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    BRIDAS CORPORATION, Appellant, v. UNOCAL CORPORATION, Delta Oil Corporation Ltd., Delta International, and Deltoil Corporation, Appellees.
    No. 14-99-00196-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 27, 2000.

      Patricia A. Hill, Murray Fogler, George P. Hardy, III, William P. Maines, Paula K. Hutchinson, Houston, Susan Lea Hays, Dallas, Michael E. Orsak, Thomas R. McDade, Houston, for appellant.
    Randall W. Wilson, William W. Ogden, Phillip T. Bruns, Jeffrey C. Alexander, Houston, for appellees.
    Panel consists of Chief Justice MURPHY, Justices HUDSON, and WITTIG.
   OPINION

DON WITTIG, Justice.

The principle issue presented is choice of law. The trial court found that Turkmenistan and Afghanistan law applied to the tortious interference claims. Based upon the application of those foreign laws, the trial court also granted summary judgment because no such interference claims exist in situs of the alleged injuries. We affirm.

Bridas Corporation (“Bridas”) appeals from a summary judgment granted in favor of Unocal Corporation, Delta Oil Company Ltd., Delta International, and Deltoil Corporation (collectively as “Unocal”). Bridas brought this action against Unocal, alleging civil conspiracy and tortious interference with existing and prospective contractual relationships between Bridas and the governments of Turkmenistan and Afghanistan. Unocal moved for summary judgment on the grounds that (1) the laws of Turkmenistan and Afghanistan applied and that the laws of those nations did not recognize the causes of action alleged by Bridas, and (2) under Texas law, all of the claims alleged by Bridas failed as a matter of law. Judge Brady Elliott conducted an extensive and exhaustive eight-day eviden-tiary hearing consisting primarily of expert testimony on the choice of law issue. The trial court then granted a summary judgment in favor of Unocal. It found that the laws of Turkmenistan and Afghanistan applied to this matter and could be readily determined. The trial court also found that the laws of those nations did not recognize a cause of action for tortious interference or civil conspiracy. On appeal, Bridas presents three issues for appellate review, oppugning whether (1) the trial court erred in determining that foreign law rather than Texas law applied, (2) the trial court erred in determining that the laws of Turkmenistan and Afghanistan could be determined with certainty and predictability, and (3) the court was legally correct that Turkmen and Afghan law did not recognize the causes of action alleged by Bridas.

Background

Turkmenistan became an independent nation upon the collapse of the Soviet Union in late 1991. It is located north of Afghanistan and northeast of Iran; its western border abuts the Caspian Sea. Turkmenistan is a nation that possesses vast hydrocarbon reserves. It began entertaining offers to develop its natural resources in late 1991. Subsequently, Bridas entered into agreements to develop hydrocarbons located in the regions of Turkmenistan known as the Yashlar Field and the Keimir Field. Exploratory drilling by Bri-das in the Yashlar Field resulted in the discovery of a natural gas reserve containing an estimated 27 trillion cubic feet of gas, for which Turkmenistan had no domestic need. However, Pakistan did have a domestic need for the gas and executed an agreement with the government of Turkmenistan to purchase gas for a period of thirty years. To deliver the gas, Bridas intended to construct and operate a pipeline from Turkmenistan to Pakistan. To reach Pakistan, it would have been necessary for the proposed pipeline to travel through central Afghanistan.

Bridas contacted Unocal in 1995 to determine whether Unocal would be interested in participating in the development of hydrocarbon projects in Turkmenistan. Indeed, Bridas extended an invitation to Unocal to join its proposed project of constructing and operating the pipeline from Turkmenistan to Pakistan. However, no agreements were made between Bridas and Unocal.

Later in 1995, Turkmen officials traveled to Houston and made a presentation at a meeting hosted by the Greater Houston Partnership. Their presentation concerned petroleum opportunities in Turkmenistan and the need for export pipelines, specifically referencing the development of a gas pipeline from Turkmenistan to Pakistan. Following the meeting, Turkmen officials held private meetings with many companies, including Bridas and Unocal.

During the Summer of 1995, Bridas and Unocal, separately attempted to obtain a contract with the government of Turkmenistan to construct the pipeline. Several proposals offered by Bridas to build the pipeline were rejected by Turkmenistan. However, in the Fall of 1995, Unocal was successful in obtaining an agreement with the Turkmenistan government to construct the gas pipeline. The agreement provided that Unocal would construct the pipeline, that it would purchase gas from Turkmenistan at the Afghan border, and that Turkmenistan would retain the right to select gas reserves to dedicate to the project.

Bridas then attempted to obtain an exclusive agreement with Afghan officials to allow Bridas to construct all pipelines on Afghan territory. Afghanistan’s recent political history shows that the country has experienced much instability. After the Soviet Union withdrew its military presence in 1989, a civil war erupted in Afghanistan. The country became divided and controlled by various factions. One faction was controlled by Barhanuddin Rabbani, who controlled less than half the country. In early 1996, Bridas payed Rab-bani $1 million in exchange for an agreement which purported to confer upon Bri-das all rights to construct pipelines on Afghan territory. Thereafter, another faction forced Rabbani out of the Afghan capital city of Kabul and into the northeastern corner of the country.

Unocal made several attempts with various other Afghan factional leaders to reach an agreement for the construction of a pipeline through Afghanistan. However, Unocal was unable to obtain the right-of-ways it needed. In January 1999, Unocal announced it was withdrawing from the Pakistan pipeline project.

During the respective efforts by Bridas and Unocal to gain the needed right-of-ways in Afghanistan, the government of Turkmenistan unilaterally terminated its agreements with Bridas, which had allowed Bridas to develop and market hydrocarbons in the Yashlar Field and Keimir Field. The government of Turkmenistan sought to renegotiate its agreements with Bridas to gain more favorable terms. Bridas responded by filing an arbitration proceeding in Turkmenistan against the government of Turkmenistan.

Bridas then filed this lawsuit against Unocal, alleging that Unocal tortiously interfered with an existing and prospective contractual relationship between Bridas and the governments of Turkmenistan and Afghanistan; Bridas also alleged civil conspiracy against Unocal. Bridas sought to recover approximately $15 billion from Unocal. The trial court granted Unocal’s motion for summary judgment based upon its choice of law findings. Specifically, it found that the laws of Turkmenistan and Afghanistan applied in this case and that the laws of those countries did not recognize the causes of action alleged by Bridas.

Standard of Review

Summary judgment is proper when a movant establishes that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Ahumada v. Dow Chemical Co., 992 S.W.2d 555, 558 (Tex.App.-Houston [14 th Dist.] 1999, pet. filed). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true, resolving all doubts and indulging all reasonable inferences in favor of the non-movant. See id.; Ahumada, 992 S.W.2d at 558.

Further, Rule 203 of the Texas Rules of Evidence provides that “[t]he court, and not a jury, shall determine the laws of foreign countries.” Tex.R. Evid. 203. Rule 203 also provides that “the court’s ruling shall be subject to review as a ruling on a question of law.” Id. Rule 203 is a hybrid rule by which presentation of the law to the court resembles presentment of evidence, but which the court ultimately decides as a matter of law. See Ahumada, 992 S.W.2d at 558; Gardner v. Best Western Int’l, Inc., 929 S.W.2d 474, 483 (Tex.App.-Texarkana 1996, writ denied). The determination of the law of a foreign country may present the court with a mixed question of law and fact. Id. Summary judgment is not precluded when experts disagree on the interpretation of the law if, as in this case, the parties have not disputed that all of the pertinent foreign law was properly submitted in evidence. Id. Where experts disagree on application of the law to the facts, the court is presented with a question of law. Id. at 558-59. On appeal, we must determine whether the trial court reached the proper legal conclusion. Id.; see also Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex.1984); Salazar v. Coastal Corp., 928 S.W.2d 162, 166 (Tex.App.Houston [14th Dist.] 1996, no writ).

Discussion

Choice of Law

In its first issue presented for review, Bridas questions whether the trial court erred in determining that the laws of Turkmenistan and Afghanistan applied to its tort claims against Unocal rather than the laws of Texas. The Texas Supreme Court has identified the choice of law principles applicable to tort claims, stating that

[I]t is the holding of this court that in the future all conflicts cases sounding in tort will be governed by the “most significant relationship” test as enunciated in Sections 6 and 145 of the Restatement (Second) of Conflict [Of Laws]. This methodology offers a rational yet flexible approach to conflicts problems. It offers the courts some guidelines without being too vague or too restrictive. It represents a collection of the best thinking on this subject....

