FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
NOVEMBER 12, 2003 ______________________________
RAUL HERRERA,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;
NO. 906455997X; HON. ED SELF, PRESIDING _______________________________
ABATEMENT AND REMAND __________________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Raul Herrera (appellant) appeals his conviction for possession of a controlled substance over four grams but under 200 grams. The clerk's record was filed on September 15, 2003, and the supplemental clerk's record on September 17, 2003. The reporter's record was filed on August 27, 2003. Thus, appellant's brief was due on October 17, 2003. However, one was not filed on that date. On October 27, 2003, this Court notified counsel for appellant that neither the brief nor an extension of time to file appellant's brief had been filed. Counsel for appellant was also admonished that if appellant's brief was not filed by November 6, 2003, the appeal would be abated to the trial court. That date has lapsed, and appellant still has yet to file a brief.
Consequently, we abate this appeal and remand the cause to the 242nd District Court of Castro 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 entitled to appointed counsel; and,
3. whether appellant has been denied the effective assistance of counsel due to appellate counsel's failure to timely file an appellate 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 has been 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 December 10, 2003. Should additional time be needed to perform these tasks, the trial court may request same on or before December 10, 2003.
It is so ordered.
Per Curiam
Do not publish.
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NO. 07-11-00322-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
AUGUST 24, 2011
IN RE JAIME HERNANDEZ MUNIZ, RELATOR
Before CAMPBELL and HANCOCK, JJ. and BOYD, S.J.[1]
MEMORANDUM OPINION
Relator Jamie Hernandez Muniz, a prison inmate appearing pro se, has filed a motion for leave to file a petition for writ of mandamus[2] and a petition for writ of mandamus. In his petition, relator complains that the trial court denied him due process of law by signing orders directing withdrawal of funds from his trust account. For the reasons that follow, we will deny relators petition.
Relator has not filed a record or appendix with his petition. In an original mandamus proceeding, the petition must be accompanied by a certified or sworn copy of every document that is material to a relators claim for relief and that was filed in any underlying proceeding. See Tex. R. App. P. 52.7(a)(1). Additionally, the petition states facts not supported by evidence included in an appendix or record. A relators burden on mandamus includes meeting the requirement that [e]very statement of fact in the petition [is] supported by citation to competent evidence included in the appendix or record. Tex. R. App. P. 52.3(g). In short, a relator must supply a record sufficient to establish the right to mandamus relief. Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992). Relator has not done so and we are therefore unable to determine whether he is entitled to mandamus relief.
Accordingly, relators petition for writ of mandamus is denied and his motion for leave to file a petition for writ of mandamus is dismissed as moot. In denying relators petition, we express no opinion on the merits of his complaint, or whether it is properly reviewable by petition for writ of mandamus. See Harrell v. State, 286 S.W.3d 315, 321 (Tex. 2009) (holding appellate review of a trial courts order denying an inmates motion challenging a withdrawal order is by appeal).
James T. Campbell
Justice
[1] John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
[2] Motions for leave to file a petition for writ of mandamus are no longer required. Tex. R. App. P. 52.1 Notes and Comments.