alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
Opinion filed September 14 , 202 3



### In The 

# Eleventh Court of Appeals

_____ _

_____


### No. 11

- 2 2

- 00246

- C R

_____ __ ____


### MONTE DAWN MCGOWAN , Appellant

V.

THE STATE OF TEXAS , Appellee

On Appeal from the 4 2nd District Court Taylor County, Texas
Trial Court Cause No

. 29506

- A

M E M O R A N D U M O P I N I O N

Monte Dawn McGowan

, Appellant, waived his right to a jury trial and entered
an open plea of guilty to the offense of possession of methamphetamine , a third

degree felony, enhanced with a prior felony conviction

. See T EX

. P ENAL C ODE

. A NN

. § 12.42(a) (West 2019 ); T EX

. H EALTH & S AFETY C ODE A NN

. § 481.115(a), (c)
(West Supp. 2022 )

. Appellant pled “true” to the State’s enhancement allegation.
Appellant testif ied at sentencing

. T he trial court found Appellant guilty and assess ed

his punishment at imprisonment f or fifteen years in the Institutional Division of the

Texas Department of Criminal Justice

. We affirm

.2 Appellant’s court

- appointed counsel has filed in this court a motion to

withdraw. The motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and concludes that the
appeal is frivolous and without merit . Counsel has provided A ppellant with a copy

of the brief , a copy of the motion to withdraw, an explanatory letter, and a copy of

both the clerk’s record and the reporter’s record

. Counsel advised A ppellant of h is
right to review the record and file a response and of h is right to file a petition for
discretionary review with the clerk of the Texas Court of Criminal Appeals seeking
review by that court

. See T EX

. R. A PP

. P. 68. Court

- appointed counsel has complied
with the requirements of Anders v. California , 386 U.S. 738 (1967); Kelly v. State

, 436 S.W.3d 313 (Tex. Crim . App. 2014); In re Schulman , 252 S.W.3d 403 (Tex.
Crim. App. 2008); and Stafford v. State , 813 S.W.2d 503 (Tex. Crim. App. 1991)

. Appellant has not filed a response to counsel’s Anders brief. Following the
procedures outlined in Anders and Schulman , we have independently reviewed the
record, and we agree with counsel that the appeal is frivolous and without merit

. 1
Accordingly, w e grant counsel’s motion to withdraw, and we affirm the
judgment of the trial court.

W. STACY TROTTER

JUSTICE
September 14 , 2023
Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter , J., and Will iams , J.

1 We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68 of the Texas Rules of Appellate Procedure.
#### The People ex rel. Philip O’Sullivan, Appellant, *v.*Stephen B. French et al., as Commissioners, etc., Respondents.

(Submitted June 16, 1890;

decided June *24,*1890.)

Appear from order of the General Term of the Supreme Court in the first judicial department, made November 7,1889, which affirmed the proceedings of the respondents in compos, ing the board of police commissioners of the police department of the city of New Tort removing the relator from the police force of said city, and dismissed a writ of certiorari issued to review said proceedings.

*Louis J. Orcmt*for appellant.

*Damid J. Deem*and *Edward LI. Hawke, Jr.,*for respondents.

Agree to affirm ; no opinion.

All concur.

Order affirmed.
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```

[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 672 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 672

  To amend the Internal Revenue Code of 1986 to extend and modify the 
                   railroad track maintenance credit.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 29, 2011

 Mr. Reid (for Mr. Rockefeller (for himself, Mr. Crapo, Mr. Moran, Mr. 
   Wyden, Mr. Roberts, Mrs. Gillibrand, Mr. Wicker, Mr. Boozman, Mr. 
 Thune, and Ms. Snowe)) introduced the following bill; which was read 
             twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL

 
  To amend the Internal Revenue Code of 1986 to extend and modify the 
                   railroad track maintenance credit.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Short Line Railroad Rehabilitation 
and Investment Act of 2011''.

SEC. 2. EXTENSION AND MODIFICATION OF RAILROAD TRACK MAINTENANCE 
              CREDIT.

