Gerald Tomlinson v. State

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _____________________ _____

NO. 09-19-00331-CR __________________________

GERALD TOMLINSON, Appellant V. THE STATE OF TEXAS, Appellee _________________________________________________________________

On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 25070 _________________________________________________________________

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

October 17, 2019, and the reporter’s record was filed February 3, 2020. On

September 18, 2020, the Court granted an extension of time to file the brief, noting

that the extension was a “FINAL EXTENSION.” On November 4, 2020, the

appellant’s court-appointed attorney, Todd LeBlanc, 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 November 2, 2020,

the brief has not been filed.

1 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 ap pellant 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, Todd LeBlanc, 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) (Supp.). 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.

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 February 5, 2021.

2 ORDER ENTERED January 6, 2021.

PER CURIAM

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