IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JULY 13, 2001
______________________________
BANESSA HOPE HUERTA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NOS. B13048-9806 & A13133-9808; HONORABLE ED SELF, JUDGE
_______________________________
Before BOYD, C.J., and REAVIS and JOHNSON, JJ.
ABATEMENT AND REMANDOn October 11, 2000, appellant Banessa Hope Huerta was sentenced to five years confinement for burglary of a habitation in trial court cause number B13048-9806, and six years confinement for burglary of a habitation in trial court cause number A13133-9808. Appellant timely perfected her appeal and the clerk's record was filed on February 8, 2001. After an extension of time was granted, the reporter's record was due to be filed on March 12, 2001. By letter dated April 10, 2001, Mr. Bratcher provided this Court with a status report of pending appeals and his intent to have the record in this appeal filed prior to a surgical procedure scheduled for June 18, 2001. To date, however, the reporter's record has not been filed and no reasonable explanation for the delay nor any estimate as to when this Court may expect to receive the reporter's record has been presented.
The trial court and an appellate court are jointly responsible for ensuring that an appellate record is filed. Tex. R. App. P. 35.3(c). Among other duties, the trial court must "help ensure that the reporter's work is timely accomplished by setting work priorities," and may appoint a deputy reporter when the official court reporter is unable to perform the duties. Tex. R. App. P. 13.3 and 13.5. Thus, because Mr. Bratcher is now retired, we abate this appeal and remand the cause to the 242nd District Court of Hale County for further proceedings.
Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine:
(1) whether due to poor health or other reasons, Jerry K. Bratcher is unable to prepare and file the reporter's record within 30 days from the date of hearing; or
(2) whether circumstances require the trial court to direct the present court reporter to prepare the record from the notes and materials of Jerry K. Bratcher, or
(3) whether the trial court should appoint a deputy reporter to prepare and file the reporter's record within 30 days from the date of hearing; and
(4) finally, the trial court shall make such orders as in its discretion are appropriate to facilitate the prompt filing of a reporter's record no later than 30 days from the date of the abatement hearing.
The trial court shall cause the hearing to be transcribed and shall execute findings of fact, conclusions of law, and such orders as the court may enter regarding the aforementioned issues and cause its findings and conclusions to be included in a supplemental clerk's record. A supplemental reporter's record of the hearing shall also be included in the appellate record. Finally, the trial court shall file the supplemental clerk's record and the supplemental reporter's record with the Clerk of this Court within 30 days from the date of this order.
Per Curiam
Do not publish.
Locked="false" Priority="39" Name="toc 9"/>
NO. 07-10-0413-CR
NO. 07-10-0414-CR
NO. 07-10-0415-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MAY 13, 2011
______________________________
BOBBY JOE LEE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY;
NOS. 1181069D, 1181071D, & 1181073D; HONORABLE RUBEN GONZALEZ, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Following a plea of not guilty, Appellant, Bobby Joe Lee, was convicted by a jury of theft of property valued at $20,000 or more but less than $100,000, enhanced,[1] in cause numbers 1181069D and 118071D, and criminal mischief with a pecuniary loss of $100,000 or more but less than $200,000, enhanced,[2] in cause number 1181073D. The fifty year sentences imposed in each cause were ordered to run concurrently. Appellant's notices of appeal were timely filed on September 2, 2010, and following the filing of the appellate record, his briefs were originally due to be filed on January 26, 2011.
On January 28, 2011, Appellant's appointed counsel, Richard C. Kline, requested a sixty-day extension of time in which to file Appellant's brief citing as grounds his busy schedule.[3] An extension was granted to February 25, 2011, and counsel was advised that subsequent extensions would not be granted absent good cause. On February 28, 2011, counsel filed a second motion for extension of time reasonably explaining that in addition to his busy schedule, he had a legitimate personal reason for the request. A second extension was granted to March 31, 2011. After the new deadline passed, counsel filed a third motion for extension of time based not only on his trial schedule, but also on the fact that he was moving his personal residence. This Court granted yet another extension setting the new deadline at May 5, 2011. At that time counsel, was admonished that failure to comply with the deadline might result in the appeal being abated and the cause remanded to the trial court for further proceedings pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure.[4]
After the May 5, 2011 deadline passed, counsel filed his Fourth Motion for Extension of Time to File Appellant's Brief explaining that he had filed a brief in the Second Court of Appeals on April 25, 2011, and was set for a murder trial beginning May 9, 2011. To date, Appellant's counsel has failed to file Appellant's brief.
By Order of this Court, Appellant's Fourth Motion for Extension of Time to File Appellant's Brief is denied.
We now abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall immediately determine why counsel has failed to timely file Appellant=s brief and take such action as is necessary to ensure that the brief is filed with the Clerk of this Court on or before June 20, 2011.
Should counsel file Appellant's brief on or before, June 6, 2011, he is directed to notify the trial court, in writing, of the filing, whereupon the trial court shall not be required to take further action. If, however, the brief is not filed by that date, pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate Procedure, the trial court is directed to conduct a hearing to determine the following:
1. whether Appellant desires to prosecute the appeals;
2. whether Appellant=s counsel has effectively abandoned the appeals given his failure to timely file the brief; and
3. whether Appellant has been denied effective assistance of counsel and is entitled to new appointed counsel.
Should it be determined that Appellant does want to continue these appeals and the trial court determines he is entitled to new appointed counsel, the name, address, telephone number, and state bar number of the newly-appointed counsel shall be provided to the Clerk of this Court. The trial court shall execute findings of fact and conclusions of law, and shall cause its findings, conclusions and any necessary orders to be included in a supplemental clerk's record to be filed with the Clerk of this Court by June 27, 2011. Finally, newly appointed counsel shall file Appellant's brief within thirty days after the date of appointment.
It is so ordered.
Per Curiam
Do not publish.
[1]Tex. Penal Code Ann. § 31.03(e)(5) (West Supp. 2010).
[2]Tex. Penal Code Ann. § 28.03 (b)(6) (West Supp. 2010).
[3]The normal press of business is generally not considered good cause. Curry v. Clayton, 715 S.W.2d 77, 79 (Tex.App.--Dallas 1986, no writ). This Court's guideline is to grant subsequent extensions for good cause.
[4]Notwithstanding that this appeal was transferred from the Second Court of Appeals, counsel is not unfamiliar with this Court's guidelines on motions for extensions of time. See Salzido v. State, No. 07-10-0031-CR, 2010 Tex.App. LEXIS 5658 (Tex.App.--Amarillo July 19, 2010, no pet.) (not designated for publication) (abating the appeal to the trial court after counsel filed a fourth request for an extension of time in which to file an appellant's brief).