Approx. $5,602 v. State of Texas (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Yates)
forfeiture proceeding)(discovery sanctions, death-penalty sanctions) (preservation of error for appeal)
AFFIRMED: Opinion by
Justice Brock Yates     
Before Justices Brock Yates, Guzman and Sullivan   
14-08-00359-CV Approximately $5,602.00 v. The State of Texas  
Appeal from 55th District Court of Harris County
Trial Court Judge: PUTNAM REITER
Trial Court Case #: 2006-10466

Affirmed and Memorandum Opinion filed July 2, 2009.

In The

Fourteenth Court of Appeals


NO. 14-08-00359-CV

APPROXIMATELY $5,602.00, Appellant



On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2006-10466

M E M O R A N D U M   O P I N I O N

In this forfeiture case, appellant Herbert B. Gibbs asserts that the trial court erred by striking his
pleadings and rendering a final judgment against his approximately $5,602.[1]  We affirm.

The State filed a notice of seizure and intended forfeiture of approximately $5,602 owned by Gibbs,
claiming it was contraband.  Gibbs answered, and after an abatement the case was set for trial.  The
State then sought discovery to determine the source of the money.  After Gibbs responded, the State
filed a motion to compel, claiming Gibbs did not respond to requests for production and inadequately
responded to some interrogatories and requests for disclosure.  The trial court granted the State's
motion.  The order granting the motion warned that if Gibbs did not fully comply the trial court might
sanction him by, inter alia, striking his pleadings and entering a default judgment against him.

Gibbs timely supplemented his interrogatory answers and requests for disclosure but claimed the State
never served him with requests for production.  The State filed a second motion to compel, claiming it
had served Gibbs with requests for production and complaining that he inadequately responded to some
of the same interrogatories and requests for disclosure involved in the first motion to compel.  In
response, Gibbs complained that the State was harassing him, that he never received any requests for
production, and that he could not force others to give him information.  The State's second motion to
compel was heard by submission.  On January 22, 2008, the trial court signed an order granting the
State's second motion, striking appellant's pleadings, and entering a default judgment against Gibbs.

Gibbs's motion for new trial was overruled by operation of law, and this appeal followed.  In his sole issue,
Gibbs complains that the trial court abused its discretion by imposing death penalty sanctions because
(1) lesser sanctions were not considered; (2) the trial court did not explain why lesser sanctions would
not suffice; and (3) the sanctions imposed were "more severe than necessary to satisfy the legitimate
purposes of sanctions for discovery abuse."

As a preliminary matter, Gibbs had to preserve his complaints by raising them below through a timely
request, objection, or motion stating the grounds for the ruling he sought from the trial court with
sufficient specificity to make the trial court aware of his complaint, unless the specific grounds were
apparent from the context.  See Tex. R. App. P. 33.1(a)(1)(A); Willis v. Willis, 826 S.W.2d 700, 702 (Tex.
App.- Houston [14th Dist.] 1992, no writ); Wade v. Farmers Ins. Group, No. 14-01-00691-CV, 2002 WL
1404713, at *2 (Tex. App.- Houston [14th Dist.] June 27, 2002, no pet.) (not designated for publication)
(holding that complaint regarding death penalty sanctions would be waived if not preserved with
appropriate post-trial motion or some similar method).  

Further, a motion for new trial only preserves for appellate review those complaints raised in the motion.  
See Tex. R. App. P. 33.1(b).  An appellate complaint is not preserved by a motion for new trial that raises
a different complaint before the trial court.  See Sterling v. Alexander, 99 S.W.3d 793, 797 (Tex. App.-
Houston [14th Dist.] 2003, pet. denied) (holding sanctions issue waived where appellant did not preserve
his appellate argument through his motion for new trial or elsewhere at the trial court level); see also
Gerdes v. Kennamer, 155 S.W.3d 523, 532 (Tex. App.- Corpus Christi 2004, pet. denied) (motion for
new trial stating one legal theory does not preserve a different legal theory for appeal).  

