IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
NOVEMBER 27, 2002
______________________________
PATRICK INTHISAN, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;
NO. 43,612-C; HONORABLE PATRICK A. PIRTLE, JUDGE
_______________________________
Before REAVIS and JOHNSON, JJ., and BOYD, S.J. (1)
On June 21, 2002, a copy of a Notice of Appeal in cause No. 43,612-C in the 251st District Court of Potter County, Texas (the trial court), was filed with the clerk of this court (the appellate clerk). The document filed gives notice that Patrick Inthisan desires to appeal from a conviction and sentence in such court and cause number.
On September 26, 2002, a request for extension of time for filing the clerk's record was filed with the appellate clerk. By such request, the District Clerk of Potter County (the trial court clerk) advised that the clerk's record had not been paid for. An extension of time was granted for filing the clerk's record until October 3, 2002. The clerk's record has not been filed. The appellate clerk's record reflects no other action by any party to the appeal to prosecute the appeal.
Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 37.3(a)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, then whether appellant is indigent; (3) if appellant desires to prosecute this appeal, whether appellant is entitled to have the clerk's record furnished without charge; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the clerk's record will be promptly filed and that the appeal will be diligently pursued. If the trial court determines that the present attorney for appellant should be replaced, the court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the newly-appointed or newly-retained attorney.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a clerk's record on remand; (3) enter any orders appropriate to the circumstances; (4) cause the hearing proceedings to be transcribed and included in a reporter's record; and (5) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record. In the absence of a request for extension of time from the trial court, the clerk's record on remand, reporter's record of the hearing and proceedings pursuant to this order, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than December 31, 2002.
Per Curiam
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
ing the aforementioned standard to the question of whether appellant failed to preserve error viz the decision to exclude evidence, we note that the trial court did not rule that the evidence would be excluded. It simply granted the State's motion in limine, and in that motion, the State merely sought an order requiring the parties to approach the bench before evidence of mental illness was proffered. The trial court's decision fell far short of one holding that the evidence was inadmissible. So, because the evidence had not been ruled inadmissible, trial counsel cannot be held ineffective for failing to preserve complaint about something that never happened.
As to the matter of voir dire, we are again informed of no specific questions that appellant sought to ask the jury. This is fatal given the nature of the complaint. While certain topics may be fair game in voir dire, the manner in which they are broached may nonetheless be objectionable. See e.g., Barajas v. State, 93 S.W.3d 36, 38-39 (Tex. Crim. App. 2002) (noting that while the potential for bias is a legitimate subject for voir dire, a litigant cannot inquire into that potentiality through questions seeking commitments for the venire members). So, without a hint from appellant about what specific questions, if any, an effective attorney could and should have asked, we cannot analyze whether trial counsel actually erred. So, we overrule this issue as well.
Having overruled each issue, we affirm the judgments of the trial court.
Brian Quinn
Chief Justice
Do not publish.