Lola Danielle Cherry v. State

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-12-00080-CR

LOLA DANIELLE CHERRY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 354th District Court Hunt County, Texas Trial Court No. 27792

Before Morriss, C.J., Carter and Moseley, JJ. ORDER

Lola Danielle Cherry, appellant, was convicted of attempted capital murder of a person

under six years of age and was sentenced on January 18, 2012, to twenty-four years’ in the Texas

Department of Criminal Justice Correctional Institutions Division. Her notice of appeal was

timely filed January 18, 2012. The clerk’s record was filed May 16, 2012, and the reporter’s

record was filed June 29, 2012, making the appellant’s brief due July 30, 2012. Counsel is

appointed.

Appellant’s counsel has filed four motions to extend the briefing deadline in this matter,

and, for good cause shown, we granted all four of those motions. The last motion to extend was

filed on September 25, 2012, and resulted in a new filing deadline of October 19, 2012. Having

received nothing from appellant’s counsel, the clerk’s office sent a late-brief notice

November 13, 2012, giving counsel until November 26, 2012, to file appellant’s brief. Since that

time, we have received neither the appellant’s brief nor a request for further extension of the

filing deadline. Inquiries from our clerk’s office to appellant’s counsel regarding the overdue

brief have proven unproductive. While we are sympathetic to the medical issues appellant’s

counsel has experienced, we have no choice but to take action in this matter.

Because the brief of appellant has not been received, we abate this case to the trial court

pursuant to Rule 38.8(b) of the Texas Rules of Appellate Procedure for a hearing to determine

why counsel has not filed the brief, whether the brief can be promptly filed with this Court,

whether Cherry desires to prosecute her appeal, and whether she is indigent. See TEX. R. APP.

P. 38.8(b)(2). The hearing is to be conducted within fifteen days of the date of this order. The

2 trial court may also address other matters as it deems appropriate, including appointing different

counsel for appellant if necessary.

The trial court’s findings and recommendations on the issues set forth above shall be

entered into the record of the case and presented to this Court in the form of a supplemental

clerk’s record within fifteen days of the date of the hearing. See TEX. R. APP. P. 38.8(b)(3). The

reporter’s record of the hearing shall also be filed with this Court in the form of a supplemental

reporter’s record within fifteen days of the date of the hearing. See id.

All appellate timetables are stayed and will resume on our receipt of (1) the appellant’s

brief or (2) the supplemental appellate record.

IT IS SO ORDERED.

BY THE COURT

Date: January 24, 2013