Opinion
Appellate case number: 01-12-00404-CR Trial court case number: 11CR1752
01-11-2013
Sheron Gabriel Terrell v. The State of Texas
ORDER OF ABATEMENT
Trial court: 56th District Court of Galveston County
Appellant's brief in this appeal was originally due on September 24, 2012. The brief was not filed, nor was any extension of time requested, and a late brief notice was sent on October 9, 2012. See TEX. R. APP. P. 38.8(b)(2). On October 18, 2012, appellant filed a motion for extension of time to file the brief to November 19, 2012, which was granted. However, appellant failed to file the brief or request a further extension of time by the requested deadline. On December 19, 2012, a second late brief notice was sent, requiring a satisfactory response from the appellant regarding the overdue brief by January 2, 2013 or the appeal would be abated to the trial court. On January 2, 2013, appellant's counsel, Calvin Parks, filed another motion, asking for an additional 30 day extension. The motion does not constitute a satisfactory response and fails to adequately explain counsel's disregard for briefing deadlines generally or specifically why the brief was not filed by the November 19, 2012 deadline requested by Parks. The brief is now more than three months overdue. Meanwhile, appellant remains incarcerated pending the appeal.
Accordingly, we abate this appeal and remand the case to the trial court for a hearing at which Calvin Parks and a representative of the State shall be present. Appellant shall also be present; he may appear by closed video teleconference. We direct the trial court to make written findings regarding the following:
Any such teleconference must use a closed-circuit video teleconferencing system that provides for a simultaneous compressed full motion video and interactive communication of image and sound between the trial court, appellant, and any attorneys representing the State or appellant. On request, appellant and his counsel shall be able to communicate privately without being recorded or heard by the trial court or the attorney representing the State.
1) Whether appellant wishes to pursue this appeal; and if so,See TEX. CODE CRIM. PROC. ANN. arts. 1.051(d), 26.04(a), (b), (c); TEX. R. APP. P. 38.8.
2) Whether good cause exists to relieve Calvin Parks of his duties as appellant's counsel;
a. if good cause does exist, enter an order relieving Calvin Parks of his duties as appellant's counsel and appointing substitute counsel for appellant;
b. if good cause does not exist, order Calvin Parks to file a brief in this Court no later than 10 days from the date of the hearing.
The trial court shall have a court reporter record the hearing and file the reporter's record of the hearing with this Court no later than 20 days from the date of this order. Additionally, the trial court's findings and recommendations and any orders issued pursuant to this hearing shall be included in a supplemental clerk's record and filed in this Court no later than 20 days from the date of this order.
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 supplemental clerk's record and reporter's record of the hearing are filed in this Court. The court coordinator of the trial court shall set a hearing date and notify the parties and the Clerk of this Court of such date.
It is so ORDERED. Judge's signature: Justice Michael Massengale
[√] Acting individually [ ] Acting for the Court