Gutierrez v. Collins, 588 S.W.2d 312, 318 (Tex.1979) (footnotes added); see also CPS Int’l, Inc. v. Dresser Indus., Inc., 911 S.W.2d 18, 28-9 (Tex.App.-El Paso 1995, writ denied). We therefore apply section 145 to the facts of the instant case. Before we begin our section 145 analysis, however, we turn to section 156 of the Restatement for guidance as to the relative importance of the four factors identified in section 145. Section 156 provides the following:

Tortious Character of Conduct
(1) The law selected by application of the rule of § 145 determines whether the actor’s conduct was tortious.
(2) The applicable law will usually be the local law of the state where the injury occurred.

Restatement (Second) Conflict Of Laws § 156 (1971)(emphasis added). Thus, the Restatement reveals an emphasis on the situs of the injury, at least with respect to the application of section 145. See CPS Int’l, Inc., 911 S.W.2d at 29. Accordingly, it is this factor that we first analyze.

There is little dispute that the places where the injuries alleged by Bridas occurred are in the nations of Turkmenistan and Afghanistan. That is, the contractual or prospective relationships that Bridas alleges Unocal interfered with are centered in Turkmenistan and Afghanistan. Specifically, Bridas alleges that as a result of Unocal’s interference with its contractual and prospective relationships with foreign governments, it has been prevented from constructing and operating a gas pipeline originating in Turkmenistan, traveling through Afghanistan, and ending in Pakistan. While Bridas argues in its brief, without citing any supporting authority, that “where the injury occurred provides no guidance whatsoever in determining what ... law should apply,” we nevertheless find that the first contact we consider in employing the “most significant relationship” test strongly favors an application of foreign law. See Restatement (Second) of Conflict of Laws § 145 (1971); see also CPS Int’l, Inc., 911 S.W.2d at 29.

The second contact we consider under section 145 is the place where the conduct causing the injury occurred. See id. Bri-das contends that “the great majority of the conduct causing the injury occurred in Texas.” Bridas asserts that the “officers directing the project [for Unocal] were based [in Sugar Land, Texas].” As to this contact, we find the facts in CPS Int’l, Inc. to be indistinguishable. See 911 S.W.2d at 29-30. Realizing this, Bridas argues that we should “reject” the holding in CPS Int’l, Inc. because it leads to an “unjust if not astonishing result....” We disagree. In CPS Int’l, Inc., the plaintiff alleged that the defendants tortiously interfered with a contractual relationship between the plaintiff and a private Saudi Arabian party to perform field servicing in Saudi Arabia. Id. The plaintiff argued, unsuccessfully, that Texas law applied to its cause of action because the conduct alleged to be tortious was directed from Texas. Id. at 30. The court of appeals held “that tor-tious conduct may have been directed from Texas does not alter the reality that the conduct was directed to and carried out in Saudi Arabia, and it was the carrying out of the conduct that the was the source of its harmful nature.” Id. Thus, the court found that the second contact under section 145 favored the application of Saudi Arabia law. Id.

While we agree with the analysis in CPS Int’l, Inc., we also note the following factors in this case that favor the application of foreign law under the second contact identified in section 145 of the Restatement (Second) Conflict of Laws. First, the chief operating officer for Bridas, Glen Nelle, unequivocally acknowledged in his deposition testimony that the alleged interference by Unocal occurred in Turkmenistan. Second, in his affidavit in support of the summary judgment, Marty Miller, Vice-President of New Ventures in central Asia for Unocal, stated

I was the principal negotiator for Unocal Corporation. The June Protocol, the Gas Contract and the Oil Protocol were all negotiated in Turkmenistan, not in Texas. Both protocols and the Gas contract were negotiated in face-to face meetings in Turkmenistan and not through conference calls or other less personal means of communication. In 1995,1 traveled to Turkmenistan on four separate occasions to negotiate these agreements with the Government of Turkmenistan.

Assuming arguendo that any communication was made by Unocal with Turkmen or Afghan officials from Texas soil, concerning the construction and operation of a gas pipeline, we find that the record supports a finding that such communication does not favor the application of Texas law. We are required to consider the qualitative nature of the contacts under section 145 of the Restatement (Second) Conflict of Laws. See Gutierrez, 583 S.W.2d at 319. In this connection, the record shows that the most significant acts alleged to be tor-tious by Bridas occurred on Turkmenistan soil. Accordingly, under the second contact of the “most significant relationship test,” we find that it favors the application of foreign law.

The third contact we consider under section 145 is the parties’ respective places of incorporation and places of business. Bri-das is incorporated in the British Virgin Islands and is based in Buenos Ares, Argentina. Before beginning its operations in Turkmenistan, Bridas formed a joint venture agreement with the Turkmenistan government, presumably under Turkmen law, to develop hydrocarbons; the name of the joint venture was “Joint Venture Yash-lar.” Unocal is a Delaware corporation headquartered in California. The Delta entities are incorporated in Delaware, the Channel Islands, and the Kingdom of Saudi Arabia; their principal place of business is in Jeddah, Saudi Arabia. While each of the parties maintains an office in Sugar Land or Houston, none is a Texas corporation. Each of the parties also maintain an office in Ashgabat, Turkmenistan. According to Comment e, relating to the contacts considered under section 145 of the Restatement (Second) Conflict of Laws, this third contact is of little significance when the action is based upon a business or financial interest or interference with contractual relations. In any event, while this contact appears to be largely neutral, we find that it favors the application of foreign law.

The foregoing analysis of the first three contacts in section 145 does much to foretell the outcome of the analysis of the fourth, and final, contact. Indeed, we think it rare that the injury, the conduct producing it, and the parties’ places of incorporation and business would point to the same foreign jurisdiction, yet the relationship would somehow be centered in Texas. See CPS, Int’l, Inc., 911 S.W.2d at 30. Although we do not trivialize the final contact in section 145, we find it potentially duplicative of an analysis of the first three, which finding is supported by the recognition, present in the language of section 145(2)(d) itself, that analysis of an extant relationship will only be intermittently possible. Id. In any event, the record in this matter reveals that no contractual nor business relationship existed between Unocal and Bridas at the time Bridas filed its suit; particularly, not in Texas. Nonetheless, to the extent any relationship existed between them, it was centered in foreign territory where the hydrocarbons were located and from where the pipeline was to be constructed. We conclude that the final contact under section 145 of the Restatement (Second) Conflict of Laws favors the application of foreign law.

We find that both the quantity and quality of the contacts identified in section 145 mandates the application of foreign law to all tort claims asserted by Bridas because the parties and the subject matter of this litigation have a more significant relationship to the nations of Turkmenistan and Afghanistan than to Texas.

As a final matter, relying on section 6 of the Restatement (Second) Conflict of Laws, Bridas contends that Texas should apply to this action because “Texas has a substantial public policy interest in regulating the conduct of persons doing business within its borders.” See note 1, supra. Bridas also contends that Texas law should apply because of the difficulty in ascertaining and predicting Turkmen and Afghan law. The latter contention is addressed below. Concerning the former, we note that Bridas chastises the court in CPS Int’l, Inc. for reaching its conclusion without analyzing and ignoring altogether the policy factors contained in section 6 of the Restatement (Second) Conflict of Laws. However, our reading of CPS Int’l, Inc. reveals an analysis of the public policy considerations identified in section 6. See 911 S.W.2d at 33-34. The court stated the following:

Section[ ] 6 ... of the Restatement do[es] not alter our conclusion that Appellants’ tort claims are governed by Saudi Arabian law. These sections direct courts to consider the policies of the forum. Whether or not Texas has an important policy interest in policing the conduct of subsidiaries of businesses with Texas offices that occurs outside Texas and has no effect on its territory, this is only one of several factors listed in Section 6. Further, Section 145 of the Restatement directs us to consider Section 6 factors in light of the specific contacts listed in Section 145. * * ⅝ In a discussion of the fundamental state policy exception to the general rule of Section 187(2) [of the Restatement, concerning contractual rights], which we emphasize is irrelevant, the Texas Supreme Court indicated the exception’s narrow scope.
Comment g to section 187 does suggest that application of the law of another state is not contrary to the fundamental policy of the forum merely because it leads to a different result than would obtain under the forum’s law. We agree that the result in one case cannot determine whether the issue is a matter of fundamental state policy for purposes of resolving a conflict of laws. Moreover, the fact that the law of another state is materially different from the law of this state does not itself establish that application of the other state’s law would offend the fundamental policy of Texas. In analyzing whether fundamental policy is offended under section 187(2)(b), the focus is on whether the law in question is a part of state policy so fundamental that the courts of the state will refuse to enforce an agreement contrary to that law, despite the parties’ original intentions, and even though the agreement would be enforceable in another state connected with the transaction.
DeSantis [v. Wackenhut Corp. ], 793 S.W.2d 670, 680 [ (Tex.1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991) ] (emphasis added). We think this indication of the narrowness of the fundamental policy exception in Section 187(2) applicable to tort claims examined under Section 115 to the extent Section W> directs courts to consider the policies of the forum and other 'interested states as directed by Section 6. We therefore approach Sections 6(2)(b) and 6(2)(c) with the presumption that they will rarely be dispos-itive.
There is no evidence to suggest the trial court failed to consider or attributed too little weight to the public policy of Texas. We have examined the relationships among the parties, Texas, Saudi Arabia, and the subject matter of this litigation pursuant to the Restatement and concluded that the parties and this litigation have the most significant relationship to Saudi Arabia.

