alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
Order entered October 24, 2014

In The

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-14-00649-CV

B.C., Appellant

V.

STEAK N SHAKE OPERATIONS, INC., Appellee

On Appeal from the 380th Judicial District Court

Collin County, Texas

Trial Court Cause No. 380-02686-2012

ORDER

Further review of the record in this case shows that the appellants have filed an agreed 

clerk’s record that is not certified by the trial court clerk but rather was prepared by the parties. 

Although Texas Rule of Appellate Procedure 34.2 permits the parties to agree on the contents of 

the appellate record, the rule also provides that, “to request matter to be included in the agreed 

record, the parties must comply with the procedures in Rules 34.5 and 34.6.” See TEX. R. APP. P.

34.2. Relevant to the clerk’s record, rule 34.5 provides that “any party may file with the trial 

court clerk a written designation specifying items to be included in the record.” See id. 

34.5(b)(1). Rule 35.3, however, states that “the trial court clerk is responsible for preparing, 

certifying, and timely filing the clerk’s record . . . .” TEX. R. APP. P. 35.3(a). Based on rules 

34.2, 34.5, and 35.3, we STRIKE the parties’ agreed clerk’s record and ORDER the parties, 
within ten days of the date of this order, to file with the trial court clerk a written designation 

specifying the items to be included in the record. Id. 34.2, 34.5. We further ORDER Collin 

County District Clerk Andrea Stroh Thompson to file, within ten days of the filing of the written 

designation and payment of the clerk’s fee, a clerk’s record containing the requested items. See 

id. 35.3(a). Upon filing of the clerk’s record, the parties shall within 30 days amend their briefs 

to include appropriate citations to the clerk’s record. TEX. R. APP. P. 38.1(d), (g), (i) . We 

caution appellant that failure to file a properly certified clerk’s record may result, without 

further order, in dismissal of the appeal for want of prosecution.

/s/ CAROLYN WRIGHT

CHIEF JUSTICE
**Exhibit 31.2**

 

CERTIFICATIONOF THE CHIEF FINANCIAL OFFICER PURSUANT TOSECTION 302 OF THESARBANES-OXLEY ACT OF 2002

 

I, Mitchell K.Fogelman, certify that:

 

1.     I have reviewed this Quarterly Report on Form10-Q of International Aluminum Corporation;

 

2.     Based on my knowledge, this report does notcontain any untrue statement of a material fact or omit to state a materialfact necessary to make the statements made, in light of the circumstances underwhich such statements were made, not misleading with respect to the periodcovered by this report;

 

3.     Based on my knowledge, the financialstatements, and other financial information included in this report, fairlypresent in all material respects the financial condition, results of operationsand cash flows of the registrant as of, and for, the periods presented in thisreport;

 

4.     The registrant’s other certifying officer andI are responsible for establishing and maintaining disclosure controls andprocedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for theregistrant and have:

 

a.     designed such disclosure controls andprocedures, or caused such disclosure controls and procedures to be designedunder our supervision, to ensure that material information relating to theregistrant, including its consolidated subsidiaries, is made known to us byothers within those entities, particularly during the period in which thisreport is being prepared;

 

b.     evaluated the effectiveness of theregistrant’s disclosure controls and procedures and presented in this reportour conclusions about the effectiveness of the disclosure controls andprocedures, as of the end of the period covered by this report based on suchevaluation; and

 

c.     disclosed in this report any change in theregistrant’s internal control over financial reporting that occurred during theregistrant’s most recent fiscal quarter that has materially affected, or isreasonably likely to materially affect, the registrant’s internal control overfinancial reporting; and

 

5.     The registrant’s other certifying officer andI have disclosed, based on our most recent evaluation of internal control overfinancial reporting, to the registrant’s auditors and the audit committee ofthe registrant’s board of directors (or persons performing the equivalent functions):

 

a.     all significant deficiencies and materialweaknesses in the design or operation of internal control over financialreporting which are reasonably likely to adversely affect the registrant’sability to record, process, summarize and report financial information; and

 

b.     any fraud, whether or not material, thatinvolves management or other employees who have a significant role in theregistrant’s internal control over financial reporting.

 
| Date:  February 11, 2004 | /s/ MITCHELL K. FOGELMAN         |
|-------------------------------|----------------------------------|
|                          | Mitchell K. Fogelman             |
|                          | Senior Vice  President - Finance |
|                          | and Chief Financial  Officer     |

 

1

----
Electronically Filed

Intermediate Court of Appeals

CAAP-15-0000694

12-APR-2018

08:17 AM
#### UNITED STATES of America, Appellee, v. Melvin QUINN, Appellant.

No. 04-2948.

United States Court of Appeals, Eighth Circuit.

Submitted: Feb. 14, 2005.

Decided: March 9, 2005.

