614 F.2d 47
5 Fed. R. Evid. Serv. 1320
UNITED STATES of America, Plaintiff-Appellee,v.Clarence Olin MARLER and Ronnie O. Steele, Defendants-Appellants.
No. 79-5122.
United States Court of Appeals,Fifth Circuit.
March 17, 1980.

D. L. Middlebrooks, Pensacola, Fla., for defendants-appellants.
Emory O. Williams, Jr., Thomas R. Santurri, Asst. U. S. Attys., Pensacola, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before GODBOLD, HILL and POLITZ, Circuit Judges.
JAMES C. HILL, Circuit Judge:

1
A jury found Clarence Olin Marler and Ronnie O. Steele guilty of conspiracy in violation of 18 U.S.C.A. § 371 and of twelve counts of mail fraud in violation of 18 U.S.C.A. §§ 1341 and 1342.  They urge reversal of the convictions on the following grounds: (1) the trial court erred in denying defendants' motion to dismiss count one of the indictment pursuant to Rule 8(b) of the Federal Rules of Criminal Procedure; (2) the trial court abused its discretion in unduly restricting defense counsel's cross-examination of government witnesses; and (3) the trial court's rulings that the government's handwriting and arson witnesses were competent to testify as expert witnesses were manifestly erroneous, abuses of discretion, and resulted in material prejudice to defendants.

2
A twenty-seven count indictment was returned charging appellants and three other co-defendants with a single conspiracy and with certain substantive offenses.  Marler and Steele were charged in all of the substantive counts; in some of these no co-defendants were charged.

3
As detailed in our opinion, this day, in United States v. Leach, 613 F.2d 1295 (5 Cir. 1980), trial of appellants and two co-defendants proceeded through the close of the government's case but when the testimony of one co-defendant indicated that his defense was antagonistic to appellants' defense, the trial judge severed appellants from the trial and ordered that they be rescheduled for trial.

CONSPIRACY COUNT

4
Appellant's first assertion of error is based on a claim that count one of the indictment charged the defendants with three distinct and severable conspiracies.  Finding here, as we did in Leach, supra, that count one properly charged a single conspiracy, we reject appellants' claim and need not decide whether Rule 8(b) would have required dismissing count one against these appellants if that count had charged more than one conspiracy.

CROSS EXAMINATION

5
Appellants assert that on three occasions the trial judge refused to allow them the opportunity to cross-examine prosecution witnesses and that these restrictions constituted abuses of discretion.

6
In the first instance the witness had already testified on cross-examination that she had heard only one end of a telephone conversation.  Defense counsel essentially repeated his earlier question, the prosecutor objected, and the trial judge told defense counsel "not (to) go further on that one" finding that he was "going over ground (he had) been over before."  Record, vol. 2 at 360-61.  We find that the trial judge properly exercised his discretion to prevent repetitive questioning.

7
In the second instance, the trial judge refused to permit any re-cross-examination.  The same witness, a secretary-bookkeeper for the real estate agency that was involved in the sale of all three properties involved in the conspiracy, had testified about telephone calls and other contacts between both Marler and Steele and a broker at the agency.  She offered relatively little in the way of substantive testimony, and during a thorough cross-examination regarding telephone records her recollection was refreshed and she acknowledged that some calls that she had not remembered on direct examination did appear to have been made.  On a short (one page transcript) redirect examination, she explained what was rather obvious as to how telephone records were made.  Defense counsel then told the court that he wanted to ask the witness a question.  This rather difficult witness had offered little of substance to the evidence and the trial judge had earlier noticed that she was having a throat problem and had granted a brief recess.  The judge concluded that her information had been thoroughly explored on direct, cross, and redirect examination and declined to allow any further cross-examination.  If anything amounting to a new subject had been developed on brief redirect it was inconsequential and declining to allow further cross on the theory that redirect had not injected new subjects was within the sound discretion of the trial judge and his exercise of discretion against allowing recross certainly produced no harm.

8
On the third occasion the trial judge did not in fact restrict cross-examination.  Following a very brief redirect examination, defense counsel told the judge that he had forgotten to ask the witness one question.  The judge reminded counsel that he had completed cross-examination and then, out of an abundance of caution, called counsel to the bench and asked him what the question was whereupon defense counsel withdrew the question.  In their brief appellants characterize this occurrence as a refusal by the trial judge to allow one other question on recross, Brief for Appellants at 18.  It was not.

EXPERT WITNESSES

9
Appellants claim that the qualifications of the government's arson and handwriting witnesses were "tenuous or nonexistent."  Brief for Appellants, at 21.  Appellants object to the arson witness' limited education in the area of explosives and his limited training and experience in and reading about liquid vapor explosives.  (He testified that one fire was "arson as a result of gasoline vapor explosion," Record, vol. 1, at 226.)  He testified, however, that as a deputy state fire marshall he had been investigating fires for eleven years, had attended two short courses on explosive fires, had been on a team investigating approximately six liquid vapor explosions, and had read portions of books and bulletins on vapor explosions.  The government's handwriting witness testified that she had been a full-time document and handwriting examiner for four years, had several hundred hours of workshop training, and had testified in one federal trial and in civil and criminal state trials, sometimes to identify signatures.

10
Federal Rule of Evidence 702 permits opinion testimony by "a witness qualified as an expert by knowledge, skill, experience, training, or education."  Appellants have utterly failed to show that the trial judge's rulings were error at all, much less that they were so clearly or manifestly erroneous as to permit our review under United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978), Cert. denied, 440 U.S. 907, 99 S.Ct. 1214, 59 L.Ed.2d 454 (1979).

11
AFFIRMED.


964 So.2d 363 (2007)
Geraldine OUBRE and Linda Gentry on Their Behalf, as Well as Others, Similarly Situated
v.
LOUISIANA CITIZENS FAIR PLAN.
No. 2007-C-1329.
Supreme Court of Louisiana.
September 28, 2007.
In re Louisiana Citizens Property Ins. Corp.;  Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. M, No. 625-567; to the Court of Appeal, Fifth Circuit, No. 07-CA-66.
Denied.


33 A.3d 897 (2012)
133 Conn.App. 901
STATE of Connecticut
v.
Todd WATSON.
No. 32756.
Appellate Court of Connecticut.
Argued January 6, 2012.
Decided January 24, 2012.
GRUENDEL, ROBINSON and BEAR, Js.
PER CURIAM.
The judgment is affirmed.


407 So.2d 584 (1981)
Robert WILSON, alias
v.
STATE.
7 Div. 861.
Court of Criminal Appeals of Alabama.
November 24, 1981.
*585 Lee Clyde Traylor, Fort Payne, for appellant.
Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.
BOOKOUT, Judge.
Burglary, second degree; sentence: four years' imprisonment.
The sole issue presented for review is whether the appellant was denied a speedy trial in violation of the sixth amendment to the United States Constitution and article I, § 6, of the 1901 Alabama Constitution. We hold that the seven-year delay between appellant's arrest and trial did deprive him of his right to a speedy trial.
The following timetable chronicles the facts of the case pertinent to this issue:
*586 November 25, 1973Defendant was apprehended and arrested by a Collinsville policeman at the burglarized National Guard Armory in Collinsville.
November 28, 1973Defendant posted bond. Defendant's future attorney signed bond as surety.
December 20, 1973Defendant retained Lee Clyde Traylor as his attorney.
January 17, 1974Defendant indicted.
February 5, 1974Defendant's attorney filed a motion to be released from bond. Motion indicated that defendant was incarcerated in the Hamilton County jail in Chattanooga, Tennessee, and a hold had been placed on defendant by DeKalb County authorities at attorney's request.
June 24, 1974Defendant's attorney filed a motion to be released from bond. Motion reflected that defendant was being held at the Davidson County jail in Nashville, Tennessee. Motion indicated that a hold had been placed on defendant by DeKalb County authorities at attorney's request.
September 5, 1974Defendant's attorney filed a motion to be released from bond. Motion stated that defendant was imprisoned at the Fulton County jail in Atlanta, Georgia. Motion indicated that a hold had been placed on defendant by DeKalb County authorities at attorney's request.
September 13, 1974Letter from Fulton County, Georgia, sheriff's office to DeKalb County sheriff stating that defendant had been held in custody at the Fulton County jail since July 11, 1974, and that Hamilton County, Tennessee, had placed a hold on defendant. However, letter noted that Tennessee had not initiated any extradition proceedings as of this date.
September 24, 1974The "Motion to be Released from Bond" of defendant's attorney was denied since "to grant the Motion would work an undue hardship upon the State of Alabama, or it might be reasonably anticipated that an undue hardship would be worked upon the State of Alabama in bringing the defendant back to this jurisdiction."
October 11, 1974Defendant filed a motion for a speedy trial. Motion stated that defendant was incarcerated at the Fulton County jail in Atlanta, Georgia, on this date.
December 12, 1974Defendant's attorney requested and was granted a continuance due to family illness.
January 27, 1975Teletype message from Fulton County, Georgia, authorities informing the sheriff of DeKalb County that there would be no extradition hearing to Alabama or Kentucky because defendant had appealed his extradition to Tennessee. Message also said that defendant "indicated that he is not intending to waive extradition to any state."
September 19, 1977Defendant's case set for trial. Bench note reflected that defendant was in a Kentucky penitentiary.
August 10, 1978Arraignment was scheduled, but bench note reflected that defendant failed to appear "due to his incarceration elsewhere."
May 16, 1979Defendant filed second motion for a speedy trial. Motion indicated that he was currently confined but did not specify where.
June 28, 1979Defendant's case set for trial, but was not reached and was continued.
September 12, 1979Case set for trial. Defendant failed to appear.
October 4, 1979Forfeiture entered against defendant and his bond.
March 3, 1980Case set for trial. Defendant failed to appear.
March 10, 1980Forfeiture entered against defendant and his bond.
November 24, 1980Defendant arrested pursuant to Alabama alias warrants. Defendant waived extradition from Fulton County, Georgia.
November 27, 1980Defendant committed to DeKalb County jail.
January 29, 1981Defendant filed motion to dismiss for lack of a speedy trial.
February 10, 1981Motion denied.
*587 February 12, 1981Defendant arraigned, tried and convicted of burglary in the second degree.
March 5, 1981Defendant sentenced to four years in the penitentiary.
March 10, 1981Defendant filed a motion for a new trial alleging, inter alia, violation of his right to a speedy trial.
Four factors must be considered when determining whether a criminal defendant has been denied his right to a speedy trial; namely, (1) length of the delay, (2) reason for the delay, (3) defendant's assertion of his rights, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). These factors are the basis for the ad hoc balancing process that we must employ in which the conduct of the prosecution and that of the defendant are weighed. Johnson v. State, 356 So.2d 769 (Ala.Cr.App. 1978).

