In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00131-CR
CORNELL MCHENRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 202nd District Court
Bowie County, Texas
Trial Court No. 12F0117-202
Before Morriss, C.J., Moseley and Burgess, JJ.
ORDER
Cornell McHenry appeals from his conviction for possession of a controlled substance, in
the amount of four grams or more but less than 200 grams. McHenry’s notice of appeal was
filed July 14, 2014. The appellate record was completed by the filing of the reporter’s record
September 30, 2014, making McHenry’s brief originally due October 30, 2014. Counsel is
appointed.
When McHenry’s brief was not received by the October 30, 2014, deadline and no
motion to extend the briefing deadline was filed, we sent a late-brief notice to McHenry’s
counsel, Bart Craytor, November 10, 2014. The letter advised Craytor of the late status of the
brief and established a new filing deadline of November 25, 2014. We also warned Craytor that
his failure to file the brief by November 25 could result in abatement to the trial court for a
hearing in accordance with Rule 38.8 of the Texas Rules of Appellate Procedure. See TEX. R.
APP. P. 38.8(b).
On November 12, 2014, Craytor filed a motion for extension of time to file the brief,
which was granted, and a new filing deadline of December 1, 2014, was set. At that time, we
stated that no more extensions would be looked on with favor. Since that time, in spite of efforts
by our clerk’s office to obtain McHenry’s brief, Craytor has persisted in not filing a brief on
behalf of McHenry.
Because appellant’s brief has not been filed and because appointed counsel is either
unwilling or unable to file the brief and/or communicate with the Court, we abate this case to the
trial court pursuant to Rule 38.8(b) of the Texas Rules of Appellate Procedure for a hearing to
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determine why counsel has not filed the brief, whether the brief can be promptly filed with this
Court, whether McHenry still desires to prosecute this appeal, and whether McHenry remains
indigent. See TEX. R. APP. P. 38.8(b)(2). The trial court may also address other matters as it
deems appropriate, including appointing different counsel for appellant, if necessary. The
hearing is to be conducted within fifteen days of the date of this order.
The trial court’s findings and recommendations on the issues set forth above shall be
entered into the record of the case and presented to this Court in the form of a supplemental
clerk’s record within fifteen days of the date of the hearing. See TEX. R. APP. P. 38.8(b)(3). The
reporter’s record of the hearing shall also be filed with this Court in the form of a supplemental
reporter’s record within fifteen days of the date of the hearing. See id.
All appellate timetables are stayed and will resume on our receipt of (1) the appellant’s
brief or (2) the supplemental appellate record.
IT IS SO ORDERED.
BY THE COURT
Date: January 7, 2015
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