Don Eric Wolters v. State

• Court: Court of Appeals of Texas
• Decided: November 20, 2015
• Docket: 07-15-00222-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00222-CR

DON ERIC WOLTERS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 181st District Court Randall County, Texas Trial Court No. 25,203-B, Honorable John B. Board, Presiding

November 20, 2015

ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant Don Eric Wolters appeals the trial court’s order revoking his deferred

adjudication community supervision, adjudicating him guilty of the offense of evading

arrest or detention using a vehicle,1 and sentencing him to twenty years imprisonment

and a $1,500 fine.

The reporter’s record was filed on July 1, 2015. The trial court clerk’s record was

filed on September 22. Consequently, appellant’s brief was due on October 22. 1 TEX. PENAL CODE ANN. § 38.04 (West Supp. 2015). Appellant has neither filed a brief nor requested an extension of time. On October 29,

we sent appellant notice that his brief was past due. In that letter, we informed

appellant that if he failed to file his brief by November 9, the appeal would be abated

and the cause remanded to the trial court for further proceedings without further notice.

Appellant has not filed a brief and we have had no further communication from

appellant’s counsel.

Appellate Rule 38.8(b) provides, in part, that in a criminal case an appellant’s

failure to file a brief does not authorize either dismissal of the appeal or consideration of

the appeal without briefs, unless the trial court has found either (1) that the appellant no

longer desires to prosecute the appeal, or (2) that the appellant is not indigent but has

not made the necessary arrangements for filing a brief. TEX. R. APP. P. 38.8(b)(1), (4).

Therefore, we abate this appeal and remand the cause to the trial court for further

proceedings pursuant to Rule of Appellate Procedure 38.8(b).

On remand, the trial court shall utilize whatever means it finds necessary to

determine the following:

1. whether appellant desires to prosecute his appeal;

2. whether appellant is indigent and entitled to the appointment of counsel;

3. whether appellant has abandoned the appeal or failed to make necessary arrangements for filing a brief;

4. the reason for the failure to file a brief; and

5. if appellant desires to continue the appeal, the date the Court may expect appellant’s brief to be filed.

2 Should the trial court determine appellant desires to prosecute this appeal and is

indigent, it shall determine whether present counsel should remain as appellant’s

counsel or new counsel should be appointed. Should the trial court appoint new

counsel or if appellant has retained new counsel, the name, postal service and e-mail

addresses, telephone number, and state bar number of the newly-appointed or newly-

retained counsel shall be provided to the Clerk of this Court in an order of the trial court.

Finally, the trial court shall execute findings of fact, conclusions of law, and any

orders it may enter regarding the aforementioned issues and cause its findings,

conclusions, and orders, if any, to be included in a supplemental clerk’s record to be

filed with the Clerk of this Court by December 21, 2015.

New counsel, if any, shall file appellant’s brief within thirty days of the date of

appointment or engagement; however, should current counsel be permitted to remain

as counsel, he shall file appellant’s brief within ten days of the trial court’s decision.

It is so ordered.

Per Curiam

Do not publish.