Harvey Leelane Searcy v. State

• Court: Court of Appeals of Texas
• Decided: May 26, 2016
• Docket: 10-15-00370-CR
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-15-00370-CR

HARVEY LEELANE SEARCY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 40th District Court Ellis County, Texas Trial Court No. 39316CR

ORDER

Appellant’s brief was due on or before April 26, 2016. By letter dated April 29,

2016, the Clerk of this Court notified appellant that no brief had been filed and that, unless

a brief or satisfactory response was received within 14 days, the Court would abate the

appeal and order the trial court to immediately conduct a hearing pursuant to Texas Rule

of Appellate Procedure 38.8(b)(2) and (3). In response, appellant did not file a brief. Instead, appellant sent the Clerk a letter requesting an extension of time until June 6, 2016

to file appellant’s brief. This is not a “satisfactory response.”

First, appellant’s letter contains no proof of service. A copy of all documents

presented to the Court must be served on all parties to the proceeding and must contain

proper proof of service. TEX. R. APP. P. 9.5. Proof of service may be in the form of a

certificate of service. TEX. R. APP. P. 9.5(d). A certificate of service must state the name

and address of each person served. Id. (e)(2). Second, a request for relief from the Court,

specifically a request for an extension of time, is properly presented to the Court in a

motion. See TEX. R. APP. P. 10.5(b). Such a motion must also contain, among other

requirements, a proper proof of service. See TEX. R. APP. P. 9.5; 10.1(a); 10.5(b).

Accordingly, appellant’s letter, dated May 11, 2016, is stricken. Appellant must

file and serve either a brief or a proper motion requesting an extension of time to file a

brief within seven days from the date of this Order. The failure to file and serve one or

the other will result in the Court abating the appeal and ordering the trial court to

immediately conduct a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(2)

and (3).

PER CURIAM Before Chief Justice Gray, Justice Davis, and Justice Scoggins Letter stricken Order issued and filed May 26, 2016

Searcy v. State Page 2