Danny Demon Austin v. State

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-13-00119-CR

DANNY DEMON AUSTIN, Appellant

v.

THE STATE OF TEXAS, Appellee

From the County Court

Navarro County, Texas

Trial Court No. C34404-CR

ABATEMENT ORDER

On March 28, 2013, appellant, Danny Demon Austin, filed a pro se notice of appeal in this matter, wherein he requested that the trial court appoint him counsel to handle this appeal. On April 5, 2013, the trial court appointed appellate counsel to handle appellant’s appeal.

Our records reflect that the Reporter’s Record and the Clerk’s Record were filed on April 23, 2013 and May 6, 2013, respectively. Pursuant to Texas Rule of Appellate

Procedure 38.6(a), appellant’s brief was due thirty days from May 6, 2013. See TEX. R. APP. P. 38.6(a). To date, we have not received a brief in this matter.

On June 21, 2013, this Court informed appellant’s counsel that appellant’s brief was late. Counsel responded on July 12, 2013, by filing a motion for extension of time to file a brief in this matter.1 This motion, however, did not contain a certificate of service or any indication that the motion had been served on the State. See id. at R. 9.5. Accordingly, on July 31, 2013, this Court informed counsel that he needed to serve a copy of his motion on the State and provide this Court with proof of service within fourteen days of July 31, 2013. We have not received a response to our July 31, 2013 letter.

At this point, we abate this cause to the trial court with instructions to hold a hearing to determine: (1) why appellant did not serve his motion on the State; (2) why appellant has not timely responded to this Court’s notices; (3) whether appellant still desires to proceed with the appeal; and (4) whether appellant is receiving effective assistance of counsel.

The trial court shall conduct the hearing within twenty-one (21) days after the date of this order. The trial court clerk and court reporter shall file supplemental records within thirty-five (35) days after the date of this order.

In his motion, appellant requested “an extension of not later than July 19, 2013” to file an Anders

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brief; however, as stated above, we have not received a brief in this matter. Austin v. State Page 2

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal Abated Opinion delivered and filed August 29, 2013 Do not publish

Austin v. State Page 3