Melanie Brooke Holloway v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-18-00053-CR

MELANIE BROOKE HOLLOWAY, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2016-1548-C1

ABATEMENT ORDER

Appellant’s brief was originally due on or before May 9, 2018. When no brief was

filed, the Court notified appellant by letter dated May 17, 2018 that the brief was late and

that, unless a brief or satisfactory response was received within 14 days, the Court must

abate the appeal and order the trial court to immediately conduct a hearing pursuant to

Texas Rule of Appellate Procedure 38.8(b)(2) and (3). See TEX. R. APP. P. 38.8(b)(2), (3).

No brief or response was filed. On June 13, 2018, we abated the appeal to the trial court to conduct any necessary

hearings within 21 days of the date of the order pursuant to Rule 38.8(b)(2) and (3). See

id. Supplemental clerk’s and reporter’s records required by Rule 38.8(b)(2) and (3), if any,

were ordered to be filed within 35 days of the date of the order. See id. The trial court

eventually held the required hearing on August 3, 2018, and appellant’s counsel informed

the trial court that appellant’s brief would be filed by August 6, 2018 at 5:00 p.m.

We subsequently reinstated the appeal; however, when no brief was filed, the

Court notified appellant by letter dated August 16, 2018 that the brief was late and that,

unless a brief or satisfactory response was received within 14 days, the Court must again

abate the appeal and order the trial court to immediately conduct a hearing pursuant to

Rule 38.8(b)(2) and (3). See id. No brief was filed, but, on August 24, 2018, appellant filed

a motion for an extension of time until September 21, 2018 to file the appellant’s brief.

An extension of time until September 21, 2018 would have been a total of 165 days

to file the brief. The Rules of Appellate Procedure establish the norm that a brief should

be filed in 30 days. Id. at 38.6(a). Accordingly, on September 12, 2018, we denied

appellant’s motion for an extension of time to file the appellant’s brief and ordered that

appellant’s brief be filed no later than September 17, 2018. No brief has been filed.

Accordingly, we again abate this appeal to the trial court. The trial court is

ORDERED to conduct a hearing within 7 days of the date of this Order to determine:

1. why no brief has been filed;

2. whether appellant is receiving effective assistance of counsel;

3. whether to appoint new counsel for appellant; and

Holloway v. State Page 2 4. a date certain as to when appellant’s brief will be filed with this Court and

order counsel to file the brief on or before that date. See id. at 38.8(b)(2), (3).

The trial court shall also inform counsel that should counsel remain as appointed

counsel for appellant and another deadline to file appellant’s brief is missed, this Court

will abate this appeal to the trial court for a hearing to determine whether counsel should

be held in contempt of court.

The supplemental clerk’s and reporter’s records required by the Rule 38.8(b)(2)

and (3), if any, are ORDERED to be filed within 14 days of the date of this Order. See id.

PER CURIAM

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Appeal abated Order issued and filed October 3, 2018

Holloway v. State Page 3