Terry Dale Carnes v. State

• Court: Court of Appeals of Texas
• Decided: February 14, 2013
• Docket: 09-11-00686-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-11-00686-CR _____________________

TERRY DALE CARNES, Appellant

V.

THE STATE OF TEXAS, Appellee

_________________________________________________________________ _

On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 11-10-10957 CR _________________________________________________________________ _

ORDER

The brief of the appellant was originally due on August 13, 2012. The Court

granted a final extension, which expired on October 12, 2012. On November 29,

2012, we abated this appeal and remanded the case to the trial court for the purpose

of determining why the brief of the appellant has not been filed and to determine

whether there is good cause for appellate counsel to be removed and replaced with

substitute counsel. In a hearing conducted on December 20, 2012, the trial court

1 found that the appellant, Terry Dale Carnes, desires to appeal and that substituting

counsel would further delay the appeal. At the hearing, counsel admitted that he

had not completed the brief, notwithstanding the expiration of his final extension,

but he claimed that he “should be able to get that completed” by February 1, 2013.

The trial court asked counsel if it were reasonable to expect the brief to be filed by

February 8, 2013, and counsel replied that it would.

The trial court shall conduct a hearing within thirty days of the date of this

order. If at the hearing counsel fails to prove that he has prepared and filed with

the Court of Appeals a brief together with a motion for leave to allow late filing of

the brief, the trial court shall consider whether there is cause to remove appointed

counsel and replace him with new counsel. See Tex. Code Crim. Proc. Ann. art.

26.04(j)(2) (West Supp. 2012). The trial court shall prepare written findings and

recommendations. A supplemental clerk’s record, containing any orders and

findings of the trial court, together with a supplemental reporter’s record of the

hearing here ordered, shall be filed on or before March 28, 2013.

ORDER ENTERED February 14, 2013.

PER CURIAM

Before McKeithen, C.J., Gaultney and Kreger, JJ.