Opinion
No. 06-15-00201-CR
06-01-2016
SERGIO FONZA-CAREY, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court Gregg County, Texas
Trial Court No. 43866-A Before Morriss, C.J., Moseley and Burgess, JJ. ORDER
Sergio Fonza-Carey appeals from his conviction of unlawful possession of a firearm by a felon and the resulting sentence of two years' confinement. Fonza-Carey's notice of appeal was filed November 18, 2015. The clerk's record was filed December 2, 2015, and the reporter's record was originally due to be filed on December 18, 2015. However, the appellant, who did not file an affidavit of indigence, failed to make satisfactory payment arrangements for the transcription of the record. On December 30, 2015, we sent Fonza-Carey a letter advising of the delinquent record and giving him until January 20, 2016, to demonstrate to the Court that he was making a reasonable effort to obtain the reporter's record. Fonza-Carey finally paid for the transcription of the reporter's record on February 1, and the record was filed March 9, making Fonza-Carey's appellate brief originally due April 8.
Fonza-Carey's appellate counsel, Clement Dunn, has filed four motions to extend the April 8 filing deadline. We granted the first two motions, extending the filing deadline to May 13. While we overruled counsel's third motion and entered an order requiring him to file Fonza-Carey's brief on or before May 27, this was effectively a grant of the motion as we provided counsel all of the time requested in his third motion. We hereby overrule counsel's fourth motion for an extension of the briefing deadline.
Because appellant's brief has not been filed in the face of our May 17, 2016, order requiring that it be filed by May 27, we abate this case to the trial court pursuant to Rule 38.8(b) of the Texas Rules of Appellate Procedure for a status hearing. See TEX. R. APP. P. 38.8(b)(2). Specifically, the trial court is directed to determine whether Fonza-Carey still desires to prosecute this appeal. Assuming Fonza-Carey still desires to prosecute the appeal, the trial court is directed to determine (1) why Fonza-Carey's appellate brief has not been filed, (2) whether counsel is physically able to promptly complete and file the appellate brief, and (3) the amount of additional time counsel needs to complete the brief. While we are not unsympathetic to counsel's medical issues, we note that we granted three of counsel's motions to extend the filing deadline and that counsel failed to obey the dictates of our May 17, 2016, order, with very little explanation as to why he could not file the brief as ordered. The trial court is directed to make recommendations on how we should proceed in this matter, with the understanding that our primary goal is to obtain Fonza-Carey's appellate brief as quickly as possible so that we can move his appeal forward. The trial court may also address any other matters it deems appropriate. The hearing is to be conducted within fifteen days of the date of this order.
The trial court's findings and recommendations on the issues set forth above shall be entered into the record of the case and presented to this Court in the form of a supplemental clerk's record within fifteen days of the date of the hearing. See TEX. R. APP. P. 38.8(b)(3). The reporter's record of the hearing shall also be filed with this Court in the form of a supplemental reporter's record within fifteen days of the date of the hearing. See id.
All appellate timetables are stayed and will resume on our receipt of (1) the appellant's brief or (2) the supplemental appellate record.
IT IS SO ORDERED.
BY THE COURT Date: June 1, 2016