Armando MARROQUIN, Appellant, v. STATE of Texas, Appellee, 652 S.W.2d 429

OPINION PER CURIAM. This is an appeal from a conviction for aggravated assault under Penal Code

Section 22.02(a)(2). The indictment alleges that the offense occurred on or about November 27, 1980. Appellant is represented on appeal by his retained counsel Mr. Hector Azios of Harris County. Punishment was set by a jury at 7 years with a $3000 fine. On March 15, 1982, appellant gave notice of appeal following imposition of sentence. On March 22, 1982, appellant was released from custody on a $5000 appeal bond.

Article 40.09(5), Texas Code of Criminal Procedure (Vernon Supp.1982-83), provides that if a party to the appeal desires to have all or any portion of a transcription of the court reporter’s notes included in the record, he “shall ” so designate with the clerk in writing and within the time required by

Section 2 of

Article 40.09. That

section provides that appellant “shall ” file his designation specifying matters of inclusion in the record within 20 days after the giving of notice of appeal. We find no designation from appellant in the record and presume none was filed.

On May 6, 1982, the 52nd day after the giving of notice of appeal, a motion was filed in the trial court signed by appellant and his attorney, the pertinent part of which reads as follows: “Petitioner has been informed that a statement of facts in the case would cost approximately three thousand dollars and the sum of two thousand five hundred dollars would be required for legal fees.

Petitioner attaches a pauper’s oath to this petition and because time is of the essence, a hearing before this Honorable Court is prayed, at the earliest date convenient with the Court’s docket to determine his indigency and prays for an order to furnish statement of facts in question and answer form from the court’s reporter and for appointment of attorney on appeal.” The material part of the pauper’s oath reads: “Now comes Armando Marroquin, defendant in the above styled and numbered cause, and respectfully petitions the Court to appoint counsel to represent him in said felony cause and would show to the Court that he is too poor to employ counsel on appeal.

Defendant further states under oath that defendant is without funds, property or sufficient income; that because of his poverty he is unable to pay for a transcript of the evidence which is necessary to be filed with the Court of Criminal Appeals of the State of Texas; Wherefore, he prays that the Court appoint counsel to represent him on appeal and that the Court direct the Court Reporter to prepare a statement of facts, as provided by law, in question and answer form, for use on appeal.”

Article 40.09(3), Texas Code of Criminal Procedure (Vernon Supp.1982-83), provides that a statement of facts applicable to any proceeding occurring before notice of appeal “shall’’ be filed with the clerk for inclusion in the record not later than 60 days after notice of appeal.

Article 40.09(13), Texas Code of Criminal Procedure (Vernon Supp.1982-83), provides that extensions for time for meeting the limits prescribed by

Section 3 for either the appellant or the State “may be granted ” by the appellate court in which the case will be filed or a judge thereof for good cause shown on timely application to the appellate court. Rule 6, Texas Criminal Appellate Rules, as amended February 1,1982, provides that all motions for extension of time “shall ” be filed before the deadline for the filing of the item in question. The deadline for filing the statement of facts was May 14, 1982. On or before that date, no motion was filed to extend that deadline pending the outcome of the indigency hearing.

On May 24, 1982, the trial court held a hearing on appellant’s indigency motion. After the hearing, the motion was denied. On May 26, 1982, the Court of Appeals received a copy of the order from the indi-gency hearing which reads as follows: “ORDER On this the 24th day of May, A.D., 1982, came on to be heard the Motion of Petitioner, Armando Marroquin, to be declared an indigent and have the Court appoint him an attorney for his appeal, at public expense, as well as his motion for the cost of the statement of facts to be provided at public expense.

This cause Was called for trial and the State appeared by her District Attorney, Robert E. Bell, and the Petitioner, Armando Marroquin, appeared in person along with his attorney of record, Mr. Hector Azios. At the close of the evidence and arguments, the Court found and it appear to the Court that said motion shall in all things be denied. It is therefore ordered, adjudged and decreed that Petitioner’s motions be denied and that Petitioner not be declared an indigent, and further, that Petitioner not receive a statement of facts or an attorney for appeal at public expense.

It is so ordered this the 25th day of May, A.D., 1982. Judge Marion M. Lewis” • On June 24,1982, appellant filed a motion to extend the deadline for filing the statement of facts from the indigency hearing to August 1, 1982. On June 30, 1982, the statement of facts from the indigency hearing was received by the Court of Appeals from the court reporter. Appellant’s motion for extension of time was granted on August 26, 1982, with instructions to the clerk to mark the statement of facts filed as of the day of its receipt, June 30, 1982. On June 3, 1982, the district clerk mailed Mr.

