IN RE: Anthony M. FISCH.

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Court of Appeals of Texas,Houston (1st Dist.).

IN RE: Anthony M. FISCH.

No. 01-02-00494-CR.

Decided: January 30, 2003

Panel consists of Chief Justice RADACK, and Justices NUCHIA and HANKS. Anthony Fisch, Houston, pro se. Charles A. Rosenthal, Jr., Dist. Atty., Harris County, William J. Delmore, III, Chief Pros., Appellate Division, Houston, for Appellee.

ORDER OF CONTEMPT AND WRIT OF COMMITMENT

On July 3, 2002, we notified appellant's retained counsel, Anthony M. Fisch, that the reporter's record was past due.   We also ordered that, unless by July 29, 2002, appellant filed in this Court:  (1) the reporter's record, (2) proof that the court reporter had been paid or payment arrangements made, or (3) a motion to abate the appeal for an indigency hearing, the appeal would be considered without a reporter's record.   We further ordered appellant's brief due on August 28, 2002.   We received no response from Fisch.

Therefore, on September 13, 2002, we ordered Anthony M. Fisch to file in this Court a brief no later than 5:00 p.m. on November 14, 2002.   We further ordered on September 13, 2002, that, if Anthony M. Fisch did not deliver appellant's brief to the Clerk of this Court on or before November 14, 2002 at 5:00 p.m., then he must personally deliver to the Clerk of this Court by that same date and time a sworn affidavit and, if necessary, the affidavits of other persons, stating facts that deny or excuse Fisch from being held in contempt of court for failing to timely file the brief, if there were any such facts.   We further ordered that our September 13, 2002 order be personally served on Anthony M. Fisch.   However, the order was not personally served on Anthony M. Fisch.

Therefore, on November 27, 2002, we ordered Anthony M. Fisch to deliver to the Clerk of this Court for filing a brief in cause No. 01-02-00494-CR no later than 5:00 p.m. on January 24, 2003.   We further ordered that if the said Anthony M. Fisch did not deliver appellant's brief to the Clerk of the First Court of Appeals on or before January 24, 2003 at 5:00 p.m., then Anthony M. Fisch was ordered to personally deliver to the Clerk of this Court a sworn affidavit and, if necessary, the affidavits of other persons, no later than 5:00 p.m. on January 24, 2003.   The affidavit(s) were to state facts denying or excusing Anthony M. Fisch from being held in contempt of court for failing to file appellant's brief on or before January 24, 2003 at 5:00 p.m., if there were any such facts.

We further ordered that our November 27, 2002 order be personally served on Anthony M. Fisch.   The November 27, 2002 order was personally served on Anthony M. Fisch on December 6, 2002.   Nevertheless, Anthony M. Fisch has not filed appellant's brief, and has not filed either his affidavit or the affidavits of others setting out facts denying or excusing the contempt.

On January 21, 2003, Fisch filed in this Court a motion for extension of time to file appellant's brief to February 11, 2003.   It is not an affidavit.   In addition, on that same date, we received from the court reporter a single-volume reporter's record and a motion for extension of time to file it.   We note that the motion states that full payment for the record was not made until January 21, 2003.

The motions for extension of time to file appellant's brief and the reporter's record are DENIED.   The reporter's record submitted on January 21, 2003 is ordered “received” only.

We find that the said Anthony M. Fisch, has failed to comply with the ORDER TO FILE BRIEF OR TO SHOW CAUSE dated November 27, 2002. The Court specifically finds that Anthony M. Fisch is in contempt for violating this Court's order of November 27, 2002.

NOW, THEREFORE IT IS ORDERED, ADJUDGED AND DECREED by the Court of Appeals, First District of Texas, that the same Anthony M. Fisch, shall be fined in the amount of $500 payable to the Clerk of the Court of Appeals, First District of Texas, on or before 3:00 p.m. on February 6, 2003, and that punishment be assessed at confinement in the Harris County jail until such time as he has filed a brief on appellant's behalf in cause number 01-02-00494-CR, styled Orlando Ortiz v. State, as certified to by the Clerk of the First Court of Appeals.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that if the said Anthony M. Fisch fails to pay the $500 fine ordered by the Court in this cause to the Clerk of the Court of Appeals, First District of Texas, on or before 3:00 p.m. on February 6, 2003, then the said Anthony M. Fisch shall be taken into the custody of the Harris County Sheriff until he has paid the $500 fine, or until he has been confined in the Harris County jail for a sufficient length of time to discharge the full amount of the $500 fine at the daily rate allowed for prisoners serving misdemeanor sentences.

IT IS ORDERED that all writs and other process necessary for the enforcement of this judgment be issued.

IT IS FURTHER ORDERED that this Order of Contempt and Writ of Commitment be personally served on Anthony M. Fisch.

IT IS FURTHER ORDERED that the Clerk of this Court mail a copy of this Order of Contempt and Writ of Commitment to the State Bar of Texas Grievance Committee, 1111 Fannin, Houston, Texas, 77002.

IT IS SO ORDERED.

PER CURIAM.

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