Denise Wilnell Dirden v. State

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00330-CR ____________________

DENISE WILNELL DIRDEN, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ _____________

On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 12-01-00323 CR _____________________________________________________________________

ORDER The clerk’s record in the above styled and numbered cause was filed

September 19, 2014, and the reporter’s record was filed December 8, 2014. On

February 12, 2015, the appellant’s court-appointed attorney, Mark Phillips, was

notified that neither the brief of the appellant nor a motion for extension of time

to file the brief has been filed. Although the brief of the appellant was due to

be filed Wednesday, February 11, 2015, the brief has not been filed. The Clerk

1 of the Court has contacted appellant’s court appointed attorney on February 12,

2015, February 17, 2015 and February 20, 2015 but has received no response.

We abate the appeal and remand the case to the trial court to conduct a

hearing at which a representative of the State, counsel for the appellant, and the

appellant shall be present in person. See Tex. R. App. P. 38.8(b)(3). If the

appellant is not incarcerated, but fails to appear at the hearing after having been

notified to do so, or after reasonable attempts to notify him have been made,

then the trial court may enter a finding that appellant no longer desires to

pursue the appeal and send said finding to this Court. See Tex. R. App. P.

38.8(b)(4). If the appellant is present for the hearing, we direct the trial court

to determine whether or not appellant desires to pursue his appeal. If appellant

desires to pursue his appeal, we direct the trial court to determine why the brief

of the appellant has not been filed, why appellant’s counsel has not responded

to late notices from this Court, and whether good cause exists for appointed

counsel, Mark Phillips, to be relieved of his duties as appellate counsel and

replaced by substitute counsel. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2)

(West Supp. 2014). If the trial court determines that good cause exists to

relieve appointed counsel of his duties, we direct the trial court to appoint

substitute counsel.

2 The record of the hearing, including any orders and findings of the trial

court judge, shall be sent to the appellate court for filing. The court reporter’s

record of the hearing and the clerk’s record containing the recommendations of

the trial court judge are to be filed on or before March 30, 2015.

ORDER ENTERED February 26, 2015.

Before McKeithen, C.J., Kreger and Johnson, JJ.