Roger Lynn Davis v. James R. Zeller

Opinion

NO. 07-02-0456-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

MARCH 3, 2003

______________________________

ROGER LYNN DAVIS,

Appellant

v.

JAMES R. ZELLER,

Appellee _________________________________

FROM THE 258^TH DISTRICT COURT OF POLK COUNTY;

NO. CIV19,795; HON. LEE ALLWORTH, PRESIDING _______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

Appellant Roger Lynn Davis filed a notice of appeal on October 7, 2002. The clerk's record was filed on October 29, 2002, and Davis' brief was due to be filed on January 16, 2003. It was not filed, but instead Davis filed a document entitled "Appellant's Request to Abate the Appeal and Request for Extension of Time Within Which to Obtain a Ruling from the District Trial Court on a Postjudgment Request for Finding of Facts and Conclusion of Law." On January 13, 2003, this court denied the motion to abate the appeal and extended the deadline by which appellant was to file his brief to February 21, 2003. We also told him that the failure to file a brief by February 21^st would result in the dismissal of the appeal for want of prosecution. February 21^st has lapsed and no brief has been received.

Accordingly, we dismiss the appeal pursuant to Texas Rule of Appellate Procedure 42.3(b) for want of prosecution.

Per Curiam

burden of proof. Dennis v. State, 151 S.W.3d 745, 752 (Tex. App.-Amarillo 2004, pet. ref'd) (rejecting a claim of ineffective assistance when appellant failed to brief the topic of prejudice).

Second, the claim of ineffectiveness must be firmly founded in the record. Thompson v. State, 3 S.W.3d 808, 813 (Tex. Crim. App. 1999). Here, the record fails to disclose the contents of the purported plea offer. Given this, we have no basis to assess whether he was harmed. Indeed, it may well be that the offer involved punishment more onerous than that ultimately levied. We do not know and cannot speculate on it.

Nor are we cited to evidence of record illustrating that appellant would have accepted the offer had he been told of it, assuming of course appellant was not told of it. This too is fatal to appellant's contention. See Dickerson v. State, 87 S.W.3d 632, 638 (Tex. App.-San Antonio 2002, no pet.) (holding that an appellant must show that he would have accepted the plea offer).

Finally, regarding the allegation that counsel failed to undertake sufficient investigation on behalf of appellant, the latter does not inform us of what, if anything, further investigation would have uncovered. Nor does he explain how any matter discovered, had such an investigation occurred, would have benefitted him. This too renders his contentions deficient. See Rodriguez v. State, 74 S.W.3d 563, 566 (Tex. App.-Amarillo 2002, pet. ref'd) (holding that an abuse of discretion cannot be found in rejecting a claim of ineffective assistance when appellant does not illustrate how the failure to secure evidence would have benefitted his defense).

Accordingly, we overrule appellant's sole issue and affirm the judgment of the trial court.

Brian Quinn

Chief Justice

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