Azios a notice of completion of the record. No objections to the record were filed. The notice of completion letter made specific mention that the record did not contain a statement of facts. No motions were filed in this Court requesting to extend the deadline for filing statement of facts. On June 21, 1982, notice of approval of the record was mailed to Mr. Azios. On June 25, 1982, the record, without a statement of facts, was filed in the Court of Appeals. On June 30, 1982, the statement of facts from the May 24 indigency hearing was received and filed in the Court of Appeals.

Appellant’s brief was due in the Court of Appeals within 30 days after the mailing of the notice of approval of the record, that is, on July 21, 1982. Art. 40.09(8), (9), Texas Code of Criminal Procedure (Vernon Supp. 1982-83). That day came and passed, and no brief was filed. No motions for extension of time were filed on or before July 21, 1982. On September 9, 1982, the Court of Appeals made the following order which was served on Mr. Azios by certified mail: “ORDER TO PILE BRIEF This case is on appeal from a conviction for aggravated assault. The record was filed in this Court on June 25, 1982.

No brief for the appellant has been filed within the time limits prescribed by

Article 40.09(9), Texas Code of Criminal Procedure. It is therefore ORDERED that appellant’s counsel of record, the Honorable Hector R. Azios, shall file a brief in this Court in appellant’s behalf on or before September 24, 1982. The State shall file its brief with this Court within 15 days after appellant files his brief. PER CURIAM” (emphasis supplied) The return receipt shows that Mr. Azios received the order on September 10, 1982. September 24, 1982, came and passed with no brief being filed. No motion for extension of time was filed either.

On October 4, 1982, a new motion to extend the deadline for filing the brief from September 24, 1982, until October 9, 1982, was filed by attorney Will Gray, acting for attorney Azios. We set out pertinent parts of that motion: “MOTION FOR EXTENSION OF TIME The appellant, on September 28, 1982, files his Motion for an extension of time in which to file the brief in support of his claim that the trial court erred in denying his motion to proceed as an indigent, thereby depriving him of the assistance of counsel and a trial statement of facts on appeal. The undersigned lawyer agreed to file a brief for Mr.

Hector Azios, appellant’s trial and appellate counsel, after this Court ordered such a brief filed by September 24, 1982. Mr. Azios paid the court reporter to transcribe the proceedings on Marroquin’s af'fidavit and motion of indigency at his own expense. It is not clear from the records furnished by Mr. Azios that notice of appeal was timely given in the trial court.

The trial judge stated at the indigency proceedings that: ‘a motion has been filed back on May 6th alleging that the movant defendant has given notice of appeal from the jury verdict and judgment entered back on March 15,1982, and a Pauper’s Oath is attached and is asking that a hearing be had on this matter concerning the defendant’s solvency at this time ... ’ The Clerk’s transcript of the trial proceedings has not been made available to present counsel and must be obtained from the Jackson County district clerk, in order that this information may be obtained.... 6.

The length of time requested for the extension is: fifteen (15) days, to and including October 9, 1982. 8. The facts relied upon to show good cause for the requested extension are: Attorney Azios has had little experience in filing appeals in criminal cases. Because of his inexperience, he has been unable to meet the deadline set by the Court for filing the brief. Will Gray has agreed to file the brief for Mr.

Azios and will do so as soon as he can obtain a copy of the transcript and determine whether or not notice of appeal was timely given, and, if it was not, to move this Court for leave to give out-of-time notice of appeal. Will Gray, on behalf of the appellant and Mr. Azios, requests an extension of time to and including the 9th day of October, 1982.” The motion for extension of time was granted, extending the brief deadline to October 9th. October 9th came and passed, and no brief was filed. On October 14, 1982, the following letter was sent to Mr. Gray: “Dear Mr.

Gray: The deadline for filing appellant’s brief in the above referenced case was October 9, 1982. The deadline has passed and no brief has been filed.

Article 40.09(2), Texas Code of Criminal Procedure (Vernon Supp.1982), provides that ‘Within 30 days after approval of the record by the court, the appellant shall file with the clerk of the appellate court the original and three copies of his appellate brief ... ’ Attorneys who fail to file briefs are subject to contempt powers of this Court, a possible finding that they have rendered ineffective assistance of counsel, and/or other sanctions for failing to comply with the mandatory requirements of this

Article and other rules relating to the filing of appellate briefs. The Court on its own motion has granted an additional 15 days from the date of this letter in which the appellant is to comply with this briefing requirement. This case is set for submission on November 18, 1982. Thereafter, the Court will proceed' to consider the appeal and/or take such other action as may be required by the circumstances.” Neither Mr. Gray nor Mr. Azios filed a brief as permitted in the latest extension of time granted by the Court. The case was submitted on November 18,1982, as ordered by the Court.

