Timothy Earl Johnson v. State

• Court: Court of Appeals of Texas
• Decided: January 8, 2014
• Docket: 06-13-00129-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-13-00129-CR

TIMOTHY EARL JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 42004-B

Before Morriss, C.J., Carter and Moseley, JJ. ORDER Timothy Earl Johnson has filed a pro se notice of appeal from his conviction for

possession of a firearm by a felon. On June 3, 2013, he was sentenced to seventeen years’

imprisonment. Johnson stated at trial that he was hiring his own counsel for appeal, and has not

claimed on appeal to be indigent. A free clerk’s record was nevertheless prepared and filed with

this Court on July 23. See TEX. R. APP. P. 35.3(a). No reporter’s record has been filed, despite

multiple attempts by this Court and the court reporter to contact Johnson. At this point, the

record is nearly five months late, and Johnson has neither contacted this Court or the reporter nor

made any effort to pay for or make arrangements to pay for the preparation of a reporter’s record

in this case. Johnson is presently incarcerated.

Further, although Johnson stated he was hiring counsel, we have no indication that he has

done so. In our letters, this Court warned Johnson that if he failed to contact this Court and the

reporter in connection with the preparation of a record, his case would proceed without a

reporter’s record. See TEX. R. APP. P. 34.1 (record consists of clerk’s record, and where

necessary, reporter’s record), 37.3(c) (court may consider and decide issues that do not require

reporter’s record). Johnson did not respond. On October 30, we informed Johnson that he

could file a brief if he wished to do so, advised him that any such brief would be considered

based upon the record before the Court, and warned him that if he did not do so, his appeal

would be subject to disposition by this Court without further notice. Johnson did not respond.

His brief was due December 2. In the six months since the pro se notice of appeal was filed,

Johnson has neither contacted this Court nor responded to any of this Court’s communications.

2 Although his disregard of this Court’s communications and his failure to secure the

reporter’s record indicate that he does not wish to proceed with the appeal, in an abundance of

caution we will utilize Texas Rule of Appellate Procedure 38.8 in an attempt to obtain more

concrete information. See TEX. R. APP. P. 38.8.

Because no brief has been filed and no effort has been made to obtain a reporter’s record,

we abate this case to the trial court pursuant to Texas Rule of Appellate Procedure 38.8(b) for a

hearing to determine whether Johnson desires to prosecute this appeal, why no record or brief

has been filed, whether a brief can be promptly filed with this Court, and whether Johnson is

indigent. See TEX. R. APP. P. 38.8(b)(2). The trial court should also address other matters as it

deems appropriate, including appointing counsel for appellant, if appropriate, and possibly

ordering preparation of a reporter’s record. The hearing is to be conducted within fifteen days of

the date of this order.

The trial court’s findings and recommendations on the issues set forth above shall be

entered into the record of the case and presented to this Court in the form of a supplemental

clerk’s record within fifteen days of the date of the hearing. See TEX. R. APP. P. 38.8(b)(3). The

reporter’s record of the hearing shall also be filed with this Court in the form of a supplemental

reporter’s record within fifteen days of the date of the hearing. See id.

All appellate timetables are stayed and will resume on our receipt of the supplemental

appellate record.

3 IT IS SO ORDERED.

BY THE COURT

Date: Janaury 8, 2014