
NO. 07-03-0357-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JULY 7, 2004

______________________________


NAVIN PATEL AND SEJAL PATEL, APPELLANT

V.

BIPIN PATEL AND MINAXI PATEL, APPELLEE


_________________________________

FROM THE 159TH DISTRICT COURT OF ANGELINA COUNTY;

NO. 33,117-00-5; HONORABLE PAUL E. WHITE, JUDGE

_______________________________


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

MEMORANDUM OPINION


	Appellants Navin Patel and Sejal Patel appeal from a judgment following a bench
trial, that appellees Bipin Patel and Minaxi Patel recover $53,493.98, plus attorney's fees
in the amount of $17,613.00 from them.  We abate the appeal and remand with directions
to the trial court to file findings of fact and conclusions of law.
	Without the assistance of counsel, the parties signed a written contract for the sale
of a convenience store, its inventory, and certain real estate.  Before the contract was
closed, appellants took possession and commenced operating the store; however, the
transaction was never closed.  Appellees filed suit seeking  possession of the property and
money damages.  The case was tried on the merits on August 29, 2002, and on May 19,
2003, the trial court signed the judgment.  Appellants requested the trial court file findings
of fact and conclusions of law on May 28, 2003, and on June 28, 2003, gave written notice
of past due findings of fact and conclusions of law.  However, none were made nor filed. 
	By their first issue, appellants complain of the trial court's failure to make and file
findings of fact and conclusions of law.  Citing  Brooks v. Housing Authority of City of El
Paso, 926 S.W.2d 316, 319 (Tex.App.--El Paso 1996, no writ), appellees acknowledge that
abatement and remand is the appropriate remedy, 
	Accordingly, we abate the appeal and remand this cause to the trial court.  On
remand, the trial court is directed to file findings of fact and conclusions of law on or before
September 6, 2004, which date shall be deemed to be the 20th day after a timely request
for findings and conclusion for purposes of Tex. R. Civ. P. 297, 298, and 299a, which rules
shall apply to further proceedings in the trial court pursuant to this order. The trial court is
further directed to cause the trial court clerk to prepare and file a supplemental appellate
record which includes its findings of fact and conclusions of law.  
	Leave is granted to appellants to file an amended brief within 20 days after the
findings of fact and conclusions of law are filed in the trial court.  Also, appellees may file
a reply brief to appellants' amended brief within 20 days of the date appellants file their
brief.  
	Except as specifically set out otherwise, the provisions of the Texas Rules of
Appellate Procedure shall apply to further proceedings.  Because the case was previously
submitted by oral argument, no further oral argument will be permitted, except upon motion
setting forth good cause.
	It is so ordered.
								Per Curiam


to visit with your attorney about the matter prior
to entering your plea here today? 

		Defendant:		Yes, sir.

		Court:		And you have also indicated that nobody made
you any promises to induce you to enter into the
plea; is that correct?

		Defendant:		Yes, sir.

 * * *

		Court:		And you are also waiving your right - what is
called your right against self-incrimination, and
do you understand that by entering a plea of
guilty to these allegations, that means that you
are admitting that these allegations are true; do
you understand that?  

		Defense Attorney:	He is pleading nolo, Your Honor.

		Court:		Okay.

		Defense Attorney:	I am sorry.  I think the papers reflect either a
guilty plea or a nolo.

		Prosecutor:		I will make sure that the final judgments, Your
Honor, reflect nolo.

		Court:		The Court will accept your plea of nolo
contendere as to both of these cases, and you
may have a seat.

