Lori Sue Holcomb v. State
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Opinion
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Lori Sue Holcomb appeals her conviction for the offense of burglary of a building and punishment of two years confinement in a State Jail facility suspended for five years.
The clerk's record has been filed, however, the reporter's record remains due in this cause. An extension of the applicable deadline was sought by the court reporter. The reporter, by letter dated April 24, 2006, represented to us that she has not been contacted by anyone to prepare a reporter's record in this case and she will not be filing a reporter's record. By letter dated June 13, this Court notified appellant's appointed attorney, Timothy W. Inman, of the defect and requested proof of compliance with Rules 34.6(b)(1) and 35.3(b)(2)-(3) of the Texas Rules of Appellate Procedure.
Further, appellant's brief was due to be filed on August 4, 2006, but has yet to be filed. Appellant's attorney of record, Inman, was notified by letter dated August 11 that, unless a brief or motion was received by August 21, this court would abate the appeal to the trial court. A belated motion for extension of time to file appellant's brief was filed on August 24, 2006 by Inman stating that it was his belief that appellant had been appointed a different attorney by the 33rd Judicial District Court.
Therefore, we now abate this appeal and remand the cause to the trial court for further proceedings pursuant to Rule 38.8(b)(2) and (3). Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
- whether appellant desires to prosecute the appeal;
- whether the trial court appointed counsel for appellant other than Inman, and whether that attorney has abandoned the appeal; and
- whether appellant has been denied effective assistance of counsel given the attorneys' failure to file a brief.
The trial court shall cause a hearing to be transcribed. Should it be determined that appellant does want to continue the appeal and is indigent, then the trial court shall also take such measures as may be necessary to assure appellant effective assistance of counsel, which measures may include the appointment of new counsel. If new counsel is appointed, the name, address, telephone number, and state bar number of said counsel shall be included in the order appointing new counsel. Finally, the trial court shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental record of the hearing shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court by Thursday, September 28, 2006.
It is so ordered.
Per Curiam
Do not publish.
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NO. 07-11-0007-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JANUARY 31, 2011
__________________________
In re JACQUELINE NICOLE MILLER,
Relator
Memorandum Opinion on Original Proceeding for Writ of Mandamus
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Jacqueline Nicole Miller requests a writ of mandamus from us directing the Honorable Ruben Reyes, 72nd District Court, Lubbock, Texas (trial court) to vacate its order denying [her] Motion to Compel and Supplemental Motion to Compel. Through the motion to compel, Miller sought the discovery of mental health records developed by Dr. Karen Taylor and pertaining to Lauren Claire Culwell. The latter sued Miller to recover damages arising from an automobile accident. The trial court denied the motion.
Per the authority cited to us by Miller, her entitlement to mandamus relief is dependent upon illustrating, among other things, that she has no adequate remedy by appeal. And, her argument goes, no adequate remedy by appeal [exists] to challenge a discovery dispute when the partys ability to present a viable defense at trial will be impaired by the trial courts error. In re Allied Chem. Corp., 227 S.W.3d 652, 658 (Tex. 2007) (noting mandamus is appropriate when a discovery order severely compromises a partys ability to present any case at all at trial). That element purportedy exists here since being unable to obtain the mental health records from Dr. Taylor would prevent Miller from establishing that Culwell suffered from a particular mental condition prior to the car accident. Allegedly, the existence of a mental condition, such as depression, could be a triggering agent for fibromyalgia, a physical ailment for which Culwell seeks damages as a result of the collision. Furthermore, Miller hopes to prove that Culwell experienced depression or other mental conditions for reasons unrelated to the accident. Omitted from the argument, however, is any contention that the same information cannot be obtained from Culwell herself. Nor have we been cited to evidence of record illustrating that Culwell has not or will not discuss whether she suffered from 1) depression or 2) any other mental condition of the ilk sufficient to be the needed triggering agent.
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