Ardell Nelson, Jr. v. Joe Nunn

• Court: Court of Appeals of Texas
• Decided: May 25, 2006
• Docket: 07-06-00100-CV
• Status: Published

Opinion

NO. 07-06-0100-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 25, 2006

______________________________ ARDELL NELSON, JR., APPELLANT

V.

JOE NUNN, ET AL., APPELLEE _________________________________

FROM THE 47^TH DISTRICT COURT OF POTTER COUNTY;

NO. 91,638-A; HONORABLE HAL MINER, JUDGE _______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

On March 22, 2006, appellant filed his notice of appeal with the trial court clerk. By letter dated May 9, 2006, this court's clerk notified appellant that no timely affidavit of indigence or filing fee had been received, and that failure to pay the filing fee within ten days from the date of the letter could result in dismissal of the appeal. Tex. R. App. P. 42.3(c); see Tex. R. App. P. 5.

On May 19, 2006 appellant filed an incomplete federal district court form "Application to Proceed in Forma Pauperis." This document cannot be given effect because it fails to address each of the matters required by Rule of Appellate Procedure 20.1(b), and was not filed within the time permitted by Rule 20.1(c). Holt v. F.F. Enterprises, 990 S.W.2d 756, 758 (Tex.App.-Amarillo 1998, pet. denied). Accordingly, this appeal is dismissed. Tex. R. App. P. 42.3(c).

James T. Campbell

Justice

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                                                            NO. 07-10-0114-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                      PANEL B

                                                         SEPTEMBER 14, 2010

                                            ______________________________

                                                          WILLIE GENE MILES,

                                                                                                            Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

                                                                                                            Appellee

_________________________________

                 FROM THE COUNTY COURT AT LAW NO. 8 OF TRAVIS COUNTY;

                NO. C-1-CR-09-211566; HON. HUMBERTO BARRERA, PRESIDING

                                           _______________________________

                                                    On Abatement and Remand

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

Willie Gene Miles, appellant, appeals a conviction from the offense of driving while intoxicated and a sentence of 120 days in the Travis County Jail and a fine of $2,000.  Appellant timely perfected this appeal by filing a notice of appeal on March 15, 2010.  The clerk’s record was filed on March 16, 2010, and on July 6, 2010, the reporter notified the Court that no reporter’s record was taken.  On April 14, 2010, counsel for appellant notified the Court by letter that appellant wished to dismiss his appeal.  In response, the clerk’s office called and informed him on April 19, 2010, that a formal motion to dismiss with appellant’s signature was needed in order for the Court to dismiss this appeal.  No response was received.  By letter dated July 14, 2010, counsel was informed again that the Court required a formal motion signed by appellant in order to dismiss an appeal and he was given until July 24, 2010, to file it.  The letter stated that if the motion to dismiss was not received by that date, appellant’s brief was due no later than August 13, 2010.  No motion or brief was filed by that date, however.  On August 20, 2010, the court sent a letter to counsel for appellant notifying him that the brief was overdue and that it or a response was due on August 30, 2010.  To date, no response has been filed.

Consequently, we abate the appeal and remand the cause to the County Court at Law No. 8 of Travis County (trial court) for further proceedings.  Upon remand, the trial court shall undertake those proceedings necessary to determine the following:

1.            whether appellant is indigent;

2.            whether appellant desires to prosecute the appeal;

3.       whether appellant has been denied the effective assistance of counsel due to appellate counsel=s failure to timely file an appellate brief.  See Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 834-35, 83 L.Ed.2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief); and,

4.         why appellant=s appointed counsel has not complied with the previously established deadlines.

Should the trial court find that appellant desires to pursue the appeal, is indigent, and has been denied effective assistance of counsel, we direct it to appoint new counsel for appellant to prosecute the appeal.  Any and all orders issued as a result of its proceeding shall be included in a supplemental clerk=s record and filed with this court on or before October 14, 2010.  Should additional time be needed to perform these tasks, the trial court may request same on or before October 14, 2010.

It is so ordered.

                                                                                    Per Curiam

Do not publish.