                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00157-CR


JAMES MARK BAKER                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                     STATE


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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1303114D

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             MEMORANDUM OPINION AND JUDGMENT1

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      Appellant James Mark Baker appealed his conviction and four-year

sentence for the offense of aggravated assault with a deadly weapon. Appellant

subsequently filed a motion in which he requested, among other relief, to

withdraw his appeal. We grant his motion to dismiss his appeal.




      1
      See Tex. R. App. P. 47.4.
                            Procedural Background

      On February 24, 2014, Appellant entered an open plea of guilty to the

offense of aggravated assault with a deadly weapon.              A “Presentence

Investigation Report” was prepared and, at the April 14, 2014, sentencing

hearing, Appellant asked for deferred adjudication. The trial court, however, took

a different tack, found Appellant guilty, and sentenced him to imprisonment for

four years.

      On April 21, 2014, Appellant filed a pro se notice of appeal. The trial court

appointed Ronald Couch as appellate counsel on May 1, 2014.              Appellant

subsequently, on May 9, 2014, filed a motion to dismiss his appointed counsel

and, effectively, to proceed pro se.2 On May 12, 2014, this court abated the

appeal to have the trial court determine if Appellant wanted to proceed pro se

and, if so, to admonish him of the dangers and disadvantages of self-

representation in accordance with Faretta v. California, 422 U.S. 806, 835, 95

S. Ct. 2525, 2541 (1975), and Hubbard v. State, 739 S.W.2d 341, 345 (Tex.

Crim. App. 1987). The trial court conducted a hearing on May 19, 2014, and the

reporter’s record of that hearing was filed in this court on June 10, 2014. On

June 18, 2014, this court granted Appellant’s motion to dismiss appointed

counsel and allowed Appellant to proceed pro se in his appeal.


      2
       Appellant filed an identical motion on May 13, 2014.


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      Meanwhile, Appellant had other post-trial activity in the trial court. The trial

court awarded Appellant credit for time served, and the judgment reflects credit

from October 28, 2012, until April 14, 2014. Appellant filed on May 30, 2014, and

again on June 9, 2014, a “Motion to Enter Nunc Pro Tunc Order” in which he

maintained he was entitled to 533 days of credit. The State filed a response in

which it asserted that the time from October 28, 2012, until April 14, 2014, added

up to 533 days; therefore, it asked the trial court to deny Appellant’s motion for

nunc pro tunc relief.3 By our count, this adds up to 533 days as well.

      On May 22, 2014, more than thirty days after he was sentenced, Appellant

filed in the trial court “Appellant[’]s Trial Brief Specifying Error of Which Appellant

Complains on Appeal.” Even if this document were construed as a motion for

new trial, it would be untimely. A defendant must file a motion for new trial within

thirty days of the sentence. Tex. R. App. P. 21.4(a).

      Back in the appellate court, the reporter’s record was filed on June 26,

2014, and the clerk’s record was filed on July 17, 2014. Also on July 17, 2014,

Appellant filed a pro se brief, which was simply a copy of “Appellant[’]s Trial Brief

Specifying Error of Which Appellant Complains on Appeal.” In this document,

      3
       By the time this opinion issues, Appellant will have over twenty-five
months of credit for time served. See Tex. Gov’t Code Ann. § 508.145(d)(1)
(West Supp. 2014) (setting out parole eligibility). The three 2013 amendments to
this section do not affect this case. Act of May 23, 2013, 83rd Leg., R.S., ch.
1252, § 13, 2013 Tex. Sess. Law Serv. 3168, 3170; Act of May 25, 2013, 83rd
Leg., R.S., ch. 1325, § 2, 2013 Tex. Sess. Law Serv. 3516, 3517; Act of May 9,
2013, 83rd Leg., R.S., ch. 126, § 2, 2013 Tex. Sess. Law Serv. 522, 523.




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Appellant alleged: (1) the plea agreement was breached because trial counsel

told him he would receive probation if he made an open plea; (2) the trial court

erred by refusing to give Appellant a hearing on several pro se pretrial motions

Appellant had filed concerning his trial counsel’s professional misconduct; (3) trial

counsel was ineffective because he did not file any motions on Appellant’s

behalf, did not investigate Appellant’s case, and did not give Appellant correct

legal advice, and (4) the police used unjustifiable force when shooting him

because he never threatened the officer. Appellant concluded his punishment

was invalid and, therefore, the judgment should be reversed and the matter

remanded to the trial court for a new punishment hearing at which he should be

given probation. On July 22, 2014, this court sent Appellant a letter informing

him his brief did not comply with numerous rules of the Texas Rules of Appellate

Procedure and instructing Appellant to file an amended brief by August 21, 2014.