    (a) Extension of Credit.--Section 45G(f) of the Internal Revenue 
Code of 1986 is amended by striking ``January 1, 2012'' and inserting 
``January 1, 2018''.
    (b) Expenditures.--Subsection (d) of section 45G of the Internal 
Revenue Code of 1986 is amended by striking ``for maintaining'' and all 
that follows and inserting ``for maintaining--
                    ``(A) in the case of taxable years beginning after 
                December 31, 2004, and before January 1, 2012, railroad 
                track (including roadbed, bridges, and related track 
                structures) owned or leased as of January 1, 2005, by a 
                Class II or Class III railroad (determined without 
                regard to any consideration for such expenditures given 
                by the Class II or Class III railroad which made the 
                assignment of such track), and
                    ``(B) in the case of taxable years beginning after 
                December 31, 2011, railroad track (including roadbed, 
                bridges, and related track structures) owned or leased 
                as of January 1, 2012, by a Class II or Class III 
                railroad (determined without regard to any 
                consideration for such expenditures given by the Class 
                II or Class III railroad which made the assignment of 
                such track).''.
    (c) Effective Date.--The amendments made by this section shall 
apply to taxable years beginning after December 31, 2011.
                                 <all>
```
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Exhibit 32

SECTION 906 CERTIFICATION OF CHIEF EXECUTIVE OFFICER AND CHIEF

FINANCIAL OFFICER

Statement

Solely for the purposes of
complying with 18 U.S.C.§1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, we, the undersigned Chief Executive Officer and the Chief Financial Officer of Sonic Foundry, Inc. (the Company), hereby
certify, based on our knowledge, that the Quarterly Report on Form 10-Q of the Company for the quarter ended December 31, 2007 (the Report) fully complies with the requirements of Section 13(a) of the Securities Exchange Act of
1934 and that information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Dated: February 8, 2008



|       |  |                         
|------ |  | ------------------------
|By:    |  | /s/ Rimas P. Buinevicius
|By:    |  | Rimas P. Buinevicius    
|Title: |  | Chief Executive Officer 



|       |  |                        
|------ |  | -----------------------
|By:    |  | /s/ Kenneth A. Minor   
|By:    |  | Kenneth A. Minor       
|Title: |  | Chief Financial Officer



25
#### In the Matter of Eugene T., a Person Alleged to be a Juvenile Delinquent, Appellant.

[942 NYS2d 343]

Order of disposition, Family Court, Bronx County (Sidney Gribetz, J.), entered on or about June 20, 2011, which adjudicated appellant a juvenile delinquent upon his admission that he committed an act that, if committed by an adult, would constitute the crime of criminal mischief in the fourth degree, and placed him on probation for 12 months, unanimously affirmed, without costs.

The court properly exercised its discretion when it adjudicated appellant a juvenile delinquent and placed him on probation rather than adjudicating him a person in need of supervision. The disposition was the least restrictive dispositional alternative consistent with appellant’s needs and the community’s need for protection *(see Matter of Katherine W.,*62 NY2d 947 [1984]). The underlying incident was a serious and violent attack by appellant on his mother and sister. In addition, appellant had a history of violence and intimidation at home and at school, as well as gang associations. Concur — Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ.
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6997

SYLVESTER WILDER,

Petitioner - Appellant,

v.

WARDEN of LIEBER CORRECTIONAL INSTITUTION,

Respondent – Appellee,

and

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS,

Respondent.

Appeal from the United States District Court for the District of 

South Carolina, at Florence. Richard Mark Gergel, District 

Judge. (4:10-cv-02368-RMG)

Submitted: November 15, 2011 Decided: November 18, 2011

Before NIEMEYER and KEENAN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Dismissed by unpublished per curiam opinion.

Sylvester Wilder, Appellant Pro Se. Donald John Zelenka, Deputy 

Assistant Attorney General, William Edgar Salter, III, Assistant 

Attorney General, Columbia, South Carolina, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

Sylvester Wilder seeks to appeal the district court’s 

order dismissing as untimely his 28 U.S.C. § 2254 (2006) 

petition. The district court referred this case to a magistrate 

judge pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West 2006 & Supp. 

2011). The magistrate judge recommended that relief be denied 

and advised Wilder that failure to file timely and specific

objections to this recommendation could waive appellate review 

of a district court order based upon the recommendation.

The timely filing of specific objections to a 

magistrate judge’s recommendation is necessary to preserve 

appellate review of the substance of that recommendation when 

the parties have been warned of the consequences of 

noncompliance. Wright v. Collins, 766 F.2d 841, 845-46 (4th 

Cir. 1985); see also Thomas v. Arn, 474 U.S. 140 (1985). Wilder

has waived appellate review by failing to file objections after 

receiving proper notice. Accordingly, we deny a certificate of 

appealability and dismiss the appeal.

We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process.

DISMISSED
```

[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 663 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 663

                  For the relief of Al-Housseynou Ba.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 29, 2011

   Mr. Levin introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

 
                  For the relief of Al-Housseynou Ba.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. ADJUSTMENT OF STATUS.

