Benjamin Craig Lewis v. State

IN THE TENTH COURT OF APPEALS No. 10-13-00144-CR BENJAMIN CRAIG LEWIS, Appellant v. THE STATE OF TEXAS, Appellee From the 272nd District Court Brazos County, Texas Trial Court No. 11-03276-CRF-272 ORDER By Order dated September 19, 2013, we granted Lewis’s pro se request for an extension of time to file his response to his counsel’s Anders brief. We noted that the motion was not properly served. We warned Lewis that future documents presented to the Court must be properly served or the documents will be stricken. Based on that warning, we struck Lewis’s “First Motion for Extension of Time to file Appellants Pro Se Brief or Response to Ander’s Brief” by Order dated October 10, 2013, because the motion was not served. (It was actually Lewis’s second motion). Lewis has filed another motion for extension of time to file his response to his counsel’s Anders brief. For the first time, Lewis contends that he never received a copy of his attorney’s Anders brief. Counsel’s Anders brief indicates that a copy of the brief was sent to Lewis. Should Lewis require another copy, he should contact his attorney, Calvin Parks. Lewis also complains that no one has sent him the record for his review. By letter dated August 29, 2013 the Clerk of this Court advised Lewis how to obtain a copy of the record: “If you wish to obtain a copy of the record, you must contact the trial court clerk, whose address is: Hon. Marc Hamlin District Clerk, Brazos County 300 E. 26th Street, Suite 1200 Bryan, TX 77803” We have had no indication from Lewis that he has attempted to contact the trial court clerk to obtain a copy of the record. Further, we note that Lewis’s motion again was not properly served because not all parties to the appeal were served. See TEX. R. APP. P. 9.5(a). The Clerk of this Court and the District Clerk are not parties to the appeal. The State of Texas, represented by the Brazos County District Attorney, is a party to the appeal. The State was not served. Accordingly, because Lewis’s “Second Motion for Extension of Time to File Response to the Anders Brief” (actually his third motion for extension of time) filed on November 7, 2013, was not properly served, it is stricken. Lewis’s response to his counsel’s Anders brief remains due by November 18, 2013. If Lewis wishes to file another motion for extension of time to file a response, he may do so but he must file a Lewis v. State Page 2 properly served motion and must provide the Court with proof, such as copies of letters, that he has requested a copy of the Anders brief from his counsel and that he has requested a copy of the record from the trial court clerk. In the absence of a properly and timely filed response, the Court will proceed to review the proceeding as required by the Anders procedures. PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins Motion stricken Order issued and filed November 21, 2013 Lewis v. State Page 3