Opinion
13-23-00309-CR
03-28-2024
ERNEST RAY LONGORIA III, Appellant, v. THE STATE OF TEXAS, Appellee.
Do not publish. Tex.R.App.P. 47.2(b).
ON APPEAL FROM THE 36TH DISTRICT COURT OF ARANSAS COUNTY, TEXAS
Before Chief Justice Contreras and Justices Longoria and Peña
ORDER OF ABATEMENT
PER CURIAM
The cause is before the court on appellant's counsel's failure to file an appellate brief, as ordered, and appellant's fifth motion for extension of time to file his brief. On March 6, 2024, we ordered appellant's counsel, the Honorable Diamond DeLeon, to file the appellate brief on or before 5:00 p.m. on March 21, 2024. Appellant's counsel has failed to comply with that Order. Instead, on the due date, appellant's counsel filed the fifth motion for extension of time to file the brief.
Appellant's motion contains one vague reference to the extenuating circumstance of caring for a family member who underwent a total knee replacement surgery and lists several other appellate matters pending in his office. Appellant's counsel indicates that the briefs are currently due in the following cause numbers: 13-23-00123-CR, 13-23-00526-CR, 13-23-00414-CR, 13-23-00118-CV, AND 13-24-00120-CV. However, briefing is complete in cause number 13-23-00123-CR, and the briefs in each of the other causes listed are not due until mid-April.
Appellant's brief in this matter was originally due to be filed on November 17, 2023, and counsel has failed to provide sufficient explanation for the ongoing and continued delay. While the Court is not without empathy, this Court is of the opinion that the explanation provided by appellant's counsel contains insufficient detail and does not justify the ongoing delay in the briefing in this cause. Furthermore, the request for extension in this matter would only serve to further disrupt appellant's counsel's timeline of other briefs coming due at this Court.
Therefore, we carry appellant's motion for extension of time to file his brief. We order this matter abated, and the cause is remanded to the trial court to consider appointing new counsel. On remand the judge of the trial court shall immediately cause notice to be given and conduct a hearing to determine the following:
1. Whether appellant desires to prosecute this appeal;
2. Whether appellant's counsel has effectively abandoned the appeal;
3. Whether appellant's rights have been adversely affected by a continued delay;
4. If appellant's appeal has not been abandoned, and appellant's rights have not been adversely affected, whether appellant's counsel can complete the brief in this matter on or before April 21, 2024;
5. What orders, if any, should be entered to ensure the proper pursuit of appellant's appeal.
If the trial court determines that appellant does want to continue the appeal and that appellant is indigent and entitled to new court-appointed counsel, the trial court shall appoint new counsel to represent appellant in this appeal. If counsel is appointed, the name, address, telephone number, email address, and state bar number of said counsel shall be included in an order appointing counsel.
The trial court shall prepare and file its findings and orders and cause them to be included in a supplemental clerk's record which should be submitted to the Clerk of this Court within thirty days from the date of this order.