Dylan Scott Garrett v. State

• Court: Court of Appeals of Texas
• Decided: March 30, 2018
• Docket: 03-17-00082-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-17-00082-CR

Dylan Scott Garrett, Appellant

v.

The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2016-500, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

ORDER

PER CURIAM

Appellant filed his notice of appeal on January 31, 2017, and his brief was

originally due on May 10, 2017—about 11 months ago. On May 22, 2017, we sent counsel a

notice that the brief was overdue and advised him that a hearing before the trial court would be

ordered if we did not receive a response on or before June 1, 2017. On May 22, 2017, this Court

sent a notice to appellant’s counsel informing him that appellant’s brief was overdue and that a

failure to file a satisfactory response by June 1, 2017, would result in the referral of this case to

the trial court for a hearing under Rule 38.8(b) of the Texas Rules of Appellate Procedure.

We abated the appeal on August 22, 2017, and remanded the cause to the district

court for a hearing under Rule 38.8(b) of the Texas Rules of Appellate Procedure. We ordered

the trial court to make appropriate written findings and recommendations, and if necessary, to

appoint substitute counsel who will effectively represent appellant in this appeal. We further ordered the trial court to order the appropriate supplemental clerk’s and reporter’s records—

including all findings and orders—to be prepared and forwarded to this Court no later than

September 21, 2017.

Following the hearing, the Comal County District Clerk’s office informed the

Court in October 2017 and again in December 2017 that the findings and orders were not filed

into record. A supplemental reporter’s record was filed on October 9, 2017, indicating that the

trial court held a hearing. The transcript from the hearing indicates that appellant’s counsel was

uncertain about whether appellant wants to pursue his appeal and that appellant was not at the

hearing although his counsel had expected him to be. The trial court indicated that it lacked

sufficient information to make a finding, but it was unclear from the record when the trial court

and appellant’s counsel intended to resolve the issue of whether appellant desires to prosecute

his appeal.

Accordingly, on February 23, 2018, we reinstated the case to abate it a second

time. We remanded the cause to the trial court for a second hearing under Rule 38.8(b) of the

Texas Rules of Appellate Procedure. For a second time, we ordered the trial court to conduct a

hearing to determine whether appellant desires to prosecute this appeal, and if so, whether

counsel has abandoned this appeal. See Tex. R. App. P. 38.8(b)(2), (3). We again ordered the

trial court to make appropriate written findings and recommendations, and if necessary, to

appoint substitute counsel who will effectively represent appellant in this appeal. We again

ordered the trial court to order the appropriate supplemental clerk’s and reporter’s records—

including all findings and orders—to be prepared and forwarded to this Court no later than

March 26, 2017.

2 To date, we have received no findings, no recommendations, and no appellant’s

brief. A supplemental reporter’s record was filed on March 26, 2018. The transcript from the

hearing conducted on March 12 indicates that appellant’s counsel remains uncertain about

whether appellant wants to pursue his appeal and that appellant has been placed in SAFP. The

trial court recommended that counsel send appellant another letter and give him two weeks to

respond. Two weeks have since passed.

Counsel is ordered to file appellant’s brief no later than April 20, 2018. If counsel

has not filed either a brief or a motion to dismiss that complies with Texas Rule of Appellate

Procedure 42.2(a) by that date, counsel will be required to show cause why he should not be held

in contempt of court.

It is ordered on March 30, 2018.

Before Justices Puryear, Pemberton, and Bourland