Walter Dailey v. Wayne Turner, Melton L. White, Juanita A. White, Mary Kay Padilla, Marcello Padilla and John Swayze
This text of Walter Dailey v. Wayne Turner, Melton L. White, Juanita A. White, Mary Kay Padilla, Marcello Padilla and John Swayze (Walter Dailey v. Wayne Turner, Melton L. White, Juanita A. White, Mary Kay Padilla, Marcello Padilla and John Swayze) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.
Appellant filed his notice of appeal from the trial court's judgment that he take nothing in his suit against appellees. By letter dated April 3, 2003, the Court directed appellant's counsel to pay the required filing fee of $125 before any further action could be taken in this appeal and also requested that a docketing statement be filed as required by Rule 32.1 of the Texas Rules of Appellate Procedure. The Court also notified appellant that failure to comply might result in dismissal pursuant to Rule 42.3(c). In response, appellant's counsel sent a letter indicating that appellant has relocated without notifying him of a forwarding address or any contact information. Counsel concludes that he will be unable to prosecute appellant's appeal and requests that this appeal be dismissed.
Although the filing of the notice of appeal invoked the jurisdiction of this Court, if a party fails to follow the prescribed rules of appellate procedure, the appeal may be dismissed. Tex. R. App. P. 25.1(b). Thus, because the filing fee has not been paid and counsel indicates that appellant is unable to prosecute this appeal, we must dismiss.
Accordingly, the appeal is dismissed for failure to comply with the Texas Rules of Appellate Procedure. Tex. R. App. P. 42.3(c).
Don H. Reavis
Justice
1. Tex. R. App. P. 47.2(a).
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NO. 07-10-0303-CR
NO. 07-10-0304-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
AUGUST 30, 2010
______________________________
DAYMON LAMAR JOHNS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NOS. 56,483-E & 58,725-E; HONORABLE DOUGLAS R. WOODBURN, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
In exchange for a guilty plea, in 2007, Appellant, Daymon Lamar Johns, was convicted in cause number 56,483-E of evading arrest with a vehicle and sentenced to two years confinement and a $1,000 fine.[1] Appellant's sentence was suspended in favor of five years community supervision. In 2009, in exchange for a guilty plea, in cause number 58,725-E, Appellant was granted deferred adjudication community supervision for five years for possession of a controlled substance in a drug-free zone.[2] On March 19, 2010, the State filed an Amended Motion to Revoke Order for Community Supervision in cause number 56,483-E and an Amended Motion to Proceed with Adjudication of Guilt on Original Charge in cause number 58,725-E alleging violations of the terms and conditions of community supervision. Appellant entered pleas of true in both causes and the trial court revoked community supervision and sentenced Appellant to two years in a state jail facility plus a $1,000 fine in cause number 56,483-E. The trial court also adjudicated Appellant guilty of possession of a controlled substance in a drug-free zone and sentenced him to nine years confinement and a $1,000 fine in cause number 58,725-E. The trial court ordered the sentence in cause number 56,483-E to run consecutively to the sentence in cause number 58,725-E.
When the clerks' records were filed on August 17, 2010, it came to the Court=s attention that the record in cause number 58,725-E did not contain a Trial Court=s Certification of Defendant=s Right of Appeal as required by Rule 25.2(a)(2) and (d) of the Texas Rules of Appellate Procedure and that the record in cause number 56,483-E contained two separate certifications, neither of which is signed by Appellant as required by Rule 25.2(d).[3]
Consequently, we abate this appeal and remand this cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a proper Trial Court=s Certification of Defendant=s Right of Appeal in compliance with Rule 25.2(d) in each cause referenced herein. Once properly completed and executed, the certifications shall be included in supplemental clerks' records. See Tex. R. App. P. 34.5(c)(2). The trial court shall cause the supplemental clerks' records to be filed with the Clerk of this Court by September 29, 2010.
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Walter Dailey v. Wayne Turner, Melton L. White, Juanita A. White, Mary Kay Padilla, Marcello Padilla and John Swayze, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walter-dailey-v-wayne-turner-melton-l-white-juanit-texapp-2003.