Clyde Lavon Smith v. State

NO. 07-01-0421-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 12, 2002

______________________________



CLYDE LAVON SMITH, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 263RD DISTRICT COURT OF HARRIS COUNTY;

NO. 847862; HONORABLE JIM WALLACE, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Pending before this Court is appellant's pro se request to withdraw his notice of appeal. Rule 42.2(a) of the Texas Rules of Appellate Procedure provides that an appeal may be dismissed if appellant withdraws his notice of appeal by signed motion accompanied by the signature of his attorney. However, where appellant is proceeding pro se, we apply Rule 2 of the Texas Rules of Appellate Procedure to suspend the requirement that appellant's request be accompanied by his attorney's signature. See Rodriguez v. State, 970 S.W.2d 133, 135 (Tex.App.--Amarillo 1998, pet. ref'd). An accused has the ultimate authority to make certain fundamental decisions regarding his case, including whether to prosecute an appeal. See Conners v. State, 966 S.W.2d 108 (Tex.App.--Houston [1^st Dist.] 1998, pet. ref'd), citing Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). Thus, we suspend the operation of Rule 42.2(a) in this case and dismiss the appeal based upon appellant's request to withdraw his notice of appeal. No decision of this Court having been delivered, we dismiss the appeal and no motion for rehearing will be entertained and our mandate will issue forthwith.

Accordingly, the appeal is dismissed.

Don H. Reavis

Justice

Do not publish.

rt was Biased

In his first issue, appellant contends the trial court was not impartial or neutral. This supposed lack of impartiality was evinced by its comment that "I told you that if you came back in here you weren't going to like it. . . "and its decision to set bail on appeal at $50,000. Yet, appellant objected below neither to the court's comment, to the amount of bail nor to the purported lack of impartiality. Neither does the record reflect that appellant moved for a new trial based upon discovering the trial court's supposed impartiality or moved for the judge's recusal. Consequently, the complaint was not preserved for review. Tex. R. App. P. 33.1; see Baxter v. State, 936 S.W.2d 469, 471 (Tex. App.-Fort Worth 1996), pet. dism'd, improvidently granted, 960 S.W.2d 82 (Tex. Crim. App. 1998) (holding that the contemporaneous objection rule applies to allegations that the accused was denied due process); Smith v. State, 993 S.W.2d 408, 410 (Tex. App.-Houston [14^th Dist.] 1999, pet. ref'd) (holding that by failing to object to the bond conditions when they were made, appellant failed to preserve error for appeal).

Moreover, read in context, we find nothing that suggests the trial court predetermined the outcome. In referring back to the cautions uttered when probating the original sentence, the trial court simply informed appellant that he had been previously warned and afforded a chance to redeem himself. This was then followed by iterations revealing the court's reluctance to imprison appellant and its need to retain its credibility and obtain the accused's attention. Simply put, a trial court need not utter hollow warnings or advice to avoid allegations of impartiality. Surely, if children can recognize when parents do not mean what they say, then so too can felons.

Lastly, the trial court had before it appellant's own admissions as well as other evidence of his guilt. So too did it opt to render a lesser term of imprisonment than that originally levied. These circumstances remove the situation before us from those indicative of partiality. See Brumit v. State, 206 S.W.3d 639, 644-45 (Tex. Crim. App. 2006) (holding that the trial court's comments which included calling the defendant a predator did not show bias or partiality when the record reflected that the trial court reviewed the evidence and a predetermined sentence was not imposed).

Issues Two and Three - Missing Records

In his last two issues, appellant contends that the record does not support the revocation because it omits the State's motion to revoke and the conditions of probation originally imposed on him. Both appear in a supplemental clerk's record, however. Consequently, the issues are moot. See Sawyer v. State, 655 S.W.2d 226, 227 (Tex. App.-Houston [14^th Dist.] 1983, no pet.) (holding that complaints about documents missing from the record are rendered moot when the documents are included in a supplemental appellate record).     

We affirm the judgment of the trial court.

Brian Quinn

Chief Justice

Do not publish.