Opinion
No. 04-16-00684-CR
05-17-2017
James Harley STACY, Appellant v. The STATE of Texas, Appellee
From the 437th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR7238A
Honorable Lori I. Valenzuela, Judge Presiding
ORDER
Appellant's brief was originally due on February 17, 2017. Appellant is represented on appeal by appointed counsel, Mr. Michael Raign. On March 1, 2017, this court notified Mr. Raign the brief was late, and asked Mr. Raign to respond within ten days presenting a reasonable explanation for failing to timely file appellant's brief. On March 14, 2017, Mr. Raign filed a motion for extension of time, requesting an extension until April 3, 2017. We granted the request. Because Mr. Raign did not file appellant's brief or a second motion for extension of time by April 3, 2017, on April 19, 2017, this court ordered Mr. Raign to file appellant's brief in this court no later May 3, 2017. Our order cautioned Mr. Raign that if he did not file appellant's brief by May 3, 2017, this cause would be abated for the trial court to conduct a hearing to determine whether: (1) appellant desires to prosecute his appeal; (2) appellant is indigent, and if so, the trial court shall take such measures as may be necessary to assure the effective assistance of counsel, which may include the appointment of new counsel; and (3) counsel has abandoned the appeal. Our order also informed Mr. Raign that because sanctions may be necessary, the trial court would be asked to address this issue even if new counsel is retained or substituted before the date of the hearing. Appellant's brief has not been filed.
Mr. Raign has received adequate notice that appellant's brief is late and been provided with adequate time in which to file the brief. Because the brief has not been filed, pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), we ABATE this case to the trial court and ORDER the trial court to conduct a hearing no later than June 5, 2017 to answer the following questions:
(1) Does appellant desire to prosecute his appeal?
(2) Is appellant indigent? If appellant is indigent, the trial court shall take such measures as may be necessary to assure the effective assistance of counsel, which may include the appointment of new counsel.
(3) Has appointed or retained counsel abandoned the appeal? Because sanctions may be necessary, the trial court should address this issue even if new counsel is retained or substituted before the date of the hearing.
(4) If counsel has not abandoned the appeal and if the trial court does not appoint new counsel, the trial court must obtain on the record a date certain by which appellant's brief will be filed.
(5) Should Mr. Raign be sanctioned for failure to file appellant's brief by May 3, 2017?
The trial court may, in its discretion, receive evidence on the first two questions by sworn affidavit from the appellant. The trial court shall, however, order Mr. Raign to be present at the hearing.
The trial court is further ORDERED to file supplemental clerk's and reporter's records in this court, no later than June 20, 2017, which shall include: (1) a transcription of the hearing and copies of any documentary evidence admitted, (2) written findings of fact and conclusions of law, and (3) recommendations addressing the above enumerated questions.
The Clerk of this court shall cause a copy of this order to be served on Mr. Raign by certified mail, return receipt requested, and by United States mail. The Clerk of this court shall also fax a copy of this order to the Honorable Lori Valenzuela, presiding judge of the 437th Judicial District Court, Bexar County, Texas.
All appellate filing dates are ABATED pending further orders from this court.
/s/_________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 17th day of May, 2017.
/s/_________
Keith E. Hottle
Clerk of Court