Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant, Jerry Wayne Hill, appeals from his conviction for driving while intoxicated, enhanced to a felony, and sentence of two years incarceration in the Institutional Division of the Texas Department of Criminal Justice. The appellate record was due in this case by June 26, 2007. The clerk's record was filed on June 27, 2007. Neither the reporter's record nor a motion for extension of time to file the reporter's record was filed with this court by June 26, 2007. On July 5, 2007, this court directed the court reporter by letter "to advise the Court of the status of the reporter's record on or before Monday, July 16, 2007." To date, no response has been received by the court.
Accordingly, we abate this appeal and remand the cause to the Criminal District Court Number One of Tarrant 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. why the reporter's record has not been filed,
2. when the reporter's record can reasonably be filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving the appellant of his right to appeal, and
3. whether an alternate or substitute reporter should or can be appointed to complete the record in a timely manner.
The trial court shall cause the hearing to be transcribed. In addition, the trial court shall (1) execute findings of fact and conclusions of law addressing the foregoing issues, (2) cause a supplemental clerk's record to be developed containing its findings of fact and conclusions of law and all orders it may issue as a result of its hearing in this matter, and (3) cause a reporter's record to be developed transcribing the evidence and arguments presented at the aforementioned hearing, if any. The trial court shall then file the supplemental clerk's record and any reporter's record transcribing the hearing with the clerk of this court on or before August 24, 2007. Should further time be needed by the trial court to perform these tasks, then same must be requested before August 24, 2007.
It is so ordered.
Per Curiam
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NO. 07-09-00323-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 19, 2010
ROCKY A. HILL, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2008-419,474; HONORABLE CECIL G. PURYEAR, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
CONCURRING OPINION
The court construes Gomez to hold that the trial court had no duty sua sponte to order a psychiatric examination to determine the defendants sanity at the time of the offense because the defendant failed to file the notice required by statute of his intention to offer evidence on such a defense. See Gomez, 2001 Tex. App. Lexis 2094, at *9-*12 (citing Tex. Code Crim. Proc. Ann. art. 46.03 § 2(a)(1) (Vernon 1979) (now art. 46C.052)). While not inaccurate, the courts description of Gomez and its application to this case could leave the impression that the outcome here might be different if counsel simply had filed the statutorily-required notice. But such is not the case, as a broader application of Gomez makes clear. As Gomez says, the defendant there neither filed the notice of intention to offer evidence on an insanity defense, nor specifically alleged she was insane. Gomez, 2001 Tex. App. Lexis 2094, at *10-*11. The opinion goes on to state that insanity was not an issue at [Gomezs] plea hearing or sentencing; rather, [Gomez] submitted the affidavits [allegedly containing indications of insanity] for the purpose of obtaining community supervision in lieu of confinement. Id. at *11.
Similar statements can be made in this case. Although appellants experienced trial counsel sought both competency and insanity examinations of appellant, and both examinations were conducted, by the time of appellants plea hearing, neither his competency to stand trial nor his sanity at the time of the offenses was at issue. Moreover, as the court points out, the statutory consequence of a defendants failure to give notice of intention to offer evidence on an insanity defense is that the evidence is not admissible absent good cause for the lack of notice. Tex. Code Crim. Proc. Ann. art. 46C.052 (Vernon 2006). Here, the trial court deferred a finding of guilt until it heard the punishment evidence. Before the finding of guilt, without objection from the State, appellant called four witnesses, including the psychologists who performed the competency and insanity examinations. He thoroughly examined both experts. So appellant suffered no exclusion of evidence. Moreover, as I read it, his questioning of the psychologists was not directed at showing an insanity defense (which, of course, would have been inconsistent with his guilty plea in the first place, see Ex parte Williams, 703 S.W.2d 674, 682 (Tex.Crim.App. 1986) ([a] plea of guilty waives all nonjurisdictional defenses . . .)), but at showing his need for treatment rather than merely a long prison sentence. In that effort, appellant had some success, as his sentence was far short of the maximum available to the trial court.
As I see it, appellant is like Gomez in that insanity was not an issue at his plea hearing or his sentencing, and his evidence of his mental condition was aimed at mitigating his punishment, not asserting his insanity. His ability to accomplish that aim was not affected by his failure, vel non, to give notice of an intention to assert insanity. With these additional comments, I join the opinion and judgment of the court.
James T. Campbell
Justice
Publish.