Tomas Rodriguez v. State ( 2007 )

NO. 07-07-0086-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

DECEMBER 14, 2007

______________________________

TOMAS RODRIGUEZ,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 64^TH DISTRICT COURT OF SWISHER COUNTY;

NO. A-4022-06-01; HON. ROBERT W. KINKAID, JR., PRESIDING

_______________________________________

ORDER ON MOTION TO ABATE AND REMAND

_______________________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          Pending before the court is a “Motion to Abate and Remand” filed by appellant on November 27, 2007. In his motion, appellant requests we abate the cause back to the trial court because portions of the appellate record are missing. Specifically, according to appellant, the second volume of the Reporter’s Record is missing the testimony of Tomas Rodriguez, and a hearing held on November 10, 2007, was not made part of the record. We deny the motion for the following reason.

          Appellant was convicted of aggravated sexual assault of a child on March 9, 2007, and on March 14, 2007, appellant filed his notice of appeal. The clerk’s record and the reporter’s record were filed on June 6, 2007, and September 7, 2007, respectively. Therefore, appellant’s brief was due October 8, 2007. However, on October 9, 2007, appellant moved for an extension of time to file his brief which was granted to November 7, 2007. On November 7, 2007, appellant, again, requested an extension of time to file his brief. The court granted the motion for extension to November 28, 2007, with the admonition that no more extensions would be granted. Nonetheless, on November 27, 2007, appellant filed the present motion to abate due to the aforementioned missing portions of the record. The motion to abate was filed because appellant could no longer obtain an extension of the briefing deadline, according to appellant’s counsel.

          In reviewing the appellate record, we find that Tomas Rodriguez’ testimony does appear in volume two of the Reporter’s Record. As for the hearing conducted on November 10, 2007, the court reporter for the 64^th Judicial District has confirmed that the hearing will be transcribed and filed with this court no later than December 17, 2007.

          We accordingly deny the motion to abate and order appellant, Tomas Rodriguez, and his counsel, James E. Wooldrige, to file an appellant’s brief, complying with the Texas Rules of Appellate Procedure, with this court no later than 5:00 p.m. on December 21, 2007. Considering that two briefing deadlines have already been missed, no motions for extension of time to file the brief will be entertained.

          It is so ordered. 

                                                                                    Per Curiam

Do not publish.