Curtis Dewight Nelson v. State

Opinion

Order entered July 2, 2019

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-00890-CR

CURTIS DEWIGHT NELSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. 068322

ORDER When appellant’s brief, initially due on December 26, 2018, was not filed, we abated the

appeal for a hearing to determine why the brief had not been filed. The trial court held a hearing

and made findings, including that appellant was indigent and entitled to counsel. The trial court

then appointed Don Jarvis (former retained counsel) to represent appellant on appeal. Because

appellant had been found indigent, we ordered the court reporter to file the reporter’s record; it

was filed April 8, 2019. We granted a motion for extension of time to file the brief, making the

brief due May 16, 2019. When the brief was not filed, we notified counsel by postcard dated

May 20, 2019 and directed him to file the brief and a motion to extend time within ten days. We

cautioned that the failure to do so would result in the appeal being abated for a hearing. To date,

no brief has been filed and we have had no communication from appellate counsel. Therefore, 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 appeals.

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 THIRTY DAYS of the date of this

order.

We DIRECT the Clerk to send copies of this order to the Honorable Larry Phillips,

Presiding Judge, 59th Judicial District Court; to Don Jarvis, Jr.; and to the Grayson County

District Attorney’s Office.

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

appeal shall be reinstated thirty days from the date of this order or when the findings are

received, whichever is earlier.

/s/ ROBERT D. BURNS, III CHIEF JUSTICE