Here, Gibbs asserted in his motion for new trial that "the judgment [was] contrary to the law and
evidence," the final judgment contained false statements and incorrectly asserted that Gibbs had not
appeared, the State never served requests for production, Gibbs had requested hearings rather than
rulings by submission, the hearings should have taken place in a real courtroom, and a deadline for
dismissal for want of prosecution had passed without exception.  Thus, Gibbs's motion for new trial did
not specifically state or properly make the complaints he raises on appeal, and the specific grounds
asserted here were not apparent from the context.  Cf. Thomas v. Thomas, 917 S.W.2d 425, 433 (Tex.
App.- Waco 1996, no writ) (parties against whom sanctions were imposed “properly preserved their right
to appeal by filing a motion for new trial which specifically stated their complaint about the sanction
order").  We therefore hold that Gibbs failed to preserve his sole issue for appellate review.  See
Sterling, 99 S.W.3d at 797; D/FW Comm'l Roofing Co., Inc. v. Mehra, 854 S.W.2d 182, 189 (Tex. App.-
Dallas 1993, no writ).

However, even if Gibbs had preserved error, his issue is without merit.  We review a trial court's ruling on
a motion for sanctions for an abuse of discretion, which occurs where the trial court acts arbitrarily or
unreasonably and without reference to any guiding rules and principles.  Cire v. Cummings, 134 S.W.3d
835, 838-39 (Tex. 2004).  Striking a party's pleadings for discovery abuse is “the most devastating"
sanction a trial court may impose.  Transamerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917-18
(Tex. 1991).  Therefore, such a sanction is not justified unless a party's hindrance of the discovery
process justifies a presumption that its claims or defenses lack merit.  Id. at 918.  “However, if a party
refuses to produce material evidence, despite the imposition of lesser sanctions, the trial court may
presume that an asserted claim or defense lacks merit and dispose of it."  Cire, 134 S.W.3d at 839
(quoting Transamerican Natural Gas Corp., 811 S.W.2d at 918).

Before striking Gibbs's pleadings, the trial court's order on the first motion to compel warned Gibbs that
his pleadings might be stricken if he did not fully comply.  Contrary to Gibbs's arguments on appeal, this
warning constituted the imposition of a lesser sanction.  See Paradigm Oil, Inc. v. Retamco Op., Inc., 161
S.W.3d 531, 539 (Tex. App.- San Antonio 2004, pet. denied) (stating that order to compel joined with
statement that noncompliance with the order would result in dismissal constitutes the type of lesser
sanction that must be imposed prior to imposition of death penalty sanction); Andras v. Mem'l Hosp. Sys.,
888 S.W.2d 567, 572 (Tex. App.- Houston [1st Dist.] 1994, writ denied) (same); Wade, 2002 WL
1404713, at *4, 5 (stating that where appellant refused to comply with trial court's first order to compel,
which warned that his pleadings might be stricken for failure to comply, record supported trial court's
finding that lesser sanctions had been tested, and subsequent death penalty sanctions were not
unnecessarily severe).  When Gibbs failed to comply with the trial court's order in the face of this lesser
sanction, the trial court did not abuse its discretion in striking his pleadings and entering a default
judgment against him.  See Transamerican Natural Gas Corp., 811 S.W.2d at 918; Pryor v. State, No. 14-
05-00411-CV, 2006 WL 1528963, at *2 (Tex. App.- Houston [14th Dist.] June 6, 2006, no pet.) (mem.
op., not designated for publication).  We overrule appellant's sole issue.

Having overruled appellant's sole issue, we affirm the trial court's judgment.

Leslie B. Yates


Panel consists of Justices Yates, Guzman, and Sullivan.

[1]  Although “Approximately $5,602.00" is technically the appellant in this case, we will refer to Gibbs, the
person from whom that money was sought, as appellant.