John Matte v. State

• Court: Court of Appeals of Texas
• Decided: April 17, 2012
• Docket: 14-12-00067-CR
• Status: Published

Opinion

Abatement Order filed April 17, 2012.

In The

Fourteenth Court of Appeals ____________

NO. 14-12-00067-CR ____________

JOHN MATTE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court Jefferson County, Texas Trial Court Cause No. 09-07779

ABATEMENT ORDER

This case was transferred to this court from the Court of Appeals for the Ninth District, pursuant to an order from the Texas Supreme Court. Appellant is represented by appointed counsel, Bruce W. Cobb. On December 20, 2011, the trial court adjudicated appellant’s guilt for assault on a family member and sentenced him to ten years in prison. The clerk’s record in this appeal was filed January 27, 2012. The reporter’s record was filed February 16, 2012. Appellant’s brief was due March 19, 2012, but it was not filed, and no motion for extension of time was filed. See Tex. R. App. P. 38.6(a). Counsel and the trial court were notified on March 27, 2012, that no brief had been received. No response from appellant’s counsel has been received. Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the Criminal District Court of Jefferson County shall (1) immediately conduct a hearing, at which appellant, appellant’s counsel, and state’s counsel shall participate, either in person or by video teleconference, to determine (a) whether appellant desires to prosecute his appeal; (b) whether appellant is indigent; (c) if not indigent, whether appellant has abandoned the appeal or whether appellant has failed to make necessary arrangements for filing a brief; (d) the reason for the failure to file a brief; (e) if appellant desires to continue the appeal, a date certain when appellant’s brief will be filed; and (2) prepare a record, in the form of a reporter’s record, of the hearing. If appellant is indigent, the judge shall take such measures as may be necessary to assure effective representation of counsel, which may include the appointment of new counsel. The judge shall see that a record of the hearing is made, shall make findings of fact and conclusions of law, and shall order the trial clerk to forward a transcribed record of the hearing, a videotape or compact disc, if any, containing a recording of the video teleconference, and a supplemental clerk’s record containing the findings and conclusions. Those records shall be filed with the clerk of this court on or before May 16, 2012. The appeal is abated, treated as a closed case, and removed from this Court’s active docket. The appeal will be reinstated on this Court’s active docket when the trial court’s findings and recommendations are filed in this Court. The Court will also consider an appropriate motion to reinstate the appeal filed by either party, or the Court may reinstate the appeal on its own motion. It is the responsibility of any party seeking reinstatement to request a hearing date from the trial court and to schedule a hearing in compliance with this Court’s order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.

PER CURIAM

2 RULE 38. REQUISITES OF BRIEFS

Tex. R. App. P. 38.8. Failure of Appellant to File Brief. (b) Criminal Cases.

(1) Effect. An appellant=s failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs.

(2) Notice. If the appellant=s brief is not timely filed, the appellate clerk must notify counsel for the parties and the trial court of that fact. If the appellate court does not receive a satisfactory response within ten days, the court must order the trial court to immediately conduct a hearing to determine whether the appellant desires to prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether retained counsel has abandoned the appeal, and to make appropriate findings and recommendations.

(3) Hearing. In accordance with (2), the trial court must conduct any necessary hearings, make appropriate findings and recommendations, and have a record of the proceedings prepared, which recordCincluding any order and findingsCmust be sent to the appellate court.

(4) Appellate Court Action. Based on the trial court=s record, the appellate court may act appropriately to ensure that the appellant=s rights are protected, including initiating contempt proceedings against appellant=s counsel. If the trial court has found that the appellant no longer desires to prosecute the appeal, or that the appellant is not indigent but has not made the necessary arrangements for filing a brief, the appellate court may consider the appeal without briefs, as justice may require.