 * * *
(Emphasis added).  In addition to the foregoing admonitions, appellant received, as
evidenced by his signature, written admonishments regarding the consequences of his
plea of guilty or nolo contendere.  In those admonitions, among other things, he
acknowledged that his "plea of guilty or nolo contendere [was] being given freely and
voluntarily" and that "[n]o one [had] threatened, coerced, intimidated, forced, tricked,
persuaded or otherwise induced [him] to enter his plea."  
	By his first issue, appellant asserts that he "did not enter any plea; none was
requested by the court, and none was given."  Absent a plea, claims appellant, "the court
was not authorized to proceed to a punishment hearing, and the resulting convictions,
judgments, and sentences are a [sic] null and void."  We disagree.  Article 27.13 of the
Code of Criminal Procedure provides: "A plea of 'guilty' or 'nolo contendere' in a felony
case must be made in open court by the defendant in person . . . ."  (Vernon 1989). (2)  A
defendant, however, can enter a guilty plea in a felony case through his attorney as long
as the defendant is present at the time of the plea and the plea is voluntary.  Shields v.
State, 608 S.W.2d 924, 927 (Tex.Cr.App. 1980).  In other words, we will review the trial
court's actions to determine if it substantially complied with the edicts of article 27.13.  See
id.  Article 27.13 is complied with, regardless of who actually speaks, so long as it occurs
in open court, in the presence of the defendant, who acknowledges the plea is his.  Costilla
v. State, 84 S.W.3d 361, 364 (Tex.App.-Beaumont 2002, pet. granted); but see Mendez
v. State, 892 S.W.2d 81, 83 (Tex.App.-Texarkana 1994)(holding that mere fact of
appellant's presence while his attorney stated a plea is insufficient to comply with the
requirements of the Code), rev'd on other grounds, 914 S.W.2d 579 (Tex.Cr.App. 1996). 
	Here, we conclude the trial court substantially complied with article 27.13 when it
accepted appellant's attorney's assurance that appellant was "pleading nolo."  Appellant
acknowledged that plea as his own when, throughout the plea colloquy, he affirmatively
responded to the trial court's queries concerning his understanding of the consequences
of "your plea."  Furthermore, there is nothing in the record to indicate that appellant was
confused.  Adkison v. State, 762 S.W.2d 255, 259 (Tex.App.-Beaumont 1988, pet. ref'd).
Indeed, it appears from the record detailed above that appellant fully understood the
proceedings.  And, when questioned about the voluntariness of his plea, he affirmatively
replied that no one made him any promises to induce him to enter into the plea, and that
he was pleading freely and voluntarily.  
	We have not overlooked appellant's reference to  White v. State, 932 S.W.2d 595
(Tex.App.-Tyler 1995, pet. ref'd).  However, because White is factually distinguishable
from the cases under review here, White is not controlling.  In White, after the State
announced that it was abandoning one of the counts of the indictment, the appellant then
pleaded guilty to the remaining count.  Later in the hearing, the State announced that it had
misstated the terms of the plea bargain, which contemplated the appellant's conviction on
both counts.  The trial court then failed to secure appellant's plea to the remaining count
of the indictment.  
	Here, in contrast to the White case, it was clear from the outset of the plea colloquy
that appellant intended to make open pleas to all three counts.  Indeed, when appellant's
attorney advised the trial court that his client was "pleading nolo," it was in response to the
court's admonition that by pleading appellant would be admitting that the allegations were
true.  In short, the record demonstrates that appellant acknowledged his attorney's plea
of nolo as his own as to each count with which he was charged.  Although the better
practice would have been for the trial court to inquire of appellant personally as to his
pleas, we conclude that "the circumstances are sufficient to show a compliance not only
with the spirit but with the letter of article 27.13."  Shields, 608 S.W.2d at 927.  Appellant's
first issue is overruled.  
	By his second issue, appellant contends "[t]he trial court's error in accepting a plea,
when [he] failed to make one, violated [his] right to due process of law under the
Fourteenth Amendment to the United States Constitution."  Apart from making that
declaration in the presentation of his issues, however, appellant wholly fails to present any
argument or authority to support his position.  Thus, he presents nothing for our review. 
See Tex. R. App. P. 38.1(h) (requiring appellant's brief to contain a clear and concise
argument for the contentions made with appropriate citations to authorities and to the
record); Jackson v. State, 50 S.W.3d 579, 591 (Tex.App.--Fort Worth 2001, pet. ref'd)
(holding that the defendant waived his right to complain on appeal by failing to present any
argument or authority supporting his point of error).  Issue two is overruled.
	Accordingly, the judgment of the trial court is affirmed.

						Don H. Reavis
						    Justice

Do not publish.
1. Appellant was charged with one count of aggravated robbery in cause number
2001-438439 and two counts of aggravated robbery in cause number 2001-438400.  The
cases were consolidated at trial, and appellant challenges the convictions jointly on appeal. 
Likewise, we will consider the cases simultaneously.    
2. All references to articles are to the Code of Criminal Procedure unless otherwise
indicated.  (Vernon 1989).