Thomas Christian Albus, U.S. Attorney’s Office, St. Louis, MO, for Plaintiff-Appellee. Michael A. Skrien, Federal Public De*98fender’s Office, Cape Girardeau, MO, for Defendant-Appellant.

Before WOLLMAN, MCMILLIAN, and BENTON, Circuit Judges.

PER CURIAM.

Melvin Quinn was convicted of one count of knowingly and intentionally distributing five grams or more of cocaine base, a violation of 21 U.S.C. § 841. He appeals from the sentence imposed upon him by the district court.1 We affirm.2

I.

Section 841(b)(1)(B) of Title 21 provides that an individual convicted of distributing five grams or more of cocaine base shall be sentenced to a minimum of five years and a maximum of forty years’ imprisonment. When an individual commits that offense “after a prior conviction for a felony drug offense has become final,” Section 841(b)(1)(B) increases the mandatory minimum from five to ten years. Because Quinn had a 1997 state felony drug conviction, the district court sentenced him to ten years’ imprisonment.

Quinn asserts that the district court’s conclusions that his prior state conviction constituted a felony drug offense and that the conviction had become final were both impermissible instances of judicial fact finding. These conclusions are part and parcel to the fact of a prior conviction and do not implicate constitutional concerns. *See United States v. Vieth,*No. 04-1451, 2004 WL 2559109, slip op. at 8 (8th Cir. Feb. 8, 2005) (“As to the enhancement for a prior conviction, the Supreme Court has consistently said that the fact of a prior conviction is for the court to determine, not a jury.”).

II.

Quinn argued at sentencing and now asserts on appeal that the United States Sentencing Guidelines as a whole are unconstitutional. Quinn’s sentence was determined based upon the mandatory minimum sentence set forth in the governing criminal statute, not upon the application of the federal sentencing guidelines. *See Vieth,*slip op. at 8, 2004 WL 2559109. In any event, the Supreme Court has now made clear that the guidelines as a whole are not unconstitutional. *See United States v. Booker,*— U.S.-,-, 125 S.Ct. 738, 768, 160 L.Ed.2d 621, - (2005) (severing and excising two provisions of the Sentencing Reform Act of 1984 but leaving intact the remaining guidelines).

The sentence is affirmed.

1

. The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.

2

. We deny Quinn's February 9, 2005, pro se motion.
#### STATE OF NORTH CAROLINA v. WILLIE EUGENE ALEXANDER

No. 6926SC216

(Filed 30 April 1969)

1. Criminal Law § 113— the instructions — review of voir dire testimony as to prohable cause of arrest

Instructions of trial court which inadvertently reviewed the *voir dire*testimony of a police officer concerning the probable cause for his arrest of defendant without a warrant, which testimony was given in the absence of the jury and consisted of accusatory statements made by persons not witnesses in the trial, *held*prejudicial to defendant.

2. Criminal Law § 168— the instructions — prejudicial error — statement of fact not in evidence

A statement in the instructions of a material fact not contained in the evidence constitutes reversible error.

Appeal by defendant from *Falls, J.,*2 December 1968 Schedule A Session, MecKLENburg Superior Court.

Defendant was found guilty by a jury in case No. 68-CR-412 of a felonious breaking and entering, and in case No. 68-CR-413 of the felony of uttering a forged check. From judgments of confinement defendant appealed, assigning errors.

*Robert Morgan, Attorney General, by T. Buie Costen, Staff Attorney, jor the State.*

*Nivens & Brown, by Calvin L. Brown, jor the dejendant.*

Brock, J.

[1] During the course of the trial the arresting officer was examined in the absence of the jury concerning probable cause for his *514arrest of defendant without a warrant. Upon this *voir dire*considerable testimony was admitted which was appropriate for the purposes for which admitted; and this evidence on *voir dire*was properly not allowed before the jury. Nevertheless, the trial judge, in his charge to the jury, inadvertently reviewed this *voir dire*testimony.

Unquestionably, the accusatory and identifying statements made to the arresting officer by persons who assisted the officer in finding and identifying the defendant, which persons were not witnesses in defendant's trial, were prejudicial to the defendant in both cases.

[2] When the trial judge, in his charge to the jury, makes an inaccurate statement of facts contained in the evidence, this inaccuracy should be called to his attention during or at the conclusion of the charge in order that the error might be corrected. But a statement of a material fact not contained in the evidence constitutes reversible error. *State v. McCoy,*236 N.C. 121, 71 S.E. 2d 921.

There are other assignments of error, but we refrain from discussing them because they probably will not arise upon a new trial.

New trial in both cases.

Campbell and MoRRis, JJ., concur.
IN THE SUPREME COURT OF THE STATE OF MONTANA

Supreme Court No. DA 21-0143

Jill Marie Lotter,

Petitioner and Appellant,

v.

