Bobby Joe Lee v. State ( 2011 )

NO. 07-10-0413-CR

NO. 07-10-0414-CR

NO. 07-10-0415-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MAY 13, 2011

______________________________

BOBBY JOE LEE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 432^ND DISTRICT COURT OF TARRANT COUNTY;

NOS. 1181069D, 1181071D, & 1181073D; HONORABLE RUBEN GONZALEZ, JUDGE

_______________________________

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

ABATEMENT AND REMAND

            Following a plea of not guilty, Appellant, Bobby Joe Lee, was convicted by a jury of theft of property valued at $20,000 or more but less than $100,000, enhanced,[1] in cause numbers 1181069D and 118071D, and criminal mischief with a pecuniary loss of $100,000 or more but less than $200,000, enhanced,[2] in cause number 1181073D.  The fifty year sentences imposed in each cause were ordered to run concurrently.  Appellant's notices of appeal were timely filed on September 2, 2010, and following the filing of the appellate record, his briefs were originally due to be filed on January 26, 2011.

            On January 28, 2011, Appellant's appointed counsel, Richard C. Kline, requested a sixty-day extension of time in which to file Appellant's brief citing as grounds his busy schedule.[3]  An extension was granted to February 25, 2011, and counsel was advised that subsequent extensions would not be granted absent good cause.  On February 28, 2011, counsel filed a second motion for extension of time reasonably explaining that in addition to his busy schedule, he had a legitimate personal reason for the request.  A second extension was granted to March 31, 2011.  After the new deadline passed, counsel filed a third motion for extension of time based not only on his trial schedule, but also on the fact that he was moving his personal residence.  This Court granted yet another extension setting the new deadline at May 5, 2011.  At that time counsel, was admonished that failure to comply with the deadline might result in the appeal being abated and the cause remanded to the trial court for further proceedings pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure.[4]

            After the May 5, 2011 deadline passed, counsel filed his Fourth Motion for Extension of Time to File Appellant's Brief explaining that he had filed a brief in the Second Court of Appeals on April 25, 2011, and was set for a murder trial beginning May 9, 2011. To date, Appellant's counsel has failed to file Appellant's brief.

            By Order of this Court, Appellant's Fourth Motion for Extension of Time to File Appellant's Brief is denied.

We now abate this appeal and remand the cause to the trial court for further proceedings.  Upon remand, the trial court shall immediately determine why counsel has failed to timely file Appellant=s brief and take such action as is necessary to ensure that the brief is filed with the Clerk of this Court on or before June 20, 2011.

Should counsel file Appellant's brief on or before, June 6, 2011, he is directed to notify the trial court, in writing, of the filing, whereupon the trial court shall not be required to take further action.  If, however, the brief is not filed by that date, pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure, the trial court is directed to conduct a hearing to determine the following:

1. whether Appellant desires to prosecute the appeals;

2. whether Appellant=s counsel has effectively abandoned the appeals given his failure to timely file the brief; and

3. whether Appellant has been denied effective assistance of counsel and is entitled to new appointed counsel.

Should it be determined that Appellant does want to continue these appeals and the trial court determines he is entitled to new appointed counsel, the name, address, telephone number, and state bar number of the newly-appointed counsel shall be provided to the Clerk of this Court.  The trial court shall execute findings of fact and conclusions of law, and shall cause its findings, conclusions and any necessary orders to be included in a supplemental clerk's record to be filed with the Clerk of this Court by June 27, 2011. Finally, newly appointed counsel shall file Appellant's brief within thirty days after the date of appointment.

It is so ordered.

Per Curiam

Do not publish.

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[1]Tex. Penal Code Ann. § 31.03(e)(5) (West Supp. 2010).

[2]Tex. Penal Code Ann. § 28.03 (b)(6) (West Supp. 2010).

[3]The normal press of business is generally not considered good cause.  Curry v. Clayton, 715 S.W.2d 77, 79 (Tex.App.--Dallas 1986, no writ).  This Court's guideline is to grant subsequent extensions for good cause.

[4]Notwithstanding that this appeal was transferred from the Second Court of Appeals, counsel is not unfamiliar with this Court's guidelines on motions for extensions of time.  See Salzido v. State, No. 07-10-0031-CR, 2010 Tex.App. LEXIS 5658 (Tex.App.--Amarillo July 19, 2010, no pet.) (not designated for publication) (abating the appeal to the trial court after counsel filed a fourth request for an extension of time in which to file an appellant's brief).

nisterial duty, to abide with T.C.C.P. Art. 26.052(e), and in the alternative, that this cause be remanded to the Trial Court for trial on its merit.”  By his petition, Dominguez complains that, in 1997, he was tried for capital murder and that the State sought the death penalty, and the trial court abused its discretion when it failed to appoint two attorneys to assist him.  See Tex. Code Crim. Proc. Ann. art. 26.052(e) (West Supp. 2010).^[1]  We deny the petition.

Mandamus is an extraordinary remedy that will issue only if (1) the trial court clearly abused its discretion, and (2) the party requesting mandamus relief has no adequate remedy by appeal.  See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). As the party bearing the burden of proof, a relator must provide a sufficient record to establish his entitlement to mandamus relief.  See Walker, 827 S.W.2d at 837.

Texas Rule of Appellate Procedure 52.3^[2] identifies the requirements for a petition for writ of mandamus filed in this Court.  While Dominguez’s petition generally complies with these requirements, it is deficient in one significant respect.  Rule 52.3(g) requires the petition include a statement of facts supported by citation to competent evidence included in the appendix or record, and Rule 52.3(k)(1)(A) requires that the appendix to the petition include a certified or sworn copy of any order complained of, or other document showing the matter complained of. Dominguez has not included an appendix to his petition nor has he filed a copy of the record from the capital murder trial of which he now complains.  As such, Dominguez has failed to provide this Court with a sufficient record to allow us to assess the merits of Dominguez’s claim that the trial court clearly abused its discretion or violated a duty imposed by law.  See Walker, 827 S.W.2d at 837.

As Dominguez has failed to meet his burden to establish entitlement to the relief he seeks, we deny the petition.

                                                                                                Per Curiam

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^[1] While the current version of art. 26.052(e) does provide that the trial court shall appoint two attorneys to represent a capital murder defendant when the State seeks imposition of the death penalty, the version of the statute that was in effect at the time of Dominguez’s trial and that established the trial court’s duty in Dominguez’s trial provided that the trial court shall appoint lead counsel and “shall appoint a second counsel to assist in the defense of the defendant, unless reasons against the appointment of two counsel are stated in the record.”  Acts of 1995, 74^th Leg., R.S., ch. 319, § 2, 1995 Tex.Gen.Laws 319 (amended 2009) (current version at Tex. Code Crim. Proc. Ann. art. 26.052(e)) (emphasis added).  Thus, even were we to assume that Dominguez was appointed only one attorney to represent him in his capital murder trial where the State sought the death penalty, Dominguez’s failure to provide the record from that trial precludes this Court from determining whether the trial court stated reasons against the appointment of two attorneys in the record.

^[2]Further citation of Texas Rules of Appellate Procedure will be by reference to ARule __.@