Truman Tommy Matthews v. State of Texas ( 2001 )

NO. 07-01-0147-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 6, 2001 ______________________________

TRUMAN TOMMY MATTHEWS

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 155^th DISTRICT COURT OF WALLER COUNTY;

NO. 98-05-9372; HON. DAN R. BECK, PRESIDING _______________________________

ABATEMENT AND REMAND _______________________________

Before QUINN, REAVIS, and JOHNSON, JJ.

Truman Tommy Matthews (appellant) appeals his conviction for murder. Both the clerk's and court reporter's records were filed by September 20, 2001. Thus, appellant's brief was due on October 22, 2001. However, one was not filed on that date. By letter dated October 26, 2001, we notified appellant's counsel, Kristine C. Woldy, of the expired deadline and directed her to respond to our notification of same by Monday, November 5, 2001, or the appeal would be abated to the trial court pursuant to Tex. R. App. P. 38.8. November 5, 2001 came and went without any response by counsel to our notice, without counsel tendering a brief, and without counsel filing a motion for extension of time to file a brief.

Consequently, we abate this appeal and remand the cause to the 155^th District Court of Waller County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. whether appellant desires to prosecute the appeal; and

2. whether appellant is indigent;

• whether appellant has been denied the effective assistance of counsel due to counsel's failure to timely file a brief. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S. Ct. 830, 834-35, 83 L. Ed. 2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief).

We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue this appeal, is indigent, and was denied effective assistance of counsel, then we further direct the court to appoint new counsel to assist in the prosecution of the appeal. The name, address, phone number, telefax number, and state bar number of the new counsel who will represent appellant on appeal must also be included in the court's findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed: 1) a supplemental clerk's record containing the findings of fact and conclusions of law and 2) a reporter's record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's record to be filed with the clerk of this court on or before December 6, 2001. Should additional time be needed to perform these tasks, the trial court may request same on or before December 6, 2001.

It is so ordered.

Per Curiam

Do not publish.

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NO. 07-10-00448-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 8, 2010

VIRGIL LYNN SPENCER, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

NO. 20,237-A; HONORABLE DAN L. SCHAAP, JUDGE

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

On April 15, 2009, appellant, Virgil Lynn Spencer, was placed on deferred adjudication community supervision for a period of five years relating to three charges of aggravated assault with a deadly weapon. The State filed a motion to revoke order granting unadjudicated probation on February 9, 2010.  Following a hearing on the State’s motion, appellant was convicted of each of the three counts of aggravated assault with a deadly weapon.  On September 1, 2010, appellant was sentenced to incarceration in the Texas Department of Criminal Justice, Institutional Division, for a period of six years for each count, with the sentences to run concurrently.  On October 7, 2010, appellant filed a document that expressed his desire to appeal from the judgment adjudicating appellant’s guilt. ^[1]  We dismiss for want of jurisdiction.

Unless certain post-judgment motions are filed, a defendant must file a written notice of appeal with the trial court clerk within 30 days after the date sentence is imposed.  Tex. R. App. P. 26.2(a).  The Texas Rules of Appellate Procedure provide for a 15-day extension in which to file a notice of appeal if it is accompanied by a motion for extension of time.  Tex. R. App. P. 26.3.  While appellant’s notice of appeal was filed within this 15-day period, it was not accompanied by a motion for extension of time to file notice of appeal that complied with Rule 10.5(b).  See Tex. R. App. P. 26.3.  As such, this Court is without jurisdiction over this appeal.  See Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App. 1996).  Because this Court is without jurisdiction to address the merits of this appeal, we have no authority to take any action other than to dismiss the appeal.  See Slaton v. State, 981 S.W.2d 208, 210 (Tex.Crim.App. 1998).

Accordingly, the purported appeal is dismissed for want of jurisdiction.^[2]

                                                                                                Mackey K. Hancock

                                                                                                            Justice

Do not publish. 

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^[1] Appellant=s letter complies with the requirements of a notice of appeal and this Court has deemed it sufficient notice of appeal.  See Tex. R. App. P. 25.2(c).

^[2] Appellant may have recourse by filing a post-conviction writ of habeas corpus returnable to the Texas Court of Criminal Appeals for consideration of an out-of-time appeal.  See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2007).