David Leon Franklin v. State

• Court: Court of Appeals of Texas
• Decided: June 12, 2014
• Docket: 10-13-00404-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-13-00404-CR

DAVID LEON FRANKLIN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 18th District Court Johnson County, Texas Trial Court No. F47396

ORDER

The appellant’s brief in this case was originally due on January 30, 2014.

Appellant’s counsel has now filed his fifth motion for extension of time to file the

appellant’s brief.

On January 31, 2014, appellant’s counsel filed his first motion for extension of

time to file the appellant’s brief and was granted an extension through March 3, 2014.

On March 4, 2014, appellant’s counsel filed a second motion for extension of time

to file the appellant’s brief and was granted an extension through April 2, 2014. The Clerk of the Court’s March 5, 2014 letter to appellant’s counsel stated, “Any further

motions requesting an extension of time to file a brief will be disfavored and will rarely

be granted.”

On April 1, 2014, appellant’s counsel filed a third motion for extension of time to

file the appellant’s brief. Appellant’s counsel explained his need for an extension as

follows: “Counsel for Appellant was contacted by a family member that the Appellant

did not wish to pursue the appeal. Counsel for Appellant needs additional time to

contact Appellant to confirm.” Appellant’s counsel was granted an extension through

May 2, 2014. The Clerk of the Court’s April 9, 2014 letter to appellant’s counsel again

stated, “Any further motions requesting an extension of time to file a brief will be

disfavored and will rarely be granted.”

On May 1, 2014, appellant’s counsel filed a fourth motion for extension of time to

file the appellant’s brief. Appellant’s counsel explained his need for an extension as

follows:

Counsel for Appellant has made numerous attempts to contact Ms. Anderson at the James Bradshaw State Jail to request a phone consult with Appellant but the facility refuses to cooperate. Authorities at the State Jail refuse to place Counsel for Appellant in contact with the proper person to arrange the consult or even leave a message for this person. Counsel for Appellant has filed an application for a Bench Warrant with the trial court in order to facilitate contact with the Appellant. Counsel for Appellant needs additional time to contact Appellant to confirm if he does or does not wish to proceed with the appeal.

Appellant’s counsel was granted an extension through June 1, 2014. The Clerk of the

Court’s May 7, 2014 letter to appellant’s counsel stated, “Absent extraordinary

Franklin v. State Page 2 circumstances, no further motions for extension of time to file the appellant’s brief will

be entertained.”

On June 2, 2014, appellant’s counsel filed a fifth motion for extension of time to

file the appellant’s brief. Appellant’s counsel explains his need for an extension as

Counsel for Appellant has made numerous attempts to contact Ms. Anderson at the James Bradshaw State Jail to request a phone consult with Appellant but the facility refuses to cooperate. Authorities at the State Jail refuse to place Counsel for Appellant in contact with the proper person to arrange the consult or even leave a message for this person. Counsel for Appellant has filed an application for a Bench Warrant with the trial court in order to facilitate contact with the Appellant. The trial court has not yet bench warranted Appellant in order for Counsel to discuss his appeal. The Texas Department of Criminal Justice – Institutional Division refuses even to speak with the trial court to coordinate access. The trial court has made numerous attempts to facilitate contact with the Appellant, all to no avail. Counsel for Appellant still needs additional time to contact Appellant to confirm if he does or does not wish to proceed with his appeal.

Because appellant’s counsel has provided the same explanation for his need for

an extension of time in his fifth motion as he did in his fourth motion and seems to be

no closer to resolving the issue, we deny the fifth motion for extension of time to file the

appellant’s brief. Furthermore, because appellant’s brief has still not been filed, we

abate this appeal to the trial court to conduct any necessary hearings within 21 days of

the date of this order in accordance with Texas Rule of Appellate Procedure 38.8(b)(2)

and (3). TEX. R. APP. P. 38.8(b)(2), (3).

The supplemental clerk’s and reporter’s records required by the rule, if any, are

ordered to be filed within 35 days of the date of this Order. See id.

Franklin v. State Page 3 PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated Order issued and filed June 12, 2014 Do not publish

Franklin v. State Page 4