Length of the Delay
The pretrial delay must be long enough to be "presumptively prejudicial" and thus "trigger" the court's inquiry into the other Barker factors. Watson v. State, 389 So.2d 961 (Ala.Cr.App. 1981). The right to a speedy trial attaches "when a criminal prosecution has begun and extends only to those persons who have been `accused' in the course of that prosecution." United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971). Appellant's arrest on November 25, 1973, constituted the initiation of a criminal prosecution for the application of the Barker test in this case. Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); Prince v. State, 354 So.2d 1186 (Ala.Cr. App.), cert. denied, 354 So.2d 1193 (Ala. 1977). Therefore, the time span between appellant's arrest and trial on February 12, 1981, was a period of about seven years and three months. Certainly, this inordinate delay is "presumptively prejudicial" and "patently offensive" requiring our inquiry of the remaining Barker factors to determine whether the delay was "unjustified." Corn v. State, 387 So.2d 275 (Ala.Cr.App.), writ denied, 387 So.2d 280 (Ala.1980).

Reason for the Delay and Defendant's Assertion of His Right
As early as October 10, 1974, appellant filed a motion for a speedy trial. The motion indicated that the appellant was currently incarcerated in the Fulton County jail in Atlanta, Georgia. Courts have consistently held since the landmark case of Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), that upon a defendant's demand state authorities must make a diligent good-faith effort to secure the presence of the defendant for trial regardless of his incarceration in another state. Furthermore, it has been held that "[m]ere inquiries about release and availability are not compliance with this duty. Attempts at extradition or the issuance of a writ of habeas corpus ad prosequendum by the Alabama courts would have been in the nature of such affirmative action." Prince v. Alabama, 507 F.2d 693 (5th Cir.), cert. denied, 423 U.S. 876, 96 S.Ct. 147, 46 L.Ed.2d 108 (1975); Corn, supra.
The record reveals no such attempts of this nature by DeKalb County officials. At the hearing on the motion to dismiss, these officials testified that, although they telephoned prison officials in other states, they were unable to locate the appellant during the seven-year period. They did not offer any proof that detainers had been placed on appellant during this time. Instead, appellant's attorney in his motions to be released from his capacity as surety on appellant's bond averred that he had DeKalb County authorities place detainers on the appellant in Georgia and Tennessee. However, DeKalb County officials offered no corroboration that the holds were ever placed by them or received by Georgia and Tennessee.
DeKalb County authorities could not merely wait to take action until the accused was "available" to Alabama once he demanded his return for trial. Ex parte Slaughter, 377 So.2d 632 (Ala.), on remand, 377 So.2d 634 (Ala.Cr.App. 1979). We realize that appellant's various incarcerations in Georgia, Tennessee and Kentucky during *588 these seven years made it inconvenient for DeKalb County officials to ascertain his whereabouts, but it did not eradicate their duty to exert an affirmative effort to bring him back to Alabama for trial.
It was not until January 27, 1975, that DeKalb County received a Georgia teletype which stated that appellant would not waive extradition to any state. At any rate, the State did not offer to prove that Alabama had ever attempted to extradite the appellant from Georgia. A mere supposition that the appellant would refuse to waive extradition mentioned in the Georgia teletype should not be weighed against him. The possibility that another jurisdiction may refuse to cooperate is not the equivalent of asking and receiving a rebuff. Smith v. Hooey, supra.
Appellant filed two more requests for a speedy trial during these seven years. It therefore appears that the reason for the delay in this case was due to the inaction and negligence of Alabama prosecuting officials. While we must weigh this bureaucratic inertia less heavily than deliberate prosecutorial delay, Barker and Corn, supra, we nevertheless find that this was the major cause for the seven-year delay.
Since the first three Barker factors coalesce in appellant's favor, we need not weigh the prejudice suffered by the appellant in our balancing test. Prince v. Alabama, supra. However, we note that appellant was over seventy years old when the case was finally tried, at least three witnesses had died in the interim, and some of the physical evidence could not be found. We conclude that the appellant was unconstitutionally denied his right to a speedy trial, and pursuant to Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973), his motion to dismiss based upon this premise should have been granted.
REVERSED AND RENDERED.
All the Judges concur.


716 F.2d 890
Esserv.Hakim
82-3405
UNITED STATES COURT OF APPEALS Third Circuit
6/30/83

M.D.Pa., Rambo, J.

AFFIRMED


  [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
             United States Court of Appeals
                 For the First Circuit

No. 97-9009

                 IN RE: BRIDGET M. HAYES,

                         Debtor.

                   BRIDGET M. HAYES,

                       Appellant,

                           v.

            JOSEPH BRAUNSTEIN, ETC., ET AL.,

                       Appellees.

APPEAL FROM THE UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE FIRST CIRCUIT

                         Before

                 Boudin, Circuit Judge,
             Coffin, Senior Circuit Judge,
               and Lynch, Circuit Judge.

 Bridget M. Hayes on brief pro se.
 Donald K. Stern, United States Attorney, and Christopher
Alberto, Assistant United States Attorney, on brief for appellee
United States of America.

June 26, 1998

                                        Per Curiam.  We have carefully reviewed the briefs
and the record on appeal and affirm the judgment below.  The
appellant failed to present substantial evidence rebutting the
duly-filed claim.  The Bankruptcy Court's equitable powers do
not extend to abridging the substantive rights of creditors.
In re Ludlow Hospital Society, Inc. 124 F.3d 22, 27-28 (1st Cir.
1997).
          Affirmed.  Loc. R. 27.1.


                                   NOS. 12-19-00210-CR
                                        12-19-00211-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

 CHARNA MAELEAN SUTTON,                             §       APPEALS FROM THE
 APPELLANT

 V.                                                 §       COUNTY COURT

 THE STATE OF TEXAS,
 APPELLEE                                           §       UPSHUR COUNTY, TEXAS

                                   MEMORANDUM OPINION
                                       PER CURIAM
        A jury convicted Charna Maelean Sutton of driving while license invalid and displaying
wrong, fictitious, altered, or obscured insignia. Appellant appealed.
        To be sufficient to invoke the appellate court’s full jurisdiction, the notice of appeal filed
by an appellant in a criminal case must bear the trial court’s certification of the appellant’s right to
appeal. See TEX. R. APP. P. 25.2(d). The certification should be part of the record when the notice
is filed, but may be added by timely amendment or supplementation. Id. In this case, Appellant’s
notice of appeal does not include the required certification. Nor does the clerk’s record in either
case contain a certification.
       On May 29, 2019, this Court notified Appellant that the clerk’s record failed to contain the
trial court’s certification of Appellant’s right of appeal specifically required by Texas Rule of
Appellate Procedure 25.2(d). The notice warned that, unless a supplemental clerk’s record was
filed with this Court in compliance with Rule 25.2(d), on or before June 10, the appeals would be
referred to the Court for dismissal.
       The deadline for responding to this Court’s notice has expired, and the clerk’s record has
not been amended to show Appellant’s right to appeal in either case. Therefore, the appeals are
dismissed for want of jurisdiction. See TEX. R. APP. P. 43.2(f); see also Nyameteh v. State, No.
12-16-00080-CR, 2016 WL 2766108 (Tex. App.—Tyler May 11, 2016, no pet.) (mem. op., not
designated for publication).
Opinion delivered June 19, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

                                             (DO NOT PUBLISH)

                                                          2
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 19, 2019

                                         NO. 12-19-00210-CR

                                 CHARNA MAELEAN SUTTON,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee

                                    Appeal from the County Court
                            of Upshur County, Texas (Tr.Ct.No. 39674)

                    THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
                    It is therefore ORDERED, ADJUDGED and DECREED by this Court that this
appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be
certified to the court below for observance.
                    By per curiam opinion.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 19, 2019

                                         NO. 12-19-00211-CR

                                 CHARNA MAELEAN SUTTON,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee

                                    Appeal from the County Court
                            of Upshur County, Texas (Tr.Ct.No. 39675)

                    THIS CAUSE came to be heard on the appellate record; and the same being
considered, it is the opinion of this Court that this appeal should be dismissed.
                    It is therefore ORDERED, ADJUDGED and DECREED by this Court that this
appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be
certified to the court below for observance.
                    By per curiam opinion.
                    Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.


