IN THE
TENTH COURT OF APPEALS
No. 10-17-00308-CR
ERNEST EARL WASHINGTON, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2016-1709-C2
ABATEMENT ORDER
Appellant’s brief was originally due January 5, 2018. Four previous extensions of
time have been granted. Counsel has now filed his fifth motion for extension of time to
file appellant’s brief requesting an additional 30 days to file appellant’s brief. This most
recent request pushes the total amount of time to over 170 days to file a brief that the
Rules of Appellate Procedure provide should be filed in 30 days.
In our last order granting counsel an extension of time to file the brief, we gave
counsel the opportunity to have substituted counsel appointed and warned counsel that
if no brief was timely filed and no notice of substitute counsel is timely filed, the Court
would have no alternative but to abate this proceeding to the trial court for an appropriate
hearing. See TEX. R. APP. P. 38.8(b)(2), (3). Neither a notice of substitute counsel nor a
brief have been filed.
We understand the legitimate limitations on counsel’s ability to timely file
appellant’s brief. However, we must balance those limitations against appellant’s right
to have a brief timely filed on his behalf to prosecute the appeal. If appellant is not
opposed to the extension of time, we are not opposed to it. But, it is ultimately the trial
court’s decision to balance these diverse interests and determine whether the current
counsel should remain assigned to do this appeal or whether new counsel or co-counsel
should be appointed.
Accordingly, this appeal is abated to the trial court for a hearing and determination
consistent with this order. The hearing must occur within 21 days from the date of this
order, and appropriate supplemental records, if any must be filed by the trial court clerk
and reporter within 7 days after the required hearing.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed June 13, 2018
Washington v. State Page 2