Shelly Blair v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00360-CR
________________________
SHELLY BLAIR, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2014-401,146; Honorable William R. Eichman II, Presiding
June 5, 2015
SHOW CAUSE ORDER
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Shelly Blair, was convicted by a jury of aggravated assault against a
public servant1 with an affirmative finding on use of a deadly weapon. The trial court
assessed punishment at fifty years confinement and Appellant perfected this appeal.
Both the clerk's record and reporter's record have been filed. Appellant's brief was due
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TEX. PENAL CODE ANN. § 22.02(b)(2)(B) (West 2011). Aggravated assault is a second degree
felony that is elevated to a first degree felony when committed against a person the actor knows is a
public servant while the public servant is lawfully discharging an official duty. Id.
to be filed on March 2, 2015, but has yet to be filed. By letter dated March 10, 2015,
retained counsel for appellant, Jesse Mendez,2 was advised that the brief remained
outstanding and was granted until March 20, 2015, in which to file the brief, noting that
failure to comply would result in abatement of the appeal and remand of the cause to
the trial court for further proceedings without further notice.
When counsel failed to respond, on April 1, 2015, an Order of Abatement and
Remand was issued directing the trial court to inquire on counsel’s failure to file a brief.
Because Appellant’s brief was already past due when the matter was abated, the order
provided that “should Jesse Mendez be allowed to remain as counsel, he is hereby
ordered to file Appellant’s brief instanter.”
In its findings filed in a supplemental clerk’s record, the trial court found that “due
to confusion or error not attributed to Appellant or her counsel, counsel did not receive
the reporter’s record until April 24, 2015.” Rather than order the brief be filed “instanter”
as directed by this court, the trial court sua sponte granted Mr. Mendez thirty days from
April 24, 2015, in which to file Appellant’s brief. On May 26, 2015, Mr. Mendez filed a
Motion to Extend Time to File Appellant’s Brief requesting until May 30, 2015. As
grounds for the motion, Mr. Mendez provided:
Appellant’s Counsel has not completed the final draft of the brief but
expects to complete it by Friday [sic], May 30, 2015. Counsel had to be
out of his office from May 18 until May 26, 2015 and was unavailable to
complete the brief. Accordingly, Appellant requests the Court grant this
motion and extend time to May 30, 2015.
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Appellant was represented by court-appointed counsel. By order dated February 13, 2015, the
trial court granted Appellant’s motion to substitute Mr. Mendez as retained counsel.
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May 30, 2015 fell on a Saturday. The extension motion was not ruled upon and the
requested deadline has now lapsed without Appellant’s brief being filed and without any
communication from Mr. Mendez regarding the status of the motion or this appeal.
Accordingly, we hereby ORDER Jesse Mendez, State Bar Number 13932590, to
file Appellant’s brief in this cause, in accordance with Rule 38.1 of the Texas Rules of
Appellate Procedure, on or before June 8, 2015. Pursuant to Rule 9.2(c)(4) of the
Texas Rules of Appellate Procedure, a brief will be considered timely filed if it is
electronically filed at any time prior to midnight, Central Standard Time, on said date.
No motions for extension of time will be considered.
Irrespective of whether counsel timely files Appellant’s brief, counsel is
ORDERED to personally appear before this court on Wednesday, June 10, 2015, at
9:00 a.m., to show cause why this court should not initiate contempt proceedings in
accordance with section 21.002 of the Texas Government Code for disobedience of an
order of this court or why this court should not report his conduct to the Office of the
Chief Disciplinary Counsel of the State Bar of Texas for proceedings under the Texas
Disciplinary Rules of Professional Conduct.
It is so ordered.
Per Curiam
Do not publish.
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