James Scot Thomas v. Hector Ortiz ( 2010 )

NO. 07-10-00141-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

JULY 30, 2010

JAMES SCOT THOMAS, APPELLANT

v.

HECTOR ORTIZ, ET AL, APPELLEE

 FROM THE 278TH DISTRICT COURT OF WALKER COUNTY;

NO. 23,855; HONORABLE KENNETH H. KEELING, JUDGE

Before CAMPBELL and HANCOCK, JJ., and BOYD, S.J.[1]

MEMORANDUM OPINION

Appellant James Scot Thomas, appearing pro se, filed a notice of appeal from an order dismissing his civil suit for failure to comply with Chapter Fourteen of the Civil Practice and Remedies Code.  Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-14.014 (Vernon 2002). Notice of appeal was timely filed. The reporter’s record and clerk’s record were filed and Thomas’s brief was due June 16, 2010.  Neither the brief nor a motion for extension of time to file the brief was filed by that date.

By letter of June 28, 2010, we notified Thomas his brief was past due. The letter further notified Thomas his appeal was subject to dismissal for want of prosecution unless his brief, accompanied by a motion for extension of time, was filed by July 8, 2010. Thomas has not filed his brief or a motion for extension of time.

An appellate court may dismiss a civil appeal for want of prosecution if an appellant fails to timely file a brief unless the appellant reasonably explains the failure and the appellee is not significantly injured by the failure. Tex. R. App. P. 38.8(a)(1). On its own motion, with ten days notice to the parties, an appellate court may dismiss a civil appeal for want of prosecution.  Tex. R. App. P. 42.3(b). 

Thomas has not filed a brief or a motion for extension by the date specified, despite notice that failure to do so would subject the appeal to dismissal. Accordingly, we dismiss Thomas’s appeal for want of prosecution.  See Tex. R. App. P. 38.8(a)(1); 42.3(b).

James T. Campbell

Justice

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[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

tyle='mso-spacerun:yes'> Counsel discusses the applicable law and sets forth the reasons she believes no arguably meritorious issues for appeal exist.  Counsel certifies that a copy of the Anders brief and her motion to withdraw were served on appellant, and counsel advised appellant of his right to review the record and file a pro se response.  Johnson v. State, 885 S.W.2d 641, 645 (Tex.App.--Waco 1994, pet. refused).  By letter, this Court also notified appellant of his opportunity to submit a response to the Anders brief and motion to withdraw filed by his counsel.  Appellant did not file a response.

In conformity with the standards set out by the United States Supreme Court, we will not rule on the motion to withdraw until we have independently examined the record in each matter.  Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.).  If we determine the appeal has arguable merit, we will remand it to the trial court for appointment of new counsel.  Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App.1991).

By the Anders brief, counsel raises grounds that could possibly support an appeal, but explains why none show reversible error.  She concludes the appeal is frivolous.  We have reviewed each ground and made an independent review of the entire record to determine whether arguable grounds supporting an appeal exist.  See Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).  We find no arguable grounds supporting a claim of reversible error, and agree with counsel that the appeal is frivolous.

Accordingly, we grant counsel’s motion to withdraw[3] and affirm the judgment of the trial court.

                                                                                                James T. Campbell

                                                                                                            Justice

Do not publish.

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[1] See Tex. Penal Code Ann. § 22.02(a)(1) (West Supp. 2010).  Aggravated assault is a second degree felony except when charged on grounds not alleged here it is a first degree felony.  See Tex. Penal Code Ann. § 22.02(b) (West Supp. 2010).  A second degree felony is punishable by confinement for any term of not more than 20 years or less than 2 years and a fine not to exceed $10,000.  Tex. Penal Code Ann. § 12.33 (West Supp. 2010).  A conviction under § 22.02(a) predicated on the violation of sub-paragraph (1) requires proof of “serious bodily injury.”  “Serious bodily injury” means “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”  Tex. Penal Code Ann. § 1.07(a)(46) (West Supp. 2010).

[2] Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L. Ed. 2d 493 (1967); see In re Schulman, 252 S.W.3d 403 (Tex.Crim.App. 2008).

[3] Counsel shall, within five days after the opinion is handed down, send her client a copy of the opinion and judgment, along with notification of the defendant's right to file a pro se petition for discretionary review. Tex. R. App. P. 48.4.