852 F.Supp. 721 (1994)
VICTOR OOLITIC STONE COMPANY, INC. et al., Plaintiffs,
v.
CSX TRANSPORTATION, INC., Monroe County Board of Commissioners, and Monroe County Parks and Recreation Department, Defendants.
No. IP 93-1538-C.
United States District Court, S.D. Indiana, Indianapolis Division.
April 7, 1994.
*722 Paul J. Watts, Watts Law Office, Spencer, IN, Thomas E. Densford, Taylor Bauer & Densford, Bloomington, IN, for plaintiffs.
James R. Trulock, II, Stephen R. Galvin, Monroe County Attys., Michael L. Carmin, Cotner Andrews Mann & Chapman, Bloomington, IN, Charles H. Montange, Seattle, WA, for defendants.

MEMORANDUM ENTRY
BARKER, Chief Judge.
On February 16, 1993, the Interstate State Commerce Commission ("ICC" or "Commission") granted CSX's request for exemption to abandon its 22.5 mile rail line between Bloomington and Bedford, Indiana. See 58 FR 8635-36. The exemption took effect on March 18, 1993. See id. The Monroe County Parks and Recreation Department ("MCPRD") subsequently sought to convert the abandoned rail line into a recreation trail and applied for a notice of interim trail use ("NITU") with the ICC. On March 22, 1993, the Commission denied the request because CSX refused to negotiate a trail use agreement. CSX later changed its mind, however, and filed a motion with the ICC on September 14, 1993, requesting that the earlier proceeding be reopened and that the Commission grant an NITU. See Defendants' Exhibit *723 A. The Commission agreed and issued an NITU on September 23, 1993. CSX and MCPRD then executed a Quitclaim Deed on November 15, 1993.
The Plaintiffs in this matter, who primarily are landowners with property adjoining the corridor, allege that CSX abandoned its line as of March 19, 1993, and that whatever property interest that CSX held in the corridor reverted to them on that date. Their amended complaint is in three counts: Count I seeks to quiet title to the corridor; Count II alleges slander of title; and Count III is a claim for injunctive relief based on alleged violations of the Fifth Amendment of the United States Constitution, and Article 1, section 12 of Indiana's Constitution. The Defendants move the Court to enter judgment in their favor on these counts pursuant to Rules 12(b)(1), 12(c), and 56 of the Federal Rules of Civil Procedure.
The Plaintiffs' strategy in this case is lost on the Court. What if the Plaintiffs were to prevail on all of their claims? Then what? The ICC's decision would not suddenly evaporate. The Plaintiffs explain in their brief that they "do not seek to enjoin or suspend a rule, regulation or order of the Interstate Commerce Commission ("ICC") as the Commission was divested of jurisdiction upon the consummation of the abandonment of the railroad corridor." Plaintiffs' Response Brief, at 2. That of course begs the question since the result that the Plaintiffs seek assumes that the ICC decision is a nullity. The fact remains that the ICC order stands and that the Commission decided that it had jurisdiction to reopen this matter and issue an NITU.
Sections 2321 and 2342 of Title 28 specifically provide that the court of appeals has exclusive jurisdiction to review the validity of ICC rules, regulations or orders. A challenge to an order need not be direct for that jurisdiction to be invoked; all that is required is that the effect of the prayed for relief contradict a Commission order. See Assure Comp. Transp., Inc. v. United States, 629 F.2d 467, 472 (7th Cir.1980), cert. denied, 449 U.S. 1124, 101 S.Ct. 941, 67 L.Ed.2d 110 (1981) ("`The statutory procedure for review is applicable although an order is not directly attacked  so long as the practical effect of a successful suit would contradict or countermand a Commission order.'"), citing, B.F. Goodrich Co. v. Northwest Industries, Inc., 424 F.2d 1349, 1353-54 (3rd Cir.1970). Because the court of appeals has exclusive jurisdiction over challenges to ICC orders, including collateral attacks, this Court lacks jurisdiction to resolve counts I & II of the Plaintiffs' amended complaint. Id.
The Plaintiffs argue that the Court has jurisdiction to adjudicate Count III because it arises under the Fifth Amendment of the United States Constitution. Constitutional litigation is a means of last resort, however; it is well-known that "[b]efore taking up a constitutional issue, a federal court should satisfy itself that there is no available non-constitutional ground of decision." There to Care, Inc. v. Commissioner of the Indiana Department of Revenue, 19 F.3d 1165, 1167 (7th Cir.1994). In this case, the Court need not address the Plaintiffs' taking claim because the Plaintiffs presently lack standing to litigate it. The first element necessary to establish standing is that `"the plaintiff must have suffered `an injury in fact'  an invasion of a legally-protected interest which is (a) concrete and particularized ... and (b) `actual or imminent, not conjectural or hypothetical....'"' Indemnified Capital Inv. v. R.J. O'Brien & Assoc., 12 F.3d 1406, 1408 (7th Cir.1993), citing, Lujan v. Defenders of Wildlife, ___ U.S. ___, ___, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). The "legally-protected interest" that the Plaintiffs believe the Defendants have violated is, at least for now, "conjectural or hypothetical."
Count III claims that the County Commissioners and MCPRD have taken the corridor without due process. To demonstrate an "injury in fact" based on this conduct, the Plaintiffs need to show that they have something more than a hypothetical interest in the corridor. They contend that "Indiana law is well settled that the abandonment of railroad operations extinguishes an easement and permits adjoining landowners, as titleholders in fee simple, to reclaim the easement." Plaintiffs' Response Brief, at 5. *724 In its decision of September 23, 1993, however, the Commission determined that CSX had not abandoned the rail line. See Defendants' Exhibit A. In addition, the U.S. Supreme Court explained in Preseault v. I.C.C., 494 U.S. 1, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990), that "[s]ection 8(d) of the amended Trails Act provides that interim trail use `shall not be treated for any purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.' 16 U.S.C. § 1247(d).... By deeming interim trail use to be like discontinuance rather than abandonment ... Congress prevented property interests from reverting under state law...." Id. at 8, 110 S.Ct. at 919-20. Depending on whether the ICC's conclusion regarding CSX's abandonment of the line is faulty, the Plaintiffs may or may not have a property interest in the corridor. While it is true that "the district court must accept as true all well-pleaded factual allegations and draw reasonable inferences in favor of the plaintiff" when ruling on a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), see Capitol Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir.1993), the Court is not at liberty to ignore undisputed facts. Here, the parties do not disagree that the ICC concluded that no abandonment occurred and that it retained jurisdiction to issue the NITU. To proceed to litigate Count III at this time would require the Court to assume into existence a fact that is essential to the case-or-controversy requirement of Article III: that the Plaintiffs have a property interest in the corridor. See Lujan, ___ U.S. at ___, 112 S.Ct. at 2136 ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III."). Given this fact, it is sound judicial policy not to expend scarce judicial resources adjudicating Count III only to have the court of appeals later find that no abandonment ever occurred.
Because the Plaintiffs' property interest in the corridor is speculative and subject to conjecture, the Plaintiffs do not have standing to assert their constitutional claims against the County Commissioners and the MCPRD at this time. This Court lacks jurisdiction to adjudicate Count III of the Plaintiffs' amended complaint.[1]

CONCLUSION
The Defendants' motion to dismiss (i.e. motion for summary disposition) is granted as to all counts of Plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). The Plaintiffs' motion for class certification, and the Defendants' motion to postpone class action determination and motion to dismiss for failure to join necessary and indispensable parties, are denied as moot.
It is so ORDERED.
NOTES
[1]  Even if the Court were to reach the merits of Count III, the Plaintiffs' claim for injunctive relief would have to be denied, assuming of course that the ICC's actions are not ultra vires. "Equitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking." Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1017-18, 104 S.Ct. 2862, 2880, 81 L.Ed.2d 815 (1984). The National Trails System Act, supra, authorizes interim use of rail corridors as recreation trails. See 16 U.S.C. § 1241 et seq. The Tucker Act is the appropriate vehicle for obtaining such compensation. See Preseault, 494 U.S. at 13-15, 110 S.Ct. at 923.


576 S.W.2d 88 (1979)
Harold Eugene JACKSON, Appellant,
v.
The STATE of Texas, Appellee.
No. 55785.
Court of Criminal Appeals of Texas, En Banc.
January 24, 1979.
*89 Tom Moore, Jr. and R. Bruce Connaway, Waco, for appellant.
Harold Eugene Jackson, pro se on rehearing.
Felipe Reyna, Dist. Atty. and Lynn W. Malone, Asst. Dist. Atty., Waco, for the State.
Before the Court en banc.

