John Gess v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 16, 2024
• Docket: 07-24-00097-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00097-CR

JOHN GESS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2021-422,658, Honorable William R. Eichman II, Presiding

July 16, 2024 ORDER OF ABATEMENT AND REMAND Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Appellant, John Gess, appeals his conviction for online solicitation of a minor1 and

sentence to four years of confinement. Appellant’s brief was originally due May 6, 2024,

but we granted Appellant’s appointed counsel two extensions to file a brief. By letter of

June 6, 2024, we admonished Appellant’s counsel that failure to file a brief by July 5 could

result in the appeal being abated and the cause remanded to the trial court for further

1 See TEX. PENAL CODE ANN. § 33.021(b). proceedings without further notice. On July 5, 2024, Appellant’s counsel filed a third

motion requesting an extension to August 5 to file a brief.

We deny Appellant’s third motion for extension, abate the appeal, and remand the

cause to the trial court for further proceedings. See TEX. R. APP. P. 38.8(b)(2), (3). Upon

remand, the trial court shall determine the following:

1. whether Appellant still desires to prosecute the appeal;

2. whether Appellant is indigent;

3. why a timely appellate brief has not been filed on behalf of Appellant;

4. whether Appellant’s counsel has abandoned the appeal;

5. whether Appellant has been denied the effective assistance of counsel;

6. whether new counsel should be appointed; and

7. if Appellant desires to continue the appeal, the date the Court may expect

Appellant’s brief to be filed.

The trial court is also directed to enter such orders necessary to address the

aforementioned questions. So too shall it include its findings on those matters in a

supplemental record and cause that record to be filed with this Court by September 15,

2024. If it is determined that Appellant desires to proceed with the appeal, is indigent,

and has been denied the effective assistance of counsel, the trial court may appoint new

counsel; the name, address, email address, phone number, and state bar number of any

newly-appointed counsel shall be included in the aforementioned findings.

2 Should Appellant’s counsel file a brief on or before August 15, 2024, she is directed

to immediately notify the trial court of the filing, in writing, whereupon the trial court shall

not be required to take any further action.

It is so ordered.

Per Curiam

Do not publish.