Kenneth Wayne Elkins v. the State of Texas

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-23-00443-CR

Kenneth Wayne Elkins, Appellant

v.

The State of Texas, Appellee

FROM THE 22ND DISTRICT COURT OF COMAL COUNTY NO. CR2022-332, THE HONORABLE STEPHANIE BASCON, JUDGE PRESIDING

ORDER AND MEMORANDUM OPINION

Kenneth Wayne Elkins was convicted of the offense of injury to an elderly

individual, was sentenced to ten years’ imprisonment, and was placed on community supervision

for ten years. See Tex. Penal Code §§ 12.34, 22.04. Following his conviction, Ellis filed his

notice of appeal on July 26, 2023, and his brief was originally due October 16, 2023. This Court

granted four motions requesting an extension of time to file his brief, and in granting the fourth

extension, extending the deadline to February 2, 2024, advised counsel that no further extensions

would be granted and that his failure to file the brief would result in the referral of the case to the

trial court for a hearing under Rule 38.8(b) of the Texas Rules of Appellate Procedure. The brief

was not filed by the extended deadline and on February 5, 2024, counsel filed a fifth motion for extension of time, asking for another extension to February 16, 2024, and stating that his other

professional and personal duties “have prevented work on this case.”

We abate the appeal and remand the matter to the trial court to conduct a hearing

under Rule 38.8, including whether counsel can fulfill his obligations in this appeal. See Tex. R.

App. P. 38.8(b)(2), (3). Accordingly, the trial court shall determine whether Elkins still wishes

to prosecute his appeal, whether he is indigent, and, if he is not indigent, whether retained

counsel has abandoned this appeal and whether Elkins has made the necessary arrangements for

filing a brief. See id. The court shall make appropriate written findings and recommendations,

see id., and, if necessary, 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 March 11, 2024. See id. R. 38.8(b)(3).

It is ordered on February 9, 2024.

Before Justices Baker, Triana, and Kelly

Abated and Remanded

Filed: February 9, 2024

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