L. Diane Wells v. Joe McCurry--Appeal from 33rd District Court of Burnet CountyDISMISSED ON APPELLANT'S MOTION: (Before Chief Justice Law, Justices Pemberton and Waldrop)

L. Diane Wells v. Joe McCurry--Appeal from 33rd District Court of Burnet County
FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
NO. 30240-A, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant L. Diane Wells has filed a motion to dismiss her appeal. See Tex. R. App. P. 42.1(a)(1). We grant the motion and dismiss the appeal. See id.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed on Appellant's Motion
Filed: July 2, 2008

Joint Agreed Motion to Dismiss ends appeal

M E M O R A N D U M O P I N I O N
The parties to this case have filed a joint agreed motion to dismiss the appeal based on a settlement. See Tex. R. App. P. 42.1(a). The motion informs the Court that an order entered by the Commissioner of Insurance on May 12, 2008, has resolved the dispute. We grant the motion and dismiss the appeal. Id.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed on Joint Motion
Filed: May 28, 2008

DISMISSED ON JOINT MOTION: (Before Chief Justice Law, Justices Pemberton and Waldrop)

Allstate Texas Lloyd's v. Texas Department of Insurance; Mike Geeslin, as Commissioner of Insurance; and Office of Public Insurance Counsel--Appeal from 53rd District Court of Travis County

Two-line opinion granting dismissal issued

M E M O R A N D U M O P I N I O N
Appellant Gracelyn Faith Drake has filed a motion to dismiss her appeal. See Tex. R. App. P. 42.1(a)(1). We grant the motion and dismiss the appeal. See id.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed on Appellant's Motion
Filed: May 28, 2008
DISMISSED ON APPELLANT'S MOTION: (Before Chief Justice Law, Justices Pemberton and Waldrop)

Gracelyn Faith Drake v. Austin Surgical Hospital; Frosty D. R. Moore, M.D.; and Everett Brew Houston, M.D.--Appeal from 353rd District Court of Travis County

Howard v. Harris County Hospital District and TWCC, No. (Tex. App. - Austin, Mar. 12, 2008)() (Before Chief Justice Law, Justices Pemberton and Waldrop)
Appeal from 53rd District Court of Travis County

M E M O R A N D U M O P I N I O N

Andre Joel Howard filed a notice of appeal on February 7, 2008. He has perfected appeal from his "Motion to Extend Time to File Motion to Reconsider Mandate Motion to Amend Plaintiff's Motion to Appeal Motion to Reinstate." An appeal lies only from a final judgment or appealable interlocutory order. Lehmann v. Har-Con Corp., 988 S.W.2d 415, 417 (Tex. 2001) (final judgment); Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West Supp. 2007) (categories of appealable interlocutory orders). Appellant's previous appeal in the same underlying cause was dismissed by this Court for want of jurisdiction because he attempted to appeal orders that were not subject to appeal. See Howard v. Harris County Hosp. Dist., No. 03-06-00488-CV, slip. op. (Tex. App.--Austin Sept. 7, 2006). His motion to reinstate the appeal was denied by this Court. The Texas Supreme Court denied his petition for review. Howard v. Harris County Hosp. Dist., No. 07-330, 2007 Tex. LEXIS 571, *1 (Tex. 2007). The time has long since passed for any further review of this Court's dismissal of his previous attempted appeal. The order from which he now attempts to appeal is not appealable. (1)
We dismiss the appeal for want of jurisdiction. (2) See Tex. R. App. P. 42.3(a).
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Dismissed for Want of Jurisdiction
Filed: March 12, 2008
1. Of course, given that his appeals have been dismissed for lack of an appealable order, his case remains pending in the trial court.
2. Appellant's pending motion to proceed as an indigent is dismissed.

DISMISSED ON JOINT MOTION: Opinion by Chief Justice Law (Before Chief Justice Law, Justices Puryear and Waldrop)

Appellant, New Braunfels Aero Service, Inc.// Cross-Appellant, City of New Braunfels, Texas v. Appellee, City of New Braunfels, Texas// Cross-Appellee, New Braunfels Aero Service, Inc.--Appeal from 274th District Court of Comal County
FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
NO. C2003-0468C, HONORABLE RONALD G. CARR, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant/cross-appellee New Braunfels Aero Service, Inc., and appellee/cross- appellant City of New Braunfels, Texas, no longer wish to pursue this appeal and have filed a joint motion to dismiss pursuant to their settlement agreement. We grant the motion and dismiss the appeal. Tex. R. App. P. 42.1(a).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Waldrop
Dismissed on Joint Motion
Filed: February 28, 2008

