Omar Montemayor v. State

Opinion

NUMBER 13-14-00173-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

OMAR MONTEMAYOR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 197th District Court of Cameron County, Texas.

ORDER Before Justices Rodriguez, Benavides, and Perkes Order Per Curiam

Appellant’s brief was originally due on June 30, 2014. On July 10, 2014, the Clerk

of the Court notified appellant’s counsel that the brief had not been filed and requested a

response concerning the failure to file the brief within ten days. Appellant failed to file a

motion or otherwise respond within the requisite period of time. Accordingly, on August 18, 2014, the Court abated and remanded the matter to

the trial court, in accordance with Rule 38.8(b)(2) of the Texas Rules of Appellate

Procedure, to allow the trial court to conduct a hearing to determine whether appellant

desired to prosecute his appeal, whether the appellant was indigent, or if not indigent,

whether retained counsel had abandoned the appeal, and to make appropriate findings

and recommendations.

The Court received a supplemental clerk’s record on August 27, 2014, containing

the trial court’s findings that appointed counsel had mailed a motion for a 60 day extension

of time to file the brief to this Court which was neither granted nor denied, had not

abandoned the appeal, was diligently working on appellant’s brief, and should not be

removed as counsel. Accordingly, on August 29, 2014, we notified the parties that the

appeal was reinstated and that appellant’s brief was due to be filed by September 29,

2014. On September 29, 2014, counsel filed a motion for extension of time to file the

brief until October 14, 2014, which was granted by the Court. On October 21, 2014, the

Clerk of the Court notified appellant’s counsel that the brief had not been filed and

requested a response concerning the failure to file the brief within ten days. Counsel

has nevertheless failed to file either a response or an appellate brief in this matter.

We have already abated this matter once because of the tardiness of appellant’s

brief. See TEX. R. APP. P. 38.8(b)(2). Accordingly, given the foregoing, IT IS ORDERED

that Alfredo Padilla, counsel for appellant, file the appellate brief with this Court on or

before 5:00 p.m. on December 1, 2014. If counsel fails to file the brief within the

foregoing specified period of time, the Court will act appropriately to ensure that

2 appellant’s rights are protected. See TEX. R. APP. P. 38.8(b)(4).

IT IS SO ORDERED.

PER CURIAM

Delivered and filed this the 10th day of November, 2014.