Opinion
No. 11-11-00231-CR
08-31-2012
JOHN POWELL, Appellant v. STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Ector County, Texas
Trial Court Cause No. 10-4391
ORDER
On August 2, 2011, the jury convicted appellant, John Powell, of the offense of evading arrest and assessed his punishment at a fine of $300. This appeal has been unduly stalled due to the failure of appellant to file an appellate brief. The brief was originally due on February 13, 2012. On February 15, appellant filed his first pro se motion for an extension of time to file his brief, which this court granted. On March 19, appellant filed his second pro se motion for extension, and the court granted appellant's request to extend the due date to April 23. On April 26, appellant filed his third pro se motion for extension. In his third motion, appellant explained that he had retained an attorney but that the attorney had failed to prepare a brief. Appellant requested additional time to hire another attorney to file the brief. This court granted the motion, extending the due date to May 23, and informed appellant of the serious nature of the inordinate delay. On May 23, this court received pro se correspondence from appellant regarding the trouble with his retained attorney. We note that this court has not received any notice from an attorney indicating that counsel has been retained by appellant to prosecute this appeal. This court granted a fourth extension of time to file the brief and informed appellant that the brief, "either pro se or by an attorney," was due on or before June 22 and that we expected no further extensions. We have not heard from appellant since his May 23 correspondence, and no brief has been filed. Accordingly, we abate the appeal and remand the cause to the trial court so that it may conduct a hearing pursuant to TEX. R. APP. P. 38.8(b).
The trial court is instructed to conduct a hearing to determine the following:
1. Whether appellant desires to prosecute his appeal;The trial court is directed to make appropriate findings and recommendations pursuant to Rule 38.8(b). The trial court clerk is directed to prepare and forward to this court a supplemental clerk's record containing the findings, recommendations, and any orders of the trial court. The court reporter is directed to prepare and forward to this court the reporter's record from the hearing. The supplemental records are due to be filed in this court on or before October 1, 2012.
2. Whether appellant is indigent;
3. If not indigent, whether appellant has retained counsel;
4. Whether retained counsel, if any, has abandoned the appeal; and
5. Whether appellant has made the necessary arrangements for filing a brief.
We note that the trial court has previously determined that appellant is not indigent.
The appeal is abated.
PER CURIAM
Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.