      On August 4, 2014, Appellant filed a letter in this court acknowledging he

had received a copy of the clerk’s record and reporter’s record but stating that he

had discovered the reporter’s record was missing the “Presentence Investigation

Report.” Appellant requested the “Presentence Investigation Report” so he could

include it in an amended brief. On August 22, 2014, this court issued an order in

which it construed Appellant’s August 4, 2014, letter as a motion requesting the

“Presentence Investigation Report” and granted it. In the same order, this court

stated it was delivering a redacted copy of the “Presentence Investigation

Report” to Appellant. This order also instructed Appellant to return the redacted


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“Presentence Investigation Report” to this court by October 20, 2014. Appellant

returned the document October 15, 2014.

      On September 5, 2014, this court sent Appellant a letter in which it noted

Appellant’s amended brief was due August 21, 2014, and had not been filed.

This court further informed Appellant that unless he filed a motion to extend time

to file his amended brief by September 19, 2014, his appeal would be submitted

without briefs only for fundamental error pursuant to rule 38.8(b)(4) of the Texas

Rules of Appellate Procedure. On September 19, 2014, Appellant filed a motion

to extend time. On September 23, 2014, this court granted Appellant’s motion

and extended the time to file Appellant’s amended brief until November 17, 2014.

      On October 2, 2014, Appellant filed another motion to extend time to file

his brief.   Appellant wanted the “Investigator Report” before finishing his

amended brief. On October 7, 2014, this court denied Appellant’s motion to

extend time to file his amended brief as moot because this court’s September 23,

2014 order already granted Appellant an extension until November 17, 2014. In

the same order, this court denied Appellant’s request for an “Investigator Report”

because Appellant had already received a complete clerk’s record and reporter’s

record.

      On October 17, 2014, Appellant filed a separate request for the

“Investigator Report.” On October 22, 2014, this court denied his request.




                                        5
                        The Motion under Consideration

      On November 14, 2014, Appellant filed a document in which he states: “I

would like to withdraw my Direct Appeal.” In the same paragraph of the same

document, Appellant states: “Please suspend my Direct Appeal (Tex. R. App. P.

2) until I can afford a[n] appe[llate] attorney and have legal advi[c]e.” Appellant

further states: “I do not want a[n] appointed appe[llate] attorney. I do not want

the 2nd Appe[llate] Court to proceed on fundamental error under Tex. R. App. P.

38.8(b)(4).”   Finally, Appellant again requests the “Investigator Report.”    We

construe this document as a motion, as Appellant requests relief of various sorts.

      We again deny Appellant’s request for the “Investigator Report.” Appellant

does not show where this document was admitted as evidence at either his plea

hearing or his punishment hearing.      Our review of the plea and punishment

hearings does not show that an “Investigator Report” was admitted. We cannot

consider new evidence on appeal. Belachheb v. State, 699 S.W.2d 709, 711

(Tex. App.—Fort Worth 1985, pet. ref’d).

      We deny Appellant’s request to abate his appeal until such time as he is

able to hire an attorney under rule 2. See Tex. R. App. P. 2. Rule 2 requires

good cause, and Appellant has not shown good cause. See id. There is no

showing of when, if ever, Appellant would be able to hire appellate counsel. On

November 26, 2012, Appellant filed an affidavit of indigence and was appointed

trial counsel. Appellant has provided us with no reason to believe his financial

situation has improved while he has been incarcerated over the last twenty-five


                                        6
months. The trial court provided Appellant with appointed counsel, but Appellant

successfully had his appointed counsel removed.            In the motion under

consideration, Appellant still refuses the appointment of appellate counsel.

Appellant has a constitutional right to proceed pro se. Robinson v. State, 387

S.W.3d 815, 820 (Tex. App.—Eastland 2012, no pet.) (citing Faretta, 422 U.S. at

821, 95 S. Ct. at 2534). We will respect his election.

      In his motion, Appellant stated he did not want his appeal submitted

without briefs for fundamental error as permitted under rule 38.8(b)(4). Tex. R.

App. P. 38.8(b)(4). We grant Appellant’s request not to submit his appeal without

briefs pursuant to rule 38.8(b)(4).

      We construe Appellant’s request to “withdraw his appeal” as a motion to

dismiss, grant his motion, and dismiss his appeal.       Tex. R. App. P. 42.2(a).

Appellant has fifteen days from the issuance of this opinion to file a motion for

rehearing. Tex. R. App. P. 9.2, 49.1.

                                      Conclusion

      Having ruled on all the relief requested by Appellant in his November 14,

2014 motion, we dismiss his appeal. See Tex. R. App. P. 42.2(a), 43.2(f).

                                                   PER CURIAM

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 11, 2014



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