Sammy Chavez v. State

• Court: Court of Appeals of Texas
• Decided: October 28, 2002
• Docket: 07-02-00250-CR
• Status: Published

Opinion

NO. 07-02-0250-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 28, 2002

______________________________

SAMMY CHAVEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 287TH DISTRICT COURT OF BAILEY COUNTY;

NO. 2104-B; HONORABLE GORDON GREEN, JUDGE

_______________________________

Before REAVIS and JOHNSON, J.J., and BOYD, S.J.1

On June 5, 2002, a copy of a Notice of Appeal in cause No. 2104-B in the 287th

District Court of Bailey County, Texas (the trial court), was filed with the clerk of this court

(the appellate clerk). The document filed gives notice that Sammy Chavez desires to

appeal from a conviction and sentence in such court and cause number. On June 25,

2002, a docketing statement was filed with the appellate clerk which sets out that the

1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. appeal is from a judgment or order dated May 8, 2002, and that an affidavit of indigency

was filed on May 24, 2002.

On July 25, 2002, a request for extension of time for filing the clerk’s record was

filed with the appellate clerk. By such request, the District Clerk of Bailey County (the trial

court clerk) advised that the clerk’s record had not been paid for and no arrangements had

been made to pay for the record. Pursuant to further requests, the times for filing the

clerk’s record and the reporter’s record have been extended. Neither the clerk’s record

nor the reporter’s record has been filed, and the appellate clerk’s record reflects no other

action by any party to the appeal to prosecute the appeal.

Accordingly, this appeal is abated and the cause is remanded to the trial court.

TEX . R. APP . P. 37.3(a)(2). Upon remand, the judge of the trial court is directed to

immediately cause notice to be given of and to conduct a hearing to determine: (1) whether

appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal,

then whether appellant is indigent; (3) if appellant desires to prosecute this appeal,

whether appellant is entitled to have the clerk’s and reporter’s records furnished without

charge; and (4) what orders, if any, should be entered to assure the filing of appropriate

notices and documentation to dismiss appellant’s appeal if appellant does not desire to

prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the

clerk’s and reporter’s records will be promptly filed and that the appeal will be diligently

pursued.

2 The trial court is directed to: (1) conduct any necessary hearings; (2) make and file

appropriate findings of fact, conclusions of law and recommendations, and cause them to

be included in a clerk’s record on remand; (3) enter any orders appropriate to the

circumstances; (4) cause the hearing proceedings to be transcribed and included in a

reporter’s record; and (5) have a record of the proceedings made to the extent any of the

proceedings are not included in the supplemental clerk’s record or the reporter’s record.

In the absence of a request for extension of time from the trial court, the clerk’s record on

remand, reporter’s record of the hearing and proceedings pursuant to this order, and any

additional proceeding records, including any orders, findings, conclusions and

recommendations, are to be sent so as to be received by the clerk of this court not later

than November 29, 2002.

Per Curiam

Do not publish.