

NO. 07-10-0413-CR
NO. 07-10-0414-CR
NO. 07-10-0415-CR
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL C
 
MAY 13, 2011
 
______________________________
 
 
BOBBY JOE LEE, APPELLANT
 
V.
 
THE STATE OF TEXAS, APPELLEE
 
_________________________________
 
FROM THE 432ND DISTRICT COURT OF TARRANT
COUNTY;
 
NOS. 1181069D, 1181071D, & 1181073D; HONORABLE
RUBEN GONZALEZ, JUDGE
 
_______________________________
 
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
            Following a plea of not guilty,
Appellant, Bobby Joe Lee, was convicted by a jury of theft of property valued
at $20,000 or more but less than $100,000, enhanced,[1] in
cause numbers 1181069D and 118071D, and criminal mischief with a pecuniary loss
of $100,000 or more but less than $200,000, enhanced,[2] in
cause number 1181073D.  The fifty year
sentences imposed in each cause were ordered to run concurrently.  Appellant's notices of appeal were timely
filed on September 2, 2010, and following the filing of the appellate record,
his briefs were originally due to be filed on January 26, 2011. 
            On January 28, 2011,
Appellant's appointed counsel, Richard C. Kline, requested a sixty-day
extension of time in which to file Appellant's brief citing as grounds his busy
schedule.[3]  An extension was granted to February 25,
2011, and counsel was advised that subsequent extensions would not be granted
absent good cause.  On February 28, 2011,
counsel filed a second motion for extension of time reasonably explaining that
in addition to his busy schedule, he had a legitimate personal reason for the
request.  A second extension was granted
to March 31, 2011.  After the new
deadline passed, counsel filed a third motion for extension of time based not
only on his trial schedule, but also on the fact that he was moving his
personal residence.  This Court granted
yet another extension setting the new deadline at May 5, 2011.  At that time counsel, was admonished that
failure to comply with the deadline might result in the appeal being abated and
the cause remanded to the trial court for further proceedings pursuant to Rule
38.8(b)(2) of the Texas Rules of Appellate Procedure.[4]
            After the May 5, 2011
deadline passed, counsel filed his Fourth
Motion for Extension of Time to File Appellant's Brief explaining that he
had filed a brief in the Second Court of Appeals on April 25, 2011, and was set
for a murder trial beginning May 9, 2011. 
To date, Appellant's counsel has failed to file Appellant's brief. 
            By Order of this Court,
Appellant's Fourth Motion for Extension
of Time to File Appellant's Brief is denied.
We now abate this appeal and remand the cause to the trial
court for further proceedings.  Upon
remand, the trial court shall immediately determine why counsel has failed to
timely file Appellant=s brief and take such action as is
necessary to ensure that the brief is filed with the Clerk of this Court on or
before June 20, 2011.
Should counsel file Appellant's brief on or before, June 6,
2011, he is directed to notify the trial court, in writing, of the filing,
whereupon the trial court shall not be required to take further action.  If, however, the brief is not filed by that
date, pursuant to Rule 38.8(b)(2) and (3) of the Texas
Rules of Appellate Procedure, the trial court is directed to conduct a hearing
to determine the following: 
1.           
whether Appellant
desires to prosecute the appeals;
2.           
whether
Appellant=s counsel has effectively abandoned
the appeals given his failure to timely file the brief; and
3.           
whether
Appellant has been denied effective assistance of counsel and is entitled to
new appointed counsel.
 
Should it be determined that Appellant does want to continue these appeals
and the trial court determines he is entitled to new appointed counsel, the
name, address, telephone number, and state bar number of the newly-appointed
counsel shall be provided to the Clerk of this Court.  The trial court shall execute findings of
fact and conclusions of law, and shall cause its findings, conclusions and any
necessary orders to be included in a supplemental clerk's record to be filed with
the Clerk of this Court by June 27, 2011. 
Finally, newly appointed counsel shall file Appellant's brief within
thirty days after the date of appointment. 
It is so ordered.
 
