Misty Lara Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: March 2, 2012
• Docket: 03-11-00035-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-11-00035-CR

Misty Lara Hernandez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 64552, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING

MEMORANDUM OPINION

PER CURIAM

Appellant’s appointed counsel has filed a motion for extension of time to file

appellant’s brief. This Court has generously granted counsel five prior motions for extension of

time. On February 7, 2012, we notified counsel that his brief was overdue and that if we did not

receive a satisfactory response on or before February 17, a hearing before the trial court would be

ordered. In response, counsel filed a sixth motion for extension of time. In the motion, counsel

represents that he needs additional time to file his brief because he had been “unable to locate the

reporter’s record filed in this case” until the day he filed this motion and that he expects the brief to

be completed “very soon.”

A copy of the reporter’s record in this case was filed in this Court over one year ago,

on February 23, 2011. Appellant’s brief was first due in this Court on March 25, 2011. Under these

circumstances, we deny counsel’s motion for extension of time. We instead abate the cause and remand it to the district court to hold a hearing in accordance with rule 38.8 of the rules of appellate

procedure. Tex. R. App. P. 38.8(b)(2), (3). The district court shall hold a hearing immediately to

determine whether appellant still wishes to prosecute her appeal, whether appellant is indigent, and

whether counsel has abandoned the appeal. See id. If appellant desires to appeal and is indigent, the

district court should make appropriate orders to ensure that appellant is adequately represented on

appeal. See id. Following the hearing, the district court should order the appropriate supplementary

clerk’s and reporter’s records to be prepared and forwarded to this Court no later than April 2, 2012.

See id.

Before Chief Justice Jones, Justices Pemberton and Rose

Abated

Filed: March 2, 2012

Do Not Publish