Terry Dale Carnes v. State

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

2

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.