text:
    CITY OF AUSTIN, Appellant, v. Steve PENDERGRASS, Individually and on Behalf of all other similarly situated police officers of the Austin Police Department, and Kathy Smith, Individually and on behalf of all other similarly situated civilian employees of the Austin Police Department, Appellees.
    No. 03-99-00510-CV.
    Court of Appeals of Texas, Austin.
    April 27, 2000.
    Rehearing Overruled June 22, 2000.

      Frederick A. Hawkins, Asst. City Atty., Austin, for Appellant.
    Tom A. Stribling, Colbert, Freeman & Stribling, P.C., Austin, for Appellees.
    Before Chief Justice ABOUSSIE, Justices KIDD and SMITH.
   MACK KIDD, Justice.

The City of Austin appeals following a declaratory-judgment proceeding in which the trial court granted summary judgment in favor of the appellees, Austin Police Department officers and civilian employees who worked on Christmas Day 1993 and 1994. At issue is the interpretation of a portion of the City’s Personnel Policies Manual that addressed pay for working on Christmas Day. The trial court interpreted the relevant portion of the manual to mean that the City must pay the appellees time- and-one-half plus their regular pay for working the two Christmas Days. On appeal, the City contends that (1) the manual was not a contract and therefore could not be the basis for a cause of action; (2) the appellees failed to exhaust their administrative remedies; and (3) regardless of these two issues, the trial court incorrectly interpreted the relevant provision of the manual. We will affirm the trial court’s declaratory judgment.

Background

For working Christmas Day 1993, a Saturday, and Christmas Day 1994, a Sunday, the City paid appellees time-and-one-half. The appellees contended that based on provisions in the City’s Personnel Policies Manual they were entitled to be paid time- and-one-half plus their regular pay for working on these two Christmas Days. The appellees commenced this declaratory-judgment proceeding seeking an interpretation of the following section IV B.l.a.(l)(a) of the Personnel Policies Manual relating to holiday pay:

Employees who are regularly scheduled to work on holidays (except Christmas Day) shall have holiday hours added to their personal leave or shall be paid regular rates for the time worked in addition to their holiday pay. Employees who work on Christmas Day will be paid time-and-one-half for hours worked in addition to holiday pay.

The appellees moved for summary judgment contending that as a matter of law this provision meant that they were entitled to too-and-one-half times their regular pay (time-and-one-half plus their regular pay) for working these two Christmas Days. In addition to a plain reading of the provision, the appellees contended that a memorandum distributed by the Chief of Police and an Austin Police Department General Order supported their position. On December 15, 1994, the Chief of Police distributed a memorandum within the Police Department addressing Christmas Day holiday pay. The memorandum stated that officers and employees who work Christmas Day “will receive payment for time and one half in addition to normal pay for that day. (No exception vacation credit will be earned).” (Emphasis added.) Additionally, the Austin Police Department General Order 701.05, effective February 28, 1994, addressed city observed holidays and contained the following section:

A. Accruement
1. Eight (8) hours of Exception Vacation Leave is automatically credited to sworn employees for each official holiday.
3. Exception: All employees who work on Christmas Day will receive payment for time and one-half (1-1/2) hours in addition to their normal pay for that day.

When the appellees received their paychecks and noticed that they received only time-and-one-half for Christmas Day they asked the City’s personnel services department why they had not also received their regular pay for working on Christmas Day. The City’s personnel services department explained to them that Christmas Day as referred to in the manual was not December 25 but was the City’s officially observed Christmas Day holiday. The personnel department explained that because Christmas Day 1993 fell on a Saturday, the City officially observed the holiday on Friday and because Christmas Day 1994 fell on a Sunday, the City officially observed the holiday on Monday. As a result, the personnel services department told the officers and employees that the holiday pay, which it interpreted to mean time credited to exception vacation leave, would be paid for the officially observed day, not the actual Christmas Day. The City explained that the officers and employees would receive eight hours of exception vacation credit on the officially observed holiday and not any additional monetary compensation for working Christmas Day.

The appellees noted that the City’s charter Article IX, section 3 titled Personnel Policies provides that

The administration of the classified services of the city shall be governed by written rules and regulations to be known as “Personnel Policies.”
[T]he personnel policies shall be presented to the [city] council for adoption .... All policies adopted shall have the force and effect of law.

Thus, pursuant to the City’s charter, the appellees argued, all City personnel policies must be approved by the city council in the form of a city ordinance. The ap-pellees contended that because only the city council could change or modify personnel policies by ordinance, the personnel policies could give rise to a declaratory-judgment cause of action.

