in the Interest of P. M. T. D., a Child ( 2007 )

NO. 07-07-0011-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

JULY 6, 2007

______________________________



IN THE INTEREST OF P.M.T.D., A CHILD

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 70,564-D; HONORABLE DON EMERSON, JUDGE

_______________________________

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

MEMORANDUM OPINION

By the entry of an Order of Termination, signed November 21, 2006, the trial court terminated the parental rights of the Appellant, Channon Michelle Adams, to her child, P.M.T.D. Appellant perfected this accelerated appeal by filing a pro se notice of appeal on December 11, 2006. The District Clerk inadvertently failed to note that this appeal was separate and distinct from an appeal filed in a companion case, Cause No. 07-06-0477-CV, styled In the Interest of A.T.D., resulting in the late filing of the clerk's record on February 15, 2007. The reporter's record having been previously filed, Appellant's brief was, therefore, originally due on Wednesday, March 7, 2007. On March 14, 2007, Appellant filed a Motion For Extension of Time to File Appellant's Brief, which motion was granted thereby extending the deadline for the filing of Appellant's brief until the earlier of twenty days following the filing of a supplemental reporter's record or April 13, 2007. Appellant did not seek an extension of this deadline; however, the reporter did request an extension of time to file the supplemental reporter's record. The reporter's request was granted on April 17, 2007, extending the deadline for filing the supplemental reporter's record until May 15, 2007. At the same time, this Court sua sponte extended the deadline for filing Appellant's brief until 20 days following the filing of the supplemental record. The supplemental record was filed on May 15, 2007, making Appellant's brief due on Monday, June 4, 2007. On June 11^th this Court again notified Appellant that unless the brief, or a response reasonably explaining Appellant's failure to file a brief, were filed on or before June 21, 2007, the appeal would be subject to dismissal for want of prosecution without further notice pursuant to Rules 38.8(a)(1) and 42.3(b) of the Texas Rules of Appellate Procedure. To date this Court has received neither a brief nor another request for extension of time to file Appellant's brief.

Having failed to meet any of the four previous deadlines for the filing of Appellant's brief, the appeal is dismissed.

Per Curiam

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NO. 07-09-0129-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 19, 2009

______________________________

IN RE ALVIN ORTIZ, RELATOR

_______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

          Appearing pro se, Alvin Ortiz has filed with this court a “motion for leave to file original writ of error” and an “original writ of error” through which he seeks an order compelling the trial court to conduct an evidentiary hearing on his out-of-time motion for new trial. We will deny both the motion for leave to file writ of error and the writ of error.

          The documents Ortiz has filed refer to his 2002 convictions in Potter County. Pursuant to open pleas of guilty, he was convicted of aggravated assault with a deadly weapon and assault on a family member. After hearing punishment evidence, the trial court assessed prison sentences of fourteen years and seven years respectively. We affirmed his convictions in 2003. Ortiz v. State, No. 07-02-0391-CR & 07-02-0392-CR, 2003 WL 22327203, 2003 Tex. App. Lexis 8738 (Tex.App.–Amarillo Oct. 10, 2003, pet. refused) (mem. op.) (not designated for publication). In December 2008, Ortiz filed a motion with the trial court clerk seeking a new trial on the ground of newly discovered evidence. See Tex. Code Crim. Proc. Ann. art. 40.001 (Vernon 2006). He asserts the complaining witness recanted a claim that Ortiz assaulted her with a knife.

          In support of this court’s jurisdiction to conduct review by writ of error, Ortiz cites article 44.43 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 44.43 (Vernon 2006). This statute, however, pertains to review of judgments in cases of bond forfeiture. Tex. Code Crim. Proc. Ann. arts. 44.43, 44.42 (Vernon 2006); cf. Ex parte Minor, 115 Tex. Crim. 634, 636, 27 S.W.2d 805, 806-07 (Tex.Crim.App. 1930) (before constitutional amendment transferred first-level appellate jurisdiction over non-death penalty cases to courts of appeals, Court of Criminal Appeals noted its appellate jurisdiction was invoked by appeal or writ of error in cases of bond forfeiture). Article 44.43 has no application to the complaint Ortiz raises in his documents.

          Disregarding the title Ortiz placed on the documents he has filed in this court, they might be viewed as seeking a writ of mandamus directing the trial court to take an action required by law. “The writ of mandamus is ‘[a] writ issued by a superior court to compel a lower court or government officer to perform mandatory or purely ministerial duties correctly.’” In re Chu, 134 S.W.3d 459, 461 (Tex.App.–Waco 2004, orig. proceeding) (quoting Black’s Law Dictionary 973 (7th ed. 1999)). If we view the documents as seeking mandamus, we immediately notice two reasons we would be unable to grant the relief Ortiz requests. First, although the trial court clerk’s file-mark on Ortiz’s motion for new trial indicates it was filed, he has not provided proof that his motion was brought to the attention of the trial court. Filing a motion with the district clerk does not prove the motion was brought to the attention of the trial court because the clerk’s knowledge of the motion is not imputed to the trial court. In re Chavez, 62 S.W.3d 225, 228 (Tex.App.–Amarillo 2001, orig. proceeding). Therefore, “[relator] must prove that the trial court received notice of the pleading. . . . Merely alleging that something was filed with or mailed to the district clerk does not satisfy that requirement.” In re Metoyer, No. 07-07-0506-CR, 2008 WL 123575, at *1 n.2, 2008 Tex. App. Lexis 243, at *4 n.2, (Tex.App.–Amarillo January 14, 2008, orig. proceeding) (citations omitted) (not designated for publication). The underlying logic of this precept requires no substantial explanation. “[A] court cannot be faulted for doing nothing when it is or was unaware of the need to act.” Id. As a request for mandamus, Ortiz’s documents fail for want of proof that his motion for new trial was brought to the attention of the trial court. See In re Posey, No. 07-03-0518-CV, 2004 WL 111551, at *1, 2004 Tex. App. Lexis 695, at *2-3 (Tex.App.–Amarillo 2004, orig. proceeding).

          Secondly, we note that the motion Ortiz has filed with the trial court clerk asks for a new trial but does not expressly request a hearing. The issuance of mandamus would require us to find by failing to hold the hearing Ortiz desires the trial court clearly abused its discretion and there is no adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). But that is not shown here as “[a] trial court is not required to convene a hearing on a motion for new trial absent a request by the movant for such a hearing.” Gallegos v. State, 76 S.W.3d 224, 228 (Tex.App.–Dallas 2002, pet. refused). For that reason also we would be unable to grant Ortiz relief based on the documents filed.   

          For these reasons, Ortiz’s motion for leave to file original writ of error and writ of error are denied.

                                                                James T. Campbell

                                                                         Justice