John Robert Manning v. State

• Court: Court of Appeals of Texas
• Decided: September 18, 2014
• Docket: 09-13-00534-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00533-CR NO. 09-13-00534-CR ____________________

JOHN ROBERT MANNING, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ _____________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 13-09-09713 CR (Count 1 and 2) _____________________________________________________________________

ORDER The clerk’s record in the above styled and numbered cause was filed on

January 29, 2014, and the reporter’s record was filed on March 18, 2014. On

May 30, 2014, the Court granted an extension of time to file the brief, noting

that the extension was a “FINAL EXTENSION.” On July 1, 2014, the

appellant’s retained attorney, Mark Phillips, was notified that the brief of the

1 appellant has not been filed. Although the brief of the appellant was due to be

filed Thursday, June 26, 2014, the brief has not been filed to date.

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

hearing at which a representative of the State, counsel for the appellant, 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 said 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, why appellant’s counsel has not responded

to late notices from this Court, and whether retained counsel has abandoned the

appeal. If the trial court determines that retained counsel has abandoned the

appeal, the trial court shall determine whether appellant is indigent and whether

counsel should be appointed for the appeal. See Tex. Code Crim. Proc. Ann.

art. 26.04(j)(2) (West Supp. 2014).

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

2 the court reporter’s notes from the hearing and the recommendations of the trial

court judge are to be filed on or before October 20, 2014.

ORDER ENTERED September 18, 2014.

PER CURIAM

Before McKeithen, C.J., Horton and Johnson, JJ.