The City responded to the appellees’ motion for summary judgment and also filed its own motion for summary judgment. The City contended that this Court concluded in Byars v. City of Austin, 910 S.W.2d 520 (Tex.App.—Austin 1995, writ denied), that the manual did not create a contract and therefore could not give rise to a cause of action. The City also contended that the appellees failed to exhaust their administrative remedies before filing the lawsuit. Finally, while the City did not contest that the appellees were entitled to time-and-one-half for working on December 25, 1993 and 1994, it did contend that the proper interpretation of the relevant policy was that the appellees would receive eight hours of exception vacation leave for working on the observed Christmas Days, Friday, December 24, 1993 and Monday, December 26,1994.

The parties stipulated that the City’s personnel policies at issue were adopted September 12, 1994, by City Ordinance No. 940912-E.

In its summary-judgment order, the trial court determined that it had jurisdiction to grant relief pursuant to the Declaratory Judgment Act. See Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 1997). The trial court declared that based on the City’s charter, the Personnel Policies Manual had the force and effect of law. Ultimately, the trial court declared that the City’s failure to pay the appellees time-and-one-half plus regular pay for working on December 25, 1993 and 1994 violated the City’s personnel policy and the officers and employees who worked on those days were entitled to receive their regular pay in addition to the time-and-one-half pay.

Discussion

First, we address the City’s complaint that the appellees did not have a viable cause of action. The City, in concluding that the appellees were without standing to bring the underlying declaratory-judgment action based on this Court’s Byars opinion, has read Byars too broadly. See Byars, 910 S.W.2d at 520. Byars involved a breach of contract claim whereas this case involves a declaratory-judgment action. The issue in Byars was whether the same personnel manual at issue here expressly altered the at-will-employment status of a City employee. See id. In Byars, this Court held that the manual did not alter the at-will-employment status of the plaintiff and the employee did not have a protected propertjr interest in employment that would entitle her to more procedural protection than she received. See id. at 524. The Byars decision held that the manual did not create an employment contract or limit the City’s power to terminate an employee in any way. See id.

Parties may have any question regarding construction of a city ordinance determined by a declaratory-judgment action. See City of Schertz v. Parker, 754 S.W.2d 336, 338 (Tex.App.—San Antonio 1988, no writ); Tex. Civ. Prac. & Rem. Code Ann. § 37.004. The parties presented conflicting interpretations of a portion of the personnel policies adopted in City Ordinance No. 940912-E. An actual, bona fide and justiciable controversy existed and a suit for declaratory judgment was therefore authorized. See City of Wichita Falls v. Evans, 410 S.W.2d 311, 312 (Tex.Civ.App.—Fort Worth 1966, no writ). Concluding that the appellees had a viable declaratory-judgment action, we overrule the City’s first issue.

Second, we address the City’s complaint that the appellees failed to exhaust their administrative remedies. The issue before the trial court was a pure question of law. The doctrine of exhaustion of administrative remedies does not apply when the issue is purely a question of law. See Grounds v. Tolar Indep. Sch. Dist, 707 S.W.2d 889, 892 (Tex.1986); Frasier v. Yanes, 9 S.W.3d 422, 427 (Tex.App.—Austin 1999, no pet.). In this case the facts are undisputed and the question before the trial court, whether the appel-lees were entitled to regular pay in addition to time-and-one-half for working on Christmas Day in 1993 and 1994, was a pure question of law. Concluding that the officers and employees did not need to exhaust their administrative remedies before raising the question of law, we overrule the City’s second issue.

Finally, we address the City’s complaint that the trial court incorrectly construed the personnel policy regarding Christmas Day pay.

The City admits that in 1991 and 1992, officers and employees who worked on Christmas Day received two-and-one-half times their regular pay. During 1991 and 1992, the officers’ and employees’ vacation accounts were not credited and they were paid outright time-and-one-half plus their regular pay for working on Christmas Day. In a memorandum from the City’s human resources director to the assistant police chief in January 1995, the director explained,

in 1991 and 1992, adjustments were made to the officers’ pay for the Christmas Holiday (through reporting a “TA” transaction on their time records) — the employees’ exception vacation balances were reduced by 8 hours (already credited by the system) and the employees received holiday pay instead.

The City argues that the reason it paid the appellees differently in 1993 and 1994 from past practice was that in 1991 and 1992 Christmas Day fell on a regular work day unlike 1993 and 1994. The City contends that December 25, 1993 and 1994 were not official holidays therefore the pay would be different. We conclude that this is a distinction without a difference.

Based on a plain reading of the personnel policy at issue, Christmas Day is excepted from the other City holidays. Under the personnel policies, Christmas Day is treated differently than the other officially recognized holidays because as the director of personnel noted, “The City recognizes that December 25 is a special holiday for many employees and because of this [the City] provides employees required to work on December 25 with a higher rate of compensation for their hours worked (time and one-half their hourly rate).” We note that the director in his letter of explanation left off the rest of the sentence in the manual.