CPS Int’l, Inc., 911 S.W.2d at 34 (emphasis added).

We agree with the court in CPS Int’l, Inc. in its core holdings. We hold that the legal conclusion identified in the trial court’s summary judgment relating to the application of foreign law in this action is proper. Accordingly, we overrule the Bri-das’ first issue presented for review.

Content of the Foreign Law

In its final two issues presented for review, relying in part upon section 6 of the Restatement, Bridas questions whether the trial court erred in determining that the laws of Turkmenistan and Afghanistan could be readily and predictably ascertained and that neither of those nations recognized the tort actions alleged by Bri-das.

a. Turkmenistan

Concerning the content and predictability of Turkmenistan law, Unocal presented testimony from three expert witnesses to support the contention in its motion for summary judgment that Turkmenistan law did not recognize the tort causes of action alleged by Bridas. The first witness was Professor Sarah Reynolds. Professor Reynolds holds a position at Lieden University and the Davis Center for Russian Studies at Harvard University Law School. She is also a former law school professor at Harvard University Law School, where she taught Soviet law. She also taught classes on the legal systems of the now independent republics of the former Soviet Union. She testified that Turkmenistan operates under a civil code system of law, as opposed to the common law system followed in the United States. After the collapse of the Soviet Union, Turkmenistan continued to operate under its civil code, which was promulgated by the Soviet Union and has been in effect, as amended, since 1964. Professor Reynolds testified that the Turkmenistan Civil Code does not provide any specific statute nor general provision to permit a cause of action for tortious interference or civil conspiracy. She testified that Article 445 of the civil code is the general tort claims provision of the Turkmenistan Civil Code. Article 445 provides the following:

Harm caused to the person or property of a citizen, and also harm caused to an organization, is subject to compensation by the person causing the harm, in full measure, with the exception of the instances envisioned in the legislation of the USSR.
The causer of the harm shall be released from its compensation is he shows that the harm was not caused by his fault. Harm caused by legal actions shall be subject to compensation only in the instances envisioned in legislation.

Professor Reynolds testified that the four elements of Article 445 are (i) the occurrence of harm to person or property, (ii) a causal connection between the action (omission) of the respondent and the harm, (iii) the unlawful nature of the action (omission) of the respondent, and (iv) fault on the part of the respondent (in the form of intent or negligence). She testified that the allegation by Bridas of tortious interference with an existing or prospective contract does not satisfy the first element of Article 445 because the harm suffered must encompass harm to life or health of a person, land, or tangible property. She testified that the allegations by Bridas also fail to satisfy the second element of Article 445 because the causal connection between the conduct and the harm must be a direct one. In other words, the harm Bridas suffered, if any, was caused directly by the Turkmenistan government by not honoring its contractual promises to Bridas; and Unocal’s involvement in causing the harm, if any, was indirect. Professor Reynolds further opined that the allegations by Bri-das failed to satisfy the third element of Article 445 because the conduct of Unocal in entering into a contract with the Turkmenistan government was lawful. That is, the act of entering into contract is not an illegal act. Because the first three elements of Article 445 were not satisfied, Professor Reynolds testified that a discussion of the fourth element would not be necessary because a Turkmenistan court would dismiss the action prior to addressing the issue of fault. Concerning the allegation of civil conspiracy, Professor Reynolds testified that “[tjhere is nothing remotely similar to a civil conspiracy claim under the Turkmen system.” She concluded that “[n]one of the allegations that I read in the petitions constituted an illegal act or unlawful act under Turkmen law.”

The next expert witness presented by Unocal was Professor Sergei Lebedev. Professor Lebedev is a professor of law at the Moscow Institute of International Relations. He is also head of the private international and civil law department at the university. Professor Lebedev has published more than 150 books, articles and surveys on legal matters of international commerce, comparative law, arbitration, and international law. Professor Le-bedev is also an arbitrator, hearing cases throughout Europe. He testified that six months prior to his testimony in this case he was involved in a Russian arbitration matter in which he had to apply Turkmeni-an law. Professor Lebedev testified that he reviewed the allegations contained in Bridas’s petition and carefully studied the Turkmenistan Civil Code and commentaries before reaching his conclusion in this case. When asked whether the allegations made by Bridas were valid under Turkmen law, Professor Lebedev stated, “My answer is negative.” He further testified that he agreed with the findings made by Professor Reynolds concerning the application of Article 445 to the allegations made by Bridas.

The final witness presented by Unocal bearing upon Turkmenistan law was Professor Murad Khaitov. Professor Khaitov is a professor of constitutional and international law at the Turkmen State Institute. He testified extensively about the structure of the Turkmen court system and how judges are selected. The Turkmen judiciary is comprised of several trial courts and courts of review. Judges are appointed to the bench; the highest level judges are appointed by the president with a preliminary agreement between the president and the parliament; and all other judges are appointed by the president upon recommendation of the highest level court. In his expert opinion, Professor Khaitov stated that the laws in Turkmenistan are applied by the judiciary to all disputes, no matter the parties, in an evenhanded fashion. Lastly, Professor Khaitov testified that in his expert opinion, the judiciary in Turkmenistan operates independently of the country’s political elite.

Concerning the content and predictability of Turkmenistan law, Bridas presented two witnesses. Its first witness was Joseph Hulings. Hulings was the first United States Ambassador to Turkmenistan. He began his ambassadorship in August 1992, shortly after the collapse of the Soviet Union and Turkmenistan became an independent nation. Hulings remained the United States Ambassador to Turkmenistan for a period just over three years. Hulings testified that, based upon his experiences in Turkmenistan, the judiciary does not operate independently nor is there any rule of law in Turkmenistan. Based upon Ms assessment of the political atmosphere and the influence of the president on judicial actions, Hulings opined that the predictability of the law or certainty of the result of an action governed by Turkmenistan law would be purely speculative.

Next, Bridas presented expert testimony from Professor Michael Newcity. He is the coordinator for the Center for Slavic, Eurasian and East European Studies at Duke University School of Law. Professor Newcity teaches a course at the law school on the legal aspects of doing business in the former Soviet Union. He testified that the Turkmenistan Civil Code is derived from the Russian Civil Code. In reaching his conclusion that Turkmenistan law would recognize the tort causes of action alleged by Bridas, Professor Newcity reviewed the applicable Soviet and Turkmenistan legal provisions and the relevant pleadings on file in this case. Professor Newcity’s opinion was based, in part, upon his conclusion that because (1) Turkmems-tan was in process of evolving into a market economy, its laws would need to adjust accordingly to protect entrepreneurs actively participating in that economy, and (2) the issue of whether Turkmenistan would truly recognize a cause of action for interference with a business relationship is one of first impression, having never been squarely addressed by a Turkmenistan court. Finally, Professor Newcity opined that, given the changed conditions in the post-Communist world of the former Soviet Union, Article 445 of the Turkmenistan Civil Code, as written, theoretically should be interpreted to provide a remedy for interference with business relations. He reasons that the concept of “property,” identified in article 445, contemplates a business relationship and loss of profits.

Regarding the present interpretations and state of the law in Turkmenistan, none of the experts disagree that the specific tort causes of action alleged by Bridas against Unocal are not recognized. Professor Newcity, presented by Bridas, suggests that given the changed economy and other conditions occurring Turkmenistan, its courts “should” interpret Article 445 of the Turkmenistan Civil Code to provide a remedy for the actions alleged by Bridas. However, Professor Newcity’s opinion is conjecture. In reaching our decision, we can be concerned only with the present scope of Turkmenistan law.

Though the expert witnesses in this case disagree on the interpretation and predictability of Turkmenistan law, we conclude that the evidence presented by Unocal shows that Turkmenistan law is readily and reliably ascertainable and that it does not presently recognize the tort causes of action alleged by Bridas. See Ahumada, 992 S.W.2d at 558-59. Accordingly, the trial court’s finding that Unocal was entitled to judgment as a matter of law was the proper legal conclusion.

b. Afghanistan

Concerning the content and predictability of Afghanistan law, Unocal presented testimony from four expert witnesses to support the contention in its motion for summary judgment that Afghanistan law did not recognize the tort causes of action alleged by Bridas. The first witness was Professor Ian David Edge. Professor Edge is a law professor at the University of London, a practicing barrister in London, and a consultant on the laws of the Middle East, Islamic Law.

