Opinion
No. 04-16-00241-CR
11-21-2016
Cody Allen WATERS, Appellant v. The STATE of Texas, Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR1094
Honorable Raymond Angelini, Judge Presiding
ORDER
Appellant's brief was due on September 8, 2016. On September 16, 2016, after no brief or motion for extension of time to file the brief was filed, we ordered Appellant's attorney Andrea Polunsky to file the brief or a motion to dismiss by September 26, 2016. On September 22, 2016, counsel filed her first motion for a thirty-day extension of time to file the brief, and this court granted an extension until October 10, 2016. On October 14, 2016, counsel filed a second motion for extension of time to file the brief, and this court granted an extension until November 9, 2016. In our order we warned counsel as follows: "NO FURTHER EXTENSIONS OF TIME TO FILE APPELLANT'S BRIEF WILL BE GRANTED." To date, Appellant has not filed the brief or a further motion for extension of time to file the brief.
On October 21, 2016, Appellant filed a letter with this court and expressed his "sincere concern for the lawyer that has been appointed" in his case.
In a separate appeal in this court numbered 04-15-00595-CR, Andrea Polunsky is court-appointed counsel representing the appellant. In that appeal, the brief was due on June 3, 2016. Because Andrea Polunsky repeatedly failed to file the appellant's brief as ordered, this court had to order the trial court to conduct an abandonment hearing. The trial court found the appellant desired to appeal, counsel had not abandoned the appeal, and we ordered counsel to file the brief. After counsel again failed to file the brief, we ordered the trial court to conduct a second abandonment hearing. At the second hearing, based on Andrea Polunsky's statements to the trial court, the trial court found that Andrea Polunsky would file the brief on October 17, 2016. Counsel did not file the brief as promised.
On October 27, 2016, we ordered Andrea Polunsky to file the appellant's brief by November 7, 2016, or we would order her to appear in this court to show cause why she should not be held in contempt for failing to file the brief. Ten days after the deadline, on November 17, 2016, counsel filed the brief.
We ABATE this appeal and REMAND the cause to the trial court. See TEX. R. APP. P. 38.8(b); Samaniego v. State, 952 S.W.2d 50, 52-53 (Tex. App.—San Antonio 1997, no pet.). We ORDER the trial court to conduct a hearing in compliance with Rule 38.8(b) to answer the following questions:
(1) Does Appellant desire to prosecute his appeal?
(2) In light of Andrea Polunsky's repeated delays in filing the appellant's brief in appeal number 04-15-00595-CR, should Andrea Polunsky be removed from this appeal? If so, the trial court must appoint new counsel.
(3) By her failing to file the brief as ordered, has appointed counsel effectively 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. See TEX. R. APP. P. 38.8(b)(4).
The trial court, in its discretion, may receive evidence on the first question by sworn affidavit from Appellant or by allowing Appellant to appear via electronic means (e.g., telephone or video conference). However, the trial court shall order Andrea Polunsky to be physically present at the hearing. See id. R. 38.8(b)(3).
The trial court is further ORDERED to file supplemental clerk's and reporter's records in this court, not later than THIRTY DAYS from the date of this order, which shall include the following: (1) a transcription of the hearing and copies of any documentary evidence admitted, (2) written findings of fact and conclusions of law, and (3) recommendations addressing the above enumerated questions. See id. This court will consider the supplemental records in its determination whether to initiate contempt proceedings against Appellant's counsel. See id. R. 38.8(b)(4); In re Fisch, 95 S.W.3d at 732; Samaniego v. State, 952 S.W.2d at 53.
All other appellate deadlines are SUSPENDED pending further order of this court.
/s/_________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 21st day of November, 2016.
/s/_________
Keith E. Hottle
Clerk of Court