OPINION

ON APPELLANT'S MOTION FOR REHEARING EN BANC
ROBERTS, Judge.
We granted appellant's pro se motion for leave to file a motion for rehearing in order to consider the contentions raised in his supplemental brief, which we inadvertently failed to consider on original submission. One of the contentions raised in that brief is that the court's charge was fundamentally erroneous because it allowed the jury to convict appellant upon a theory not alleged in the indictment. We agree with this contention and reverse the judgment.
The pertinent part of the indictment alleges that appellant
"did then and there while in the course of committing theft and with intent to obtain and maintain control of property of GLEN BURTON, to-wit: U. S. Currency, without the effective consent of the said GLEN BURTON, and with intent to deprive the said GLEN BURTON of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a pistol intentionally and knowingly threaten and place GLEN BURTON in fear of imminent bodily injury and death...." (Emphasis added.)
In charging the jury, the trial judge applied the law to the facts in the following manner:
"Now if you find from the evidence beyond a reasonable doubt that on or about the 10th day of August, 1975 in McLennan County, Texas, the defendant, Harold Eugene Jackson, did, without the effective consent of Glen Burton, the *90 owner, take and exercise control over the corporeal personal property of Glen Burton, to wit, U. S. Currency, from the possession of Glen Burton, with intent then and there to deprive Glen Burton of said U. S. Currency, and that said defendant, in so doing, and with intent to acquire and maintain control of said U. S. Currency, intentionally, knowingly, or recklessly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find the defendant guilty of aggravated robbery, as charged in the indictment.
"Unless you so find and believe beyond a reasonable doubt then you will find the defendant not guilty." (Emphasis added.)
We were faced with precisely this problem in Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App.1976). There we held:
"The statutes do not authorize a conviction for robbery if the proof only shows that a person recklessly placed another in fear of imminent bodily injury or death, and yet the court's charge here authorized a finding of guilt upon precisely that finding.
"It is fundamental that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty only for conduct constituting that offense (Venzor v. State, 162 Tex.Cr.R. 175, 283 S.W.2d 397); the indictment alleged such conduct (Venzor v. State, supra; 31 Tex.Jur.2d, Sec. 69 at 596); and the evidence at trial showed such conduct (Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590; 5 Branch's Ann.P.C. (2d ed.), Sec. 2603 at 32). In the instant case none of these requirements of due process of law were met because the trial court authorized the jury to find appellant guilty upon a set of circumstances that could not constitute the offense charged." 537 S.W.2d, at 6-7.
It is clear that a charge which allows the jury to convict an accused upon a theory not alleged in the indictment is fundamentally defective. Dowden v. State, supra; Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977), and authorities there cited. See also: Walton v. State, 575 S.W.2d 25 (Tex.Cr.App. 1978).
The motion for rehearing en banc is granted. The judgment is reversed and the cause remanded.
DOUGLAS and W. C. DAVIS, JJ., dissent for the reasons stated in the dissenting opinion in Cleland v. State, 575 S.W.2d 296, 296 (Tex.Cr.App.1979).


101 F.3d 888
114 Ed. Law Rep. 743, 19 A.D.D. 930
Dan STILL, Acting Commissioner of the New York City Dept. ofMental Health, Mental Retardation and Alcoholism Services;the New York City Dept. of Mental Health, MentalRetardation, & Alcoholism Services;  the City of New York,Petitioners-Appellants,v.Barbara A. DeBUONO, as Commissioner of the New York StateDept. of Health;  The New York State Dept. ofMental Health;  Mr. " ", on behalf of"E.M.", an infant,Respondents-Appellees.
No. 732, Docket 96-7753.
United States Court of Appeals,Second Circuit.
Argued Sept. 25, 1996.Decided Dec. 5, 1996.

Joseph I. Lauer, New York City (Paul A. Crotty, Francis F. Caputo and Elizabeth A. Wright, Corporation Counsel of the City of New York, on the brief), for Petitioners-Appellants.
Steven S. Anderson, New York City (Donna R. Shahrabani, Anderson & Rottenberg, on the brief), for Respondent-Appellee Mr. " ".
Kay-Ann D. Porter, Assistant Attorney General, State of New York, New York City (Dennis C. Vacco, Attorney General of the State of New York, Thomas R. Sofield, Assistant Attorney General, State of New York, of counsel), for Respondent-Appellee DeBuono and the New York State Department of Health.
Before:  WALKER, JACOBS, Circuit Judges, and CARMAN, Chief Judge United States Court of International Trade, sitting by designation.*
CARMAN, Chief Judge.

BACKGROUND

1
On February 22, 1992, Mrs. " " gave birth to her son "E.M.".  Around the time of his second birthday, Mr. and Mrs. " " became increasingly concerned about "E.M." 's development.  "E.M." 's ability to speak was very slow to develop and he had very little language comprehension.  Based on these symptoms and concerns, Mrs. " " made arrangements to have "E.M." evaluated by a developmental pediatrician and other specialists affiliated with the New York City Early Intervention Program.  "E.M." was examined on July 26 and 27, 1994 by a developmental pediatrician, a speech and language pathologist, and a psychologist at New York Hospital, Cornell Medical Center.  Following their examination, the specialists diagnosed "E.M." as being afflicted with Developmental Delay and secondarily with Pervasive Developmental Disorder, more commonly known as autism.  This diagnosis qualified "E.M." for early intervention services under New York law.

2
Following this diagnosis, an Individualized Family Service Plan (IFSP) was drafted to establish goals for "E.M." 's treatment and to specify how much and what types of treatment he would receive through the Early Intervention Program.  During the preparation of "E.M." 's IFSP, Mrs. " " requested that "E.M." receive Applied Behavioral Analysis (ABA) as part of his treatment.  Dr. Evelyn Lipper, a developmental pediatrician who examined "E.M." to determine his eligibility for early intervention services, recommended to Mr. and Mrs. " " that "E.M." receive ABA therapy.  Mrs. " " 's request for ABA was not accommodated, however, because the New York City Early Intervention Program did not provide ABA therapy to autistic children under the age of three years old.  Instead, "E.M." 's IFSP provided for five hours of treatment per week at the Child Development Center (CDC), a state-approved provider of early intervention services.  The five hours of treatment consisted of social work in parent-child groups, special instruction in group and individual settings, and speech therapy.

3
Despite their inability to obtain ABA therapy through the DOMH's early intervention program, Mr. and Mrs. " " continued to be interested in providing "E.M." with those services.  In September 1994, Mr. and Mrs. " " arranged and paid for "E.M." to receive in-home ABA therapy under the direction of Ms. Julie Fisher, a social worker who holds a Masters degree in social work from New York University.  Ms. Fisher was responsible for designing the behavioral modification techniques used in "E.M." 's treatment, as well as training six college students and Mr. and Mrs. " " to provide ABA to "E.M.".  The six students Ms. Fisher trained were not licensed, certified or registered professionals, nor were they designated as early intervention service providers by the State Commissioner of Health.  Initially Ms. Fisher and the six college students provided "E.M." with approximately ten hours of ABA therapy per week, and by the Spring of 1995 "E.M." was receiving approximately twenty hours of treatment per week.

4
Based on the progress they believed "E.M." was making through ABA therapy, Mr. and Mrs. " " decided to stop sending "E.M." to CDC. Mr. and Mrs. " " withdrew "E.M." from CDC in late January or early February 1995, and his IFSP subsequently was modified to discontinue services from CDC and to provide for individual speech and language therapy at Lennox Hill Hospital.

5
On March 31, 1995, Mr. " " requested an impartial administrative hearing seeking reimbursement for his expenses in providing "E.M." with in-home ABA therapy.  Although the New York City DOMH agreed during the impartial hearing before State Department of Health Administrative Law Judge Zylberberg to reimburse Mr. " " for the services provided by Ms. Fisher, it continued to contest Mr. " " 's claim for reimbursement of costs incurred in hiring the six uncertified students to provide ABA to "E.M.".

6
Administrative Law Judge Zylberberg issued a Determination and Order on August 15, 1995, finding substantial evidence established "E.M." 's IFSP was not appropriate and did not meet his developmental needs.  Judge Zylberberg noted there was agreement at an August 1994 IFSP meeting that "E.M." should receive ABA therapy.  Judge Zylberberg also noted the DOMH conceded "E.M." 's IFSP was not appropriate and that the DOMH had agreed previously to reimburse Mr. " " for the ABA services provided to "E.M." by Ms. Fisher.

7
Judge Zylberberg's order also found "E.M." 's progress was substantially attributable to the ABA therapy.  Based on the report of a physician who evaluated "E.M.", as well as his conclusion that ABA is consistent with the legislative goals of the Early Intervention Program, Judge Zylberberg found the in-home ABA services were appropriate treatment for "E.M.".

8
Finally, Judge Zylberberg found none of the six students providing therapy to "E.M." met the statute's definition of a "qualified" provider.  Nonetheless, Judge Zylberberg ordered the DOMH to reimburse Mr. " " for his expenses in compensating the students, opining the students would have been certified as "qualified" providers had they applied to the Early Intervention Program.

9
On December 14, 1995, the DOMH filed a petition with the New York Supreme Court, pursuant to Article 78 of the Civil Practice Laws and Rules of New York and N.Y. Pub. Health Law § 2549(7), challenging the Determination and Order issued by Judge Zylberberg.  Appellants challenged only the portion of Judge Zylberberg's order that required the DOMH to reimburse Mr. " " 's expenditures incurred in hiring uncertified students to provide ABA services to "E.M.".

10
Mr. " " filed a Notice of Removal to the United States District Court for the Southern District of New York on January 11, 1996, on the grounds that the claim arose under federal law.  Mr. " " subsequently moved to dismiss the petition pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief may be granted.1

11
On June 10, 1996, Judge Motley entered a final judgment granting Mr. " " 's motion to dismiss the petition and denying petitioner's motion to remand to the New York Supreme Court.2  On June 19, 1996, appellants filed a Notice of Appeal challenging the District Court's dismissal of its claim for failure to state a claim upon which relief may be granted and its failure to remand the case to the New York Supreme Court.