Professor Edge testified that the country of Afghanistan follows a very well-established Islamic system of law, purely non-secular. More specifically, Afghanistan follows the law of the Hanafi school of Islamic law. The traditional rules of Islamic law are referred to as the Shari’a. Professor Edge testified that there is no government legislation nor judicial precedent in the Afghan legal system. Further, Islamic law is interpreted not by judges but, rather, religious scholars. The two main written sources of Islamic law are the Qur’an and the Sunna. Another written source of Islamic law is the Mejelle. According to Professor Edge, the compilation of the Mejelle was an official attempt by the Ottoman Empire to distill some of the most important civil principles (transactions between people) of Islamic law. Afghanistan also has a civil code that was promulgated in the 1960s, utilized only by the Shari’a courts in the northern region of Afghanistan. Professor Edge testified that the Afghan civil code is quite similar a collection as the Mejelle; that is, it is a collection of important principles taken from the Hanafi or Shari’a. Concerning the application of these laws and the administration of justice generally, Professor Edge testified that Afghanistan courts function autonomously and quite effectively, even in the face of ongoing civil unrest.

Upon reviewing various sources of Afghan law and commentaries, Professor Edge opined that Afghan law does not recognize a cause of action for tortious interference or civil conspiracy. He testified that the Shari’a provides for a tort-like cause of action only when physical injury has occurred to a person or property. He stated that because interference with an existing or prospective contractual relationship does not relate to tangible property or a person, no cause of action exists under the Shari’a. Professor Edge also testified that the Sahri’a requires that for liability to attach to a person, the harm caused must be direct and that the causation principles are strict. In other words, ordering a person to break a contract with another person does not make the person making the order liable because there is no causation as to the person giving the order under the Shari’a. Support for his conclusion, Professor Edge noted, is found in Articles 89 and 1510 of the Mejelle. Article 89 provides the following:

The judgment for an act is made to fall on the person who does it. And it does not fall on the person who gives the order, as long as he does not compel the doing of the act.

Article 1510 provides the following, including an example to illustrate:

The order of a person is lawful in respect of his own property only.
Therefore, is someone says to another, “Throw this property into the sea,” and the person who receives the order, throws it, knowing that the property belongs to someone else, the owner can enforce compensation for that property from the person who threw it. Nothing is necessary for the person who gave the order, so far as he has not used force.

Lastly, Professor Edge testified that under Article 91 of the Mejelle, a “harm” is not compensable under the Shari’a if it resulted from a lawful act. He stated that “entering into a contract is a lawful act, which, even if it causes harm to somebody else, doesn’t result in liability.” Consequently, according to Professor Edge, because Unocal’s act of entering into a contract with the Afghanistan government was a lawful act, Bridas could have no cause of action against Unocal under the Shari’a even if Unocal’s contract had the effect of interfering with Bridas’s prior contract with the Afghanistan government.

The second witness presented by Unocal bearing upon Afghan law was Muhammed Rostayee. He is a lawyer licensed to practice law in Afghanistan. He earned his L.L.M. degree from the George Washington University School of Law. Rostayee is the attorney general of the National Islamic Movement of Afghanistan (NIMA). This position is also referred to as the premier prosecutor of Afghanistan. He is responsible for prosecuting criminals and “implementation of the law to Afghanistan and officers and generally in the public.” He is also the head of the Afghanistan Human Rights Commission.

After detailing the procedures for trying a lawsuit in an Afghanistan court and the appellate process, Rostayee agreed with Professor Edge’s conclusions concerning the content and predictability of Afghanistan law. Specifically, he testified that “[tjhere is no mention of [the causes of action pled by Bridas] in the civil code and neither in the Shari’a law.”

The final witness presented by Unocal bearing upon Afghan law was Abdul Salam Azimi. He is a former law professor and university president at Kabul University Law School in Afghanistan. After the invasion by the Soviet Union in 1978, Professor Azimi fled to Pakistan and eventually accepted a position in Kuwait, working for the government compiling the Islamic Law Encyclopedia. Professor Azimi testified that the courts are presently functioning in Afghanistan and that trials and appeals are being resolved by Afghan courts. As did Professor Edge and Rostayee, Professor Azimi testified that under the Afghan Civil Code and the Shari’a, commercial injuries in Afghanistan are compensable only when the injuries are direct. Thus, according to Professor Azimi, as pled, Bri-das has no cause of action against Unocal under Afghan law for tortious interference or civil conspiracy.

Bridas presented one witness bearing upon Afghan law. Mark Hoyle, Ph.D., is an administrative law judge in London, England, and is a consultant on Islamic law. Dr. Hoyle testified that in researching the issues presented to him by Bridas, he experienced great difficulty in locating reliable sources dealing with Afghan law. He nevertheless testified that in his opinion, based upon the Hanafi, as it has been codified in the Afghan Civil Code and Commercial Code, a cause of action exists for interference with an existing and prospective contractual relationship. Dr. Hoyle relied on various articles of the civil code, relating to varying subject matter, to reach his conclusion. He also relied on interpretations of Islamic law followed in the nations of the United Arab Emirates, Jordan, and Egypt.

Unocal and Delta responded to Dr. Hoyle’s testimony by presenting testimony from Frank Vogel, Ph.D. Dr. Vogel is a professor of law at Harvard University Law School. He is also the director of the Islamic Legal Studies Program. He teaches nothing but courses relating to Islamic law, including contract law, banking law, and commercial law. Dr. Vogel provided detailed testimony concerning the substance and applicability of Afghan law, tracing the origins of Islamic law back thirteen centuries. In directly controverting the testimony provided by Dr. Hoyle concerning his interpretation of various Afghan civil code articles, Dr. Vogel opined that the tort causes of action alleged by Bridas do not exist under Afghan law. Dr. Vogel testified that the Afghan-to-English translation of the civil code utilized by Dr. Hoyle was “inexact.” Dr. Vogel testified that his opinion would be the same, whether applying traditional Shari’a principles under the Hanafi school, found in the Me-jelle, or the Afghan civil or commercial code. See note 6, supra. In his attempt to cast light upon the religious policies that support his findings, Dr. Vogel provided the following testimony:

One thinks, when one encounters anything like this, these torts specifically, if you encounter something in the translation that corresponds with these torts, you come up with absolutely nothing, not in any secondary works, not in anything that you have read in original works.
So first there is a presumption against such a tort, you must admit.
Then you think, well, might that be, because it is not unlikely that this situation has never arisen before. And then you think, well, perhaps it contradicts basic principles, and there is the principle that springs to mind that does stand in the way of this recognition of these torts that’s been often mentioned. It is represented by Article 89 of the Mejelle
and Article 1510.... So this must be some part of the explanation as to why [these] torts are not recognized explicitly and that is, as it reads, Article 89, “The judgment for an act is made to fall on the person who does it. And it does not fall on the person who gives the order, as long as he does not compel the doing of the act.” This is one in the Mejelle, and it appears in several others here, such as Article 1510: The order of a person is lawful in respect to his own property only. Therefore, if someone says to another, “Throw this property into the sea,” and the person who receives the order, throws it, knowing that the property belongs to someone else, the owner can enforce compensation for that property from the person who threw it. Nothing is necessary for the person who gave the order, so far as he has not used force....
The concept is a profound one actually. The law is linked with morality and the onus for acts is placed on the person who has sort of got the point for the decision, that is, the one who takes it upon himself to perform the wrongful act, who voluntarily goes ahead and does something immoral.
So the person who has ordered it offers no excuse for the person who does it. The person who does it is going to be held liable. This law is religious law, and they feel that the person who makes the fateful step to do the wrongful thing had a point of decision, and he should have withheld the act.
We may make a moral judgment somewhat differently. But they have felt to accentuate the moral responsibility of the individual, this ought to be the rule.

Thus, according to Dr. Vogel’s testimony, absent physical force, the act by Unocal, if any, that caused the government of Afghanistan to breach its gas pipeline contract with Bridas, is not a compensable injury under Afghan law. The liability for breaching the contract and causing the harm to Bridas, if any, would fall squarely upon the shoulders of the Afghanistan government, whom was directly responsible in the physical chain of causation for causing the breach of contract and resulting harm.

Though the expert witnesses in this case disagree on the interpretation and predictability of Afghanistan law, we conclude that the evidence presented by Unocal shows that Afghanistan law is readily and reliably ascertainable and that is does not recognize the tort causes of action alleged by Bridas. See Ahumada, 992 S.W.2d at 558-59. Accordingly, the trial court’s finding that Unocal was entitled to judgment as a matter of law was the proper legal conclusion.

