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Smith v. State

Court of Appeals of Texas, Fourth District, San Antonio

June 23, 2017

Cody Lon SMITH, Appellant
v.
The STATE of Texas, Appellee

          From the 198th Judicial District Court, Kerr County, Texas Trial Court No. B-07-057 & B-15-631 Honorable Rex Emerson, Judge Presiding

          Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice

          ORDER

          Luz Elena D. Chapa, Justice

         Because appellant's brief was not filed after three extensions of time totaling ninety days, this court issued an order on May 22, 2017, abating the appeal and remanding the case to the trial court. The order directed the trial court to hold a hearing, require counsel's attendance, and make findings about whether appellant desires to prosecute the appeal and whether counsel has abandoned the appeal. It also directed the trial court to ensure effective assistance of counsel and to appoint new counsel if necessary to protect appellant's rights.

         On May 23, 2017, the trial court signed an order setting a hearing for June 1, 2017, at 1:00 p.m. and requiring counsel to personally appear. The trial court conducted the hearing and made oral and written findings, concluding that appellant desires to prosecute the appeal, that counsel "constructively abandoned the appeal, " and that "[i]n the interest of justice and to provide effective assistance to appellant, " new counsel was appointed. In addition, the trial court recommended that sanctions were appropriate. The court signed an order that removed appointed counsel and ordered her to forward appellant's file to newly appointed counsel, and appointed M. Patrick Maguire to represent appellant.

          A supplemental clerk's record and a reporter's record of the hearing in the trial court have been filed. We reinstate this appeal on the active docket of this court. Pending before the court are counsel's Motion for Reconsideration of Remand, Appellant's Brief and Motion for Extension of Time to File, [1] and counsel's Objections to Findings of Fact and Conclusions of Law Made After Remand.

         In the Motion for Reconsideration of Remand, counsel contends we "prematurely remanded" the appeal because we did not wait ten days after May 16, the date the brief was due. Counsel asserts that "Tex. R. App. P. Rule 9.2(b)(1) states that a document is considered timely filed if filed within 10 days of the filing deadline, thus if the Appellant's brief was filed on or before May 26, 2017 it would be considered timely filed." We do not agree. On its face, Rule 9.2(b)(1) applies only to "filings by mail" and requires that the filing have been placed in the mail on or before the due date. It does not apply to electronic filings and it does not provide an extra ten days to prepare a brief for filing. Rather, it allows ten days for the mail service to deliver a timely completed brief to the court. Counsel was required to electronically file her brief. See Tex. R. App. P. 9.2(c)(1). Timely electronic filing of documents is addressed in Texas Rule of Appellate Procedure 9.2(c)(4), which provides that generally "a document is considered timely filed if it is electronically filed at any time before midnight (in the court's time zone) on the filing deadline" and is generally deemed filed "when transmitted to the filing party's electronic filing service provider." Tex.R.App.P. 9.2(c)(4) (emphasis added).

         This court's April 21, 2017 order stated that no further extensions of time would be granted and gave counsel express notice that the appeal would be abated and remanded for an abandonment hearing if the brief was not filed by May 16. The brief was not filed by May 16. Nothing in the Rules of Appellate Procedure, our local rules, or our Internal Operating Procedures provides a grace period in addition to the ninety days extension of time the court had already granted. We deny the Motion for Reconsideration of Remand.

         We have reviewed the supplemental clerk's and reporter's record and counsel's Objections to Findings of Fact and Conclusions of Law. We conclude the trial court's findings, conclusions, and order substituting counsel are authorized by our remand order and by law and are supported by the record. See Tex. Code Crim. Proc. Ann. art. 26.04(j)(2) (West Supp. 2016). We hold the trial court did not abuse its discretion, and we overrule counsel's objections and adopt the trial court's findings and conclusions. However, we decline to adopt the trial court's recommendation to impose sanctions.

         Counsel additionally requests we stay the trial court's order that she forward appellant's file to newly appointed counsel. We deny the motion; however we modify the trial court's order to require counsel to forward the file only upon her receipt of appellant's consent.[2]

         M. Patrick Maguire has been appointed as replacement counsel for Smith in these appeals. We order Maguire to notify this court in writing within ten days of this order whether he adopts the brief filed by former counsel while the appeal was abated or whether he intends to file a new brief.

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Notes:

[1] The Motion for Reconsideration of Remand, Brief, and Motion for Extension of Time to File were all filed in this court on the afternoon of May 31, 2017, ...


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