Jennifer Jill Whitehead v. State

• Court: Court of Appeals of Texas
• Decided: January 7, 2014
• Docket: 06-13-00054-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-13-00054-CR

JENNIFER JILL WHITEHEAD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 3rd District Court Anderson County, Texas Trial Court No. 30256

Before Morriss, C.J., Carter and Moseley, JJ. ORDER Jennifer Jill Whitehead appeals from her conviction of capital murder of an individual under

age six, her conviction of injury to a child, and the sentences resulting from those convictions.

Whitehead’s notice of appeal was filed March 12, 2013. The appellate record was completed by the

filing of the reporter’s record on August 26, making Whitehead’s brief originally due September 25.

Counsel is appointed.

Efforts from our clerk’s office to obtain the appellant’s brief and/or a motion to extend the

briefing deadline proved unproductive; consequently, we sent a late brief notice to appellant’s

counsel, William M. House, Jr., on October 14 advising him of the late status of the brief and

establishing a new deadline—October 29—for filing the brief. We also warned House that his

failure to file the brief could result in abatement to the trial court for a hearing in accord with Rule

38.8 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 38.8(b). In response to our late

brief notice, House filed a motion to extend the briefing deadline, which we granted, extending the

deadline to December 2.

Having received neither appellant’s brief nor another motion to extend the briefing deadline,

we ordered House to file appellant’s brief on or before January 2, 2014. We advised House that his

failure to file the brief by January 2 would result in abatement of this matter to the trial court for a

Rule 38.8 hearing. See id. Additionally, we warned House that his failure to file the brief by the

newly established deadline could subject him to contempt proceedings. Rather than filing the brief

with an adequate explanation for the delay, House filed another motion seeking yet another

sixty-day extension of the briefing deadline. House’s motion for an extension of the briefing

deadline is overruled.

2 House ignored this Court’s December 20 order and failed to file appellant’s brief.

Because the brief has not been filed as ordered, we abate this case to the trial court pursuant to

Texas Rule of Appellate Procedure 38.8(b) for a hearing to determine why counsel has not filed

the brief, whether the brief can be promptly filed with this Court, whether Whitehead desires to

prosecute this appeal, and whether she is indigent. See TEX. R. APP. P. 38.8(b)(2). As a part of

this hearing, the trial court is instructed to make findings regarding House’s actions/inactions

before this Court and to make recommendations on the issue of contempt. The trial court may

also address other matters as it deems appropriate, including appointing different counsel for

appellant, if necessary. The hearing is to be conducted within fifteen days of the date of this

order.

The trial court’s findings and recommendations on the issues set forth above shall be

entered into the record of the case and presented to this Court in the form of a supplemental

clerk’s record within fifteen days of the date of the hearing. See TEX. R. APP. P. 38.8(b)(3). The

reporter’s record of the hearing shall also be filed with this Court in the form of a supplemental

reporter’s record within fifteen days of the date of the hearing. See id.

All appellate timetables are stayed and will resume on our receipt of (1) the appellant’s

brief or (2) the supplemental appellate record.

IT IS SO ORDERED.

BY THE COURT

Date: January 7, 2014