Briefly, we return our attention to the issue of public policy, which permeates the respective provisions contained in section 6 of the Restatement (Second) Conflict of Laws and is heavily relied upon by Bridas in assailing the trial court’s summary judgment. We observe that Texas courts will not enforce a foreign law that violates good morals, natural justice or is prejudicial to the general interests of our citizens. See Gutierrez, 583 S.W.2d at 321. As the Supreme Court recognized in Gutierrez in analyzing the public policy ramifications of applying the laws of Mexico and in rejecting the “dissimilarity doctrine,” it is clear that the laws of Turkmenistan and Afghanistan, respectively, are different than ours in many respects. Id. However, these differences by no means render the laws of Turkmenistan and Afghanistan violative of Texas public policy. Id. The laws of these nations have been in place and followed for many years, if not many centuries. Their laws are well-established, predictable, and certain. Neither nation recognizes tort causes of action for interference with existing or prospective contractual relations nor civil conspiracy. Whether the policies behind the failure to recognize these torts is based upon their systems of government or religion, there is nothing in the substance of the laws of Turkmenistan or Afghanistan, relative to the actions alleged by Bridas, inimical to good morals, natural justice, or the general interests of the citizens of this state. Id. at 322. The final two issues presented for review by Bridas are respectively overruled.

Because of our disposition herein, we need not address Unocal’s cross-points concerning whether the trial court’s summary judgment was supported under Texas law and whether the trial court should have granted Delta International’s and Delta Oil Company’s special appearances.

The summary judgment of the trial court is affirmed.

      . Section 6 sets forth the general principles by which the more specific rules are to be applied, and provides the following:
      Choice-of-law Principles
      (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
      (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include:
      (a) the needs of the interstate and international systems,
      (b) the relevant policies of the forum,
      (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
      (d) the protection of justified expectations,
      (e) the basic policies underlying the particular field of law,
      (f) certainty, predictability and uniformity of result, and
      (g) ease in the determination and application of the law to be applied.

      . Section 145 lists factual matters to be considered when applying the principles of section 6 to a tort action, and provides the following:
      The General Principle
      (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
      (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
      (a) the place where the injury occurred,
      (b) the place where the conduct causing the injury occurred,
      (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
      (d) the place where the relationship, if any, between the parties is centered.
      These contacts are to be evaluated according to their relative importance with respect to the particular issue.

      . Except the State of Louisiana, which has followed a civil code system.

        . Also known as "Koran.”

      . The Ottoman Empire was the last holy empire that governed in the Middle East from 1517 to 1918.

      . Compare Afghanistan Civil Code Article 787: "Action shall relate to the actor, not the commander, except when the actor is intimidated. In actions, only complete, aversion shall be recognized as credible force majeure.” Article 551 of the Afghanistan Civil Code defines "aversion” as "intimidation of a person, unreasonably for executing an action without consent whether it may be material or spiritual.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James W. BRIDLE, Appellant, v. The STATE of Texas, State.
    No. 2-00-045-CR.
    Court of Appeals of Texas, Fort Worth.
    April 27, 2000.

      Robert S. Williams, Fort Worth, for Appellant.
    Tim Curry, Crim. Dist. Atty., Betty Ar-vin, Asst. Dist. Atty., Tarrant County, for Appellee.
    Panel D: HOLMAN, J.; CAYCE, C.J.; and GARDNER, J.
   OPINION

PER CURIAM.

James W. Bridle appeals from the trial court’s order requiring him to have an ignition interlock device installed on his vehicle as a condition of his pretrial bond. We dismiss the appeal for want of jurisdiction.

Appellant was arrested on December 12, 1999 for driving while intoxicated (DWI). The information contains an enhancement paragraph alleging that appellant was previously convicted of DWI on January 4, 1999. Because appellant was charged with his second DWI offense, the trial court conditioned appellant’s pretrial bond in part on the installation of an ignition interlock device on his vehicle, as required by Tex.Code CRIM. Proc. Ann. art. 17.441 (Vernon Supp.2000). Appellant appeals from the order requiring the interlock ignition device.

Generally, we only have jurisdiction to consider an appeal by a criminal defendant where there has been a final judgment of conviction. See Workman v. State, 170 Tex.Crim. 621, 343 S.W.2d 446, 447 (1961); McKown v. State, 915 S.W.2d 160, 161 (Tex.App. — Fort Worth 1996, no pet.). We do not have jurisdiction to review interlocutory orders such as the one in this case unless that jurisdiction has been expressly granted to us by law. See Ex parte Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App.1991). The narrow exceptions to this rule do not apply here, and we have found no statute that would authorize us to address appellant’s interlocutory appeal. No statute or rule vests this court with jurisdiction over direct appeals from pretrial bond rulings. See Benford v. State, 994 S.W.2d 404, 409 (Tex.App. — Waco 1999, no pet.) (holding it lacked jurisdiction over direct appeal from pretrial order increasing bail); Wright, 969 S.W.2d at 590-91 (refusing to construe Tex.R.App. P. 31.1 as encompassing direct appeal of pretrial order revoking bond); Ex parte Shumake, 953 S.W.2d 842, 844 (Tex.App. — Austin 1997, no pet.) (holding pretrial order raising bail is not appeal-able).

On February 17, 2000, we notified the parties of our concern that we lacked jurisdiction over this appeal and informed them that the appeal would be dismissed for want of jurisdiction unless appellant or any party desiring to continue the appeal filed with the court a response showing grounds for continuing the appeal. See Tex.R.App. P. 44.3. No response has been filed. Accordingly, we dismiss the appeal for want of jurisdiction.

      . The exceptions include: (1) certain appeals while on deferred adjudication community supervision, see Kirk v. State, 942 S.W.2d 624, 625 (Tex.Crim.App.1997); (2) appeals from the denial of a motion to reduce bond, see Tex.R.App. P. 31.1; McKown, 915 S.W.2d at 161; and (3) certain appeals from the denial of habeas corpus relief, see Wright v. State, 969 S.W.2d 588, 589 (Tex.App. — Dallas 1998, no pet.); McKown, 915 S.W.2d at 161.


author: KEM THOMPSON FROST, Justice.

text:
    Kedric De’Shaun KEGLER and Terry Lynn Kegler, Appellants, v. The STATE of Texas, Appellee.
    Nos. 14-99-00018-CR, 14-99-00019-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    May 4, 2000.

      Randy Schaffer, Houston, for appellants.
    William J. Delmore, III, Houston, for appellee.
    Panel consists of Justices MAURICE E. AMIDEI, ANDERSON and FROST.
   OPINION

KEM THOMPSON FROST, Justice.

In this consolidated appeal, we address ineffective assistance of counsel issues arising out of one defense lawyer’s joint representation of two brothers who were both charged with the offense of aggravated robbery and tried together in a single proceeding.

Introduction

The appellants, Kedric De’Shaun Kegler (“Kedric”) and Terry Lynn Kegler (“Terry”), each pled guilty to the offense of aggravated robbery. The trial court sentenced Kedric to thirty years and Terry to forty years imprisonment. Kedric appeals on two points of error, claiming: (1) his guilty plea was involuntary due to ineffective assistance of counsel, and (2) he was denied effective assistance of counsel because his lawyer also represented Terry. Terry appeals claiming he was denied effective assistance of counsel because his lawyer also represented Kedric. We overrule these points of error and affirm the decision of the trial court.

Factual BackgRound

On the afternoon of June 4,1997, Kedric and Terry were riding in a car with their friend, Christopher Thorne. As they were driving, Thorne remarked that “somebody is going to have to lay it down tonight,” which is street jargon for robbing someone. The three men first considered robbing the occupants of a truck, but Terry decided against it when another truck parked nearby. Then they considered robbing a man who was wearing a necklace, but Terry indicated he “didn’t feel like jacking him.” After rejecting these two possible victims, they spotted Tre-maine Green and Cashandra Hudgins sitting at a bus stop. According to the pre-sentence investigation report, Thorne told Kedric, “I’m gonna, we gonna go do them, what you gonna do?” Kedric replied that he would stay in the car.

While Kedric waited in the car, Terry and Thorne approached the bus stop where Green and Hudgins were waiting. Pointing a .357 magnum pistol at the unarmed couple, Thorne demanded their money and Green’s watch. The victims responded by throwing Hudgins’ purse and Green’s watch to the ground. Thorne then shot and killed Green. While Hud-gins ran to get help, Thorne and Terry fled the scene. Kedric, hearing the gunshots, backed the car out of the driveway where he was waiting, stopped to pick up Thorne and Terry, and then sped away. En route to the Keglers’ residence, Thorne sold the gun used to shoot Green. Later that evening, Kedric went over to the house of his former girlfriend, LaKeysha LaGrange and told her what ha,d happened.

