Ripley Leslie v. State ( 2010 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00177-CR

Ripley Leslie,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court No. FO-06-18465

ORDER

Appellant’s brief was originally due on or before August 12, 2010.  In a letter dated August 20, 2010, the Court provided notice that, unless a brief or satisfactory response was received within 14 days, the Court must abate the appeal and order the trial court to immediately conduct a hearing pursuant to Rule of Appellate Procedure 38.8(b)(2, 3).  Neither Appellant’s brief nor a response has been filed.

The Court abates this cause to the trial court with instructions to hold a hearing to determine: (1) why a brief has not been filed on Appellant’s behalf; (2) whether Appellant’s attorney has abandoned the appeal; and (3) whether Appellant is receiving effective assistance of counsel.  See Tex. R. App. P. 38.8(b)(2, 3).

The trial court shall conduct the hearing within twenty-one (21) days after the date of this order.  The trial court clerk and court reporter shall file supplemental records within thirty-five (35) days after the date of this order.

PER CURIAM

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Appeal abated

Order issued and filed September 15, 2010

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'CG Times', serif">      In two points Doni contends (1) that his plea was not voluntary and violated his constitutional right to due process and (2) the court erred in failing to grant the motion to withdraw his plea. In response, the State points out that we have nothing to review. Apparently, Doni's counsel at the plea hearing did not request that the proceedings be transcribed. Further, although Doni's affidavit setting forth the basis for the motion is attached to his motion for new trial, counsel apparently never requested a hearing on the motion and it was overruled by operation of law. We cannot consider the affidavit. See Stephenson v. State, 494 S.W.2d 900, 909-10 (Tex. Crim. App. 1973).

      In the absence of a showing to the contrary, we must presume that the trial court's actions were correct. See Thompson v. State, 641 S.W.2d 920, 921 (Tex. Crim. App. [Panel Op.] 1982). Thus, we have no choice but to overrule his points of error. We affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 8, 1995

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