12
This case presents the question of whether, upon the state's failure to provide disabled infants or toddlers appropriate services under part H of the Individuals with Disabilities Education Act, due to a shortage of providers who have been licensed or certified by the state, parental procurement of services otherwise appropriate under part H is reimbursable notwithstanding the providers' lack of state certification.

DISCUSSION

13
This Court reviews the grant of a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) de novo.  See Grimes v. Ohio Edison Co., 992 F.2d 455, 456 (2d Cir.1993).  Our review must accept the allegations contained in the petition as true, and draw all reasonable inferences in favor of the non-movant.  See Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991).  Dismissal is appropriate only where " 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' "  Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)).

14
The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-85 (1994), establishes the standards states must meet in providing education services to disabled infants and children in order to receive financial assistance from the federal government.  Part H of the IDEA requires states to provide "appropriate early intervention services to all infants and toddlers with disabilities and their families."  20 U.S.C. § 1476(a) (1994).  The statute defines "infants and toddlers with disabilities" as "individuals from birth to age 2, inclusive."  20 U.S.C. § 1472(1) (1994).  Similarly, states must provide "a free appropriate public education" to disabled individuals between the ages of three and twenty-one years old to be eligible to receive federal funds under part B of the IDEA.  20 U.S.C. § 1412(1), (2)(B) (1994).

15
Two decisions by the United States Supreme Court have interpreted language in the Education of the Handicapped Act, the IDEA's precursor, as well as part B of the IDEA to grant reviewing courts the authority to order reimbursement of expenditures made by parents to obtain appropriate educational services for their handicapped children where the services provided by the state are inappropriate.  Burlington School Comm. v. Mass.  Dep't. of Ed., 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985), held reviewing courts have the authority under the Education of the Handicapped Act to order reimbursement of parents for expenditures made to provide their children with appropriate private special education if the state-provided services are determined to be inappropriate.  Burlington establishes a two-factor test which must be satisfied before a reviewing court can order reimbursement of parents' expenditures.  The reviewing court must determine:  (1) the state-provided services made available pursuant to an Individualized Education Program (IEP) are inadequate;  and (2) the private education services obtained by the parent are appropriate.  Burlington School Comm., 471 U.S. at 370, 105 S.Ct. at 2002-03.   Once these elements are established, the reviewing court's authority to order "appropriate" relief, pursuant to 20 U.S.C. § 1415(e)(2) (1994) (reviewing courts are empowered to "grant such relief as the court determines is appropriate"), includes the authority to order reimbursement for expenditures made to obtain appropriate educational services.

16
The Supreme Court also has addressed the authority of reviewing courts under part B of the IDEA to order reimbursement of expenditures incurred in obtaining private educational services that are otherwise proper but which fail to satisfy the IDEA's requirement that services provided under part B meet standards established by the state Department of Education.  Florence County School Dist. Four v. Carter, 510 U.S. 7, 114 S.Ct. 361, 126 L.Ed.2d 284 (1993), held reviewing courts have the authority to order reimbursement of privately purchased educational services that are appropriate under the IDEA but which fail to meet the standards of the state Department of Education as required by 20 U.S.C. § 1401(a)(18)(B).  The Supreme Court reasoned the parental right of unilateral withdrawal cannot be eliminated by a state requirement that limits parental choice to inappropriate services.  Florence County School Dist. Four, 510 U.S. at 13-14, 114 S.Ct. at 365-66.   This holding builds on the Court's decision in Burlington, establishing that once the Burlington two-factor test is satisfied, parents can obtain reimbursement for privately obtained educational services, even if those services do not fully satisfy the state educational agency's standards.

17
These cases--construing an analogous provision of the IDEA--guide our approach to the case at hand.  Although the part H provisions of the Act at issue here and those of part B at issue in Burlington and Florence County are distinct in notable respects, their basic structure and purpose are strikingly similar:  both define the population to be served, 20 U.S.C. § 1401(a)(1) (1994) (part B:  "children with disabilities"), 20 U.S.C. § 1472(1) (1994) (part H:  "infants and toddlers with disabilities");  both define the nature of the service to be provided, 20 U.S.C. § 1401(a)(18) (1994) (part B:  "free appropriate public education"), 20 U.S.C. 1472(2) (1994) (part H:  "early intervention services");  both establish mechanisms via which the state must provide such services, 20 U.S.C. § 1401(20) (1994) (part B:  "individualized education program"), 20 U.S.C. § 1477 (1994) (part H:  "individualized family service plan");  and both empower courts (in identical language) to effectuate the purposes of the Act, 20 U.S.C. § 1415(e)(2) (1994) (part B), 20 U.S.C. § 1480(1) (1994) (part H).  Moreover, both provisions are animated by similar impulses, 20 U.S.C. § 1400(b), (c) (1994) (noting that part B was intended, inter alia, to enable disabled children to participate equally in society), 20 U.S.C. § 1471(a)(1) (1994) (noting, inter alia, need to "enhance the development of infants and toddlers with disabilities and to minimize their potential for developmental delay").  Accordingly, the principles underlying Burlington--that courts have broad equitable power to effectuate the purposes of the Act--and Florence County--that courts' equitable authority to effectuate the purposes of the Act is not strictly limited to provision of state certified service--fit well in the context of part H.

18
Appellants did not challenge Administrative Law Judge Zylberberg's finding that "E.M." 's IFSP was inappropriate or that ABA services were an appropriate therapy for "E.M.".  Appellants challenge only that portion of Administrative Law Judge Zylberberg's order which required reimbursement of Mr. " " 's expenses in hiring uncertified students to provide "E.M." with ABA services.  Indeed, appellants agreed to reimburse Mr. " " for expenses incurred in compensating Ms. Fisher for the ABA services she supplied to "E.M.".  Additionally, appellants' counsel conceded at oral argument that neither the inappropriateness of "E.M." 's IFSP nor the appropriateness of ABA services was an issue on appeal before this Court.  Thus, this case presents the purely legal question of whether parental procurement of otherwise appropriate services for their infants or toddlers are reimbursable notwithstanding the providers' lack of proper qualifications under part H, when the state's denial of appropriate services was due to a shortage of qualified providers.

19
While appellants concede the Burlington two factor test has been satisfied, they assert the language in 20 U.S.C. § 1472(2)(F) (1994), specifying that early intervention services be provided by "qualified" personnel, precludes ordering reimbursement of Mr. " " 's expenses incurred in privately obtaining educational services from uncertified student providers.  Appellants additionally argue the legislative history and regulations accompanying the IDEA, as well as the relevant statutory and regulatory provisions under New York law, preclude a reviewing court from ordering reimbursement for expenses incurred in hiring "unqualified" providers of ABA services.

20
This Court reads 20 U.S.C. § 1472(2)(F) to impose a clear requirement that states must provide early intervention services through qualified personnel.  However, when states fail to deliver appropriate services due to a shortage of providers who have been licensed or certified by the state, strict adherence to the statute's requirement that qualified (i.e., licensed or certified) personnel administer early intervention services even in cases when parents seek out and procure such services would place an unreasonable burden on a parent's ability to obtain for a child the educational services of providers who are proficient, but not licensed or certified.  Such a burden is inconsistent with the remedial purpose of the statute.  Here, counsel for the City conceded at oral argument that ABA was denied because there is or was a shortage of qualified providers.  The Supreme Court, in addressing parental placements under part B of the IDEA, noted, " 'it hardly seems consistent with the Act's goals to forbid parents from educating their child at a school that provides an appropriate education simply because that school lacks the stamp of approval of the same public school system that failed to meet the child's needs in the first place.' "  Florence County School Dist. Four, 510 U.S. at 14, 114 S.Ct. at 365 (quoting Carter v. Florence County School Dist. Four, 950 F.2d 156, 164 (4th Cir.1991)).  Similarly, the promise of the IDEA would be defeated if reimbursement were barred because the privately obtained ABA providers are unqualified, when the very reason ABA was not provided by the state was a shortage of such qualified individuals.

21
Nothing in the legislative history of part H of the IDEA is to the contrary.  The citations to legislative history offered by the City consist of barely adorned congressional summaries of particular sections of part H.  For instance, the first excerpt the City relies upon, H.R.Rep. No. 99-860, at 8, reprinted in, 1986 U.S.C.C.A.N. 2401, 2409, simply rehashes the requirements of 20 U.S.C. § 1472(2)(F) (defining "early intervention services");  the second excerpt from the history, H.R.Rep. No. 99-860, at 10, reprinted in 1986 U.S.C.C.A.N. at 2411, simply elaborates the requirements of 20 U.S.C. 1476(b)(8) (concerning the training of state service providers under part H);  and the third excerpt, H.R.Rep. No. 99-860, at 10, reprinted in 1986 U.S.C.C.A.N. at 2411, simply rehashes (almost verbatim) the requirements of 20 U.S.C. § 1476(b)(13) (concerning state personnel training policies necessary to receive funding under part H).  None of these excerpts sheds significant light on the issues before us.  The regulatory history relied upon by the City is no more persuasive.

