Opinion
NO. 03-12-00320-CR
02-28-2013
In re Joe Garcia Dennis Mitchell Alford, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
NO. CR2011-284, THE HONORABLE DIB WALDRIP, JUDGE PRESIDINGORDER
PER CURIAM
This is a contempt proceeding ancillary to Dennis Mitchell Alford's appeal from a judgment of conviction for possession of a firearm by a felon. The subject of this proceeding is Joe Garcia, appellant's counsel.
Appellant's brief was originally due July 5, 2012. After appellant's court-appointed attorney, Joe Garcia, failed to respond to this Court's notice that the brief was overdue, we abated the appeal on September 20, 2012, with instructions to the trial court to hold a hearing to determine whether appellant desires to prosecute this appeal and, if so, whether appointed counsel has abandoned the appeal. See Tex. R. App. P. 38.8(b)(2) (providing that if counsel for criminal appellant fails to file brief, appellate court should order trial court to conduct hearing on whether appellant wishes to prosecute appeal, is indigent, or has abandoned appeal).
Following the hearing, the trial court forwarded its findings and recommendations to this Court, recommending that counsel be granted an extension until October 31, 2012, to file either a brief or motion to dismiss the appeal. This Court granted an extension and notified Garcia that this Court expected appellant's brief or a motion to dismiss the appeal to be filed on or before November 9, 2012. No brief or motion to dismiss was filed. Further, Garcia again failed to respond to this Court's subsequent notice that the brief was overdue.
On December 21, 2012, this Court ordered counsel to tender a brief on appellant's behalf or a motion to dismiss no later than January 11, 2013. No brief or order to dismiss was filed as ordered. Moreover, counsel failed to communicate with this Court regarding those matters. Accordingly, on February 6, 2013, Joe Garcia was ordered to appear in person before this Court on Wednesday, February 27, 2013, at 9:00 a.m., in the courtroom of this Court, to show cause why he should not be held in contempt and have sanctions imposed for his failure to obey our December 21, 2012, order.
On February 21, 2013, Garcia filed an Anders brief concluding that the appeal is frivolous and without merit. See generally Anders v. California, 386 U.S. 738 (1967). The Anders brief is deficient in a number of respects, including failure to include the certificate of compliance required by Tex. R. App. P. 9.4(i)(3), failure to include language advising appellant of his right to file his own appellate brief, and failure to file a motion to withdraw as required by Tex. R. App. P. 6.5.
The show cause hearing was held in the Court on February 27, 2013, and Garcia appeared as ordered.
After consideration of the record and Garcia's explanation for failing to comply with our previous orders, we specifically find that Joe Garcia is in contempt for violating this Court's order of December 21, 2012, which was sufficiently clear and specific in its requirement that appellant's brief or a motion to dismiss was to be filed no later than January 11, 2013. See Tex. Gov't Code Ann. § 21.002 (West 2004).
Joe Garcia is hereby fined $250 payable to the Clerk of the Court of Appeals, Third District of Texas, on or before March 28, 2013, by 5:00 p.m. If Garcia fails to pay the $250 fine by 5:00 p.m. on March 28, 2013, he shall be confined in a county jail or other lockup within the State for a sufficient time to discharge the full amount of the fine at the daily rate allowed for prisoners serving misdemeanor sentences. See In re Miles, 55 S.W.3d 203, 204 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). It is ordered that all writs and other process necessary for the enforcement of this judgment be issued.
It is so ordered on this the 28th day of February, 2013. Before Chief Justice Jones, Justices Goodwin and Field Do Not Publish