IN THE

TENTH COURT OF APPEALS

No. 10-96-106-CR

     HUSSAIN ABDUL-MALIK,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 14,124

OPINION ON

SUA SPONTE ABATEMENT OF APPEAL

      Hussain Abdul-Malik pled guilty to one count of retaliation and the court assessed the agreed punishment of eight years' incarceration, to run consecutively to the punishment for aggravated robbery for which he is currently imprisoned. Tex. Penal Code Ann. § 36.06 (Vernon 1994). He filed a notice of appeal shortly after the trial. Although the transcript was filed on June 3, no statement of facts followed. On September 20 our clerk notified him that the statement of facts had not been timely filed and that, absent a motion for an extension of time to file the statement of facts, we would consider the appeal on the transcript alone. Tex. R. App. P. 53(m). In the same letter, he was given thirty days to file the brief. No brief has yet been filed.

      Therefore, this appeal is abated and the trial court instructed to conduct a hearing to determine: (1) why a statement of facts has not been filed; (2) whether Abdul-Malik desires to proceed with the appeal; (3) whether Abdul-Malik is now indigent; and (4), if Abdul-Malik is not indigent, whether he has failed to make necessary arrangements for filing a brief. Id. 53(m), 74(l)(2), 83. If Abdul-Malik no longer wishes to pursue an appeal, he must sign and file a motion to dismiss, expressly requesting withdrawal of his notice of appeal and dismissal of this proceeding. Id. 59(b).

      If Abdul-Malik is indigent, the trial court shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel. Id. 53(m), 74(l)(2). However, if he desires to continue to proceed pro se, the trial court is directed to determine, on the record, his ability and capacity to knowingly and intelligently waive his right to counsel. Hathorn v. State, 848 S.W.2d 101, 122-23 (Tex. Crim. App. 1992), cert. denied, ___ U.S. ___, 113 S.Ct. 3062, 125 L.Ed.2d 744 (1993); Ex parte Davis, 818 S.W.2d 64, 66-68 (Tex. Crim. App. 1991).

      The trial court shall forward a record of the hearing, with its findings of fact and conclusions of law, to the clerk of this court within twenty-one days of the date of this order.

                                                                                     PER CURIAM

Before Chief Justice Davis,

            Justice Cummings, and

            Justice Vance

Appeal abated

Order issued and filed October 30, 1996

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      Beatley notes several deficiencies in Ryan’s experience, including the following: (1) she had not administered or evaluated the MMPI or its results on a person for some period of time (he says over two years, but it is unclear from the record); (2) she had only administered tests like the MSI and the MMPI while supervised by a psychologist with credentials; (3) she had only conducted psychological evaluations under the auspices of another psychologist’s credentials; (4) she had only administered the MMPI2 approximately six times in twenty years; (5) she probably had administered the MMPI more than ten times; (6) she had never previously testified as an expert; and (7) she had only interpreted test results of the MMPI while under the supervision of a licensed psychologist.

      Based upon these deficiencies in Ryan’s background, Beatley asserts that Ryan had no qualifications, experience, or authority to interpret the results of the tests in evidence. This argument ignores Ryan’s testimony that she was qualified by training and experience to interpret the results of the MMPI2 test and had recently administered that test 20-25 times. Although she had previously interpreted the results of this test while under the supervision of a clinical psychologist, she testified that she was not required to do so. As we have previously noted, the trial court could have reasonably concluded that the State established by clear and convincing evidence that she was an expert whose testimony was reliable so that it would assist the jury in accurately understanding other evidence or in determining a fact in issue.

      Beatley primarily relies upon the case of Fox v. State, ___S.W.3d ___, 2002 WL 122056 (Tex. App.—Houston [14th Dist.] Jan. 31, 2002, pet. ref’d). We find Fox to be distinguishable. In that case the trial court did not allow the testimony of a witness due to her limited experience in dealing specifically with abused children and in the technique typically used to interview such children. Id. at ___. We first note that the court did not analyze the witness’s reliability in accordance with the standards set forth in Weatherred. Id. Even if the opinion is correctly decided, we note that in Fox the trial court denied the admission of the expert’s testimony, while in the case at bar the trial court allowed the admission of the testimony. As noted in Fox, the trial court has wide latitude in determining whether to admit such testimony. Id. at ___. We overrule Beatley’s sole issue.

      The judgment is affirmed.

                                                                   JOHN G. HILL

                                                                   Senior Justice

Before Chief Justice Davis,

      Justice Vance, and

      Senior Justice Hill (Sitting by Assignment)

      (Justice Vance concurring)

Affirmed

Opinion delivered and filed July 30, 2003

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