Court of Appeals of Texas, First District, Houston
Criminal District Court No. 2 of Tarrant County Trial court
ORDER OF ABATEMENT
C. HIGLEY JUDGE
January 26, 2018, appellant, Christopher Shane Eudy, was
convicted after he pleaded guilty to the state-jail felony
offense of fraudulent use/possession of identifying
information under 5 items, which was an open plea enhanced to
a third-degree felony because of two prior state-jail felony
convictions. See Tex. Penal Code Ann. §§
12.35(c)(2)(A), 32.51(a)(1)(C), (E), (b)(1), (c)(1) (West
2011). The trial court assessed appellant's punishment at
ten years' confinement. See Tex. Penal Code Ann.
§ 12.34(a) (West 2011). On February 20, 2018, appellant
timely filed a notice of appeal, and the trial court
appointed Christopher Mark Nelon as appellant's appellate
counsel on February 22, 2018. See Tex. R. App. P.
26.2(a)(1). On March 8, 2018, the trial court certified that
this was not a plea-bargain case, and that appellant had the
right to appeal. See Tex. R. App. P. 25.2(a)(2).
March 27, 2018, the appellate records were completed after
the filing of the clerk's record, because there was no
reporter's record, and appellant's brief was due by
April 26, 2018. See Tex. R. App. P. 4.1(a), 38.6(a).
On April 11, 2018, this appeal was transferred to this Court
from the Second Court of Appeals following the Texas Supreme
Court's transfer order which was issued pursuant to its
docket equalization powers. See Tex. Gov't Code
Ann. § 73.001 (West 2013).
April 30, 2018, the Clerk of this Court granted
appellant's counsel's first extension request to file
a brief until May 29, 2018. Because appellant did not timely
file a brief, the Clerk of this Court's June 12, 2018
late-brief notice notified appellant's appointed counsel,
Christopher Mark Nelon, that this case may be abated for a
hearing pursuant to Rule of Appellate Procedure 38.8(b)(2),
if either the brief or an extension motion were not filed
within ten days of that notice. Appellant's counsel
failed to timely respond.
we sua sponte abate this appeal and
remand for the trial court to immediately
conduct a hearing at which a representative of the Tarrant
County District Attorney's Office and appellant's
counsel, Christopher Mark Nelon, shall be
present. Tex. R. App. 38.8(b)(2). Appellant shall also be
present for the hearing in person or, if appellant is
incarcerated, at the trial court's discretion, appellant
may participate in the hearing by closed-circuit video
trial court shall have a court reporter record the hearing.
The trial court is directed to:
(1) make a finding on whether appellant wishes to prosecute
(2) if appellant does wish to prosecute this appeal,
determine whether counsel Christopher Mark Nelon has
abandoned this appeal;
(3) if counsel Christopher Mark Nelon has not abandoned this
a. inquire of counsel the reasons, if any, that he has failed
to file a brief timely on appellant's behalf; and
b. set a date certain when appellant's brief will be due,
regardless of whether this Court has yet reinstated this
appeal and no later than 30 days from the date of the
(4) if Christopher Mark Nelon has abandoned this appeal,
enter a written order relieving Christopher Mark Nelon of his
duties as appellant's counsel, including in the order the
basis for the finding of ...