Moten v. State

Full title: HERBERT WAYNE MOTEN, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District

Date published: Nov 20, 2024

No. 10-24-00183-CR (Tex. App. Nov. 20, 2024)

Opinion

10-24-00183-CR

11-20-2024

HERBERT WAYNE MOTEN, Appellant v. THE STATE OF TEXAS, Appellee

PER CURIAM

From the 13th District Court Navarro County, Texas Trial Court No. D42845-CR

Before Chief Justice Gray, Justice Johnson, and Justice Smith

ABATEMENT ORDER

PER CURIAM

Appellant Herbert Wayne Moten filed a notice of appeal on June 11, 2024 challenging his conviction for aggravated assault with a deadly weapon. The clerk's record was filed on August 8, 2024. The reporter's record was filed on August 26, 2024. On September 27, 2024, the Clerk of this Court notified Appellant that his brief was late and that, unless a brief or satisfactory response is received within fourteen days from the date of the letter, we would abate this appeal and order the trial court to conduct a hearing. See Tex. R. App. P. 38.8(b)(2),(3). On October 8, 2024, Appellant filed a motion to extend time to file his brief so that counsel could continue to research and brief issues in this case. This Court granted the motion, ordering the brief to be filed on or before October 25, 2024. Because no brief was filed, this Court again notified Appellant, by letter dated October 30, 2024, that unless a brief or satisfactory response is received within fourteen days from the date of the letter, we would abate the appeal and order the trial court to conduct a hearing. To date, we have not received a brief or response to our October 30, 2024 letter.

We therefore ABATE this appeal and REMAND the case to the trial court to hold a hearing to determine whether Appellant is receiving effective assistance of counsel, and if not, whether to appoint new counsel to represent Appellant effectively. If no new counsel is appointed, the trial court shall determine a date certain when Appellant's counsel will file the Appellant's brief with this Court and state it on the record.

The trial court shall conduct the hearing within fourteen days after the date of this Order. The supplemental clerk's and reporter's records are ordered to be filed within twenty-one days of the date of this Order.

Appeal abated