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Knoblauch v. State

Fourth Court of Appeals San Antonio, Texas
Feb 22, 2018
No. 04-16-00791-CR (Tex. App. Feb. 22, 2018)

Opinion

No. 04-16-00791-CR

02-22-2018

Margaret L. KNOBLAUCH, Appellant v. The STATE of Texas, Appellee


From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR10598
Honorable Lori I. Valenzuela, Judge Presiding

ORDER

On August 30, 2017, we abated this appeal and ordered the trial court to determine if appellate counsel Justin Fischer had a conflict of interest in representing appellant Margaret Knoblauch. The trial court held a hearing on September 19, 2017, following which it made findings of fact and conclusions of law that were included in a supplemental clerk's record filed in this court on September 25, 2017. The trial court found Mr. Fischer did not have a conflict of interest in representing appellant. However, the trial court removed Mr. Fischer as appellate counsel and appointed James Reeves to represent appellant on appeal. On September 29, 2017, we reinstated this appeal on the docket of this court and set the due date for appellant's brief as October 30, 2017.

On October 30, 2017, appellant filed a motion for extension of time to file appellant's brief, which we granted. Appellant's brief became due on November 27, 2017. Appellant's brief was not filed by this date, and on December 5, 2017, appellant's counsel informed the clerk of this court via telephone that appellant's brief would be filed on December 8, 2017. Appellant's brief was not filed by this date, and the clerk of this court notified appellant's attorney by letter 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). We warned that if appellant's attorney did not respond, we may abate this appeal to the trial court for an abandonment hearing or initiate contempt proceedings. Id. at 38.8(b)(2), (4). Appellant's attorney did not respond to this court's letter. Thereafter, on January 3, 2018, we issued an order directing appellant's attorney to file appellant's brief on or before February 5, 2018. We again warned that if appellant's attorney did not file appellant's brief on or before that date, we would abate this appeal to the trial court for an abandonment hearing or initiate contempt proceedings. TEX. R. APP. P. 38.8(b)(2), (4).

Appellant's brief 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 her 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 March 26, 2018. 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 22nd day of February, 2018.

/s/_________

KEITH E. HOTTLE,

Clerk of Court


Summaries of

Knoblauch v. State

Fourth Court of Appeals San Antonio, Texas
Feb 22, 2018
No. 04-16-00791-CR (Tex. App. Feb. 22, 2018)
Case details for

Knoblauch v. State

Case Details

Full title:Margaret L. KNOBLAUCH, Appellant v. The STATE of Texas, Appellee

Court:Fourth Court of Appeals San Antonio, Texas

Date published: Feb 22, 2018

Citations

No. 04-16-00791-CR (Tex. App. Feb. 22, 2018)