In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00080-CR
LOLA DANIELLE CHERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th District Court
Hunt County, Texas
Trial Court No. 27792
Before Morriss, C.J., Carter and Moseley, JJ.
ORDER
Lola Danielle Cherry, appellant, was convicted of attempted capital murder of a person
under six years of age and was sentenced on January 18, 2012, to twenty-four years’ in the Texas
Department of Criminal Justice Correctional Institutions Division. Her notice of appeal was
timely filed January 18, 2012. The clerk’s record was filed May 16, 2012, and the reporter’s
record was filed June 29, 2012, making the appellant’s brief due July 30, 2012. Counsel is
appointed.
Appellant’s counsel has filed four motions to extend the briefing deadline in this matter,
and, for good cause shown, we granted all four of those motions. The last motion to extend was
filed on September 25, 2012, and resulted in a new filing deadline of October 19, 2012. Having
received nothing from appellant’s counsel, the clerk’s office sent a late-brief notice
November 13, 2012, giving counsel until November 26, 2012, to file appellant’s brief. Since that
time, we have received neither the appellant’s brief nor a request for further extension of the
filing deadline. Inquiries from our clerk’s office to appellant’s counsel regarding the overdue
brief have proven unproductive. While we are sympathetic to the medical issues appellant’s
counsel has experienced, we have no choice but to take action in this matter.
Because the brief of appellant has not been received, we abate this case to the trial court
pursuant to Rule 38.8(b) of the Texas Rules of Appellate Procedure for a hearing to determine
why counsel has not filed the brief, whether the brief can be promptly filed with this Court,
whether Cherry desires to prosecute her appeal, and whether she is indigent. See TEX. R. APP.
P. 38.8(b)(2). The hearing is to be conducted within fifteen days of the date of this order. The
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trial court may also address other matters as it deems appropriate, including appointing different
counsel for appellant if necessary.
The trial court’s findings and recommendations on the issues set forth above shall be
entered into the record of the case and presented to this Court in the form of a supplemental
clerk’s record within fifteen days of the date of the hearing. See TEX. R. APP. P. 38.8(b)(3). The
reporter’s record of the hearing shall also be filed with this Court in the form of a supplemental
reporter’s record within fifteen days of the date of the hearing. See id.
All appellate timetables are stayed and will resume on our receipt of (1) the appellant’s
brief or (2) the supplemental appellate record.
IT IS SO ORDERED.
BY THE COURT
Date: January 24, 2013
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