Opinion
NUMBER 13-15-00297-CR
02-23-2018
DANIEL GARCIA, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 214th District Court of Nueces County, Texas.
ORDER
Before Justices Rodriguez, Longoria, and Hinojosa
Order Per Curiam
Appellant, appeals an order finding him guilty of capital murder. This matter is currently before the Court on a motion filed by Larry Warner, appellant's appointed counsel, requesting a tenth extension of time to file his appellate brief in this matter. The brief is long overdue.
I. Background
The notice of appeal was filed in this matter on July 8, 2015. Appellant's brief was originally due on December 14, 2015. New counsel was appointed on July 11, 2016. On July 28, 2016, this Court granted appellant's motion to restart the briefing schedule and ordered counsel to file the brief on October 10, 2016. On October 4, 2016, counsel requested an additional 30 days to file appellant's initial brief. Following a supplemented record, on November 7, 2016, counsel requested an additional 60 days to file appellant's initial brief. On January 5, 2017, counsel again requested an extension of 30 days, making the brief due on February 8, 2017. On February 13, 2017, the Clerk of the Court notified appellant's counsel that the brief had not been filed and requested a response concerning the failure to file the brief within ten days. Counsel nevertheless failed to file either a response or an appellate brief in this matter and this Court abated the appeal on March 9, 2017.
After being reinstated, appellant's brief was due on October 2, 2017. On that date, counsel sought an additional 30 days to file his brief. Appellant's brief was then due on November 1, 2017. On November 2, 2017 counsel requested an additional 10 days to file his brief. In his request, counsel's grounds for his extension were simply that the brief was finished, but needed to be finalized and filed.
On November 14, 2017, the deadline for the brief, counsel requested an abatement to cure an incomplete record, which was granted. The matter was reinstated on December 19, 2017 and appellant's brief was due on January 18, 2018. On the due date, counsel requested an additional 21 days to file appellant's brief. As grounds for his extension, counsel again stated that the brief was finished, but needed to be finalized and filed. This Court granted the extension until February 8, 2018 and stated no further extensions would be granted.
On February 9, 2018, the Clerk of the Court notified appellant's counsel that the brief had not been filed and requested a response concerning the failure to file the brief within ten days. On February 13, 2018, counsel requested an additional 14 days to file the brief, again stating the brief had been finished but needed to be finalized and filed.
II. Analysis
Rule of Appellate Procedure 38.8(b) provides. However, we decline to follow Rule 38.8(a)(1) because of the liberty interest at stake in a juvenile delinquency appeal. See TEX. R. APP. P. 38.8(a)(2)
III. Conclusion
We have already abated this matter once because of the tardiness of appellant's brief. See TEX. R. APP. P. 38.8(b)(2). We see no benefit in another abatement. Nevertheless, we have a duty to ensure that appellant's rights are protected.
Accordingly, given the foregoing, IT IS THEREFORE ORDERED that Larry Warner, counsel for appellant, file the appellate brief with this Court on or before 5:00 p.m. on February 26, 2018. Thus, the Court GRANTS appellant's tenth motion for extension of time. This motion is GRANTED insofar as the Court will extend appellant's deadline to file his brief until February 26, 2018.
If counsel fails to file the brief within the foregoing specified period of time, the Court will act appropriately to ensure that appellant's rights are protected. TEX. R. APP. P. 38.8(b)(4). Specifically, the Court will abate and remand this matter to the trial court with instructions to appoint new counsel. The Court will further inform the Office of the General Counsel of the State Bar of Texas that these proceedings have raised a substantial question as to counsel's fitness as a lawyer. See id.; see also TEX. CODE JUD. CONDUCT, Canon 3(D)(2), reprinted in TEX. GOV'T CODE ANN., title 2, subt. G, app. B (Vernon 2005). In its discretion, the Court may further initiate contempt proceedings against appellant's counsel.
IT IS SO ORDERED.
PER CURIAM Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 23rd day of February, 2018.