David Russell Hale v. State ( 2002 )

NO. 07-02-0187-CR NO. 07-02-0188-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 25, 2002

______________________________



DAVID RUSSELL HALE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NOS. 44,828-A, 33,491-A; HONORABLE DAVID L. GLEASON, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

ON ABATEMENT AND REMAND

On April 9, 2002, appellant David Russell Hale filed pro se notices of appeal in the referenced matters. It was unclear at that time what judgments or orders he was appealing. However, with his notice of appeal, he expressed dissatisfaction with his prior appointed counsel and requested the appointment of legal representation. On April 26, 2002, we received a letter from the court clerk informing us that she had received neither an order from the court requesting her to prepare a transcript in these matters nor payment from appellant or an affidavit of inability to pay. However, from papers she provided to us, it appears that in Cause No. 07-02-0187-CR (Trial Court Case No. 44,828-A), there was an order dated March 27, 2002, deferring adjudication of the guilt of appellant for possession of a controlled substance and placing him on community supervision. Presumably this is one of the orders from which appellant has filed his appeal.

On June 7, 2002, we sent letters to the court clerk and the court reporter informing them that their respective records were due on May 27, 2002. If the records could not be completed, it was requested that they complete and fill out a request form and return it to the court no later than June 18, 2002. Then, on June 12, 2002, we received copies of an order and judgment signed May 15, 2002, pronouncing adjudication of guilt in Cause No. 07-02-0187-CR and an order signed May 15, 2002, revoking community supervision and imposing a sentence for the conviction of the offense of burglary of a building in Cause No. 07-02-0188-CR (Trial Court Case No. 33,491-A). At that time, appellant was apparently represented by counsel.

Because of the state of confusion surrounding these appeals and because no clerk's and reporter's records have been filed, we are authorized to abate these appeals and remand the cases to the 47^th District Court of Potter County for a hearing. See Tex. R. App. P. 37.3.

Upon remand, the judge of the trial court shall immediately cause notice to be given and conduct a hearing to determine:

1. Whether appellant has abandoned his appeals.

2. If appellant has not abandoned his appeals, whether appellant's attorney continues to represent appellant and will diligently pursue his appeals. If not, and appellant is not indigent, what steps should be taken to ensure that appellant will promptly retain an attorney who will diligently pursue the appeals.

3. If appellant is indigent, an attorney should be appointed to handle the appeals. If such an attorney is appointed, this court should be supplied that attorney's name, address, and State Bar of Texas identification number.

4. If appellant is indigent, what steps are necessary to ensure the prompt preparation of clerk's and reporter's records.

5. If any other orders are necessary to ensure the diligent and proper pursuit of appellant's appeals.

In support of its determination, the trial court will prepare and file written findings of fact and conclusions of law and cause them to be included in a supplemental clerk's record. In addition, the trial court shall cause a transcription of the hearing to be prepared and included in a reporter's record. The supplemental clerk's and reporter's records shall be submitted to this court no later than July 24, 2002.

It is so ordered.

Per Curiam

Do not publish.

in-court identification rendered the evidence of identity defective since the circumstances were sufficient to apprise the factfinder that the witnesses were actually referring to appellant). Consequently, we hold the evidence of appellant's identity as the accused to be both legally and factually sufficient.

Issue 3 - Person Who Started the Fire

In his third issue, appellant challenges the legal sufficiency of the evidence to show that he started the fire. We overrule the issue.

In response to the allegation that there was no evidence identifying him as the person who set the vehicle aflame, we note the testimony of Mitchell Pratorius. When asked if appellant explained "anymore detail when he said that he torched it, what he meant by that," the witness said: ". . . [n]o . . . that's all that was said was that he torched it." (Emphasis added). Appellant's purported statement that "he" torched the car is some evidence upon which a rational factfinder could conclude beyond reasonable doubt that appellant personally set fire to the car. And, this conclusion is only buttressed by the evidence that 1) appellant left the house at the time the car was towed, 2) he came back about 20 minutes later, 3) he seemed nervous, anxious, upset and irate, 4) he made Shyllo help him hide some of the car parts, 5) Shyllo heard sirens shortly thereafter, and 6) the car was found burning about a block from appellant's house.

Issue 4 - Admonishment

In his final issue, appellant argues that he was incorrectly admonished as to the range of punishment. This purportedly resulted in his plea of true to the enhancement paragraph in the indictment constituting a violation of the due process clause. We overrule the issue.

Assuming arguendo that appellant was misled when he admitted the enhancement allegation to be true, the State nonetheless proved (via live testimony, pen pack authentication, and fingerprint analysis) that appellant previously had been convicted of the crime encompassed in the enhancement paragraph. Consequently, we hold, beyond reasonable doubt, that the purported mistake did not contribute to the conviction or punishment assessed.

Having overruled each issue, we affirm the judgment of the trial court.

Per Curiam

Do not publish.