Janson Michael Durney v. State

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-12-00307-CR

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JANSON MICHAEL DURNEY, Appellant V.

THE STATE OF TEXAS, Appellee

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On Appeal from the County Court at Law No. 5 Montgomery County, Texas

Trial Cause No. 11-272011

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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

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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.