Opinion
No. 10-17-00272-CR
05-02-2018
TOMMY VILLAREAL, Appellant v. THE STATE OF TEXAS, Appellee
From the 66th District Court Hill County, Texas
Trial Court No. 38,366
ORDER
Appellant's brief was originally due December 27, 2017. Appellant requested and received one extension of time for 47 days which made the brief due February 12, 2018. When the brief was not filed by February 12, 2018, the Clerk notified appellant by letter dated February 14, 2018 that the brief was past due and if a brief or satisfactory response was not received within 14 days, the Court would abate the appeal to the trial court for a hearing pursuant to Rule 38.8(b)(2) & (3) of the Texas Rules of Appellate Procedure. No brief or response was received. Thus, the Court abated this appeal on March 14, 2018. Six days after we abated the appeal, we received another motion for extension of time to file appellant's brief. Appellant requested an additional 45 days. Because the appeal was abated, we could not rule on appellant's motion.
A hearing was held on March 23, 2018 on the abatement order. A supplemental clerk's record was filed on March 26, 2018 containing the trial court's findings. The trial court found that retained counsel for appellant was "derelict in not filing an appellate brief within the extended time period afforded to him" and "[t]here was no reasonable excuse provided by the retained counsel for failing to file the appellate brief...." The trial court ordered, and recommended that this Court order, counsel to file appellant's brief no later than April 9, 2018. We reinstated the appeal on April 4, 2018 and ordered the brief due April 9, 2018.
Appellant has now filed another motion for extension of time to file appellant's brief, requesting another 45 days from April 9, 2018 to file the brief. This most recent request pushes the total amount of time to almost 180 days to file a brief that the Rules of Appellate Procedure provide should be filed in 30 days.
We must balance counsel's delay against the appellant's right to have a brief filed on his behalf to prosecute the appeal. Accordingly, if the brief cannot be filed in the time permitted under this Order, counsel should take the steps necessary to provide substitute counsel so that a brief can be filed on behalf of the appellant. If no brief is timely filed pursuant to this Order and no notice of substitute counsel has been filed, the Court will have no alternative but to abate this proceeding to the trial court for an appropriate hearing. See TEX. R. APP. P. 38.8(b)(2), (3).
Appellant's motion for extension of time to file a brief is granted. Appellant's brief is due May 24, 2018.
PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Motion granted
Order issued and filed May 2, 2018