Ouane Thongsavath v. State ( 2006 )

NO. 07-06-0169-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 21, 2006

______________________________ OUANE THONGSAVATH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 251^ST DISTRICT COURT OF POTTER COUNTY;

NO. 27,884-C; HONORABLE PATRICK PIRTLE, JUDGE _______________________________

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

ORDER ON ABATEMENT AND REMAND  

Appellant, Ouane Thongsavath appeals from a judgment convicting him of aggravated sexual assault. On June 9, 2006, pro se appellant filed a Motion to Proceed in Forma Pauperis; and, Request for Free Transcription and Inclusion of Clerk's and Reporter's Record on Appeal. Nothing of record appears showing the appellant is indigent and entitled to a free record.

Accordingly, we now abate this appeal and remand the cause to the 251^st District Court of Potter 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:

• Whether appellant desires to prosecute this appeal;
• Whether appellant is indigent;
• Whether appellant is entitled to a free appellate record due to his indigency;
• Whether appellant is entitled to appointed counsel; and,
• What orders, if any should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued.

The trial court shall cause the hearing to be transcribed. So too shall it 1) execute findings of fact and conclusions of law addressing the foregoing issues, 2) cause to be developed a supplemental clerk's record containing the findings of fact and conclusions of law and all orders it may issue as a result of its hearing on this matter, and 3) cause to be developed a reporter's record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the district court shall then file the supplemental record with the clerk of this court on or before July 21, 2006. Should further time be needed by the trial court to perform these tasks, then same must be requested before July 21, 2006.

It is so ordered.

Per Curiam.

Do not publish.

r a hearing on a 306a(5) motion, the party must obtain a signed order specifying the date that notice or actual knowledge was first received. Tex. R. App. P. 4.2(c). Without adhering to the proper procedures and procurement of an order from the trial court finding the date on which notice or actual knowledge was received, this Court cannot depart from the original appellate timetable. Nothing in the record before us indicates that the Trevinos complied with proper procedures in the trial court; thus, their request for findings of fact was due to be filed on February 19, 2002. Failure to timely file the request deprived them of the additional 60 days in which to file their notice of appeal. Tex. R. App. P. 26.1(a)(4). Thus, the notice of appeal was due to be filed no later than March 1, 2002, making the notice of appeal filed on May 22, 2002, untimely.

Accordingly, without an order from the trial court reciting the date when the Trevinos or their attorney first received notice that the order of severance was signed, we must adhere to the original appellate deadlines and dismiss this appeal for want of jurisdiction. Tex. R. App. P. 42.3(a).

Don H. Reavis

Justice

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1. The 90th day after January 30, 2002, was April 30, 2002.