IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 18, 2007
______________________________
RICHARD L. WILLIAMS, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 114TH DISTRICT COURT OF SMITH COUNTY;
NO. 114-2003-03; HONORABLE CYNTHIA KENT, JUDGE _______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ORDER ON ABATEMENT AND REMAND
Appellant, Richard L. Williams, Jr., appeals his conviction and sentence for possession of marijuana. The clerk's record, which was due no later than November 13, 2006, and the reporter's record, which was due no later than December 7, 2006, have not been received. On December 4, this court was notified by the district clerk that appellant had not paid or made arrangements to pay for the record. On December 8, this court was notified by the court reporter that appellant had neither submitted a request for preparation of the record nor had paid or made arrangements to pay for the record. This court sent letters to appellant's retained counsel directing him to certify to the clerk of this court, in writing, whether he had complied with Texas Rules of Appellate Procedure 34.6(b)(1), 35.3(a)(2), and 35.3(b)(2),(3) on or before January 2, 2007. (1) As of this date, no response has been received.
Because appellant has failed to comply with this court's directives, we now abate the appeal and remand the cause to the 114th District Court of Smith County. The judge of said court is ordered to convene a hearing, after notice to appellant and other parties in interest, to determine the following matters:
- whether appellant desires to prosecute this appeal;
- if appellant desires to prosecute this appeal, whether appellant is indigent;
- whether appellant is entitled to a clerk's record and reporter's record, without charge to appellant;
- whether appellant is entitled to appointed counsel;
- whether appellant has been denied the effective assistance of counsel from the delay encountered in prosecuting this appeal; and
- what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal, if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the clerk's and reporter's records will be promptly filed and that the appeal will be diligently pursued.
If the court determines that appellant is indigent and has been denied the effective assistance of counsel, we order it to appoint counsel for appellant.
We further order the court to cause a supplemental clerk's record to be developed. The supplemental clerk's record shall include (1) a transcription of the hearing convened to determine the issues itemized above, (2) findings of fact and conclusions of law determining the issues itemized above, and (3) all orders made in accordance with this opinion. We order the court to cause the supplemental clerk's record to be filed with the clerk of this court on or before February 19, 2007.
If the trial court determines that the present attorney for appellant should be replaced, the court shall cause the clerk of this court to be furnished the name, address, and State Bar identification number of the newly-appointed attorney as soon as practicable.
Per Curiam
Do not publish.
1. For purposes of clarity, we identify the later due date for the certification. However,
we note that appellant's counsel was directed to file his certification with reference to the
clerk's record on or before December 28, 2006.
er subparagraph (a) or (b). Rather, although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on the challenged elements. Roth v. FFP Operating Partners, 994 S.W.2d 190, 195 (Tex.App.-Amarillo 1999, pet. denied); see Tex. R. Civ. P. 166a, Notes and Comments.
Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.App.--Austin 1998, no pet.). Thus, our task as an appellate court is to ascertain whether the non-movant produced any evidence of probative force to raise a fact issue on the material questions presented. Id. We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. Merrill Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S. Ct. 1799, 140 L. Ed. 2d 939 (1998). A no-evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Fiesta Mart, Inc., 979 S.W.2d at 70-71. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Havner, 953 S.W.2d at 711.
Instead of presenting a broad form issue which authorizes argument of all possible grounds upon which summary judgment should have been denied, see Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970), Branum presents three issues which we will consider together. Focusing on the third issue, Branum contends the trial court erred in granting summary judgment before granting her motion for adoption of level 3 discovery control plan and ordering expert designation to be conducted in accordance therewith. As material here, alleging an "adequate time for discovery," and after identifying the elements of Branum's cause of action, Northwest et al. moved for summary judgment on the ground there was no evidence of one or more essential elements. Branum did not except to the motion nor claim it was not adequate to "define the issues and to put" her on notice with adequate information to oppose the motion, or otherwise proper under Rule 166a(i). See Inwood Forest, Etc. v. R.J.S. Development, 630 S.W.2d 751, 753 (Tex.App.--Houston [1st Dist.] 1982, no writ). More important however, Branum did not produce any summary judgment evidence, expert or otherwise, to establish the appropriate standard of care, a breach thereof, or that her injuries were proximately caused by Northwest, et al.
Branum argues that because Rule 190.4 required the trial court to convert the discovery to a level 3 discovery control plan, the "adequate time for discovery" provision of Rule 166a(i) also controlled the level 3 discovery control plan. We disagree. Even if the trial court was required to convert discovery to level 3, a question we need not decide, in McClure v. Attebury, 20 S.W.3d 722, 729 (Tex.App.--Amarillo 1999, no pet.), we held whether an "adequate time for discovery" has been provided is case specific. See also McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex.App.-Houston [14th Dist.] 2003, pet. denied). Branum does not contend she did not have adequate time for discovery; however, as material to her contention, because the question of adequate time is case specific, we decline to impose the bright-line rule suggested by Branum. In Restaurant Teams Intern. v. MG Securities, 95 S.W.3d 336, 339 (Tex.App.--Dallas 2002, no pet.), the court held:
Neither rule 166a(i) nor the comment thereto states that the discovery period applicable to a case by virtue of rule 190 must have ended before a no-evidence summary judgment may be granted. See Tex. R. Civ. P. 166a(i) & cmt. Instead, the rule merely requires "adequate time" for discovery. Id. We will not read such a bright-line requirement into the rule when its language reflects that a more flexible approach was intended.
Moreover, Branum did not file a sworn motion for continuance as permitted by Rule 252 and did not file an affidavit stating why she needed additional time for discovery, as required by Rule 166a(g). Jaimes v. Fiesta Mart, Inc., 21 S.W.3d 301, 304 (Tex.App.--Houston [1st Dist.] 1999, pet. denied). We overrule issues one, two, and three.
Accordingly, the judgment of the trial court is affirmed.
Don H. Reavis
Justice
1. Repealed by Act of June 2, 2002, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Sess. Law Serv., current version at Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001 - 74.507 (Vernon Pamph. 2004).