Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
Following the trial court's judgments adjudicating his guilt for burglary of a building and aggravated assault, appellant Samuel Bartholomew Smiddy perfected these appeals. The clerk's records were filed on March 26, 2004. After the court reporter filed extensions of time in which to file the records indicating that no written designation or arrangement to pay had been made, by letter dated May 13, 2004, this Court granted an extension until June 10, 2004. By that same letter, attorney Hayward M. Rigano was directed to file a written certification with this Court by June 1, 2004, indicating whether he had complied with the Rules of Appellate Procedure and if not, a reasonable explanation for non-compliance. Counsel did not respond and the reporter's records have not been filed. A review of the clerk's records demonstrates that on August 7, 2003, attorney George Harwood was appointed to represent appellant. However, a month later the trial court granted a motion to substitute Rigano as appellant's counsel.
Therefore, we now abate these appeals, and remand the causes to the trial court for further proceedings. See Tex. R. App. P. 37.3(a)(2). 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 these appeals;
2. whether appellant is indigent and entitled to appointed counsel; and
3. why appellant is being deprived of reporter's records.
The trial court shall cause a hearing to be transcribed. Should it be determined that appellant does want to continue these appeals and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel, which measures may include the appointment of counsel. If new counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in the order appointing new counsel. Finally, the trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues and cause its findings and conclusions to be included in supplemental clerk's records. The supplemental records of the hearing shall also be included in the appellate records. Finally, the trial court shall file the supplemental clerk's records and the supplemental reporter's records with the Clerk of this Court by Monday, July 26, 2004.
It is so ordered.
Do not publish.
icted of the offense of fraudulent record of court, which is the subject of this appeal.
Only portions of the reporter's record have been requested by appellant and furnished to this court. Those include the hearing on a bill of particulars filed by appellant and a motion to transfer venue; a hearing on appellant's motion for continuance; the State's opening, closing, and rebuttal arguments during the guilt/innocence phase of trial; the testimony of one State's witness, David Blount, and the testimony of one witness for appellant, Jerry Herndon, during the guilt/innocence phase of the trial; the testimony of one witness, Kinan Burk, during the punishment phase of trial; and sentencing. No trial exhibits have been furnished to this court and therefore we are without benefit of the document which is the subject of the charge against appellant. Moreover, as already stated, no contentions of error are before us for review.
At the pretrial hearing on the failure of the State to respond to appellant's demand for a bill of particulars, the record shows that the bill of particulars consisted of a series of questions that appellant wished the State to answer. Appellant was not able to cite any authority to the trial court supporting his position that the State was legally required to provide those responses, and the court overruled that motion. The court also overruled appellant's show cause petitions against two individuals requiring one to verify appellant's demand for bill of particulars and for a demonstration of another individual's mind reading capabilities.
Appellant filed a motion to change venue based on his not being able to obtain a fair trial because of the publication of an article by the Amarillo Globe News on May 11, 2000, and "numerous inflammatory news reports on the TV and radio stations." A motion to change venue is reviewed under an abuse of discretion standard. Banda v. State, 890 S.W.2d 42, 53 (Tex.Crim.App. 1994), cert. denied, 515 U.S. 1105, 115 S. Ct. 2253, 132 L. Ed. 2d 260 (1995). The affidavits in support of appellant's motion refer specifically only to the May 11, 2000 article in the newspaper. The State contested the motion and offered a witness at the hearing, who was an attorney for the Potter County Attorney's Office, who testified he kept up with current affairs but had no knowledge of appellant or the crime with which he was charged. The court found there was not sufficient evidence that appellant could not get a fair trial in Randall County.
A motion for continuance is also within the discretion of the trial court. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex.Crim.App. 1995). Appellant moved for continuance on the day of trial because he needed sufficient time to prepare for trial. In denying that motion, the court noted that the complaint was filed on May 10, 2000, and that appellant had been free on bond. The court also noted the case had been set previously for trial on July 14. Appellant appeared on that day and, at that time, the trial was continued until August 7, 2000, at which time pretrial matters were heard. The trial itself was then continued to the following day. In response to appellant's assertions that he did not realize trial would begin immediately after pretrial motions were heard and that he was acting "pro se," the trial court reminded appellant that he had previously been told that if he could not afford an attorney, one would be appointed for him, or, alternatively, he could hire his own lawyer.
Our examination of the record reveals that appellant did not object to any portion of the State's argument or the testimony of its witnesses. We have also reviewed the complaint and the charge. In sum, our examination of the portion of the record before us does not show any fundamental error. That being so, we affirm the judgment of the trial court.
John T. Boyd
Chief Justice
Do not publish.