Filemon Herrera v. State

• Court: Court of Appeals of Texas
• Decided: July 9, 2015
• Docket: 10-14-00234-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-14-00234-CR

FILEMON HERRERA, Appellant v.

THE STATE OF TEXAS, Appellee

From the 361st District Court Brazos County, Texas Trial Court No. 12-04824-CRF-361

ABATEMENT ORDER

In this case, appellant, Filemon Herrera, appeals his conviction for continuous

sexual abuse of a child for which he received a forty-five year prison sentence. See TEX.

PENAL CODE ANN. § 21.02 (West Supp. 2014). The trial court entered its judgment on July

10, 2014. Herrera filed his notice of appeal in this case on July 31, 2014. Herrera was

declared to be indigent and was appointed appellate counsel. In his docketing statement,

Herrera indicated that he would be requesting a free Reporter’s Record in this case. Our records indicate that the Reporter’s Record in this case was originally due on

September 8, 2014. See TEX. R. APP. P. 35.2. Because Court Reporter Felix Thompson did

not file the Reporter’s Record in this case by September 8, 2014, we sent a letter on

September 30, 2014, requesting that Thompson file the record within thirty days. On

October 20, 2014, Thompson responded to our letter and informed this Court that he had

written Herrera’s appellate counsel to make financial arrangements for the Reporter’s

Record. Subsequently, on October 24, 2014, Thompson filed a motion for extension of

time, requesting a new filing date of December 1, 2014. Also, in his October 24, 2014

letter, Thompson indicated “that financial arrangements have been satisfied and payment

has been . . . made.” We granted Thompson’s motion, thereby extending the filing date

for the Reporter’s Record to December 1, 2014.

Because we did not receive the Reporter’s Record by December 1, 2014, on January

13, 2015, we sent Thompson a letter requesting that he file the Reporter’s Record within

ten days. On January 27, 2015, Thompson moved to extend the filing deadline to

February 8, 2015. In this motion, Thompson indicated that the Reporter’s Record was 550

pages and that “[a]ll that is left is proofing, correcting[,] and filing.” We granted

Thompson’s motion, thereby extending the filing deadline to Monday, February 9, 2015.

Thereafter, on February 16, 2015, Thompson sent this Court an email stating that

he was taking a five-week, non-paid leave of absence from his duties as the official court

reporter for the 361st District Court to become current with his appeals records. On

March 4, 2015, we acknowledged Thompson’s February 16, 2015 email and notified him

that the Reporter’s Record in this case was long overdue. We have not received any

Herrera v. State Page 2 written correspondence from Thompson about this case since the February 16, 2015

email. Furthermore, Thompson has yet to file the Reporter’s Record in this matter.

It is the joint responsibility of this Court and the trial court to ensure that the

appellate record is timely filed. Id. at R. 35.3(c). Further, this Court may enter any order

necessary to ensure the timely filing of the appellate record. Id. Accordingly, we abate

this appeal and order the trial court to conduct a hearing within twenty-one days of the

date of this abatement order to determine a date certain by when the reporter’s record

can be filed in a manner that does not further delay the prosecution of this appeal or have

the practical effect of depriving appellant of his right of appeal.

The court reporter is ordered to file a supplemental reporter’s record with this

Court containing the transcription of the hearing within seven days of the hearing.

Further, the district clerk shall file a supplemental clerk’s record with this Court

containing the trial court’s findings and order within seven days of the hearing.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated Order issued and filed July 9, 2015 Do not publish

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