Ernest Earl Washington, Jr. v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00308-CR

ERNEST EARL WASHINGTON, JR., Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2016-1709-C2

ABATEMENT ORDER

Appellant’s brief was originally due January 5, 2018. Four previous extensions of

time have been granted. Counsel has now filed his fifth motion for extension of time to

file appellant’s brief requesting an additional 30 days to file appellant’s brief. This most

recent request pushes the total amount of time to over 170 days to file a brief that the

Rules of Appellate Procedure provide should be filed in 30 days.

In our last order granting counsel an extension of time to file the brief, we gave

counsel the opportunity to have substituted counsel appointed and warned counsel that if no brief was timely filed and no notice of substitute counsel is timely filed, the Court

would have no alternative but to abate this proceeding to the trial court for an appropriate

hearing. See TEX. R. APP. P. 38.8(b)(2), (3). Neither a notice of substitute counsel nor a

brief have been filed.

We understand the legitimate limitations on counsel’s ability to timely file

appellant’s brief. However, we must balance those limitations against appellant’s right

to have a brief timely filed on his behalf to prosecute the appeal. If appellant is not

opposed to the extension of time, we are not opposed to it. But, it is ultimately the trial

court’s decision to balance these diverse interests and determine whether the current

counsel should remain assigned to do this appeal or whether new counsel or co-counsel

should be appointed.

Accordingly, this appeal is abated to the trial court for a hearing and determination

consistent with this order. The hearing must occur within 21 days from the date of this

order, and appropriate supplemental records, if any must be filed by the trial court clerk

and reporter within 7 days after the required hearing.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated Order issued and filed June 13, 2018

Washington v. State Page 2