As noted by the Chief of Police in her December 1994 memorandum, if you work on

December 25,1994, you will receive payment for time and a half in addition to normal pay for that day. (No exception vacation credit will be earned.) If you work on Monday December 26 (the official city holiday), you will receive 8 hours of exception vacation plus your regular hours worked.

The City did not pay the appellees in accordance with this memorandum. Additionally, the Austin Police Department General Order 701.05 provided an exception for Christmas Day stating that all employees who work on Christmas Day will receive payment for time-and-one-half in addition to their normal pay for that day. The City did not pay appellees in accordance with this order.

The City’s theory requires looking at two days to establish pay for Christmas Day. While the City is willing to recognize the dates December 25, 1993 and 1994 as days for which it must pay time-and-one-half for hours actually worked, it then looks to what it argues is the officially recognized Christmas Day, December 24, 1993 or December 26, 1994 to determine whether to credit vacation accounts. Based on a plain reading of the personnel policy, which is supported by the Chief of Police’s memorandum and the Police Department’s General Order, the Christmas Day holiday occurred on December 25, 1993 and 1994. The appellees were paid time-and-one-half for working December 25, 1993 and 1994, and we hold that the trial court did not err in construing the personnel policy to require that the appel-lees were also entitled to receive their holiday pay for actually working on Christmas Day. The City’s third issue is overruled. We affirm the trial court’s judgment.


source: Caselaw Access Project

author: LEE YEAKEL, Justice.

license: Public Domain

text:
    Ronald Paul BLEVINS, Appellant, v. The STATE of Texas, Appellee.
    No. 03-99-00280-CR.
    Court of Appeals of Texas, Austin.
    April 27, 2000.

      Franklyn R. Mickelsen, Broden & Mick-elsen, Dallas, for appellant.
    James T. Russell, Belton, for appellee.
    Before Justices JONES, YEAKEL and PATTERSON.
   LEE YEAKEL, Justice.

Appellant Ronald Paul Blevins appeals his conviction for aggravated sexual assault of his wife. See Tex. Penal Code Ann. § 22.021 (West Supp.2000). A jury found appellant guilty and assessed his punishment at ninety-nine years’ imprisonment. Appellant complains that: (1) the district court erred by admitting in evidence his “admission by silence,” and (2) he did not have effective assistance of counsel at trial. We will affirm.

BACKGROUND

Because appellant does not challenge the sufficiency of the evidence, only a brief recitation of the facts is needed. On May 24, 1998, in violation of a protective order issued against him, appellant, armed with a pistol, entered the family home where his wife and their two young children were sleeping. Appellant woke his wife and told her he wanted to have sex with her. She resisted his advances. Appellant then ripped the nightshirt she was wearing and forced her to sit at the kitchen table with him while he held her at gunpoint and threatened to kill her. Appellant prepared a syringe filled with methamphetamine and demanded she inject herself with the drug. She refused, and appellant then took the drug himself. Appellant prepared another syringe of the drug and told her to “either pick the needle or ... pick the gun.” She again resisted taking the drug. Appellant then demanded she have sex with him and began performing oral sex on her. A physical struggle ensued, and appellant gagged her with her nightshirt and injected her with the syringe of methamphetamine against her will. Throughout that evening, appellant continued to have sex with her without her consent.

The next day, appellant’s wife took the two children and left the home. She called the sheriffs office and reported that appellant had raped her. Shortly thereafter, she filed for divorce. During the criminal trial, appellant testified in his own defense and maintained that the complainant took the drugs willingly and that the sex was consensual.

DISCUSSION

Inadmissible Evidence

By his first issue, appellant alleges that the district court erred when it admitted in evidence information that amounted to an “admission by silence.” See Tex.R. Evid. 801(e)(2)(B); Crestfield v. State, 471 S.W.2d 50, 53 (Tex.Crim.App.1971). Before the criminal trial, the complainant filed for divorce. During the divorce hearing, she testified that appellant had physically assaulted her prior to the night of the rape. Although appellant was present at the hearing and had the opportunity to deny these allegations, he did not; instead, on the advice of his criminal-defense attorney, he neither testified nor cross-examined his wife.

Appellant testified at his criminal trial. On cross-examination, the State asked him whether the assault described in the divorce hearing had occurred. He denied the allegation. The State then asked appellant whether his wife testified that the assault occurred; he confirmed that she did. When the State asked if he had the opportunity to testify and refute this allegation, appellant’s trial counsel objected to the question; the objection was-sustained. The State again asked appellant whether the complainant testified at the divorce hearing that the assault had occurred. Appellant responded affirmatively. Again, the State inquired whether appellant took the stand to deny the allegation. Appellant’s trial counsel objected, and the court sustained the objection and instructed the jury to disregard. Concerning the night in question, the State asked appellant whether the sex was consensual; he replied that it was. The cross-examination proceeded:

[THE STATE]: Can I approach the witness, Judge?
THE COURT: Yes, sir.
[THE STATE]: I am looking at Page 23.
[APPELLANT’S COUNSEL]: Excuse me, Judge. If he is going to try to impeach the witness' — •
THE COURT: We will take it up outside the presence of the jury. [APPELLANT’S COUNSEL]: — with another statement of somebody else.