22
This Court rejects appellants' argument that dismissal of their petition for failure to state a claim will expose the DOMH to financial liability.  Local governments should be able to avoid liability exposure simply by providing appropriate services for children at the outset.  Furthermore, parents will not be able to seek reimbursement unless the cost of the private services is reasonable.  See Florence County School Dist. Four, 510 U.S. at 16, 114 S.Ct. at 366 (reviewing court's authority under IDEA to fashion discretionary equitable relief includes consideration of an appropriate and reasonable level of reimbursement).  The appropriate amount thus bears a relationship to the quantum of services that the state would have been required to furnish, as well as the fees charged by uncertified providers for their services.

23
Finally, we note Judge Motley's dismissal relies on the findings of Administrative Law Judge Zylberberg.  Both part B and part H contain identical provisions granting a court significant powers in reaching its independent conclusions when reviewing the findings reached in an impartial hearing.  See 20 U.S.C. § 1415(e)(2) (1994) ("In any action brought under this paragraph the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.");  20 U.S.C. § 1480(1) (1994) (same).  In the present case, however, Judge Motley's dismissal of appellants' claim for failure to state a claim does not conflict with Administrative Law Judge Zylberberg's findings expressed in the Decision and Order. Judge Motley's finding that the actions taken by "E.M." 's parents satisfy the requirements established in Florence County is supported not only by her independent determination pursuant to 20 U.S.C. § 1480(1), but also by the findings of Administrative Law Judge Zylberberg.

CONCLUSION

24
We affirm the District Court's dismissal for failure to state a claim upon which relief may be granted of appellants' challenge of Judge Zylberberg's order requiring reimbursement of Mr. " " for expenditures to unqualified providers of ABA therapy.

*
 The Honorable Gregory W. Carman, Chief Judge, U.S. Court of International Trade, sitting by designation, became Chief Judge after oral argument

1
 On February 23, 1996, the New York City Department of Mental Health, Mental Retardation and Alcoholism Services (DOMH) moved to remand the proceeding to the New York Supreme Court, alleging that the removal was improper because Mr. " " failed to obtain consent of the State Department of Health, a respondent in the Article 78 proceeding before the New York Supreme Court, in the removal petition.  Counsel for the DOMH withdrew this aspect of its appeal at oral argument before this Court.  Accordingly, the removal issue is no longer subject to review, and that portion of the appeal is dismissed

2
 Courts reviewing administrative determinations under part H of the Individuals with Disabilities Education Act are empowered to "hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate."  20 U.S.C. § 1480(1) (1994)


161 F.3d 20
Ameritrust Companyv.White
NO. 95-8530
United States Court of Appeals,Eleventh Circuit.
September 30, 1998
Appeal From:  N.D.Ga. , No.90-02691-CV-JEC

1
Affirmed.


777 So.2d 214 (1999)
Ex parte State of Alabama and
Ex parte Rayford HAGOOD.
(Re Rayford Hagood v. State).
1980414 and 1980445.
Supreme Court of Alabama.
November 5, 1999.
Rehearing Denied March 3, 2000.
Bill Pryor, atty. gen., and Rosa H. Davis, asst. atty. gen., for the State.
Donald L. Colee, Jr., Birmingham; and William K. Bradford, Birmingham, for Rayford Hagood.
*215 MADDOX, Justice.
This is a capital-murder case. The facts are fully set out in the opinion of the Court of Criminal Appeals, Hagood v. State, 777 So.2d 162 (Ala.Crim.App.1998); therefore, we will summarize here only those facts necessary to explain our holdings.
Rayford Hagood and Mildred Price were involved in an illicit relationship. At the time, Mildred was married to Jessie "Buddy" Price. On the afternoon of February 13, 1994, Mildred telephoned Hagood and told him that her husband had abused her youngest son, Marlon, by kicking him. Hagood claimed to be the father of Marlon. Hagood told Mildred to leave the back door to her home open and that he would come over that night and "put a stop to it."
Sometime after 11:00 o'clock that evening, Hagood entered the Price home. He hid in a bedroom and waited there for Jessie Price to fall asleep. At some point, when Jessie Price got up to use the bathroom, Hagood attacked him. Evidence presented at Hagood's subsequent trial for capital murder indicated that when the attack began Mildred's four children came into her bedroom and remained there while the attack on Jessie Price was occurring in the next room. Testimony indicated that the victim cried, yelled for help, and begged for his life, pleading with Hagood and saying that if Hagood would not harm him, he would leave. According to the record, Price's pleas were to no avail. Hagood bound Price's ankles, knees, arms, and hands with duct tape, and he also put duct tape over Price's mouth and eyes and around his head. Hagood took a pistol that belonged to Jessie Price, and, according to his own statement, took Jessie Price and left him on the bank of a nearby river. The following morning Jessie Price's body was found floating face down in the river.
Dr. Kenneth Warner, a medical examiner who performed the autopsy on Jessie Price's body, testified that, although Price had died by drowning, without medical attention he would have died within a short time from the wounds he received. Dr. Warner further testified that the wounds on Jessie Price's body were inflicted before he died and were consistent with the theory that Price had been defending himself against someone who was beating him with a blunt object, such as a metal pipe.
Hagood was subsequently arrested and charged with murder. He was convicted of the capital offense of murder during a kidnapping in the first degree, § 13A-5-40(a)(1), Ala.Code 1975. The jury, by a vote of 12-0, recommended that Hagood be sentenced to death by electrocution, and the trial court, after making the written findings required by § 13A-5-47(d), followed the jury's recommendation and sentenced Hagood to death.
The Court of Criminal Appeals affirmed the conviction, but, because it found error in the trial court's jury instructions regarding an aggravating circumstance, reversed the sentence of death and remanded the case for new sentencing proceedings. Hagood and the State both petitioned this Court for certiorari review, and this Court granted both petitions. The State presents only one issue for review; the State claims that the Court of Criminal Appeals erred in reversing the sentence of death and remanding for new sentencing proceedings. Hagood presents 20 issues for our review, 18 of which were addressed by the Court of Criminal Appeals in its opinion.
We have carefully read the opinion of the Court of Criminal Appeals, and we have carefully analyzed all of the defendant's arguments relating to the validity of the conviction. Moreover, we have reviewed the record for plain error. We conclude that the opinion of the Court of Criminal Appeals correctly addresses each of the 18 issues Hagood raised both in that Court and in his petition to this Court; therefore, we will not address those 18 *216 issues further. We will address two issues that were not addressed in the Court of Criminal Appeals' opinion, and we will also address the issue raised here by the State.
In summary, we find in the record no error that "has or probably has adversely affected [Hagood's] substantial rights." Rule 39(k), Ala. R.App. P. Consequently, we affirm the judgment of the Court of Criminal Appeals insofar as that judgment affirmed Hagood's conviction. We conclude, however, that the Court of Criminal Appeals erred in reversing the sentence of death and remanding the cause for new sentencing proceedings; therefore, we reverse the judgment of the Court of Criminal Appeals to the extent it reversed the sentence of death and remanded.
We will first address the two new issues presented by Hagood. Then we will address the issue presented by the State.

I.
Hagood first asserts that during the penalty phase of his trial, the court improperly allowed the State to use a facsimile copy of a record showing two prior convictions. He claims that the admission of this evidence directly conflicts with the holding of the Court of Criminal Appeals in Allen v. State, 611 So.2d 1152 (Ala.Crim. App.1992)that to prove a prior felony conviction the State must, at the sentencing hearing, present to the trial court a certified copy of the record showing the conviction. He argues that, because the State presented a facsimile copy of a certified record showing two prior felony convictions in Indiana, the State's evidence did not satisfy the authentication requirements of Rule 902(4), Ala. R. Evid.
Section 13A-5-10.1(a), Ala.Code 1975, provides that "[c]ertified copies of case action summary sheets, docket sheets or other records of the court are admissible for the purpose of proving prior convictions of a crime, if the prior conviction is otherwise admissible under the laws of the state." Records showing prior convictions are properly admitted if they are certified by the clerk or deputy clerk of the court in which those convictions were obtained. See Elston v. State, 687 So.2d 1239, 1241 (Ala.Crim.App.1996) (holding that the records detailing the defendant's convictions were properly authenticated because they were certified by the deputy clerk of the court in which those convictions were obtained). This method of authentication has been recognized as a proper method for proving a prior conviction to establish the existence of an aggravating circumstance in a capital case. See Bush v. State, 695 So.2d 70, 91 (Ala.Crim.App.1995), aff'd, 695 So.2d 138 (Ala.1997). The use of this method is supported by Rule 44(a)(1), Ala. R. Civ. P., which, when amended in 1995, superseded § 12-21-70, Ala.Code 1975. Rule 44(a)(1), Ala. R. Civ. P., prescribes the means used for proving out-of-state convictions when the official records of those convictions are kept outside the state. Rule 44(a)(1) states:
"An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within a territory subject to the administrative or judicial jurisdiction of the United States or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by a person purporting to be the officer having the legal custody of the record, or by the officer's deputy. If the official record is kept without the state, the copy shall be accompanied by a certificate under oath of such person that such person is the legal custodian of such record and that the laws of the state require the record to be kept."
Like the documents in Elston, the record presented in this case that detailed Hagood's prior convictions was properly certified by the clerk of the Newton Superior Court, Newton County, Indiana.
Alabama has in the past barred the use of fax copies of certified records of conviction. See Shumate v. State, 676 So.2d *217 1345, 1346-47 (Ala.Crim.App.1995) (holding that a facsimile copy of a certified copy of a document showing a prior felony conviction is not sufficient proof of a prior felony conviction for purposes of enhancing a criminal defendant's sentence under the Habitual Felony Offender Act). However, the Alabama Rules of Evidence, adopted effective January 1, 1996, changed this. Those rules positively allow the use of fax copies of records showing prior out-of-state convictions. Rule 1001(2) and (3) and Rule 1003; and see Charles W. Gamble, McElroy's Alabama Evidence, Section 225.01(1) (5th ed.1996).
Rule 1003, Ala. R. Evid., states that "[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." The Advisory Committee's Notes indicate that Rule 1003 was intended to "exempt[ ] duplicates from the best evidence rule of preference for originals" and to make duplicates "admissible, without accounting for the original or establishing its unavailability." Rule 1001(3) defines the term "duplicate":
"[A] counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, or by equivalent technique which accurately reproduces the original."
The fax copy of the record detailing Hagood's prior convictions in Indiana falls within the Rule 1001(3) definition of "duplicate." The fax copy exactly replicated the certified record, and was intended to serve in lieu of the original, which was kept in Indiana. Moreover, Hagood never raised "a genuine question ... as to the authenticity of the original" document or certification showing his prior convictions. Rule 1003. Likewise, during the sentencing phase of his trial Hagood never disputed the validity of his prior convictions. He merely argued that the fax copy of the record detailing his prior convictions was not in proper form.
We conclude that, in regard to proving the prior convictions, the State followed each of the requirements of our evidentiary rules. Therefore, the trial court did not err during the sentencing phase of the trial when it admitted the record showing Hagood's prior convictions in Indiana. Accordingly, we conclude that the Court of Criminal Appeals' holding that these records were admissible does not conflict with Allen v. State, supra, as Hagood contends.

