Opinion
03-23-00443-CR
02-09-2024
Kenneth Wayne Elkins, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 22ND DISTRICT COURT OF COMAL COUNTY NO. CR2022-332, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING
Before Justices Baker, Triana, and Kelly
ORDER AND MEMORANDUM OPINION
PER CURIAM
Kenneth Wayne Elkins was convicted of the offense of injury to an elderly individual, was sentenced to ten years' imprisonment, and was placed on community supervision for ten years. See Tex. Penal Code §§ 12.34, 22.04. Following his conviction, Ellis filed his notice of appeal on July 26, 2023, and his brief was originally due October 16, 2023. This Court granted four motions requesting an extension of time to file his brief, and in granting the fourth extension, extending the deadline to February 2, 2024, advised counsel that no further extensions would be granted and that his failure to file the brief would result in the referral of the case to the trial court for a hearing under Rule 38.8(b) of the Texas Rules of Appellate Procedure. The brief was not filed by the extended deadline and on February 5, 2024, counsel filed a fifth motion for extension of time, asking for another extension to February 16, 2024, and stating that his other professional and personal duties "have prevented work on this case."
We abate the appeal and remand the matter to the trial court to conduct a hearing under Rule 38.8, including whether counsel can fulfill his obligations in this appeal. See Tex.R.App.P. 38.8(b)(2), (3). Accordingly, the trial court shall determine whether Elkins still wishes to prosecute his appeal, whether he is indigent, and, if he is not indigent, whether retained counsel has abandoned this appeal and whether Elkins has made the necessary arrangements for filing a brief. See id. The court shall make appropriate written findings and recommendations, see id., and, if necessary, appoint substitute counsel who will effectively represent appellant in this appeal. Following the hearing, which shall be transcribed, the trial court shall order the appropriate supplemental clerk's and reporter's records-including all findings and orders-to be prepared and forwarded to this Court no later than March 11, 2024. See id. R. 38.8(b)(3).
It is ordered.
Abated and Remanded