Texas Mutual Insurance Company v. Goetz Insurors, Inc. and Goetz Insurors, Inc., as Assignee of the Claims of Cattlco., Inc.

NO. 07-08-0279-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JANUARY 12, 2009

______________________________

TEXAS MUTUAL INSURANCE COMPANY,

                                                                                                           Appellant

V.

GOETZ INSURORS, INC. AND

GOETZ INSURORS, INC., AS ASSIGNEE

OF THE CLAIMS OF CATTLECO, INC.,

                                                                                                           Appellees

______________________________

FROM THE 64th DISTRICT COURT OF SWISHER COUNTY;

NO. A-10810-05-11; HON. ROBERT W. KINKAID, JR., PRESIDING

_______________________________

ON ABATEMENT AND REMAND

_______________________________

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

          Appellant Texas Mutual Insurance Company appeals from the final judgment of the trial court. On August 11, 2008, the clerk’s record was filed. The reporter’s record was due on October 15, 2008. No extension motion or reporter’s record was filed. On October 22, 2008, this court directed the court reporter by letter “to advise the Court of the status of the reporter’s record on or before November 3, 2008." In response, the Court received a motion for extension of time to file the record, which was granted to November 14, 2008. No extension motion or record was filed by that date. On December 1, 2008, the Court again notified the reporter that the record had not been filed and the reporter was asked to provide the status of the record by December 10, 2008. On December 10, 2008, the reporter filed her second extension motion requesting until January 12, 2009, to file the record, which was granted. On January 5, 2009, this Court received the court reporter’s third extension request asking for an additional thirty days to file the record.

          Accordingly, we abate this appeal and remand the cause to the 64th District Court of Swisher 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:

when the reporter’s record can reasonably be transcribed into written form and filed in a manner that does not further delay the prosecution of this appeal or have the practical effect of depriving the appellant of their right to appeal.

 

          The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk’s record 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 to be developed a reporter’s record transcribing the evidence and arguments presented at the aforementioned hearing, if any. Additionally, the district court shall then file the supplemental clerk’s and reporter’s records transcribing the hearing with the clerk of this court on or before February 11, 2009. Should further time be needed by the trial court to perform these tasks, then same must be requested before February 11, 2009.

          It is so ordered.

                                                                           Per Curiam

 

Do not publish.

2 Accent 1"/>

NOS. 07-08-0497-CR, 07-08-0498-CR

 

IN THE COURT OF APPEALS

 

FOR THE SEVENTH DISTRICT OF TEXAS

 

AT AMARILLO

 

PANEL C

 

FEBRUARY 9, 2010

 

__________________________

 

PEDRO CERVANTEZ, APPELLANT

 

V.

 

THE STATE OF TEXAS, APPELLEE

___________________________

 

FROM THE 222^ND DISTRICT COURT OF DEAF SMITH COUNTY;

 

NOS. CR-88J-120, CR-88J-121; HONORABLE H. BRYAN POFF, JR.

_____________________________

 

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

 

 

MEMORANDUM OPINION

 

 

On March 7, 1989, appellant, Pedro Cervantez, pleaded no contest to two counts of aggravated assault with a deadly weapon.[1]  As a result of a plea bargain, appellant was placed on community supervision probation for a period of 10 years on each case.  Subsequently, in 1993, appellant’s probation was modified.  Thereafter, on October 24, 1994, the State filed an application to revoke appellant’s probation.  However, appellant was not arrested on the capias issued in each case until August 8, 2008.  On November 26, 2008, the trial court found that the allegations contained in each of the respective  applications to revoke probation were true.  Appellant’s probation was revoked and he was sentenced to two years confinement in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ).  Appellant appeals the judgment of the trial court contending that the trial court’s action in revoking his probation was unconstitutional.  Disagreeing with appellant, we affirm.