II.
Hagood next contends that the opinion of the Court of Criminal Appeals creates a direct conflict with that court's prior decision in Bailey v. State, 574 So.2d 1001 (Ala.Crim.App.1990). Hagood argues that that court held in Bailey that under Alabama caselaw an expert cannot testify as to a conclusion on an ultimate issue the jury is to decide. Hagood asserts that he was unfairly prejudiced during the sentencing phase of his trial because, he says, the trial court allowed Dr. Warner to "answer the ultimate question of fact" in this case.
Hagood argues that the State asked Dr. Warner's opinion concerning an ultimate issue of fact, specifically, whether this crime was "especially heinous." However, contrary to what Hagood claims, the trial court sustained Hagood's objection to this question, and the trial court never allowed Dr. Warner to answer it. The following colloquy took place during the sentencing phase:
"[Prosecutor]: ... [W]ould you say and would it be your opinion that this case was especially heinous to the victim, Buddy Price?
"[Defense counsel]: Judge, objection.
"[Court]: Sustained."
Because the trial court did not allow Dr. Warner to answer the question, we conclude that Hagood was not prejudiced by that question.
In Deep v. State, 414 So.2d 141, 150 (Ala.Crim.App.1982), the Court of Criminal *218 Appeals addressed a somewhat similar issue. In rejecting the defendant's claim of prejudice, that court held in Deep that "the potential prejudicial effect of [an] unanswered question [is] removed by the action of the trial court in sustaining [the defendant's] objection." Id. The court in Deep held that it was sufficient that the trial court sustained the defendant's objection to the questionthe trial court was not required to give curative instructions to the jury. Id.
We see no conflict between the Court of Criminal Appeals' opinion in this case and its opinion in Bailey, supra, and we conclude that Hagood was not prejudiced by the unanswered question.

III.
The Court of Criminal Appeals reversed Hagood's sentence because it concluded that the trial court, during the sentencing phase of Hagood's trial, gave an insufficient jury instruction regarding an aggravating circumstance. The State argues that the Court of Criminal Appeals erred in that regard.
At the sentencing phase, the trial court instructed the jury on what the State contended was an aggravating circumstance in Hagood's casethat the murder was committed during the commission or attempted commission of a robbery. The court instructed the jury as follows:
"A person commits the crime of robbery in the first degree if he uses or threatens to use or threatens the use of forceI'm sorryagainst the owner of personal property. And, while in the course of committing a theft of personal property with intent to overcome his physical power of resistance, in order to compel his acquiescence in the taking of the personal property, and in the course of said theft, he intentionally causes serious physical injury or death to a person."
(R. 1476.) The Court of Criminal Appeals held that because the term "theft" is defined by statute,[1] and because the jury had not already been instructed during the guilt phase of the trial on the offense of robbery and all its elements, including the definition of "theft," the trial court erred in not instructing the jury on the statutory definition of "theft" during its sentencing instructions. The Court of Criminal Appeals relied, in part, on our decision in Ex parte Stewart, 659 So.2d 122 (Ala.1993).
In Ex parte Stewart, 659 So.2d 122 (Ala. 1993), we reversed a death sentence and remanded the case for the trial court to conduct new sentencing proceedings because the trial court had given an erroneous instruction to the jury during the sentencing phase. We held that although the trial court properly found two statutory aggravating circumstances, this fact did not render the erroneous instruction harmless. Id. at 128. Our holding in Stewart was based upon Ex parte Williams, 556 So.2d 744 (Ala.1987), wherein we had held that the mere fact that a sentencing jury had considered an improper aggravating circumstance required that the sentence of death be set aside, despite the fact that the trial court had properly exercised its sentencing authority. 556 So.2d at 745.
This case and Stewart are distinguishable. The issue in Stewart was an erroneous jury instruction; the issue in this case deals with a question of the sufficiency of a jury instruction. We conclude that the jury instruction on robbery in this case was sufficient.
The trial court's instructions on the aggravating circumstance of robbery are substantially the same as those stated in the pattern jury instruction on murder during robbery in the first degree developed *219 by the Alabama Law Institute and recommended by this Court.[2] It is the preferred practice to use the pattern jury instructions in a capital case. Stewart v. State, 730 So.2d 1203, 1211 (Ala.Crim.App. 1996); cf. Ex parte Harrell, 470 So.2d 1309, 1314 (Ala.1985); and Boyd v. State, 715 So.2d 825, 844 (Ala.Crim.App.1997) (holding that there is no plain error in regard to a jury charge when the charge substantially follows the Alabama Pattern Jury Instructions). Because the trial court's instruction on robbery was substantially the same as the pattern jury instruction on robbery, even though it did not contain the statutory definition of "theft," we find no error.
The Court of Criminal Appeals, in its well-reasoned opinion, recognized that there are instances where, even though a term has been defined by statute, the failure to define that term for the jury does not constitute reversible error. It went on to explain that in those instances, the "term" is not susceptible to different interpretations. Consequently, it stated that it could not say that the term "theft" is subject to only one interpretation and thus could not say that the term "theft" could be understood by average jurors in its common usage. 777 So.2d at 197. We disagree.
The Court of Criminal Appeals recognized in its opinion that in some cases, even though a relevant term is statutorily defined, the trial court's failure to give the statutory definition does not constitute reversible error. This is one of those cases. The term "theft" is a term of sufficient common understanding and did not need to be specifically defined in order for the jury to adequately consider the crime of robbery as an aggravating circumstance in this case. Other courts that have addressed this issue have reached the same result. See State v. Ng, 110 Wash.2d 32, 44, 750 P.2d 632, 639 (1988) ("theft," like "assault," is a term of such common understanding as to allow the jury to convict of robbery); see also Commonwealth v. Yarris, 519 Pa. 571, 598, 549 A.2d 513, 527 (1988) ("theft" is commonly understood as stealing, and the trial court's recitation of theft as an element of the crime of robbery is adequate); Gauldin v. State, 632 S.W.2d 652, 656 (Tex.App.1982) (the charge to the jury, which included as an element of the robbery offense, that it occurred "in the course of committing theft," is sufficient); State v. Hudson, 157 W.Va. 939, 944-45, 206 S.E.2d 415, 419 (1974) (instruction that the crime of robbery consists of a felonious taking of property from a person by violence and that it also consists of theft of property from the victim by the use of force and arms was held sufficient); compare Grant v. State, 420 So.2d 903 (Fla. Dist.Ct.App.1982) (the elements of the underlying felony need not be explained with the same particularity that would be required if that offense were the primary crime charged); and Hensley v. State, 228 Ga. 501, 503-04, 186 S.E.2d 729, 731 (1972) (the trial court's instructions to the jury, defining "armed robbery" in the language of a Georgia statute, which uses the term "with intent to commit theft," were sufficient).
In a capital case, when the judge is charging the jury on the underlying felony stated in the aggravating circumstance found in § 13A-5-49(4), Ala.Code 1975, the preferred practice is to charge the jury on each element of the applicable underlying *220 felony. However, in this case, we conclude that the trial court's failure to give the jury the statutory definition of "theft" was not error, because the instruction sufficiently apprised the jury of the crime of robbery.
Our conclusion is supported by the Court of Criminal Appeals' opinion in Miller v. State, 405 So.2d 41 (Ala.Crim.App. 1981), which the State cited in its brief in support of its petition for the writ of certiorari. In Miller, the Court of Criminal Appeals held that a jury charge on robbery in the first degree, almost identical to the charge given in this case, adequately explained the term "theft."[3]Id. at 48.

