Courtney Duane Barlow v. the State of Texas ( 2022 )

Order entered February 11, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00392-CR
COURTNEY DUANE BARLOW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court
Collin County, Texas
Trial Court Cause No. 380-82257-2020
ORDER
Before the Court is appellant’s February 9, 2022 fifth motion for an
extension of time to file his brief. A review of this appeal shows the notice of
appeal was filed on March 3, 2021. Because of a delay in the filing of the
reporter’s record, appellant’s brief was initially due on October 9, 2021. Having
considered the Texas Supreme Court’s ongoing direction to liberally allow
extensions of time due to the COVID-19 pandemic, we granted four extensions of
time, giving appellant an additional one hundred and twenty-three days to draft and
file his brief. In our January 11, 2022 order, we cautioned appellant that absent
extenuating circumstances, the failure to file a brief by February 9 would result in
the appeal being abated for a hearing. In his fifth motion, appellant states he needs
an additional thirty days in which to file a brief, citing the same reasons as he did
in his January motion but no new or additional issues. Appellant does not,
however, indicate whether he has read or reviewed the six-volume reporter’s
record or the clerk’s record, nor does he indicate whether he has started drafting
the brief.
Under these circumstances, we ORDER the trial court to conduct a hearing
to determine why appellant’s brief has not been filed. In this regard, the trial court
shall make appropriate findings and recommendations and determine whether
appellant desires to prosecute this appeal, whether appellant has abandoned the
appeal, or whether appointed counsel has abandoned the appeal. See TEX. R. APP.
P. 38.8(b). If the trial court cannot obtain appellant’s presence at the hearing, the
trial court shall conduct the hearing in appellant’s absence. See Meza v. State, 742
S.W.2d 708 (Tex. App.–Corpus Christi 1987, no pet.) (per curiam). If appellant is
indigent, the trial court is ORDERED to take such measures as may be necessary
to assure effective representation, which may include appointment of new counsel.
We ORDER the trial court to transmit a record of the proceedings, which
shall include written findings and recommendations, to this Court within
TWENTY DAYS of the date of this order.
We DIRECT the Clerk to send copies of this order to the Honorable
Benjamin Smith, Presiding Judge, 380th Judicial District Court; and to counsel for
all parties.
This appeal is ABATED to allow the trial court to comply with the above
order. The appeal shall be reinstated twenty days from the date of this order or
when the Court finds it appropriate to do so.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE