Michael Ray Ellsworth v. State

• Court: Court of Appeals of Texas
• Decided: July 30, 2018
• Docket: 03-17-00524-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-17-00524-CR

Michael Ray Ellsworth, Appellant

v.

The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2016-318, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING

ORDER

PER CURIAM

Appellant’s brief was originally due on December 6, 2017. On January 18, 2018,

this Court sent a notice to appellant informing him that his brief was overdue and that a failure to

file a satisfactory response by January 29, 2018, 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. We

abated the appeal on March 22, 2018, and remanded the case to the district court for a hearing

under Rule 38.8(b) of the Texas Rules of Appellate Procedure. We ordered the trial court to

make appropriate written findings and recommendations, and if necessary, to appoint substitute

counsel who will effectively represent appellant in this appeal. We further ordered the trial court

to 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 April 23, 2018.

The trial court conducted a hearing on April 12, 2018. Following the hearing, the

trial court provided us with supplemental clerk’s and reporter’s records. The transcript from the hearing reflects that appellant desires to prosecute his appeal and had not abandoned it.

Appellant’s court-appointed counsel also assured the trial court that counsel had not abandoned

the appeal and that he would be able to file a brief 30 days from the reinstatement of the case.

The trial court’s findings state that appellant desires to prosecute his appeal and that he is

indigent and entitled to court-appointed counsel. See Tex. R. App. P. 38.8(b)(2). The trial court

recommended that appellant’s present counsel should not be removed and that this Court

should reinstate the appeal and provide counsel 30 days from the date of reinstatement to file

appellant’s brief.

On April 13, 2018, this Court reinstated the case and notified the parties that

appellant’s brief was due on May 14, 2018. On June 5, 2018, this Court sent a notice to

appellant informing him that his brief was overdue and that a failure to file a satisfactory

response by June 15, 2018, 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. To date, the brief has not

been filed.

Counsel is ordered to file appellant’s brief no later than August 29, 2018. If

counsel has not filed either a brief or a motion to dismiss that complies with Texas Rule of

Appellate Procedure 42.2(a) by that date, counsel will be required to show cause why he should

not be held in contempt of court.

It is ordered on July 30, 2018.

Before Justices Puryear, Goodwin, and Bourland

Do Not Publish