Per Curiam
Do not publish.
 
 
 
 
                                                                                    
 
 




[1]Tex.
Penal Code Ann. § 31.03(e)(5) (West Supp. 2010).
 


[2]Tex.
Penal Code Ann. § 28.03 (b)(6) (West Supp. 2010).
 


[3]The
normal press of business is generally not considered good cause.  Curry v. Clayton, 715 S.W.2d 77, 79 (Tex.App.--Dallas 1986, no
writ).  This Court's guideline is
to grant subsequent extensions for good cause.
 


[4]Notwithstanding
that this appeal was transferred from the Second Court of Appeals, counsel is
not unfamiliar with this Court's guidelines on motions for extensions of
time.  See Salzido v. State, No. 07-10-0031-CR,
2010 Tex.App. LEXIS 5658 (Tex.App.--Amarillo July 19, 2010, no
pet.) (not designated for publication) (abating
the appeal to the trial court after counsel filed a fourth request for an
extension of time in which to file an appellant's brief).



nisterial duty, to abide with T.C.C.P. Art.
26.052(e), and in the alternative, that this cause be remanded to the Trial
Court for trial on its merit.”  By his
petition, Dominguez complains that, in 1997, he was tried for capital murder
and that the State sought the death penalty, and the
trial court abused its discretion when it failed to appoint two attorneys to
assist him.  See Tex. Code Crim. Proc. Ann. art. 26.052(e)
(West Supp. 2010).[1]  We deny the petition.
Mandamus
is an extraordinary remedy that will issue only if (1) the trial court clearly
abused its discretion, and (2) the party requesting mandamus relief has no
adequate remedy by appeal.  See In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004); Walker
v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). 
As the party bearing the burden of proof, a relator
must provide a sufficient record to establish his entitlement to mandamus
relief.  See Walker, 827 S.W.2d at 837.
Texas
Rule of Appellate Procedure 52.3[2]
identifies the requirements for a petition for writ of mandamus filed in this Court.  While Dominguez’s petition generally complies
with these requirements, it is deficient in one significant respect.  Rule 52.3(g) requires the petition include a
statement of facts supported by citation to competent evidence included in the
appendix or record, and Rule 52.3(k)(1)(A) requires that the appendix to the
petition include a certified or sworn copy of any order complained of, or other
document showing the matter complained of. 
Dominguez has not included an appendix to his petition nor has he filed
a copy of the record from the capital murder trial of which he now
complains.  As such, Dominguez has failed
to provide this Court with a sufficient record to allow us to assess the merits
of Dominguez’s claim that the trial court clearly abused its discretion or
violated a duty imposed by law.  See
Walker, 827 S.W.2d at 837.
As
Dominguez has failed to meet his burden to establish entitlement to the relief
he seeks, we deny the petition.
 
                                                                                                Per
Curiam
 



 




[1] While the current version of art. 26.052(e) does
provide that the trial court shall appoint two attorneys to represent a capital
murder defendant when the State seeks imposition of the death penalty, the
version of the statute that was in effect at the time of Dominguez’s trial and
that established the trial court’s duty in Dominguez’s trial provided that the
trial court shall appoint lead counsel and “shall appoint a second counsel to
assist in the defense of the defendant, unless reasons against the appointment
of two counsel are stated in the record.”  Acts of 1995, 74th
Leg., R.S., ch. 319, § 2, 1995 Tex.Gen.Laws
319 (amended 2009) (current version at Tex. Code Crim. Proc. Ann. art. 26.052(e)) (emphasis
added).  Thus, even were we to assume
that Dominguez was appointed only one attorney to represent him in his capital
murder trial where the State sought the death penalty, Dominguez’s failure to
provide the record from that trial precludes this Court from determining
whether the trial court stated reasons against the appointment of two attorneys
in the record.
 


[2]Further citation of Texas Rules of
Appellate Procedure will be by reference to ARule __.@