New punishment hearing ordered in drug case

Marihuana offense - partial reversal of sentence.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART: Opinion by Chief Justice Law (Before Chief Justice Law, Justices Pemberton and Waldrop)

James Alan Davenport v. The State of Texas
Appeal from 33rd District Court of Llano County

M E M O R A N D U M O P I N I O N

A jury found appellant James Alan Davenport guilty of delivering more than four ounces but less than five pounds of marihuana, a state jail felony. See Tex. Health & Safety Code Ann. § 481.120(a), (b)(3) (West 2003). After finding that appellant had two previous felony convictions, the jury assessed his punishment at twenty years' imprisonment. See Tex. Penal Code Ann. § 12.42(a)(2) (West Supp. 2007). I

n his only point of error, appellant contends that the State's evidence was legally insufficient with regard to the previous convictions used to enhance punishment. We sustain the point of error, reverse the district court's judgment, and remand the cause for a new punishment hearing.

To enhance punishment, the indictment alleged that appellant had been convicted on June 30, 1994, in the Superior Court of Floyd County, Indiana, cause number 22D01-9309-CF-146, for criminal deviate conduct, and on June 27, 1985, in the Circuit Court of Washington County, Indiana, cause number 85-CR-34, for escape. To prove these allegations, the State introduced an exhibit containing certified copies of Indiana court records. The exhibit contains: (1) an abstract of judgment in cause number 85-CR-34 showing that on June 27, 1985, appellant was sentenced to two years in prison with 129 days of confinement credit; (2) a certificate of final discharge showing that he completed his sentence in cause number 85-CR-34 on February 13, 1987; and (3) an abstract of judgment in cause number 22D01-9309-CF-146 showing that on June 30, 1994, appellant was sentenced to ten years in prison, seven of which were suspended, with 274 days of confinement credit. (1)

Under section 12.42(a)(2), the State was required to prove that the offense for which appellant was convicted in 1994 was committed after the 1985 conviction became final. Id. There is nothing in the record to indicate that appellant appealed his 1985 escape conviction, and we may presume that the conviction was final as of the date of sentencing. Johnson v. State, 784 S.W.2d 413, 414 (Tex. Crim. App. 1990). However, the 1994 abstract of judgment does not state when the deviate conduct offense for which appellant was convicted in that cause was committed, nor is there any other evidence showing the date of that offense. Appellant, therefore, argues that the State failed to prove the necessary sequence of convictions and offenses required for habitual offender enhancement.

The State responds, without citation of authority, that because appellant was given 274 days of time credit, the jury could infer that the offense for which he was convicted in cause number 22D01-9309-CF-146 was committed 274 days before he was sentenced, which would be long after the conviction in cause number 85-CR-34 became final. But the time credit merely shows that appellant was in custody for 274 days before he was sentenced. There is no evidence from which the jury could rationally conclude that appellant was taken into custody on the day the offense was committed, or that the 274 days of custody immediately preceded the date of sentencing.

The State further argues that "the jury might decide that the length of time between the judgments was proof that the second prior offense was committed after the first prior conviction became final." In other words, the State asserts that because there was a nine-year gap between appellant's two Indiana convictions, the jury could infer that the offense for which he was convicted in 1994 was committed after the 1985 conviction became final. Once again, the State does not cite authority for this assertion.

The time between the two previous convictions might serve to prove the necessary sequence of events had the State introduced a file-marked copy of the indictment in cause number 22D01-9309-CF-146 or otherwise proved when the indictment in that cause was filed. If the evidence showed that the time between appellant's conviction in cause number 85-CR-34 and the filing of the indictment in cause number 22D01-9309-CF-146 exceeded the limitations period applicable to the offense in the latter cause, it could be inferred that the later offense was committed after the earlier conviction became final. See Ex parte Girnus, 640 S.W.2d 619, 621 (Tex. Crim. App. 1982). (2) But the statute of limitations cannot be employed without knowing when the indictment in cause number 22D01-9309-CF-146 was filed. Ex parte Benavidez, 696 S.W.2d 582, 583 (Tex. Crim. App. 1985). Moreover, the trial court's jury charge did not include the necessary instructions regarding the statute of limitations. See Ex parte Klasing, 738 S.W.2d 648, 650 (Tex. Crim. App. 1987).

