James William Smith v. State

Opinion

Order filed September 30, 2013

In The

Eleventh Court of Appeals

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No. 11-12-00095-CR

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JAMES WILLIAM SMITH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 350th District Court Taylor County, Texas

Trial Court Cause No. 10035-D

ORDER

This appeal has been unduly stalled due to the failure of Appellant’s appointed counsel, Bill Fisher, to file an appellate brief. The brief was originally due on October 31, 2012. Counsel has filed three motions for extension based upon his extenuating circumstances. This court granted all three motions. We also issued an order on May 9, 2013, directing counsel to file in this court a brief on

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behalf of Appellant, James William Smith, on or before May 24, 2013. We subsequently granted Appellant’s third motion for extension and later, on our own motion, extended the deadline to August 9, 2013. Appellant’s brief still has not been filed.

In light of the inordinate delay in filing Appellant’s brief, we abate the appeal and remand the cause to the trial court so that it may determine the following:

1. Whether Smith desires to prosecute his appeal; 2. Whether Smith is indigent; and 3. If indigent, whether appointed counsel, Bill Fisher, should be removed as appellate counsel and new counsel appointed.

See TEX. R. APP. P. 38.8(b). The trial court is directed to make appropriate findings and recommendations and to appoint new appellate counsel if appropriate. The trial court clerk is directed to prepare and forward to this court a supplemental clerk’s record containing the findings, recommendations, and any orders of the trial court. If a hearing is held, the court reporter is directed to prepare and forward to this court the reporter’s record from the hearing. These records are due to be filed in this court on or before November 1, 2013. Appellant’s brief will be due to be filed in this court within thirty days after the date this appeal is reinstated.

The appeal is abated.

PER CURIAM

September 30, 2013 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J., McCall, J., and Willson, J.