the third set of indictments was returned, appellee moved to dismiss those indictments and also filed a pretrial application for a writ of habeas corpus that asserted that the third set of indictments was barred by limitations. The trial court dismissed the third set of indictments over the state’s objection and granted both the writ and the relief appellee had requested, that is, dismissal of the indictments for failure to present them within the three-year statute of limitations. The state appealed and raised two issues.

Issue One: The trial court erred in granting appellee’s pretrial writ of habe-as corpus on limitations grounds because the limitations period was tolled by the pendency of continuous indictments charging offenses under the same penal statute.
Issue Two: The trial court erred in dismissing the indictments on grounds of “improper grand jury proceeding” because (1) appellee failed to meet his burden of proving that the state’s error in allowing an investigator to question grand jury witnesses violated some constitutional right, and (2) appellee failed to meet his burden of proving that dismissal of the indictments was necessary to cure the error.

The court of appeals affirmed the judgment of the trial court on Issue Two but did not address Issue One, thereby leaving in force the trial court’s (perhaps erroneous) finding that further prosecution of appellee for the charged offenses was barred because the limitation period had expired. The state petitioned this Court for review on a single ground that challenged the court of appeals’s decision on the motion to dismiss; it did not appeal the failure of the court of appeals to “address[] every issue raised and necessary to final disposition of the appeal.” Tex. Rule App. Proo. 47.1.

The court of appeals stated that, because “our decision regarding the motion to dismiss the indictments is sufficient to determine the outcome of the case, we decline to address the State’s remaining issue on appeal regarding the writ of habe-as corpus as unnecessary and redundant.” It was then incumbent upon the state to complain of that failure in its petition in this Court because, even if we held that the court of appeals erred and reversed its judgment, absent a successful challenge to the grant of habeas corpus relief, the state’s position would not change; the court of appeals did not undo the relief granted to appellee by way of his writ of habeas corpus, and further prosecution is still barred.

I believe that this cause should be dismissed as improvidently granted. Because the majority does not do so, I respectfully dissent.

      . Article 20.04 provides in relevant part, "No person other than the attorney representing the State or a grand juror may question a witness before the grand jury.”

      . 821 S.W.2d 609 (Tex.Crim.App.1991).

      . The State then made other arguments in its brief that are not relevant to this opinion.

      . State v. Plambeck, Nos. 13-02-492-CR, and 13-02-493-CR, slip op. at 3, 2004 WL 3591148 (Tex.App.-Corpus Christi, December 2, 2004)(not designated for publication).

      . Id. at 4.

      . Id. at 5 (citing Tex.R.App. P. 38.1(h)).

      . Id. at 4-5.

      . Id. at 5 (citing Prystash v. State, 3 S.W.3d 522, 531 (Tex.Crim.App.1999) regarding "the law of invited error” and Gonzalez v. State, 115 S.W.3d 278, 286 (Tex.App.-Corpus Christi 2003, pet. ref'd) for the proposition that a party "should not be allowed to create [a] problem at [the] trial level, [and] then complain on appeal of self-induced error”).

      . Id.

      . The dissent argues that this petition should be dismissed because the State did not complain to this Court that the court of appeals failed to address Issue One of the State’s claims on appeal. But the court of appeals did not fail to address the claim — the court held that it was unnecessary to address the claim. This is not like the cases in which the intermediate court skips an issue raised by a party, in which event we require the party to complain of the court’s negligence. A court is not required to address issues that become moot because of the resolution of other issues, and the State had no legitimate complaint to raise regarding the manner in which the court of appeals disposed of Issue One. See,
        e.g., Hull v. State, 67 S.W.3d 215, 217 n. 3 (Tex.Crim.App.2002).

      . 807 S.W.2d 327 (Tex.Crim.App.1991).

      . Id. at 334.

      . We express no opinion, on whether the dismissal in this case was in fact "without prejudice.” We simply assume it for the sake of this discussion.

      . 821 S.W.2d at 613.

      . Matólo.

      . Id.

      . Id.

      . Id.

        .Id. at 610-611.

      . Id. at 611.

      . Id.

      . Id. at 613-614.

      . Id. at 614.

      . 807 S.W.2d at 333-334.

      . 810 S.W.2d 221, 222-224 (Tex.Crim.App. 1991)(State could appeal where trial court’s dismissed indictments on the ground that the grand jury had been discharged before the indictments were returned).

        .See Meshell v. State, 739 S.W.2d 246, 252-258 (Tex.Crim.App.1987)(Speedy Trial Act violated separation of powers by infringing on prosecutorial discretion).

      . Texas Code of Crim. Proc. Art. 12.01(5)(1997)("felony indictments may be presented within these limits, and not afterward: ... (5) three years from the date of the commission of the offense: all other felonies”); Texas Code of Crim. Proc. Art. 12.03(b)(1997)("The limitations period for criminal conspiracy ... is the same as that of the most serious offense that is the object of the conspiracy....”).

      . Texas Code of Crim. Proc. Art. 12.05(b),(c)(1997)("(b) The time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.”) The statute does not speak directly as to whether the statute is tolled during an appeal. (”(c) The term ‘during the pendency,' as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.”).

      . Although the parties and courts in this cause appear to confuse "granting the writ,” i.e., holding a hearing, and "granting relief,” it is clear that the trial court granted both the writ and relief. The trial court held a full hearing and heard extensive arguments by both sides before signing an order granting "Defendant’s Application for Writ of Habeas Corpus Seeking Release Because of Expiration of Limitation Period” and ordering that appellee be released from further restraint and the indictment dismissed.