Melissa Matus v. State ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00149-CR

Melissa Matus,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the County Court at Law No. 1

McLennan County, Texas

Trial Court No. 20076115CR1

abatement ORDER

Appellant Melissa Matus filed a notice of appeal pro se.  The trial court denied her request for a court-appointed attorney for this appeal.  It appears that Appellant has not retained an attorney for this appeal.  The clerk’s record has been filed.  The reporter’s record has not been filed.  In a September 16, 2008 letter, this Court notified Appellant that the reporter’s record in this cause had not been filed because Appellant had failed to pay or make arrangements to pay the reporter’s fee for the preparation of the record.  That letter further notified Appellant that unless she paid the reporter or made arrangements to pay the reporter’s fee and notified this Court of the action taken within 21 days of the date of this letter, her brief was to be filed within 60 days of the date of that letter, and the Court would consider and decide those issues and points that do not require a reporter’s record.  See Tex. R. App. P. 37.3(c)(2).

When Appellant took no action and did not file a brief, in a letter dated November 21, 2008, this Court notified Appellant that her brief was due to be filed in this Court on or before November 17, 2008, that her brief was overdue, and that unless a brief or satisfactory response was received within 14 days, the Court would abate this appeal and order the trial court to immediately conduct a hearing under Rule of Appellate Procedure 38.8(b)(2).  Neither a brief nor a response has been received.

The Court abates this cause to the trial court with instructions to hold a hearing to determine:  (1) why Appellant has failed to pay or make arrangements to pay the reporter’s fee for the preparation of the reporter’s record; (2) why a proper brief has not been filed by Appellant; and (3) whether Appellant still desires to proceed with the appeal.  See Tex. R. App. P. 38.8(b)(2).

The trial court shall conduct the hearing within twenty days after the date of this order.  The trial court clerk and court reporter shall file supplemental records within thirty-five days after the date of this order.

PER CURIAM

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Cause abated

Order issued and filed January 28, 2009

Do not publish

566, 569 (Tex. App.—Beaumont 1994, no writ) (per curiam).  Texas courts have followed the lead of the federal courts in identifying pertinent factors to be considered in deciding whether an inmate should be permitted to personally appear.

These factors include:

(1) the cost and inconvenience of transporting the inmate to court; (2) the security risk and danger to the court and the public by allowing the inmate to attend court; (3) whether the inmate’s claims are substantial; (4) whether a determination of the matter can reasonably be delayed until the inmate is released; (5) whether the inmate can and will offer admissible, noncumulative testimony that cannot be offered effectively by deposition, telephone, or otherwise; (6) whether the inmate’s presence is important in judging his demeanor and credibility compared with that of other witnesses; (7) whether the trial is to the court or to a jury; and (8) the inmate’s probability of success on the merits.

Armstrong, 881 S.W.2d at 57 (citing Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir. 1976)); accord Byrd, 877 S.W.2d at 569; Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App.—Dallas 1987, no writ).  Should the trial court determine after considering these factors that the prisoner is not entitled to appear personally, then the court should permit him “to proceed by affidavit, deposition, telephone, or other effective means.”  Byrd, 877 S.W.2d at 569 (quoted in Dodd, 17 S.W.3d at 717; Ramirez, 994 S.W.2d at 684; Pedraza, 960 S.W.2d at 343 n.3).

A trial court’s refusal to consider and rule upon a prisoner's request to appear in a civil proceeding personally or by other means constitutes an abuse of discretion.  See Dodd, 17 S.W.3d at 718; Byrd, 877 S.W.2d at 569.  Because Respondent has failed to consider and rule upon Richard’s application for writ of habeas corpus ad testificandum or alternatively to appear via videoconferencing, Respondent has abused his discretion.

In re Taylor, 28 S.W.3d 240, 249 (Tex. App.—Waco 2000, orig. proceeding), disapproved in part by In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003).