The State did not indicate to which document it was referring. The jury was excused, and the cross-examination continued outside of their presence. Appellant was questioned about the asserted prior assault and his failure to testify or cross-examine his wife at the divorce hearing. On redirect examination, appellant’s trial counsel asked him why he neither testified on his own behalf nor cross-examined her. Appellant explained that his criminal-defense attorney had advised him not to. Appellant’s trial counsel then addressed the court:

Judge, I have no problem with asking if he asked questions or not, but I am going to have a right, I think, to explain to the jury why. But I don’t think it’s proper for the State to impeach him with the statements of other witnesses. If the witness is there, they can bring her in and she can testify to whatever it is she wants to. But to stand in front of the jury and try to impeach him with isn’t it true because she said it’s true is not proper to use the testimony of another witness to impeach this witness. And I am going to object to that part of it. They want to get into the point about whether I advised him not to ask questions and not testify, and we will battle that out. But I don’t think it’s proper to impeach a witness with a statement of another witness and I object to it on those grounds.

(Emphasis added.) The court responded:

Okay. What we have here is a situation where an accused person is present; somebody in the presence of an accused person makes a statement. Under ordinary circumstances, the accused person would deny it. The accused person doesn’t deny it, and by virtue of his silence, you want to hold that against him.
[THE STATE]: That’s where we are going. It’s an admission by silence, yes. THE COURT: That’s where you’re going.

The discussion continued, and appellant’s trial counsel stated:

I just want the Court to clarify for me what we’re talking about. I mean he didn’t ask a question, and that’s right, and I think that is fine; but to imply that that — then to offer the testimony of the complaining witness in her divorce case before this jury and then to make some implication that he agrees that it’s true because he didn’t ask questions is what I am getting at. The fact he didn’t ask questions I have no problem because I am going to let him explain that to the jury too about why he didn’t. But the problem then becomes: this other thing, trying to say whether it might be true if you didn’t ask questions. And that’s what I am objecting to.

(Emphasis added.)

The district court overruled trial counsel’s objection and allowed the State to question appellant about his wife’s testimony from the divorce proceeding and the fact that appellant did not refute her testimony at that hearing. Appellant now contends that this “admission by silence” should have been excluded as hearsay, and as such, the district court erred by allowing it in evidence. However, appellant never objected at trial on hearsay grounds. He specifically objected on grounds of impeachment. Appellant admits that his objection “lack[ed] clarity” but urges that because the objection was understood by both the district court and the State, we should consider his issue. He directs us to Long v. State, 800 S.W.2d 545, 548 (Tex.Crim.App.1990), for the proposition that “even a general objection will not waive error if the complaint is obvious to the trial court and the State.” Appellant reads Long too broadly. Long was accused of aggravated sexual assault of a child. See Long, 800 S.W.2d at 546. The complainant had made outcry to her mother, and Long objected to the mother’s testimony as hearsay. See id. On appeal, he complained that “her testimony was hearsay and should not have been allowed because the trial court failed to conduct a hearing to determine whether the statement was reliable.” Id. The court of appeals held that Long had not preserved error because his general hearsay objection at trial was insufficient. See id. The court of criminal appeals disagreed, holding that, in the context of the record, with the objection coming when it did, the trial court could not have failed to comprehend Long’s objection. See id. at 548. Here, we have a specific objection that was consistently repeated by appellant. Even after the district court concluded that the evidence would be an “admission by silence,” which is an exception to hearsay, counsel restated his objection and again confirmed that he was objecting on impeachment grounds. On appeal, however, appellant objects to this evidence as inadmissible hearsay. An error presented for review on appeal must comport with the objection raised at trial or the error is not preserved. See Goff v. State, 931 S.W.2d 537, 551 (Tex.Crim.App.1996); Cantu v. State, 994 S.W.2d 721, 732 (Tex.App.—Austin 1999, pet. granted); Tex.R.App. P. 33.1. Long is inapplicable.

In addition, trial counsel specifically and repeatedly said he had “no problem” with admitting the fact that appellant remained silent in the face of the accusation; rather, he objected to the implication of this evidence. We find this argument to be without merit. Because appellant did not present his claim to the district court, he waived the claim and has nothing to present for review. See Tex.R.App. P. 33.1. We therefore overrule appellant’s first issue.

