Opinion
No. 04-16-00630-CR No. 04-16-00631-CR
05-22-2017
Cody Lon SMITH, Appellant v. The STATE of Texas, Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B-07-057 & B-15-631
Honorable Rex Emerson, Judge Presiding
ORDER
Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice
Appellant Cody Lon Smith's brief was originally due February 15, 2017. The court has granted Smith's court-appointed appellate counsel, Angela Moore, three extensions of time to file the brief. Our last order, dated April 21, 2017, ordered counsel to file Smith's brief by May 16, 2017 (90 days after the original due date) and advised her that no further extensions of time would be granted. We further advised that if she failed to file the brief by the date ordered, the appeal would be abated for an abandonment hearing and she may be ordered to appear and show cause why she should not be held in contempt of this court. The brief has not been filed.
Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we abate this appeal, remand the case to the trial court, and order the trial court to conduct a hearing to determine:
(1) whether appellant desires to prosecute his appeal, and
(2) whether counsel has abandoned the appeal. The trial court must take steps to ensure effective assistance of counsel, including the appointment of new counsel if necessary. Because sanctions may be necessary, the trial court should make a finding as to whether counsel has abandoned the appeal even if new counsel is retained or substituted.The trial court may, in its discretion, receive evidence on the first issue by sworn affidavit from the appellant. The trial court shall, however, order appellant's counsel to be present at the hearing.
We further order the trial court to make written findings and conclusions on these issues. We order the clerk and court reporter to file in this court, no later than June 21, 2017, (1) a reporter's record of the hearing, and (2) a supplemental clerk's record containing the court's written findings of fact, conclusions of law, and recommendations addressing the above issues. See Tex. R. App. P. 38.8(b)(3).
The court will consider possible contempt proceedings for failing to comply with this court's April 21, 2017 order at a later date.
/s/_________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 22nd day of May, 2017.
/s/_________
Keith E. Hottle
Clerk of Court