Toni Elaine Berry v. State

• Court: Court of Appeals of Texas
• Decided: May 2, 2013
• Docket: 09-12-00501-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-12-00501-CR ____________________

TONI ELAINE BERRY, Appellant

V.

THE STATE OF TEXAS, Appellee _______________________________________________________ ______________

On Appeal from the County Court at Law No. 4 Montgomery County, Texas Trial Cause No. 11-268800 ________________________________________________________ _____________

ORDER

The clerk’s record in the above styled and numbered cause was filed January

30, 2013. No reporter’s record was filed. See Tex. R. App. P. 37.3(c).

Appellant’s brief was due March 3, 2013, but was not filed, and on April 9, 2013,

we notified appellant’s retained attorney, Clinard J. Hanby, that neither the brief of

the appellant nor a motion for extension of time to file the brief has been filed. See

Tex. R. App. P. 38.8(b)(2). As of today, neither the brief of the appellant nor a

motion for extension of time has been filed.

1 We abate the appeal and remand the case to the trial court to conduct a

hearing at which a representative of the State, counsel for the appellant, and the

appellant shall be present in person. See Tex. R. App. P. 38.8(b)(3). If the

appellant is not incarcerated, but fails to appear at the hearing after having been

notified to do so, or after reasonable attempts to notify her have been made, then

the trial court may enter a finding that appellant no longer desires to pursue the

appeal and send said finding to this Court. See Tex. R. App. P. 38.8(b)(4). If the

appellant is present for the hearing, we direct the trial court to determine whether

or not appellant desires to pursue her appeal. If appellant desires to pursue her

appeal, we direct the trial court to determine why the brief of the appellant has not

been filed, why appellant’s counsel has not responded to late notices from this

Court, and whether good cause exists to determine that retained counsel, Clinard J.

Hanby, has abandoned the appeal. If the trial court determines that retained

counsel has abandoned the appeal, the trial court shall determine whether the

appellant is indigent and whether counsel should be appointed for the appeal. See

Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (West Supp. 2012). If the trial court

determines that the appellant is indigent and appoints counsel, the trial court may

also order the court reporter to prepare the reporter’s record of the trial. See Tex.

R. App. P. 20.2.

2 The record of the hearing, including any orders and findings of the trial court

judge, shall be sent to the appellate court for filing. The transcription of the court

reporter’s notes from the hearing and the recommendations of the trial court judge

are to be filed on or before June 3, 2013.

ORDER ENTERED May 2, 2013.

PER CURIAM

Before Gaultney, Kreger, and Horton, JJ.