The State failed to prove that the offense for which appellant was convicted in cause number 22D01-9309-CF-146 was committed after the conviction in cause number 85-CR-34 became final. See Benavidez, 696 S.W.2d at 583. Because the error relates only to the punishment assessed, we affirm the district court's judgment as to the finding of guilt, reverse that part of the judgment imposing sentence, and remand the cause for a new trial on punishment. See Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 2007).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed in part; Reversed and Remanded in part
Filed: February 27, 2008
Do Not Publish

1. The exhibit also contained physical description and fingerprint cards relating to both convictions. Appellant's identity as the person convicted is not at issue.
2. Girnus and the other opinions cited in this paragraph involve the habitual offender provision found in penal code section 12.42(d). Tex. Penal Code Ann. § 12.42(d) (West Supp. 2007). Section 12.42(a)(2) and section 12.42(d) are substantially identical except that the former applies in prosecutions for state jail felonies while the latter applies in prosecutions for all other felonies.

DWOP Opinion in Tx. DFPS case by Justice Ken Law

Fontenot vs. Texas Department of Family and Protective Services, No. (Tex.App.- Austin, Feb. 8, 2008)(Ken Law) (DFPS, TDFPS, CPS, child protection)
Arlene Fontenot and Robert Fontenot v. Texas Department of Family and Protective Services
Appeal from 33rd District Court of San Saba County

FROM THE DISTRICT COURT OF SAN SABA COUNTY, 33RD JUDICIAL DISTRICT
NO. 8661, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellants Arlene Fontenot and Robert Fontenot filed a notice of appeal on December 18, 2007. The district clerk notified this Court that appellants have neither paid, nor made payment arrangements for the clerk's record. By letter of January 15, 2008, this Court notified appellants that they needed to submit a status report concerning the appeal by January 25, 2008, or the appeal would be dismissed for want of prosecution. See Tex. R. App. P. 37.3(d). To date, appellants have not responded. Accordingly, we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).

W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop

Dismissed for Want of Prosecution
Filed: February 8, 2008

Settlement agreement moots appeal

DISMISSED ON JOINT MOTION: Opinion by Chief Justice Law (Before Chief Justice Law, Justices Puryear and Henson)

Ray Himel, Individually; RNL, Inc.; and Gulf Coast Boats, Inc. v. Ronnie Bertagna and Dorothy Bertagna--Appeal from 22nd District Court of Hays County

Appellants Ray Himel, Individually; RNL, Inc.; and Gulf Coast Boats, Inc., and appellees Ronnie Bertagna and Dorothy Bertagna no longer wish to pursue this appeal and have filed a joint motion to dismiss pursuant to their settlement agreement. We grant the motion and dismiss the appeal. Tex. R. App. P. 42.1(a).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Puryear and Henson
Dismissed on Joint Motion
Filed: January 29, 2008

Chief Justice Law gives appellate attorney (and client) another chance, abates appeal

ABATED: Opinion by Chief Justice Law (Before Chief Justice Law, Justices Pemberton and Waldrop)

Bennie Paul Rangel v. The State of Texas
Appeal from 26th District Court of Williamson County

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
NO. 06-819-K26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant's brief was due November 5, 2007. Appellant's retained attorney, David Aaron Pina, did not respond to the Court's notice that the brief is overdue.

The appeal is abated. The trial court shall conduct a hearing to determine whether appellant desires to prosecute this appeal, whether appellant is indigent, and, if he is not indigent, whether retained counsel has abandoned the appeal. Tex. R. App. P. 38.8(b)(2). The court shall make appropriate findings and recommendations. A record from this hearing, including copies of all findings and orders and a transcription of the court reporter's notes, shall be forwarded to the clerk of the Court for filing as a supplemental record no later than February 29, 2008. Tex. R. App. P. 38.8(b)(3).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Abated
Filed: January 29, 2008
Do Not Publish

Chief Justice Ken Law disposes of Mandamus in one-sentence opinion

Comment: Other appellate courts in the state explain why mandamus is denied, or at least what kind of relief was sought against a trial court judge. There appear to be differing concepts of judicial efficiency and of the need to explain - to litigants, to lawyers, and to the public at large - why appellate courts rule the way they do.

January 23, 2008

Civil Causes Decided:
MOTION OR WRIT DENIED: Opinion by Chief Justice Law (Before Chief Justice Law, Justices Pemberton and Waldrop)

In re Charles Anderson Gunn
Appeal from 147th District Court of Travis County

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

M E M O R A N D U M O P I N I O N

The petition for writ of mandamus is denied. See Tex. R. App. P. 52.8(a).
__________________________________________
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Filed: January 23, 2008