The appeal is before us on a transcript without a statement of facts from the trial on the merits and on a statement of facts of the trial court’s hearing on indigency. No brief was filed concerning the trial or the indigency hearing by either of appellant’s attorneys. We review the record that is before us, including the trial court’s findings that appellant was not indigent.

The evidence adduced at that hearing shows appellant’s net income after federal income and social security taxes to be $24,292 per year and his yearly cost for food, clothing, shelter, transportation, fuel, insurance and retail purchases for himself and family to be $15,600. Using these figures, appellant’s income after taxes exceeds his living expenses by over $8,500. The evidence amply supports the trial court’s findings that appellant was not indigent. We have carefully examined the entire transcript, including the indictment and the trial court’s charge, and find that each is free of fundamental error.

The judgment of the trial court is AFFIRMED. These two attorneys, Mr. Hector Az-ios and Mr. Will Gray, have made a mockery of the rules of criminal procedure and the orders of this Court. Their inaction has caused considerable delay in the appellate process of this particular case. Their inaction has unnecessarily taken up the time of this Court to the detriment of other pend-mg cases. Their inaction has cost the State of Texas considerable expense all because of the unwarranted delays attributed to the attorneys. This conduct will not be permitted by this Court.

Accordingly, it is ordered that attorney Will Gray and attorney Hector Azios shall, individually or jointly, file a motion for rehearing in this cause within 15 days after this date. See Rule 208, Texas Criminal Appellate Rules. Each attorney is further ordered to file a brief in support of the motion for rehearing.

ORDER TO SHOW CAUSE It is further ordered that attorney Hector Azios shall appear in person in the courtroom of the 13th Court of Appeals, Nueces County Courthouse, 901 Leopard, Corpus Christi, Texas, at 9 o’clock a.m. on Wednesday, January 19, 1983, before the Court en banc, to show cause why he should not be held in contempt of this Court for his failure to comply with the order of this Court in this cause dated September 9, 1982.

It is further ordered that attorney Will Gray of Simonton, Fort Bend County, Texas, is hereby ordered to appear in person before this Court sitting en banc on the 19th day of January, 1983, at 9:30 o’clock a.m. and explain his action and to receive from this Court such sanctions as the Court deems proper and necessary. The judgment of the trial court is AFFIRMED. APPENDIX (NUMBER 2609cr) NUMBER 13-82-108-CR COURT OF APPEALS THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS CORPUS CHRISTI * * * * * * IN RE HECTOR AZIOS * * * * ⅜ * Ancillary to Armando Marroquin v.

State of Texas Number 13-82-108-CR (# 2609cr) ****** ORDER TO SHOW CAUSE On June 21, 1982, notice of approval of the record in this cause was mailed to appellant’s retained counsel, Mr. Hector Azios, of Harris County, Texas. Appellant’s brief was due in the Court of Appeals within 30 days after the mailing of the notice of approval of the record, that is, on July 21, 1982. That day came and passed, and no brief was filed. No motions for extension of time were filed.

On September 9, 1982, the Court of Appeals made the following order which was served on Hector Azios by certified mail: “(NUMBER 2609) NUMBER 13-82-108-CR COURT OF APPEALS THIRTEENTH SUPREME JUDICIAL DISTRICT OF TEXAS CORPUS CHRISTI ****** ARMANDO MARROQUIN, Appellant, V. STATE OF TEXAS, Appellee. ****** On appeal from the 24th District Court of Jackson County, Texas. ****** ORDER TO FILE BRIEF This case is on appeal from a conviction for aggravated assault. The record was filed in this Court on June 25, 1982. No brief for the appellant has been filed within the time limits prescribed by

Article 40.09(9), Texas Code of Criminal Procedure. It is therefore ORDERED that appellant’s counsel of record, the Honorable Hector R. Azios, shall file a brief in this Court in appellant’s behalf on or before September 24, 1982. The State shall file its brief with this Court within 15 days after appellant files his brief. PER CURIAM ORDER delivered and filed this the 9th day of September, 1982.” The return receipt from that mailing shows that Mr. Azios received notice of the order on September 10, 1982. September 24, 1982, came and passed with no brief being filed or motion for extension of time was filed.

Hector Azios is in violation of the above order of September 9, 1982. It is therefore ordered that Hector Azios shall appear in person in the courtroom of this Court at 9 o’clock a.m. on Wednesday, January 19, 1983, to show cause why he should not be held in contempt of this Court. It is further ordered that the Clerk of this Court cause a certified copy of this order to be served on Hector Azios by certified mail, return receipt requested, with delivery restricted to addressee only or give other personal notice to Hector Azios of this Order with proof of delivery. PER CURIAM . See Appendix. .

Harold Emery Harmon v. State of Texas, 649 S.W.2d 93 (Tex.App. — Corpus Christi 1982, no writ).