IV.
The Court of Criminal Appeals pretermitted discussion of four issues relating to Hagood's sentence, in light of its order remanding for further sentencing proceedings. Although Hagood did not present these issues in his petition for the writ of certiorari, we have addressed one of these issues in Section I, supra, and we have reviewed the remaining three issues for plain error, since Hagood made no objection at trial in regard to the alleged errors these issues relate to. After thoroughly reviewing the record and the applicable caselaw, we find no plain error.

V.
The judgment of the Court of Criminal Appeals is affirmed insofar as it affirmed Hagood's conviction for the capital offense of murder during a kidnapping in the first degree, § 13A-5-40(a)(1), Ala.Code 1975. We reverse that judgment insofar as it reversed the sentence of death and remanded for new sentencing proceedings. This case is remanded with instructions for the Court of Criminal Appeals to reinstate the trial court's order sentencing Hagood to death.
1980445AFFIRMED AS TO THE CONVICTION.
1980414REVERSED AS TO THE SENTENCE AND REMANDED WITH INSTRUCTIONS TO REINSTATE THE DEATH SENTENCE.
HOUSTON, COOK, SEE, and JOHNSTONE, JJ., concur.
HOOPER, C.J., and LYONS, J., concur in part and concur in the result in part.
BROWN, J., recuses herself.[*]
HOOPER, Chief Justice (concurring in part and concurring in the result in part).
I concur in the main opinion, except as to Part I; as to Part I, I concur in the result. I write specially to elaborate on the issue regarding the admissibility of a facsimile copy of a certified copy of a document evidencing a prior conviction. I agree that the justice system is moving toward the point at which it will need to admit into evidence facsimile copies of certified copies of documents showing prior convictions. Today's world is moving at an even faster pace, and the justice system must keep up. However, I believe this change in the law is not clearly provided for by the Alabama Rules of Evidence and that it merits further explanation.
The reason for requiring a certified copy is to have the lawful custodian of the original verify that the document being offered to prove the prior offense is an accurate copy of the original. Certified copies provide an assurance of authenticity and, for this reason, are self-authenticating under Rule 902, Ala. R. Evid. A copy of a certified *221 copy does not provide an assurance that the copy is authentic, only that the certified copy is authentic. Nevertheless, a facsimile copy falls within the definition of an admissible "duplicate" in Rule 1001 because it accurately reproduces the original. In permitting other jurisdictions to send by fax copies of certified copies of documents evidencing convictions, the potential for fraud is minimized because the source of the facsimile transmission is the same as the source of the certified copy. Furthermore, the kind of document at issue in this case does not lend itself to a probability of fraud or tampering. When a record of a conviction is certified and transmitted by facsimile to a requesting court, it is unlikely that the clerk or custodian of records in the sending court will have a motive to falsify the document.
However, I do not believe that a facsimile copy of a certified copy of a document evidencing a conviction will always be admissible. Under Rule 1003, a defendant may raise an objection as to authenticity or as to unfairness in admitting the duplicate. Furthermore, I would not extend today's holding to permit the admission of facsimile copies that did not originate from the source of the certified copy. In other words, as long as the facsimile originates from the clerk or custodian of the records, the fax copy of the certified copy would be admissible.
In this case, the certificate of exemplification detailing Hagood's prior conviction was properly signed by the judge and the clerk of the Newton Superior Court in Newton County, Indiana, and it was transmitted by facsimile. Hagood did not question the authenticity of the document, nor did he dispute the validity of his prior conviction. Therefore, I agree that the record of Hagood's prior conviction was properly admitted.
LYONS, J., concurs.
NOTES
[1]  See § 13A-8-2, Ala.Code 1975, which states:

"A person commits the crime of theft of property if he:
"(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property...."
[2]  The pattern jury instruction for the crime of "murder during robbery in the first degree (or attempt thereof)" (based upon § 13A-5-40(a)(2), Ala.Code 1975), set out in Alabama Pattern Jury InstructionsCriminal p. 5-28 (3d ed.1994), states, in part:

"A person commits a robbery in the first degree if, in the course of committing or attempting to commit a theft, he uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance, or threatens the imminent use of force against the person of the owner (or any person present) with intent to compel acquiescence to the taking of or escaping with the property, and in doing so he causes serious physical injury to another."
[3]  The jury charge on robbery in the first degree given in Miller was as follows:

"Therefore, in order to find a Robbery in the First Degree offense, you must find that the Defendant in this case, Katherine Miller, committed or attempted to commit theft from the person or presence of the named party in the indictment, Mrs. Starling, I have forgotten her first name, and that in the course of committing or attempting to commit the theft, the Defendant, Katherine Miller either used force or threatened the imminent use of force against the person of Mrs. Starling with the intent to overcome her physical resistance or physical power to resist or to compel acquiescence to the taking of or an escaping with the property."
405 So.2d 41, 48.
[*]  Justice Brown was a member of the Court of Criminal Appeals when that court considered this case.


70 F.3d 1269
Gonzalesv.I.T.T. Consumer Fin.
NO. 94-50710
United States Court of Appeals,Fifth Circuit.
Oct 27, 1995
Appeal From:  W.D.Tex., No. SA-92-CA-749

1
AFFIRMED.


                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

WILLIE JAMES BOONE,                   NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-4646

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed February 7, 2017.

An appeal from an order of the Circuit Court for Jefferson County.
Dawn Caloca-Johnson, Judge.

Willie James Boone, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney
General, Tallahassee, for Appellee.

PER CURIAM.

      AFFIRMED.

B.L. THOMAS, OSTERHAUS, and BILBREY, JJ., CONCUR.


846 F.2d 70Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Leonard Gayle DAVIDSON, Plaintiff-Appellant,v.Robert M. LANDON, Patrick Gurney, L.B. Cei, Richard A.Young, Wade D. Blankenship, L.K. Hardy, J.B.Ruard, L. Harris, L.W. Sink, J.Umberger, W. Perdue, LacyAnderson,Defendants-Appellees.
No. 88-6559.
United States Court of Appeals, Fourth Circuit.
Submitted March 31, 1988.Decided May 12, 1988.

Leonard Gayle Davidson, appellant pro se.
Richard Francis Gorman, III, Office of Attorney General, for appellees.
Before WIDENER, CHAPMAN, and WILKINSON, Circuit Judges.
PER CURIAM:

1
Leonard Gayle Davidson noted this appeal outside the 30-day appeal period established by Fed.R.App.P. 4(a)(1), and failed to move for an extension of the appeal period within the additional 30-day period provided by Fed.R.App.P. 4(a)(5).  The time periods established by Fed.R.App.P. 4 are "mandatory and jurisdictional."   Browder v. Director, Dep't of Corrections, 434 U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S. 220, 229 (1960)).  Appellant's failure to note a timely appeal or obtain an extension of the appeal period deprives this Court of jurisdiction to consider this case.   See Shah v. Hutto, 722 F.2d 1167 (4th Cir.1983) (en banc), cert. denied, 466 U.S. 975 (1984).  We therefore dismiss the appeal.  We dispense with oral argument because the facts and legal arguments are adequately presented in the materials before the Court and oral argument would not significantly aid the decisional process.

2
DISMISSED.


                                   MEMORANDUM OPINION
                                           No. 04-11-00904-CV

                    In the INTEREST OF M.D., A.D., A.D., R.D., M.D., Children

                     From the 285th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011-PA-00352
                    Honorable Charles E. Montemayor, Associate Judge Presiding 1

Opinion by:       Marialyn Barnard, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 9, 2012

MOTION TO WITHDRAW GRANTED; AFFIRMED

           Appellant mother, N.D., appeals the trial court’s judgment terminating her parental rights

to M.D., A.D., A.D., R.D., and M.D. Appellant’s court-appointed appellate attorney has filed a

motion to withdraw and a brief containing a professional evaluation of the record demonstrating

there are no arguable grounds to be advanced and concluding the appeal is frivolous. The brief

meets the requirements of Anders v. California, 386 U.S. 738 (1967). See In re R.R., No. 04-03-

00096-CV, 2003 WL 21157944, *4 (Tex. App.—San Antonio May 21, 2003, order) (applying

Anders procedure to appeals from orders terminating parental rights), disp. on merits, 2003 WL

22080522 (Tex. App.—San Antonio Sept. 10, 2003, no pet.) (mem. op.).                          Appellant was

1
  The Honorable Richard Price is the presiding judge of the 285th Judicial District Court. However, the order of
termination was signed by the Honorable Charles E. Montemayor, Associate Judge.
                                                                               04-11-00904-CV

provided a copy of the brief and informed of her right to file her own brief. See Nichols v. State,

954 S.W.2d 83, 85-86 (Tex. App.—San Antonio July 23, 1997, no pet.); In re R.R., 2003 WL

21157944, at *4. Appellant did not file a pro se brief.

       We have reviewed the record and the attorney’s brief and we agree with counsel that the

appellate points do not present a substantial question for appellate review. See TEX. CIV. PRAC.

& REM. CODE ANN. § 13.003(b) (West 2002); TEX. FAM. CODE ANN. § 263.405(d)(3)

(incorporating section 13.003(b) by reference). Accordingly, we hold the trial court did not

abuse its discretion in finding the points of appeal to be frivolous. We grant the motion to

withdraw and affirm the trial court’s judgment.

                                                  Marialyn Barnard, Justice

                                               -2-