Clifford Fairfax 418151 v. Phyllis Larue, Nurse Practitioner, Texas Dept. Criminal Justice-Parole Division, W.P. (Bill) Baten I.S.F. ( 2009 )

NO. 07-09-0311-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 14, 2009

______________________________

CLIFFORD FAIRFAX,

                                                                                                           Appellant

v.

PHYLLIS LARUE, NURSE PRACTITIONER, TEXAS

DEPT. OF CRIMINAL JUSTICE - PAROLE DIVISION,

W.P. (BILL) BATEN INTERMEDIATE SANCTION FACILITY,

                                                                                                           Appellees_________________________________

FROM THE 223^RD DISTRICT COURT OF GRAY COUNTY;

NO. 34,669; HONORABLE LEE WATERS, JUDGE

_______________________________

MEMORANDUM OPINION

_________________________________

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

          Clifford Fairfax (appellant) filed a pro se notice of appeal seeking to contest the trial court’s order dismissing his mandamus proceeding. We dismiss the appeal.

          The clerk’s record was filed with this court on September 24, 2009, and a supplemental clerk’s record was filed on October 13, 2009. There is no reporter’s record to file. Thus, appellant’s brief fell due on November 12, 2009. On October 21, 2009, he moved for extension of time to file his brief. We granted the motion and informed appellant that his brief was due November 30, 2009. So too was he notified in writing that no further extensions would be granted and that the failure to file his brief would result in the dismissal of his appeal for want of prosecution. No brief has been received from him, and the November 30^th deadline has lapsed. And, instead of filing the requisite brief, he moved for another extension of the deadline. The extension was purportedly needed so that the trial court could rule on a recently filed motion to reinstate his suit, a motion that we calculate to be untimely.

          Appellant having failed to file his appellate brief as directed by this court and having failed to proffer any other acceptable reason for further extending the briefing deadline, we deny his motion and dismiss the appeal for want of prosecution. Tex. R. App. P. 38.8(a)(1); 42.3(b).

                                                                           Per Curiam

pport a conclusion of lack of confidence in the results of the proceeding, or (2) a specific demonstration of prejudice will not support a finding of ineffective assistance of counsel. See Bone v. State, 77 S.W.3d 828, 836-37 (Tex.Crim.App. 2002). We are not to reverse for counsel's failure to investigate unless the consequence of the failure to investigate "is that the only viable defense available to the accused is not advanced . . . [and] there is a reasonable probability that, but for counsel's [failure to advance the defense], the result of the proceeding would have been different." See McFarland, 928 S.W.2d at 501.

Appellant points to no record evidence to support his claim of ineffectiveness. He offers no proof that counsel failed to investigate. He does not claim evidence exists which was available to discover, even if we were to speculate that counsel did not investigate. He does not point out how some such evidence, even if it existed, would have probably caused a different result.

We will not speculate that counsel failed to investigate. Nor will we speculate that evidence existed which would have been relevant to appellant's punishment hearing. See Bone, 77 S.W.3d at 836-37.

Appellant has failed to make the required showing of either deficient performance or sufficient prejudice. See McFarland, 928 S.W.2d at 500.

Appellant's sole issue is overruled. The judgment is affirmed.

Phil Johnson

Chief Justice

Do not publish.