James Mark Baker v. State ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00157-CR
JAMES MARK BAKER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1303114D
----------
MEMORANDUM OPINION AND JUDGMENT1
----------
Appellant James Mark Baker appealed his conviction and four-year
sentence for the offense of aggravated assault with a deadly weapon. Appellant
subsequently filed a motion in which he requested, among other relief, to
withdraw his appeal. We grant his motion to dismiss his appeal.
1
See Tex. R. App. P. 47.4.
Procedural Background
On February 24, 2014, Appellant entered an open plea of guilty to the
offense of aggravated assault with a deadly weapon. A “Presentence
Investigation Report” was prepared and, at the April 14, 2014, sentencing
hearing, Appellant asked for deferred adjudication. The trial court, however, took
a different tack, found Appellant guilty, and sentenced him to imprisonment for
four years.
On April 21, 2014, Appellant filed a pro se notice of appeal. The trial court
appointed Ronald Couch as appellate counsel on May 1, 2014. Appellant
subsequently, on May 9, 2014, filed a motion to dismiss his appointed counsel
and, effectively, to proceed pro se.2 On May 12, 2014, this court abated the
appeal to have the trial court determine if Appellant wanted to proceed pro se
and, if so, to admonish him of the dangers and disadvantages of self-
representation in accordance with Faretta v. California, 422 U.S. 806, 835, 95
S. Ct. 2525, 2541 (1975), and Hubbard v. State, 739 S.W.2d 341, 345 (Tex.
Crim. App. 1987). The trial court conducted a hearing on May 19, 2014, and the
reporter’s record of that hearing was filed in this court on June 10, 2014. On
June 18, 2014, this court granted Appellant’s motion to dismiss appointed
counsel and allowed Appellant to proceed pro se in his appeal.
2
Appellant filed an identical motion on May 13, 2014.
2
Meanwhile, Appellant had other post-trial activity in the trial court. The trial
court awarded Appellant credit for time served, and the judgment reflects credit
from October 28, 2012, until April 14, 2014. Appellant filed on May 30, 2014, and
again on June 9, 2014, a “Motion to Enter Nunc Pro Tunc Order” in which he
maintained he was entitled to 533 days of credit. The State filed a response in
which it asserted that the time from October 28, 2012, until April 14, 2014, added
up to 533 days; therefore, it asked the trial court to deny Appellant’s motion for
nunc pro tunc relief.3 By our count, this adds up to 533 days as well.
On May 22, 2014, more than thirty days after he was sentenced, Appellant
filed in the trial court “Appellant[’]s Trial Brief Specifying Error of Which Appellant
Complains on Appeal.” Even if this document were construed as a motion for
new trial, it would be untimely. A defendant must file a motion for new trial within
thirty days of the sentence. Tex. R. App. P. 21.4(a).
Back in the appellate court, the reporter’s record was filed on June 26,
2014, and the clerk’s record was filed on July 17, 2014. Also on July 17, 2014,
Appellant filed a pro se brief, which was simply a copy of “Appellant[’]s Trial Brief
Specifying Error of Which Appellant Complains on Appeal.” In this document,
3
By the time this opinion issues, Appellant will have over twenty-five
months of credit for time served. See Tex. Gov’t Code Ann. § 508.145(d)(1)
(West Supp. 2014) (setting out parole eligibility). The three 2013 amendments to
this section do not affect this case. Act of May 23, 2013, 83rd Leg., R.S., ch.
1252, § 13, 2013 Tex. Sess. Law Serv. 3168, 3170; Act of May 25, 2013, 83rd
Leg., R.S., ch. 1325, § 2, 2013 Tex. Sess. Law Serv. 3516, 3517; Act of May 9,
2013, 83rd Leg., R.S., ch. 126, § 2, 2013 Tex. Sess. Law Serv. 522, 523.
3
Appellant alleged: (1) the plea agreement was breached because trial counsel
told him he would receive probation if he made an open plea; (2) the trial court
erred by refusing to give Appellant a hearing on several pro se pretrial motions
Appellant had filed concerning his trial counsel’s professional misconduct; (3) trial
counsel was ineffective because he did not file any motions on Appellant’s
behalf, did not investigate Appellant’s case, and did not give Appellant correct
legal advice, and (4) the police used unjustifiable force when shooting him
because he never threatened the officer. Appellant concluded his punishment
was invalid and, therefore, the judgment should be reversed and the matter
remanded to the trial court for a new punishment hearing at which he should be
given probation. On July 22, 2014, this court sent Appellant a letter informing
him his brief did not comply with numerous rules of the Texas Rules of Appellate
Procedure and instructing Appellant to file an amended brief by August 21, 2014.
