Jacob Owen Edwards v. State

• Court: Court of Appeals of Texas
• Decided: May 1, 2017
• Docket: 02-16-00377-CR
• Status: Published

Opinion

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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-16-00370-CR NO. 02-16-00371-CR NO. 02-16-00377-CR

JACOB OWEN EDWARDS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 2 OF DENTON COUNTY TRIAL COURT NO. CR-2014-07164-B, CR-2014-09118-B, CR-2012-08863-B

ABATEMENT ORDER

It has come to our attention that appellant’s brief has not been filed.

Appellant’s brief was originally due on April 17, 2017. This court has previously

granted three extensions of time to file appellant’s brief in this case. By letter

dated April 20, 2017, appellant’s retained counsel, David Wacker, informed us

that Appellant will not be submitting a brief and requested that the court “make its

ruling based on the appellate record as it exists now.” FILE COPY

In accordance with rule 38.8(b), we abate the appeal and remand this case

to the trial court.

The trial court shall conduct a hearing, with appellant and retained counsel,

David M. Wacker, present. At the hearing, the court shall make the following

findings on the record:

1. Determine whether appellant desires to prosecute the appeal;

2. Determine why retained counsel has not filed a brief and whether counsel has abandoned the appeal;

3. If retained counsel has not abandoned the appeal and, after being informed of the consequences of dismissing the appeal, appellant desires to continue the appeal, determine the exact date that counsel will file a brief on appellant’s behalf in the court of appeals. Inform counsel and appellant that if the brief is not filed on that date, the court of appeals may consider the appeal without briefs. See Tex. R. App. P. 38.8(b)(4);

4. If appellant wants to continue the appeal but counsel has abandoned the appeal, determine whether appellant is indigent and, if so, whether counsel should be appointed to represent appellant and appoint counsel, if necessary;1

5. If appellant desires to proceed pro se, admonish appellant of the dangers and disadvantages of self-representation in accordance with Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975) and Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987) and determine whether appellant’s decision to proceed pro se is competently and intelligently made; and

1Ifsubstitute counsel has been appointed to represent appellant, the supplemental record shall reflect that substitute counsel has been notified of the appointment. If appellant is incarcerated, the trial court shall also retain him/her in the county for a reasonable period of time to allow substitute counsel an opportunity to confer with appellant.

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6. Make appropriate findings for the purpose of aiding this court in determining whether to initiate contempt proceedings against appellant’s counsel for noncompliance with this court’s order requiring counsel to file an appellate brief by April 17, 2017. See Tex. R. App. P. 38.8(b)(2)-(4).

7. Take any other measures that the trial court deems necessary to insure appellant does not forfeit his right to appeal.

The trial court shall file a record of the hearing in this court on or before

Wednesday, May 31, 2017. The record shall include a supplemental reporter’s

record and supplemental clerk’s record. Upon our receipt of the supplemental

record, the appeal of this cause shall be reinstated automatically without further

order.

The clerk of this court shall transmit a copy of this order to the attorneys of

record, the trial court judge, the trial court clerk, and the court reporter.

DATED May 1, 2017.

PER CURIAM