Michael Scott Chastain v. State

Opinion

IN THE

TENTH COURT OF APPEALS

No. 10-18-00152-CR

MICHAEL SCOTT CHASTAIN, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 220th District Court Bosque County, Texas Trial Court No. CR15457

ABATEMENT ORDER

Appellant’s brief is overdue in this appeal. Our January 2, 2019 order to

appellant’s counsel states:

Appellant’s brief was originally due on or before October 18, 2018.

When no brief was filed on that date, the Court notified appellant by letter dated October 25, 2018 that the brief was late and that, unless a brief or satisfactory response was received within fourteen days, the Court would 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 was filed, but on November 27, 2018, appellant filed a Motion for Extension of Time to File Brief.

Before we ruled on appellant’s motion, the trial court sua sponte held a hearing regarding appellant’s failure to timely file a brief. Appellant’s attorney told the trial court that appellant’s brief would be filed on November 30, 2018. The trial court directed that a copy of the reporter’s record from that proceeding be filed with this Court. Appellant’s brief was not filed on November 30, 2018.

We thereafter granted appellant’s Motion for Extension of Time and directed that appellant’s brief be filed no later than January 3, 2019. Appellant was also warned that no further extensions would be entertained absent extraordinary circumstances. Appellant has now filed an additional Motion to Extend Time to File appellant’s brief until January 13, 2019.

An extension of time until January 13, 2019 would be a total of 147 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, appellant’s motion for an extension of time to file appellant’s brief is only partially granted. Appellant’s brief is due no later than January 11, 2019. If appellant’s brief is not filed by January 11, 2019, we will abate this appeal and order the trial court to immediately conduct a hearing pursuant to Rule 38.8(b)(2) & (3). Id.

Appellant’s attorney has not filed the brief as ordered, but has filed another motion

requesting additional time without specifying any cause for the delay. We therefore

abate this appeal to the trial court to conduct any necessary hearings within 21 days of

the date of this order in accordance with Texas Rule of Appellate Procedure 38.8(b)(2)

and (3). TEX. R. APP. P. 38.8(b)(2), (3).

The supplemental clerk’s and reporter’s records required by the rule, if any, are

ordered to be filed within 35 days of the date of this Order. See id.

PER CURIAM

Before Chief Justice Gray and Justice Davis Order issued and filed January 30, 2019

Chastain v. State Page 2