Cornell McHenry v. State

• Court: Court of Appeals of Texas
• Decided: January 12, 2015
• Docket: 06-14-00131-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-14-00131-CR

CORNELL MCHENRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 202nd District Court Bowie County, Texas Trial Court No. 12F0117-202

Before Morriss, C.J., Moseley and Burgess, JJ. ORDER

Cornell McHenry appeals from his conviction for possession of a controlled substance, in

the amount of four grams or more but less than 200 grams. McHenry’s notice of appeal was

filed July 14, 2014. The appellate record was completed by the filing of the reporter’s record

September 30, 2014, making McHenry’s brief originally due October 30, 2014. Counsel is

appointed.

When McHenry’s brief was not received by the October 30, 2014, deadline and no

motion to extend the briefing deadline was filed, we sent a late-brief notice to McHenry’s

counsel, Bart Craytor, November 10, 2014. The letter advised Craytor of the late status of the

brief and established a new filing deadline of November 25, 2014. We also warned Craytor that

his failure to file the brief by November 25 could result in abatement to the trial court for a

hearing in accordance with Rule 38.8 of the Texas Rules of Appellate Procedure. See TEX. R.

APP. P. 38.8(b).

On November 12, 2014, Craytor filed a motion for extension of time to file the brief,

which was granted, and a new filing deadline of December 1, 2014, was set. At that time, we

stated that no more extensions would be looked on with favor. Since that time, in spite of efforts

by our clerk’s office to obtain McHenry’s brief, Craytor has persisted in not filing a brief on

behalf of McHenry.

Because appellant’s brief has not been filed and because appointed counsel is either

unwilling or unable to file the brief and/or communicate with the Court, 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

2 determine why counsel has not filed the brief, whether the brief can be promptly filed with this

Court, whether McHenry still desires to prosecute this appeal, and whether McHenry remains

indigent. See TEX. R. APP. P. 38.8(b)(2). The trial court may also address other matters as it

deems appropriate, including appointing different counsel for appellant, if necessary. The

hearing is to be conducted within fifteen days of the date of this order.

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 7, 2015