In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-04-00105-CR
______________________________
AARON DALE WILLIAMSON, Appellant
Â
V.
Â
THE STATE OF TEXAS, Appellee
                                             Â
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 30841-B
                                                Â
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
            On March 23, 2004, the trial court sentenced Aaron Dale Williamson to three terms of life imprisonment, with each sentence to be served consecutively. Williamson filed an out-of-time motion for new trial and an out-of-time notice of appeal August 3, 2004.
            A defendant must file the notice of appeal within thirty days from the date the trial court imposes or suspends sentence unless the defendant timely files a motion for new trial, in which case the notice of appeal must be filed within ninety days from the date the trial court imposes or suspends sentence. Tex. R. App. P. 26.2. An appellate court may, however, extend the time to file the notice of appeal "if, within 15 days after the deadline for filing the notice of appeal, the party: (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b)." Tex. R. App. P. 26.3.
            In this case, the record clearly shows Williamson did not file a timely motion for new trial. See Tex. R. App. P. 21.4(a) (motion shall be filed no later than thirty days after sentence is imposed or suspended). Accordingly, his notice of appeal was due by April 22, 2004. It was not filed until August 3, 2004.
Â
Â
            Williamson did not timely invoke this Court's jurisdiction. The record does not indicate he has been granted an out-of-time appeal by the Texas Court of Criminal Appeals. Accordingly, we dismiss the appeal for want of jurisdiction.
Â
                                                                                    Josh R. Morriss, III
                                                                                    Chief Justice
Date Submitted:Â Â Â Â Â Â Â Â Â Â August 11, 2004
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â Â August 12, 2004
Do Not Publish
den="false" UnhideWhenUsed="false" QFormat="true" Name="Quote"/>
|
Â
Â
Â
Â
Â
Â
Â
Â
Â
In The
Court of Appeals
                       Sixth Appellate District of Texas at Texarkana
Â
                                               ______________________________
Â
                                                            No. 06-11-00134-CV
                                               ______________________________
Â
Â
Â
                                                                       IN RE:
                                                               TONYA ALLEN
Â
Â
                                                                                                 Â
Â
                                                                                                                           Â
                                                    Original Mandamus Proceeding
Â
                                                                                                 Â
Â
Â
Â
Â
                                         Before Morriss, C.J., Carter and Moseley, JJ.
                                           Memorandum Opinion by Justice Moseley
                                                                            Â
                                                                            Â
                                                     MEMORANDUM OPINION
Â
           Tonya Allen petitions this Court for a writ of mandamus compelling the Honorable Rebecca Simpson, Judge of the County Court at Law Number One of Gregg County, to set aside the order entitled ÂTemporary Order Following Adversary Hearing, granting temporary managing conservatorship of AllenÂs child to the Texas Department of Family and Protective Services (the Department), and to compel Respondent to enter an order directing the return of the child to Allen.Â
           According to AllenÂs petition, her child was removed from her care and custody by the Department on November 21, 2011. The following day, the Department is alleged to have filed its ÂOriginal Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship, as well as its ÂOrder for Protection of a Child in an Emergency. The order of which Allen complains was entered on December 5, after an adversary hearing.  Allen complains the trial court abused its discretion in issuing the temporary order because the evidence is legally and factually insufficient to support the following findings:
(1) there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child; (2) the urgent need for protection required the immediate removal of the child and reasonable efforts consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the childÂs removal; and (3) reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.
Â
           Mandamus is an extraordinary remedy and will issue only when the record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); In re Fulgium, 150 S.W.3d 252, 254 (Tex. App.ÂTexarkana 2004, orig. proceeding). ÂWith respect to resolution of factual issues or matters committed to the trial courtÂs discretion, the reviewing court may not substitute its judgment for that of the trial court. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Moreover, mandamus is available only in the absence of a factual dispute of consequence.  Id. at 839Â40. When the trial courtÂs judgment is based on conflicting evidence and some of this evidence reasonably supports the courtÂs decision, there is no abuse of discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). Where, as here, a relator seeks to overrule a decision based on factual issues or matters committed to the trial courtÂs discretion, she has the burden to show the trial court could have reached only one decision on the facts. Walker, 827 S.W.2d at 839Â40.
           The order of the trial court recites that Âa full adversary hearing pursuant to § 262.205, Texas Family Code, was held in this case. The order indicates Allen was present and represented by the attorney now filing this mandamus petition on her behalf.  The trial court Âexamined and reviewed the evidence, including the sworn affidavit accompanying the petition and based upon the facts contained therein, made the findings with which Allen takes issue.   Â
           In order to make a determination of whether the trial court could have reached only one decision on the facts and evidence presented, a review of the record of the hearing, together with all exhibits and the referenced sworn affidavit, would be necessary. Allen had the obligation to provide us with evidence in support of her claim that she is entitled to mandamus relief. No portion of any clerkÂs record or reporterÂs record has been filed with this Court. The absence of a mandamus record prevents us from evaluating the circumstances of this case and, consequently, the merits of AllenÂs complaints.  See Tex. R. App. P. 52.7.
           We deny the petition for writ of mandamus.
Â
Â
                                                                                  Bailey C. Moseley
                                                                                 Justice
Â
Date Submitted:Â Â Â Â Â Â Â Â Â December 20, 2011
Date Decided:Â Â Â Â Â Â Â Â Â Â Â Â December 21, 2011