IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 1, 2002
______________________________
GEORGE RODRIGUEZ, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 84TH DISTRICT COURT OF OCHILTREE COUNTY;
NO. 3027; HONORABLE WILLIAM D. SMITH, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
Appellant George Rodriguez, Jr. seeks to appeal the revocation of his probation and punishment, assessed by the trial court, at eight years confinement in the Institutional Division of the Texas Department of Criminal Justice. Finding no reversible error, we affirm.
Following dismissal of an earlier indictment, appellant was charged by indictment of attempted murder and aggravated assault in July 1996. On August 2, 1996, his attorney sought a continuance, which was denied. On March 27, 1997, appellant entered a plea of guilty to the aggravated assault charge pursuant to a plea agreement. The trial court rendered a judgment of guilt and assessed punishment in conformity with the plea agreement of ten years probation, a $2,500 fine and a period of community service. Two subsequent orders amended the terms of probation allowing appellant to reside in Kerr and Childress Counties, respectively.
The State filed a motion to revoke appellant's probation on May 17, 2001, alleging 81 violations of the conditions of his probation. The violations alleged included failing to report, failing to pay probation fees, or submit financial statements. At the conclusion of a hearing on the State's motion to revoke conducted November 29, 2001, the trial court revoked appellant's probation and sentenced him to eight years confinement, a fine of $2,500, and restitution of $14,887. On appellant's request, the court appointed counsel on appeal.
Through his appointed attorney, appellant filed his notice of appeal on December 3, 2001, but a second attorney, David Scott, subsequently filed a motion for new trial alleging ineffective assistance of counsel on December 5. The court denied the motion for new trial. Scott has now filed a brief stating that he has thoroughly examined the record and determined the appeal is without merit. See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct.1396, 18 L. Ed. 2d 493 (1967). This brief discusses five potential issues on appeal and why none show reversible error. Scott has also filed a motion to withdraw as counsel and informed appellant of his right to file a pro se brief. See Johnson v. State, 885 S.W.2d 641 (Tex.App.--Waco 1994, pet. ref'd). Appellant has filed a pro se brief asking for appointment of another attorney and elaborating on portions of the Anders brief filed by his attorney.
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. Nichols v. State, 954 S.W.2d 83, 86 (Tex.App.--San Antonio 1997, no pet.). If this court determines the appeal has 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).
The issues raised in the Anders brief filed by appellant's counsel address 1) the denial of his motion for continuance, 2 and 3) whether appellant was deprived of effective assistance of counsel, 4) the denial of his motion for new trial, and 5) whether the trial court improperly considered appellant's race in determining punishment.
Trial counsel was appointed on June 18, 2001. Trial counsel's motion for continuance was filed on November 29, 2001, alleging he had insufficient time to prepare for trial. The motion did not allege any specific facts which prevented counsel from preparing his case in the five months since his appointment. We agree the court did not abuse its discretion in denying the continuance.
The second and third issues discussed in the Anders brief concern whether his trial counsel was ineffective in failing to give appellant earlier notice of the revocation hearing (issue two) and failing to call additional defense witnesses (issue three). Appellant claimed he only received notice of the revocation hearing the day before it commenced. The court relied on letters from the State mailed to appellant showing the hearing date and the statements of counsel that he notified appellant at least 2-3 days before the hearing. The record does not reflect how the limited notice could have prejudiced his defense as required to support a finding of ineffective counsel. See Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
The Anders brief filed by counsel extensively discusses the testimony of each witness appellant contends should have been called by his trial counsel. All but one of the additional witnesses were character witnesses. Their testimony would not have been relevant to the 81 alleged violations of appellant's probation. One witness was sought to advance the defense of self-defense to the original conviction. Counsel on appeal correctly notes that a motion to revoke may not be used to attack the original conviction. Traylor v. State, 561 S.W.2d 492 (Tex.Crim.App. 1978). We agree the failure to call the additional witnesses did not deprive appellant of reasonably effective assistance of counsel.
The fourth issue discussed in the Anders brief is the trial court's denial of appellant's motion for new trial. Appellant testified at the hearing on his motion for new trial and raised each of the issues discussed above. The court found nothing in the hearing justified a new trial and our review of that hearing reveals nothing to undermine that finding. Appellant's pro se brief does not identify any such evidence.
The fifth issue discussed is whether the trial court improperly considered appellant's race in determining his sentence. Appellant's pro se brief quotes from portions of the reporter's record where he, the prosecutor and the court discussed his ethnicity and argues this was improper because he is an American citizen. Even a cursory review of the record shows that appellant raised the issue of his ethnicity by accusing the prosecutor of offering a plea agreement with a longer term of imprisonment on the basis of prejudice because "You know, I'm just Mexican, I'm poor, I don't have the money to . . . get probation reinstated." The prosecutor responded that "I really resent the comments by Mr. Rodriguez, that this court, me, you, are just out to get a poor Mexican in this case. I don't think anything could be further from the truth." The trial court likewise responded to the comment by stating, "I am a little perturbed that you would make that statement in here today that the only reason we are doing this is because you are a Mexican fellow. That is not right." The court went on to expressly state, "I'm not going to hold [that statement] against you. But you need to be careful about what you say under oath."
