In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-12-00307-CR
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JANSON MICHAEL DURNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the County Court at Law No. 5
Montgomery County, Texas
Trial Cause No. 11-272011
________________________________________________________________________
ORDER
On October 3, 2012, we dismissed for want of prosecution the appeal of Janson
Michael Durney, who has been representing himself pro se without claiming indigence.
The clerk’s record in the above styled and numbered cause was filed December 10, 2012,
and the reporter’s record has been filed. On December 13, 2012, we reinstated the
appeal. Appellant’s brief was due January 14, 2013, but was not filed, and the appellant
was notified that neither the brief of the appellant nor a motion for extension of time to
file the brief has been filed. On January 16, 2013, we received a request for an extension
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signed by “Jan Michael” but took no action on the motion because it was purportedly
signed by a person other than the appellant or a lawyer acting on his behalf. As of today,
the brief of the appellant has not been filed.
We abate the appeal and remand the case to the trial court to conduct a hearing at
which a representative of the State and the appellant shall be present in person. See Tex.
R. App. P. 38.8(b)(3). If the appellant is not incarcerated, but fails to appear at the
hearing after having been notified to do so, or after reasonable attempts to notify him
have been made, then the trial court may enter a finding that appellant no longer desires
to pursue the appeal and send the finding to this Court. See Tex. R. App. P. 38.8(b)(4).
If the appellant is present for the hearing, we direct the trial court to determine whether or
not appellant desires to pursue his appeal. If appellant desires to pursue his appeal, we
direct the trial court to determine why the brief of the appellant has not been filed. If the
trial court determines that appellant desires to pursue his appeal and is indigent, we direct
the trial court to appoint counsel.
The record of the hearing, including any orders and findings of the trial court
judge, shall be sent to the appellate court for filing. The transcription of the court
reporter’s notes from the hearing and the recommendations of the trial court judge are to
be filed on or before March 4, 2013.
ORDER ENTERED January 31, 2013.
PER CURIAM
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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