Effectiveness of Counsel

In his second issue, appellant complains that he did not have effective assistance of counsel during trial. The State argues that appellant has waived any such error on appeal because he did not present it to the district court as required by Texas Rule of Appellate Procedure 33.1(a). See Gonzalez v. State, 994 S.W.2d 369, 372-73 (Tex.App.—Waco 1999, no pet.). Without specifically overruling Gonzalez, the court of criminal appeals has made it clear that a defendant’s inaction at trial will not waive the right to make an ineffective-assistance-of-counsel claim on appeal. See Robinson v. State, 16 S.W.3d 808, 809-10 (citing Randle v. State, 847 S.W.2d 576, 580 (Tex.Crim.App.1993)). The Sixth Amendment right to effective assistance of counsel exists “to protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see Robinson, 16 S.W.3d at 812-13. Although it does occur, it is unreasonable to expect trial counsel to argue that he himself was ineffective when, as in this case, it is trial counsel and not appellate counsel who files the motion for new trial. See Robinson, 16 S.W.3d 3d at 811-12 (“it would be absurd to require trial counsel to litigate his own ineffectiveness in a motion for new trial in order to preserve the claim for appeal”); see also Ex parte Torres, 943 S.W.2d 469, 475 (Tex.Crim.App.1997) (“mounting an ineffective assistance attack in a motion for new trial is inherently unlikely if trial counsel remains counsel during the time required to file such a motion”). “[I]n order to waive the Sixth Amendment right to counsel, the constitution requires that a defendant do so competently, voluntarily, knowingly and intelligently.” Robinson, 16 S.W.3d at 813 n. 6 (citing Collier v. State, 959 S.W.2d 621, 625 (Tex.Crim.App.1997)). There is no evidence in the record that appellant affirmatively waived his right to the effective assistance of counsel. See id. There also was no meaningful or realistic opportunity for appellant to present his ineffective-assistance-of-counsel claim to the district court either at trial or in a motion for new trial. See id. We therefore will address appellant’s ineffective-assistance claim.

Appellant contends that his trial counsel was ineffective because he;

• failed to properly object to the admission of testimony concerning appellant’s silence at the divorce proceeding;
• failed to object to extraneous offense evidence alleging appellant had beaten his wife on previous occasions;
• destroyed appellant’s credibility by introducing inflammatory evidence concerning appellant’s accidental poisoning of his small child with methamphetamine;
• failed to object to the prosecution’s allegation that appellant fathered four children out of wedlock and to his wife’s testimony concerning this allegation;
• failed to object to the prosecution’s questioning appellant about his lack of stable employment history;
• failed to object to his wife’s testimony concerning appellant’s prior drug use;
• failed to object to his wife’s testimony on rebuttal that appellant had previously raped her on several occasions;
• failed to object to prosecutorial misconduct;
• permitted the trial to degenerate into a character assassination of appellant.

We measure claims of ineffective assistance of counsel against the standard set forth by the Supreme Court of the United States in Strickland v. Washington. Adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986), and most recently applied in Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999), Strickland sets forth a two-pronged test that requires the defendant to show both that his counsel made serious errors and that those errors caused serious harm. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052. First, the defendant must show that counsel’s performance was deficient, that is, counsel’s assistance fell below an objective standard of reasonableness. See Thompson, 9 S.W.3d at 812. Second, assuming the defendant has demonstrated deficient assistance, he must affirmatively show prejudice. See id. The defendant must show with a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different. See id. A reasonable probability is considered a probability that is sufficient to undermine confidence in the outcome of the trial. See id.; see also Hernandez, 726 S.W.2d at 55. The Strickland test is the benchmark for judging whether counsel’s conduct “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a rehable result.” Thompson, 9 S.W.3d at 812.

When evaluating an ineffective-assistance claim, we look at the totality of the representation and the particular circumstances of the case. See id. at 813; see also Ex parte Scott, 581 S.W.2d 181, 182 (Tex.Crim.App.1979). Any allegation of ineffectiveness must be firmly founded in the record, and the record must also affirmatively demonstrate the alleged misconduct. See Thompson, 9 S.W.3d at 813. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim, and the appellate court cannot conclude the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. See id.

When determining if counsel’s trial performance was deficient, we do not speculate about trial counsel’s strategy. See Mayhue v. State, 969 S.W.2d 503, 510 (Tex.App.—Austin 1998, no pet.). In addition, there is a strong presumption that trial counsel’s conduct was within the range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814; Mayhue, 969 S.W.2d at 510. The defendant carries the burden of overcoming this presumption and is required to prove by a preponderance of evidence that counsel was ineffective. See Thompson, 9 S.W.3d at 814. This burden requires the defendant to bring forward a record from which we may discern that trial counsel’s performance was not based on sound strategy. See Mayhue, 969 S.W.2d at 511 (citing Jackson v. State, 877 S.W.2d 768, 771-72 (Tex.Crim.App.1994)). Without an evidentiary hearing on the issue, the burden is difficult to meet. “Rarely will a reviewing court be provided the opportunity to make its determination on direct appeal with a record capable of providing a fair evaluation of the merits of the claim involving such a serious allegation.” Thompson, 9 S.W.3d at 813. As the Thompson court noted, in the majority of cases, the record on a direct appeal is simply underdeveloped and cannot adequately reflect the failing of trial counsel. See id. This case is among the majority and does not prove to be one of the rare exceptions where on direct appeal the record is sufficiently developed to prove ineffective assistance of counsel.

