William Smokey Joseph Lee v. State

• Court: Court of Appeals of Texas
• Decided: November 7, 2014
• Docket: 09-13-00569-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00569-CR ____________________

WILLIAM SMOKEY JOSEPH LEE, Appellant

V.

THE STATE OF TEXAS, Appellee _____________________________________________________________________

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 13-09-10178 CR _______________________________________________________ _

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

February 28, 2014, and the reporter’s records were filed March 10, 2014 and

April 1, 2014. On June 6, 2014, the Court granted an extension of time to file

the brief, noting that the extension was a “FINAL EXTENSION.” On October

24, 2014, the appellant’s court-appointed attorney, Bob Mabry, was notified

that neither the brief of the appellant nor a motion for extension of time to file

the brief has been filed. Although the brief of the appellant was due to be filed

June 30, 2014, the brief has not 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 him 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 his appeal. If appellant

desires to pursue his 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 for appointed

counsel, Bob Mabry, to be relieved of his duties as appellate counsel and

replaced by substitute counsel. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2)

(West Supp. 2014). If the trial court determines that good cause exists to relieve

appointed counsel of his duties, we direct the trial court to appoint substitute

counsel.

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 court reporter’s

2 record from the hearing and the clerk’s record containing the recommendations

of the trial court judge are to be filed on or before December 5, 2014.

ORDER ENTERED November 6, 2014.

PER CURIAM

Before McKeithen, C.J., Horton, and Johnson, JJ.