According to the pre-sentence investigation report, Terry initially told the police that he knew nothing about the offense and that he had been at home at the time it occurred. Later, Terry admitted that he had been with Thorne when Thorne committed the robbery.

Both Kedric and Terry pled guilty to aggravated robbery without an agreed recommendation on punishment, and both filed motions for deferred adjudication of guilt. One attorney represented both Kedric and Terry at the plea and sentencing hearings.

Voluntariness of Plea

In his first point of error, Kedric asserts that his guilty plea was involuntary because of ineffective assistance of counsel. He argues that defense counsel was deficient in not advising him that he was not culpable as a party merely by being present at the crime scene when he did not commit an affirmative act to assist the primary actors (Terry and Thorne) in the robbery and, in fact, refused to participate.

Both the federal and state constitutions guarantee the accused the right to have the assistance of counsel. See U.S. Const. Amend. VI; Tex. Const. Art. I, § 10; Tex.Code CRIM. Proc. art. 1.05 (Vernon 1977). The right to counsel includes the right to reasonably effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex.Crim.App.1997). This right extends to the plea bargaining process. See Ex parte Lafon, 977 S.W.2d 865, 867 (Tex.App. — Dallas 1998, no pet.) (citing Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App.1991)).

To prove a plea was involuntary because of ineffective assistance of counsel, the appellant must show (1) counsel’s representation/adviee fell below an objective standard and (2) this deficient performance prejudiced the defense by causing him to give up his right to a trial. See Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim.App.1997), cert. denied, 525 U.S. 810, 119 S.Ct. 40, 142 L.Ed.2d 31 (1998) (citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); Strickland 466 U.S. at 688-92, 104 S.Ct. 2052; McMann v. Richardson, 397 U.S. 759, 770-71, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)). The appellant must prove ineffective assistance of counsel by a preponderance of the evidence. See id.

In any case analyzing the effective assistance of counsel, we begin with the strong presumption that counsel was competent. See Thompson, 9 S.W.3d at 813 (Tex.Crim.App.1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994) (en banc). We presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson, 877 S.W.2d at 771. The appellant has the burden of rebutting this presumption by presenting evidence illustrating why trial counsel did what he did. See id. The appellant cannot meet this burden if the record does not specifically focus on the reasons for the conduct of trial counsel. See Osorio v. State, 994 S.W.2d 249, 258 (Tex.App.— Houston [14th Dist.] 1999, pet. ref'd); Kemp v. State, 892 S.W.2d 112, 115 (Tex. App. — -Houston [1st Dist.] 1994, pet. refd). This kind of record is best developed in a hearing on an application for a writ of habeas corpus or a motion for new trial. See Kemp, 892 S.W.2d at 115; see also Jackson v. State, 973 S.W.2d 954, 957 (Tex. Crim.App.1998) (stating that when counsel is allegedly ineffective because of errors of omission, collateral attack is the better vehicle for developing an ineffectiveness claim). When the record is silent as to counsel’s reasons for his conduct, finding counsel ineffective would cause the court to engage in mere speculation, a practice we will not indulge. See McCoy v. State, 996 S.W.2d 896, 900 (Tex.App. — Houston [14th Dist.] 1999, pet. refd) (citing Jackson, 877 S.W.2d at 771).

In this case, the record is silent as to the advice defense counsel gave Kedric and counsel’s rationale, if any, underlying that advice. Kedric did not file a motion for a new trial or a habeas corpus petition and therefore, failed to develop evidence of trial counsel’s strategy. Without evidence in the record, we are unable to conclude that defense counsel’s performance fell below the objective range of competence. Therefore, we cannot conclude that Kedric’s guilty plea was involuntary. Accordingly, we overrule Kedric’s first point of error.

Joint Representation

We now turn to Kedric’s second point of error and Terry’s only point of error, in which they claim they were denied effective assistance of counsel because one lawyer represented both of them. Kedric contends that defense counsel failed to vigorously emphasize that Kedric was less culpable by arguing that he (1) was minimally involved in the offense, (2) immediately demonstrated remorse by telling his former girlfriend what had happened, and (3) fully cooperated with the police. Ked-ric also claims his case was harmed when defense counsel argued that Terry’s lack of a criminal record showed that Terry’s involvement was an aberration of character. Kedric claims that while this argument may have worked in favor of Terry, it worked against him because it served to highlight Kedric’s numerous arrests and criminal history. Conversely, Terry argues that defense counsel harmed him by arguing Kedric was less culpable due to the fact Kedric was not “on the scene” and did not know about the shooting. Terry argues that Kendric’s absence from the scene provided a stark contrast to Terry’s presence at the scene with the gunman at the time of the robbery and murder.

An accused’s right to reasonably effective assistance of counsel can be, but is not automatically, violated by the joint representation of multiple defendants. See James v. State, 763 S.W.2d 776, 779 (Tex.Crim.App.1989). In considering claims of ineffective assistance of counsel based on conflicts of interest, we look to Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). See Monreal v. State, 923 S.W.2d 61, 64 (Tex.App. — San Antonio 1996), aff'd, 947 S.W.2d 559 (Tex. Crim.App.1997). When the appellants do not show an actual conflict of interest, we look to Strickland v. Washington in considering claims of ineffective assistance of counsel. See id. at 63.

To prove the right to reasonably effective assistance of counsel has been violated by a conflict of interest, an appellant must show “(1) that his counsel was burdened by an actual conflict of interest and (2) that the conflict had an adverse effect on specific instances of counsel’s performance.” Monreal v. State, 947 S.W.2d 559, 564 (Tex.Crim.App.1997) (citing Cuyler, 446 U.S. at 348-350, 100 S.Ct. 1708) (emphasis added). To establish an actual conflict of interest, the appellant must show “one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a co-defendant whom counsel is also representing.” James, 763 S.W.2d at 779 (quoting Foster v. State, 693 S.W.2d 412, 413 (Tex.Crim.App.1985)). Failure to emphasize the culpability of one defendant over the other does not create an actual conflict. See Howard v. State, 966 S.W.2d 821, 827 (Tex.App. — Austin 1998, pet. ref'd); Raspberry v. State, 741 S.W.2d 191, 197 (Tex.App. — Fort Worth 1987, pet. ref'd) (citing Burger v. Kemp, 483 U.S. 776, 784, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987)). Some examples of when the potential for conflict becomes an actual conflict are when inculpating or exculpating testimony exists to the detriment of one defendant and when the defense strategy goes sour, or was thwarted by the strategy of the State. See James, 763 S.W.2d at 781.

The facts in this case are similar to those presented in Howard v. State, in which one attorney represented two brothers, Chedrich and John Howard. Both of the Howard brothers were charged with attempted murder and tried together in a single proceeding. See Howard, 966 S.W.2d at 823 & 825. Chedrich actually shot the complainant. See id. at 823. John argued that defense counsel was unable to emphasize the relative culpability of the brothers. See id. at 827. The appellate court rejected this argument, stating:

... [Traditional distinctions between accomplices and principals have been abolished. Penal Code § 7.01(c). But accepting the assertion that arguably John was less morally culpable than Chedrich because he did not pull the trigger, no actual conflict of interest is shown. That John did not personally shoot the complainant was irrelevant to Chedrieh’s punishment, just as Ched-rich’s lack of a criminal record was irrelevant to John’s. For counsel to point out that John was only a party to the shooting, and to argue that this should be considered in his favor in assessing punishment, would not necessarily cause the jury to assess a harsher punishment against Chedrich. That counsel did not argue John’s lesser culpability to the jury does not in itself prove that a conflict of interest existed.

Id. (emphasis added).

In this case, no actual conflict of interest is shown in defense counsel’s representation of both Kedric and Terry. Both Kegler brothers blamed Thorne, not each other, for the shooting. Appellants came forward with no evidence to show one of them stood to gain significantly by counsel adducing probative evidence or advancing plausible arguments that were damaging to the cause of the other. The record contains nothing to indicate that any exculpatory or inculpatory statements existed to the detriment of one brother or that the State somehow thwarted defense strategy.

Defense counsel argued Kedric’s lesser culpability. Kedric, however, complains about the brevity of counsel’s closing statement and contends that counsel should have argued more vigorously on his behalf. Neither counsel’s decision as to the length and content of his closing statement, nor his failure to emphasize Kedric’s lesser culpability establishes an actual conflict of interest. The trial judge had all the relevant facts of the case before him at the time of sentencing and the appellants’ criminal history. In making a closing statement, defense counsel merely summarized the evidence already before the court, including the lesser role Kedric played in the offense. Kedric did not show that he stood to gain significantly by counsel advancing a plausible argument that would have damaged Terry’s cause. Therefore, we find the brevity of defense counsel’s closing argument is not sufficient to show an actual conflict of interest. Likewise, merely pointing out that Terry did not have a criminal record did not affect Kedric’s punishment.