The record establishes that the trial court's judgment and assessment of punishment was not based on appellant's ethnic background. It was appellant who interjected the issue in the proceeding. The comments by the State and trial court were merely responsive to the issue raised by appellant.
Our review convinces us that appellate counsel conducted a diligent and conscientious review of the record. We agree it presents no meritorious grounds for review. We grant counsel's motion to withdraw and affirm the judgment of the trial court.
John T. Boyd
Chief Justice
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and unnamed other members of the office of
that court’s clerk, failed to docket a matter brought before the Fifth Circuit by Kriegel. In
particular, Kriegel asserted Zapalac owed him a fiduciary duty which was breached when
Kriegel’s matter was not docketed or calendared with the Fifth Circuit. Kriegel asked the
state trial court to: (1) order the clerk’s office of the Fifth Circuit to calendar and docket his
matter; and (2) consider removing employees of the Fifth Circuit who violate their “fiduciary
duty” to Kriegel.
The record reveals that on July 25, 2007, the trial court dismissed Kriegel’s suit, without prejudice, for want of prosecution. In its order of dismissal, the court found that no proper citation with proof of service on Zapalac appeared of record. The court further found that on May 29, 2007, it notified Kriegel of its intent to dismiss for lack of service of citation on Zapalac and granted Kriegel until June 19, 2007, to request a continuance. The court found Kriegel made no showing of good cause for a continuance. Accordingly, it dismissed Kriegel’s suit.
Kriegel filed a notice of appeal on August 1, 2007. With no record from the trial court, he nevertheless filed a document bearing the primary heading “Brief” with this court on August 13, 2007. On September 24, 2007, the clerk’s record was filed, consisting of the order of dismissal, Kriegel’s notice of appeal, and the court’s docket sheet.
Because it appeared Kriegel’s complaint was the trial court improperly dismissed his suit for failure to serve Zapalac, and as the clerk’s record did not contain citation with return, we notified Kriegel of the contents of the record by letter of September 28, 2007. We granted Kriegel until October 15, 2007, to file a supplemental clerk’s record containing additional documents he believed material to his appeal. Kriegel made no response to the letter and no supplemental clerk’s record was received by October 15, 2007.
Issue
Kriegel’s brief fails to comply with the requirements of Tex. R. App. P. 38.1 in several respects and for the essential requirements of an appellant’s brief we refer Kriegel to the text of Rule 38.1. However, in a single issue Kriegel argues:
“Appellant presented information to the Court showing service was lawfully presented on Appellee.”
Discussion
We review an order of dismissal for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997). A trial court abuses its discretion when it acts without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 90 L. Ed. 2d 721, 106 S. Ct. 2279 (1986). A trial court's authority to dismiss a case for want of prosecution proceeds from two sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the common law, which vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630-31 (Tex. 1999). The record here provides no indication that the trial court acted under Rule 165a so we interpret the basis of its dismissal authority to be its inherent power.
Merely filing suit did not bring Zapalac within the jurisdiction of the trial court. See, e.g., Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) (defendant’s actual knowledge of suit not sufficient to invoke court’s jurisdiction to render default judgment; jurisdiction dependent on citation issued and served in manner provided by law). It was for Kriegel to request process and ensure its proper service on Zapalac. "Upon the filing of the petition, the clerk, when requested, shall forthwith issue a citation and deliver the citation as directed by the requesting party. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition." Tex. R. Civ. P. 99(a) (emphasis supplied). Kriegel’s failure to properly bring Zapalac before the court meant his suit lay dormant on the trial court’s docket. Moreover, it was Kriegel’s failure to properly obtain service and file the return that prompted the trial court’s warning of impending dismissal.
Despite Kriegel’s claim in this court that he provided proof of service for the trial court before June 19, 2007, the record, which is the sole object of our review, speaks otherwise. The court’s order of dismissal states the court’s finding “that no citation, or process under Rules 108 or 108a, TRCP, with proper proof of service on William C. Zapalac, has been filed with the clerk of the court.” The record before us contains no proof that at any time Kriegel either requested citation issue or undertook steps to make certain its proper service. His failure to do so came to the attention of the trial court prompting a warning of impending dismissal unless “a written request for continuance showing good cause was made on or before June 19, 2007, at 9:30 a.m.” The court found Kriegel failed to comply with this requirement and dismissed his case. The record does not reveal whether Kriegel filed a request for continuance that the court found inadequate or filed nothing. In either instance, we presume the evidence of Kriegel’s action or inaction supports the court’s finding that Kriegel “made no showing of good cause for continuance.” See Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (in the absence of a record showing the trial court abused its discretion, the appellate court presumes the evidence before the trial court supports the judgment); Bard v. Frank B. Hall & Co., 767 S.W.2d 839, 845 (Tex.App.–San Antonio 1989, writ denied) (when nothing in the record contradicts a judgment’s recitals, they are taken as true).
The record before us reflects that Kriegel did nothing to obtain proper service of Zapalac and then did not follow an order of the court specifying the means for avoiding dismissal. On such a record, we cannot say the trial court abused its discretion by dismissing Kriegel’s case for want of prosecution. Accordingly, we overrule Kriegel’s sole issue, and affirm the trial court’s order of dismissal.
James T. Campbell
Justice