State of Montana,

Respondent and Appellee.

GRANT OF EXTENSION

Pursuant to authority granted under Mont. R. App. P. 26(1), the Appellant is 

given an extension of time until September 9, 2021 to prepare, file and serve the 

Appellant’s opening brief.

Electronically signed by:

Mike McGrath

Chief Justice, Montana Supreme Court

August 9 2021

08/09/2021

Case Number: DA 21-0143
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 95-7292
WALTER R. THOMPSON, JR., Petitioner - Appellant, versus RONALD J. ANGELONE, Director of the Virginia Department of Corrections, Respondent - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca B. Smith, District Judge. (CA-94-557-2) Submitted: January 18, 1996 Decided: February 15, 1996 Before HAMILTON and LUTTIG, Circuit Judges, and CHAPMAN, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Walter R. Thompson, Jr., Appellant Pro Se. Robert H. Anderson,III, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).2 PER CURIAM: Appellant seeks to appeal the district court's order denying relief on his 28 U.S.C. § 2254 (1988) petition. We have reviewedthe record and the district court's opinion accepting the recommendation of the magistrate judge and find no reversible error. Accordingly, we deny a certificate of probable cause to appeal and dismiss the appeal on the reasoning of the district court. Thompson v. Angelone , No. CA-94-557-2 (E.D. Va. July 14, 1995). 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
#### STATE v. BEASLEY

No. 14 PC.

Case below: 2 N.C. App. 323.

Petition for writ of *certiorari*to North Carolina Court of Appeals denied 31 January 1969.
[Federal Register Volume 70, Number 23 (Friday, February 4, 2005)]
[Notices]
[Page 6006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2146]


-----------------------------------------------------------------------

FEDERAL MARITIME COMMISSION


Ocean Transportation Intermediary License Reissuance

    Notice is hereby given that the following Ocean Transportation 
Intermediary license has been reissued by the Federal Maritime 
Commission pursuant to section 19 of the Shipping Act of 1984, as 
amended by the Ocean Shipping Reform Act of 1998 (46 U.S.C. app. 1718) 
and the regulations of the Commission pertaining to the licensing of 
Ocean Transportation Intermediaries, 46 CFR part 515.

------------------------------------------------------------------------
   License No.          Name/address               Date reissued
------------------------------------------------------------------------
004505N..........  Freight Master         December 16, 2004.
                    Systems,
                    International, Inc.,
                    3760 Guion Road,
                    Indianapolis, IN
                    46222.
------------------------------------------------------------------------


Sandra L. Kusumoto,
Director, Bureau of Certification and Licensing.
[FR Doc. 05-2146 Filed 2-3-05; 8:45 am]
BILLING CODE 6730-01-P
#### DUANE VARNER, Appellant, v. STATE OF NEVADA, Respondent.

No. 6961

January 16, 1974

518 P.2d 43

*Halley and Halley,*of Reno, for Appellant.

■ *Robert List,*Attorney General, Carson City; *Robert E. Rose,*District Attorney, and *Kathleen M. Wall,*Assistant Chief Deputy, Washoe County, for Respondent.

*7OPINION

*Per Curiam:*

Convicted of two counts of forgery and two counts of uttering a forged instrument, appellant contends several rulings of the district court were erroneous.

First, appellant contends his Fourth Amendment rights were violated by police who, with his parents’ consent, searched the room he occupied in his parents’ home, and there seized several items, one a check protector which was received in evidence at his trial. Although appellant claims to have been a tenant there, with sole right of control over the room he commonly occupied, cf. Stoner v. California, 376 U.S. 483 (1964), the record warrants a determination that he was merely a guest at the sufferance of his parents, who retained full right of control over the subject premises.

Appellant also contends his Fourth Amendment rights were violated by the admission of evidence found in his vehicle, because voluntariness of his consent to search was not shown by clear and persuasive evidence, cf. McIntosh v. State, 86 Nev. 133, 466 P.2d 656 (1970). “Voluntariness is a question of fact to be determined from all the circumstances,” Schneckloth v. Bustamonte, 412 U.S. 218, at 248-49 (1973), and the record supports the trial court’s determination that appellant’s consent was in fact voluntarily given.

Appellant further assigns as error the admission of a photographic identification display, which he claims was suggestive and denied him due process of law. This photographic identification pertained to an alleged accomplice who was not a defendant in the present action, and we believe appellant has failed to demonstrate that he was in any way prejudiced by the display.

