Curtis Lester Ealy v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-06-00157-CR

No. 10-06-00158-CR

Curtis Lester Ealy,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the 3rd District Court

Anderson County, Texas

Trial Court Nos. 27,699 and 28,261

ABATEMENT ORDER

          Ealy was convicted of possession of a controlled substance less than one gram and theft by check, a state-jail felony.  Ealy filed a pro se notice of appeal even though our records indicate that he was appointed an attorney at the trial court level and that attorney has not been released. 

          Ealy has additionally filed a pro se motion for extension of time to obtain court appointed counsel.  In his motion, he explained that he filed with the trial court an “informa pauperis” and a motion for the appointment of counsel on appeal.  Recently, Ealy has sent us more pro se correspondence.

          This appeal is abated to the trial court to determine whether Ealy is indigent, whether he has been appointed counsel on appeal, and if so, whether Ealy is being provided with effective counsel, or whether to grant any other relief necessary to protect Ealy’s rights.  The trial court is ordered to conduct any necessary hearings and make appropriate findings and recommendations within 30 days from the date of this Order.

          Supplemental Clerk’s and Reporter’s Records are ordered to be filed within 45 days from the date of this Order.

                                                          PER CURIAM

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

Appeal abated

Order issued and filed September 13, 2006

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DISSENT TO SEVERANCE AND REINSTATEMENT ORDER

            The Court’s opinion and judgment in 10-06-00256-CV issued on September 10, 2008.  On September 19, 2008, we received a notice of bankruptcy of one of the Appellants.  On September 19, 2008, we also received Appellees’ motion for extension of time to file a motion for rehearing.  On September 22, 2008, we purported to grant the Appellees’ motion for extension of time to file a motion for rehearing until October 27, 2008.  On September 22, 2008, we received a letter from Appellants regarding the Court’s purported order granting the extension after the notice of bankruptcy had been received.  On October 7, 2008 we acknowledged the automatic stay due to having received the notice of bankruptcy, but did not acknowledge the date of the receipt or the effective date of the stay.  Today we purport to sever the proceeding on our own motion.  I would not.

            I would first clarify the procedural posture of the stay by noting that the Court’s September 22, 2008 order granting Appellees an extension of time in which to file their motion for rehearing and extending the due date until October 27, 2008 was a void order because it was issued after we had received notice of the bankruptcy stay.  I would then inquire of the parties regarding whether the matter was appropriate for severance; in particular, whether the Appellees’ claims against the Appellants are severable.  In this proceeding it appears that the Appellees brought a single claim, albeit multiple theories of product liability, against multiple but related corporate Appellants.  The judgment for each Appellee is for the same claim (multiple theories) and precisely the same damages jointly and severally against each Appellant.  Before I vote to attempt to sever these Appellants, I would request briefing on the issue of severability.  Further, it appears we may be creating an undesirable course of proceeding because, while represented by able counsel, none of the parties has sought this court’s intervention in this manner.

            Accordingly, I respectfully dissent from the severance and reinstatement order.

                                                                        TOM GRAY

                                                                        Chief Justice

Dissent to Severance and Reinstatement Order delivered and filed October 15, 2008

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