in Re Rob L. Newby, Relator ( 2008 )

NO. 07-07-0480-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 15, 2008 ______________________________

IN RE ROB L. NEWBY, RELATOR _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

ORDER OF ABATEMENT

On November 27, 2007, Relator Rob L. Newby, acting pro se, filed a petition for writ of mandamus seeking an order compelling the Honorable David McCoy, then judge of the 100th judicial district court, to rule on various pending motions. On November 30, 2007, Judge McCoy was indefinitely suspended from office by the State Commission for Judicial Conduct. In his absence, Senior District Judge John T. Forbis was appointed to preside over the 100th district court.

Acting on our own motion, in an order of December 14, 2007, we determined that Rule 7.2 applied in this proceeding and required in the face of Judge McCoy's indefinite suspension the substitution of Judge Forbis as respondent. ⁽¹⁾ See Tex. R. App. P. 7.2(a), (b). We, therefore, ordered the substitution of Judge Forbis as respondent, abated the proceeding, and directed relator to bring to the trial court's attention by pleading the matters on which he sought a ruling.

On March 3, 2008, relator filed in this court an amended petition for writ of mandamus. The appendix of the amended petition contained a document denominated "Motion Seeking a Ruling." This was apparently a copy of the pleading relator filed in the trial court in response to the directive in our order of December 14. According to relator's pleading, the motions before the trial court upon which he seeks a ruling are: (1) "Motion Requesting Issuance of Citation and Service of Process," which relator asserts was filed February 2, 2007; (2) "Motion to Recuse," which relator asserts was filed August 15, 2007; and (3) "Motion for Appointment of Counsel," which relator asserts was filed October 17, 2007.

This court, on its own motion, takes judicial notice that since our order of December 14 Judge McCoy has resigned as judge of the 100th judicial district court and, on March 18, 2008, Governor Perry appointed the Honorable Stuart Messer judge of that court. Judge Messer has taken office. ⁽²⁾  

We again look to Rule 7.2 and order Judge Messer substituted as respondent in this proceeding. We abate this proceeding for sixty days from the date of this order so that Judge Messer may consider the pleadings on which relator seeks a ruling. Tex. R. App. P. 7.2(b). Relator shall obtain a ruling or documentation of the court's refusal to rule and amend his petition and appendix in this court accordingly. The clerk of this court shall provide Judge Messer a copy of our December 14 order and relator's amended petition for writ of mandamus filed in this court on March 3, 2008.

It is so ordered.

Per Curiam  

1. Rule 7 of the rules of appellate procedure pertains to the substitution of parties in pending appeals and original proceedings. Tex. R. App. P. 7. In part, rule 7.2 provides that during an original proceeding against a public officer in an official capacity, if the officer ceases to hold office, the officer's successor is automatically substituted as a party and "the court must abate the proceeding to allow the successor to reconsider the original party's decision." Tex. R. App. P. 7.2(a), (b); see In re Whitfield, 134 S.W.3d 314, 315 (Tex.App.-Waco 2003, orig. proceeding).

2. A court of appeals may take judicial notice of a fact even though the fact was not judicially noticed by the trial court. Office of Pub. Util. Counsel v. Pub. Util. Comm'n of Texas, 878 S.W.2d 598, 600 (Tex. 1994); Tex. R. Evid. 201. The facts noticed, that Judge McCoy has resigned as district judge and has been replaced by Judge Messer, are not subject to reasonable dispute. See City of Houston v. Todd, 41 S.W.3d 289, 301 (Tex.App.-Houston [1st Dist.] 2001 pet. denied) (judicial notice appropriate for facts that are, inter alia, well-known or easily ascertainable); Tex. R. Evid. 201(b)(1). Before taking judicial notice of these facts we considered a report posted on the website of the Governor of Texas, http://www.governor.state.tx.us/divisions/press/appointments/Appointment. 2008-03-18.4427.

nt contends that an objection made by the State during his closing argument was a comment on his failure to testify. We overrule this issue as well.

The contested exchange is as follows:

Defense Counsel: . . . I mean, he's on a crowded bus, and he stabs this man in front of a bus with four witnesses around, then acts surprised that people are trying to restrain him. I mean, think about that. I mean, he doesn't think he's done anything wrong.

Prosecutor: Judge, I'm going to object to that as a comment on the defendant's failure to testify.

Court: That will be sustained.

After the court sustained the prosecutor's objection, counsel for appellant continued with his summation. He said nothing about the prosecutor's action. So, having remained silent below, appellant waived the complaint on appeal. TEX. R. APP. P. 33.1 (a)(1); Oliva v. State, 942 S.W.2d 727, 735 (Tex. App.-Houston [14^th Dist.] 1997, pet. dism'd) (stating that alleged error concerning the prosecutor's comment upon the defendant's failure to testify was waived when trial counsel failed to object to the comment).

Accordingly, we affirm the judgment of the trial court. Pursuant to Rule 2 of the Rules of Appellate Procedure and in order to expedite the decision, we suspend the

operation of Rule 39.9 of the Rules of Appellate Procedure to permit submission of the case prior to the expiration of the 21-day notice provided for in that rule.

Brian Quinn

Justice

Do not publish.

1.

John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. TEX. GOV'T CODE ANN. §75.002(a)(1) (Vernon Supp. 2002).