Omar Montemayor v. State

NUMBER 13-14-00173-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG OMAR MONTEMAYOR, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 197th District Court of Cameron County, Texas. ORDER Before Justices Rodriguez, Benavides, and Perkes Order Per Curiam Appellant’s brief was originally due on June 30, 2014. On July 10, 2014, the Clerk of the Court notified appellant’s counsel that the brief had not been filed and requested a response concerning the failure to file the brief within ten days. Appellant failed to file a motion or otherwise respond within the requisite period of time. Accordingly, on August 18, 2014, the Court abated and remanded the matter to the trial court, in accordance with Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, to allow the trial court to conduct a hearing to determine whether appellant desired to prosecute his appeal, whether the appellant was indigent, or if not indigent, whether retained counsel had abandoned the appeal, and to make appropriate findings and recommendations. The Court received a supplemental clerk’s record on August 27, 2014, containing the trial court’s findings that appointed counsel had mailed a motion for a 60 day extension of time to file the brief to this Court which was neither granted nor denied, had not abandoned the appeal, was diligently working on appellant’s brief, and should not be removed as counsel. Accordingly, on August 29, 2014, we notified the parties that the appeal was reinstated and that appellant’s brief was due to be filed by September 29, 2014. On September 29, 2014, counsel filed a motion for extension of time to file the brief until October 14, 2014, which was granted by the Court. On October 21, 2014, the Clerk of the Court notified appellant’s counsel that the brief had not been filed and requested a response concerning the failure to file the brief within ten days. Counsel has nevertheless failed to file either a response or an appellate brief in this matter. We have already abated this matter once because of the tardiness of appellant’s brief. See TEX. R. APP. P. 38.8(b)(2). Accordingly, given the foregoing, IT IS ORDERED that Alfredo Padilla, counsel for appellant, file the appellate brief with this Court on or before 5:00 p.m. on December 1, 2014. If counsel fails to file the brief within the foregoing specified period of time, the Court will act appropriately to ensure that 2 appellant’s rights are protected. See TEX. R. APP. P. 38.8(b)(4). IT IS SO ORDERED. PER CURIAM Delivered and filed this the 10th day of November, 2014. 3