in Re Russell I. Gunter, II ( 2006 )

NO. 07-06-0426-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

EN BANC

OCTOBER 27, 2006 ______________________________

IN THE MATTER OF RUSSELL I. GUNTER II, ATTORNEY _______________________________

Before the Court en banc:

SHOW CAUSE ORDER

On October 17, 2006, this Court rendered an order in cause No. 07-05-0466-CR, directing Russell I. Gunter II, counsel for appellant Kenneth M. Romero, to file a brief. The order provided:

Appellant Kenneth M. Romero timely gave notice of appeal from his conviction and sentence for driving while intoxicated, 2nd offense. The clerk's and reporter's records were filed in March 2006 and May 2006, respectively.

When appellant's counsel did not respond to this court's June 27 letter notifying counsel that appellant's brief had not been filed by its due date of June 19, and advising him that the appeal would be abated if no response was received by July 7, we abated the appeal and remanded the cause to the trial court for a hearing in accordance with Rule of Appellate Procedure 38.8(b)(2).

Pursuant to our direction, on August 10, 2006, the trial court held a hearing at which appellant's retained counsel appeared. The reporter's record of the hearing reflects that counsel represented to the trial court that his failure to file the brief by its due date was inadvertent, and was caused by a calendaring mistake made by his office staff. In response to the trial court's questions, counsel affirmed that his client desired to prosecute the appeal, and affirmed that he was retained to represent his client on appeal and had been paid. Counsel further assured the trial court that he had read the appellate record and begun preparation of a brief, and could complete the brief in fewer than thirty days. The court inquired of counsel, "So you are telling us that if you are given 30 days you can get that finished?" Counsel replied, "Oh, absolutely, Judge."

The trial court subsequently filed findings of fact consistent with counsel's representations, and requested that this court allow counsel thirty days from the date of the hearing to submit the brief.

In accordance with the trial court's findings and recommendation, we reinstated the appeal and, after the supplemental reporter's and clerk's records were filed, notified counsel that appellant's brief was due Friday, September 15, 2006. No brief was received. We notified counsel by letter dated September 26 of that fact, and advised him that further action would be taken unless the brief or other response to our letter was received by October 6, 2006. No response has been received.

Rule of Appellate Procedure 38.8(b)(4) provides that, based on the trial court's record of a hearing concerning the failure of an appellant to file a brief in a criminal case, the appellate court may act appropriately to ensure that the appellant's rights are protected, including initiating contempt proceedings against appellant's counsel. Accordingly, appellant's counsel, Russell I. Gunter II, is directed to file a brief for appellant, prepared in accordance with the Texas Rules of Appellate Procedure, and submitted so as to be received by the clerk of this court no later than 5:00 p.m. local time on October 24, 2006. Attorney Gunter's failure to comply with this order will result in the initiation of contempt proceedings or other appropriate sanctions.

It is so ordered.

Notification of the order was contained in an original letter addressed to Russell I. Gunter II, a copy of which is attached to and incorporated in this order.

The Court finds that Russell I. Gunter II has not filed a brief for appellant in the appeal as ordered, nor communicated any reason for failing to file the brief. Consequently, he appears to be in contempt for failing and refusing to obey the October 17, 2006 order of this Court.

Accordingly, the Court now orders that Russell I. Gunter II shall appear in the courtroom of this Court at 501 S. Fillmore, Amarillo, Texas, on Monday, November 20, 2006, at 10:00 a.m., to then and there show cause, if any he has, why he should not be held in contempt for failing and refusing to obey the October 17, 2006 order of this Court.

IT IS SO ORDERED.

Per Curiam

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