On August 4, 2014, Appellant filed a letter in this court acknowledging he
had received a copy of the clerk’s record and reporter’s record but stating that he
had discovered the reporter’s record was missing the “Presentence Investigation
Report.” Appellant requested the “Presentence Investigation Report” so he could
include it in an amended brief. On August 22, 2014, this court issued an order in
which it construed Appellant’s August 4, 2014, letter as a motion requesting the
“Presentence Investigation Report” and granted it. In the same order, this court
stated it was delivering a redacted copy of the “Presentence Investigation
Report” to Appellant. This order also instructed Appellant to return the redacted
4
“Presentence Investigation Report” to this court by October 20, 2014. Appellant
returned the document October 15, 2014.
On September 5, 2014, this court sent Appellant a letter in which it noted
Appellant’s amended brief was due August 21, 2014, and had not been filed.
This court further informed Appellant that unless he filed a motion to extend time
to file his amended brief by September 19, 2014, his appeal would be submitted
without briefs only for fundamental error pursuant to rule 38.8(b)(4) of the Texas
Rules of Appellate Procedure. On September 19, 2014, Appellant filed a motion
to extend time. On September 23, 2014, this court granted Appellant’s motion
and extended the time to file Appellant’s amended brief until November 17, 2014.
On October 2, 2014, Appellant filed another motion to extend time to file
his brief. Appellant wanted the “Investigator Report” before finishing his
amended brief. On October 7, 2014, this court denied Appellant’s motion to
extend time to file his amended brief as moot because this court’s September 23,
2014 order already granted Appellant an extension until November 17, 2014. In
the same order, this court denied Appellant’s request for an “Investigator Report”
because Appellant had already received a complete clerk’s record and reporter’s
record.
On October 17, 2014, Appellant filed a separate request for the
“Investigator Report.” On October 22, 2014, this court denied his request.
5
The Motion under Consideration
On November 14, 2014, Appellant filed a document in which he states: “I
would like to withdraw my Direct Appeal.” In the same paragraph of the same
document, Appellant states: “Please suspend my Direct Appeal (Tex. R. App. P.
2) until I can afford a[n] appe[llate] attorney and have legal advi[c]e.” Appellant
further states: “I do not want a[n] appointed appe[llate] attorney. I do not want
the 2nd Appe[llate] Court to proceed on fundamental error under Tex. R. App. P.
38.8(b)(4).” Finally, Appellant again requests the “Investigator Report.” We
construe this document as a motion, as Appellant requests relief of various sorts.
We again deny Appellant’s request for the “Investigator Report.” Appellant
does not show where this document was admitted as evidence at either his plea
hearing or his punishment hearing. Our review of the plea and punishment
hearings does not show that an “Investigator Report” was admitted. We cannot
consider new evidence on appeal. Belachheb v. State, 699 S.W.2d 709, 711
(Tex. App.—Fort Worth 1985, pet. ref’d).
We deny Appellant’s request to abate his appeal until such time as he is
able to hire an attorney under rule 2. See Tex. R. App. P. 2. Rule 2 requires
good cause, and Appellant has not shown good cause. See id. There is no
showing of when, if ever, Appellant would be able to hire appellate counsel. On
November 26, 2012, Appellant filed an affidavit of indigence and was appointed
trial counsel. Appellant has provided us with no reason to believe his financial
situation has improved while he has been incarcerated over the last twenty-five
6
months. The trial court provided Appellant with appointed counsel, but Appellant
successfully had his appointed counsel removed. In the motion under
consideration, Appellant still refuses the appointment of appellate counsel.
Appellant has a constitutional right to proceed pro se. Robinson v. State, 387
S.W.3d 815, 820 (Tex. App.—Eastland 2012, no pet.) (citing Faretta, 422 U.S. at
821, 95 S. Ct. at 2534). We will respect his election.
In his motion, Appellant stated he did not want his appeal submitted
without briefs for fundamental error as permitted under rule 38.8(b)(4). Tex. R.
App. P. 38.8(b)(4). We grant Appellant’s request not to submit his appeal without
briefs pursuant to rule 38.8(b)(4).
We construe Appellant’s request to “withdraw his appeal” as a motion to
dismiss, grant his motion, and dismiss his appeal. Tex. R. App. P. 42.2(a).
Appellant has fifteen days from the issuance of this opinion to file a motion for
rehearing. Tex. R. App. P. 9.2, 49.1.
Conclusion
Having ruled on all the relief requested by Appellant in his November 14,
2014 motion, we dismiss his appeal. See Tex. R. App. P. 42.2(a), 43.2(f).
PER CURIAM
PANEL: GARDNER, WALKER, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 11, 2014
7