The State of
Fourth Court of Appeals
San Antonio, Texas
December 18, 2015
No. 04-15-00471-CR
Donte Lewayne WILSON,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR4061
Honorable Melisa Skinner, Judge Presiding
ORDER
Appellant’s brief was due on October 22, 2015. On November 2, 2015, the clerk of this
court notified appellant’s attorney, Pat Montgomery, that appellant’s brief was late and asked
appellant’s attorney to respond to this court in writing within 10 days. See Tex. R. App. P.
38.8(b)(2). The Clerk’s letter required Mr. Montgomery to provide a reasonable explanation for
failing to timely file the brief. The letter also required that any response “should also demonstrate
that you are taking affirmative steps to remedy the deficiencies.” Further, the letter informed Mr.
Montgomery that if he intended for his response “to act as a motion for extension of time, it must
comply with Texas Rule of Appellate Procedure 10.5 and the Fourth Court of Appeal’s local
rules.”
Mr. Montgomery did not respond, and appellant’s brief was still not filed. On November
23, 2015, this Court ordered Mr. Montgomery to file appellant’s brief on or before December 7,
2015. Mr. Montgomery was cautioned that if he did not file appellant’s brief by that date, the
Court would abate this appeal to the trial court for an abandonment hearing. Tex. R. App. P.
38.8(b)(2). Contempt proceedings may also be initiated against Mr. Montgomery. Id. 38.8(b)(4).
Pursuant to rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we abate this case
to the trial court and ORDER the trial court to conduct a hearing to answer the following
questions:
(1) Does appellant desire to prosecute his appeal?
(2) Is appellant indigent? If appellant is indigent, the trial court shall take such measures
as may be necessary to assure the effective assistance of counsel, which may include the
appointment of new counsel.
(3) Has counsel abandoned the appeal? Because sanctions may be necessary, the trial
court should address this issue even if new counsel is retained or substituted before the
date of the hearing.
The trial court may, in its discretion, receive evidence on the first two questions by sworn
affidavit from the appellant. The trial court shall, however, order Mr. Montgomery to be present
at the hearing.
The trial court is further ORDERED to file supplemental clerk’s and reporter’s records in
this court, no later than 30 days from the date of this order, which shall include: (1) a
transcription of the hearing and copies of any documentary evidence admitted, (2) written
findings of fact and conclusions of law, and (3) recommendations addressing the above
enumerated questions. All appellate filing dates are ABATED pending further orders from this
court.
_________________________________
Jason Pulliam, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 18th day of December, 2015.
___________________________________
Keith E. Hottle
Clerk of Court
Donte Lewayne Wilson v. State
Combined Opinion