As for Terry’s claim of ineffectiveness based on counsel’s actions in emphasizing Kedric’s lesser role in the offense, we note that the trial court did not necessarily assess a harsher punishment against Terry merely because defense counsel pointed out that Kedric stayed in the car, did not know anyone had been shot, and would have felt differently had his brother been “on the scene and had the gun.” Again, the judge had all the relevant facts of the case and the appellants’ criminal-history before him. Defense counsel’s summary of the evidence did not unfairly prejudice either brother nor is it a manifestation of a conflict of interest. Terry has not shown an actual conflict of interest by establishing that Kedric stood to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to him.

The appellants cite several cases in which the reviewing court found an actual conflict of interest. These case are all distinguishable from the facts presented here. In Ex parte Parham, 611 S.W.2d 103, 104-05 (Tex.Crim.App.1981), the Texas Court of Criminal Appeals found an actual conflict of interest where one brother’s testimony would exculpate the other by proving he did the actual shooting in a murder case. In this case, there is no evidence that the testimony of either of the appellants would exculpate the other. In Ex parte McCormick, 645 S.W.2d 801, 808-06 (Tex.Crim.App.1983), the court found the potential for conflict became an actual conflict of interest due to defense counsel’s trial strategy. In this case, however, there is no evidence of defense counsel’s strategy in the record. In Amaya v. State, 677 S.W.2d 159, 161-62 (Tex.App.Houston [1st Dist.] 1984, pet. refd), the court found an actual conflict of interest when the discrepancies between the testimony of various witnesses were not exploited because it would have hurt the other co-defendants. Here, there was no discrepancy between the testimony of the appellants, who were the only “witnesses” in the proceeding and who both pled guilty. As noted, because the record does not show an actual conflict, i.e., that one appellant stands to gain significantly by counsel producing evidence or advancing plausible arguments at the expense of the other, Cuyler has no application to this case.

Having found that Cuyler does not apply, we must evaluate the appellants’ ineffective assistance of counsel claims using the Strickland, analysis. As previously mentioned, under Strickland, each of the appellants must show that (1) counsel’s representation fell below an objective standard of reasonableness, and (2) counsel’s deficient performance resulted in prejudice to the appellants. 466 U.S. at 688-92, 104 S.Ct. 2052. Because the record is silent as to defense counsel’s strategy, the appellants have not rebutted the presumption that defense counsel was competent. Thus, the first prong of Strickland is not met. Consequently, neither Kegler brother can demonstrate that he was denied effective assistance of counsel based on trial counsel’s joint representation of both brothers. Accordingly, we overrule Kedric’s second point of error and Terry’s only point of error.

Having found no merit in the appellants’ points of error, the judgments of the trial court are affirmed.

        . Because the appellants pled guilty, the facts come from their statements unless otherwise noted.


author: LIVINGSTON, Justice.

text:
    In re TARRANT COUNTY.
    No. 2-00-092-CV.
    Court of Appeals of Texas, Fort Worth.
    May 15, 2000.

      Cantey & Hanger, L.L.P., S.G. John-droe, III, C. Matthew Terrell, Scott A. Fredicks, Fort Worth, for Relator.
    Thompson, Coe, Cousins & Irons, L.L.P., William N. Radford, Rider Scott, Dallas, for Real Party.
    Panel A: CAYCE, C.J.; LIVINGSTON and RICHARDS, JJ.
   OPINION

LIVINGSTON, Justice.

I. INTRODUCTION

This mandamus proceeding involves a boundary dispute between two counties. Before entering final judgment, the trial court ordered the boundary line, which had been established under prior law, remarked and resurveyed. Because we hold this was partial execution on the judgment that deprived the losing county of its right to supersede the execution, the trial court abused its discretion. Accordingly, we conditionally grant mandamus relief.

II. BACKGROUND

Relator Tarrant County filed suit against real party in interest Denton County to establish the common and proper boundary line between the two counties. See Tex. Loc. Gov’t Code Ann. § 72.009(a) (Vernon 1999). Denton County counterclaimed, seeking to have a line surveyed by George White in 1852 (“the White line”) declared to be the boundary line and to have that line resurveyed, marked, and monumented. On November 3, 1999 after a bench trial, the trial court notified the parties by letter of its intention to rule in favor of Denton County on the location of the line.

At a subsequent hearing, the trial court expressed concern with entering a final judgment because the trial court would be unable to later order the resurvey and monumentation:

THE COURT: ... Assuming it goes up on appeal and I no longer have any jurisdiction, then hopefully the appeal court would enter an order that says, “Go back down to the district court and get it surveyed.” But what if the appeal court didn’t do that? We’d have a final judgment, and we’d have no surveying, and nobody would have any jurisdiction.

On December 7, the trial court informed the parties by letter of its intent to enter an interlocutory judgment that would allow Denton County to mark and monument the White line before final judgment would be entered. On January 6, 2000, Denton County wrote the trial court that an interlocutory judgment “would be best at this time” because it would allow the trial court to approve the final field notes of the survey and would keep Tarrant County from stopping the resurvey by filing a notice of appeal. On January 20, the trial court signed an interlocutory judgment that fixed the location of the boundary as the White line “that has been established under prior law.” The judgment specifically described the location of the line with extreme specificity and ordered William C. Wilson, Jr. to resurvey and establish a “historic retracement” of the White line “by monumentation at the initial corners of the line, at one mile intervals, at county roads and state highways, at the shores of Lake Grapevine, and at other appropriate locations, as the boundary between Denton and Tarrant Counties.”

Tarrant County filed a mandamus petition arguing that the trial court erred by entering an interlocutory judgment, which denies Tarrant County the right to supersede execution on the judgment. In other words, by ordering the White line marked before final judgment is entered, the trial court is allowing premature enforcement of the judgment while, at the same time, blocking Tarrant County’s right to stop the execution by appeal. We stayed the trial court’s interlocutory judgment pending our decision in this proceeding.

III. AVAILABILITY OF MANDAMUS

Appellate courts issue mandamus relief as a matter of judicial discretion and not as a matter of right. See Rivercenter Assocs. v. Rivera, 858 S.W.2d 866, 367 (Tex.1993) (orig.proeeeding). In deciding whether a writ of mandamus is appropriate, we recognize that mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no other adequate remedy at law. See Republican Party v. Dietz, 940 S.W.2d 86, 88 (Tex.1997) (orig.proeeeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proeeeding).

A. Abuse of Discretion

A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. See Walker, 827 S.W.2d at 839. With respect to the resolution of factual issues or matters committed to the trial court’s discretion, we may not substitute our judgment for that of the trial court unless the relator establishes that the trial court could reasonably have reached only one decision and that the trial court’s decision is arbitrary and unreasonable. See id. at 839-40. This burden is a heavy one. See Canadian Helicopters, Ltd. v. Wittig, 876 S.W.2d 304, 305 (Tex.1994) (orig.proeeeding).

Our review is much less deferential with respect to a trial court’s determination of the legal principles controlling its ruling, because a trial court has no discretion in determining what the law is or in applying the law to the facts. See Walker, 827 S.W.2d at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion and may result in mandamus. See id.

B. Adequate Remedy at Law

The second element the relator must demonstrate before mandamus relief will issue is that the relator lacks an adequate remedy at law. See id. at 840, 842. In general, an adequate legal remedy exists if the relator will be able to raise the issue on appeal. See id. at 840. The writ is to issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989) (orig.proceeding). An adequate remedy at law does not exist if the rights sought to be protected would be irretrievably lost or the appellate court would not be able to cure the trial court’s error. See In re Valero Energy Carp., 973 S.W.2d 453, 457 (Tex.App. — Houston [14th Dist.] 1998, orig. proceeding) (op. on reh’g); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 659 (Tex.1996) (orig.proceeding); Walker, 827 S.W.2d at 843.

IY. RIGHT TO SUPERSEDEAS

A suit between counties to establish a boundary line is governed by statute:

(a) A county may bring suit against an adjacent county to establish the common boundary line. The suit must be brought in the district court of a county in an adjoining judicial district whose boundaries are not affected by the suit and whose county seat is closest to the county seat of the county that brings the suit. The court shall try the suit in the same manner in which it tries other suits.
(b) The district court has jurisdiction to determine where the boundary line is located and may order the line to be remarked and resurveyed. The line established by the district court shall be treated as the true boundary between the counties unless the court determines that the line in question was established under prior law. If the district court determines that the boundary line has been established under prior law, the court shall declare that line to be the true boundary between the counties and shall have that line resurveyed and established as the boundary.
(c) The commissioner of the General Land Office may not mark a contested county line on the maps maintained by the land office until a certified copy of the final judgment is filed in the land office with a certified copy of the field notes of the boundary line established by the judgment.
(d) The remedy provided by this section is in addition to any other remedy prescribed by this chapter.

