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Bowser v. State

Fourth Court of Appeals San Antonio, Texas
Jun 15, 2017
No. 04-16-00648-CR (Tex. App. Jun. 15, 2017)

Opinion

No. 04-16-00648-CR

06-15-2017

Darrel K. BOWSER, Appellant v. The STATE of Texas, Appellee


From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR5005
Honorable Mary D. Roman, Judge Presiding

ORDER

Appellant's brief was originally due on January 9, 2017. On January 11, 2017, the clerk of this court notified appellant's attorney that appellant's brief was late and asked appellant's attorney to respond to this court in writing. See TEX. R. APP. P. 38.8(b)(2). In response, appellant requested an extension of time in which to file appellant's brief. On January 19, 2017, we granted appellant's first request for an extension and set appellant's brief due on March 7, 2017. On March 7, 2017, appellant requested an additional extension of time in which to file appellant's brief. We granted appellant's second request for an extension, setting the due date for appellant's brief as April 7, 2017. On April 7, 2107, appellant again requested an extension of time in which to file appellant's brief. We granted appellant's third request for an extension, set the due date for appellant's brief as May 8, 2017, and advised that no further extensions of time would be allowed. Despite our April 12, 2107 order warning appellant that no further extensions would be granted, appellant again requested an extension of time to file his brief. We granted appellant's fourth request for an extension of time but warned "[i]f appellant's brief is not filed [on or before June 8, 2017], we will abate this appeal to the trial court for an abandonment hearing. TEX. R. APP. P. 38.8(b)(2). Contempt proceedings may also be initiated against appellant's attorney. Id. 38.8(b)(4)."

Appellant's brief, due June 8, 2017, has not been filed.

Therefore, pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), we abate this case to the trial court and ORDER the trial court to conduct a hearing to address the following:

(1) Does appellant desire to prosecute his appeal?

(2) 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 counsel abandoned the appeal? Because initiating contempt proceedings against appellant's counsel 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 may, in its discretion, receive evidence on the first two questions by sworn affidavit from appellant or by allowing appellant to appear via electronic means (e.g., telephone or video conference). The trial court shall, however, order appellant's counsel to be physically present at the hearing.

We ORDER the trial court to file its written findings of fact and conclusions of law with the trial court clerk no later than July 17, 2017. We ORDER the trial court clerk to file a supplemental clerk's record in this court no later than ten days after the trial court files its findings of facts and conclusions of law. We further ORDER the court reporter to file in this court a supplemental reporter's record of the hearing, along with copies of any documentary evidence admitted, no later than twenty days after the date of the hearing. 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 732 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

All other appellate deadlines are SUSPENDED pending further orders from this court.

/s/_________

Irene Rios, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 15th day of June, 2017.

/s/_________

Luz Estrada

Chief Deputy Clerk


Summaries of

Bowser v. State

Fourth Court of Appeals San Antonio, Texas
Jun 15, 2017
No. 04-16-00648-CR (Tex. App. Jun. 15, 2017)
Case details for

Bowser v. State

Case Details

Full title:Darrel K. BOWSER, Appellant v. The STATE of Texas, Appellee

Court:Fourth Court of Appeals San Antonio, Texas

Date published: Jun 15, 2017

Citations

No. 04-16-00648-CR (Tex. App. Jun. 15, 2017)