Ray v. State

Full title: FRANKLIN LEE RAY, Appellant v. THE STATE OF TEXAS, Appellee

Court: State of Texas in the Eleventh Court of Appeals

Date published: Dec 15, 2016

No. 11-16-00093-CR (Tex. App. Dec. 15, 2016)

Opinion

No. 11-16-00093-CR

12-15-2016

FRANKLIN LEE RAY, Appellant v. THE STATE OF TEXAS, Appellee

PER CURIAM

On Appeal from the 238th District Court Midland County, Texas
Trial Court Cause No. CR39139

ORDER

This appeal has been unduly stalled due to the failure of Appellant's appointed counsel, Alvaro Martinez, Jr., to file an appellate brief. The brief was originally due on August 29, 2016. Counsel has filed, and this court has granted or granted in part, three motions for extension of time to file the brief. This court also granted two extensions on our own motion and issued a letter on November 8, 2016, in which we explained that we deemed the inordinate delay in filing the brief in this cause to be a serious matter and directed Martinez to file a brief on behalf of Appellant. On December 1, we ordered Martinez to file a brief on or before 5:00 p.m. on December 8, 2016. However, Appellant's brief still has not been filed.

In light of the inordinate delay in filing Appellant's brief, we abate the appeal and remand the cause to the trial court so that it may determine the following:

1. Whether Appellant desires to prosecute his appeal;

2. Whether Appellant is indigent; and

3. If Appellant is indigent, whether appointed counsel, Alvaro Martinez, Jr., should be removed as appellate counsel and new counsel appointed.

See TEX. R. APP. P. 38.8(b). We note that Appellant need not appear in person at the hearing and that the trial court may permit him to appear via telephone. The trial court is directed to make appropriate findings and recommendations and to appoint new appellate counsel if appropriate. 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. If a hearing is held, the court reporter is directed to prepare and forward to this court the reporter's record from the hearing. These records are due to be filed in this court on or before January 13, 2017. Appellant's brief will be due to be filed in this court within thirty days after the date this appeal is reinstated.

The appeal is abated.

PER CURIAM December 15, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.