    (a) In General.--Notwithstanding subsections (a) and (b) of section 
201 of the Immigration and Nationality Act (8 U.S.C. 1151), Al-
Housseynou Ba shall be eligible for an immigrant visa or for adjustment 
of status to that of an alien lawfully admitted for permanent residence 
upon filing an application for issuance of an immigrant visa under 
section 204 of that Act (8 U.S.C. 1154) or for adjustment of status to 
lawful permanent resident.
    (b) Adjustment of Status.--If Al-Housseynou Ba enters the United 
States before the filing deadline set forth in subsection (c), Al-
Housseynou Ba shall be considered to have entered and remained lawfully 
in the United States and shall be eligible for adjustment to lawful 
permanent resident status under section 245 of the Immigration and 
Nationality Act (8 U.S.C. 1255) as of the date of the enactment of this 
Act.
    (c) Application and Payment of Fees.--Subsections (a) and (b) shall 
apply only if the application for issuance of an immigrant visa or for 
adjustment of status are filed with appropriate fees not later than 2 
years after the date of the enactment of this Act.
    (d) Reduction of Immigrant Visa Numbers.--Upon granting immigrant 
visas or lawful permanent resident status to Al-Housseynou Ba, the 
Secretary of State shall instruct the proper officer to reduce by one, 
during the current or next following fiscal year, the total number of 
immigrant visas that are made available to natives of the country of 
birth of Al-Housseynou Ba under section 202(a)(2) of the Immigration 
and Nationality Act (8 U.S.C. 1152(a)(2)).
                                 <all>
```
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 99-1328

In Re: ANTHONY E. STEPHENSON,

Debtor.

ANTHONY E. STEPHENSON,

Debtor - Appellant,

versus

JAMES H. LEE,

Creditor - Appellee,

and

MARK M. MALAND,

Trustee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (MC-98-36, BK-87-01521-MN2)

Submitted: September 30, 1999 Decided: December 17, 1999

Before WIDENER, WILLIAMS, and TRAXLER, Circuit Judges.
2

Dismissed by unpublished per curiam opinion.

Rosbon D. B. Whedbee, Ahoskie, North Carolina, for Appellant.

Stephen L. Beaman, Richard S. Wright, BEAMAN & KING, P.A., Wilson,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
3

PER CURIAM:

Anthony E. Stephenson seeks to appeal the district court's

order dismissing in part his appeals from the bankruptcy court.

The district court's order granted the creditor's motion to dismiss

two notices of appeal filed by Stephenson (from the bankruptcy

court's March 10 and April 9 orders) but denied the motion as to

Stephenson's July 9 notice of appeal from the bankruptcy court's

June 29, 1998, supplemental order directing transfer of assets. At

the time Stephenson filed this notice of appeal, the district court

had not yet entered a final order with respect to the July 9 notice

of appeal. Therefore, we dismiss the appeal for lack of jurisdiction because the order is not appealable. This court may exercise

jurisdiction only over final orders, 28 U.S.C. § 1291 (1994), and

certain interlocutory and collateral orders, 28 U.S.C. § 1292

(1994); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541 (1949). The order here appealed is neither a

final order nor an appealable interlocutory or collateral order.

We dismiss the appeal as interlocutory. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

DISMISSED
#### Luis De Oleo, Plaintiff, v Charis Christian Ministries, Inc., et al., Defendants. Charis Christian Ministries, Inc., et al., Third Party-Plaintiffs-Appellants, v St. Loren Construction Corp., Third-Party Defendant-Respondent.

[942 NYS2d 340]

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered March 7, 2011, which denied defendants/third-party plaintiffs’ motion for entry of a default judgment on their third-party claims for common-law and contractual indemnification and contribution against third-party defendant, unanimously modified, on the law, to grant the motion as to the claim for common-law indemnification, and otherwise affirmed, without costs.

In this action, plaintiff seeks to recover for injuries sustained while performing construction work at a building owned and managed by appellants (Charis), for his employer, third-party defendant, St. Loren Construction Corp. (St. Loren).

The motion court correctly found that Charis had failed to *542submit adequate proof to support a determination of liability on their claim for contractual indemnification, as they failed to provide a copy of any contract providing for indemnification, or an affidavit detailing the contract’s provisions *(see National Union Fire Ins. Co. of Pittsburgh, Pa. v Sullivan,*269 AD2d 149 [2000]).

However, Charis submitted sufficient proof that, if plaintiff was injured while performing work on the roof of the building owned by Charis, it was due to the negligence of St. Loren, with no negligence on the part of Charis. Charis did not need to disprove the defense of Workers’ Compensation Law § 11, since, in order for an employer to invoke the protection of that statute, it must plead it as an affirmative defense *(see e.g. Caceras v Zorbas,*74 NY2d 884 [1989]; *Joyce v McKenna Assoc.,*2 AD3d 592 [2003]; *Lanpont v Savvas Cab Corp.,*244 AD2d 208 [1997]). Charis had no burden to disprove a defense which had never been raised and a court may not, sua sponte, take judicial notice of a defense which has not been raised *(see e.g. Horst v Brown,*72 AD3d 434 [2010], *lv dismissed*15 NY3d 743 [2010]; *Paladino v Time Warner Cable of N.Y. City,*16 AD3d 646 [2005]). Concur — Saxe, J.P., Sweeny, Moskowitz, Renwick and AbdusSalaam, JJ.