Tex. Loc. Gov’t Code Ann. § 72.009. The question presented is whether a trial court can have the boundary line marked and monumented before entering final judgment. We hold that it cannot under the circumstances of this case.

A governmental entity, such as a county, has the right to supersede the judgment of a trial court rendered against it by merely filing a notice of appeal. See Tex. Civ. PRAC. & Rem. Code Ann. § 6.001(b)(4) (Vernon Supp.2000); Tex. R. App. P. 25.1(g); In re Long, 984 S.W.2d 623, 625 (Tex.1999) (orig.proceeding) (op. on reh’g). Supersedeas preserves the status quo of the matters in litigation as they existed before the issuance of the order or judgment from which an appeal is taken. See Renger v. Jeffrey, 143 Tex. 73, 182 S.W.2d 701, 702 (1944) (orig.proceeding); Kantor v. Herald Publ’g Co., 632 S.W.2d 656, 657-58 (Tex.App. — Tyler 1982, no writ); Allied Fin. Co. v. Shaw, 373 S.W.2d 100, 106 (Tex.Civ.App. — Fort Worth 1963, writ ref d n.r.e.). The right to supersede a judgment is one of absolute right and is not a matter within the trial court’s discretion. See Houtchens v. Mercer, 119 Tex. 431, 29 S.W.2d 1031, 1033 (1930) (orig.proceeding); State ex rel. State Highway & Pub. Transp. Comm’n v. Schless, 815 S.W.2d 373, 375 (Tex.App. — Austin 1991, orig. proceeding [leave denied]).

In this case, the trial court has ordered a resurvey, marking, and monumentation of the White line before final judgment is entered. In other words, it has partially executed on a judgment that Tarrant County cannot supersede because the judgment is interlocutory or nonfinal in nature. Denton County argues that the trial court’s action is mandated by statute because the resurvey required by section 72.009(b) requires field notes, which cannot be prepared without marking the line on the ground. Denton County further asserts that marking the line before final judgment does not equate to execution on the judgment because “execution ... will not occur until certified copies of the trial court’s final judgment and the field notes of the boundary line established by the judgment are filed with the Texas General Land Office.”

We do not agree that field notes, and the monument markers the field notes are based on, are required before a final judgment can be entered. If, as in this case, the trial court determines that the boundary line was “established under prior law, the court shall declare that line to be the true boundary between the counties and shall have that line resurveyed and established as the boundary.” Tex. Loc. Gov’t Code Ann. § 72.009(b). This portion of the statute does not require that the resurvey and establishment be fully completed before a final judgment is entered. Rather, it merely dictates that the trial court is to declare the line to be the true boundary and order it resurveyed as the boundary.

We also disagree with Denton County’s argument that we would be unable to decide Tarrant County’s appeal unless the line is marked. Just as the trial court was able to determine the correct boundary purely from the facts and the law, we would be able to do the same. Also, there are numerous temporary ways of marking the line.

Further, we cannot agree that execution will not occur until the final judgment and field notes are filed with the General Land Office. Filing the field notes and judgment with the General Land Office is merely the last step in executing on the judgment. See Tex. Loc. Gov’t Code Ann. § 72.009(c). Denton County specifically asked the trial court to order the resurvey and monumentation of the White line. By granting this relief before entering final judgment, the trial court is partially executing on the judgment while denying Tar-rant County its right to supersede the execution. This is an abuse of discretion.

The trial court expressed concern that it would not be able to enforce its judgment later if the White line is not permanently marked and monumented before final judgment is rendered. However, the trial court retains continuing jurisdiction to enforce its judgment. See Tex. Civ. PRAc. & Rem. Code Ann. § 37.011 (Vernon 1997); Tex. R. Civ. P. 301 & 308; Reynolds v. Harrison, 635 S.W.2d 845, 846 (Tex. App. — Tyler 1982, writ refd n.r.e.). Accordingly, the trial court will be able to oversee the marking and monumentation before the final judgment and field notes are filed with the General Land Office.

Our next inquiry is whether Tarrant County has an adequate remedy at law. We hold that it does not. Tarrant County cannot recover the right to supersede the judgment and maintain the status quo for purposes of appeal. Tarrant County’s right to supersede would be lost forever; thus, an appeal would be an inadequate remedy. See Valero Energy, 973 S.W.2d at 457; see also Mantas, 925 S.W.2d at 659; Walker, 827 S.W.2d at 843.

V. CONCLUSION

The trial court abused its discretion by ordering partial execution on the judgment in an interlocutory order, which denied Tarrant County the right to supersede the execution. Because this right would be irretrievably lost, Tarrant County does not have an adequate remedy by appeal. Accordingly, we conditionally grant mandamus relief. We trust that the trial court will comply with this opinion; the writ will issue only if it fails to do so.

Our stay remains in effect until either the writ issues or the trial court enters a final judgment.

      . Execution is a means of enforcing a judgment. See, e.g., Tex. R. Civ. P. 621; Tex. R. App. P. 25.1(g).

      . Permanent monumentation may take place after the appeal is complete and the appellate timetable has run. See, e.g., Garza County v. Lynn County, 42 S.W.2d 627, 634 (Tex.Civ. App. — Eastland 1931) (providing for completion of survey and trial court’s final approval of survey after appeals exhausted), rev’d on other grounds, 58 S.W.2d 24, 24 (Tex. Comm’n App.1933, judgm’t adopted).


text:
    James Alvin CAMP, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 10-99-328-CR.
    Court of Appeals of Texas, Waco.
    May 24, 2000.
    Guy K. Rodgers, Cleburne, for appellant.
    Dale S. Hanna, Crim. Dist. Atty., David W. Vernon, Asst. Dist. Atty., Cleburne, for appellee.
    Before Chief Justice DAVIS, Justice VANCE and Justice GRAY.
   ORDER

PER CURIAM.

A jury convicted James Alvin Camp, Jr. of multiple counts of aggravated sexual assault of a child and indecency with a child and a single count of attempted indecency with a child. The jury assessed Camp’s punishment at life imprisonment for each of the aggravated sexual assault counts, ninety-nine years for each indecency count, and twenty years for the attempted indecency count. The court ordered the sentences to run concurrently.

Camp filed his appellant’s brief on April 25, 2000. He contends in the second issue presented in his brief that the court erred by permitting the State to introduce outcry testimony because the record does not reflect that the State gave him notice of its intent to introduce the testimony as required by the outcry statute. See Tex. Code Crim. PROC. Ann. art. 38.072, § 2(b)(1) (Vernon Supp.2000).

The State has filed a motion alleging that two such notices have apparently been lost by the district clerk and asking that this Court “determine what constitutes accurate copies of the missing documents and order them to be included in the clerk’s record or a supplement.” See Tex. R.App. P. 34.5(e). Attached to the motion are copies of two outcry notices which appear to bear the file-stamp of the district clerk.

Rule 34.5(e) sets out the procedure to be followed whenever a document filed with the trial court clerk has been “lost or destroyed.” Id. The rule provides:

(e) Clerk’s Record Lost or Destroyed. If a filing designated for inclusion in the clerk’s record has been lost or destroyed, the parties may, by written stipulation, deliver a copy of that item to the trial court clerk for inclusion in the clerk’s record or a supplement. If the parties cannot agree, the trial court must — on any party’s motion or at the appellate court’s request — determine what constitutes an accurate copy of the missing item and order it to be included in the clerk’s record or a supplement.

Id.

According to the State, Camp’s counsel will not stipulate in writing to the inclusion in the clerk’s record of the copies of the outcry notices attached to the motion. However, this Court does not have the authority to determine the accuracy of the appellate record. See id.; see also id. 34.6(e). Rather this duty belongs to the trial court. Id. Accordingly, we abate this cause for thirty days and direct the trial court to determine whether the documents attached to the State’s motion constitute accurate copies of pleadings filed with the district clerk. Id 34.5(e); Moss v. State, 13 S.W.3d 877, 880 (Tex.App. — Fort Worth 2000, no pet. h.). If the court so finds, then the court should order the district clerk to include these documents in a supplemental clerk’s record and file it with the Clerk of this Court. See Tex.R.App. P. 34.5(e).

Regardless of whether the court orders the inclusion of these documents in a supplemental record, the district clerk is directed to file a supplemental clerk’s record with the Clerk of this Court containing a copy of the court’s order. Id. 34.5(c). Unless the parties waive the making of a reporter’s record in this hearing, the court reporter is directed to prepare and file a supplemental reporter’s record of the hearing with the Clerk of this Court. Id. 13.1(a), 34.6(d). The supplemental records shall be filed within thirty days after the date of this order.