Janson Michael Durney v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2013
• Docket: 09-12-00307-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-12-00307-CR _________________

JANSON MICHAEL DURNEY, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the County Court at Law No. 5 Montgomery County, Texas Trial Cause No. 11-272011 ________________________________________________________________________

ORDER

On October 3, 2012, we dismissed for want of prosecution the appeal of Janson

Michael Durney, who has been representing himself pro se without claiming indigence.

The clerk’s record in the above styled and numbered cause was filed December 10, 2012,

and the reporter’s record has been filed. On December 13, 2012, we reinstated the

appeal. Appellant’s brief was due January 14, 2013, but was not filed, and the appellant

was notified that neither the brief of the appellant nor a motion for extension of time to

file the brief has been filed. On January 16, 2013, we received a request for an extension

1 signed by “Jan Michael” but took no action on the motion because it was purportedly

signed by a person other than the appellant or a lawyer acting on his behalf. As of today,

the brief of the appellant has not been filed.

We abate the appeal and remand the case to the trial court to conduct a hearing at

which a representative of the State 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 the finding to this Court. See Tex. R. App. P. 38.8(b)(4).

If the appellant 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. If the

trial court determines that appellant desires to pursue his appeal and is indigent, we direct

the trial court to appoint 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 transcription of the court

reporter’s notes from the hearing and the recommendations of the trial court judge are to

be filed on or before March 4, 2013.

ORDER ENTERED January 31, 2013.

PER CURIAM Before McKeithen, C.J., Gaultney and Kreger, JJ.