Randall Wayne Dixon v. State ( 2006 )

BRIAN MILLSAP V. SHOW TRUCKS USA, INC. NO. 07-06-0307-CR IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

DECEMBER 6, 2006 ______________________________

RANDALL DIXON,

Appellant

v.

THE STATE OF TEXAS,

Appellee _________________________________

FROM THE 290^TH DISTRICT COURT OF BEXAR COUNTY;

NO. 2004-CR-7578; HON. SHARON MACRAE, PRESIDING _______________________________

ABATEMENT AND REMAND __________________________________

Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J. ⁽¹⁾

Randall Dixon (appellant) appeals his criminal convictions. Per an extension of the deadline previously granted him, his appellate brief was due by November 15, 2006. Yet, it has not been received to date. This court informed appellant of this circumstance by letter dated November 22, 2006, and told him that unless a brief or response to our letter was received by the Court "on or before Monday, December 04, 2006, the appeal will be abated to the trial court." December 4^th passed without appellant filing either a brief or response to our November 22^nd letter.

Consequently, we abate the appeal and remand the cause to the 290^th District Court of Bexar 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 is indigent;

2. whether appellant desires to prosecute the appeal; and

2. whether appellant has been denied the effective assistance of counsel due to appellate counsel's failure to timely file an appellate 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 the appeal, is indigent, and has been denied effective assistance of counsel, we further direct it 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, if any, 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 January 5, 2007. Should additional time be needed to perform these tasks, the trial court may request same on or before January 5, 2007.

It is so ordered.

Per Curiam

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2006).

Exception Locked="false" Priority="39" Name="toc 5"/>

                                                            NO. 07-10-0014-CR

                                                   IN THE COURT OF APPEALS

                                       FOR THE SEVENTH DISTRICT OF TEXAS

                                                                 AT AMARILLO

                                                                     PANEL D

                                                                 APRIL 7, 2010

                                            ______________________________

                                                 VINTON DERRICK CUMMINGS,

Appellant

                                                                             v.

                                                        THE STATE OF TEXAS,

Appellee

                                         _________________________________

         FROM THE CRIMINAL DISTRICT COURT NO. ONE OF TARRANT COUNTY;

                             NO. 1132330D; HON. SHAREN WILSON, PRESIDING

                                           _______________________________

                                                                       ORDER

                                           _______________________________

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

            Vinton Derrick Cummings, appellant, appeals a conviction for the offense of murder and a sentence of forty years in the Institutional Division of TDCJ. Appellant timely perfected this appeal by filing notice of appeal on December 2, 2009.  The clerk’s record was filed on January 13, 2010.  The reporter’s record was due on January 11, 2010. On January 20, 2010, this Court directed the court reporter to advise the Court on the status of the record, and in response, the reporter filed a motion for an extension to file the record, which was granted to March 15, 2010.  Subsequently, this Court received a fax and phone calls from the reporter, advising that the record could be filed no later than April 2, 2010.  She stated that “although the record will most likely be filed by Tuesday, March 30, I want to ensure that I will not need to request additional time to file the record.”  To date, no reporter’s record has been received by the Court.

We therefore order Valerie K. Allen, the court reporter for the Criminal District Court No. One of Tarrant County, to prepare and file a reporter’s record in this cause on behalf of Vinton Derrick Cummings, in compliance with the Texas Rules of Appellate Procedure.  The reporter’s record will consist of a transcription of all the hearings, evidentiary or otherwise, and the trial held in this cause no. 1132330-D.  Ms. Allen is further ordered to file said reporter’s record with the clerk of this Court at 501 S. Fillmore, Suite 2-A, Amarillo, Texas, in a manner assuring that it will be personally received by said clerk on or before 5:00 p.m. on April 21, 2010.  Failure to comply with this directive will result in a hearing directing Ms. Allen to show cause why she should not be held in contempt.

                                                                                    Per Curiam

Do not publish.