Texas Department of Insurance, Division of Workers' Compensation, formerly known as Texas Workers' Compensation Commission v. Lumbermens Mutual Casualty Company; Petroleum Casualty Company; State Offi

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 2006 » Texas Department of Insurance, Division of Workers' Compensation, formerly known as Texas Workers' Compensation Commission v. Lumbermens Mutual Casualty Company; Petroleum Casualty Company; State Offi

State: Texas

Court: Texas Northern District Court

Docket No: 03-05-00785-CV

Case Date: 12/21/2006

Plaintiff: In Re: Gerardo Perez, Individually and as Next Friend

Defendant: Kimberly Nicole Perez and Gerardo Perez; Jr., Crystal Monique Deleon; and Maria Luisa Perez--Appeal

Preview:Eduardo Dominguez v. The State of Texas--Appeal
from 381st Judicial District Court of Starr County
No. 04-01-00680-CR
Eduardo DOMINGUEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 381st Judicial District Court, Starr County, Texas
Trial Court No. 00-CR-219
Honorable John A. Pope, III, Judge Presiding
PER CURIAM
Sitting: Phil Hardberger, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: October 30, 2002
APPEAL DISMISSED
On July 29, 2002, this court notified both the court reporter and the trial court clerk that the reporter's and clerk's
records were past due. Tex. R. App. P. 37.3(a)(2). The court reporter and the trial court clerk each responded to our
letter, explaining that the records have not been prepared and filed because appellant had failed to pay or make
arrangement to pay the fees for preparing the records and that appellant is not entitled to appeal without paying the fee.
Accordingly, we ordered appellant to provide this court with written proof that the fees had been paid or arrangements
had been made to pay the fees, or that he was entitled to appeal without paying the fees. We received no response.
However, on September 3, 2002, Lennard K. Whittaker, appellant's trial attorney, filed in this court an order signed on
November 16, 2001 granting his motion to withdraw as appellant's counsel. No new counsel was appointed.
Accordingly, pursuant to Duncan v. State, 653 S.W.2d 38, 40 (Tex. Crim. App. 1983) we abated this appeal to the trial
court and ordered the trial court to conduct a hearing to determine whether the appellant desired to prosecute his appeal
and to determine whether appellant is indigent. After conducting the hearing, the trial court clerk filed a supplemental
clerk's record, which contains the trial court's findings of fact and conclusions of law. It also contains an affidavit
made by the appellant in which he swears that he "no longer wish[es] to proceed with an appeal of [his] conviction."
The trial court ultimately concluded that appellant waived his right to an attorney and his right to an appeal.
Ordinarily, this court would consider this appeal without briefs and review the record for fundamental error. See Tex.
R. App. P.38.8(b)(4); Lott v. State, 874 S.W.2d 687, 688 (Tex. Crim. App.1994). However, because neither the clerk's
nor the reporter's record was filed, we are unable to conduct such a review. Accordingly, in light of the trial court's
findings and appellant's affidavit, this appeal is dismissed. See Tex. R. App. P. 2, 37.3(a)(2), 38.8(b)(4).
PER CURIAM
DO NOT PUBLISH
file:///C|/Users/Peter/Desktop/opinions/PDFs1/15517.html[8/20/2013 7:37:06 PM]

Download 15517.pdf