Opinion
11-23-00269-CR
09-26-2024
BRIAN LUKE JACOBS, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 29th District Court Palo Pinto County, Texas Trial Court Cause No. 17310
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
ORDER
PER CURIAM
Appellant, Brian Luke Jacobs, appeals his second-degree felony conviction for possession of a controlled substance in penalty group one in an amount of four grams or more but less than two-hundred grams. See Tex. Health & Safety Code Ann. § 481.115(d) (West Supp. 2023). The reporter's record was originally due January 19, 2024. This court granted four extensions based on Appellant's failure to make arrangements for the payment and preparation of the reporter's record. Appellant was further notified that the failure to pay for the reporter's record may result in the submission of the case on the clerk's record alone. See Tex. R. App. P. 37.3(c). Appellant failed to comply, and this court determined that this appeal would be submitted on the clerk's record. Appellant was ordered to file his brief by June 17, 2024. By letters dated July 16 and August 12, the clerk of this court informed Appellant and his counsel that the failure to file a brief by August 26 may result in requiring Appellant's counsel to appear and explain the inordinate delay.
As of this date, Appellant has not filed his brief. In light thereof, we abate this appeal and remand to the trial court for further proceedings. See Tex. R. App. P. 38.8(b)(3). On remand, the trial court shall conduct a hearing to determine: (1) whether Appellant wishes to prosecute this appeal; (2) whether Appellant is indigent; (3) why a timely appellate brief has not been filed on Appellant's behalf; (4) whether Appellant's counsel has abandoned the appeals; (5) whether Appellant has been denied effective assistance of counsel; and (6) whether new counsel should be appointed.
If the trial court determines that Appellant does not wish to pursue his appeal, it shall direct Appellant and his counsel to submit a motion to dismiss with this court that complies with Rule 42.2 of the Texas Rules of Appellate Procedure. See id. R. 42.2. If, however, Appellant does in fact wish to pursue this appeal, the trial court shall inform Appellant and his counsel that his brief is due thirty days from the date of the hearing, that no further extensions will be granted. Furthermore, the failure to timely file a brief may result in this court considering the appeal without briefs, and taking any appropriate action to ensure that Appellant's rights are protected. See id. R. 38.8(4) (granting appellate courts the authority to initiate contempt proceedings against appellant's counsel). The supplemental clerk's and reporter's records from the hearing containing the trial court's appropriate written findings and recommendations shall be forwarded to this court no later than October 28.
It is so ordered.