Opinion
14-23-00204-CR
08-01-2024
ERIC NORMAN STEWART, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Cause No. 19-DCR-086755B
Panel Consists of Justices Wise, Bourliot, and Wilson.
ABATEMENT ORDER
PER CURIAM.
On December 14, 2023, this court struck the brief filed by appellant's appointed counsel, L.T. "Butch" Bradt, pursuant to Anders v. California, 386 U.S. 738 (1967), and Currie v. State, 516 S.W.2d 683 (Tex. Crim. App. 1974), as interpreted in High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). In doing so, the court acknowledged the brief did not analyze the indictment; any adverse rulings before, during, or after trial; voir dire; evidence presented at trial; jury instructions; and appellant's sentence. The court further acknowledged the brief did not note pages of the record where objections were made, the nature of the objections, the trial court's rulings on the objections, or the rulings' correctness or harmlessness. The court further ordered appellant's counsel to file a brief in compliance with the appellate rules and Anders procedure. Appellant's counsel filed a corrected brief and a supplemental brief on February 21, 2024. The briefs largely fail to remedy the deficiencies this court previously noted. Accordingly, the briefs are hereby struck. To ensure appellant receives adequate assistance of counsel, we conclude appointment of new counsel is required.
Pursuant to Tex.R.App.P. 38.8(b) (a copy of which is attached) the judge of the 268th District Court shall (1) immediately conduct a hearing, at which appellant, appellant's counsel, and state's counsel shall participate, either in person or by video teleconference, to determine (a) whether appellant desires to prosecute his appeal; (b) whether appellant is indigent; (c) if not indigent, whether appellant has abandoned the appeal or whether appellant has failed to make necessary arrangements for filing a brief; (d) the reason for the failure to file a brief; (e) if appellant desires to continue the appeal, a date certain when appellant's brief will be filed; and (2) prepare a record, in the form of a reporter's record, of the hearing. If appellant is indigent, the judge shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel. The judge shall see that a record of the hearing is made, shall make findings of fact and conclusions of law, and shall order the court reporter to forward a transcribed record of the hearing, a videotape or compact disc, if any, containing a recording of the video teleconference, and order the trial clerk to forward a supplemental clerk's record containing the findings and conclusions. Those records shall be filed with the clerk of this court on or before September 16, 2024.
The appeal is abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the trial court's findings and recommendations are filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal filed by either party, or the Court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing in compliance with this Court's order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.
Rule 38. REQUISITES OF BRIEFS
Tex. R. App. P. 38.8. Failure of Appellant to File Brief.
(b) Criminal Cases.
(1) Effect. An appellant's failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs.
(2)Notice. If the appellant's brief is not timely filed, the appellate clerk must notify counsel for the parties and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court must order the trial court to immediately conduct a hearing to determine whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations.
(3)Hearing. In accordance with (2), the trial court must conduct any necessary hearings, make appropriate findings and recommendations, and have a record of the proceedings prepared, which record-including any order and findings-must be sent to the appellate court.
(4) Appellate Court Action. Based on the trial court's record, the appellate court may act appropriately to ensure that the appellant's rights are protected, including initiating contempt proceedings against appellant's counsel. If the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require.