Robert H. Hensley v. W.M. Specialty Mortgage LLC

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00322-CV

Robert H. Hensley,

                                                                      Appellant

 v.

W.M. Specialty Mortgage LLC,

                                                                      Appellee

From the County Court at Law

Ellis County, Texas

Trial Court No. 05-C-3562

MEMORANDUM  Opinion

          Robert H. Hensley filed a notice of appeal from a final judgment giving possession of property to W.M. Specialty Mortgage LLC. The required docketing statement was not received.  Tex. R. App. P. 32.  On September 19, 2005, we sent a letter explaining that the docketing statement must be filed and warning that the Court would dismiss the appeal if a docketing statement was not filed within 21 days.  Tex. R. App. P. 42.3(c). 

          More than 21 days have passed, and we have not received the docketing statement.  Accordingly, we dismiss this appeal.  Id.; see In the Interest of T.S.S., No. 10-04-00227-CV, 2004 Tex. App. LEXIS 10126 (Tex. App.—Waco Nov. 10, 2004, no pet.); Chadwell v. Ford Motor Co., No. 10-04-00272-CV, 2004 Tex. App. LEXIS 10115 (Tex. App.—Waco Nov. 10, 2004, no pet.); see also In the Interest of J.M., No. 12-05-000297-CV, 2005 Tex. App. LEXIS 8640 (Tex. App.—Tyler Oct. 19, 2005, no pet. h.)(publish); Morris v. Speedway Erection Serv. Co., No. 04-04-00109-CV, 2004 Tex. App. LEXIS 4008 (Tex. App.—San Antonio May 5, 2004, no pet.); Fincher v. Mortgage Elec. Registration Sys., No. 05-03-00614-CV, 2003 Tex. App. LEXIS 4262 (Tex. App.—Dallas May 19, 2003, no pet.)(released for publication May 19, 2003); Middleton v. State, No. 05-02-01318-CV, 2003 Tex. App. LEXIS 443 (Tex. App.—Dallas Jan. 17, 2003, no pet.).

                                                                   TOM GRAY

                                                                   Chief Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

(Justice Vance concurs with a note)*

(Chief Justice Gray concurs with a separate opinion)

Appeal dismissed

Opinion delivered and filed November 16, 2005

[CV06]

* “(Justice Vance concurs with a note:  A docketing statement is for administrative purposes only and does not affect our jurisdiction.  Tex. R. App. P. 32.4.  This will be at least our third dismissal of a pro-se appeal for failure to file a docketing statement.  Dismissal as a sanction is, in effect, a “death penalty,” which precludes consideration of the merits of the appellant’s claim.  Under the law developed to evaluate trial-court dismissals as sanctions, such a sanction must be “just.”  Tansamerican Natural Gas v. Powell, 811 S.W.2d 913, 917 (Tex. 1991)(orig. proceeding).  That means a direct relationship must exist between the offensive conduct and the sanction imposed.  Id.  Furthermore, a permissible sanction should be no more severe than required to satisfy legitimate purposes.  Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex. 1992).  This means that a court must consider relatively less stringent sanctions first to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse.  Id.  We have not tried a lesser sanction.  While we may conclude that the failure to file a docketing statement reflects adversely on the merits of a pro-se appeal, we should be cautious in doing so.)”

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     On October 6, 1997, Appellant, Able Gomez Olazaba, pled guilty, without benefit of a plea bargain agreement, to three counts of delivery of a controlled substance, one count of possession of a controlled substance with intent to deliver, and one count of aggravated delivery of cocaine, and the trial court assessed Appellant’s punishment at 20 years’ incarceration for each offense, with the sentences to run concurrently. After timely perfecting appeal, Appellant’s counsel filed a motion to withdraw from representation of Appellant with supporting Anders brief. Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967). Appellant has filed a pro se response to the Anders brief. See Wilson v. State, 955 S.W.2d 693 (Tex. App.—Waco 1997, order) (discussing procedures for Anders appeal, revisiting Johnson v. State, 885 S.W.2d 641, 646 (Tex. App.—Waco 1994, pet. ref’d)). The State has informed us by letter that it will not file a responsive brief. We now address the potential sources of error identified by counsel and Appellant and conduct an independent review of the record seeking any arguable error which requires reversal. Id. at 698.

POTENTIAL SOURCES OF ERROR

      The only potential source of error identified in the brief of Appellant’s counsel is that the trial court erred by not holding a hearing on Appellant’s motions for new trial which asserted that, because Appellant received ineffective assistance of counsel, his guilty plea was involuntary. In his pro se response, Appellant asserts two complaints: (1) Appellant received ineffective assistance of counsel which resulted in an involuntary plea of guilty; and (2) the search of Appellant’s house, during which cocaine was discovered, was illegal and in violation of Appellant’s federal and state constitutional rights.

