Opinion
No. 04-18-00261-CR
01-25-2019
Daniel LAQUE Sr., Appellant v. The STATE of Texas, Appellee
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 16-03-0060-CRA
Honorable Donna S. Rayes, Judge Presiding
ORDER
Sitting: Luz Elena D. Chapa, Justice Irene Rios, Justice Beth Watkins, Justice
The due date for appellant's brief was originally set for August 2, 2018. After counsel for appellant failed to timely file the appellant's brief, this court issued a letter notifying counsel that the brief was past due. Counsel filed motion, noting he made scheduling error, part of reporter's record was not filed, and he could not file the brief without that volume of the reporter's record. Counsel did not request that part of the reporter's record until August 28, 2018. On September 27, 2018, the court reporter filed an 8-page volume of the reporter's record containing a motion for new trial hearing at which the trial court declined to take action and recommended that the hearing be reset. Once the full record was filed, the appellant's brief became originally due on October 29, 2018. Counsel did not file the appellant's brief.
On November 1, 2018, this court sent counsel a late brief letter, asking him to respond within ten days. Thirteen days after the letter was issued, counsel filed another motion for an extension of time to file the appellant's brief. We granted counsel's motion on November 16, 2018. Our November 16, 2018 order advised counsel that no further extensions would be granted without (1) demonstrating extraordinary circumstances, (2) advising the court of the efforts counsel has expended in preparing the brief, and (3) providing the court reasonable assurance that the brief will be completed and filed by the requested extended deadline. Our order specifically directed counsel, Justin A. Fischer, to file the appellant's brief by December 14, 2018.
On December 18, 2018, counsel filed a motion requesting to file a different motion under seal. That motion was granted, but counsel did not file any motion under seal until January 2, 2019, on which he requested another extension of time to file the appellant's brief. Although the motion demonstrates extraordinary circumstances and provides some assurance that counsel will be able to work on appellant's brief within the next 30 days, the motion does not comply with our November 16, 2018 order because it does not (1) advise the court of what efforts, if any, counsel has expended in preparing the brief or (2) assure the court that the brief will be completed and filed by the requested extended deadline.
In light of counsel's motion, we grant the motion for an extension of time to file the appellant's brief. We hereby order counsel for appellant, Justin A. Fischer, to file the appellant's brief by February 25, 2019. If counsel requests another extension of time, we order counsel, Justin A. Fischer, to file a motion that strictly complies with the following requirements: the motion must (1) be filed on or before the date the brief is due, (2) demonstrate extraordinary circumstances justifying further delay, (3) advise the court of the efforts counsel has expended in preparing the brief, and (4) provide the court reasonable assurance that the brief will be completed and filed by the requested extended deadline. The court does not generally consider a heavy work schedule to be an extraordinary circumstance.
If the brief or a motion strictly complying with this order for a further motion is not timely filed, this appeal will be abated for an abandonment hearing in the trial court without further notice. See TEX. R. APP. P. 38.8(b)(2). Counsel is advised that if he does not comply with this order, he may be ordered to appear before this court to show cause why he should not be held in contempt or otherwise sanctioned for failing to comply with this order.
/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 25th day of January, 2019.
/s/_________
KEITH E. HOTTLE,
Clerk of Court