Marroquin v. State

OPINION ON MOTION FOR REHEARING

PER CURIAM.

In our Per Curiam opinion of December 30, 1982, this Court ordered attorneys Will Gray and Hector Azios to file a motion for rehearing in this cause within fifteen days of the opinion. It was further ordered that the motion for rehearing be accompanied by a brief in support of the motion. Accordingly, appellant’s motion for rehearing was due in this Court on or before January 14, 1983. No motion for rehearing was timely filed. No motion for extension of time to file the motion for rehearing was filed.

On January 17, 1983, this Court received appellant’s motion for rehearing with accompanying brief. Pursuant to Rules 208 and 209, Texas Criminal Appellate Rules, the final ruling of this Court was the 16th day after the date of the delivery of the court’s opinion, or January 15,1983. Because the motion for rehearing was filed late, and because no motion for extension of time to file the motion for rehearing was timely filed, this Court is now without jurisdiction to consider the motion for rehearing.

The motion for rehearing is dismissed.

APPENDIX

NUMBER 2609cr

13-82-108-CR

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI

******

IN RE HECTOR AZIOS

******

Ancillary to Armando Marroquin v. State of Texas; Number 13-82-108-CR (2609cr)

******

JUDGMENT OF CONTEMPT

On June 21, 1982, notice of approval of the record in this cause was mailed to appellant’s retained counsel, Mr. Hector Azios, of Harris County, Texas.

Appellant’s brief was due in the Court of Appeals within 30 days after the mailing of the notice of approval of the record, that is, on July 21,1982. The day came and passed, and no brief was filed. No motions for extension of time were filed.

*435On September 9, 1982, the Court of Appeals made the following order which was served on Hector Azios by certified mail:

“(NUMBER 2609)

NUMBER 13-81-108-CR

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI

* * * * * *

ARMANDO MARROQUIN, Appellant,

V.

STATE OF TEXAS, Appellee.

* * * * * *

On appeal from the 24th District Court of Jackson County, Texas.

* * * * * *

ORDER TO FILE BRIEF

This case is on appeal from a conviction for aggravated assault. The record was filed in this Court on June 25, 1982. No brief for the appellant has been filed within the time limits prescribed by Article 40.09(9), Texas Code of Criminal Procedure.

It is therefore ORDERED that appellant’s counsel of record, the Honorable Hector R. Azios, shall file a brief in this Court in appellant’s behalf on or before September 24, 1982. The State shall file its brief with this Court within 15 days after appellant files his brief.

PER CURIAM

ORDER delivered and filed this the 9th day of September, 1982.”

The return receipt from that mailing shows that Mr. Azios received the order on September 10, 1982. September 24, 1982, came and passed with no brief being filed. No motion for extension of time was filed.

On December 30, 1982, the Court issued the following order to show cause:

“(NUMBER 2609cr)

NUMBER 13-82-108-CR

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI

* * * * * *

IN RE HECTOR AZIOS

* * * * * *

Ancillary to Armando Marroquin v. State of Texas Number 13-82-108-CR (2609cr)

******

ORDER TO SHOW CAUSE

On June 21, 1982, notice of approval of the record in this cause was mailed to appellant’s retained counsel, Mr. Hector Azios, of Harris County, Texas.

Appellant’s brief was due in the Court of Appeals within 30 days after the mailing of the notice of approval of the record, that is, on July 21,1982. That day came and passed, and no brief was filed. No motions for extension of time were filed.

On September 9, 1982, the Court of Appeals made the following order which was served on Hector Azios by certified mail:

‘(NUMBER 2609)

NUMBER 13-82-108-CR

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI

******

ARMANDO MARROQUIN, Appellant,

V.

STATE OF TEXAS, Appellee.

******

On appeal from the 24th District Court of Jackson County, Texas.

******

*436ORDER TO FILE BRIEF

This case is on appeal from a conviction for aggravated assault. The record was filed in this Court on June 25, 1982. No brief for the appellant has been filed within the time limits prescribed by Article 40.09(9), Texas Code of Criminal Procedure.

It is therefore ORDERED that appellant’s counsel of record, the Honorable Hector R. Azios, shall file a brief in this Court in appellant’s behalf on or before September 24, 1982. The State shall file its brief with this Court within 15 days after appellant files his brief.

PER CURIAM

ORDER delivered and filed this the 9th day of September, 1982.’