Factual and Procedural Background

 

            After appellant was placed on community supervision probation in 1989, his probation was modified in 1993.  The modification was a result of a motion to revoke appellant’s probation that resulted in an agreed modification.  Thereafter, on October 24, 1994, the State filed a second motion to revoke each of appellant’s probations.  The State alleged that appellant 1) had failed to report for specified months, 2) failed to make his monthly payments, and 3) failed to report to the Hockley County Probation Department as required by the terms of his probation.  A capias was issued in each case on October 24, 1994.  However, the capias was not served on appellant until August 8, 2008. 

            A hearing on the State’s application to revoke, in each case, was held on November 26, 2008.  Appellant entered a plea of not true to the allegations contained in the State’s motions to revoke.  The State presented evidence about the failure of appellant to report, failure to pay the fees, and the failure to report to the Hockley County Probation Department during the period appellant lived in Hockley County.  The State also presented evidence about the steps they had taken to attempt to serve the arrest warrants on appellant following the filing of the motions to revoke.  After the State rested its case, appellant presented evidence that he had not fled the jurisdiction of the court and, in fact, had resided for a number of years at the address reflected in one of his probation reports.  During arguments about how the court should rule on the motions to revoke, appellant’s counsel argued that the State had not exercised due diligence in attempting to apprehend appellant.  However, the trial court ruled that the State had exercised due diligence in attempting to apprehend appellant and found the allegations contained in the State’s motions to revoke true.  The trial court revoked appellant’s probations in each case and sentenced appellant to serve two years confinement in the ID-TDCJ. 

            Appellant appeals the trial court’s decision to revoke alleging that the State is constitutionally barred from impairing the contractual obligation existing between appellant and the State and that the State had to use due diligence in apprehending appellant following the issuance of a capias.  We disagree with appellant’s contention and, therefore, affirm the judgment of revocation.

Constitutional Challenge

 

            Appellant contends that, at the time he entered his plea, the State, having filed the motions to revoke, was bound to prove they used due diligence in serving him with the arrest warrants.  Consequently, appellant contends that this obligation became part of his contract with the State in connection with the entry of his plea that led to him being placed on community supervision probation.  By legislation, the due diligence requirement[2] that existed at the time of the entry of appellant’s plea has been replaced with an affirmative defense,[3] which necessarily alters the contractual obligation existing between appellant and the State.  As such, it appears to the Court that appellant is complaining about the constitutionality of the statute as it was applied to him, rather than that the statute is unconstitutional on its face.

            Construing appellant’s contention to be that he is presenting a case of constitutional infirmity based on how the statute is being applied to him, we will apply the following standard of review.  A claim challenging the constitutionality of a statute’s application cannot be raised for the first time on appeal.  See Curry v. State, 910 S.W.2d 490, 496 (Tex.Crim.App. 1995).  Therefore, we must examine the record to determine if appellant has properly preserved this issue for appeal.  See Tex. R. App. P. 33.1.  Our review of the record reveals that the only objection made by appellant at the time of his hearing on the State’s motions to revoke was that the State had failed to demonstrate the exercise of due diligence in serving the warrants for appellant’s arrest.  This objection or statement in no way apprises the trial court that appellant is contending that the statute is being applied to him in an unconstitutional manner.  To preserve this issue for appeal, all counsel had to do is “let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the judge is in the proper position to do something about it.”  Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009).  As appellant did not object, there is nothing preserved for appeal and there is nothing presented for our review.  See Starks v. State, 252 S.W.3d 704, 707 (Tex.App.--Amarillo 2008, no pet.).  Accordingly, appellant’s sole issue is overruled.

Conclusion

 

            Having overruled appellant’s only issue, the judgments of the trial court are affirmed.

 

                                                                                                Mackey K. Hancock

                                                                                                            Justice

 

 

 Do not publish. 

 

           

           

 

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[1] See Tex. Penal Code Ann. § 22.02(2) (Vernon Supp. 2009).

[2] See Peacock v. State,  77 S.W.3d 285, 287-88 (Tex.Crim.App. 2002).

 

[3] See Tex. Crim. Proc. Code Ann. art. 42.12, § 24 (Vernon Supp. 2008).