Carlton McEwen v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-08-00522-CR

Carlton McEwen, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT NO. D-1-DC-08-904053, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant’s brief was due in this Court on March 2, 2009. On March 27, 2009,

we notified appellant’s counsel that appellant’s brief was overdue and that if we did not receive a

satisfactory response from counsel on or before April 6, 2009, a hearing before the district court

pursuant to Tex. R. App. P. 38.8(b) would be ordered. On April 6, we received a letter from

appellant’s counsel in which he represented that the brief and a motion for leave to file late brief

would be filed on or before April 8, 2009. To date, appellant’s brief has not been filed.

We therefore abate the cause and remand it to the district court to hold a hearing in

accordance with rule 38.8 of the rules of appellate procedure. Tex. R. App. P. 38.8(b)(2), (3). The

district court shall hold a hearing immediately to determine whether appellant still wishes to

prosecute his appeal, whether appellant is indigent, and whether counsel has abandoned the appeal. See id. If appellant desires to appeal and is indigent, the district court should make appropriate

orders to ensure that appellant is adequately represented on appeal. See id. Following the hearing,

the district court should order the appropriate supplementary clerk’s and reporter’s records to be

prepared and forwarded to this Court no later than June 29, 2009. See id.

Before Justices Patterson, Pemberton and Waldrop

Abated

Filed: May 28, 2009

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