IN THE
TENTH COURT OF APPEALS
No. 10-05-00411-CR
Timothy Lewis,
Appellant
v.
The State of Texas,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 04-03420-CRF-85
ORDER
On November 29, 2005, we docketed Appellant Timothy Lewis’s appeal and requested a docketing statement within 10 days. The required docketing statement was not received. Tex. R. App. P. 32. On December 30, 2005, we sent a letter to David S. Barron, appellant’s appointed counsel, stating that the docketing statement had not been received and requesting its filing within twenty-one days. The required docketing statement still was not received.
Appellant’s brief was originally due on March 30, 2005. We have granted two extensions of time to file the brief, the last being granted on June 20, 2006, with the time for filing the brief extended to June 28, 2006 with the notation: “NO FURTHER MOTIONS FOR EXTENSION OF TIME TO FILE APPELLANT BRIEF WILL BE ENTERTAINED.” To date, no brief has been filed. On July 5, 2006, Appellant’s counsel filed a third motion for extension of time to file appellant’s brief. This motion for extension of time is DENIED.
We abate this cause to the trial court with instructions to hold a hearing to determine: (1) why a proper brief has not been filed on Appellant’s behalf; (2) why the docketing statement has not been filed; (3) whether Appellant’s attorney has abandoned the appeal; (4) whether Appellant still desires to proceed with the appeal; and (5) whether Appellant desires to represent himself. See Tex. R. App. P. 38.8(b)(3); Fewins v. State, 170 S.W.3d 293 (Tex. App.—Waco 2005, order) (Fewins contains an extended discussion of these issues).
The trial court shall conduct the hearing within thirty days after the date of this order. The trial court clerk and court reporter shall file supplemental records within forty-five days after the date of this order. See Fewins, 170 S.W.3d at 296-97.
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray concurs only in the abatement for the trial court to hold a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(3).
Motion denied; appeal abated
Order issued and filed July 19, 2006
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rt should not have awarded Roberto $25,000 as his share of the community property or as a reimbursement to his separate estate because his pleading did not support such a recovery. By waiting until the appeal to raise a complaint that Roberto's pleading was not sufficient to support the award, they waived any error. See Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818, 822 (Tex. Civ. App.--Dallas 1962, writ ref'd n.r.e.). Points five and six are overruled. The enforcement order is affirmed.
BOB L. THOMAS
Chief Justice
Before Chief Justice Thomas, Justice
Cummings and Justice Vance
Affirmed
Opinion delivered and filed February 21, 1991
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