Appellant’s next proffered assignment of error concerns the identification of documents before the jury which were not formally offered as evidence until after both sides rested their *8cases, and which were then held inadmissible. The record reflects that respondent’s counsel examined witnesses concerning such evidence, without objection from appellant’s then counsel, after which appellant’s then counsel cross-examined concerning the documents. It appears that to the extent the jury came to know the nature of these exhibits, notwithstanding their subsequent exclusion, that knowledge must have been derived as much from the questions propounded by appellant’s counsel, as from any of the deputy district attorney’s questions, to which no objections were lodged in any event. We consider these circumstances totally unlike those in State v. Sorenson, 73 Nev. 218, 315 P.2d 508 (1957), upon which appellant relies.

Appellant’s remaining assignments of error are also without merit.

Affirmed.
<TABLE> <S> <C>

          <ARTICLE>     5
          <MULTIPLIER>     1,000
                 
          <S>                                                    <C>
          <FISCAL-YEAR-END>                                    DEC-31-1998 
          <PERIOD-START>                                       JAN-01-1998 
          <PERIOD-END>                                         SEP-30-1998 
          <PERIOD-TYPE>                      9-MOS
          <CASH>                                                     8,870
          <SECURITIES>                                                   0
          <RECEIVABLES>                                            358,668
          <ALLOWANCES>                                              18,699
          <INVENTORY>                                              306,703
          <CURRENT-ASSETS>                                         680,619
          <PP&E>                                                   490,155
          <DEPRECIATION>                                           197,853
          <TOTAL-ASSETS>                                         1,310,832
          <CURRENT-LIABILITIES>                                    184,724
          <BONDS>                                                  599,200
          <PREFERRED-MANDATORY>                                          0
          <PREFERRED>                                                    0
          <COMMON>                                                  52,258
          <OTHER-SE>                                               127,309
          <TOTAL-LIABILITY-AND-EQUITY>                           1,310,832
          <SALES>                                                1,462,622
          <TOTAL-REVENUES>                                       1,462,622
          <CGS>                                                  1,048,375
          <TOTAL-COSTS>                                          1,048,375
          <OTHER-EXPENSES>                                               0
          <LOSS-PROVISION>                                           3,822
          <INTEREST-EXPENSE>                                        33,229
          <INCOME-PRETAX>                                          113,006
          <INCOME-TAX>                                              39,737
          <INCOME-CONTINUING>                                       73,269
          <DISCONTINUED>                                                 0
          <EXTRAORDINARY>                                                0
          <CHANGES>                                                      0
          <NET-INCOME>                                              73,269
          <EPS-PRIMARY>                                               1.40
          <EPS-DILUTED>                                               1.36
                  

</TABLE>
#### HILDA M. BUSS, Appellant, *v.*CONSOLIDATED CASINOS CORPORATION, a Nevada Corporation, dba The Mint, Respondent.

No. 5083

October 5, 1966

418 P.2d 815

*356
      *Jerry C. Lane,*of Eureka, for Appellant.

*Boyd and Leavitt*and *William E. Freedman,*of Las Vegas, for Respondent.

OPINION

*Per Curiam:*

Hilda Buss filed suit against The Mint to collect a grand prize of $2,400. She claims to have held the winning ticket and charges the defendant with destroying it and awarding the prize to another. A summary judgment was entered for the defendant casino. This appeal by the claimant followed. We reverse.

The defendant filed a motion to dismiss for failure to state a claim upon which relief could be granted. The *357lower court treated that motion as one for summary-judgment. This is permissible if “matters outside the pleading are presented to and not excluded by the court.” NRCP 12(b). The difficulty in this case is that the record fails to show that “matters outside the pleading” were offered in any acceptable fashion. Affidavits, depositions, answers to interrogatories, were not presented in support of the motion. See NRCP 56(e). Attached to the motion was a copy of the rules and regulations governing drawings for the grand prize and an advertisement. Neither was authenticated. In this context the lower court was not authorized to treat the Rule 12(b) (5) motion as a motion for summary judgment under Rule 56.1 The court’s error resulted in its failure to rule upon the legal sufficiency of the complaint. We have studied that pleading and conclude that it is sufficient to defeat a Rule 12(b) (5) motion to dismiss. We therefore reverse the judgment, with direction that the defendant assert its defenses by a responsive pleading.

*A*prior motion to dismiss under Rule 12(b)(5) had been presented. That motion was supported by a fact affidavit and opposed by a counter affidavit. The court treated that motion as one for summary judgment and denied it because an issue of material fact remained for trial.
Exhibit 32.1





Certification Pursuant to 18 U.S.C. Section 1350 as


Adopted Pursuant to Section 906 of the Sarbanes – Oxley Act of 2002








In connection with the Annual Report on Form 10-K of BSD Medical Corporation (the “Company”) for the fiscal year ended August 31, 2010, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Harold R. Wolcott, President (Principal Executive Officer) of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes – Oxley Act of 2002, that:





1.
The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and





2.
The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.











Date:
November 29, 2010By:
/s/ Harold R. WolcottHarold R. WolcottPresident(Principal Executive Officer)








---