Howard Johnson v. State ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00315-CR

Howard Johnson,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 85th District Court

Brazos County, Texas

Trial Court No. 06-04179-CRF-85

ABATEMENT ORDER

            Appellant’s brief is overdue, and after notice to appellant’s counsel to file a brief or extension request, none has been filed.  Therefore, we abate this cause to the trial court for a hearing to determine: (1) why a brief has not been filed on appellant’s behalf; (2) whether counsel has abandoned the appeal; (3) whether appellant still desires to proceed with the appeal; and (4) whether appellant desires self-representation.  See Tex. R. App. P. 38.8(b)(3); Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco 2005, order). 

The trial court shall conduct the hearing within 30 days after the date of this order.  The trial court clerk and the court reporter shall file supplemental records within 45 days after the date of this order.  See Fewins, 170 S.W.3d at 296-97.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Appeal abated

Order issued and filed June 11, 2008

Do not publish

[CR25]

height: 0.388889in">      By order dated November 15, 1995, we notified the parties that the dispute in these causes was appropriate for resolution by an alternative dispute resolution procedure. Tex. Civ. Prac. & Rem. Code Ann. § 154.021(a) (Vernon Supp. 1996). Although the State objected to our actions, we found that its objections did not have a reasonable basis, other than general objections to ADR, and, on December 20, referred the causes for mediation. Id. §§ 154.022(b), 154.023. The parties agreed on former Chief Justice Clarence Guittard as the impartial third party to be named.

      Judge Guittard conducted the mediation session on January 16, 1996. The attempt to settle the dispute was successful and the parties filed a "Motion To Implement Settlement" on January 25. However, we were unable to determine with sufficient specificity the actions that the parties requested we take to implement their agreement. Therefore, we remanded these causes to the trial court for proceedings consistent with the agreement.

      Apparently, the parties have fulfilled the terms of their agreement because they have filed a joint motion to dismiss. Attached to the joint motion to dismiss is a copy of the agreement and a release of the judgments acknowledging payment of $210,000 by the State in satisfaction of the judgments.

      In the relevant portion, Rule 59(a) provides:

(1) The appellate court may finally dispose of an appeal or writ of error as follows:

(A) In accordance with an agreement signed by all parties or their attorneys and filed with the clerk; or

(B) On motion of appellant to dismiss the appeal or affirm the judgment appealed from, with notice to all other parties; provided, that no other party shall be prevented from seeking any appellate relief it would otherwise be entitled to.

Tex. R. App. P. 59(a).

      Both the State and Lawrence are party to the motion to dismiss. Thus, the motion is granted. They also ask that we issue an order returning the original exhibits to the trial court. This motion is also granted.

      Therefore, we direct the clerk of this court to return to the County Court at Law of Ellis County each of the original exhibits forwarded to this Court in connection with these appeals. Pursuant to the parties' agreement, the clerk of the County Court shall allow the parties to withdraw their exhibits upon written receipt. This appeal is dismissed with the State to bear the costs, in accordance with the parties' motion.

                                                                                 PER CURIAM

Before Justice Cummings, and

          Justice Vance

Dismissed on joint motion of the parties

Opinion delivered and filed March 13, 1996

Do not publish