When a request for a bench warrant includes no information by which a trial court can assess the necessity of the inmate’s appearance, the trial court does not abuse its discretion when it fails to consider or act on an inmate’s request for a bench warrant.  In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003).  Nor does a trial court have a duty to go beyond the bench warrant request and independently inquire into the necessity of an inmate’s appearance.  Id.

Because Appellant alternatively requested to participate in the hearing by teleconference and his motion unquestionably provided sufficient information for that purpose, we review his first and third issues on that aspect alone for an abuse of discretion.  See, e.g., Boulden v. Boulden, 133 S.W.3d 884, 885, 886-87 (Tex. App.—Dallas 2004, no pet.).

Z.L.T. specifically struck down the notion propagated by Texas appeals courts that trial courts must evaluate independently various factors in deciding whether to grant bench warrant requests, regardless of the content of the requests.  Id. at 166.  However, the Supreme Court did not address the assertion, also encouraged by appeals courts, that the trial court has an additional responsibility if the bench warrant is refused.

Several appeals courts have held that in the event a trial court finds that a pro se inmate in a civil action is not entitled to appear personally in court, the prisoner should be allowed to proceed by affidavit, deposition, telephone, or other effective means.  Boulden v. Boulden, 133 S.W.3d 884, 886-87 (Tex. App.—Dallas 2004, no pet. h.); In the Interest of D.D.J., 136 S.W.3d 305, 313 (Tex. App.—Fort Worth 2004, no pet. h.); Lann v. LaSalle County, No. 04-02-00005, 2003 WL 141040, at *1 (Tex. App.—San Antonio January 22, 2003, no pet.) (not yet published); Byrd v. Attorney General of State of Tex. Crime Victims Compensation Div., 877 S.W.2d 566, 569 (Tex. App.—Beaumont 1994, no pet.); In re B.R.G., 48 S.W.3d 812, 820 (Tex. App.—El Paso 2001, no pet.).  We have further stated that a trial court’s refusal to consider and rule on a prisoner’s request to appear in a civil proceeding personally or by other means, such that the inmate has been effectively barred from presenting his case, constitutes an abuse of discretion.  In re B.R.G., 48 S.W.3d at 820.

Many circumstances can contribute to an inmate being barred from presenting his case.  For example, one court found that an inmate who was a defendant in a civil action and who was proceeding pro se as had been effectively barred from presenting his case when his request to appeal and for an attorney were denied.  Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex. App.—Texarkana 1994, writ denied).  An abuse of discretion was found in another case where the court records demonstrated repeated efforts on the part of an inmate to present a defense from prison, but no mention of his assertions or evidence was made during the proceeding.  Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex. App.—San Antonio 1999, no pet.), disapproved in part on other grounds by In re Z.L.T., 124 S.W.3d at 166.  Still another court found an abuse of discretion where an inmate who filed for divorce proposed alternative means of appearing and did everything possible to respond to the trial court, only to find the case dismissed without his participation.  Boulden, 133 S.W.3d at 887.  The Zuniga Court emphasized that the inmate in that case had a right to be heard, particularly because the suit affected his parental rights. Zuniga, 13 S.W.3d at 801.  We believe the same to be true in the case at bar.

Urquidez v. Urquidez, 2004 WL 1933339, at *4-5 (Tex. App.—El Paso Aug. 31, 2004, no pet.).

Applying the above case law to the issues before us, we find that the trial court abused its discretion by failing to allow Appellant to proceed by the alternative means of teleconference and by dismissing for want of prosecution the contempt motion.  See id. at *5; Boulden, 133 S.W.3d at 885, 886-87 (reversing dismissal of inmate’s divorce case for want of prosecution where inmate had filed motion for bench warrant or alternative hearing by conference call).  Issues one and three are sustained in part.  We need not address issue two.

We reverse the trial court’s April 3, 2008 dismissal order and remand this case for proceedings consistent with this opinion.

BILL VANCE

Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Reversed and remanded

Opinion delivered and filed November 5, 2008

[CV06]