Kenneth T. Smith v. the State of Texas

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00796-CR

Kenneth T. Smith, Appellant v.

The State of Texas, Appellee

FROM THE 22ND DISTRICT COURT OF HAYS COUNTY NO. CR-22-5046-A, THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

PER CURIAM Appellant’s brief was originally due January 12, 2024. After this Court granted two motions requesting extensions of time to file his brief, appellant’s brief was due July 1, 2024. In granting the most recent extension, this Court advised counsel that no further extensions would be granted absent a showing of good cause. On August 12, 2024, counsel filed a third motion, requesting an extension until August 22, 2024 and providing substantively the same explanation for delay given in his prior motions. He did not file a brief by his requested date, and to date, the brief has not been tendered for filing and is overdue. This Court has previously sent counsel three notices informing him that appellant’s brief was overdue. The most recent, dated August 1, 2024, informed counsel that a failure to file a brief or motion for extension of time by August 12, 2024, would result in the referral of this case to the trial court for a hearing under Rule 38.8(b) of the Texas Rules of Appellate Procedure. Although counsel

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filed a motion for extension on August 12, 2024, he failed to make a showing of good cause, and his requested date has since passed without his filing a brief.

The appeal is abated and remanded to the trial court. The trial court shall conduct a hearing to determine whether appellant desires to prosecute this appeal and, if so, whether counsel has abandoned this appeal. See Tex. R. App. P. 38.8(b)(2), (3). The court shall make appropriate written findings and recommendations. See id. R. 38.8(b)(2), (3). If necessary, the court shall appoint substitute counsel who will effectively represent appellant in this appeal. Following the hearing, which shall be transcribed, the trial court shall order the appropriate supplemental clerk’s and reporter’s records—including all findings and orders—to be prepared and forwarded to this Court no later than September 13, 2024. See id. R. 38.8(b)(3).

It is so ordered August 28, 2024.

Before Justices Baker, Smith, and Theofanis Abated and Remanded Filed: August 28, 2024 Do Not Publish