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Kinnett v. State

Court of Appeals of Texas, First District, Houston

July 23, 2019

Lonnie Gene Kinnett
v.
The State of Texas

          Trial court: 212th District Court of Galveston County Trial court case number: 17-CR-0916

          ORDER OF ABATEMENT

          EVELYN V. KEYES JUDGE

         On December 21, 2018, appellant, Lonnie Gene Kinnett, filed a notice of appeal from the September 26, 2018 judgment of conviction following a jury trial of the enhanced first-degree felony offense of driving while intoxicated third or more, for which the jury assessed appellant's punishment at life confinement. 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). The Clerk of this Court's June 4, 2019 notice granted the third extension request to file appellant's brief until June 28, 2019, by appellant's retained counsel, Susan C. Norman and Holly Gail Crampton, with no further extensions to be granted.

         Because appellant did not timely file a brief, the Clerk of this Court sent a late-brief notice on July 1, 2019, notifying appellant's counsel, Susan C. Norman and Holly Gail Crampton, that this case might be abated for a hearing pursuant to Texas Rule of Appellate Procedure 38.8(b)(2), if either the brief or an extension motion was not filed within 10 days of that notice. To date, counsel has neither timely filed a brief nor requested another extension on appellant's behalf.

         The Court therefore sua sponte abates this appeal and remands for the trial court to immediately conduct a hearing at which a representative of the Galveston County District Attorney's Office and appellant's retained counsel, Susan C. Norman and Holly Gail Crampton, 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 Susan C. Norman and Holly Gail Crampton have abandoned this appeal;
(3) if counsel Susan C. Norman and Holly Gail Crampton have not abandoned this appeal:
a. inquire of counsel the reasons, if any, that they have failed to file a brief 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 Susan C. Norman and Holly Gail Crampton have abandoned this appeal, enter a written order relieving Susan C. Norman and Holly Gail Crampton of their 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 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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