IN THE
TENTH COURT OF APPEALS
No. 10-05-00042-CR
Gregory Scott Goddard,
Appellant
v.
The State of Texas,
Appellee
From the 220th District Court
Bosque County, Texas
Trial Court No. 04-05-13760-BCCR
abatement ORDER
Appellant’s brief was originally due on March 14, 2005. We granted three extensions of time to file the brief. On May 26, we sent a letter to Gregory Goddard’s appointed counsel, Andrew W. Lucas, indicating that the brief was due on May 13, and requested a brief be filed within 10 days of the date of the letter. To date, no brief or extension request has been filed.
Therefore, we abate this cause to the trial court with instructions to hold a hearing to determine: (1) why a proper brief has not been filed on Goddard’s behalf; (2) whether his attorney has abandoned the appeal; (3) whether Goddard still desires to proceed with the appeal; and (4) whether Goddard desires to represent himself. See Tex. R. App. P. 38.8(b)(2).
If the court determines that counsel is unable or unwilling to comply with this Court’s directives, the court should consider appointing other counsel to represent Goddard. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (Vernon Supp. 2004–05). In a similar manner, if the court determines that counsel has abandoned the appeal, the court must appoint other counsel.
If Goddard no longer wishes to pursue an appeal, he must sign and file a written withdrawal of his notice of appeal. See Tex. R. App. P. 42.2; McClain v. State, 17 S.W.3d 310, 311 (Tex. App.CWaco 2000, no pet.).
If Goddard expresses a desire to proceed pro se, the trial court shall admonish him on the record “of the dangers and disadvantages of self-representation.” Tex. Code Crim. Proc. Ann. art. 1.051(g) (Vernon 2005); see also Fewins v. State, No. 10-04-00189-CR (Tex. App.—Waco September 7, 2005, order). If the court determines that he has voluntarily and intelligently waived his right to counsel, the court shall require him to execute a written waiver of counsel which substantially complies with article 1.051(g). Id.
Because the trial court must admonish Goddard on the record regarding his right to self-representation and because the court must ascertain whether Goddard still desires to prosecute his appeal and determine whether any waiver of counsel is voluntarily and intelligently made, Goddard must be afforded an opportunity to personally participate in the abatement hearing. This does not necessarily mean, however, that he must personally appear at the hearing.
Frequently in civil litigation involving prison inmates, trial courts permit the inmates to participate in hearings via teleconference. See In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex. 2003). We are aware of no reason why a similar procedure could not be employed here. Cf. Webb v. State, 533 S.W.2d 780, 784 (Tex. Crim. App. 1976) (pro se criminal appellant has no right to appear before appellate court and present argument). Any paperwork (e.g., waiver of appeal or waiver of counsel) could be completed through the mail. These of course are matters we leave to the discretion of the trial court.
The trial court shall, within thirty days after the date of this Order: (1) conduct the hearing; (2) cause a court reporter to make a record of the hearing; (3) make appropriate orders and findings of fact and conclusions of law; and (4) deliver any orders and findings of fact and conclusions of law to the trial court clerk. The trial court shall inform Goddard’s counsel, or Goddard himself if pro se, that his brief is due within thirty days after the date of the hearing.
The trial court clerk shall: (1) prepare a supplemental clerk=s record containing all orders and findings of fact and conclusions of law which the trial court renders or makes; and (2) file the supplemental clerk=s record with the Clerk of this Court within forty-five days after the date of this Order.
The court reporter shall prepare and file a supplemental reporter’s record containing a transcription of the hearing within forty-five days after the date of this Order.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs with a note: Chief Justice Gray agrees to abate the case pursuant to Rule 38.8(b). Any elaboration beyond that is advisory only and is not joined in by Chief Justice Gray.)
Appeal abated
Order issued and filed September 14, 2005
Do not publish
le='text-align:center;line-height:200%'>Sufficiency of the Judgment
In his final issue, Cooper challenges the sufficiency of the judgment in that it was entered against him personally although he was not responsible for the unpaid taxes. The judgment awards the Hamilton County entities foreclosure of the tax liens “as against the Defendants or any person claiming under the Defendants by any right acquired during the pendency of this suit.” It further provides that “no personal money judgment is granted against any Defendant.” Based on this language, we find that this judgment is in rem as it provides solely for the foreclosure of the tax lien. The effect of a judgment in rem is limited to the property that supports the jurisdiction and does not impose a personal liability on the property owner. HMS Aviation v. Layale Enter., S.A., 149 S.W.3d 182, 187 n.1 (Tex. App.—Fort Worth 2004, no pet.). Accordingly, we overrule Cooper’s seventh issue.
Conclusion
We affirm the judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed October 18, 2006
[CV06]
[1] The judgment contains a “Mother Hubbard” clause denying all relief not granted.