In this case, we have no record from which we may discern trial counsel’s strategy. Although appellant filed a motion for new trial, he did not address any of the alleged deficiencies that he urges now on appeal. Nothing in the trial record reveals counsel’s trial strategy with regard to the above-enumerated acts and omissions, which appellant alleges show the ineffectiveness of counsel’s representation. In the absence of such a record, appellant cannot in this direct appeal overcome the strong presumption that his trial counsel’s strategy was reasonable from counsel’s perspective at trial. The record before us is insufficient to support such a conclusion. See Mayhue, 969 S.W.2d at 511. Therefore, we overrule appellant’s second issue.

CONCLUSION

Having overruled all of appellant’s issues, we affirm the district court’s judgment.

      . This statute was modified by 1999 legislation. See Act of June 18, 1999, 76th Leg., R.S., ch. 417, § 1, 1999 Tex. Gen. Laws 2752, 2752-53. Because the amendment does not affect this case, we will cite to the current code for convenience.

      . Appellant represented himself in the divorce; however, according to appellant, his criminal-defense attorney was present at the hearing and gave him advice.

      . Appellant's counsel did not state the grounds for his objection; nor did the judge state why he sustained the objection.

      .Again, appellant’s counsel did not state the grounds for his objection; nor did the judge state why he sustained the objection.

      . See Tex.R. Evid. 801(e)(2)(B); Crestfield v. State, 471 S.W.2d 50, 53 (Tex.Crim.App.1971).

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

      . Although the record indicates a hearing on the motion for new trial was scheduled, the record does not reflect whether a hearing was actually held.

      . Appellant still has recourse. The general doctrine that forbids an application for writ of habeas corpus after direct appeal does not apply to this situation, and therefore, appellant may resubmit his claim by means of an application for writ of habeas corpus. See Thompson, 9 S.W.3d at 814; see also Jackson v. State, 877 S.W.2d 768, 772 (Tex.Crim.App.1994) (Baird, J., concurring).


author: ROBY HADDEN, Justice.

text:
    TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant, v. Terry L. TERRELL, Appellee.
    No. 12-99-00054-CV.
    Court of Appeals of Texas, Tyler.
    April 28, 2000.

      Adrian L. Young, Austin, for appellant.
    Robert J. Thomas, Houston, for appel-lee.
    Panel consisted of RAMEY, Jr., C.J., HADDEN, J., and WORTHEN, J.
   ROBY HADDEN, Justice.

The Texas Department of Criminal Justice (“TCDJ”) appeals from a judgment in a whistleblower case. Terry L. Terrell (“Terrell”) sued TDCJ, his former employer, alleging that TDCJ violated the Texas Whistleblower Act by terminating him for reporting violations of law in good faith. The trial court rendered judgment on a jury verdict awarding Terrell actual damages of $153,670.00, court costs, attorney’s fees and pre- and post-judgment interest. In issue one, TDCJ argues that the trial court erred in rendering judgment for Terrell because the jury found that Terrell did not report a violation of law in good faith when he reported suspected illegal conduct by Andy Collins (“Collins”), former Director of the Texas Department of Criminal Justice-Institutional Division (“TDCJ-ID”). In issue two, TDCJ challenges the legal sufficiency of the evidence to support the jury’s finding that Terrell reported a “violation of law” when he reported the alleged illegal conduct. Because we conclude that Terrell failed to present evidence showing that he acted in good faith when he reported the suspected illegal conduct, we reverse the trial court’s judgment and render judgment that Terrell recover nothing against TDCJ.

BACKGROUND

At the relevant time, the Whistleblower Act prohibited retaliation against public employees who reported violations of law in good faith. It provided as follows:

A state agency or local governmental may not suspend or terminate the employment of or discriminate against a public employee who in good faith reports a violation of law to an appropriate law enforcement authority.

Former Act § 554.002. This case is before us a second time on appeal. On July 24, 1991, Terrell was terminated by TDCJ. Prior to his termination, Terrell was employed as warden of Beto I, the largest prison unit of TDCJ-ID. In the first trial of this cause, Terrell alleged that TDCJ terminated him because he reported “violations of law” primarily by his immediate supervisor, former Northern Regional Director of the TDCJ-ID, Marshall Herk-lotz. Our first opinion in this cause details in this cause details Terrell’s allegations against Herklotz. Texas Department of Criminal Justice v. Terrell, 925 S.W.2d 44 (Tex.App.—Tyler 1995, no writ). The jury returned a verdict in favor of Terrell. On appeal, we concluded that the evidence was factually insufficient to support the jury’s finding that Terrell reported violations of law in good faith. Accordingly, we remanded the cause for a new trial. Id. at 61-62.

