Roy Mimms v. State

• Court: Court of Appeals of Texas
• Decided: February 3, 2009
• Docket: 03-07-00648-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00578-CR

Salviano Martinez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 390TH JUDICIAL DISTRICT NO. D-1-DC-06-204018, HONORABLE DONALD LEONARD, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant’s notice of appeal was filed on October 12, 2007. After numerous

delays, the reporter’s record was filed on August 1, 2008. Appellant’s brief was due in early

September 2008. On November 11, 2008, almost two months after we sent a late-brief notice,

appellant’s attorney filed a motion for extension of time, asking that the deadline be extended

ninety days. We granted that motion and extended the deadline to December 1, 2008, but the brief

was not filed. Instead, on January 6, 2009, counsel filed a second motion for extension of time,

asking for an additional forty days to file the brief. We granted the motion and ordered counsel to

file appellant’s brief no later than January 12, 2009. To date, the brief has not been filed.

We therefore abate the cause and remand it to the trial 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

trial court shall hold a hearing immediately to determine whether appellant still wishes to prosecute his appeal, whether appellant is indigent, and whether counsel has abandoned the appeal. See id.

If appellant desires to appeal and is indigent, the trial court should make appropriate orders to ensure

that appellant is adequately represented on appeal. See id. Following the hearing, the trial court

should order the appropriate supplementary clerk’s and reporter’s records to be prepared and

forwarded to this Court. See id.

___________________________________________

David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Abated

Filed: February 3, 2009

Do Not Publish