Opinion
05-23-00407-CR
02-08-2024
MICHAEL DWAYNE WHITFIELD, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas Trial Court Cause No. 366-81954-2022
ORDER
DENNISE GARCIA JUSTICE
Appellant's brief is overdue. Appellant's brief was originally due September 24, 2023. On September 27, 2023, this Court notified appellant's counsel, Kristin R. Brown, that the brief was overdue and directed her to file appellant's brief and a motion for extension of time to file the brief within ten days. Ms. Brown filed a motion for extension of time to file the brief on November 14, 2023, which this Court granted on November 15, 2023, and ordered Ms. Brown to file the brief by December 15, 2023. On December 18, 2023, Ms. Brown filed a second motion for extension of time to file the brief, which this Court granted on December 21, 2023, and ordered Ms. Brown to file appellant's brief by January 17, 2024. As of the date of this order, appellant's brief has not been filed, and Ms. Brown has not communicated with this Court concerning this appeal since December 18, 2023.
Accordingly, the Court ORDERS the trial court to conduct a hearing on the record to determine why appellant's brief has not been filed. In this regard, the trial court shall make appropriate findings and recommendations and determine whether appellant desires to prosecute the appeal, whether appellant is indigent, or if not indigent, whether retained counsel has abandoned the appeal. See Tex. R. App. P. 38.8(b). If the trial court cannot obtain appellant's presence at the hearing, the trial court shall conduct the hearing in appellant's absence. See Meza v. State, 742 S.W.2d 708 (Tex. App.-Corpus Christi 1987, no pet.) (per curiam). If appellant is indigent, the trial court is ORDERED to take such measures as may be necessary to assure effective representation, which may include appointment of new counsel.
We ORDER the trial court to transmit a record of the proceedings, which shall include written findings and recommendations, to this Court within THIRTY DAYS of the date of this order.
This appeal is ABATED to allow the trial court to comply with the above order. The appeal shall be reinstated when the trial court's findings are received or at such other time as the Court deems proper.
We DIRECT the Clerk to send copies of this order to the Honorable Tomas Nowak, Presiding Judge, 366th Judicial District Court; Michael Gould, Collin County District Clerk; Antoinette Varela, Official Court Reporter, 366th District Court; and counsel for all parties.