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Bernard v. State

Court of Appeals of Texas, First District

May 9, 2019

Derrick Bernard
v.
The State of Texas

          185th District Court of Harris County Trial court case numbers: 1550370

          ORDER OF ABATEMENT

          Laura Carter Higley Judge

         On September 20, 2018, appellant, Derrick Bernard, filed a notice of appeal from the September 20, 2018 judgment of conviction following a jury trial of the non-death capital felony offense of capital murder for which the trial court assessed appellant's punishment at life confinement without parole. The trial court certified that this was not a plea-bargain case, and that appellant had the right to appeal, and it appointed Patrick F. McCann as counsel for appellant. See Tex. R. App. P. 25.2(a)(2). This Court's December 18, 2018 notice informed appellant's appointed counsel that it had granted his first motion for a 60-day extension of time to file appellant's brief until February 19, 2019.

         Then this Court's March 26, 2019 Order on Motion granted appellant's second 60-day extension of time to file appellant's brief until April 22, 2019. That Order noted that no further extensions would be granted and that, if no brief was timely filed by April 22, 2019, this Court would abate this case. Counsel has failed to timely file a brief.

         Accordingly, we sua sponte abate this appeal and remand for the trial court to immediately conduct a hearing at which a representative of the Harris County District Attorney's Office and appellant's counsel, Patrick F. McCann, 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 Patrick F. McCann has abandoned this appeal;
(3) if counsel Patrick F. McCann has not abandoned this appeal:
a. inquire of counsel the reasons, if any, that he has failed to file a brief in each case 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 Patrick F. McCann has abandoned this appeal, enter a written order relieving Patrick F. McCann of his duties as appellant's counsel, including in the order the basis for the finding of abandonment, determine whether appellant is indigent, and:

a. if appellant is still indigent, appoint substitute appellate counsel at no expense to appellant;
b. if appellant is not indigent, admonish appellant of the dangers and disadvantages of ...

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