On re-trial, rather than focusing on Herklotz, Terrell focused on allegations of illegal conduct by Collins. The evidence in the second trial showed that on May 16, 1991 Terrell met with Selden Hale (“Hale”), Chairman of the Texas Board of Criminal Justice. During this meeting, Terrell informed Hale that Collins had a girlfriend and that the two traveled together on state business. He told Hale that they went to conferences and that they “roomed next to one another.” Hale asked if Terrell had any evidence to “back the allegation of this relationship.” Terrell stated that he did not, but that every warden in the system knew of the relationship and that “it could check with any of them.” Terrell also informed Hale that when Collins was a warden, he kept a girl on the payroll “when her time ran out because she was his girlfriend.” When asked how he knew this, Terrell responded “word of mouth” and noted that “it is amazing what you can learn about a person when you take over their unit.” Further, Terrell told Hale that Collins was a “liar, a very good liar and a bad administrator.” On appeal, Terrell contends that Collins’ “falsification of payroll records and/or misappropriation of travel funds” constituted possible “violations of law” and that he reported Collins’ conduct to Hale in good faith.

GOOD FAITH

In issue one, TDCJ argues that the trial court erred in rendering judgment for Terrell because the jury found that Terrell did not report a violation of law in good faith when he reported Collins’ alleged violation of law. The elements of a cause of action under the Whistleblower Act, at the time relevant here, were as follows: (1) a state agency or local government (2) suspends, discharges or discriminates (3) against a public employee (4) who reports in good faith a violation of law (5) to an appropriate law enforcement authority. City of San Antonio v. Heim, 932 S.W.2d 287, 290 (Tex.App.—Austin 1996, writ denied). In the charge, the jury answered the following questions:

Question 1
Do you find from a preponderance of the evidence that Terry Terrell reported one or more incidents involving a violation of law?
“Law” as used herein means a state or federal statute, an ordinance passed by a local governmental body, or a rule adopted under a statute or an ordinance.
In order to be a “violation of law” as used herein any such incident reported must also be one that would have a probable adverse effect upon the public good or society in general.
Answer: Yes
Question 2
Do you find from a preponderance of the evidence that Terry Terrell reported one or more incidents that may not have constituted a “violation of law” under the instruction of No. 1 above; but, nevertheless were made in good faith?
“Good faith” as used herein means (I) that the employee undertook to report the activities in the work place in good faith rather than as a result of some less admirable motive such as malice, spite, personality conflict, jealousy, or personal gain; and (2) the employee had reasonable cause to believe that the activities would have a probable adverse effect on the public; and (3) the employee’s belief was reasonable in light of his training and experience.
Answer: No
If you answer affirmatively to Question 1 and/or Question 2, then answer the following question. Otherwise, do not answer the following question.
Question 3
Was the Texas Department of Criminal Justice’s decision to demote or transfer or terminate Terry Terrell because of said report or reports inquired about in Question 1 and/or Question 2.
Answer: Yes.

Based on its affirmative response to question three, the jury also answered questions four and five, which concerned damages and attorney’s fees. After the jury returned its verdict, TDCJ moved for judgment on the verdict arguing that the jury’s response to question two constituted a finding that Terrell did not report a violation of law in good faith. TDCJ argued, therefore, that a judgment should be rendered that Terrell take nothing. TDCJ also moved to disregard the jury’s answers to question, one, three, four and five because, in part, the jury’s answer of “no” to question two rendered the jury’s answers to the remaining questions immaterial.

On appeal, TDCJ argues that to recover under the Whistleblower Act, an employee must obtain a finding that he reported a violation of law in goodfaith. TDCJ contends that based on its response to question two, the jury found that Terrell did not report a violation of law in good faith. According to TDCJ, without such a finding, Terrell could not recover and the trial court erred in rendering judgment for Terrell. In response, Terrell agrees that a finding of good faith is essential to recovery under the Whistleblower Act. However, Terrell contends that question one comprised an independent ground of recovery and that TDCJ may not rely on the jury’s response to question two to preclude recovery under question one. Terrell asserts that the “good faith” element of the ground of recovery set forth in question one was omitted without objection by TDCJ. Relying upon Rule 279 of the Texas Rules of Civil Procedure, Terrell argues that since good faith was omitted from question one without objection, good faith may be deemed found by the trial court in a manner to support the judgment.

