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Eudy v. State

Court of Appeals of Texas, First District, Houston

June 28, 2018

Christopher Shane Eudy
v.
The State of Texas

          Criminal District Court No. 2 of Tarrant County Trial court No. 1484751D

          ORDER OF ABATEMENT

          LAURA C. HIGLEY JUDGE

         On 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).

         On 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).

         On 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.

         Accordingly, 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 teleconferencing.[1]

         The 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 this appeal;
(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 appeal:
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 hearing;
(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 ...

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