Opinion
10-23-00013-CR 10-23-00014-CR
01-29-2024
CHASE ANDREW CLOWER, Appellant v. THE STATE OF TEXAS, Appellee
From the County Court at Law Navarro County, Texas Trial Court Nos. C41046-CR and C41048-CR
Before Gray Chief Justice, Johnson Justice, and Smith Justice.
THIRD ABATEMENT ORDER
PER CURIAM
The appellant's brief in each of these appeals was originally due on July 24, 2023.
On August 9, 2023, the Court had not received either the appellant's briefs or a motion requesting an extension of time in which to file the appellant's briefs; therefore, the Clerk of the Court sent a letter in each appeal to appellant's counsel, which provided:
Our records indicate that appellant's brief was due on or before July 24, 2023. To date, no brief has been filed.
Unless a brief or satisfactory response is received within 14 days from the date of this letter, this Court must abate the appeal and order the trial court to immediately conduct a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(2) & (3).
You will notice that the trial court has been copied with this letter as required by the Rules of Appellate Procedure. Tex.R.App.P. 38.8(b)(2). Presumably, the purpose of notifying the trial court is to allow intervention by the trial court before this Court formally abates this appeal for a hearing.
The appellant's briefs were not filed within 14 days of the date of the letters; thus, we abated the appeals on August 29, 2023, and remanded the causes to the trial court to conduct any necessary hearings within 21 days of the date of the order in accordance with Rule of Appellate Procedure 38.8(b)(2) and (3).
On October 10, 2023, we received a supplemental clerk's record in each appeal, and on October 6, 2023, we received a letter from the trial court, dated September 25, 2023, regarding these appeals. The trial court's letter provided:
On the above date, this Court held an Abatement Hearing regarding the above entitled and numbered causes. At such hearing, Appellate Counsel, William Price, advised the Court that he would have his brief into your Court no later than 5:00 p.m. on October 2, 2023. The State advised they were in agreement and would not object if Mr. Price had his brief filed by such date.
On October 12, 2023, the Court had still not received the appellant's brief in either of these appeals; therefore, we abated these appeals again and remanded these causes to the trial court to conduct any necessary hearings in accordance with Rule of Appellate Procedure 38.8(b)(2) and (3).
On October 20, 2023, Appellant's appointed counsel filed an Anders brief in each appeal. See generally Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
On November 28, 2023, we then received a supplemental clerk's record in each appeal, and on December 1, 2023, we received a supplemental reporter's record in each appeal. Accordingly, we issued an order reinstating these appeals on December 7, 2023. In our December 7, 2023 order, we also explained as follows:
The Anders brief filed by Appellant's appointed counsel in each appeal on October 20, 2023, requests that the Court "grant the Motion to Withdraw as Appellate Counsel filed in conjunction with this brief." But counsel has not filed a separate motion to withdraw in either of these appeals.
Additionally, each Anders brief indicates that an "Anders Letter to Client" is included in an appendix to the brief; however, neither brief contains an appendix. Accordingly, we are unable to determine if Appellant's counsel has fulfilled all the educational burdens required when filing an Anders brief. So that this Court may comply with its duties in our Anders review, the record must be sufficient in each appeal to support a determination that:
1. Counsel has provided Appellant with copies of the motion to withdraw and the Anders brief;
2. Counsel has informed Appellant of his right to file a response to the Anders brief;
3. Counsel has informed Appellant of his right to review the record in making the response and has provided a copy of the record to Appellant if Appellant wishes to obtain a copy of it; and
4. Counsel has informed Appellant of his right to file a petition for discretionary review with the Court of Criminal Appeals should this Court declare his appeal frivolous.
See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014); Meza v. State, 206 S.W.3d 684, 689 n.23 (Tex. Crim. App. 2006); Stanley v. State, 523 S.W.3d 122, 124-25 (Tex. App.-Waco 2015, order) (ordering appointed counsel to provide appellant with a copy of the record to assist in the filing of a pro se response). These educational burdens may be accomplished by providing the Court with a copy of the actual communication of this
information to Appellant (while avoiding disclosure of privileged information) or a separate certification.
Appellant's counsel was ordered to cure the deficiencies within 14 days of the date of the order.
Appellant's counsel did not respond to the Court's order. Accordingly, on January 4, 2024, we issued another order, which ultimately provided:
Unless Appellant's counsel complies with the Court's December 7, 2023 order or files a satisfactory response within 14 days of the date of this Order, the Court must again abate this appeal and remand this cause to the trial court to immediately conduct a hearing pursuant to Rule of Appellate Procedure 38.8(b)(2) and (3). See Tex. R. App. P. 38.8(b)(2), (3).
Appellant's counsel has not responded to the Court's order.
Accordingly, we abate these appeals again and remand these causes to the trial court to conduct any necessary hearings within 21 days of the date of this Order in accordance with Rule of Appellate Procedure 38.8(b)(2) and (3). If the appellant is indigent, the trial court is also ordered to determine whether the appellant is receiving effective assistance of counsel and, if not, whether appellant should be appointed new counsel to represent him effectively. If no new counsel is appointed, the trial court shall determine a date certain when Appellant's counsel will comply with the Court's December 7, 2023 order.
The supplemental clerk's and reporter's records required by the rule, if any, are ordered to be filed within 35 days of the date of this Order.
Order issued and filed.