If we were to agree with TDCJ that the jury’s response to question two constituted a finding that Terrell did not report a violation of law in good faith, we would hold that the trial court erred in rendering judgment on the jury’s verdict. See Wichita County v. Hart, 989 S.W.2d 2, 12 (Tex.App.—Fort Worth 1999, pet. denied) (holding that the evidence legally and factually insufficient to support a finding a good faith and rendering judgment in favor of the governmental entity); C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966) (noting that the jury’s answer to an immaterial issue may be disregarded by the trial court). Alternatively, even if we were to agree with Terrell that question one comprised an independent ground of recovery, the trial court could only deem a finding of “good faith” if such a finding is supported by factually sufficient evidence. See TEX R. CIV. P. 279; Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex.1990); Crosbyton Seed Co. v. Mechura Farms, 875 S.W.2d 353, 364 (Tex.App.—Corpus Christi 1994, no writ). The supreme court has defined “good faith,” as used in the Whistleblower Act, to mean that (1) the employee believed that the conduct reported was a violation of law, and (2) the employee’s belief was reasonable in light of the employee’s training and experience. See Wichita County v. Hart, 917 S.W.2d 779, 784-85 (Tex.1995). The first prong of this definition goes to the employee’s subjective intent. Id. at 785. The second prong of the definition is met by showing that a “reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law.” Id. Having reviewed the record, we conclude that even if Terrell subjectively believed that Collins had engaged in illegal conduct, there is no evidence to support a deemed finding that his belief was reasonable.

Concerning Terrell’s education and experience, he received a bachelor’s of science degree in law enforcement. He began his employment with TDCJ in 1970 and was promoted to warden of the Ramsey III unit in 1983. In 1985, he was promoted to warden of Beto I and he maintained that position until he was terminated in 1991. During the May 16 meeting with Hale, the only bases Terrell pointed to for his allegations against Collins were “word of mouth” and that “every warden knew about the relationship.” At trial, Terrell conceded that despite having no evidence that Collins had traveled with his girlfriend at state expense, he was willing to share that rumor with Hale. As indicated above, the objective prong of the definition of good faith is met only if a “reasonably prudent employee in similar circumstances would have believed that the facts as reported were a violation of law.” Id. (emphasis added). Terrell’s reliance solely on rumor and innuendo in reporting allegations of illegal conduct did not establish a factual basis upon which a fact-finder could conclude that a reasonable employee with the same level of training and experience would have made such a report. Id. at 785-86. To show good faith, Terrell points to his own testimony at trial that he made the allegations against Collins in good faith and that he did so based on his twenty-one years of experience in TDCJ. However, no evidence was introduced showing how this experience led Terrell to believe that a violation of law had occurred. Such evidence might have shown, at least in part, the “reasonableness” of Terrell’s belief. While Terrell’s testimony may show that he believed the “word of mouth” among TDCJ personnel, we hold that this is no evidence that a reasonable person with the same level of training and experience would have believed such rumors. Wichita County, 989 S.W.2d at 9-11. In sum, an employee does not act in good faith when his report of a “violation of law” is based entirely on unsubstantiated rumor and innuendo.

Because we conclude that Terrell failed to present evidence upon which a fact-finder could conclude that his belief that a violation of law had occurred was reasonable, the trial court erred in deeming a finding of good faith to support recovery under question one. Thus, the trial court also erred in rendering judgment on the jury’s verdict because the evidence did not support a finding on each element necessary to entitle Terrell to recovery under the Whistleblower Act. Issue one is sustained. Due to our disposition of issue one, we need not address TDCJ’s second issue.

We reverse the judgment of the trial court and render judgment that Terrell take nothing against TDCJ. See Tex.R.App. P. 43.3.

      . See Act of May 22, 1993, 73rd Leg., R.S., ch. 268, § 1, 1993 Tex. Gen. Laws 583, 609-11 (Tex. Govt.Code Ann. §§ 554.001-009, since amended) ("Former Act”).

      . The Former Act was applicable in the first trial and it is also applicable here.

      . Notes of this meeting were taken by a third-party.

      . In his brief, Terrell seems to assert that he reported “violations of law” in a letter he sent to Hale and in a letter he sent to former Governor Ann Richards. Having reviewed these letters, we cannot find any mention of the allegations against Collins that Terrell reported in his meeting with Hale. In his brief, Terrell relies only on the allegations against Collins he reported in his meeting with Hale to show possible "violations of law.”

      . The jury was instructed that it was undisputed that TDCJ is a governmental agency; that Terrell was a public employee of TDCJ; and that Terrell made reports to a law enforcement authority.

      . Rule 279 states:
      When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may ... make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such a manner as to support the judgment. Tex.R. Civ. P. 279.

      . We recognize that the definition of good faith actually provided to the jury was different from that prescribed by the supreme court in Wichita County. Nonetheless, because the definition given to the jury included the second prong of the Wichita County definition, we need not address the issue of whether the correct (Wichita County) definition or the definition actually provided should be used to measure the sufficiency of the evidence to support a deemed finding of good faith.