Opinion
Appellate case number: 01-17-00152-CR
05-25-2017
Ex Parte Nii-Otabil Nelson
ORDER Trial court case number: 1372073-B Trial court: 182nd District Court of Harris County
On March 28, 2017, this Court's Memo Opinion dismissed for want of jurisdiction appellant's appeal of the denial of his second application for a writ of habeas corpus. On April 18, 2017, this Court granted the motion to extend time to file appellant's motion for rehearing filed by the pro se appellant, Nii-Otabil Nelson, until May 18, 2017. On May 19, 2017, the Clerk of this Court received, but did not file, "Appellant's Opening Brief" on the merits submitted by appellant's counsel, Alphonsus O. Ezeoke, who has not filed a notice of appearance.
However, because this is a Rule 31 appeal from the denial of a habeas application, this Court must first request briefing on the merits before an appellant may file such a brief, and no such request was made here. See TEX. R. APP. P. 31.1 (stating that "[w]hen the appellate court receives the record, the court will—if it desires briefs—set the time for filing briefs, and will set the appeal for submission."). Also, appellant's brief was filed one day past the deadline without a second extension request. See id. 49.1, 49.8.
Accordingly, unless appellant files a motion for rehearing, only addressing this Court's Memo Opinion, along with a second motion for an extension of time to file his motion for rehearing reasonably explaining his failure to timely file the rehearing motion, within 10 days of the date of this Order, appellant's "Opening Brief" will be stricken. See TEX. R. APP. P. 38.9(a); cf. id. 42.3(c).
It is so ORDERED.
Judge's signature: /s/ Laura Carter Higley
[×] Acting individually [ ] Acting for the Court
Date: May 25, 2017