betty-ann-newby-v-daniel-moser-sheria-evans-moser-investments-the ( 2004 )

NO. 07-03-0507-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 11, 2004

______________________________



BETTY ANN NEWBY, APPELLANT

V.

DAN MOSER, MOSER INVESTMENTS, MOSER AND STUBBLEFIELD INVESTMENTS; SHERIA EVANS; AND BRIAN SHINALL, D/B/A REAL ESTATE CONCEPTS , APPELLEES



_________________________________

FROM THE 84TH DISTRICT COURT OF HUTCHINSON COUNTY;

NO. 35,167; HONORABLE JACK YOUNG, JUDGE

_______________________________

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

MEMORANDUM OPINION

Appellant Betty Ann Newby, appearing pro se, has filed a Motion to Extend Payment Date for Filing Fee, received by this court on January 21, 2004. We deny appellant's motion and dismiss the appeal.

On December 2, 2003 appellant filed a Motion for Extension of Time to File Notice of Appeal and Other Documents. The motion did not identify the trial court, state the case's trial court number, state the date of the judgment or order appealed from or state clearly that appellant desired to appeal. Tex. R. App. P. 10.5(b)(2), 25.1(d). No filing fee was submitted with the document. Nonetheless, we accepted it as a bona fide attempt to invoke this court's jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997).

By letter dated December 31, 2003, appellant was advised by the clerk of this court that the filing fee had not been received. Appellant was directed to pay the filing fee on or before January 15, 2004 and was advised that failure to pay the filing fee could result in dismissal of the appeal. See Tex. R. App. P. 42.3. Appellant's Motion to Extend Payment Date for Filing Fee does not reasonably explain the need for an extension as required by Tex. R. App. P. 10.5(b). The motion summarily states that appellant has a meritorious appeal but cannot pay the filing fee until February 3, 2004. Moreover, that date has passed and no filing fee has been received.

Appellant is not excused by statute or the Rules of Appellate Procedure from paying costs. Tex. R. App. P. 5. Appellant has failed to pay the filing fee as directed by this court. All parties have had more than ten days' notice that dismissal could result from appellant's failure to comply with the rules and this court's orders. Tex. R. App. P. 42.3(c). Accordingly, appellant's Motion to Extend Payment Date for Filing Fee is denied and the appeal is dismissed.

Per Curiam

NO. 07-10-00519-CR AND 07-10-00520-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 27, 2011

THE STATE OF TEXAS, APPELLANT

v.

DAVID NEAL DUNCAN, APPELLEE

 FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

NO. 20,170-C; HONORABLE DON R. EMERSON, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ORDER ON ABATE AND REMAND

Pending before us is the State’s motion to abate the appeal and remand the matter back to the trial court so that findings of fact and conclusions of law can be filed.  The record reflects that the State timely filed a request for findings of fact and conclusions of law.  However, none were ever filed.  In State v. Cullen, 195 S.W.3d 696, 699 (Tex.Crim.App. 2006), the Court of Criminal Appeals held that, "[u]pon the request of the losing party on a motion to suppress evidence, the trial court shall state its essential findings."  In Cullen, the Court explained that the trial court's refusal to state its findings and conclusions prevented the court of appeals from a meaningful review of the decision to grant or deny the motion to suppress.  Id. at 698.

Accordingly, we abate the appeal and remand the matter back to the trial court. See Tex. R. App. P. 44.4.  We further direct the Honorable Don R. Emerson, sitting by assignment as judge of the 251st Judicial District Court, Randall County, Texas, to execute findings of fact and conclusions of law in this cause as required by Cullen.  We also direct him to execute his findings and conclusions and file them with the clerk of this court, via a supplemental clerk's record, on or before May 27, 2011.  Upon the filing of the supplemental clerk's record containing the findings and conclusions, the appeal will be reinstated.

It is so ordered.

Per Curiam

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