Frank Herrera v. State ( 2008 )

NO. 07-07-0299-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 10, 2008
______________________________
FRANK HERRERA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY;
NO. 2005-CR-2133; HONORABLE RANDY GRAY, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Frank Herrera, appearing pro se here and in the trial court, appeals his
conviction for theft of services. We dismiss the appeal for want of prosecution.
Appellant was convicted by a jury for theft of services of $500 or more but less than
$1,500, on June 1, 2007. The court sentenced him to 180 days in jail probated for twenty
four months, ten days shock jail time, and a fine. Appellant filed a notice of appeal June
14 and the trial court certified a right of appeal. On August 29, appellant filed a printed
document in this court denominated "Petition for Discretionary Review."
Contemporaneously he filed a handwritten motion alleging indigence and requesting
appointment of appellate counsel. The motion contained no data supporting appellant’s
claimed indigence. Appellant filed a second "Petition for Discretionary Review" in this court
on October 15. The clerk's record and reporter's record were not timely filed nor did the
clerk or reporter request an extension of time for preparation of the record.
Given these facts, as well as an apparent issue concerning appellate certification,
we abated the case by opinion of October 19, 2007, with instructions for the trial court to
conduct a hearing to determine, inter alia, appellant’s indigence and whether he was
entitled to appointed counsel and a free record.
On October 29, appellant filed a document with this court entitled “Affidavit of
Indigence.” It bore a file stamp from the clerk of the trial court of May 31, 2007. In the
affidavit, appellant swore he had no monthly income, had no checking or savings accounts,
received no “contributions for household support,” had five minor dependant children, and
received medicaid and food stamps for the children. Appellant further averred he was not
able to pay “court costs.” Appellant did not request appointment of counsel nor did he
declare an inability to employ counsel of his own choosing.1 The affidavit did not address
appellant’s ownership of assets other than checking or savings accounts or address
spousal income available to appellant.2
1
See Tex. Code Crim. Proc. Ann. art. 26.04(o) (Vernon Supp. 2007).
2
See Tex. Code Crim. Proc. Ann. art. 26.04(m) (Vernon Supp. 2007).
2
The trial court convened a hearing on November 7, 2007, to consider the issues
listed in our October 19 opinion. Although the record reveals the court administrator gave
him notice by mail on October 26, appellant did not appear at the hearing.
The reporter’s record of the trial court’s November 7 hearing, and the trial court’s
detailed findings of fact made pursuant to our instructions, were filed. They address
appellant’s indigence claim. The trial court concluded appellant was not indigent and not
entitled to appointed appellate counsel or a free record.3 Evidence admitted at the
November 7 hearing supports the court’s conclusions.
After we received the record from the November 7 hearing, by letter of November
28 we directed appellant to file written proof of payment or satisfactory arrangements for
preparation of the reporter’s record and clerk’s record within twenty days. Citing appellate
rule 37.3(b), we advised appellant that failure to comply as to the clerk’s record would
render his appeal subject to dismissal for want of prosecution.
In documents filed in this court on November 29 and December 17, appellant
appears to argue from appellate rule 20.1 that because no party contested his May 31,
2007, affidavit he was entitled to appointed counsel and a free record. See Tex. R. App.
3
The trial court’s findings note appellant was denied an appointed counsel prior to
trial, and that the court three times ordered him to employ counsel. The findings also cited
trial testimony by appellant and his wife asserting information inconsistent with a finding
of indigency, under either the standard set out in appellate rule 20.2 for eligibility for a free
appellate record or that set out in article 26.04 of the code of criminal procedure for
entitlement to appointed counsel. See Tex. Code Crim. Proc. Ann. art. 26.04(o) (Vernon
Supp. 2007); Tex. R. App. P. 20.2; Whitehead v. State, 130 S.W.3d 866, 878
(Tex.Crim.App. 2004) (describing and applying both indigency standards).
3
P. 20.1(e), (f). Rule 20.1 applies to a party seeking to proceed with appeal of a civil case
without advance payment of costs because of indigence. It contains no provision for
appointment of counsel. Rule 20.1 has no application in this criminal case.
Neither document filed by appellant after our November 28 letter to him challenges
the trial court’s findings or conclusions, or offers an explanation for his absence from the
November 7 hearing. In letters filed in this court on December 27, the trial court clerk and
court reporter informed us that appellant had not contacted them and had not made
arrangements for payment of the record.
Appellant has not supplied written proof of payment or satisfactory arrangements
as required by our November 28 letter. The reports of the clerk and court reporter indicate
he took no steps even to make payment arrangements for the $172 clerk’s record.
We find the clerk’s record has not been filed because appellant has failed to pay or
make arrangements to pay the clerk’s fee for preparing the record. We find also appellant
has had a reasonable opportunity to cure his failure. Tex. R. App. P. 37.3(b). Accordingly,
and on our own initiative, we dismiss this appeal for want of prosecution.4
James T. Campbell
Justice
Do not publish.
4
See Rodriguez v. State, 970 S.W.2d 133, 135 (Tex. App.–Amarillo 1998, pet. ref'd)
(applying appellate rule 2 in similar circumstances). See also Sutherland v. State, 132
S.W.3d 510, 511-12 (Tex.App.–Houston [1st Dist.] 2004, no pet.).
4