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Barnes v. State

Court of Appeals of Texas, Fourth District, San Antonio

December 9, 2013

Jassen BARNES, Appellant
v.
THE STATE OF TEXAS, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2011CR9420 Honorable Maria Teresa Herr, Judge Presiding

ORDER

Sandee Bryan Marion, Justice

Appellant's brief was originally due on October 31, 2013. Appellant is represented on appeal by retained counsel, Ms. Suzanne M. Kramer. On November 4, 2013, this court notified Ms. Kramer, by letter, that the brief was late and instructed her to provide this court, within ten days of our letter, with a reasonable explanation for failing to timely file the brief. Ms. Kramer did not respond. Accordingly, on November 18, 2013, this court ordered Ms. Kramer to file appellant's brief in this court no later December 2, 2013. Our order cautioned Ms. Kramer that if she did not file appellant's brief by December 2, 2013, this cause would be abated for the trial court to conduct an abandonment hearing. Ms. Kramer has not responded.

Pursuant to Rule 38.8(b)(2) of the Texas Rules of Appellate Procedure, we ABATE this appeal, REMAND the case to the trial court, and ORDER the trial court to conduct a hearing to determine:

(1) whether appellant desires to prosecute his appeal;
(2) whether appellant has made the necessary arrangements for filing a brief; and
(3) whether counsel has abandoned the appeal. Because sanctions may be necessary, the trial court should make a finding as to whether the current counsel abandoned the appeal even if new counsel is retained or substituted before the date of the hearing.

The trial court may, in its discretion, receive evidence on the first issue by sworn affidavit from the appellant. The trial court shall, however, order appellant's counsel to be present at the hearing.

The trial court is further ORDERED to make written findings and conclusions on these issues. The clerk and court reporter are ORDERED to file in this court, no later than January 8, 2014, (1) a reporter's record of the hearing, and (2) a supplemental clerk's record containing the court's written findings of fact, conclusions of law, and recommendations addressing the above issues. See Tex. R. App. P. 38.8(b)(3).

The Clerk of this court shall cause a copy of this order to be served on Ms. Kramer by certified mail, return receipt requested, and by United States mail. The Clerk of this court shall also fax a copy of this order to the Honorable Maria Teresa Herr, ...


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