David Park v. Montgomery County, Texas ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00231-CV

David Park,

                                                                      Appellant

 v.

Montgomery County, Texas ,

                                                                      Appellee

From the 9th District Court

Montgomery County, Texas

Trial Court No. 02-10-07222 CV

SPECIAL NOTE

          At some point the Supreme Court or the Court of Criminal Appeals will have to decide whether opinions and judgments voted on by only two justices on this Court are proper.  See Krumnow v. Krumnow, No. 10-04-00143-CV, 2005 Tex. App. LEXIS 7027, __ S.W.3d __ (Tex. App.—Waco August 24, 2005, no pet. h.) (Special note by Chief Justice Gray issued August 31, 2005).

          This is an important case to which I have been unable to devote the time and attention I believe it deserves before I can vote.  Thus, by rushing its release, the majority deprives me of the opportunity to spend the time I believe is necessary to review and vote on the result of the case.  They deprive me of the very opportunity they have on every one of the opinions that I draft for their review.  They have all the time they need, not because I give it, though I would do so freely.  They have the time because it is the appropriate deferral to their discretion as a justice on this Court.  I also believe the full review by three judges is necessary for the proper functioning of our appellate court system.

          By the procedure they have chosen to use, they also deprive the litigants of the considered vote of all members of the panel to which this case has been assigned.  I think the litigants are entitled to have all the members of the panel to which the case is assigned consider and vote on the result of the appeal.  Indeed, by issuing the opinion in this manner, the majority may be suppressing a dissenting opinion, the issuance of which would then give the Texas Supreme Court jurisdiction to review the majority’s opinion.  Tex. Gov’t Code Ann. § 22.001(a)(1) (Vernon 2004); see also Tex. R. App. P. 56.1(a)(1).

          The release of the opinion in this case should await the time with patience until I have had the time to review it, and my vote returned.  Accordingly, at this time I can neither vote to affirm nor vote to reverse the judgment of the trial court.

                                                          TOM GRAY

                                                          Chief Justice

Special Note delivered and filed October 19, 2005

Publish

amily:"CG Times"'>TENTH COURT OF APPEALS

No. 10-03-00268-CR

DANIEL CLARK,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 26874CR

MEMORANDUM Opinion

          A jury convicted Appellant Daniel Clark of murder, and the trial court sentenced him to life in prison.  After being fully admonished, Clark represented himself in the trial court, and he continues his pro se representation in this appeal.

          Clark’s brief was originally due on October 13, 2003, and he was granted an extension until December 10, 2003.  When Clark’s brief was not filed, we abated this appeal for a hearing in the trial court for a determination of why Clark had failed to file his brief and whether prison officials were denying Clark reasonable access to the appellate record.

          After the trial court hearing, we entered an order on September 15, 2004 giving Clark sixty days to file his brief and notifying him that if he failed to timely file his brief, we would decide his appeal without briefs, reviewing the record only for fundamental error.

          Clark has not filed his brief.  We and the trial court have made every effort to protect Clark’s rights.  See Carroll v. State, 75 S.W.3d 633, 634 (Tex. App.—Waco 2002, no pet.).  We will thus submit this appeal without briefs and review the record for fundamental error.  See Tex. R. App. P. 38.8(b)(4); Lott v. State, 874 S.W.2d 687, 687-88 (Tex. Crim. App. 1994­); Carroll, 75 S.W.3d at 634.

          Our review of the record discloses no unassigned fundamental error.  Accordingly, we affirm the trial court’s judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed April 20, 2005

Do Not Publish

[CRPM]