Opinion
No. 04-13-00826-CR
04-17-2014
Taylor M. MOSER, Appellant v. THE STATE OF TEXAS, Appellee
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 4960
Honorable N. Keith Williams, Judge Presiding
ORDER
The clerk's record was due January 13, 2014, but was not filed. The clerk of this court notified the clerk of the deficiency by letter dated January 27, 2014. See TEX. R. APP. P. 37.3(a)(2). The letter advised that if the record had not been filed because appellant failed to pay for the clerk's fee and he is not entitle to appeal without paying the fee, the clerk must file a notification of late record stating such fact within ten days of the date of the letter. Otherwise, the clerk was to file the record within thirty days of the date of the letter. We received no response until March 14, 2014. At that time, the clerk filed a notification of late record stating appellant had not paid for the record and was not entitled to the record without first paying the fee.
Because no clerk's record had been filed and it appeared appellant was not entitled to the record without first paying the fee, we ordered the appeal abated and remanded to the trial court. We ordered the trial court to conduct a hearing to determine:
(1) whether appellant desires to prosecute his appeal;
(2) whether appellant is indigent. If appellant is indigent, the trial court must take steps to ensure effective assistance of counsel, including the appointment of counsel, if necessary, and to ensure the clerk's record is filed in this court without payment for same;
(3) if appellant is not indigent, whether appellant has made the necessary arrangements to pay for the clerk's record, and if not, when such payment shall be made; and
(4) whether retained counsel has abandoned the appeal. Because sanctions may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing.
Per our order, the trial court made findings of fact and conclusions of law, and we received a supplemental clerk's record containing those findings and conclusions, as well as a supplement reporter's record from the hearing. At the hearing, it was determine appellant had paid for the clerk's record and that the clerk would be filing the record with this court.
The clerk's record was filed in this court on April 17, 2014, and the reporter's record was previously filed. Accordingly, we ORDER the abatement lifted and the appeal reinstated. As the appellate record is complete, appellant's brief is due in this court on or before May 19, 2014, and we ORDER appellant to file the brief on or before May 19, 2014, or a proper extension of time on or before that date.
We order the clerk of this court to serve copies of this order on all counsel and the district clerk.
________________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 17th day of April, 2014.
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Keith E. Hottle
Clerk of Court