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Stewart v. State

Court of Appeals of Texas, Eighth District, El Paso
Jul 17, 2024
No. 08-23-00290-CR (Tex. App. Jul. 17, 2024)

Opinion

08-23-00290-CR

07-17-2024

JAMES CHRISTOPHER STEWART, Appellant, v. THE STATE OF TEXAS, State.


Appeal from the 399th District Court of Bexar County, Texas (TC# 2020CR6504)

Before Alley, C.J., Palafox and Soto, JJ.

ORDER

PER CURIAM

Pursuant to Texas Rule of Appellate Procedure 10.4 (a) the motion ruled on through this Order may have been decided by a single Justice sitting on the panel.

Appellant's brief in the above styled and numbered cause was originally due December 16, 2023. Because this cause is currently abated, we extend the abatement on our own motion, and remand the cause to the trial court for a third hearing to determine why Appellant's counsel has not filed a brief in this cause.

This Court first issued an abatement order on January 2, 2024, when Appellant did not submit a brief by the original deadline, nor a motion seeking an extension of time. Our abatement order asked the trial court to make findings to determine whether Appellant wished to continue the appeal, was entitled to appointment of new counsel, or if Appellant had been deprived of effective assistance of counsel.

The Honorable Frank J. Castro, Presiding Judge of the 399th Judicial District Court, held the requested hearing on January 22, 2024. Appellant and Judith Wemmert, his counsel, were present at the hearing. The trial court entered findings confirming that Appellant did not wish to abandon his appeal and that he would still like Ms. Wemmert to continue representing him as his appellate attorney. The trial court's final finding states: "When asked why the brief nor an extension to file had not been timely filed, Attorney Judith Wemmert responded that it was an oversight and stated that the brief will be filed by March 15." This Court received the trial court's findings, reinstated the cause, and ordered Appellant's brief due on or before March 15, 2024, pursuant to the trial court's findings.

Ms. Wemmert did not file Appellant's brief or an extension by the March 15 deadline. When the deadline lapsed, the Clerk of this Court made multiple attempts to contact Ms. Wemmert, but with no response received, the Court again abated the cause by order dated April 18, 2024, and remanded to the trial court for a second hearing to determine whether Appellant wished to continue the appeal, why Ms. Wemmert had not filed a brief or an extension in this Court, and whether Appellant was entitled to appointment of new counsel.

Visiting Judge, the Honorable Maria Teres Herr, held the second hearing on June 21, 2024 pursuant to our second abatement order. Appellant and Ms. Wemmert were present at the hearing-Appellant again stated that he wished to continue his appeal with Ms. Wemmert as his counsel. The trial court made the following additional findings:

6. The Court asked Ms. Wemmert why she had not yet filed a brief nor requested an extension. She replied that she had been busy with appellate cases as well as trial cases but stated that she will have the brief done by Monday, July 1, 2024.
7. The Court cautioned Ms. Wemmert on the issue of ineffective assistance of counsel and the possibility of sanctions if the appeal did not move forward.

The trial court entered the findings on July 1, 2024, and the district clerk filed the same as a supplemental clerk's record in this Court on July 3, 2024. As of the date of this order, which is two weeks after Ms. Wemmert represented to the court that she would file the Appellant's brief, no brief nor extension to file the same has been filed.

Therefore, we extend the current abatement and again remand this cause to the trial court for a third hearing to determine (1) why Ms. Wemmert has three times failed to meet the brief deadline in this case, and has likewise failed to file extension motions with this Court; (2) whether sanctions are appropriate for the failure to comply with briefing deadlines and representations made to the trial court, and by extension to this Court; (3) if the trial court determines that sanctions are appropriate, the amount of the same; (4) whether new counsel should be appointed to protect Appellant's constitutional rights.

The trial court shall make findings and forward the same to the District Clerk of Bexar County, Texas, on or before August 16, 2024. If the trial court finds that Appellant is entitled to appointment of new counsel, the trial court shall appoint counsel and forward any orders issued to the District Clerk for inclusion in a supplemental clerk's record. The District Clerk shall prepare and forward a supplemental clerk's record containing the trial court's findings, and any orders issued by the trial court, and forward the same to this Court on or before August 23, 2024. A transcription of the hearing shall be prepared, certified, and filed with this Court on or before August 23, 2024. This cause shall remain abated until the supplemental hearing and reporter's records are received.

As a final matter, this Court takes seriously its obligation to review the conduct of members of the Texas Bar who practice before it and will, in an appropriate case, initiate a grievance with the State Bar of Texas for conduct that appears to the Court to violate a lawyer's ethical duties to their client or duties to the tribunal.

IT IS SO ORDERED.


Summaries of

Stewart v. State

Court of Appeals of Texas, Eighth District, El Paso
Jul 17, 2024
No. 08-23-00290-CR (Tex. App. Jul. 17, 2024)
Case details for

Stewart v. State

Case Details

Full title:JAMES CHRISTOPHER STEWART, Appellant, v. THE STATE OF TEXAS, State.

Court:Court of Appeals of Texas, Eighth District, El Paso

Date published: Jul 17, 2024

Citations

No. 08-23-00290-CR (Tex. App. Jul. 17, 2024)