Opinion
No. 04-20-00264-CR
02-22-2021
Montrail Thomas BUTLER, Appellant v. The STATE of Texas, Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2017CR6323
Honorable Stephanie R. Boyd, Judge Presiding
ORDER
Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Lori I. Valenzuela, Justice
Appellant's notice of appeal was filed on May 6, 2020. On May 12, 2020, the trial court appointed Judith Wemmert to represent appellant on appeal. Appellant's brief, due September 3, 2020, has not been filed. This court notified Ms. Wemmert of the deficiency on September 18, 2020 and required her to file a response by September 28, 2020. TEX. R. APP. P. 38.8(b)(2). We received no response. Therefore, on October 14, 2020, we issued an order abating this case to the trial court for an abandonment hearing. Our order instructed the trial court to answer the following questions:
(1) Does appellant desire to prosecute his appeal?
(2) Is appellant indigent? If appellant is indigent, the trial court shall take such measures as may be necessary to assure the effective assistance of counsel, which may include the appointment of new counsel.
(3) Has appointed or retained counsel abandoned the appeal? Because sanctions may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing.
On October 30, 2020, Ms. Wemmert, filed a first motion for extension of time. On November 12, 2020, the trial court filed its findings of fact from the abandonment hearing. The trial court found: (1) appellant desires to continue his appeal, (2) he is indigent, and (3) Ms. Wemmert has not abandoned the appeal.
On November 16, 2020, this court granted Ms. Wemmert's motion for extension of time and ordered her to file appellant's brief no later December 20, 2020. Our order cautioned Ms. Wemmert that further requests for an extension of time would be disfavored. Ms. Wemmert did not file appellant's brief. Accordingly, on January 7, 2021, this court issued an order informing Ms. Wemmert that if she failed to file appellant's brief no later than January 18, 2021, she would be ordered to appear and show cause why she should not be held in civil or criminal contempt or otherwise sanctioned. Our order directed the Clerk of this court to serve a copy of this order on Ms. Wemmert by regular United States mail and by certified mail, return receipt required, to provide the trial court with a copy of the order. Ms. Wemmert did not file the brief.
On January 22, 2021 and January 28, 2021, this court contacted Ms. Wemmert's office as a matter of courtesy to enquire about the late brief. Ms. Wemmert did not file the brief, a motion to extend time, or return this court's calls.
We therefore ORDER Judith Wemmert to appear on March 24, 2021 at 10:00 a.m., before a panel consisting of Chief Justice Martinez, Justice Alvarez, and Justice Valenzuela to show cause why she should not be held in criminal contempt and civil contempt of this court or otherwise sanctioned for violating this court's January 7, 2021 order by failing to file appellant's brief by January 18, 2021. Ms. Wemmert is advised she has a right to be represented by counsel at the show cause hearing and the proceedings will be recorded by a certified court reporter.
In accordance with the Texas Supreme Court's emergency orders in response to the COVID-19 pandemic, the hearing will be held through the Fourth Court of Appeals' Zoom license. Ms. Wemmert will receive a separate e-mail that will contain a link for the hearing. Ms. Wemmert and her counsel, if any, are admonished as follows:
1. The link to Zoom is only for Ms. Wemmert and her counsel, if any, and is not to be shared with any other person. Ms. Wemmert and her counsel, if any, will need a computer or other electronic device with a camera, a microphone, and access to the Internet. If Ms. Wemmert and her counsel, if any, intends to present any exhibits during the hearing, any such exhibits must be electronically filed by noon on the day before the hearing.
2. The hearing will be live streamed to the Court's YouTube channel for the benefit of the public. The hearing can be accessed using the following link: https://www.youtube.com/channel/UCiaWJQ7eW5OQIALdyLN6s3A
3. Ms. Wemmert and her counsel, if any, are encouraged to familiarize themselves with the Zoom platform. The Clerk of the Court will contact Ms. Wemmert no later than the week before the hearing to verify connectivity and equipment.
4. Ms. Wemmert and her counsel, if any, must wear court-appropriate attire and choose an appropriate background.
We further ORDER the Clerk of this court to effect personal service of this order on Ms. Wemmert as soon as possible and serve a copy of this order on her by first class U.S. mail and by certified mail, return receipt requested.
This order does not dispense with Ms. Wemmert's continuing obligation to prepare and file a brief on appellant's behalf.
Entered on this 22nd day of February, 2021.
PER CURIAM ATTESTED TO: /s/_________
MICHAEL A. CRUZ,
Clerk of Court