Michael Anthony Sam v. State ( 2007 )

NO. 07-06-0382-CR

07-06-0383-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 30, 2007

______________________________ MICHAEL ANTHONY SAM, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE CRIMINAL JUDICIAL DISTRICT COURT OF JEFFERSON COUNTY;

NO. 93823, 93824; HONORABLE LARRY GIST, JUDGE _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON ABATEMENT AND REMAND

Appellant Michael Anthony Sam has filed a notice of appeal from the trial court's judgment revoking his community supervision in two causes. First, in appellate cause number 07-06-0382-CR, he appeals the judgment adjudicating him guilty of delivery of a controlled substance and imposing a sentence that included confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of five years.

In cause number 07-06-0383-CR, appellant has filed his notice of appeal from the trial court's judgment revoking his community supervision, adjudicating him guilty of delivery of marijuana and imposing a sentence that included confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of 18 months.  

The trial court certified appellant's right to appeal in both cases. On October 3, 2006, the appeals were transferred from the Ninth District Court of Appeals to this Court. The appellate court clerk received and filed the trial court clerk's record on September 13, 2006, and received and filed the reporter's record on October 13, 2006.

Appellant's brief in both cases was originally due on November 13, 2006. This Court's November 27, 2006 letter informed appellant's appointed attorney of the original due date and stated that if the brief or a response was not received by December 7, 2006, the appeals would be abated to the trial court. Tex. R. App. P. 38.8(b). Although appellant did not file his brief, counsel for appellant faxed a communication to this Court on December 12, 2006 which requested an extension of time to file his brief to January 4, 2007. By our letter dated January 5, 2007, counsel was advised that if the brief was not filed by January 19, 2007, the appeals would be abated to the trial court. As of this date, we have not received a brief in either appeal, or further communication from counsel.   

Accordingly, the appeals are abated and the causes are remanded to the trial court. Tex. R. App. P. 38.8(b)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing, at which appellant's present counsel shall personally appear, to determine:

(1) whether appellant desires to prosecute these appeals;

• if appellant desires to prosecute these appeals, the reasons for appellant's counsel's failure to timely file a brief;  

• if appellant desires to prosecute these appeals, whether appellant's present counsel should be replaced; and  
• what orders, if any, should be entered to assure that the appeals will be diligently pursued if appellant desires to prosecute these appeals.  

If the trial court determines that the present attorney for appellant should be replaced, the court shall cause the clerk of this Court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed attorney.

In support of its determination, the trial court shall prepare and file written findings of fact and conclusions of law and cause them to be included in a supplemental clerk's record. The hearing proceedings shall be transcribed and included in a supplemental reporter's record. Those supplemental records shall be submitted to the clerk of this Court no later than March 1, 2007.

Per Curiam

Do not publish.

to the suit; (3) who did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Quaestor Invs., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999) (applying former Rule of Appellate Procedure 45). ⁽³⁾ Starks meets the first two elements. We consider here whether Starks participated in the hearing that resulted in dismissal of his cause of action, such that he is disqualified from pursuing a restricted appeal.

The participation element focuses on a litigant's participation in the "decision-making event" that resulted in the judgment complained of on appeal. See Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589-90 (Tex. 1996) (also applying former Rule 45); Aviation Composite Technologies, Inc. v. CLB Corp., 131 S.W.3d 181, 185 (Tex.App.-Fort Worth 2004, no pet.); Diferrante v. Keraga, 976 S.W.2d 683, 685 (Tex.App.-Houston [1^st Dist.] 1997, no writ) (applying Rule 45). Courts have recognized the nature and extent of participation that will preclude a restricted appeal is a matter of degree, because the rule must be applied in a wide variety of procedural settings. See Texaco, Inc. 925 S.W.2d at 589; Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985) (applying former Article 2249a of Texas Revised Civil Statutes); Thacker v. Thacker, 496 S.W.2d 201, 203 (Tex.Civ.App.-Amarillo 1973, writ dism'd) (also applying former Article 2249a). In Diferrante the court held that the plaintiff's filing of a response to a motion to dismiss and for sanctions for failure to file an expert report in a health care liability case, together with other pleadings, constituted sufficient participation in the events leading to dismissal of the case to bar a writ of error appeal under former Rule 45. Diferrante, 976 S.W.2d at 685.

