Kenneth T. Smith v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 28, 2024
• Docket: 03-23-00796-CR
• Status: Published

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 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