ALBERT ACEVEDO, JR. v. THE STATE OF TEXAS--Appeal from County Court at Law No 1 of Victoria County

NUMBER 13-05-222-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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ALBERT ACEVEDO, JR., Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from County Court at Law No. 1

of Victoria County, Texas.

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MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion Per Curiam

Attorney, Albert Acevedo, Jr., attempts to appeal an order of the trial court holding him in contempt, imposing a $3,000 fine, and assessing ten days of confinement in the Victoria County Jail. We dismiss the appeal for want of jurisdiction.

The trial court s judgment of contempt states that appellant was held in contempt for his contumacious failure to appear on behalf of his client and his failure to appear at his own contempt hearing. According to the trial court s findings, appellant, who represented the defendant in a criminal case, waived arraignment on behalf of his client on December 1, 2004. The case was set for announcements on January 19, 2005. On that date, appellant telephoned the trial court and requested a continuance of the case. The trial court requested that appellant provide a date certain for appearance in the criminal case. Appellant assured the court that he could appear for announcements on February 9, 2005.

On February 9, 2005, appellant failed to appear for announcements, although he attempted to file a motion for continuance by facsimile with the Victoria County Clerk. The clerk was not, however, apparently authorized to accept filings by facsimile.

On February 10, 2005, the trial court issued a show-cause citation for contempt which was served on appellant on February 16, 2005. Appellant timely appeared at the show-cause hearing on February 23, 2005 and moved to recuse the sitting judge of the county court at law. The Presiding Judge of the Fourth Administrative Judicial Region assigned a judge to hear the recusal. The show-cause hearing was rescheduled for March 24, 2005.

On the morning of the show-cause hearing, Acevedo contacted the court and indicated that he could not appear at the show-cause hearing due to a conflicting trial setting. The assigned judge held the show-cause hearing in Acevedo s absence and entered the order of contempt at issue in this attempted appeal.

On April 7, 2005, the Clerk of this Court notified appellant that it did not appear that the order subject to appeal was an appealable order, and requested correction of the defect, if it could be done. Appellant was advised that, if the defect were not corrected within ten days from the date of receipt of this notice, the appeal would be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3. To date, appellant has failed to respond to the Court's notice.

The validity of a contempt order cannot be attacked by direct appeal. See Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985); Ex parte Williams, 690 S.W.2d 243, 243 n.1 (Tex. 1985). Contempt orders must be reviewed by an application for writ of habeas corpus, if the contemnor has been confined, or by a petition for writ of mandamus, if the contemnor has not been confined. Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); Ex parte Casillas, 25 S.W.3d 296, 297 n.1 (Tex. App. San Antonio 2000, orig. proceeding).

Because we do not have jurisdiction to consider appellant s complaints regarding the contempt order by appeal, we DISMISS this appeal for lack of jurisdiction. In the event appellant chooses to file an original proceeding regarding this order, see generally Tex. R. App. P. 52, this Court will entertain a motion to transfer any properly filed records from this appeal to the newly filed original proceeding.

PER CURIAM

Do not publish.

Tex. R. App. P. 47.2(b).

Opinion delivered and filed this

the 12th day of May, 2005.