Here, the record reflects that appellant participated in the events leading to the dismissal of his case by filing (1) a motion requesting a stay pursuant to Section 14.005(c) of the Texas Civil Practice and Remedies Code, (2) a motion to consolidate his complaint with a complaint previously filed under a separate cause number, (3) a first "supplemental" complaint, (4) an unsworn declaration of the status of a grievance he filed with the Texas Department of Criminal Justice, (5) an affidavit of previous filings, (6) an application to proceed in forma pauperis, (7) a certified copy of his inmate trust account, (8) an amended or substitute first supplemental complaint, and (9) seven witness statements, all filed before the trial court dismissed appellant's petition.

Just as disposition by summary judgment, without participation in a formal trial, is provided for under the authority conferred by Rule of Civil Procedure 166a, see Thacker, 496 S.W.2d at 204 (applying participation requirement to summary judgment proceeding), Chapter 14 expressly provides for dismissal of cases subject to its provisions, before or after service of process, if the court makes the specified findings. Tex. Civ. Prac. & Rem. Code § 14.003. The statute authorizes but does not require a fact-finding hearing. Tex. Civ. Prac. & Rem. Code § 14.003(c). The trial court did not hold a hearing prior to dismissing appellant's complaint as frivolous; dismissal accordingly was based on the pleadings on file at the time of the dismissal. Under the unique provisions applicable to inmate litigation under Chapter 14, we find that appellant, by filing his numerous pleadings, participated to the extent Chapter 14 requires in the decision-making event that resulted in dismissal of his suit.

Our conclusion is consistent with the distinction historically drawn between those who should use a speedier ordinary appeal and those whose circumstances make appeal by writ of error, now restricted appeal, appropriate. See Texaco, Inc., 925 S.W.2d at 590-91; Lawyers Lloyds v. Webb, 137 Tex. 107, 110, 152 S.W.2d 1096, 1097 (Tex. 1941); Thacker, 496 S.W.2d at 204. A party who participates in the proceedings leading up to the judgment is familiar with the record and is in a position to prepare an appeal on short notice. Lawyers Lloyds, 137 Tex. at 111, 152 S.W.2d at 1098. A party who has not participated in the actual trial is unfamiliar with the record and may need additional time in which to familiarize himself with the record. Id. In a dismissal, before service of process, pursuant to Chapter 14, the inmate plaintiff is familiar with the record, composed of his own pleadings, and should not need additional time to prepare a simple notice of appeal.

Because the non-participation requirement is mandatory and jurisdictional, ⁽⁴⁾ when an appellate court determines that an appellant participated in the hearing that resulted in the judgment complained of, the appropriate action is to dismiss the appeal for lack of jurisdiction. Dillard v. Patel, 809 S.W.2d 509, 512 (Tex.App.--San Antonio 1991, writ denied).

The record indicates that appellant participated in the decision-making events that led to the dismissal of his case and as a result he does not meet the requirements for a restricted appeal. His notice of appeal was therefore untimely filed; accordingly, we dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3.

James T. Campbell

Justice

1. All references to Chapter 14 refer to Chapter 14 of the Texas Civil Practices and Remedies Code Annotated (Vernon 2002).

2. -

3. Former Rule of Appellate Procedure 45 was superseded in 1997 by the current Rule 30. Rule 30 replaced the former writ of error appeal with a restricted appeal. The "participation" language also was refined; Rule 45 denied writ of error appeal to one who had participated in the "actual trial of the case."

4. Lambda Constr. Co. v. Chamberlin Waterproofing & Roofing Sys., Inc., 784 S.W.2d 122, 124 (Tex.App.--Austin 1990, writ denied) (citing Nutter v. Phares, 523 S.W.2d 292, 293 (Tex.Civ.App.--Beaumont 1975,

writ ref'd n.r.e.)).