IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
MAY 29, 2002
________________________________ARIE SHALEV,
Appellant
v.
THE STATE OF TEXAS
Appellee
_________________________________FROM THE COUNTY CRIMINAL COURT AT LAW #13 OF HARRIS COUNTY;
NO. 1058728; HON. MARK ATKINSON, PRESIDING _______________________________
Before BOYD, QUINN, and REAVIS, JJ.
Arie Shalev (appellant) appeals his conviction for driving while intoxicated. Both the clerk's and court reporter's records were filed by April 1, 2002. Thus, appellant's brief was due on May 1, 2002. However, one was not filed on that date. By letter dated May 13, 2002, we notified appellant's counsel, Mike Monks, of the expired deadline and directed him to respond to our notification of same by Thursday, May 23, 2002, or the appeal would be abated to the trial court pursuant to Tex. R. App. P. 38.8. May 23, 2002 passed without any response by counsel to our notice, without counsel tendering a brief, and without counsel filing a motion for extension of time to file a brief.
Consequently, we abate this appeal and remand the cause to the County Criminal Court at Law No. 13 of Harris County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
1. whether appellant desires to prosecute the appeal;
2. whether appellant is indigent; and,
- whether appellant has been denied the effective assistance of counsel due to counsel's failure to timely file a brief. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed. 2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief).
We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue this appeal, is indigent, and was denied effective assistance of counsel, then we further direct the court to appoint new counsel to assist in the prosecution of the appeal. The name, address, phone number, telefax number, and state bar number of the new counsel who will represent appellant on appeal must also be included in the court's findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed: 1) a supplemental clerk's record containing the findings of fact and conclusions of law and 2) a reporter's record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's record to be filed with the clerk of this court on or before June 28, 2002. Should additional time be needed to perform these tasks, the trial court may request same on or before June 28, 2002.
It is so ordered.
Per Curiam
Do not publish.
court's file does not contain the petition relator claims to have filed, and that he has no independent recollection of having received such a pleading from relator.
Mandamus will issue only to correct a clear abuse of discretion or violation of a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 837-39 (Tex. 1992) (orig. proceeding). The writ sought by relator here, directing the consideration of a pleading he has filed with a trial court, would issue only on a clear showing that the respondent has a legal duty to perform a nondiscretionary or ministerial act; that he has been requested to perform the act; and that he has refused to do so. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App.-Houston [1st Dist.] 1992) (orig. proceeding) (citing Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979)). The relator has the burden to present the appellate court with a record sufficient to establish the right to mandamus. Walker, 827 S.W.2d at 837-39. Here, relator has failed to meet that burden.
Naturally, if relator's motion was not properly filed with the district court, the court can have no duty with respect to it. Moreover, even if relator filed such a motion, he has not provided this court with a record showing that, after he filed the motion, he asked the district court for a hearing and a ruling on the motion and the district court refused him such a hearing and ruling. As in Barnes, the record before us does not reflect that relator has taken any action to alert the district court that it has not yet considered his motion. Barnes, 832 S.W.2d at 426. Indeed, we have nothing in the record before us to demonstrate that the district court even was aware of relator's motion before our request for the court's response. We have only the statement in relator's petition that he filed with his motion a request to the district clerk for a hearing date. Such a statement falls considerably short of the record required to demonstrate relator's entitlement to the extraordinary relief of mandamus. (3) See In re Chavez, 62 S.W.3d 225, 228 (Tex.App.-Amarillo 2001) (orig. proceeding); Christensen, 39 S.W.3d at 251; Barnes, 832 S.W.2d at 426.
The petition for writ of mandamus is denied.
Per curiam.
1. Tex.R.App.Proc. 47.4.
2. There is authority that indigent criminal defendants are generally not entitled to free clerk's or reporter's records from their conviction for the purpose of preparing applications for post-conviction habeas corpus relief. See, In re Trevino, supra; Escobar, supra. We need not consider here whether relator is entitled to the records he seeks.
3. On direct appeal of his conviction to this court, appellant's challenges included claims of ineffective assistance of counsel. After addressing each of the alleged deficiencies shown in the record, we then considered relator's challenge to the standard for determining the effectiveness of counsel on direct appeal. He there argued that the use of a presumption that counsel rendered adequate assistance with respect to any issue not appearing in the record violated his right to counsel under the sixth amendment to the U.S. Constitution. Bunch v. State, No. 07-01-171-CR, at 14 (Tex.App.-Amarillo June 3, 2002, no pet.). This is so, he argued, because the avenue for developing evidence of ineffectiveness not shown in the record through habeas corpus is inadequate because, unlike on direct appeal, he would not have assistance of counsel. Id. We noted that this court is constrained to follow the law as enunciated by the Court of Criminal Appeals, overruled his challenges, and affirmed his conviction on June 3, 2002. Id. We recognize that relator's difficulties with this pro se petition may illustrate the concern he expressed on direct appeal. We cannot excuse relator from the requirement that he demonstrate entitlement to the relief he requests, though, simply because he is proceeding pro se. See In re Chavez, 62 S.W.3d 225, 227 (Tex.App.-Amarillo 2001) (orig. proceeding); Barnes, 832 S.W.2d at 426.