The return receipt from that mailing shows that Mr. Azios received the order on September 10, 1982. September 24, 1982, came and passed with no brief being filed. No motion for extension of time was filed.

Hector Azios is in violation of the above order of September 9, 1982.

It is therefore ordered that Hector Azios shall appear in person in the courtroom of this Court at 9 o’clock a.m. on Wednesday, January 19,1983, to show cause why he should not be held in contempt of this Court.

It is further ordered that the Clerk of this Court cause a certified copy of this order to be served on Hector Azios by certified mail, return receipt requested, with delivery restricted to addressee only or give other personal notice to Hector Azios of this Order with proof of delivery.

PER CURIAM

Order delivered and filed this the 30th day of December, 1982.”

The order to show cause was personally served on Hector Azios on January 12,1983. The order was also served on Mr. Azios by certified mail on January 3, 1983.

As of the day of this judgment, no brief has been filed in behalf of appellant Armando Marroquin as ordered by this Court on September 9, 1982.

On January 19, 1983, Hector Azios appeared before the Court en banc as ordered. At his request the hearing was recessed until January 26, 1983. On that date Mr. Azios appeared with his counsel, the Honorable Carolyn Garcia of Harris County.

The Court waived the oath, and Mr. Azios testified in defense of the conduct alleged in the order to show cause. No other evidence was adduced.

The Court finds that the testimony of Hector Azios is insufficient to show adequate cause as to why he should not be held in contempt of this Court and punished.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Thirteenth Court of Appeals that Hector Azios is in contempt of this Court for violation of this Court’s order to file a brief issued on September 9, 1982, as shown by the official records of this Court.

Having found Hector Azios guilty of contempt of court, his punishment is assessed at a fine of FIVE HUNDRED DOLLARS ($500.00). Hector Azios is ordered to pay this fine to the Clerk of this Court on or before five o’clock p.m., Monday, January 31, 1983.

SIGNED on this the 26th day of January, 1983.

/s/ Paul W. Nve

PAUL W. NYE

Chief Justice

/s/ Gerald T. Bissett

GERALD T. BISSETT

Associate Justice

/s/ Horace S. Young

HORACE S. YOUNG

Associate Justice

/s/ Norman L. Utter

NORMAN L. UTTER

Associate Justice

/s/ Noah Kennedy

NOAH KENNEDY

Associate Justice

*437NUMBER 2609cr

13-82-108-CR

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI

IN RE WILL GRAY

* * * * * *

Ancillary to Armando Marroquin v. State of Texas; Number 13-82-108-CR (2609cr)

******

ORDER

TO: WILL GRAY

This Court finds that you have failed to file a brief in Cause No. 13-82-108-CR, styled Marroquin v. State of Texas in accordance with the Rules of Criminal Procedure, all as is set out in the Per Curiam opinion of this Court rendered December 30, 1982.

Because of your failure to file a brief in the above styled and numbered cause, we are imposing the following sanctions.

You are hereby ordered not to accept any appointments to represent indigent defendants in the trial courts of record in the Second Administrative Judicial District of the State of Texas or in the appellate courts in that district for a period of six months from this date.

The Clerk of this Court is ordered to deliver a copy of this Order and the Court’s opinion in the above numbered and styled cause to all trial courts of record in the Second Administrative Judicial District, suggesting to them not to appoint Attorney Will Gray to represent any indigent defendant for a period of six months from this date.

PER CURIAM

Order delivered and filed this the 26th day of January, 1983.

NUMBER 13-82-108-CR

(NUMBER 2609cr)

COURT OF APPEALS

THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS

CORPUS CHRISTI

******

Sitting in Houston, Harris County, Texas

For the 14th Court of Appeals

By Virtue of an Order by the Supreme Court of Texas

******

IN RE WILL GRAY

******

Ancillary to Armando Marroquin v. State of Texas

******

ORDER

The order of this Court dated January 26, 1983, barring attorney Will Gray from accepting appointments to represent indigent defendants in the trial courts of the 2nd Administrative Judicial District or in the appellate courts of that district for a period of six months from that date is hereby vacated in accordance with the Court of Criminal Appeals’ opinion dated May 11, 1983. Ex Parte Will Gray, 649 S.W.2d 640 (Tex.Cr.App.1983).

It is the further order of this Court that our suggestion to the trial courts of record in the 2nd Administrative Judicial District not to appoint Will Gray to represent indigent defendants for a period of six months from that date is also vacated.

PER CURIAM

Order delivered and filed this the 19th day of May, 1983.