Marcus Allen Bergh v. State

Opinion

NUMBER 13-14-00299-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARCUS ALLEN BERGH, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of Victoria County, Texas.

ORDER OF ABATEMENT Before Chief Justice Valdez and Justices Rodriguez, and Garza Order Per Curiam

Appellant’s brief was originally due on August 13, 2014. Pursuant to Texas Rule

of Appellate Procedure 38.8(b)(2), on August 19, 2014, the Clerk of the Court notified

appellant’s counsel that the brief had not been timely filed. Appellant’s counsel filed a

motion for extension of time to file the brief until November 7, 2014, which was granted by the Court. The brief was not filed and on November 14, 2014, the Clerk of the Court

notified appellant’s counsel that the brief had not been timely filed. Appellant’s counsel

filed a second motion for extension of time to file the brief which was granted by order to

file the brief on or before February 2, 2015. The order notified counsel that no further

extensions would be granted absent exigent circumstances. Counsel has nevertheless

failed to file an appellate brief in this matter.

Accordingly, we now ABATE this appeal and REMAND the cause to the trial court

for further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate

Procedure. Upon remand, the trial court shall utilize whatever means necessary to make

appropriate findings and recommendations concerning the following: (1) whether

appellant desires to prosecute this appeal; (2) why appellant's counsel has failed to file a

brief and whether counsel has effectively abandoned the appeal; (3) whether appellant

has been denied effective assistance of counsel; (4) whether appellant's counsel should

be removed; and (5) whether appellant is indigent and entitled to court-appointed counsel.

If the trial court determines that appellant does want to continue the appeal, that

present counsel should be removed, and that appellant is indigent and entitled to

court-appointed counsel, the trial court shall appoint new counsel to represent appellant

in this appeal. If new counsel is appointed, the name, address, telephone number, email

address, and state bar number of said counsel shall be included in an order appointing

counsel.

The trial court shall cause its findings and recommendations, together with any

orders it may enter regarding the aforementioned issues, to be included in a supplemental

2 clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record

of any proceedings to be prepared. The supplemental clerk's record and supplemental

reporter's record, if any, shall be filed with the Clerk of this Court on or before the

expiration of thirty days from the date of this order.

It is so ORDERED.

PER CURIAM

Do not publish TEX. R. APP. P. 47.2(b).

Delivered and filed the 18th day of February, 2015.