Courtney Duane Barlow v. the State of Texas

Opinion

Order entered February 11, 2022

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-21-00392-CR

COURTNEY DUANE BARLOW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 380-82257-2020

ORDER

Before the Court is appellant’s February 9, 2022 fifth motion for an

extension of time to file his brief. A review of this appeal shows the notice of

appeal was filed on March 3, 2021. Because of a delay in the filing of the

reporter’s record, appellant’s brief was initially due on October 9, 2021. Having

considered the Texas Supreme Court’s ongoing direction to liberally allow

extensions of time due to the COVID-19 pandemic, we granted four extensions of

time, giving appellant an additional one hundred and twenty-three days to draft and file his brief. In our January 11, 2022 order, we cautioned appellant that absent

extenuating circumstances, the failure to file a brief by February 9 would result in

the appeal being abated for a hearing. In his fifth motion, appellant states he needs

an additional thirty days in which to file a brief, citing the same reasons as he did

in his January motion but no new or additional issues. Appellant does not,

however, indicate whether he has read or reviewed the six-volume reporter’s

record or the clerk’s record, nor does he indicate whether he has started drafting

the brief.

Under these circumstances, we ORDER the trial court to conduct a hearing

to determine why appellant’s brief has not been filed. In this regard, the trial court

shall make appropriate findings and recommendations and determine whether

appellant desires to prosecute this appeal, whether appellant has abandoned the

appeal, or whether appointed counsel has abandoned the appeal. See TEX. R. APP.

P. 38.8(b). If the trial court cannot obtain appellant’s presence at the hearing, the

trial court shall conduct the hearing in appellant’s absence. See Meza v. State, 742

S.W.2d 708 (Tex. App.–Corpus Christi 1987, no pet.) (per curiam). If appellant is

indigent, the trial court is ORDERED to take such measures as may be necessary

to assure effective representation, which may include appointment of new counsel. We ORDER the trial court to transmit a record of the proceedings, which

shall include written findings and recommendations, to this Court within

TWENTY DAYS of the date of this order.

We DIRECT the Clerk to send copies of this order to the Honorable

Benjamin Smith, Presiding Judge, 380th Judicial District Court; and to counsel for

all parties.

This appeal is ABATED to allow the trial court to comply with the above

order. The appeal shall be reinstated twenty days from the date of this order or

when the Court finds it appropriate to do so.

/s/ ROBERT D. BURNS, III CHIEF JUSTICE