Shea F. Raymond v. State

NO. 07-07-0158-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL D

 

DECEMBER 11, 2007

 

______________________________

 

 

SHEA F. RAYMOND, APPELLANT

 

V.

 

THE STATE OF TEXAS, APPELLEE

 

 

_________________________________

 

FROM THE COUNTY COURT AT LAW NO. 1 OF LUBBOCK COUNTY;

 

NO. 2005-496,325; HONORABLE LARRY B. “RUSTY” LADD, JUDGE

 

_______________________________

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

           On April 24, 2007, Appellant, Shea F. Raymond, filed his Notice of Appeal, by and through retained counsel, David Martinez, complaining of the trial court’s Judgment convicting him of the Class B Misdemeanor offense of Driving While Intoxicated. Thereafter, on August 7, 2007, this Court permitted Appellant’s counsel to withdraw. Subsequently, Appellant missed several deadlines for the filing of his brief. Consequently, by order dated October 5, 2007, this Court abated this appeal and remanded the cause to the trial court to determine why Appellant had not filed a brief. The trial court was directed to determine (1) whether Appellant still desired to prosecute this appeal, (2) whether he was indigent and entitled to appointed counsel, and (3) if not indigent, whether Appellant had made necessary arrangements for filing a brief. This Court’s order directed the trial court to file findings of fact and conclusions of law and include them in a supplemental clerk’s record. On November 6, 2007, a supplemental reporter’s record of the abatement hearing was filed, but no supplemental clerk’s record has been filed. 

           Upon inquiry by the Clerk of this Court regarding the status of the supplemental clerk’s record, Court Reporter, Sandra Shannon, indicated that the trial court’s findings had been dictated into the record. The reporter’s record does reflect that at the abatement hearing conducted on October 31, 2007, Appellant, who was represented by new retained counsel, unequivocally indicated he no longer wished to prosecute this appeal. Appellant’s intention being clear, we invoke Rule 2 of the Texas Rules of Appellate Procedure to suspend operation of Rule 42.2(a), which requires that Appellant and his attorney sign a motion to dismiss.

           Accordingly, the appeal is dismissed. The order of this Court directing the trial court to file findings of fact and conclusions of law is hereby rendered moot.

 

                                                                                  Patrick A. Pirtle

                                                                                        Justice

 

 

 

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NO.  07-10-0159-CV

                                                             

                                                   IN THE COURT OF APPEALS

 

                                       FOR THE SEVENTH DISTRICT OF TEXAS

 

                                                                 AT AMARILLO

 

                                                                      PANEL E

 

                                                             JANUARY 3, 2011

                                            ______________________________

 

RODNEY EARL WILLIAMS,

 

                                                                                                                        Appellant

                                                                             v.

 

                                                         RICK THALER, ET AL.,

 

                                                                                                                        Appellees

                                         _________________________________

 

                       FROM THE 12TH DISTRICT COURT OF WALKER COUNTY;

 

                               NO. 25018; HON. DONALD KRAEMER, PRESIDING

                                           _______________________________

 

Memorandum Opinion

_______________________________

 

Before QUINN, C.J., and HANCOCK and BOYD, JJ.

            Rodney Earl Williams (pro se) appeals the dismissal of his lawsuit against Rick Thaler, Cheryl Lawson, Eileen Kennedy, John P. Werner, Billy J. Reeves and Linda D. Ebner (collectively referred to as Thaler).  An inmate, Williams, sued those individuals alleging retaliation, conspiracy, racial discrimination, harassment, and cruel and unusual punishment.  Leave was sought to prosecute his claim as an indigent.  Thereafter, Thaler moved to dismiss the suit because Williams failed to comply with §14.004 of the Texas Civil Practice and Remedies Code; that is, Williams failed to file an affidavit “identifying and describing each lawsuit previously filed by [him].”  The trial court granted the motion and dismissed the cause with prejudice.  Williams challenges this dismissal.  We modify the order, and as modified, affirm it. 

            Section 14.004 requires an inmate seeking to prosecute claims as an indigent to “file a separate affidavit or declaration . . . identifying each suit . . . previously brought” pro se.  Tex. Civ. Prac. & Rem. Code Ann. §14.004(a)(1) (Vernon 2002).  In the affidavit, the inmate is obligated to describe each suit by its 1) operative facts, 2) style, cause number, and court in which it was filed, 3) parties, and 4) outcome.  Id. §14.004(a)(2) (A)-(D).  Moreover, failing to comply with §14.004 warrants the dismissal of the suit.  Carson v. Walker, 134 S.W.3d 300, 303 (Tex. App.–Amarillo 2003, pet. denied) (dismissing suit because Carson failed to mention the operative facts underlying his prior lawsuits).

            Williams lists two lawsuits, “Rodney Earl Williams vs. Erma Jean Martin” and “Rodney Earl Williams v. Billie Harris and Deteta Jones, et, al.” However, he fails to include a description of the operative facts underlying the relief sought and the cause numbers.   Therefore, Williams failed to comply with §14.004(a), and dismissal was warranted. 

            Accordingly, the trial court did not abuse its discretion in dismissing Williams’ petition.  Carson v. Walker, 134 S.W.3d at 302 (holding that the appropriate standard of review is one of abused discretion).  But, because the suit was dismissed with prejudice and the merits of his underlying claims were not adjudicated by the trial court, we modify the dismissal to reflect that it was without prejudice.  See id. at 303 (holding that when the underlying merits of the suit are not adjudicated, the proceeding should be dismissed without prejudice).  As modified, the order of dismissal is affirmed.

 

                                                                                    Per Curiam