Did the Trial Court Err in Failing to Hold a

Hearing on Appellant’s Motions for New Trial?

      A defendant does not have an "absolute right" to a hearing on a motion for new trial. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993); Mendoza v. State, 935 S.W.2d 501, 503 (Tex. App.—Waco 1996, no pet.). However, when a defendant raises a matter "not determinable from the record," the trial court is required to hold a hearing. Reyes, 849 S.W.2d at 816. Otherwise, denying a hearing would prevent the accused from having a meaningful appeal. McIntire v. State, 698 S.W.2d 652, 660 (Tex. Crim. App. 1985). The hearing allows a defendant to fully develop the issues raised in the motion for new trial. Jordan v. State, 883 S.W.2d 664, 665 (Tex. Crim. App. 1994). While a hearing may be necessary to develop issues raised in the motion for new trial, having "an unrestricted requirement of a hearing on matters not determinable from the record could lead to ‘fishing expeditions.'" Reyes, 849 S.W.2d at 816 (citing McIntire, 698 S.W.2d at 658). Thus, the defendant must include a supporting affidavit with the motion for new trial before a hearing will be required. Id.; Mendoza, 935 S.W.2d at 503. The affidavit needs only to show reasonable grounds for holding that relief should be granted. Id; see also Jordan, 883 S.W.2d at 665.

      Appellant failed to attached any supporting affidavits to his motions for new trial. Consequently, the fact that the trial court did not hold a hearing on Appellant’s motions could not be error. See Burns v. State, 844 S.W.2d 934, 936 (Tex. App.—Amarillo 1992, no pet.) (citing McIntire, 698 S.W.2d at 658).

Was Appellant’s Guilty Plea the Result of Ineffective Assistance of Counsel?  

      Appellant’s first complaint raised in his pro se response is that he did not consent to being guilty of the charges pending against him and only pled guilty to them because his appointed trial attorney “advised” him to do so.

      We have nothing before us but Appellant’s bare assertion that his attorney was ineffective by “advising” Appellant to plead guilty to the charges. Notwithstanding this assertion, there is a presumption of regularity of the judgment and the proceedings, and the burden is on the defendant to overcome this presumption. Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. App. 1986); Hernandez v. State, 885 S.W.2d 597, 601 (Tex. App.—El Paso 1994, no pet.). This presumption will prevail unless the defendant makes an affirmative showing to overcome the presumption. Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (on rehearing).   

      In each of the cases against Appellant, the record shows that Appellant signed a four-page form entitled “Written Plea Admonishments.” Furthermore, at his plea hearing and through an interpreter, Appellant told the trial court that he had not been threatened or persuaded to enter a plea of guilty and that he was doing so freely and voluntarily.

      Having reviewed the record, we can find nothing which overcomes the presumption that Appellant’s plea was voluntary. See Ex parte Wilson, 716 S.W.2d at 956; Breazeale, 683 S.W.2d at 450; Hernandez, 885 S.W.2d at 601. Appellant’s mere assertion that he pled guilty at his counsel’s urging is not sufficient. Consequently, we conclude that Appellant’s complaint that his plea was involuntary does not present a potential source of error.

Was the Search of Appellant’s Home Illegal?

      The second complaint raised by Appellant in his pro se response is that the search of his home during which law enforcement officers discovered cocaine was illegal and in violation of his federal and state constitutional rights because the officers lacked probable cause to enter his home. However, this complaint was not presented to the trial court and is therefore not properly before us. See Tex. R. App. P. 33.1(a)(1) (a prerequisite to presenting a complaint for appellate review is that the complaint must have been presented to the trial court by a timely request, objection, or motion). Consequently, Appellant’s second complaint does not present any potential source of error for appellate review.

APPELLATE COURT REVIEW OF RECORD

FOR POTENTIAL SOURCES OF ERROR

      We have also independently reviewed the record, and we are satisfied that no arguable appellate claims are present. See McCoy v. Court of Appeals of Wisconsin Dist. 1, 486 U.S. 429, 442, 108 S. Ct. 1895, 1904 (1988). Consequently, we have determined that Appellant’s counsel was correct in concluding that any appeal from Appellant’s convictions is frivolous. Id. Thus, the judgment is affirmed.

      We simultaneously grant counsel's motions to withdraw. Id.; Wilson, 955 S.W.2d at 695.

                                                                         BOBBY L. CUMMINGS

                                                                         Justice

Before Chief Justice Davis,

           Justice Cummings, and

           Justice Vance

Affirmed

Opinion delivered and filed June 17, 1998

Do Not Publish